Zoning Board - Regular Meeting

Good evening and welcome to the August 3rd, 2026 meeting of the City of Summit Zoning Board of Adjustment. My name is Scott Leuchertz and I'm the Zoning Board Chair. Please rise and join us in the Pledge of Allegiance. Thank you. In accordance with New Jersey Statute 10-4-10, adequate notice of this special meeting has been provided to a newspaper record and has been posted here in City Hall. This meeting is a judicial proceeding. Any questions or comments must be limited to the issues that are relevant to what the Board may legally consider reaching a decision, and decorum appropriate to a judicial hearing must be maintained at all times. For the benefit of the interested public, this meeting is being live streamed on the city's YouTube page. It's also being broadcast on some of its government channel. It's Comcast Channel 34 and Verizon Channel 30. Transcript of this meeting is also being taken using video and audio, so we need all speakers to utilize one of the microphones in this room. Please note that the fire exits are to my right, your left, and in the back of the room where you entered. The city has a listening system to assist the hearing impaired. If anyone needs hearing assistance, please obtain the system at the dais, return it thereafter. Ms. Sands, can you please call the roll of members?

Place chairs on as excused. Mr. Yuko?

Here.

Mr. Mullay?

Here.

Mr. Mullin is excused. Mr. Nelson is excused. Mr. Curran? Here. Ms. Chifo? Here. Mr. Feskens? Here. Mr. Chanchuli is excused. Mr. Bell?

Here.

Chairman Lueckitz? Here. You have a quorum. You may proceed.

Thank you, Ms. Sands. Andy Ball is the zoning board's attorney. Mr. Ball advises the board on matters of law and is the key interface with the applicant's attorney. Mr. Ball does not vote on these applications. Jessica Sands, who you just heard from, is a city employee. She's our zoning board secretary. Board secretary works with the applicants on preparing their applications, planning our agendas, keeping our meeting minutes. Board secretary also does not vote. Also present tonight are our experts who are hired annually to provide input to the board. Tonight we have Marie Raffae from Collier's Engineering. Also present is Ed Snykus from Burge Associates, and he's our board planner. These experts are seated at the table to the right of the board, the public's left. They also do not vote. Our board consists of seven regular members and up to four alternates. All members can participate in the hearing tonight, but only a maximum of seven can vote. Most applications require a simple majority to be approved. Before we enter into executive session to vote on these applications, you'll be advised of how many votes are required In each case, we'll begin with the applicants and their attorney giving an overview of the application process to date and the variances that are required. Then hear from any additional expert witnesses the applicant may have to explain the application and why those variances are needed. The board experts, then followed by the board members, may ask questions to the applicant, their attorney, and their expert witnesses. Due to recent cases running excessively long, we strongly encourage applicants and their experts to give brief and concise testimony so we may get to as many cases as possible in a given evening. Once the board members and then the board professionals have completed their questioning, the public will have an opportunity to ask their own questions. It's not the time to tell us what you think about the case. That opportunity comes at the end of the hearing. Please be careful how you phrase your questions. They should not be preceded with a statement about the case, which should be a direct question to the witness. Also, before you ask your questions, please clearly state your name, spell your last name, and provide your address. It's important that a court reporter be able to keep a clear and accurate public record. After all the witnesses have been heard, members of the audience have their second opportunity to speak. And this is a time when you may express your opinion, positive or negative, about the application. When the public hearing is closed, we enter into executive session. This is where the board members discuss the case and then we vote. You'll be able to listen in on our executive session, but you will normally not be able to participate in our discussion. I will now ask that each applicant and or their attorney, if present, come up and give a brief synopsis of their anticipated testimony tonight, including the number of witnesses and whether or not they can finish their presentation within 30 minutes. All right. Tonight, we're going to start with 211 Kent Place, but I believe that is being carried, correct?

They have requested to be carried without further notice. Apparently, they do believe that their application ultimately will not require any variances. They're just waiting on the building permit to be issued to confirm that that's the case. Assuming it is issued, they would withdraw the application. So they've requested to carry until October 5, 2026 for that confirmation.

All right. So just for a little bit of housecleaning, let's take a vote to carry this application. Can I get a motion? So moved. Got a second?

Second.

Ms. Sands?

Mr. Yuko?

Yes.

Mr. Malay?

Yes.

Mr. Curran? Yes. Ms. Chifo? Yes. Mr. Feskens? Yes. Mr. Bell? Yes. Chairman Lakers?

Yes. All right. Next up, can we get someone to give us a synopsis of 474 Morris?

Good afternoon, or good evening at this point, Mr. Chairman, members of the board. My name is Stephen Malenik. I'm an attorney with the law firm of Greenbelt, Rose Smith and Davis here on behalf of 474 Morris Avenue, LLC. And Mr. Chairman, you're just looking for a synopsis at this point in the summary of our, okay. We are here on an appeal of an administrative decision made by the City of Summit's Department of Community Services. That decision was one to render our fully conforming planning board application for site plan approval incomplete on the sole basis that the determination was a use variance was required. We are appealing that decision and seeking this body to make an interpretation as to whether or not a use variance is needed for the application as one ground. And on the second ground, determine, regardless of whether or not a use variance was required, whether DCS was the appropriate body to make that determination. With us tonight, other than legal argument, we do have a professional planner that will present testimony. And I do expect that we'd be able to get through it in half an hour.

Excellent. Thank you so much. Get to you guys first after we do our other two summaries. Thank you. Do I have a representative of 15 Sherman Avenue? Come on up.

I'm the owner of 15 Sherman Avenue, Swaroopa Sanyal. Thank you for having me. I'm looking to put a pool into my backyard, but because it's a corner lot, there's a couple of variances required. Understood.

Do you have any expert witnesses?

I do. I have the engineering firm, DJ Garian, who are going to help with the engineering aspects of it. Perfect. That's great.

All right. Thanks. We'll talk to you soon. And finally, 28 Plymouth Road.

Hi, my name is Claudia O'Leary. I am one of the owners of 28 Plymouth Road. We are looking to make some renovations in our home that requires a variance. We have a growing family and are looking to have my architect speak a little bit more to what we're looking to do.

Excellent. Great. Thank you so much. We'll talk to you soon. All right, we'll circle back around to 474 Morris. Okay, here our first appeal in a little while.

Mr. Chairman, being that this is my first time in the summit, do you prefer that I sit at the bench?

It's certainly your preference. As long as you speak into a microphone, you're good. Very good. All can hear me? Yes, sir. Perfect.

All right, very good. As I mentioned a moment ago, my name is Steven Malenik, and I'm an attorney with Greenbaum, Rose, Smith & Davis here on behalf of 474 Morris Avenue, LLC, which is the owner of property located at Block 506, Lock 34. And they've owned the property for nearly five decades, 49 years. And they've served this community as taxpayers, as business owners, and will continue to do this even if they're able to develop this. You probably know this property as the home of the Weikert Realtors Office. If this is developed in the way the owners anticipate and hope, that's not going to be the end of their business in Summit. In fact, they've purchased property and own property right downtown. You may know the yellow building that they've already painted in anticipation of this. And they're going to continue their relationship with the city of Summit for hopefully a long time. But they took a look at the zoning that is applicable to their property. We met with city officials as noted in our application during the initial rounds of the fourth round of affordable housing. And it was during those discussions that it was seemingly mutually agreeable that the use of this property would be put to best use by residential through a conforming application on the second and third floor. So the application that was submitted to the planning board was a three-story building with residential uses proposed on the second and third floors, not on the first floor. The first floor was used for parking and accessory use to the residential. And therein lies our issue. After we submitted the application, the Department of Community Services issued an incompleteness notice. That notice came from Ms. Sands, and it was difficult to determine at first who made that determination. But we ultimately did get the review letters in connection with our appeal here and see the reports from the zoning officer and from Mr. Burgess's office as well. And the determination that was made to render it incomplete was solely limited to the interpretation of DCS that commercial uses are required on the first floor in this zone. Now, I would ask all of you to point and direct yourselves to the B Zone language. And it's important to understand the framework, and I would certainly ask Mr. Boll to weigh in and give any advice that he needs to if necessary. But when you interpret any legislation, whether it's ordinances at the local level all the way up to statutes at the state level, our courts direct us to use the plain meaning of the language when possible. and only to go to other evidence, sometimes referred to as parole evidence, if necessary to make a determination. But if the plain language is sufficient, then that is what the interpretation must be. So if you look at the plain language of the B zone, its permitted uses include the text, and it's very important what the exact text says, residential uses above the first floor. It does not say residential uses so long as there are commercial uses on the first floor. It does not say residential uses above the first floor are a conditional use of any other kind. And it doesn't say anywhere in the zone that it must be a mixed use property if you're going to have residential units. To the contrary, there are at least eight zones in the city of Summit that do use alternative language, such as mixed use zoning, such as must be commercial uses elsewhere in the town, but not this zone. And if you look at the court cases that were cited in our rider to our application, you'll see there's been numerous instances in which courts have evaluated when it is appropriate to look outside of the plain language. and it is not appropriate when the language, as here, is as clear as it could be. The uses that we have on the first floor are entirely limited to accessory uses, which your B zone also permits for residential uses, uses such as parking that are accessory, incidental, and adjacent to and are pertinent to the residential uses. So for that reason, it is our argument that the plain language clearly supports an application for residential uses above the first floor. and that if the intention of this ordinance and the intention of the city and the governing body was that there must always be commercial uses on the first floor, then it should have said that, as it does in eight other zones, as most municipalities that have that level of zoning in a downtown environment have. and certainly should be one to look at in the future if that is the intent of this zone. But one of the things you're going to hear from our planner tonight is actually about the surrounding properties, which don't jive with the interpretation that have been made by DCS in this case. So that's number one. Number two, our secondary argument is that regardless of what this body finds in terms of what the proper interpretation of the zone is, the question remains who is the appropriate individual to make that determination. Now, we put a lot of case law and argument in our rider, but our position is it is not DCS in a letter signed by Ms. Sands. It is not the zoning officer, it is not the town planner, when your ordinances do not delegate that responsibility directly to them. Rather your ordinance is very clear and specific that the DCS role is entirely limited, entirely limited, to a review of the checklist items and whether they have been submitted. There is no allegation that I'm aware of that any checklist item that we submitted was incomplete. Now, Mr. Burgess's letter here suggests that the reason that is permissible is because the wrong forms were submitted, that because a use variance in their estimation was required, that a Board of Adjustment application forms were required and therefore it was incomplete. But that misses our argument entirely. Because at some point, someone has to make a determination of whether the wrong forms were used or variances required or whatnot. And your ordinance is clear that there's only one body who can make that decision, and that's the planning board. So long as we submitted a planning board application that checks every box, we're entitled to a hearing at the planning board. And the planning board can at that point say we don't have jurisdiction, their attorney can give them that advice, but it is not somebody in town office communicated in a letter through the board secretary that can determine that. And the reason that is so is the unfairness that could encounter in the future if that is allowed to have some unnamed municipal official make determination to deprive someone of their hearing when they've submitted everything in accordance with an ordinance checklist. So again, our first argument is that the ordinance does support this use. No use variance is required. And our second argument is even in the event you may disagree with that, it is not the call of DCS. We are still entitled to a planning board hearing. So with that introduction, I will ask that our planner, Mr. McDonough, join us and be sworn in, and we'll provide his qualifications.

Do you swear from the testimony you're about to give in this matters, the truth, the whole truth, nothing but the truth? Yes, I do. And please state your name, spell your last name.

Sure. Hi, everyone. My name is John McDonough. That's spelled M-C capital D-O-N-O-E-G-H.

Thank you, and can you briefly describe your background and experience for the board, please?

Sure thing. I'm a licensed professional planner here in the state of New Jersey. That license is current, and it's in good standing. I'm also a member of the AICP. That's our national certification, also current and in good standing. And this is what I do on a nightly basis throughout the state.

Any questions from the board or would you like to accept his credentials? We would. Please proceed.

Thank you, Mr.

Chair. Mr. McDonough, you've had an opportunity to review both the initial application as well as the appeal that was submitted by the applicant here?

Yes, I have.

