Planning Board Minutes 2-11-10 Print E-mail


7:30 PM Start

195 Changebridge Road, Montville Municipal Building

Minutes of February 11, 2010

No New Business to be Conducted Past l0: 00PM


Mr. Maggio - present              Mr. Karkowsky - present       

Mr. Sandham - present          Ms. Nielson - present                        

Mr. Lipari - absent             Mr. Lewis - present

Mr. Hines - present                Mr. Canning - absent

Mr. Visco - present                 Mr. Speciale (alt#1) - present

                                                   Mr. Tobias (alt#2) - present







Report from Planning Board on Quick Chek Use Application @ Board of Adjustment scheduled March 3, 2010.  Mrs. White asked if there were any members interested in participating at the Board of Adjustment for the Quick Chek should there be a need for members.  Mr. Visco indicted he would be available, and Mr. Lewis indicated if a second needed, he would also be available.  Mr. Burgis will be at the March 3rd meeting. 

Board members discussed the demolition of the Milan structure acknowledging that if the applicant removed the existing non-conformities, wouldn’t we have the opportunity to readdress the site in a more effective manner.  Mr. Carroll indicated it would require an amended site plan since he did not comply with the approved plan.  Mrs. White notified the applicant’s attorney when this first occurred.  Mike Carroll, Esq. confirmed he is now subject to a new site plan.

Mrs. White indicated the construction official has a stop work on this site and that fines are being imposed.  This process is much more punitive than zoning since it provides for the CO to impose and collect fines. Gary Lewis encouraged the imposition of fines and enforcement procedures. 

Mrs. Nielson brought up the Serafin subdivision noting the same concern:  building outside of board approved plans.  This applicant constructed a closed community type of gate/fencing and pillars and landscaping.  Mrs. White noted they are in variance, and that the applicant was advised to come back to the Planning Board with amended subdivision to address this element added, apply for the required variances at the same time that the soil removal hearing so that the board can entertain this site at one hearing.  Applicant was advised.  Mrs. White will also notify their attorney.  No further building permits will be released by the township until compliance achieved. 

Concerns noted also with George’s Volkswagen.  Mrs. White indicated this is being addressed by engineering and zoning. 


            Update:  Master Plan – Housing Element

Mr. Burgis summarized he has been working with the master plan subcommittee putting the document that is before you this evening, noting there is good news as to final housing number.  COAH has indicated we have a prior round from 1987 to 1999 of 261 units with a 214 obligation and determined growth share of additional 316 units.  The number at issue is 316, and it is the planner’s position that after factoring credits in and applying credits to prior credits; we wind up with additional credits.  The 316 number should only be 239, meaning we have 211 left over which would mean that our remaining number would only be 28 units required in this Third Round process.

This is an especially good thing because we have current zoning and approvals in place, in the Towaco area which will satisfy our obligation.  Having said all that, the issue is will the State accept this number based on our analysis, to which Mr. Burgis feels we are on firm footing.  Two days ago, the governor signed an executive order that puts everything on hold, and the executive order is creation of a task force on the affordable housing issue, as well as State Planning, COAH regulations and fair housing, state planning, COAH regulations and this committee has to submit a report in 90 days. 

Not only are they required to present their findings, they have to submit recommendations for change in COAH Regulation in 90 days.  There is a 90 day moratorium for any further reviews of COAH approval of their ho0using plan.  In addition, they cannot take action to implement their third round regulations during this time period unless DCA determines that it is necessary.    Fair Share Housing Association signed a notice that they are going to take this to court on an illegal executive order. 

Summary of what this all means to us:  we are technically required to file a draft document with Highlands by March 1st, and this document before you is that very document that will be filed.   It is appropriate to file this document.  The executive order also talks about plans filed with COAH for substantiate certification, which also extends the 90 day period.  We were required to file by June 8th with them.  Mr. Burgis urged that this document is filed with Highlands.  It is a benchmark to the townships in preparing the documents that are required under this grant program.  This is a draft document and it is an on going working document. 

