BOARD OF ADJUSTMENT                                              MINUTES

FEBRUARY 13, 2002                                                                                 

 

REGULAR MEETING

 

 

Salute to the Flag:

 

OPENING MEETING: 

This is a Regular Meeting of the Wanaque Board of Adjustment and adequate notice has been duly advertised by the mailing of a notice to the Suburban Trends and the Herald & News on the 15th day of January, 2002 and a notice thereof has been posted on the bulletin board in the Municipal Building and a copy thereof is on file with the Borough Clerk.

 

ROLL CALL:    Chairman Jack Dunning, William Grygus, Peter Hoffman, Don Ludwig, Ted Roberto, Frank Covelli, Harry Hirshman, Lee Smith, Attorney Ralph Faasse, Engineer William Gregor and Building Inspector Jeffrey Brusco.

 

MEMBERS ABSENT:  Robert Ricca

 

APPLICATION #24-01 Richard & Regina Wieland, 138 Greenwood Ave., Block 460 Lot 16, Bulk & Use Variance:

Correspondence received from Regina Wieland requesting to carry the application to the April 10, 2002 Meeting. Secretary directed to send an Extension Letter for 120days.

 

MOTION TO CARRY APPLICATION TO THE APRIL 10TH MEETING WITH THE PROVISION THAT THE BOARD RECEIVES A 120 DAY EXTENSION LETTER PRIOR TO THE MARCH 13TH MEETING: made by Member Grygus, seconded by Member Ludwig, voting yes were Chairman Dunning, Members Grygus, Hoffman, Ludwig, Roberto, Covelli, Hirshman and Smith.

 

APPLICATION #25-01 Mt. Lakes Estates & Lakeside Manor, Conklintown Rd./Mt. Lakes Drive, Block 200 Lots 8, 28, 29, 30, 32 & Part of 8.02 Bulk Variance:

Correspondence received from Corporate Counsel, Juliana E. Blackburn requesting to carry application to the March 13, 2002 Meeting. Secretary directed to send an Extension Letter for 120 days. Chairman Dunning told Eng. Gregor to review the set of drawings that was dropped off to the Building Department and then send some correspondence to the applicant asking to forward the appropriate number of drawings that would be required. Atty. Faasse mentioned, at the last meeting, there was a need to amend their application, problems with the notice, problems with the plans and they were going to file an amended application. Atty. Faasse also mentioned, that the Corporate Counsel, Juliana Blackburn called him and they went over the fact that the Board needed an amended application and the Board isn’t looking to replace the existing application. He explained  the fees would be saved, but the Board needs to know exactly what they are asking for and what properties are going to be affected by the application.

 

REGULAR MEETING

 

MOTION TO CARRY TO THE MARCH 13, 2002 MEETING WITH THE PROVISION THAT THE BOARD RECEIVES A 120 DAY EXTENSION LETTER PRIOR TO THE MARCH MEETING: made by Member Grygus, seconded by Member Roberto, voting yes were Chairman Dunning, Members Grygus, Hoffman, Ludwig, Roberto, Covelli and Smith.  Member Hirshman abstained.

 

APPLICATION #22-01 Peter Prodzenko, 37 Snake Den Rd., Block 102 Lot 3, “A” Appeal & “B” Interpretation:

Atty. James LaSala, 85 Newark Pompton Tpke., Riverdale, N.J.,  stepped forward on behalf of his client. There was some confusion originally when this application was filed as to the address. It was cleared up that Lot 3 is 37 Snake Den Rd., and Lot 4 is 39 Snake Den Rd.