Okay. And you've become familiar with the language of the B-Zone and the remainder of the land use ordinance in Summit?

Yes, I have.

Based on that, have you reached any conclusions or findings relative to the application today?

Yes, I have.

Would you go through that with the Board, please?

Sure thing. Mr. Chair, you've heard there's a procedural aspect to the applicant's appeal here. There's also a substantive aspect. My focus is going to be primarily on the substance here and what the plain language of the ordinance reads and how it, in my view, should be interpreted from a planning standpoint. Being that our focus here is substantive, we know that all land use planning starts with the land. So what I'd like to do, Mr. Chair, is just give the board some documents for orientation, for context, just to show where the site is located on Morris Ave. And we took a couple of drone shots just to help you see what's around it.

So we can mark this as A1. Is that how you like it? Yes, please. As A1. And if you could just describe for the record what it is that you prepared .

So you're going to see three pages. It's file size 11 by 17. First, it's going to have some colors on it. Those are land use classifications under the Mod 4 tax classification system, residential, non-residential, and the like. And then you're going to get two aerial photographs so you can see the physical character of the area showing the subject property and the surrounding environments. Simple as that. And I'm going to start on my right, which would be the board's left. And I'm seeing A1 make its way around. I'm just going to wait for it to hit your professionals. Basic of what you see in blue are residential properties. And importantly, we're looking at a single tax lot here, block 506, lot number 34, which is the longstanding Weikert building, locally familiar in the community. The property itself is about 14,758 square feet. And you can see that the property is now developed as commercial. The proposal, of course, is to go to residential. But what's important here, as you can see from the color coding, is that this site is part of a pocket or a cluster of residential uses along Morris Avenue. We've got four residential lots right across the street, and then we've got three residential lots immediately adjacent to the subject. including an apartment building. There's another one over in Gates behind as well that is residential. All of these uses, all of these seven or eight lots have residential on the ground level. the applicant in terms of what its ask is before the board is certainly not doing something that's atypical of this particular section of the area which has coexisted with your b zoned criteria notwithstanding the fact that they do have that that residential aspect to it so the next frame shows you what the color coding shows you with the subject property in the center of the photograph and i'm now at sheet number two on a1 the familiar yellow color of the brand. And then panning to the left, you see those three buildings. They're all residential, including that green building all the way to the left, which is a multi-unit apartment building. None of which are mixed. These are all residential buildings that are immediately adjacent. And then on frame number three, we flip to the opposite side or the reverse view, just again to focus on the subject building, the yellow in the middle, looking from the back or the rear towards those four buildings that are on the other side of the street. Again, all residential with no commercial hook to it. Again, an area that is purely residential in terms of its character and this infill redevelopment, certainly from a planning standpoint, would be zoning appeal from what the zoning interpretation is with respect to the B business zone. And it's a zone that permits 17 categories of permitted principal uses. including a category that reads residential uses above the first floor, which is exactly what the applicant is proposing here. We've got ground level parking, we've got residential uses on the second floor, and on the third floor, six units, and then six units above that. The ordinance does not say, as you've heard council say, mixed use or any combination of the above. As a permitted use, you do in about eight other zone districts here in the community. But again, reading the plain language of the ordinance, we've got residential above the ground floor, which is exactly what the ordinance reads. Now, we're here on the appeal because on May 21st, 26, it was a zoning determination that this was not a permitted use in the zone, and so the applicant procedurally is properly here before you under NJSA 40-55D-72. In terms of the justifications for the relief now, we turn to subsection 70 of the land use law, 70A. I know this board deals with a number of different types of variances. You're probably used to the C variances and the D variances where an applicant would be needed to show hardship or balancing whereby the benefits of the application substantially outweigh the detriments. We're not here before you asking whether the application is good or bad. but simply whether it aligns with the plain language of your zoning ordinance. And so we'll start, we'll look at what the ordinance actually says. And again, that section of the ordinance has really two components to it. The first component is residential uses, which in my view pertains to the type of use. Certainly residential as proposed here is permitted in the zone. The second part pertains not to the type of use, but the location of the use. above the ground floor is what the ordinance reads. So again, not on the ground floor, which is not where these residential uses are proposed. So, as I noted, nowhere in the zone does it indicate mixed use as a permitted use. It doesn't state explicitly or implicitly that a permitted use needs to be on the ground floor. It does talk about ancillary uses of which parking, lobbies, mail rooms can certainly be construed as ordinary and customary. Then the project itself, the project complies with both of those ordinance components that I just read. Residential uses, again in quotes, are what's proposed here, so the use type complies. And then the location, residential uses are located on the upper floors, so the location complies as well. And as I said, ancillary uses like lobbies and mail rooms are on the ground floor, which are not permitted under the literal read of the ordinance. so based on the above my conclusion is that the project does comply with the clear and plain language of the ordinance which is really your charge as as a board and in conclusion an applicant is entitled certainly to a degree of fairness and certainty when it looks at an ordinance when it reads the ordinance and here we have an applicant that has followed the plain language of the ordinance and in my view simply put is entitled to the relief sought I looked for clues in some of your annual reports from the zoning board to the planning board, to the governing body, rather. I looked in the master plan, didn't find any clues that would help me. So again, or that would indicate otherwise, I'll say. So here I'm just going by the clear and plain language of the ordinance. Residential use is above the ground floor, which is spot on with what the applicant is doing here.

Thank you, Mr. McDonough. And how would you, as a planner, interpret the fact that there are other zones that use alternative language to get to the result that the interpretation here has been?

There is a clear directive in those other zones to have residential uses on the upper floors above a non-residential use.

And in the board planners'

Well, those are really newer districts. Is there any relevance to that? In my view, no. If there was some ambiguity in the code, that's, in my view, something that would have been corrected as the other newer ordinances were coming online. It's something that would have been caught.

If you'd like to open up to questions, I can continue.

Okay, great. Board professionals, what questions do you have for this witness?

Thank you, Mr. Chairman, for the questions. With regard to the purpose of the B zone, could you identify what the purpose statement says in the B zone?

The B zone, it is a commerce-oriented zone. That's what the language of the ordinance says in the preamble there. But it is not atypical to see residential uses pulled into commercial areas, again, to provide a consumer population to support those local businesses.

What does the B stand for?

The B stands for business, B business zone. Right.

My point would be is that isn't it true that in the land use plan this area is called for the B business zone and those properties surrounding this location are also zoned for the B business zone? Yes. And then the exhibit that you provided identifies that the property is currently used for commercial. Are there any residential on the upper floor?

No, not currently. Not that I'm aware of. It's just a fire escape, I believe, on the outside. That's correct.

In fact, that's for residential. In addition to that, your map identifies the other residential surrounding the property. Do you know when those homes were built?

I don't. Residential properties? I don't.

Could they have been before the zoning was put in place for the business zone in this location?

I honestly don't know. Okay.

Did you do any research as to any recent variances that were granted along Mars there?

I did not encounter any approval or denial that in my view aligned with what the applicant is asking here. Okay.

And so your exhibits really are the existing land use conditions that are there, which seems to be more appropriate for finding for purposes of a use variance. Wouldn't that be true if it's an existing condition compared to the prescribed zone plan?

I think it can certainly dovetail into the interpretation that the applicant is asking the board to make. Perhaps there was a recognition in the drafting of the ordinance that there are certain pockets where we do have purely residential uses.

And that's what your purpose is of showing the aerial photographs are?

Yes.

But those aerial photographs also indicate that those properties are older as well, would you say, or typify them as older properties?

I don't know with respect to the date of the ordinance. I don't know if they do or don't. So I will classify them as new or old with respect to the ordinance.

Okay. Thank you. No further questions.

Mr. Chairman, may I ask some questions of the board member? Do the definitions in the zoning for the City of Summit define what a business is?

And just because we're getting to Ed, and it's more or less testimony at this point, atypical, but we'll swear you in. Do you swear from the testimony you're about to give in this matter is the truth, the whole truth, nothing but the truth? I do. And please state your name, spell your last name.

Certainly. It's Edward Snykus, professional planner, licensed landscape architect, and I'm with Burgess Associates, professional planner that's hired by the board.

and obviously as the board has hired Ed, I imagine we will accept his credentials. 110%.

That's a lot. I have not looked at that, but I do not see one in the code as far as defining business.

The purpose that you referred to before says the B zone is intended for the conduct of general business to which the public requires direct and frequent access as prime customers, clients, or patients, correct? That's what it says. Okay. Is a business, is a landlord who rents residential property to clients, not a business. It's probably a business, yes. Okay. So if there is no definition in the ordinance that says that it is not a business, and it is a business in your interpretation, what then is the reliance on that purpose language to disqualify the applicant from a permitted use?

I wouldn't find that the leasing of the property to other clients is actually the business being conducted on the property. It's what's occurring on the upper floors. It's not what's occurring on the lower floor.

the upper floors being the property that is being led. And in exchange for compensation, in exchange for a bargain that is made with the clients, that they are leasing space, that they are accessing it frequently, much more frequent than other customers of other businesses, would fall squarely within that purpose definition, would it not?

No, it would not because the business is not being conducted on the site as if they have a leasing office at the site.

Say that another way. I don't follow. I'm sorry.

There is no leasing office on the property. It's really just leasing of the opportunities. That's to say that residential is a business activity, and it's not. Well, you just said it was, so now you're... No, no, you have a business. Yes, there would be a business activity.

Okay, so if this applicant, 474 Morris Avenue, LLC, a limited liability company, develops this and leases that space, it's not paying taxes as a business, it's not incurring liabilities as a business, it's not taking out insurance as a business,

It probably is, but not at this location. You're in a different place of business.

Right. So what I'm asking is you're making that determination from a subjective point of view without a definition and determining what is and what is not a business.

It's not a subjective point of view. It's my professional experience.

Where can you point to that there's been an interpretation made that residential uses using this language are impermissible? I know your report suggested that there has been other applications that have been, but none of those that we could find involved this board making an interpretation of the ordinance. Are you aware of any of them? No interpretations. Okay. So this is a novel question to this body based on this language. I would probably agree, at least in my tenure. Okay. Have you had this experience in any other jurisdiction? No. Okay. So your interpretation, and let me start with this. Was it your interpretation that the application was denied? No, it was not. Okay. Whose was it?

I believe it was the zoning officer.

The zoning officer. Okay. I spoke to the zoning officer and he said it wasn't. Okay. That's not. Is the zoning officer in the room? I don't know what he looks like. Yes, he is. Okay. Okay. If you tell me it's permissible to ask the zoning officer questions or not.

I think he will, I imagine, testify shortly.

He's going to testify. At which point you can follow up with him. Very good. Thank you. So you're in support of that determination that it is not a permitted use. That is correct. If you were to write this ordinance with the intention that residential use is above the first floor and parking garage on the first floor were not to be permitted, would you write it in this fashion?

I'd probably write it in a different fashion due to more recent activities and recent understandings of how development is being done in the modern day.

Can you elaborate on that?

No, I think I answered your question.

Okay. If you look through the uses, the phrase mixed use does not appear, is that correct? It appears in other zones, is that correct? That is correct. Were you, the planners, involved in the most recent reexamination report for the city? Yes, we were.

Actually, the most recent? No, that was actually a separate firm.

Okay. But when you were involved, the iteration you were involved with, did you make any recommendations to change this language?

We were not involved in the reexamination report for the municipality.

In the actual master plan? No. No.

Okay.

That's it. Thank you, Mr. Chairman.

um board what question i just have one quick follow-up question for ed i know there was testimony about or questioning you of uh whether this would be considered a business essentially a business use and i think your answer was no correct that's correct i and i guess similarly if a single-family residential home in a residential neighborhood was rented for a profit to somebody else Is it your opinion that that would be a business use or a residential use? It would be a residential use. Okay. Sorry.

I have a follow-up to that. Are you aware that the Hotel and Multiple Dwellings Law distinguishes one- to four-bedroom buildings from those over four units in determination what a business is? I'm not familiar with that. Okay. Well, it does.

OK, board, what questions do you have for this witness?

I have a question for the planner, and I think you kind of alluded to this, but I want to see if you have specifics. Are you aware of any properties in the B zone, especially in that zone, in that adjoining area that have accessory use for permitted first for use that, let me rephrase that again. Do you have knowledge of any properties in the neighborhood that have a first for use that's not a business that received a variance for any of that?