Directed board’s attention to two pages:   look at page 24 in the table breakdown.  This page identifies projects that exist.  Total need is 472 credits.  We only need 261 to meet prior round, and growth share after applying 211 excess credits is shifted over to address third round growth share requirement.  These numbers are summarized on page 28.  This shows some of the excess credit, and the inclusionary developments that our zoning already contemplates which addresses the 28 unit we will need to supply.  We are in a good position. 

Mr. Burgis also noted there is a Senate bill introduced to eliminate COAH.  The township will be the party responsible vs. a state agency.  It also talks to limited bringing back of regional contributions.    We are concurring with Highland’s rule, and this must be submitted by March lst.  No action is needed by this Board since this document is a requirement of the grant program for Highlands.  The subcommittee wanted to bring this information to you.   Mr. Burgis will be meeting with Township Committee on February 23rd.   Secretary will get colored copies of this report to the Township Committee for that meeting. 

Mr. Sandham wanted assurances that we met our obligations thru the units we approved this past year, even though some of them do not have concrete plans at this time.  Mr. Burgis indicated that this is not a problem that they have until 2018 to build them.  We are obligated to zone.  We are not involved in construction business.

Ms. Nielson asked Mr. Burgis to be prepared to respond to potential questions about regionalization and selling credits and pros and cons of this concept for the Township Committee, as well as developing an ordinance to take impact development fees.  This information should be made very clear at the township committee.  Mr. Burgis discussed the requiring of have to provide for 14 rehab units noting that COAH regs provide that for rehab you have to show you have financial ability to fund existing homes that are occupied by owner income qualified families.  The regulations require that 50% of this obligation be set aside for funds of $10,000 per unit which would be $70,000 set-aside by the Township.  One way to generate this monies is to put in a development fee ordinance, which would allow you to place up to 1 ½ percent on new residential construction.  The fee for commercial is removed already.  If you don’t do a development fee ordinance, the township would have to fund monies themselves, and Mr. Burgis indicated that having done many of similar towns like Montville,  it is rare to find those units within a community for rehabilitation. 


Reports from Board Liaisons:

a) Board of Adjustment – Gary Lewis   

b) Board of Health – Larry Tobias – indicated there was a meeting on Monday but he wasn’t able to attend but they were reviewing the Quick Chek & Tiffany’s applications that night.  They were reviewing Tiffany’s for outside smoking area.  Question on Quick Chek:  was there diesel involved?   Also asked:  on these cases where applicants are receiving approvals and violating them, is there a way we can take some kind of a ‘default’ bond?  Mr. Carroll indicated negatively but noted we could take performance and restoration monies, but that they have to be returned. 

c) Environmental Commission – Vic Canning 

d) Water & Sewer – Arthur Maggio 

e) Historic Preservation Commission – John Visco - Mrs. White indicated she met with Mike O’Brien, and sent all of the documents that were developed over past year for HPRC as well as minutes, agenda schedules and some open items.  He is looking forward to steering this committee and working with our boards. 

f)  DRC – Deb Nielson  

g) Site Plan/Subdivision Committee – Russ Lipari Chair, Ladis Karkowsky,  Deborah Nielson, & John Visco (alt)

j) Economic Development Committee – Tony Speciale

k) Open Space Committee – Ladis Karkowsky, Russ Lipari, Deb Nielson  & Jim   Sandham

l) Master Plan/COAH 3rd Round – Ladis Karkowsky, Russ Lipari, Deborah Nielson, Gary Lewis & John Visco (alt)

m) Cross Acceptance Committee – Lad is Karkowsky, Russ Lipari  

n) Highlands Legislation Review Committee – Gary Lewis

o)  Appointment to Fire Department Districts – Russ Lipari –Towaco; Tony Speciale for Pine Brook, Art Maggio for Montville


PMISC10-03 Alvogen – 10 Old Bloomfield Ave. – B: 160.1, L: 10 – office (3,500 s.f.)/warehouse (2,500 s.f.)/Lab (6,300 s.f.)     for research and development of generic pharmaceuticals, not for human consumption – 8am-5pm Mon-Fri – 30 employees – signage to be in conformance with approved theme (SK. Realty) (prior occupant Elusys – same business operations)

Approved unanimously subject to use letter and sign theme in a Motion made by:  by Mr. Tobias and seconded by Mr. Maggio. 


