BOROUGH OF BOUND BROOK PLANNING BOARD SEPTEMBER 25, 2003 CALL TO ORDER The meeting was called to order by Chairman Robert Fazen at 7:30 p.m. at Council Chambers, 230 Hamilton Street. ROLL CALL Present were:  Mayor Ryan, Mr. Dietrich, Mr. Fazen, Mr. Shive, Mr. Krauser   Also present were the following staff members:  Mrs. Malone, Recording Secretary; Mr. Rodgers, Board Attorney; Mrs. Doyle, Planner; and Mr. Cilo, Engineer. COMPLIANCE STATEMENT This meeting is being held in compliance with the “Open Public Meetings Law.”   The requirements of the Law have been met.  The Annual Meeting Notice has been posted in the Municipal Building, filed with the Municipal Clerk, and forwarded to the Bound Brook Chronicle in January, 2003. SALUTE TO THE FLAG MINUTES OF PREVIOUS MEETING      A motion was presented by Mr. Deitrich and seconded by Mr. Shive to approve the minutes of the August 14, 2003 Regular Meeting.   Unanimous. ANNOUNCEMENTS Mr. Fazen announced the following items to be discussed: Agenda items (18 Hamilton Street) Wine School Resolution Bound Brook Theater 538 East Main (Scagliotta) Bound Brook Ford Valley National Bank Informal hearing on Efingers OPEN TO PUBLIC No comments at this time. PUBLIC HEARINGS #10-03, 18 Hamilton, Block 12, Lot 10.02 (Request for Waiver of Site Plan) (Front lot) with professional building and store.  No changes in use are proposed.  Mr. Fazen pointed out that there was a little problem with the Hamilton Street Café and the apparent change in use.  They are categorized as an art gallery but are acting more like a night club.  There is nothing wrong with the use; it is authorized in the area.  But it is not an art gallery.  Any change in use in the borough requires an appearance before the planning board for a site plan (or request for a waiver).  Mr. Fazen intends to re-categorize the use as a night club.  The tenant had approval as an art gallery, and therefore they need to appear to change it, according to Mr. Rodgers.  The owner said they believe they have a Certificate of Occupancy as an art gallery, and costly changes would be required by the night club designation. Mr. Neri urged the people of Bound Brook to appreciate the use for the youth of the community.  The coffee house was approved.  Mr. Neri said they still have an art gallery.  They are serving food but not cooking.  Mr. Neri said they have art and entertainment.  Mrs. Doyle notified the owner that there is a problem, and fire is an issue.  Mr. Petracca was advised to check with the zoning officer to ascertain whether the use is still as allowed.  Mr. Petracca asked for clarification, and was told that the use has been expanded since the resolution was adopted.  Mr. Fazen reiterated that the current use must be identified. Mr. Neri suggested notifying the owner by certified letter to appear before the board.  The lease, according to Mr. Petracca, identifies the use as arts and entertainment.  Mr. Fazen said the resolution that results from this current request will spell out the actual use. Mr. Petracca said the store owners in that area are happy to have the Cafe in the neighborhood, and it benefits all the other businesses in the area.  The use was decided to be art gallery, coffee house and entertainment, and that will be in the resolution. Mrs. Doyle wants to be sure this is testimony and not speculation.  Joseph R. Petracca was sworn in as treasurer and vice president of Bound Brook Investors.  He was asked about the current use and said that it is used for art, entertainment and sale of beverages (non-alcoholic) and snacks.  Entertainment is comprised of dancing and instrumental music. Motion presented by Mr. Shive to accept the waiver, seconded by Mr. Krauser.  Unanimous. #11-03, 18 Hamilton, Block 12, Lot 2.01 (Request for Waiver of Site Plan) Apartments and back portion of parking lot.  No changes proposed. Motion presented by Mr. Dietrich to accept, seconded by Mr. Ryan.  Unanimous. Informal Hearing, Efingers Bob Smith appeared representing Efingers and Eckerd.  The concept plan was presented in hopes of identifying anything the board would strenuously object to.  Mr. Fazen cautioned that if there will be a request for a variance the issue should not be discussed without the appropriate notices.  Mr. Smith said if the ordinance is adopted the height of the total structure will exceeds the allowed height.  The roof line averages 28.5 feet.  The parapet line is at about 31.5 feet (less than 10% increase over existing code).  The highest point of the roof to the average of the foundation is used in the existing code.  We are not permitted, in an informal hearing, to address anything that requires a `d' variance, and the discussion will avoid that aspect. Mr. “Ted” Osborne was introduced to explain the drawings.  He described the proposed Eckerd and Efinger stores, doubling the square footage of Efingers but increasing the footprint by about 1000 square feet.  The challenge is not to take Efingers out of business while construction is done.  The new Efingers facility will be built first.  The existing Efingers will then be torn down and Eckerd will build their new facility. There will be a loading dock at the rear for Efingers and two dumpster locations for each property.  Parking is across the front.  The driveway may not allow a left turn out.  Mr. Fazen noted that the DOT should approve the turns beforehand and asked if anyone has asked DOT.  Mr. Smith noted that representatives of this project have talked to DOT and they are on board.  Maser Consulting has also conferred with DOT.  Mr. Cilo asked for clarification that left turn in will be permitted.  