I think this is We couldn't encounter any specific application, so I'm not aware.

Okay. And a couple hypotheticals. I know hypotheticals aren't always the best thing to do, but let's say hypothetically that we determined that a use variance is not needed. Is it your position then that the application as submitted to the planning board should be determined to be complete?

Yes. Okay.

What if the reverse happens? If we decide that a use variance is needed, do you disagree that that planning board application is inappropriate since if you need a use variance, you need to come to the zoning board?

I'll give you my opinion as a planner. I'm not a lawyer, but we operate in a legal framework for sure. My opinion would be it's an applicant's burden to match up with the checklist. The applicant has done that. Notwithstanding the outcome on the substance, I think procedurally the applicant has done what it's supposed to do. It followed the checklist that it was in front of. And, yeah, I think it should be taken completely.

But if they need a use for it, if we decide they need a use for it, they need to come here later on for that approval.

Yes, the planning board does not have jurisdiction. Okay.

Are the checklists identical? Other than one says planning board, one says zoning board? Okay. They're not identical. Okay.

They have different requirements.

That's all I have for now.

I have a question here. Please. When we're looking at this section of Morris Avenue, we see that there is some trend of having more businesses progressing and this area becoming more business-like. So this gray line between business was the definition of business is really could be vague. But what I would like to know from your point of view, this application or this building, will it help progress the business in this area or will it have kind of bad impact?

I'm going to allow the witness to answer, but I just want to make clear that the question you just asked, which is a good one, would really go towards a use variance. I think to the point your planner was making before, and I'm happy to have Mr. McDonough answer that. But this is really a question of technicality and not, we don't want you to decide the answer to that question, whether or not you like the application, but purely whether the language supports the planning board hearing it. Mr. McDonough.

Sure. I think the answer is absolutely. This proposal at this location would certainly help the corridor and certainly help the business intent of the corridor. You all have in your packets the architectural representation of what the applicant is proposing here, which is going to be in substantial conformance with your B zone requirement from a form standpoint. I think there was one C variance, maybe coverage or something like that, that the applicant was asking the board to move on. But it's going to be a beautiful addition to the corridor here, infill, that will put a resident population here to support those businesses. in my view these b zones are approaches to your core they're they're fringe zones to your core where residential is is perfectly appropriate from a planning standpoint anybody on on the board needs additional copies of the renderings if it would be helpful well i agree it's probably premature to even think too much about what it looks like at this point it's part of your packet that's why i brought it up

I have a question which might be best directed to an architect, but I don't know if you are going to be having the architect. Planner and architect isn't that far apart. And it is almost a planning question. I didn't see in the documentation anything pertaining to parking count. Could you elaborate on the number of parking spaces inside and outside, the number of apartments, and how it meets zoning requirements? And if I missed it in the documentation, I apologize.

I'm gonna get that for you in a sec. Okay, and I'm looking at engineering plans that are also part of your packet. And the zone table says the proposed parking is 23, the required parking is 21. So, complies.

And I'm not a lawyer, I'm an architect or a recovering architect. And I guess my question as it pertains to mixed use is what would you say is the minimum size as a planner, minimum size retail establishment say in the small storefronts near the train station in Summit, if you're familiar with those. Or if you're not, the depth of retail establishments on 42nd Street at Grand Central Station, if you're familiar with those.

They're not deep. They're small little pockets.

So my question to you as a planner and to your colleague in absentia is could there be Morris Avenue a fairly shallow retail set-aside commercial establishment that gave commercial frontage on Morris Avenue continued as was said in the commentary by the planner not verbally today but in writing continuity of pedestrian experience in regard to something other than a blank wall apartment building could there have been could there still be a if this application is deemed by this board to be complete revision to allow for a fairly shallow commercial establishment in the front of the New Morris Avenue side of the building insofar as it seems to me as an architect and as a driver that those first two spaces in front are almost unusable. Or at least if you try to get out without scratching your car.

Totally get what you're saying. There are two parking spaces right at the front of the site. I think you're talking about replacing those with some sort of little boutique.

Maybe not an L shop, but something. I will say. A coffee shop, something useful for pedestrians, if that's the intent of the ordinance.

All I'll say is inherent to the name. behind the application. Real estate is their business. If they thought it was viable here, I'm sure our applicant would have proposed that.

Fair enough. Fair question. But I'll go one step further. Obviously, the market determines what is viable in any situation. Um, along with zoning regulations, um, there's a great need for housing in summit. No doubt. Um, there are some vacant storefronts, not many, but there have been over the years in summit. Uh, and, um, it's probably fair to say that this applicant savvy in real estate is proposing housing here rather than an office building or some other commercial establishment because they deem that is where the market is.

Yes.

Wouldn't it be nice to live above a coffee shop? Subjective question, I'll withdraw it. Wouldn't it be interesting to propose as a mixed use project something that kept to the spirit of this being a business district?

I would offer, to the extent that there's a feeling that there's a departure, the degree of departure is not substantial. That would be such a small retail component. Again, our applicant would have proposed it, I'm sure, if it thought it was viable.

Just trying to plant the seed for how to call a residential building commercial.

Understood. We see a lot of these faux retail spaces put into a, quote, unquote, mixed-use buildings.

Well, you know, I wouldn't want it to be fake, and I wouldn't want it to be vacant, but I think when I walk to the train station, only three-quarters of a mile, there's absolutely no commercial activity between where I live near Memorial Field and the train station, which I used to do every single day. I would have loved to see some small shop of use, convenience shop, 7-Eleven, no, not, coffee shop. I hear you. And that's what makes the pedestrian experience more interesting, not just for commuters, but for anyone. Just a suggestion. I'm not a real estate expert, far from it, but suggestion for how to maybe create something useful.

Thank you for that.

I have a hopefully quick question, and I may have missed it in your direct testimony. If so, I apologize. Your interpretation is that the residential uses above the first floor is a prohibition on mixed use, correct?

No, my interpretation is that the ordinance reads, basically, you take your 17 categories. I can read them all, but they're the usual offices. Actually, auto sales is one of the 17 here. Not all of them may marry up with residential, actually, in terms of mixed use. Case in point, auto sales. One of the 17 categories actually reads residential uses above the ground floor or on the upper floors. That's it. That's all it says. We're not inferring what that means. We're just reading what it means, which is residential uses. That's the type of use located above the ground floor. So it's the type and it's the location.

So counsel, in your submission at page 9, you do indicate the fact that a mixed use structure is not specifically permitted in the B zone renders said use prohibited. OK. So I'm curious then what your opinion is on this residential uses above the first floor if mixed use structures are rendered prohibited Is it only for what you're essentially proposing tonight, residential with accessory uses on the first floor? What other uses would you consider to be permitted under that provision?

I will say that was not my testimony. That was not my testimony.

Yeah, the language that you're reading from that was not to suggest that mixed-use properties are not permitted, but rather, and probably not artfully worded, admittedly. But often you'll see in ordinances provisions that no multiple... I'm sorry, that you are not allowed multiple structures or uses on the same site, right? But your ordinances elsewhere specifically have that as the permitted use, suggesting that that is required. That's not what's in here. So the intent of that language was to suggest it's not a requirement. that it be a mixed use on the property, admittedly not artfully worded. But the purpose is if we were to infer the meaning of the above the first floor just as equally fair as one could read that to mean you have to have a business on the first floor, it could be easily also inferred that the drafters just didn't want residents walking out onto the street level and residential openings on the first floor. Not that there had to be a business on the first floor. And if you look at all the cases that discuss interpretation of ordinances, the courts will go to great lengths to apply the plain meaning and use the following test. If they meant to have a business on the first floor, why didn't they write that directly into the ordinance? And they didn't. Your ordinance doesn't say that. It says residential use is above the first floor period stop. If you then want to interpret the purpose section, which there's a great case which says the purpose section is much like a gravestone. It doesn't impart any wisdom other than what lies beneath. But if you were to use that purpose section as relevant here, I would still argue, as we did with the board planner, that there's great subjectivity into what is and what is not a business. And because your ordinance does not define business, and the hotel and multiple dwellings law in the state of New Jersey defines any residential property over four units as one, that that too passes that test. I can be full sympathetic with the idea that probably the people on this body and certainly professionals and maybe the elected officials currently did not envision that that could be interpreted that way. That could be certainly a reason to change it in the future if that's the intent. But a property owner, certainly one of 49 years, has the right to look at an ordinance, see what the plain language is, pay a planner, pay an engineer, pay an architect, pay an attorney to put together plans that are fully conforming with that plan language

and submit it to a hearing and that's our position and I will just note we do have in some section 35-9.2 the prohibited uses provision which does include the general indication that when a use is not specifically permitted in a zone district it is prohibited so it's Certainly, I think something to reconcile with there. Council, I think this probably is for you. Just responding to your last point there, you're, I guess, suggesting that as a matter of procedure we should not have the zoning officer make a determination on completeness but in all cases maybe even take for example an obvious one someone submits a business use in a residential only district are you suggesting that that should go all the way to the planning board just the you know applicants application fees escrow fees being submitted reviews conducted time lapse go to the planning board for a determination that we don't have jurisdiction, we should have applied to the zoning board months ago.

I think in that instance, the ordinance should direct that individual with the power to make that determination, as some places do. But the likelihood of what would occur there is, in that example, the zoning officer would get to be heard by the planning board.

You're suggesting that it should, if you want to go that route, be able to go all the way to that point. And I guess it's really just a question of where do you draw the line between what is an obvious interpretation versus maybe not so much.

You're making my point. That's exactly right, is that there is no legislative authority under the Municipal Land Use Law or in your ordinance to vest an individual zoning officer with the determination of making a checklist item that's not on the checklist a factor in determining completeness. From a practical point of view, I completely agree with you and wouldn't find ourselves in the position to go before a body that we know our use is not a permitted one and the board doesn't have jurisdiction. Here, we say it does. That's the problem.

I have a question. Say that someone is renting a ground floor apartment. Um, and there's a kitchen in there. Should we then under your interpretation, determine that to be a restaurant?

No, they're not selling the same logic. No, it's not because I'm not building a resident selling in your building space. Mr. Chairman, the owners of the property are not buying...

It's such a stupid argument. It's unbelievable.

Okay. All right. Well, if that's the way it goes, then I'm sure that will be... appropriately read in the transcript, that commentary, but it's very different. It is not the same argument as you made. Just because you have a kitchen, I'm not selling anything out of that kitchen. It is the same. How? It's the same. I don't know how you can't see the distinction. There is an extinction between an individual owning a home in their personal capacity, making food in their own kitchen for their family, and another that is a business that is renting in exchange for money Through a contract.

How do you know money is not being exchanged in that kitchen? I'm sorry? How do you know money is not being exchanged in that kitchen?

If it was not properly licensed as a business, it would be in illegal use.

Unless that was a home-based business.

And just to make clear, because you said a residential use on the first floor, we are not proposing any residential uses on the first floor.

but the accessory use takes on the use of the floors above it, right?

Correct. It is not a permitted use. The accessory use is accessory to the principal use, which applies. But it's still residential in nature. No. And Mr. McDonough can give us his thoughts on that, but an accessory use would not need to be one of the permitted uses under the ordinances. It is incidental to the...

I'm not suggesting that, but it is residential.

No, it is a parking garage.

But it's directly connected to the residential use.

That's why it's an accessory use, correct. Okay. But it does not, your ordinance also does not say accessory uses cannot be located on the first floor. This is an issue where I think we are asking you to separate what you think is appropriate use for the zone. with what the language of the zone says. Those two things do not have to be the same. You could find that you don't appreciate or like the use. That is appropriate, and that will be the subject of a hearing either before the planning board, this board, or the court. But you can separate your personal feelings for what the ordinance should provide with what the language does. and your task, your charge here is to read the language. Understand your obligation under the law is to read the plain language. And I would ask Mr. Ball to provide you with his interpretation of that standard as well. It is not to search outside of the four corners of that language for what you think it is or should be. It is what it says. And that may sit that may not sit well with you in terms of what the outcome would be, but your charge and the oath you took was to make that determination based on how you read the language.