Atty. Faasse suggested that the application be heard tonight back and forth and then reserve the decision, because this is going to tax the Board’s ability to judge this application. Atty. Faasse explained to Atty. LaSala earlier today, that tonight they should explore the facts and come to grips with the facts tonight and then they can always apply the law between now and the next month, because there might be some problems with ascertaining the specific facts. Basically, Atty. Faasse said, the appeal is two-fold. First Atty. LaSala is saying, that the Borough’s Zoning Administrator made an improper decision when he said that this was not an independent lot for lack of a subdivision, because there was a subdivision. The subdivision was created by way of Judge Amos Saunders’ 1992 Order. Atty. LaSala spoke up and said, technically it’s not a subdivision under the statute, and his client doesn’t need a subdivision and is permitted to sell it separately because of the Order. Atty. Faasse went on to say, legal argument number two is, even if the Board were to decide adverse to the appellate, the Borough had a two year statute in which to contest. Since they never did contest, the statute of limitations now precludes the Borough from arguing that there wasn’t a subdivision, and therefore, Atty. LaSala’s client then would be at liberty to treat this as an independent lot

and sell to whomever he wants.

Atty. LaSala’s package dated February 7, 2002 explains essentially what Atty. Faasse had just laid out on the record. The two basic areas of the appeal they’re filing, based upon the two specific statutes sites 40:55d-7 which is the statute that refers to the judicial decisions and the second one is 40:55d-55 which is the statute of limitations 2 years. The first document after the letter dated Feb. 7, 2002 in the package, is the Court Order entered on June 19, 1992 by Judge Saunders in the Matter of the Action for the Sale of Lands of Herbert Rodel, A Mental Incompetent, Order Confirming Contract For Sale Of Lands Of Incompetent And Other Requested Relief. The next documents, in this package, are the Deeds that were generated as a result of the Court Order. The first deed in the package is for Lot 4, which is deeded to George Prodzenko dated July 17, 1992 prepared

by Michael J. Sweeney, who was the attorney representing the guardian for the

incompetent. The second deed, dated July 17, 1992, is for Lot 3, which is deeded to Peter

Prodzenko. These two lots were originally owned by Mr. Herbert Rodel and were sold on the same date to two different people, George Prodzenko for Lot 4 and Peter Prodzenko for Lot 3. Included in this package from Atty. LaSala, is all the correspondence he’s been able to obtain between the purchaser of the lot who is John McHugh, Barry Dean who is the Attorney for Peter Prodzenko on the sale of the property, Building Inspector Jeffrey Brusco on behalf of the Borough, Anthony Fiorello, Borough Attorney and Arnold Cohen Attorney for the purchaser, John McHugh.

Atty. Faasse told Atty. LaSala that the deeds in the package have no recording dates. Atty. LaSala said the copies he has have no recording dates, but he knows they were recorded because the town has been taxing the properties separately since 1992.

Atty. LaSala went over the correspondence in the package. (All members have copies of this package.) Atty. LaSala especially wanted to bring attention to the letter dated July 3, 2001 from Attorney Fiorello to Attorney Cohen in which he states that he enclosed a copy of a letter to Building Inspector, Jeffrey Brusco dated June 8, 2001. The point that Atty. LaSala wanted to raise to the Board was that Building Inspector Brusco based his opinion primarily on this letter because this is the first time that Atty. Fiorello issued a definitive opinion with regard to whether or not the subdivision was required on the lot.

In this letter, in the third paragraph, Atty. Fiorello stated in this case Lot 3 owned by Peter Prodzenko and Lot 4 owned by George Prodzenko, are all in Block 102. At one time in the past, both properties were owned by George Prodzenko. Atty. LaSala said that is an important factual mistake. Atty. LaSala, continued to say that both properties had been owned by Mr. Rodel. Mr. Rodel’s guardian obtained a Court Order permitting the sale of the lots separately. If Atty. Fiorello had been correct in his letter of June 8, 2001, the Court Order, part of this appeal, would not exist. Therefore, Atty. LaSala said, the legal opinion that Building Inspector Brusco seems to be basing the statement that a subdivision is required, generates from the opinion of Atty. Fiorello.