Mr. Smith will have proof when the formal hearing is in progress.  The left turn IN is critical, but not the left turn OUT, according to the applicant..  Mr. Shive wondered if there would be enough room on Union Avenue to make a third lane at that turn site.  Eight feet will be taken from West Union Avenue and seven on Thompson for dedication.  Mr. Shive noted the DOT would never turn down the ability to have a third lane.   Mrs. Doyle asked where the traffic information indicates primary ingress.  Mr. Osborne did not know.  It will be either Thompson or West Union Avenue.  Mrs. Doyle suggested investigating access from West Union Avenue, where two rows of parking spaces would be inaccessible.  Most of the aisles should be oriented to favor the incoming traffic, and she asked that they keep that In mind.    She reminded the board of the problem with Shop-Rite and traffic from the east. Acoustical impact (residential areas on two sides) was also a concern of Mrs. Doyle.  She suggested looking at the ordinance and addressing the required buffer.  The Somerset County Planning Board told her that the applicant has donated property on West Union Avenue and Thompson Avenue, they would like to stay in business and the store is an ;anchor in this town.  The county wishes to have the building up to the street, and the board will voice their opinions on this. There are a number of waivers to be sought.  Total number of  parking spaces (required 162) would be 144.  The total impervious coverage of the site will be reduced, as will building coverage. Regarding signage, Mr. Osborne explained that standard Eckerd signage will be proposed and Efingers would have free standing letters on the marquee.  A sign at the entrance, perpendicular to traffic along West Union, would list both stores.  There will be a clock on the corner with four faces that will have Efingers name on it.  There is an interchangeable sign that can be manipulated weekly (electronic) but will not flash.   Mr. Fazen said the discussion should be limited to 15 minutes and invited board members to voice any concerns.  Mr. Shive mentioned traffic safety, buffer with residential neighborhood and planting (landscape plan).  The board would be looking for something “green and tall.”  Mr. Osborne assured the board that they do plan to include trees in the landscaping plans.   Mr. Krauser agreed that there is no problem with the building location on the lot.  Lighting along the back could be an issue.  He suggested working out the height problem with Mrs. Doyle. Mr. Dietrich asked about hydrants (there are two, front and rear).   Mrs. Doyle advised that the governor is putting all municipalities in a situation were COAH will be based on new construction. Redevelopment does not count.  Will the client be willing to pay?  Mr. Smith will ask the client.  The regulations are not adopted, nor are they published yet.  If Bound Brook feels demolition should count, the council could pass a resolution to that effect.  Mrs. Doyle said it would be retroactive to January 1, 2004 if it passes.   Mr. Ryan pointed out that Thompson Avenue is a county road.  The county is very interested in this corner.  They would like to have a dedicated right hand turn lane at this intersection.  Mr. Fazen voiced concern about movement of utilities at that corner. Mr. Shive noted the board will be looking at all elevations and where mechanical equipment will be placed (middle of the roof, according to Mr. Osborne).   Mr. Fazen said lighting, noise, and rubbish removal will be discussed.  He suggested that Maser Consulting contact Mr. Cilo.  Parking will also be discussed carefully (and justified, according to Mr. Smith).  This is the entrance to Bound Brook and Efingers has been an anchor store with people coming from far and wide.  We must have something in character with the borough at this site.  Mr. Fazen told the applicant to be prepared to “wow” the board. Mr. Fazen asked if anyone had a problem with the building being set back.  No one did.  He has argued with Mr. Bzik about this.  Tentative plans will be heard in November. RESOLUTION Application #03-03, Winemakers of Somerset Motion to formalize approval made by Mr. Krauser, seconded by Mr. Shive. Unanimous. Bound Brook Theater will present a packet for their site plan application (October 9).  Mrs. Doyle asked if we need a completeness review. An application was received from Larry Vastola (Scagliotta), but it is not a complete application.  Basically it is a landscaping plan that was sketched.  Mr. Fazen will return it to him indicating that it is inadequate.  The board had dismissed the application in the past; Mr. Fazen will respond.  They did go to court and the judge fined them and told them to come to the planning board..  The zoning officer said they were in violation, and they chose to go to court instead of coming to the board.  Mr. Shive asked if the board has a right to deny a hearing before the fines are paid.   They have never paid escrow fees, and Mr. Faze will tell them that.  The court enforced the fines, and they can result in a lien on the property.  Taxes were not paid, Mr. Shive said, and the planning board will not hear it without payment of taxes. Bound Brook Ford's cars that were parked at the corner of Vosseller and Union have been moved.  They went to court with the same result - they were told to go to the Planning Board to request a variance. Brook Theater representatives requested subdivision deeds to be signed.  Mr. Sasso has scheduled the closing for tomorrow.  The loan commitment expires at the end of the month.  An extension may be obtained.  Mr. Fazen said the board has been waiting for 3 weeks.  