I just have a couple questions just to re-clarify things. So we have a commercial business that's been there for five decades or so. It's in a commercial lot. It's in a business district, right? And the argument you're making is that it's now a business, a real estate business effectively. I believe that's correct. But it's effectively an apartment building, right? Nobody lives there. What's that?

Nobody lives there. if it were approved? That the building that's there currently would be demolished and new and built.

Right, the new building, right? And you're saying, so that's a business. There's, I guess, going along Mr. Snikes' line of thought is invoices aren't, Payments aren't going to that building. They're not coming from that building. They're going somewhere else, I would imagine.

That's not necessarily true. First of all, they're probably handled electronically like most businesses. I think you get the point, right? No, I don't.

There's not a management office. There's not a leasing office. There's not a maintenance office. All the fundamentals of a real estate business are not located on the site. I love the semantic argument.

The services that are being provided are the site. That is the goods. The services are upstairs.

no the services are four walls services are a place to put your head on the pillow i understand what you're doing here but respectfully sir i'm not i'm asking the board hold on i have a very very specific question i apologize to jump in here yeah what is the ask is the ask for you to be able to submit a planning board application with completeness that is the basic act correct

But to do that, we'd have to conclude that there's no use variance needed.

Well, wait a minute. If we're saying that we have to make the determination there's no use variance, or we're saying we could potentially agree with his interpretation that they can submit to the planning board, and then the planning board gets to do what they want to do in their jurisdiction, and potentially rehear this case if the planning board makes that interpretation.

So if your your task is twofold, right? First, figure out whether you agree with this interpretation that no D variance is required. If you find that no D variance is required, it would be in front of the planning board because they would hear any bulk variances associated with the site plan approval there. And then their subsequent ask is deemed that their prior application is complete. So it would proceed to the planning board and be scheduled for hearing.

And the de-variance would be a use variance? Yes.

So I think this is where the technical question... are we being asked to render a actual decision on whether there's a d variance or whether or not he can proceed with a complete application to plan i think that's two very separate things they're two separate requests but they that is you know you have two steps that you need to conclude in this hearing

Now, if you were to conclude that there is a de-variance required, in my opinion, at that point, it would make the completeness determination moot. They would need to apply to our board for a de-variance.

So when I read his application, his submission, it was confusing to me on whether or not it was just any determination on whether it was complete or not. And then the argument about whether or not whoever rendered the incomplete decision had the authority to do so in the first place. Yes, so it is. Are we asking now to include the de-variance?

No, it was included in the initial application. They asked for the completeness determination as well as an interpretation of our code.

I would agree with Mr. Bull that the order of events logically flow that the first decision you'd need to make is whether a de-variance is required and that will inform your second decision.

Any other questions for this witness? Seeing none. All right. Questions, questions only from the audience for this witness. Seeing none. All right. I believe we'd like to hear from our zoning officer. Come on up, Roger.

All right, if you could raise your right hand. Do you swear from the testimony you're about to give in this matters, the truth, the whole truth, nothing but the truth? I do. And please state your name and spell your last name.

My name is Roger Dornbierer. And the last name is spelled D as in David, O-R-N as in Nancy, B as in boy, I-E-R-E-R.

Thank you. Thank you, Roger. And just to confirm for the record, you are the zoning officer for the city of Summit.

and the one who made this completeness determination in question correct yes i am the i serve as the zoning officer the determination of completeness is done by our planner not by myself i will go through and i make the interpretation of what is being presented to me whether i feel that it complies with the ordinance or not If it has to, when it comes time for a submission to the boards, the application is the completeness is determined by the planner.

All right. I was just going to suggest, can you walk us through the application, the determination, and what occurred in this case?

Okay. So Mr. Berlandek and I had a phone conversation, maybe two, at the end of last year, November and December, in that area, and discussed this project. And he gave me the description of... residential on the upper floors and then parking on the first level. And it was my opinion that that would not comply with the definition of the zone. I felt that the the plain language of the ordinance is found within the purpose and that the B zone is intended for the conduct of general business to which the public requires direct and frequent access as prime customers, clients, or patients. And it was my interpretation that the use of parking on the first floor does not support that. We are always with with a zone and its objectives Excuse me Looking forward Looking at the image of what we want to comply with that zone in this case we're looking for businesses and By having that, you're creating, in essence, a pedestrian passageway. So you want, by having businesses in the zone, especially those that are listed here, such as retail sales, offices, restaurants, theaters, personal services, and all the others, that this is the objective. on how to develop the entire zone. There are residential units, single family residential units within the zone, but if for some reason they are removed, they cannot be replaced without a variance. So it was my determination that it would not be in compliance with the zone, and that was my determination.

All right, thank you. Board experts, do you have questions? The zoning office?

Just regarding your testimony at the beginning, you indicated that our office, Burgess Associates, does the completeness review, but then they also consult with you as to whether or not the use is permitted. Yes, absolutely. Yes, that is correct. Thank you.

Thank you. Board, what questions do you have for this witness? Mr. Carrin.

You had mentioned... client, customer, or patient?

Yes.

And I'm not sure if this is the right question for you, but in your experience, is a tenant any of those, client, customer, or patient?

I wouldn't categorize a resident on that site falling under that as a customer, client, or patient, no.

Any other questions? Please, go ahead.

It's nice to meet you in person.

We did have very pleasant conversations and I appreciate the time you spent with us.

Your testimony that you just gave now and your interpretation that you made about this site was based on the language in the purpose section. Is that language mirrored in the permitted use section? What do you mean? And under permitted uses does it say for residential uses that there must be a business on the first floor?

It's not specific but again the the purpose is an intention of the of the zone and I rely on that.

Okay. Regarding the parking on the first floor that was relevant to your determination? That use was relevant to my determination. Is your interpretation that the parking is a principal use or an accessory use? As proposed, it would be an accessory use. Does your ordinance suggest that accessory uses are not permitted on the first floor?

It may not be suggested for that specific.

Does your ordinance define? I asked the planner. He was not aware of it. You're most probably intimately familiar with it. Does your ordinance define business?

You know, I'm not aware of that.

I would have to look that up. Are you aware if it defines what a client, patient, or customer is?

I think that is common language, simple language, that we would know what that is.

Okay, and you have made a determination that that is relevant for all of the permitted uses, that not only does it have to fall under one of the permitted uses, but it has to meet the category of the purpose, which is that there be... customers, clients, or patients?

Yes, I think that is applicable for any business.

Okay, so if we were to go through the uses that are permitted here, is it possible to have an office that is not frequented by customers or clients or patients?

Yes, it is. You could have a seasonal business there, such as an account.

Okay, but even if it's... an office that I take out to write because I write novels and I'm going to write in an office. It's an office, but I'm not accepting customers or clients. Would you deny that zoning permit?

I would have to see the application on its merits, not just in the general question that you're presenting. I would want to see what the total list of services are provided. I get a lot of requests for interpretations for the zones, and I need to see the complete list of what services are being provided.

What about instructional schools? Let's see. If tenants are not clients, how are students?

Well, you have institutional uses as permitted. I'm looking at use N. Instructional schools. Yes. What about it?

what customers or clients would they have to pass your test to also meet the purpose?

Well, if it's an institutional use, it could be as a patient, if it's medical-based.

I'm looking at the instructional school, not the institutional use one. They're listed as separate uses.

The instruction.

So you would have students. OK. But is a student a patient, a client, or a customer?

And if it's a business, yes. But a tenant is not, if it's a business? I don't believe it's a business as a tenant because as Mr. Ball said earlier, that if that were the case, anyone renting property in a single family zone would qualify as a business and therefore by definition would not be permitted in a residential zone.

Even if the state distinguishes four units or less and four units over in terms of what the state considers a business? That would be my interpretation. MR. Okay. So, Mr. Chairman, I think this demonstrates the issue with the subjectivity in making these determinations that you can get really far along in this line of thinking when you don't have an ordinance that defines it. And what we are asking this Board to do is use your common sense in reading the plain language. What does the plain language read? And it is our ask that even if you determine that you don't like it, you don't like the use, I get that, I appreciate that. But read the language. Our arguments tonight have centered around whether or not this is a business. And while, yes, that is a factor when your professionals have made the determination based on the language, it is our primary argument that you don't even look at that language. You don't even look at the purpose. Legally, it serves no purpose when the language under the permitted use section is plain as it is here. So we respect, we thank you for your time. We understand there's disagreements, but we ask that you look at it hard and make a determination on what you read that language to be.

Okay. May I just add something? Yes, please. It is the role of the zoning officer to interpret ordinances. There's no such thing as a perfect ordinance. There's always an ordinance as open to interpretation. and so that is the role of the zoning officer based on their experience based on their training they make that determination which can then be challenged by an applicant to stand before the board

And I would just respond, and it's also a response to my conversation with Mr. Bohl earlier about our alternate argument about whether that determination can be made. There are many jurisdictions, as I'm sure many of you are familiar, that when you submit an application, part of that application is a zoning permit that, if denied, will be part of the checklist. Your ordinance does not require that a zoning permit be submitted to the zoning officer in connection with that application to make that determination. It provides a checklist. We check off every box. And I agree wholeheartedly that it is your role, but we did not submit a zoning permit to you for determination. We submitted a site plan application, and that's why we're before the body today.

I do have a personal observation. I do have a concern on the concept here of the interpretation. When you have a zoning board application, it does not set precedent. It is unto itself. But an interpretation, at least my interpretation of that interpretation, would be that that could carry over to other instances and it can be referenced as a source so that you have an exact scenario such as the one we're looking at in the business zone with this wording. It's duplicate in the NV neighborhood business zone and it's also in the CRBD which is central retail business district. Okay, the same thing. And so if that interpretation were to be referenced for an application to say have something on Union Place where you could theoretically, theoretically, be passing a Dunkin Donuts, a shoe repair shop, and then a garage. And I just don't think that that's something that the citizens of this town would be in favor of. It's just an observation. That's all.

Thank you for your time. Hold on. We'll leave you up there for one more second just to check and make sure that. Are there any questions from the interested public?

Okay.

Seeing none, you have one more, you have more for, for Roger or you want a summation or no, no, no.

I want to ask the witness to respond to some of the comments here.

Okay. I don't, I don't think he needs to stand for that. You're good. I'm done. Yeah. Okay.

Thank you for your time. You heard the testimony that was given by the city zoning officer.

Yes, I have.

Okay. What are your reactions?

Okay. First of all, your zoning officer does a great job. Towards the board member's question about what are you being asked to do here, in my simple mind, notwithstanding what you just heard, this application and what you're being asked to interpret are six words, which are the permitted use in the B zone, residential uses, and does the application align with that? Residential uses above the ground floor. Six words, I don't see a single word in that permitted use that this application does not align with. I think that's the simple question before the board. If there is some concern about a precedent and this opening up a floodgate for all of a sudden in your other zones where you have similar language, That's fixable. That's a first read in front of the council next month. And you copycat all of the old zone language, which specifically says residential uses above the ground floor with a permitted commercial use below it. You do that and you make that change right away. I think this applicant at the time of application is entitled to the language that's in front of it when it makes the application. And it's those six words. Again, if you're concerned about unintended consequences, I think that's the lane that you have to stay in, in my simple mind. That's all I have.

Mr. Chairman, I'm not going to belabor with the conclusion because I believe throughout the presentation I've been summing up our position throughout. Just respectfully request that you do look at those six words and make the determination. Thank you.

Okay. Thank you. Any public comment at this time? Seeing none.