Atty. LaSala told the Board, that George Prodenzko has the benefit of the easement across Lot 3, which is another issue raised by Atty. Fiorello in his March 30, 2001 letter to Atty. Cohen. Since George Prodenzko has other access from Lot 4 to Snake Den Rd., there is no need for him to have the benefit of that easement, when in fact he’s waived that easement, so those issues raised in Atty. Fiorello’s letter are unnecessary for the Board to consider, because the easement no longer exists. Therefore, the only issues the Board needs to address tonight, Atty. La Sala said, is whether or not the Judicial Order is sufficient to avoid the necessity of a subdivision, or if its not, if the town would waive its ability to assert that the subdivision is necessary because no action was taken to have the two deeds stricken after they were recorded in 1992.

Atty. Faasse asked Atty. LaSala about the attachments to the January 19, 2001 letter from Heritage Abstract Company to Attorney Barry Dean.  Atty. LaSala, explained that the attachments are part of a package that came from Mr. John McHugh as submitted to Building Inspector Brusco.

Chairman Dunning added, what those attachments reflect from A-Plus Realty, is that the Prodzenko’s own surrounding other lots and asked if they were adjoining to Lots 3 & 4

and Atty. LaSala said not to Lot 3. At this point, Atty. LaSala asked George Prodzenko to come up to the microphone and Atty. Faasse swore in Mr. Prodzenko, 81 Snake Den Road, Wanaque, N.J. Atty. LaSala asked Mr. Prodzenko if his son Peter owned any  adjacent property to Lot 3 and Mr. Prodzenko said no. Atty. LaSala asked Mr. Prodzenko if he owned Lot 4 and Mr. Prodzenko said yes and he also owns Lot 9. Atty. LaSala told the Board, Mr. Prodzenko, by owning Lot 4, which has an easement across Lot 3 which he will be waiving pending the sale of the property to Mr. McHugh. Member Grygus asked, by waiving the easement, how will anyone get access to Lot 4 and Mr. Prodzenko said by Lot 5.01. Eng. Gregor went over the fact that, George Prodzenko owns Lot 5.01 that is a 13 ft. wide easement for access to Lot 4 and George Prodzenko owns Lots 4, 9 and 5.01. Eng. Gregor also asked George Prodzenko, the dwelling he lives in is located on what lot and Mr. Prodzenko said Lot 9. Eng. Gregor also wanted to know if there is a dwelling on Lot 4 and who lives in it. Mr. Prodzenko said, it is rented and is accessed through Lot 3 and Mr. Prodzenko is proposing to change this access, should this sale go through, and then the access would be through Lot 5.01.

Atty. Faasse told the Board Atty. LaSala’s argument is there was no need for a municipal subdivision approval because Judge Saunders, in his opinion, created the subdivision and that is an exception to the subdivision requirements of the Municipal Land Use Law. Atty. Faasse addressed Atty. LaSala and said, in Judge Saunders order, it specifically says that the guardian has permission to sell to George & Peter Prodzenko, it doesn’t specifically say and create two different lots, one in George’s name and one in Peter’s name. Atty. LaSala responded by saying, information through Atty. Dean’s office, that the contracts have been submitted to the court and approved. Atty. Faasse said the Board doesn’t have the contracts and Atty. LaSala said he would have to ascertain this for the Board. Atty. LaSala added, if the lot in question is undersized, then variances could be required. If the lot doesn’t have enough frontage, overall square footage or in anyway substandard, doesn’t affect it being an independent lot, it simply affects whether or not it can be built upon without a variance. Atty. LaSala said he’s not addressing variances otherwise he would be in front of the Planning Board doing a subdivision. Atty. LaSala said they’re trying to avoid those expenses as far as the seller’s concern and Atty. LaSala wants to be able to tell the buyer that he has clear title. 