Mr. Spengler and Mr. Rodgers have a disagreement that has held it up.   Mr. Rodgers felt the board had to hear that, after the final language was worked out, the owners came up with additional wording.  The owner wants to say that if the theater building is ever destroyed for any reason the easements will expire.  Mr. Rodgers felt, unless a new theater was built and the easements remained, whether the theater is there or not there must always be a viable lot with all necessary easements rather than a dead spot in the middle of town.  They are saying that if the theater were torn down the easements would be unnecessary because there would be access from Hamilton Street.  There are other issues, such as drainage and access, where easements might be needed in the future. Mr. Spengler said the two parties are in agreement, but it would not affect his client if the theater goes out of business.  The town cares. Mr. Petracca was sworn in again for testimony about the deeds of easement.  He is concerned that, in the event that the building is no longer in the theater business, someone may utilize his parking facilities and force him to pay for all the access.  They already have access to Hamilton Street for gas, sewers, water, electricity, phone and cable.  The front of the property is on a public accessway.  The easements were specifically designed for conditions as they exist today.  If the building is not rebuilt as a theatre the easements would cease. Mr. Spengler said he understands that site plan approval and variances would be necessary if the building were destroyed.  All existing drainage would remain and is not affected by this clause.   The easements cover access and utilities.  Mr. Cilo asked if the same footprint were used for an office building, converting the building, if that would meet the scenario in the document.  No, the document specifically addresses total destruction of the building. Mr. Rodgers read the language, indicating that if the building were to be “totally destroyed” the easements would expire unless the building were rebuilt for the same use (the arts).  Mrs. Doyle was troubled by the fact that when the building came before the board the issue was parking.  This access leads to parking.  Mr. Petracca said if the lot is empty there is access through Hamilton Street. Mr. Fazen asked, if the building were to burn down and an office building built in the same place, why would they want to give up the easement.  Mr. Jamison of the Arts was sworn in.  He clarified that the property owner would have to come to the planning board and the building would be built with proper access to East Street or Hamilton Street.  It is a flag lot, but there is public property out to East Street.  He feels it would be to the borough's benefit to reduce the footprint in this eventuality. Mrs. Doyle suggested that this matter is not appropriate to the board.  These two parties can enter into that agreement.  The board did not discuss it at the meeting, and this can be resolved privately.  Mr. Rodgers said the parties are willing to agree to waive the easement if the building is torn down; the only reason it was presented to the board is because the town has a stake in it.  If the easements terminate, does the town still have a viable lot?  Unless the easement is to the benefit of the town, Mrs. Doyle feels it is none of the board's business.  This is a condition of site plan approval.  She feels the deed can stay as it is and they can agree later to this.  Mr. Shive pointed out that this is an interesting issue as to how it affects the borough.  If the building were gone, he is concerned about the potential egress provisions.  Mr. Jamison feels it would be possible to build a viable l-shaped building with plenty of clearance around the sides for access to public streets.  There is no parking requirement in the existing ordinance. Mr. Cilo pointed out that the board has declared this is a viable lot with these easements.  Mrs. Doyle said the board could be asked to amend the resolution to relieve the obligation for easements.   Mr. Fazen asked if anything could be built on the lot identified by that footprint without the easements.  Access is through the existing parking lot.  All other accesses can be manipulated, Mr. Cilo said.  There is 23,000 square feet, Mr. Petracca pointed out.  There would be plenty of room for both a building and access.  Mrs. Doyle asked if the easement could be shifted; it can.  Total destruction of both buildings is thought to be very unlikely.   Mr. Fazen asked Mr. Petracca what would be the problem with removing all easements except access.  Mr. Petracca said a strip mall could be created abutting his lot and he would have to light and maintain the lot.  Mr. Shive agreed it would be granting benefits to a future unnamed party.   Mr. Fazen said he sees the point of both parties who agreed on the wording.  Mr. Shive pointed out holes in the wording.  Mr. Cilo said the theater would be giving up their rights, and it would only hurt them.  Mr. Fazen is convinced the borough would not be hurt.  The board feels it would still be a viable lot in any case. Motion to accept the deeds as written, subject to proofreading, which the board has not had a chance to do.   Motion by Mr. Shive, seconded by Mr. Krauser. Mr. Rodgers said the deed conforms to the resolution.  Unanimous.   ADJOURNMENT Motion presented by Mr. Krauser, seconded by Mr. Shive, to adjourn the meeting at 9:10 p.m. Unanimous.                                    Respectfully submitted,                                    Barbara A. Malone                                    Recording Secretary