PMSP/F08-BORNSTEIN, DAVID – 73 Horseneck – 15 Woodland, B:139.06, L: 17 & 18 – Major subdivision involving extension of Woodland to Horseneck Road- Variances: lot frontage & min. lot width at street and bldg. setback line for lot 17.01 – Approved 12/10/09 Eligible:  Ladis Karkowsky, Deb Nielson, Victor Canning, Gary Lewis, Art Maggio, Tony Special, Jim Sandham, Larry Hines, Russ Lipari

Motion made by:  Deb Nielson

Seconded by: Tony Special

Roll Call:  Unanimous


PEXT06-25 Sharpe Health & Fitness – Indian Ln – B: 32, L: 24.1 – extension of final site plan approvals from August 9, 2009 to August 9, 2010

Motion made by:  Gary Lewis

Seconded by: John Visco

Roll call:  Unanimous


Minutes of 2-2-10 subcommittee:  Eligible:  John Visco, Deb Nielson, Ladis Karkowsky, And Gary Lewis

Minutes of 1-10-10 Regular meeting - Larry Hines absent

Minutes of 1-21-10 subcommittee – Eligible:  Ladis Karkowsky, Deb Nielson, Russ Lipari and John Visco

Motion made by:  Art Maggio   

Seconded by: Deb Nielson

Roll call:  Unanimous


Burgis Associates – Trust for: $343.75; $531.25, $187.50, 625, $125

Michael Carroll, Esq. – Trust for: $31.25, $31.25, $31.25, $31.25, $343.75, $93.75, $250.00, $31.25, $31.25, $1,755.00 (Milan), $33.75

Omland Engineering – Trust for: $270, $472.50, $2,092.50 (Pinto), $641.25

Johnson, Murphy – Trust for: $225

Motion made by:  Larry Tobias

Seconded by: Tony Speciale  

Roll call:  Unanimous




CESARE STEFANELLI – Soil Movement Hearing - BL 59.01, L: 8.05 & 8.08 – (Montville Acres) – River Road – Notice acceptable & carried from 8/13/09 & 9/10/09 - Eligible: Russ Lipari, Deb Nielson, Gary Lewis, Lawrence Tobias, Larry Hines, John Visco,  Victor Canning, Jim Sandham, Tony Speciale, Ladis Karkowsky, Art Maggio


Steven Schepis, Esq.

Mr. Stefanelli unable to attend due to an accident in Lowe’s parking lot. 

Professionals were sworn

Mrs. White summarized past activities and meetings held with applicant and the expert hired to perform soil testing, as well as failure to proceed with soil testing as indicated in expert’s proposal.  Mr. Karkowsky indicated he is unhappy with the way this is dragging on and it is something that was done without the township’s permission.  We tried to work with this applicant, and wonder why he is coming back to the Planning Board without soil testing. This Board is involved in soil removal hearing, and involves taking the soil out.  The concern is that there is no soil testing.  Mr.  Schepis:  this matter is an issue and to be candid, Mr. Stefanelli has painted himself into a corner and he doesn’t have the ability financially to effectuate a removal of the soil in this application.  What broke his back was the estimate secured which was $17,000 that coupled with months or years to remove the soils.  Mr. Karkowsky noted he had the financial ability to bring in the soils.  He used township property and covered a very important historical rock feature. 

Mr. Schepis:  Mr. Stefanelli fell and cannot attend.  Difficulty is finding someone to remove the soil due to location.  To remove this volume of soils, Mr. Stefanelli cannot do it.  It is a terrible thing and he can’t justify what he did, but the only thing that can be done is to leave it in place and revegetate the area and stabilize lands to look like rest of slope.  Concerns raised:  we have no idea what type of soils exist here.  When you do truckloads of fill, there is paperwork and what is contained in that fill is supposed to be marked.  Although Mr. Stefanelli had some certifications, from the lab/expert we hired, there was no one from the township present to view these soils. 