Okay. Before we get into deliberation, I do want to weigh in, as counsel was suggesting. I do agree with a good portion of how he asserted that it's your responsibility to interpret the language of the code. It's the board's obligation here to determine the intent here of the permitted uses found in section 35, 13.11. And indeed, in doing so, your first step is to look at the plain language. And if that plain language is clear and gives you the interpretation you need, then your task is done. You don't consider alternate sources, outside facts, or other you don't stray beyond the language of the code I disagree to the extent that they're asserting that we are only to look at the six words residential uses above the first floor in subsection e because the case law does make relatively clear that you're supposed to give the words their ordinary meaning and significance and read them in the context with the related provisions so as to give sense to the code as a whole. So to that extent, I would assert that the purpose provision in Section A, indeed the entirety of Section 35-13.11, would factor into your analysis on what does this code mean, what does the permitted use here mean, and how do those sections relate to each other. So you should keep in mind as well that you're supposed to give effect to each word in the code and not, you should not interpret this in a manner that any word does not give meaning to the uses and also your interpretation should not render any other sections of the code meaningless. If they're ambiguous words, they should be determined by the context of the words surrounding it. And so ultimately when you're looking at this analysis, again, if the meaning is clear, then that plain reading is where you need to land on your interpretation. If you find that there are multiple plausible interpretations, that is when some of the facts of maybe extrinsic evidence, outside sources can come in. I don't think we've heard too much that would really factor in there, but you typically don't look beyond the language of the code itself. So ultimately, I do agree that, and I think I suggested, the order that I would recommend that you look at this situation is first, let's figure out the interpretation. Where do you land on whether this use would be permitted or prohibited, and thus, whether a devariance is required. If you find that no devariance is required, that the use is permitted as proposed, then it would be in front of the planning board. We would not have jurisdiction to hear their ultimate application. From then, you would make the second determination of whether this application was deemed complete and send it back with that such determination. If, on the other hand, you determine that a use variance is required under the language of the code, as I mentioned before, I think that essentially makes the incompleteness determination moot. The planning board at that point clearly would not have jurisdiction and they would need to submit a new application to this board for a use variance. Unless there's any other questions. on the process or what you should be interpreting here, I would leave it to you to deliberate and make that determination.

Well, I'm glad our first appeal in a while is an easy one.

Who wants to talk? Please. I'll take a stab. Jump right in. I was talking to them earlier. I do recall one appeal many, many years ago. I don't remember the substance of it, but it is very, very rare. And I started out thinking this was a simple decision. Then I looked at some more, oh, no, this is complicated. And I'm back to thinking it's relatively simple. The purpose of the B business zone is to provide for the conduct of business with the public, with the proviso that also permits residential use above the first floor. If there is some ambiguity in the ordinance language, as Mr. Ball has noted, I think we need to look at the surrounding broader context of the ordinance. and conclude that the ordinance is designed to have commercial use at least on the first floor. And so I don't think that the application, I don't think the applicant has made a convincing argument that a use variance is not needed, so I conclude that use variance is needed. And I'd be happy to hear that application. You know, I'm sure it's a wonderful project, but I do have to conclude that use variance is needed, would be needed.

Thank you, Tom. Mr. Karn. Just building on... the commentary there. I think the applicant had asked us that we should be using our common sense. And I feel like we're being asked to ignore our common sense as we look at this appeal. So I think it is a business district. While I understand the argument being made, it's the absence of specificity in the language, but without taking into account

that it is a business district that is a commercial zone so again i'm struggling on this one okay i think tom really started off as well in that it took me a bit to understand truly what was being asked here and i'm seeing this as saying read the text but only this specific thing and that's where taking one thing by itself is not when a greater this the dro is massive there's lots of contact context as well as content and this one specific line here is trying to be manipulated to approve something to potentially short-circuit the process. And context makes an incredible difference here. If this was not a business district, I get it. But the very first thing is, this is for business. And I do not agree with this argument that accessory parking or any accessory use, because it's got trash or the lobby or anything like that, is considered an extension of the business. I mean, candidly, and I'm just going to say it out loud, is if they had come in here with a 500-square-foot leasing office or a workspace that they can rent out for co-working, it's a very different argument. But they're trying to get that one line to override everything, and I can't assume it would buy them.

Mr. Bell.

A lot more complicated than I thought it would be. In terms of the common sense, if the ground floor hypothetically had been presented as a business, not a coffee shop but a parking garage, would that have met the criteria of the zoning resolution? But the fact that the number of parking spaces aligns with the zoning requirement, plus or minus, It means that it's not a commercial Edison Park Fast commercial parking garage, which would constitute a business, maybe not a very desirable one from Union Place or anywhere else, but still one that could be construed to be a ground floor commercial enterprise. could it have been presented that way that you know upstairs tenants I don't even know from the application whether people are renting or owning and maybe it doesn't matter but you know sometimes people own a parking space as part of their leaseholder or arrangement it wasn't presented that way nor do I imagine that it's intended that way otherwise it would be going on this veering off I like the idea of housing, and I think that what we've learned since the pandemic is that mixed use isn't just a definition in the zoning ordinance. It's a fact of life. I work at home quite a lot. Other people fall asleep in their office, maybe not as much. I think we're seeing a blurring of those lines, and I think the zoning ordinances will catch up.

you know, at some point.

They haven't yet, and here we are. I think if a zoning variance is required for the use being proposed as it is without any manipulation, semantic or architectural, it could be reviewed here and deemed appropriate. I mean, where do you put required parking? You know, fewer and fewer people, in Summit especially, where there's such great public transportation, have two cars or even a single car. Literally this week I gave a car away to my son because he needed it more than I did. I still have one, but I don't have two. All that to say, maybe A resubmittal with a zoning variance request where the ground floor has a combination of uses would be welcome and maybe set an example for how to solve the ticklish question of people's reliance occasionally on cars. One last example, I travel a little and I look at parking garages on occasion, particularly in regard to where the electric vehicle charging stations are. In other countries, sometimes the ground floor of larger, much larger apartment buildings rent out spaces, particularly if they have charging stations. And they make a profit on that because people don't want to invest, especially for quick speed charging. There are different models of that type of mixed use that reflects that we're not over the addiction to the motor vehicle quite yet. I literally went and sat in not owning one electric vehicle this morning with the intent of purchasing one and I thought it's going to be really complicated to you know how to charge it or maybe it won't be but what's the percent of car ownership, where was that in the presentation? Is that space going to be vacant most of the time, used for storage units, as sometimes happens in apartment buildings on the ground floor or basement? So I don't know. I think that everything I've heard, again, not being a lawyer, I think there is enough to justify saying that a use variance is required. But I think the project on its merits is very, very exciting. I've never been in the Weikert building. I won't miss it. In terms of animating a pedestrian experience, it's nil. This could be, on its merits, a very interesting proposal to see built. If we're looking at the common sense interpretation, it's not quite there. Very interesting semantic argument, but not adequate, in my opinion.

Mr. Millay. I believe that the role of zoning board is for specific area, for specific property. While here, this application is really, has a long-term impact on the whole section of the Morris Avenue in this area. I don't think we're supposed to look at it from the zoning at this stage. I think I do support the zoning officer's opinion that it should be first either denied or approved by the planning board. It is how the planning board interprets this whole section and will define what kind of interpretation of business as we can see. For me, I'm not on the planning board, but I can see a business where growth of restaurants stores and not only car dealerships as we see here some more stores that will be that will have a very good impact on this section of summit and I think the resident and the neighbors will be very very happy to see more livelihood in this area rather than garages. So I think this is a matter for the planning board, not for us. Thank you.

Thank you, Mr. Malay.

Can I ask a question of Mr. Paul on that? Procedurally, I agree with Mr. Malay on this. How is it that we, so we're being asked to make a zoning determination, which I get, in essence. Why wouldn't this just go to the planning board for the use itself?

Because if the use, if a use variance is required, and that was the determination of the zoning officer, then if the planning board does not have jurisdiction, we are the board with jurisdiction over D variances, which include use variances. So it would necessarily come before us.

So there's no way for the planning board to take jurisdiction of the overall initial application, so to speak, to then punt to us?

I mean, in theory, if it got all the way through, as Council is suggesting, if it was applied for and, say, a devariance was missed or it did make it all the way through and they determined that a devariance is necessary, they would need to then refer it to our board for determination on a devariance.

But it's possible that the planning board were to review this and say, no, a devariance is not

No, because we have the interpretation has been made and appeals of the interpretations of zoning office necessarily comes from us.

So zoning office hadn't made the determinations potential that it could have gotten there for planning board to review?

If it was determined that they didn't need a variance and the the planning board application did go all the way through. That's the only way we can get that way, yes.

Oh, no worries. Thank you, Jay. So I wanted to congratulate the applicant for putting this team together. I have to say, your argument was very novel and well thought out, despite my frustration before. So I really appreciated what you have to say, and I understand your side of the argument, but I think my colleagues were more eloquent in the defense of the process that we think is right in terms of whether or not this needs a de-variance and I certainly believe it does so with that Andy do we should we how do we yeah for completeness sake I would recommend making a motion first on the interpretation okay one way or another on whether you affirm or

reject the determination that a variance is required.

So should we vote to affirm that a variance is required and that's a yay or a nay? Yes. Okay. That's a possibility. All right. Okay. And this requires how many votes? Just the majority. Majority.

Okay. And I believe we're at six members, so four votes are required.

Four, okay. So can I get a motion to approve, affirm the de-variance determination? So moved. Can I get a second? Second. Okay. Ms. Sands, the roll, please.

I just want to confirm, is Ms. Chief over-accused from this?

Yes, she is.

Mr. Yuko?

Yes.

Mr. Malay? Yes. Mr. Curran? Yes. Mr. Feskens? Yes. Mr. Bell? Yes. Chairman Lankins?

Yes. Okay, and now for completeness sake, as I mentioned before, I think this is more or less moot at this point, but because you have just determined that a de-variance is required, a zoning application would be required, and therefore I would recommend you making a motion to officially determine that the application was incomplete. or to affirm the determination that the application was incomplete.

Can I get a motion to affirm that the termination of the application's incompleteness?

So moved. That's a Thunquister. Second.

Mr. Yuko?

Yes.

Mr. Mullag? Yes. Mr. Curran? Yes. Mr. Feskens? Yes. Mr. Bell? Yes. Chairman Likens?

Yes. 15 Sherman Avenue.

All right. While they're setting up, I can at least get you sworn in. If you could please raise your right hand. Do you swear from the testimony you're about to give in this matter? Is the truth the whole truth, nothing but the truth? I do. And please state your name, spell your last name.

It's Swarupa Sanya. Last name is S-A-N-Y-A-L.

Thank you. And can you just tell the board a little bit about your application?

Yes. I am looking to install a pool in my backyard, and it's a corner lot, so engineering team will take you through. One is because the side yard is considered the front yard because it's corner lot. There's a recessing issue that needs to be looked at. The second is I have I inherited 38% coverage when I Actually, I realized when I submitted my application for the zoning board, apparently I'm only allowed to have 34%, but I bought it for 38%. So that's another thing that we're going to discuss a little bit more.

Can I ask just one quick question? And there's no prior applications for the slot to give the existing 38%?

I do not know myself.

Thank you.

Shall I pass it to them or do you have questions?

I guess just to follow up on that, do you happen to know, have you seen in any of your title work or in your research in submitting this, whether the former owners ever obtained a variance for that 38% lot coverage?

No, apparently they didn't. So based on what I got back from you, they didn't. I bought the house like that. I've made no changes to the backyard. I've been there for nine years. my first discovery that it did not meet the variances when I submitted this application, unfortunately.

Just to clarify, Mr. Chairman, I think you did in your direct testimony that the permitted level of coverage is 35%, 34% you indicated. It's actually 35%. Just correct. Thank you.

All right. Any questions from our board experts for this witness, or do you want to wait for their expert? Board, any questions? No? All right. Public? I'm seeing none. Just one other thing.

I have spoken to all my neighbors about this, and there have been no concerns raised.

Thank you.

Okay.

So if you could raise your right hand. Do you swear from the testimony you're about to give them this matters, the truth, the whole truth, nothing but the truth? I do. And please state your name, spell your last name.

My name is Brian Woods, last name W-O-O-D-S.

Thank you. And can you briefly describe your background and experience for the board?

Sure. I'm a licensed civil engineer in the state of New Jersey in good standing. I'm a graduate of Syracuse University with a bachelor's in economics. civil engineering. I've been working in land use engineering for about 10 years, and I've been licensed for about four, and this is my first time for a board. Any questions from the board, or would you like to accept his credentials?

We would. Welcome. Please proceed.