Building Inspector Jeffrey A. Brusco, 579 Ringwood Ave., Wanaque, N.J. came forward and was sworn in by Atty. Faasse. Mr. Brusco told the Board he is the Construction Official, Building Subcode Official, Building Inspector, Zoning Officer, Land Use Administrator and Property Maintenance Officer. Mr. Brusco said, as this application has been progressing, when the original application was brought to him by Mr. McHugh, all of the research showed 39 Snake Den Rd. Apparently since this has come about, someone has changed the records to 37 Snake Den Road. Mr. Brusco went on to say, just recently, the latest comment Atty. LaSala said, is that he’s here to ask if there’s two separate lots and that is not what was asked to Mr. Brusco. What was asked to Mr. Brusco was if a home could be place there and the question never arose about whether there were two

separate lots. Mr. Brusco went on to say the information that was provided tonight was  

asked for a year ago. The documentation of Judge Saunders order was never brought to Mr. Brusco. Mr. Brusco had asked them if they were going to remove the road and if the easement was taken care of legally and that was never provided. Therefore, Mr. Brusco said, he can’t see how this information can be accepted now. Mr. Brusco said, his determination was based on information that was given to him at the time and now Atty. LaSala is saying Mr. Brusco made an inaccurate calculation when he brought in different information here tonight.

Atty. LaSala answered by saying his understanding is that the documentation was given to Atty. Fiorello and he assumed given to Mr. Brusco. There is reference in the correspondence, as far as Atty. LaSala can recall, most of which came from Mr. Brusco, regarding the fact that there is a paved road and is there an easement that’s going to be waived. Atty. Dean advised Atty. Fiorello that’s its going to be waived and there is documentation from the title company. Atty. LaSala said the 37 Snake Den Road address was given to him by the town after he submitted the application.

Chairman Dunning said, it appears a lot of information did not come back to the Building Inspector, Mr. Brusco. Atty. Faasse said, the other point is, until he asked for it today, Atty. Faasse never saw a copy of the Order by Judge Saunders.

Member Roberto asked Building Inspector Brusco if he based his opinion solely on the June 8, 2001 letter from Atty. Fiorello and Mr. Brusco said no he did not. Mr. Brusco told the Board, he based his opinion on all of the information that is in his file that he provided to Atty. LaSala. Atty. Faasse asked Mr. Brusco if he was only asked for a Building Permit. Mr. Brusco said, he was asked by Mr. McHugh if it was a buildable lot and Mr. McHugh never applied for a Building Permit. Atty. Faasse then asked Mr. Brusco, if a formal request was ever made of him to certify that this was a building lot. Mr. Brusco said no, and in fact, there isn’t even a letter in the file of his denial that it is not a building lot. Atty. LaSala had asked for a CO in October for the lot in question. Mr. Brusco said, he asked for a CO for the land and Mr. Brusco added, that there is no CO for land. Atty. LaSala said he wanted the CO for the structure that is on the property. Mr. Brusco added, that Atty. LaSala said himself, that this structure was unlivable since 1992, and Mr. Brusco wanted to know how can you apply for a CO for something that is unlivable. Atty. LaSala is of the opinion, that Mr. Brusco based his opinion on Atty. Fiorello’s letter of June 8, 2001. Atty. Faasse added, that Mr. Brusco, in his official position, if he has a question on zoning, he wouldn’t go to the Board of Adjustment Attorney, but rather to the Borough Attorney, who is Atty. Fiorello and the question would be passed on to the Borough Attorney who then would render an opinion to Mr. Brusco to use. Atty. Faasse also said, that technically they’re not reviewing Atty. Fiorello’s decision, but they’re reviewing Atty. Fiorello’s decision that caused Mr. Brusco to act in a certain way. Mr. Brusco concurred by saying, he never gave a letter of denial to build a structure, a denial for a lot and there was never a Building Application made.

 

Chairman Dunning said, as far as Mr. Brusco, there doesn’t seem to be any correspondence denying that the lot exits as Lot 3.

 

RECESSED AT 9:25 P.M.

 

RECONVENED AT 9:35 P.M.:  All present as before.

 

Atty. LaSala made a statement that Mr. Brusco had indicated he had conversations with Mr. McHugh (contract purchaser) and wanted to know if Mr. Brusco ever gave anything in writing to Mr. McHugh. Mr. Brusco said he would have to check his file. Member Hirshman asked Chairman Dunning if Mr. McHugh could be present at the next meeting.

Chairman Dunning said Mr. McHugh has no actual bearing in this matter. Mr. Brusco spoke up and said, he just looked through his file and there is nothing in it addressed to Mr. McHugh.