Mr. Karkowsky continued:  In September, this Board saw no reason to go any further without testing.  If $17,000 is the issue, are there other quotes for testing which are less.  Applicant hasn’t offered anything to this board to support something different.  Mr. Schepis:  Mr. Stefanelli came up with an estimate of the same amount at $17,000.  Mr. Omland:  when we agreed to have one expert, this estimate came in at the exact same number. 

Mr. Schepis:  suggested we consider allowing the fill to remain in place since Mr. Stefanelli is never going to be able to remove it.  Mr. Sandham:  with all due respect, applicant needed a soil removal permit, and if the township wasn’t out looking at open space adjacent to this site, perhaps it might never had been discovered, but the question is what does the homeowner’s insurance policy cover in this instance since no one is going to say it can stay in place.  It is on land that is to be turned over to the township. Mr. Schepis:  Unless the township sues him, his insurance won’t pay for anything.  If the Township is forced to sue, his defense is covered.  

Mr. Karkowsky indicated he is not going to change his mind on this soil removal permit.  Mr. Carroll asked for confirmation that Mr. Stefanelli is not going to test.  Mr. Omland:  this is ongoing since September 10th, at which time we worked out hiring one outside consultant to save monies for Mr. Stefanelli.  This consultant came up with a scope of work well in advance; one of the other consultants gave the same price with all the same scope.  The scope of work was to come in an environmental analysis of township property with respect to soils in place, lab results and testing of various constitute. 

On November 10th, this proposal was given to applicant, and since then no answer received.  There is an issue of the historic rock and letters from the State as to worthiness of preservation and our obligation is to provide application review of soil removal.

There are certain obligations that the applicant must addresses under our ordinance 2009-17 chapter 12.24.   This ordinance was reviewed for Board all of which responds to the general safety and welfare of neighborhood.  The slopes are such a steep slope, there is soil erosion; drainage off premises, and some of the fill would be our detention and drainage is impacted.  There is swale.  Soils were not stabilized; soils stability which speaks to angle of slopes which means sliding of hillside and this is in excess; work was done outside his lot, and trespassing is involved.  The land called detention is not ours yet, and they have to maintain the basin and this is another claim that is separate from this.  These are four or five specific health issues which are at risk or are not in compliance.  There are many other areas:  can’t do soil removal in so many feet of a lot line, and this exceeds property line.  It is unacceptable today.  You should not be bound or guided by what the applicant said, especially not knowing what the soils consist of.

We have one set of reviews that indicates soils are ok, and one is from New York which are not using Jersey standards, so we don’t know if this fill is good.  We do not know what the sampling frequency was, and that is why we wanted the environmental consultant to determine what the soil was.  Our expert suggested test pits of 10 which would involve just testing.  Without that information, you may not be responsive in addressing public and municipal concerns.   Photos presented to Board by Mr. Omland of site and marked in as O1 2/11/10 consisting of 8 pages with two photographs on each page. 

Mr. Lewis indicated he went in from River Road site and the limits of detention aren’t delineated.  It was spongy back there, and wonders if the drainage facility is working correctly.

Mr. Schepis:  applicant developed a revegetation plan that could be incorporated into the site to address the concerns of the stability of the soils and revegetation of the soils.  Mr. Omland:  what is estimate cost of restoration?

Mark Moore – Green Earth Landscaping, 11 Skyline Drive .  Landscape plan – sworn in.

He worked with existing contours and modifications.  Mr. Carroll:  wanted to make sure that all testimony is included in this in order to create the record if this should go to litigation.

Mr. Moore’s plan, marked in as A3– 2/11/10 called Landscaping Plan

He is not a landscape architect.  His goal was to re-establish a natural wooded area, and a sampling of the lower part of the detention area.    The light green area on south property line as you approach area in rear is flat and would be crown vetch to hold the soil.  Idea of the plantings is that it will attract wildlife and birds and goal is to have these plants and natural vegetate.  Full plant schedule was given to board members.    He felt all of the growth would take three weeks for entire process to germinate, and the cost would be $25,000 for entire job.