Take it away. Okay. So this thing site is an existing two storey single single family dwelling with a driveway along the door that we got northerly lot line and a paper patio area in the rear yard. The existing garage is situated facing the rear yard. The lot is a quarter lot. It runs on Sherman Avenue, which is a typical street, has a 50 foot wide away and sidewalks and houses up and down the street. The south side of the house fronts on McGregor Road, which is a narrow street. It's only 25 feet wide right away. It serves as a cut-through to Woodland Avenue from Sherman. There are no homes that front on McGregor. It doesn't have any sidewalks. Existing development in the area is predominantly single-family residential, and additionally to the southeast is the sports field of Lincoln Hefford School. The lot area is conforming. It's 10,978 square feet, where 10,000 is required. The lot width is conforming at 75 for eight feet. The existing building coverage is 16.5%, which is conforming where 18% is permitted. The existing house does not conform to the front yard setback to McGregor Road, where it's 23.1 feet, where 30 feet would be required. The other, the side and the rear setbacks are conforming. The existing house is set back 35.9 feet from Sherman Avenue where only 30 is required. This combined with the rear facing garage contributes to a larger than otherwise necessary driveway and impervious coverage to the lot. This contributes to the hardship on the property presenting a conforming application. The total combined area of the existing asphalt driveway and the paver area is about 2,067 square feet, which is roughly 18.8% of the total lot area. In total, the existing non-conformity with respect to impervious coverage is 38.1%, whereas 35% is permitted. The lot is generally level, slopes to the north side of the property. There are no steep slopes on the property. Additionally, there are some existing AC units that are located on the McGregor side of the house. They are well screened with large shrubs, just potting them. And there's a six foot high board on board fence around most of the property, at least three sides of it. A small gap that's going to be filled in later and then the front has just a metal fence. As to what's proposed, the applicant proposes to remove a portion of the existing patio in the rear yard, to construct a modest-sized 14 by 28-inch round swimming pool, and then reconstruct the remainder of the patio. This is in contrast to a more common pool size that's quite larger, like 18 by 36 or 20 by 20 that some homeowners like to put in. Part of the patio existingly provides access to the garage doors. As I mentioned, they face the rear of the property. This pavement access is to be removed, and the garage is mostly used as storage. So parking will be confined to the driveway. The area in front is going to be just grass apart from a walkway between the driveway and the pool. The pool is proposed to be located in line with the existing dwelling on the McGregor Roadside, which is, again, 23 feet from that and about 15 feet from the remainder of the driveway. The proposed location of the pool provides a line of sight from the existing house window towards the pool and it also does not obstruct where the garage doors are. The pool equipment is proposed to be located adjacent to the existing air conditioning equipment which is in the front yard facing McGregor Road. That's for ease of installation as most of the utilities are located over there. This location is also far from the other neighboring properties as it is only close to the road and not the neighbors. The existing fence will be utilized for the pool enclosure and it meets the building code requirements. The proposed pool is considered to be part of the principal structure for the purpose of determining setbacks as it's attached by way of the patio to the house. The proposed grading work on the project will be minimal, as will be the area of disturbance. The topography will be modified to suit the pool and provide positive drainage around the pool. There is a proposed no increase in impervious coverage associated with the project, thus no impact to stormwater runoff. And further, even though the pool itself is classified as impervious, it has a bit of freeboard about six inches from the normal water surface to where the coping is, so water that falls on it will effectively stay in the pool as opposed to hitting the patio and sheet blowing off. So in summary, between the corner lot, the site being a corner lot, the existing setbacks, existing configuration of the house, these all contribute to the hardships with respect to presenting a compliant application to constructive hold. And thus, we are asking for variances.

Thank you so much. Board of professionals, what questions do you have for this witness?

I think I'm going to take your thunder, so why don't you go first?

OK. The one question I have, and I'm trying to look it up right now, is that you had provided in your direct testimony that you're going to no longer be able to use the garage.

You would no longer be able to regularly drive into the garage. It could still be used. Let me say, it would be primarily used as storage, but the garage doors are not to be removed.

Right, but you will no longer have a functioning garage on the property. Correct. Okay. That's one thing I have to research, Mr. Chairman, but I'll get back to you, is whether or not we can have relief from that requirement. It wasn't apparent to us when we were reviewing the application that that would be in effect as a result. So I just wanted to clarify that. Can I say something? Sure.

So it'll still have access. It'll just be on grass. So it's not like we're going to shut down the garage. It's just that it's not going to be .

Right. But you need to have, I have to double check this in the R10 zones, whether or not you need to have actually a garage space, parking space available to you. And that may be subsumed in the application. I'm not sure what your notice said, whether or not it included any and all variances. That's the only other thing I would check. And you may want to look at that to see if that notice says something to that effect. But let me finally do.

But we'll double check. You know, that's the case.

Just trying to clarify. No, I'm sorry. The AC units and utilities, they Are they currently screened in any manner on that side of the house?

Yes, there are two large shrubs well screening the existing AC units and there's also a six-foot fence there.

Okay, a six-foot fence. What kind of new fence is being added around the other sides of the pool? Is it going to be a code-compliant requirement?

It will be code-compliant. Basically, the three sides are all board-on-board fence, so there's not much to see through that. And then the front is...

It's metal. Both sides have a metal. I mean, there's a gate to the driveway and there's a metal fence to the right of the house.

But you'll make any modifications in accordance with the code? Right.

I actually got the entire fencing changed to be code compliant. Thank you very much. There's just three panels that have been left to do the whole installation.

Gotcha. Okay. That covers my questions with the exception of let me get back to the board about that issue. Excuse me.

May I ask a question about that, by the way? Yes. Because if it is a required variance, then would we be able to then increase the, whatever, it's called vulnerable service or whatever? This is just more verification.

Are you saying that you'd like to add to the?

So I so I just want to offer clarification on that because if you increase your impervious surface beyond 300 square feet

then you're required to do stormwater mitigation onsite. So I just want you to be aware of that, that not only would you need a variance for that, but you'd also have to do some stormwater mitigation. Okay. Just so you can make choices. There is, you know, the, the existing lot coverage as testified will be the same as proposed lot coverage. So there's no change in impervious coverage. As you noted, they are exceeding, currently exceeding their impervious coverage on the site. It appears to me that by their calculations, would you agree that the existing impervious coverage is over 300 square feet beyond what is allowed?

I'd have to do the math real quick.

Okay. It looks to me like, with a quick calculation, the existing impervious coverage on the site is 4,178 square feet, and the permitted is 3,842 square feet, which is a difference of 332 square feet. 336 square feet with that said though By the way, I agree with those numbers. You do agree. Yes. Okay. Thank you But as the applicant was or the applicants professional was discussing the pool in the backyard does have some water storage in it It's up to the board whether they feel that That is you know an adequate mitigation, they're not required to mitigate, but you can look at it and say that they're taking away some of their patio, which is impervious. And they're putting in a pool, which has again, six inches of storage in it, which your ordinance only requires three inch, um, storage of water in a, in a rainstorm. So, um, there, there is some benefit to that as well. Um, And I think, I think that's all I had. And it was kind of dependent on what you decided about a garage and what the, um, what was interpreted in the ordinance.

Yeah.

That section's always eluded me. I don't know why I'm trying to find it, but if I can ask any questions, I guess in the meantime,

Board, what questions do you have for this witness?

I have a question. The gate, OK, so we're checking to see about the garage. So if the application as it is presented is we're able to go forward with it. You mentioned that there's going to be grass in front of the garage and the cars will remain in the driveway. The gate on the driveway side is at the front, even with the front of the house right now, correct? So if you were to use the driveway for the parking, all the cars would remain in the front yard, the front of the driveway. You're not going to go through the gate and go into the backyard.

They do go through the gate into the backyard, and the driveway goes all the way to the grass at this point in time.

I'm saying, what's your proposal in terms of parking in your driveway? Are you saying that you would go through the gate to park? Okay, so even though that is a safety gate, it's going to be used for the cars to be going through. So it will be open and closed. You're not going to keep the cars in the front? Okay. So I was just wondering why would you, you said you just put that gate there. Why would you put it at that part of the house? Why wouldn't you put it closer to the rear of the house?

Just because my cars are then behind the gauge as well.

So you would keep the cars behind the gate, even though there's no driveway and you're proposing it grass and then a pool, you would keep the cars next to the grass and the pool. That's just, I'm so the,

Driveway will remain. The patio will go away. The cars will remain on the driveway, and the gate is behind the cars. Yeah.

Yeah, yeah. I'm just wondering if that's it.

The cars will remain on the driveway. They just won't go into the garage.

Okay. Mr. Chairman, if I can interject. Yes, please. I do find this section, and it's under 35-14.2, single and two-family dwellings. And it goes on to Section F, where it defines that required garages dwellings, and I'm skipping ahead, dwellings in the R10, R15, R25, and R43 requires a minimum of two enclosed garage spaces. So how many, what is it, what's your current condition? Is it a one car or two car barrage?

It's a two car barrage.

It's a two car barrage. So both two car barrages will be removed. So you would need a variance from this section.

And the notice does contain the general request for any other variances that are deemed necessary. So if the board was inclined to consider that request tonight, we do have the jurisdiction to hear it. Mr. Bell.

My understanding from the testimony is that the garage doors are remaining.

They are, correct.

What constitutes a garage then? Garage doors allowing potential for vehicular access, it seems to me. My question has to do with... how a car could potentially get into the garage, looking at the proposed plan and the existing plan. The driveway exists, it's labeled asphalt. The area to the left of the pool on the new plan you're saying is grass and it's not indicated as asphalt it's not indicated as pavers but there's something in between the bell guard produces along with other manufacturers called turf stone which perhaps you've seen which allows grass to grow between pavers it's very good for vehicles it's used for auxiliary parking football stadia and elsewhere yes If eventually you had a car that you wanted to put into the garage, it could drive on grass, I guess, but cause some damage. But it could also be on turf stone pavers that might not yet be in the ordinance but will be, I hope, before I die. you know to allow for permeability into the ground of water without cisterns and tanks and whatnot because it's grass and what's underneath it if it's installed correctly allows for water to drain down even though it's not recognized as a solution in the ordinances yet i heartily suggest you look at that and don't say that the garage won't be a garage it is a garage i think it'll be a great pool house frankly maybe they're not mutually exclusive but um The garage is a garage. You don't need a variance in my opinion.

And, you know, that's something we actually discussed today, which is can we put pebbles or can we put...

But something that would be also an amenity aesthetically, functionally. Right. It would look like lawn. Right. I say that from personal experience. That's what I have going up to my garage. I use my garage for storage.

Yeah. But it still is a garage.

But it looks like it's, it almost looks like it's long.

But that's good. That's good to know.

Ed, going back to the doctor's question, It really doesn't matter because it's pre-existing and so what we're really trying to do right now is say whether or not we're going to have access to it. to have access to it.

Will it actually, we're almost getting into an interpretation.

I'm getting there, but just because of turning radiuses and stuff like that, we've had some other arguments.

I can see that here. Yeah, especially since it's a U-turn, essentially.

Without fall protection on the car. That's another good point.

I can barely make it into my garage now.

I'm assuming you drive on papers everywhere.

I actually just stay on the I don't use the garage just because the u-turn is because we haven't had enough fun with definitions tonight already so garage let's see garage parking which doesn't quite apply here but a detached accessory building or a portion of the main building used primarily for the storage of a passenger vehicle or vehicles. So if the testimony is that there will be no storage of vehicles in that garage, I think it probably doesn't meet the definition. If the proposal is to maintain access where it can be used for the storage of vehicles, it probably would meet that definition.

but there's nothing in there that says about the access, so to speak.

Not that I'm seeing, no.

So if the applicant testifies that they're going to continue using it as a garage, the store vehicles, then they don't need a variance. It seems they could make that argument. Even if there's grass in front.

So would you like to update your testimony?

I so attest that I will continue to use the garage. I try not to drop my car in the pool.

Does that...

it's optional yes I my only caution my only hesitation is if it is aware of me is there any RSIS standard or something else out there that addresses

access to the garage not that i know of under our size specifically really just addresses the number of counts so i have a question my garage is detached in the rear of my property

so I can come in and say I'm gonna rip up my whole asphalt for my my you know expand my lawn and just have what would look like a you know a shed whatever with garage doors on it if what if you're the way you're defined if the way what we're saying is

That would maintain access. That would maintain access. Yeah, this is grass.