Atty. LaSala concluded by saying, as Atty. Fiorello states in his June 8, 2001, this is an unusual circumstance and the place to get this resolved is either the Board of Adjustment or Planning Board. The decision of whether this is an independently existing lot is something that the Board of Adjustment can decide without the expense of site plan and all the other things that are entailed in a full blown subdivision application. If this is an independently existing lot, now the buyer has to determine if it meets current code, and in Mr. McHugh’s letter of January, 2001 he is under the impression that it meets current code because its more than 75 ft. frontage etc.

Eng. Gregor said, currently on Lot 4 there is an occupied structure, an occupied structure on Lot 9, and an unoccupied structure on Lot 3 and Atty. LaSala agreed. Eng. Gregor said, if in fact Lot 3 becomes separate from Lot 4, Lot 4 does not have suitable frontage and is that another issue that the Board should be concerned about? Atty. Faasse said, according to Atty. Fiorello, yes, but the applicant is saying that there is access to that via Lot 5.01. Eng. Gregor responded by saying, there is access but not suitable access for the MLUL.

 

OPEN TO PUBLIC DISCUSSION:  None/Closed

 

Atty. Faasse summed up and said, the Board needs the contracts that were before Judge Saunders, certain information on taxes, copies of recorded deeds, and arguing an appeal of Atty. Fiorello’s letter, and if Atty. LaSala wants to say why the Board of Adjustment has jurisdiction Atty. Faasse said he would be interested in seeing that, and if the Board of Adjustment has jurisdiction has the time expired on that?

Mr. Brusco added, that he looked at the original Application for Development in the file, and Atty. LaSala did ask for property location 39 Snake Den Rd., he didn’t ask for 37 Snake Den Rd.

Eng. Gregor told the Board, he’s not going any further with any reviews unless he’s specifically requested to do so by the Board.

 

MOTION TO CARRY APPLICATION TO THE MARCH 13TH MEETING SUBJECT TO THE APPLICANT SUPPLYING THE DOCUMENTATION AS REQUESTED AND THE DOCUMENTATION HAS TO BE FILED MORE THAN 10 DAYS BEFORE THE MARCH 13TH MEETING: made by Member Roberto, seconded by Member Ludwig, voting yes were Chairman Dunning, Members Grygus, Hoffman, Ludwig, Roberto, Covelli, Hirshman and Smith.

 

PUBLIC DISCUSSION: None

 

RESOLUTION ON APPLICATION #23-01 Ringwood Park Plaza Realty, L.L.C. (CVS Pharmacy) 1102 & 1104 Ringwood Ave., Block 438 Lot 1.01, Commercial for Signs:

 

MOTION TO APPROVE: made by Member Roberto, seconded by Member Grygus, voting yes were Chairman Dunning, Members Grygus, Hoffman, Ludwig, Roberto, Covelli, Hirshman and Smith.

 

CORRESPONDENCE: Letter from Sandy Lawson dated December 18, 2001 commending the Board for doing a fine job on the CVS Pharmacy Application.

 

Received was a Civil Action Summons, Docket No. PAS-L-522-02, to the Wanaque Board of Adjustment and Borough of Wanaque as Defendants, and Ruth Kreloff, Plaintiff.

 

MOTION TO DIRECT THE BOARD ATTORNEY TO TAKE THE NECESSARY AND APPROPRIATE ACTION TO DEFEND THE BOARD’S DECISION ON THIS CASE: made by Member Grygus, seconded by Member Ludwig, voting yes were Chairman Dunning, Members Grygus, Hoffman, Ludwig, Roberto, Covelli, Hirshman and Smith.