Mr. Moore was asked:  are you top soiling this area?  He is amending the slope around the plants, the plants he proposes will do well in the soils, and they will have good growth.  Mr. Omland asked: Has Morris County Soils been involved in this matter.  Mr. Schepis:  no.  Mr. Omland:  Proposal may be worthy but it won’t satisfy Morris County standards, and it would have to met the concerns of Morris County Soils.  If there was an intent to leave the site as is, there should have been feedback from Morris County Soils.  Mr. Schepis indicated that they did not contact them, and Mr. Omland indicated that the soil plan would not meet standard of Morris County Soil.

Asked of Mr. Schepis:  Mr. Stefanelli would be willing to disturb $25,000 of landscaping with a $17,000 testing procedure since Mr. Schepis indicated if township allowed soil to remain, he would go forward with testing?  It was indicated that the determination on soil l testing must be done first.  Mr. Schepis indicated Mr. Stefanelli was willing to do testing only if restoration was allowed.  The cost of removal is estimated at  $300,000 for removal of soil.  This was just removing what was on township lands, not removing everything, and what lot grading on the original building permit indicates that there was a great amount of soils beyond approved grading plan. 

Mr. Lewis:  proposed crown vetch beyond split rail fence and area is shown as 6300 sq. appears to correspond of hashed area of soil stabilization plan that is tagged as area of disturbed rock on municipal land.   This board is in receipt of municipal attorney letter indicated that this soil on township property is not to stay, and in terms of content of soil movement property, we are not the landlords, but instructions from Township Committee was very clear, that this area is off limits and the soil must be removed.  Mr. Schepis indicated that since Township Committee modified the soil movement ordinance, placement is now in exclusive jurisdiction of this board, and although Township Committee may want this, it is now this board’s jurisdiction.

Ms. Nielson discussed the amount of fill and the surrounding areas.  There are all sorts of debris out there, and not sure if the plants can be put into soil.  There is material and we are not aware of what exists there.  The Township Committee tried to cooperate and decided to send the soil movement to the land use boards.  The fact is that the township could impose fines with the intent to remedy this situation, and it is an open issue for far too long a period. 

Mr. Sandham:  this is not clean fill, there are slabs of concrete, and asked landscape expert as to how you landscape over a slab of concrete?  There were steel poles coming out of ground.  As a non expert, it is not coming close to what it should be.

Mr. Moore:  the concrete materials would have to be pulled out.  Concern raised: how do you maintain stability of a boulder if you start moving these concrete parts out since we have no idea how deep this concrete is.  Mr. Omland:  Is removal of concrete included in bid.  Yes per Mr. Moore.  Light green area is all sod area.  Mr. Moore indicated the drainage can be addressed by engineer.  He has not given the board a breakdown as to his costs estimates. 

Mr. Maggio:  I can share the story in a similar situation as to planting on concrete.  Someone did something similar, and in that case it worked, but no one knows what is in this soil.  This has been going on since September at this board.  Mr. Schepis:  if applicant has to remove it, made no sense to test it.

Mr. Visco:  Mr. Stefanelli took advantage of this township, historic rock and what is being proposed, that when all is said and done, he is paying the exact amount of monies he would have to pay if he intended to landscape lot.  He had no cho0ice but to landscape it.  Bottom line is he probably would have spent this money on landfill landscaping, end up with landscape backyard area, and that this unauthorized fill should be taken out. 

Mr. Sandham:  if you did remove soil, you still have to test soil.  Point is that it has to be tested whether it stays or go.  The $17,000 is required.

Mr. Tobias:  was he paid to put it on his property or did he get paid for the fill?

Opened to public:

37 Kanouse – David Schertcoff – didn’t know about this and has concerns as to whether or not this dirt is safe.  He realizes this is not ok and as knows how the wheels of government turns, and hearings continue and postponed, at the end of day, it is over a year and we still don’t know if the dirt is ok.  He feels we should test this soil and send the bill to the owner.    