This is grass. Grass is something different. And you're not putting rocks next to a pool unless you want to scrub your filter. So that's not going to work.

But grass doesn't prohibit access. Correct. You can drive on grass. Don't plant a tree.

Well, you could argue, or was I just reading in the ordinance? Hold on. That impervious surface could be interpreted. Hold on. and the definition of impervious surface is a surface composed of any material that is highly resistant to natural infiltration of water into the soil that can be used to talk about roofs building streets parking areas any concrete asphalt or highly compacted gravel or soil surface so if somebody's going to be driving on top of it regularly it becomes compacted and therefore it is considered impervious

the recommendation that was offered earlier if i can offer mr chairman please um of putting in some sort of permeable aspect of the pavement that is something that is readily done for fire access roads they have grass creek systems not necessarily recommending the concrete ones but there's a plastic web system that's available you put gravel underneath it you then can put soil on top of it and then drive on top and it doesn't add to that compaction factor, it allows permeability. You would technically need a variance because as we just read the definition, that would be the requirement, but that it would still allow some of the spirit of infiltration as a result, which is what board member just mentioned before.

Okay.

So that is an option. If you're willing to consider that, I'd ask the engineer to measure that area roughly in square footage, if you were to keep those lines lined up, if that's your option. I'm just putting this out for the applicant to consider. That's all.

That would not count as or that would not count as impervious.

It would count as impervious. But could the board use that as a rationale as to why? Like seepage pits. You use seepage pits for the purposes of offsetting impacts.

So the application would end up changing the variance request to side yard and make a front yard setback and a revised interface surface variance request.

I don't believe it would change the setbacks. It would change the impervious coverage. Right. Well, no, I mean, this application has.

You would include that. In addition to.

Exactly. So the impervious surface. We would. I'm assuming we had to approve what's existing as it is. But that would be increasing it to.

Whatever.

That's correct. Give yourself a margin.

Right.

As I spoke earlier, the edge of the pool was about 15 feet from the . Right, right. I'm getting to that. So I would say you need about 300 square feet more of impervious surface to have a functional driveway, whether it's truly impervious or .

And as a new impervious coverage percentage, what would that result in?

isn't that triggering storm water management at that point i think that's what that was kind of suggesting between the type of construction to be offsetting it as well as

Okay. It would be roughly 2.8 percentage points more of a coverage variance. So we have 40.3%. Mr.

Chair, I think you're right. I would defer to them if it's an additional 300. Is it an automatic trigger?

We could grant a variance from that requirement, depending on the engineering, if you find that there are no adverse consequences of it and that the proposal as is is sufficient. But now, just to be clear, I heard correctly, you said 2.8%? Yes. Okay, so 40.9% is the total? 2.8 plus 38.1. So 40.9. Okay, thank you. I guess to hear from the applicant, if the board were to consider a condition that you include that sort of pervious, although technically impervious, coverage for access, are you agreeable to adding that back in?

I am. That is acceptable. Thank you.

Is that something we would want?

designed and submitted to important professional for reviewing approval yes i i believe it would go to marie i can work with the engineer to get that okay happy to work great and then we'll retain jurisdiction that's customary when it comes to the purpose yeah so that that's the other thing is in case there are any storm water consequences here typically when we're addressing any storm water issues the board will retain jurisdiction for a period of two years after the completion of construction meaning if your neighbors call and complained about flooding on their property which resulted since you constructed it they could bring it to the town hopefully for a quick resolution for you to address it but if it is not resolved then they can bring it back to the board and have us rehear the application and require any additional steps to correct that issue understood okay any other questions yeah just a question for actually for marie so the

I don't know that we can value it, but the swimming pool, the amount of water that the swimming pool can hold at six inches, can you give us a rough estimate of what square foot of additional impervious coverage that would mitigate? Is that a proper question?

Yeah. So in the original, all right, so hold on. Could it be just the size of the pool? No, I'm thinking they were removing, 512 square feet of pavers. Would you be adding back that whole portion of it? Hold on one second. Let me just...

They would add back that, but not the portion of it becomes the pool.

That's a good point.

If you're not putting it into the pool, does it count? Right, you're not putting roof drains into the pool.

Right, we're not putting roof drains into the pool, no. Okay. so the impervious coverage on the ground anyway what is it what is what would be that what would be that area then uh if you were just just adding in the extra portion of the pool

353. So basically in front of the garage.

Yeah, what would that be? I don't follow. Thanks.

Hold on. So... Roger that.

So this spot, which we're removing, so it's basically the season.

It's roughly 300.

It is. It's roughly 300 square feet that they're adding for the pool. And the pool can collect six inches of rainwater, which is more than enough that would be required to mitigate it if you ask them to put in a seepage vent.

Got it. Okay. Does that make sense? Yeah. There is a backwash system, though, as far as a pool, to drain the excess water, right? So that system comes from your pool equipment. Would that be directed towards Grayhill Road?

probably so they typically use like a cartridge system with like a variable speed pump so it's it's not typically back washed I can't say I know how a pool that's overfilled essentially drains other than evaporation they do allow the system to go in reverse and pump it off site that's the only thing I would ask is that be directed towards an adjacent stone mortar collection system right so it doesn't cause issue with the neighbor's property that's all uh okay if it was uh outletted on grade right there i believe that the grading shows that it will be uh carried conveyed to the northwest corner of the property that is a positive drainage okay thank you sorry about that detail that's a good point though

Okay, any other questions? Seeing none, questions only from the public?

Seeing none, okay.

Thank you. Thank you. Appreciate you hearing me out.

All right, do we have any comments from the audience? Seeing none. OK, Andy, what are the conditions and number of votes needed?

So we have the three conditions noted. First is our usual compliance with those conditions noted in the board engineer's memorandum. Second is that the applicant shall submit revised plans to include pervious pavers to maintain access to the garage. And correct me if that term is wrong. Pervious pavers or?

I don't think that's really what that means.

It's pervious reinforced. turf previous reinforced turf to maintain access to the garage these revised plans shall be submitted to the board engineer for review and approval and third that the board shall retain stormwater jurisdiction for a period of two years after the completion of the improvements we are only dealing with sea variances here so the majority or four votes are required to approve Thank You Andy who'd like to begin our executive session

can jump in jay the um i know this location very well the mcgregor is a pastor mary road it is pretty much only used by the people who live right next to the school here i don't see any negative impact on any of the neighbors and i think the existing non-conformance of the setback there just makes it's a hardship because of being an angle lot working with the applicant to try to find a better solution with regards to the garage and then the impervious surface you mix that with a creative method of construction subject to our review maintaining jurisdiction and then the pool continuing while it doesn't directly benefit in terms of the actual particular code it actually focuses properly so i think the benefits are they're improving the neighborhood they're actually making the garage a little bit more functional in that way their family operates and it's you know really no negative downside here so i can see them approving it

Great, thank you, Jay.

Tom. Yeah, I can support as well for the reasons Jay outlined. Just to add a couple things. The forest had no objections, so we always think about pools. There's no screening. The forester says the screening's adequate and no trees or shrubbery appear to be impacted. And also our planner noted that asked or asked the question, why can't the pool equipment be located in a conforming location? And I think the, uh, engineer, I think it was the engineer, uh, made a, I think convincing argument why, um, that that's a, it is a good location and it's, it's on McGregor road, which is Jay mentioned, nobody goes down there if you don't live there. Um, so I, I can support the application.

Great. Anyone else?

I echo what was said, and I particularly would call attention to the fact that we have, without setting a precedent, talked a lot about permeability in a different way than we have perhaps in the past. And I look forward to the day where the ordinance can catch up to that. And the second aspect of that, of course, is the fact that as many cars have gotten larger and garages have stayed the same size, I think fewer and fewer people in Summit, if we're talking plainly, use their garages for motor vehicle parking, and I think perhaps at some point the audience could catch up on that too and see whether that space could legally be reclaimed for other functions, whether it's storage or a pool house or Tiki bar or what have you, an extra bedroom. And get over the myth that cars have to be maintained inside as if this were a 1920s theater project.

So I was, when I first heard this application, I was not, wasn't supportive of it when it was going to be grass in front of the garage. Yes, the garages, yes, they're small. They're built, you know, I'm sure this house, I'm not sure the date, I'm sure it's 80, 90 years old. And yes, cars were smaller then, but you still need a garage. Maybe it's your house now, but who knows who the next owner is going to be. And I don't think we should be removing garages. I don't think that's where we want. where everything to go. But now that you have proposed, you agreed to do some sort of pavers or where you still have access to the garage, I can support this. And in terms of the side, the equipment being on the side of McGregor, I walked the property earlier today and I thought there was plenty of room over there, plenty of screening over there and I thought that's the ideal place to put the equipment so I could support this application.

Great.

Thank you all. Can I get a motion to approve? So moved. I get a second.

Second.

Ms. Sands?

Mr. Yuko?

Yes.

Mr. Muller? Yes. Mr. Curran? Yes. Ms. Chifo? Yes. Mr. Feskens? Yes. Mr. Bell? Yes. Chairman Likud?

Yes.

Good one.

We're going to take a five minute break.

All right.

Let us jump back in. 28 Plymouth Road.

You can do it from here.

Oh. No, I'm kidding.

I'll swear you and just the applicant first. Do you swear from the testimony you're about to give in this matter is the truth, the whole truth, nothing but the truth? Yes. And please state your name, spell your last name.

My name is Claudia O'Leary, O apostrophe L-E-A-R-Y. Thank you.

Can you briefly tell the board a bit about your application?

Yes. I love my neighborhood. I love my street. I love my neighbors. And I intend to stay here for as long as we can to support our growing family. My husband and I both work from home. We have two two toddlers, maybe one on board or in the future. But our home right now, we just want to maximize our space right now. There are so many things that we could do to make it more functional. One being make use of our garage, keep it as it is, but have a mudroom and a pantry and a bathroom. So not a tiki bar, but something that can just help us with our space and accommodate our growing family. We've spoken to all of our neighbors that we share a lawn with or next to directly. They're all in support of it. One was waiting for our call to see if He needed to come in, but I told him he could go to sleep. But we really intend to stay for as long as we can, and my architect will review some of the variants that are required.

great uh board professionals any questions or do you want to wait for the architect all right board any questions for this witness or do you also want to talk to the argument okay any questions from public seeing none all right let's meet your architect raise your right hand you swear from the testimony you're about to give in this matter the truth the whole truth nothing but the truth i do and please state your name spell your last name thomas baio b-a-i-o architect for the applicant

thank you and i know you've appeared before our board relatively recently any changes to your credentials since the last time you were here

No, sir. I remain in good standing with the State Board of Architects.

All right. Any questions from the Board, or would you like to accept them back once again?

We would. Mr. Bray, please proceed.