 

Chairman Dunning told the Board he received phone calls from the Broughman’s regarding their time running out from the night the Resolution was read. Atty. Faasse said in these types of situations were the variance expires in nine (9) months, you have to file for an extension and fees are involved. Atty. Faasse told the Board Secretary to tell the Broughman’s they would have to secure a Building Permit before their time ran out or file for an extension. In the meantime, the Broughman’s contacted Chairman Dunning and Chairman Dunning explained to them the time limit was nine (9) months and they wanted to know why. The Broughman’s felt, that their delay was caused by the Letter of Interpretation from the State taking so long to come.  Mrs. Broughman told Chairman Dunning that there is are statutes giving the Board the ability to extend her variance. Chairman Dunning told Mrs. Broughman to produce these statutes.

 

Chairman Dunning announced, received was an “Agreement for Engineering Services” from Eng. Bill Gregor for the year 2002.            

 

MOTION TO ACCEPT “AGREEMENT FOR ENGINEERING SERVICES” FROM BILL GREGOR FOR THE YEAR 2002: made by Member Grygus, seconded by Member Covelli, voting yes were Chairman Dunning, Members Grygus, Hoffman, Ludwig, Roberto, Covelli, Hirshman and Smith.

 

Chairman Dunning mentioned that the Board has been given copies of new ordinances, and Eng. Gregor had a question about Planner, Jill Hartmann. Ms. Hartmann alluded to a new Zoning Map that’s in existence. Bldg. Inspector Jeff Brusco said “Alaimo Engineering” has prepared one and he doesn’t think its been accepted yet and Bldg. Inspector Brusco hasn’t received one yet. Eng. Gregor spoke up and said that one of the things that concern him is that a year after the ordinance was passed on the R-87 Zone with no clear definition of where that zone is. The Board Secretary said she passed the new ordinances out before the meeting got started this evening.

 

Chairman Dunning asked Bldg. Inspector Brusco if anything has been done about “Sierra Landscaping”, referring to the letter from the County Planning Board. Bldg. Inspector Brusco said the owner has been in to see him and assured Inspector Brusco he’s getting his engineer to work on it.

 

Chairman Dunning brought up the matter about “C” Town (Mounir Zikra). Chairman Dunning said the problem he has with this is, they have a problem with Eng. Gardner and the retention pits on the site, and according to Eng. Gregor, they are not going to work. Chairman Dunning said, if that water spills off the property into the County’s Storm Water Management, then the Borough would have a problem with the County.

The signage is also a problem and is half done and not done right. Eng. Gregor added that the site is not in conformance with the requirements for subsurface storm water retention.

Atty. Faasse suggested the Board should have something in writing from Eng. Gregor to Eng. Gardner and copy the County, so the Board’s file is documented. Bldg. Inspector Brusco told the Board he has issued a “Temporary Certificate of Occupancy” and there is a State Statute under the UCC that states, when a Temporary can be issued, it must be issued. It was recommended by Bldg. Inspector Brusco, for Eng. Gregor to go to the site and make an inspection and let the Building Inspector know what it deficient at the site and if there are any safety problems. Eng. Gregor agreed to this request.

 

VOUCHERS: submitted by Atty. Faasse for Resolution on Application #23-01 Ringwood Park Plaza, LLC (CVS Pharmacy) for $115.00.

 

MOTION TO APPROVE:  made by Member Covelli, seconded by Member Smith, voting yes were Chairman Dunning, Members Grygus, Hoffman, Ludwig, Roberto, Covelli, Hirshmann and Smith.

 

MINUTES: from Reorganization & Regular Meeting of January 9, 2002.

 

MOTION TO APPROVE: made by Member Covelli, seconded by Member Grygus, voting yes were Chairman Dunning, Members Grygus, Hoffman, Ludwig, Roberto, Covelli, Hirshman and Smith.

 

ENGINEER/BUILDING INSPECTOR’S REPORT:  Bldg. Inspector Brusco had nothing new to report.

 

Eng. Gregor said he has been asked by the Bldg. Inspector to inspect “C” Town site and  has just received some drawings for Lakeside Manor which he will be looking at between now and the next meeting.

 

MOTION ADJOURN AT 10:40 P.M.: made by Member Hoffman, seconded by Member Ludwig, all in favor.

 

 

                                                                                    ______________________________

                                                                                    Gerri Marotta

                                                                                    Secretary to Board of Adjustment