Truth is, debacle is a great word.  This is a mess.  The question is:  what do we do to fix it.   It needs to work for the neighbors, the look is terrible, and at the end of the day, regardless of the price, monies not there to remove the dirt in fill, and it is going to result in litigation two to three years down the road, this is not good, it doesn’t work.  This is not a viable solution.  Assuming this dirt is tested and safe personally is to allow a vegetated plan to move forward on a grading plan that works on an engineering plan that works, and should engineer can come up with a plan that works.  Put together a vegetation plan.   Urge that there is a problem solving way to fix this.  The truth is the jurisdiction is not allowed at this board.  Test it.  Don’t want to see a problem like this exist for two to three years down the line. 

Mr. Karkowsky:  most of the delay is from Mr. Stefanelli and he was given directions and we all feel his frustration. 

Mr. Sandham:  understand frustration but there is a historic and scientific rock covered.  We don’t want this to take 3 years of litigation, and soil come back with problems, and financial aspect has to be responded to.  The soil should be removed, and put back into its natural state.  Mr. Stefanelli in a social environment said he is a principal in a title company, and he knows metes and bounds, and he had to be aware of this.  It is a self inflicted wound.   

Closed public portion.

Mr. Carroll:  if you deny, the Township Committee takes this over.  If this application is denied, there is no relief granted.  They gave it to us, to decide as to whether or not it should be permitted.

Mr. Karkowsky:  do we have ability to test soil and charge it back to applicant.  Mr. Carroll indicated no.  Assuming board denies application, and we don’t want to allow it as is, you can only say you are not going to approve.  TC can get injunction in court, or municipal court action for daily fines, and at that point Mr. Stefanelli defends the case.

Mr. Omland:  is there any interest in this matter for third party, Montville Acres, they are a party to this as well, work has to go on heir property, has there been any action been brought by Montville Acres.   Mr. Carroll:  all people would be joined in common application.  If the township was to bring an action, it would name that party and bring that party in as a named plaintiff, or provide in the complaint that notice is provided.  It probably wouldn’t name them as defendant, but may be codefendant, and does happen on occasion. 

Mr. Sandham:  heard a neighbor talk about potential health risk to force testing.  If you were to serve as governing body attorney, the action would be to file an injunction with an order to show cause, and at time to ask judge to order this testing or alternatively could do this themselves and seek that amount as damages in this case.

Mr. Lewis:  no testing has been done, and it is clear that this is an over riding concern before soil removal is considered, and there are areas beyond property line that were former historic rock that are not proposed in the current permit application to be restored, and no matter what the applicant proposes for their own site, the fact that there are township properties that are not proposed for reclamation is a problem, and for all of the reasons discussed this event, he would vote for disapproval of soil removal for these reasons.  Gary Lewis moved this as a Motion for denial of soil permit; seconded by Larry Tobias

Roll call:   unanimous

Move on this expeditiously to accomplish goals.

Mr. Tobias:  potential issues, and should this be referred also to Board of Health.   Ms. Nielson:  township engineer was in charge, and he should confirm that Board of Health was involved in this review process.

*PMN09-12 SAIA, SAVATORE - 107 Changebridge Rd. – B: 123, L: 2 – minor subdivision – Carried with notice from 12/10/09   ACT BY:          5/14/10

*Rescheduled to May 13, 2010 Agenda with Notice Preserved and time to act extended

Motion made to carry to agenda of May 13, 2010 by: John Visco

Seconded by: Larry Tobias

Roll call:  Unanimous

Board recognized Ms. Barbara Demerest in the audience this evening from HPRC, welcoming her and asking if she had any questions/input, and if so, feels free to bring to this board.






Meeting adjourned unanimously in a Motion made by: Art Maggio   

Seconded by: John Visco

Respectfully submitted,

Linda M. White

With explanation

With explanation

Must certify to missed hearing of 9/10/09

Last Updated ( Tuesday, 16 March 2010 )
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