All right. Thank you. I'll try to be quick because I've listened to all the earlier applications. Obviously, on its face, this application has five variances, and it's a lot. But I want to go through the explanation of why I think this Board could grant them. mostly based on their fairly de minimis nature and consistency with the surrounding homes. So short of that, I'm not gonna introduce a lot of exhibits, but if we feel that they would be helpful, I'd like the right to introduce exhibits as we go, perhaps to address commentary. So the variances in a nutshell are, the big one is the FAR variance. the property is an r15 zone it is significantly undersized as most of the homes on plymouth are we are 10 500 square feet whereas 15 000 are required we also have a lot width of 75 feet whereas 90 is required I'm sure your board, with me in the past, have addressed other homes on Plymouth, not that they deserve variances, but this is about two-thirds of the size of the zone. So the zone limitations that are imposed on it inherently make almost anything you want to do a variance. So with that as said, I'll go through the variances, the largest one being the floor area ratio variance. We are exceeding the allowed 25% by 162 square feet. The current house is 2255 and we're proposed to go to 2787, whereas 2625 are allowed. So we're 162 or 1.5% larger than the 25%. The second variance is a lot coverage variance. This is really de minimis. The zone permits 3675 square feet of lot coverage and we are going for 3711. or a grand total of 36 square feet over. The third variance is the zone requires a two-car garage. The current garage on the property is only 18 feet wide or 17 feet 11 inches wide, I should say. It can't hold two cars, but we want to make it to be a conforming one car. And according to the standards of the zone, we meet the one-car garage requirement. But it was characterized as a two-car garage by the zoning officer, even though we didn't meet the criteria for two-car because it was 18 by 20. Nonetheless, we are here to memorialize a one-car garage that would allow us to have a mudroom, which is how they use it now today anyway. They park a car, and the rest has a refrigerator and a mudroom. The mudroom is depicted on my plans, and it's quite comfortable. The fourth is a single side yard variance, and the fifth is a combined side yard setback variance. In both cases, the current side yards are 9.84 and 11.18. Neither one of them is being made any larger by this application. Now I'm going to point to my exhibits. Short of having to mark it or enter it as an exhibit, I did put a yellow highlighter on here to show where the work is being done. On the first floor plan, the work is being proposed. Behind the existing sunroom, we are expanding 4.3 feet to allow them to have a more reasonable family room. Right now, it's an unheated sunroom. It's going to be used seasonally all year round. So we're insulating it, changing its roof line, and expanding it by 4 feet 3 inches. The other addition is a 4 foot 6 inch expansion to the breakfast area. These are both depicted on sheet eight, two of my architectural plans. And then finally the one I just testified to, whereas a preexisting undersized garage is being made a fully conforming one car garage, allowing them to have cubbies, mudroom closet, and a powder room on this, on this level. The other one is to introduce the second floor above the existing garage. The garage is a one-story section, a little inconsistent with the neighborhood a lot of people have built over their garages. And I do have exhibits that needed to show the adjacent properties. This would permit them to go from a three-bedroom second floor to a four-bedroom second floor for obvious purposes. They really want to age into this home and would like to have a larger family. And this would allow them to have that amenity. It doesn't get any closer to the side yard than what exists today. But by virtue of the fact that it intensifies or densifies a preexisting nonconformity, we are here for the single and sideguard combined variance just for this thing because it triggers both despite not getting any more closer to the sideguard. That's really the extent of the variances and the explanations for them.

Great. Thank you. Board experts, questions do you have for this one?

Uh, just one quick question with regard to the renovated den that you have on the plan. That's the area of the existing, what is it called? An open porch survey. Yeah. Okay. And that your window areas that you're proposing on the side that faces the neighbor, is there only one window that's being proposed on that side?

Yes. The reason is right now it's all jealousy glass. What kind of glass is that? It's completely glass. We're going to reduce it to one window. It'll support the neighbor a little bit. It'll give them some privacy in the family. They expect to use this as a TV room. We don't need all those windows.

Okay. Any removal of trees or anything?

No, there are no trees being removed with this application. Just a small section of patio as we expand to the breakfast area.

Okay. The existing driveway at zero feet off the eastern side lot line. I presume you're not presenting it in here just yourself, right? So that's correct. So that's that's an existing condition. One of those things that with the board we'd offer that we should probably tackle that in any deliberations. The applicant any exterior equipment that is not going to be in compliance with the screening requirements or setbacks?

We intend to add no additional HVAC equipment. We're going to replace what's there today. And when we replace it, it's going to be designed so it can handle the addition expansions. Again, the addition expansions are not that large. So we feel that the single zone that exists could handle the proposed 2,787 square feet of living area.

So your direct testimony regarding the garage is that the existing garage does not accommodate two cars currently?

My existing garage does not accommodate two cars. It was deemed to be a two-car zone, and so the zoning officer felt that we should include that as a variance here, whereby we're reducing it to a conforming one car, despite not being a conforming two car.

That helps me clarify. I just wanted to make sure that was the case. Thank you very much.

And one more comment. I know you mentioned about the driveway being a lot line condition. So this is Plymouth Road. A lot of the driveways are, in fact, lot line conditions. We are 9.84. 9.84 is significantly smaller than a car really needs to get by. A car from mirror to mirror is about seven feet, some of the larger ones. So any intent to reduce lot coverage or say bettering the side yard would really impose a very difficult driveway. They do use the driveway, they do use the garage, and they still want to be able to go in there. And I would argue that we have some pretty good landscaping between the neighbor's house and ours so that this driveway doesn't just, you know, fall off into their, well, it does drop off, their property next door is lower, but there is a landscaping buffer.

Thank you.

Thank you, Ed. All right. Board, what questions do you have for this witness?

Go ahead, Alice. You mentioned the closed powder room. Is there getting rid of the other bathroom? There's going to be two on the first floor.

You're getting it.

You're adding bathroom.

We're adding a powder room to the first floor in that new mudroom. Yes, they work from home. Let me explain their lives.

I just wanted to note, I thought you meant that that was going to be the only bathroom on the first floor, but it's an additional bathroom. It is. It's an additional hot bath. All right, I'll see you in a moment. Thank you.

Oh, yeah, I have one. Actually, partially a question for Ed. I couldn't quite hear everything you said. So are you recommending we add a variance for the garage for the lack of a setback?

Yeah, that was always in our memo is that variance is necessary. What I was saying is that let's recognize the zero-foot setback for the driveway. Oh, that's the part I couldn't hear. Okay. That's what I was trying to say. Thank you. Okay.

Did you consider trying to conform with the lot coverage? I mean, it's such a small amount. It's such a small amount.

You can see just by simply taking some of that circle of the turnaround, you know, cutting a foot off that back probably doesn't bother anyone. It could be done. They would prefer not to, obviously, because they use that turnaround. But it's 34 square feet, and we just appeal to the mercy of the characters here to say that it's

That's probably the nicest term that could be applied to us tonight.

It's the mercy proof. Go ahead.

Oh, I have another question. So, I don't recall. Is there two garage doors right now? No.

There's a single garage door.

It's one large garage. Yes. Okay, so it's not... What is the definition of a two-car garage? I mean, it's two doors, or the two cars can fit?

It's got to meet a certain dimension.

Okay, it has nothing to do with the number of doors.

What is the, it's 20 by 20, or is it 18?

It's 20 by 20. 20 by 20. Yes.

So it is non-conforming. So you had mentioned this before. Along Plymouth Road, the scale and density that you're recommending, that you're asking for,

is in conformance and you would see it would feel that it would fit in the neighborhood on those block yes to be very frank they're all over the place i did a quick survey of square footage which i'll yell out do you require if i yell this out i have to submit this as an exhibit you can just tell us so starting with 10 plymouth we have a house of 3114 square feet on a similar size property Two down from our house, 22 is 2108, 26 is 2006, and we are 2058. We are the three smallest homes that I can find on Plymouth because everything else from here on up, the house to the right is 2776. The next one is 2391. Across the street we have 2776, 2896, and 2578. So all of them have either appeared for variance in the past or are right at that limit of that 2,600 number I quoted for .41 of an acre. A lot of these are very similarly sized at .41 of an acre. So I do think we are not inconsistent, but it's really all over the place. Some are really big at 3,100 and some are smaller at 2,000. Their next-door neighbor is an original house. Their house is an original house. If you drive by, and I have pictures if you want me to submit them, you'll see that it's not been touched in 65 years. This will allow them to bring this house up to the standards of what's really been happening on Plymouth, where people are pushing that envelope on size.

Anyone else?

No? Just very briefly, the materials that you're going to use on the additions are consistent with the existing house, I imagine?

Yes. We're going to match. I'm trying not to submit a picture. We're going to match the shingle, the roofing color. The windows are going to be similarly double hung windows with some divided glass. And that's it for the exterior, roof, siding, windows.

Can I just ask a quick question? On A4, those are listed as existing front elevation, left, rear, and right. Are those actually proposed?

Yes. So you're referring to the frontal elevation, which I show as existing, and it should say proposed. Yeah, that's true. These are all proposed. These reflect the changes. I have pictures to show the existing if you want them.

Better watch that AutoCAD. Sneak up on him.

I've got to watch my employees. One of them is here.

Any questions from the public? Seeing none. Okay. Is there anything you want to say in summation?

Please let me do this. I want to stay.

I want to stay. Please. I don't think anyone's ever said please before. I said it twice.

Thank you so much. Any public comment? Seeing none. All right. Mr. Ball, what are our conditions and number of votes?

I actually have no conditions noted because there's no engineer memo that we routinely condition it upon. So unless the board has any particular conditions they would like to hear, I would just get to number of votes, which is five, because there is an FAR variance required.

And we've added the zero lot line for the driveway?

Yes, I imagine the board would like to consider that request for the zero lot line variance, which you are allowed to do.

Okay, great. With that, I would like to begin our...

I think it's a great proposal to review our plans, make a lot of sense, and make the house more living. It touches all the bases that one would expect. In the Environmental Commission report, and I served on that commission for many years and still go to its meetings, one line that is bolded, and I don't want to make that as a condition, but I'd like to make it as a suggestion, the bolded line, if you haven't had the opportunity to see the report, is quote, unquote. We also encourage the use of solar panels on appropriately oriented roof areas, especially on the new second floor addition. And the reason I mentioned that as a suggestion, obviously not a condition, is that one often doesn't have the chance to do construction on a house, especially with busy lives and little kids. When there's construction going on, especially with a new roof, what a great opportunity to do something that changes thrust of the way the house works mechanically and so i strongly suggest that not on for a vote and not as a condition but think about it because the way the roof pitch works looking at the roof plan it looks like it's a piece of cake thank you mr who else

Tom. Yeah, I mean, I don't have a lot that I mean, I pull my throat. It's a very interesting street. It's been fun watching evolve in all the years I've been in summit. We've had a lot of applications over the years. Undersized lot has been noted. I mean, it does seem like a lot of variances, but I think I think the architect made a very good argument that, you know, with the exception of the FAA, which is a pretty big increase, but even that's not it's not extremely far over the limit. The others are, you know, either de minimis or borderline de minimis. For us there are no objections. The backyard is well screened, so I can support the application.

I think I would just add to that is that going back to an argument about context here, it fits. The scale and the density of it aren't overly impactful. You'll look at this house and you're going to look at it and say, this was thoughtful, this was restrained, this was constrained. and it's going to overall fit the overall objective of the DRO. So I don't think there's any negative downside, and that's the positives. So I support it.

My one concern was the garage, but I think you did a great job explaining that it's really not a two-car garage, even though, you know, size-wise. So thank you for clarifying that. So with that, I can support it. That was my one big concern. But everything else seems very reasonable. I'm very familiar with the street. Walk up and down it almost every day, and... I understand the constraints on these older houses, but I think it's well thought out. And it's not asking too much.

no i i would agree and adding to that the the modernization of the house would would make it more livable more usable and in theory safer right which is a positive criteria that i think we can all agree on and um you know you're you're going to stay there which It minimizes the risk of someone coming in and knocking it down and trying to build some monstrosity. So we are grateful for that.

If you want to walk, let me know. 7 o'clock, look out your front window. You'll see that. My kids will watch you.

And with most of the work occurring within the confines of the footprint of the house already and based on what I saw in the architectural elevations, I think the design, the additions fit within the the the spirit of the DRO. So with that, I can certainly support this application.

Motion to approve is second. Thank you all.

Mr. Yuko? Yes. Mr. Malay? Yes. Mr. Curran? Yes. Ms. Chifo? Yes. Mr. Feskin? Yes. Mr. Bell? Yes. Chairman Likens?

Yes. Thank you so much. Thank you. Thank you. Good luck. Good luck.

Good luck. That's enthusiasm. I like it.

For minutes for memorialization, we have regular and closed session meeting minutes from May 4th, 2026. The eligible voting members are Mr. Yuko, Mr. Blaine, Ms. Chifo, Mr. Feskins, Mr. Bell, and Chairman Likert. Could we get a motion to approve, please?

So moved. Second.

Thank you.

All right. Thank you all. Motion to adjourn. I'm sorry. Was there any other business? Are you going to miss us in August? No. That's still on the record, right? Yeah. I think we don't meet again until September. Yeah.

I was going to say it's post-Labor Day, I think, right? All right.

Can I get a motion to see you all in September?

So moved.

Second.

All right.

Thank you, guys.