siteplan
Atlantic Paving & Contracting, LLC
Long Branch Zoning Board Application ZB13-10
Applicant seeks to legalize the nuisance use as an outdoor storage & contractors yard along a brook for multiple businesses and subdivide the lot to add two houses on the residential portion of the lot. The stockpiling of dirt and other material will be moved closer to Plaintiff’s new offices. Applicant seeks to evade adding a cul de sac as required by ordinance for subdivisions at dead ends, just as they have evaded in previous subdivisions and dismissed unprosecuted site plans. Instead, they seek to enclose the entire dead end with sliding gates. Applicant’s attorney provided a case and land use expert and seeks to purport that simply rearranging, moving the increasing mess they have illegally created, albeit removing some of the trailers where the fencing will go, will benefit the area and warrant a use variance. As pointed out to the board, this violates the unclean hands doctrine and unlike the case presented, Mr. Bruno the original and current landowner’s use was illegal when first commenced, and is not pre-existing legal,
Standard of Review: Decisions of Zoning and Planning Boards must not be “arbitrary, capricious and unreasonable” As to presentation of evidence, the NJRE (NJ Rules of Evidence) used in Courts don’t necessarily apply – evidence need only be relevant to the issues being considered, If evidence such as depositions are allowed under NJRE, however, and it is relevant, it should be allowed in.
This is the fourth site plan for a use variance for the E&L Paving owned property due to pressure of litigation and the municipal court. The first two were filed in 1986 and 2000 and were dismissed without prejudice for lack of prosecution. Two fines were paid in 2000 for expansion of use without prior approval. The third application was filed 2002 and withdrawn 5 years later.
The current application was filed Oct. 9, 2013 and continues. The Applicants are also in municipal court since March 2013 with at least 14 summonses for expansion of use, however all along they been allowed to operate while in violation rather than being prevented as required by law. (Ordinance 345-75 E3 requires the zoning officer to terminate all violations within 30 days.)
Furthermore, municipal courts don’t offer injunctive relief anyway – that’s done thru restraining orders in Superior Court. Long Branch obtained one in 1986 against Bruno/E&L Paving for stockpiling and certainly knows this. As the Long Branch Municipal Offices and Court are both on Broadway, this charade/conspiracy has become known as the longest running play on Broadway.
The original zoning board and attorney are Defendant’s in the active lawsuit/appeal for participating in the conspiracy and breach of fiduciary duty which has allowed Applicant to evade the zoning laws. All except the former viee-chairman, who now serves as chairperson, have recused themselves.
Plaintiff/ FairtrialNJ’s founder, whose property and new office addition is directly adjacent to and across the street, has provided the opposition and was allowed to freely cross examined the witnesses. He finally got to put on the opposition case on Feb. 27, 2017 with his appraiser first testifying as to the ongoing depreciation affirmed by the tax board and continued depreciation if the plan is approved. Plaintiff went next but ran out of time. Two adjacent neighbors in opposition were also present. The zoning officer, Michelle Bernich who issued the dirty zoning permit was in attendance as emissary of the municipal court which does not grant injunctive relief. The final hearing is set for April 24, 2017.
Rigging?:
Though fairness was provided in one respect as noted, it was obvious that the board professionals had rigged (good word – thanks Pres. Trump) their review to advocate for Applicant. They appear to have their marching orders. The zoning board engineer, is Elizabeth Waterbury, formerly of Elizabeth Waterbury Associates, now part of Cranmer Engineering which touts “Integrity, Innovation, Excellence” on its letterhead. (Ms. Bernich used to work for Ms Waterbury at the former). The zoning board planner is Mr. David Roberts of Maser Consulting, a major land use/engineering firm. Conflicts attorney is Mr. Kevin Kennedy, Esq.
Amazingly, neither the zoning board engineer or planner knew or mentioned the cul de sac requirement in their initial review though the site plan is entitled “sub-division” and a dead end is present in an industrial zone with no circulation on the narrow street. Ms. Waterbury was concerned about a shade tree but not about the cul de sac. When questioned about it and told about the evasion of the requirement in previous subdivisions, she states applicant’s property is “already constructed” though significant site changes are evident and have been discussed with the board. She also states that DPW, Defendant Hayes, (who recruited the DPW director), and the zoning officer met and DPW wasn’t interested in a P type or any cul de sac though it would enable garbage collection and snow plowing. Nevertheless, it was pointed out to her that no one is asking DPW to do anything either to the dead end street or onsite as to a cul de sac. – that’s purely the subdivider’s responsibility. The position of the board engineer & planner not to require a cul de sac, if adopted, would be arbitrary, capricious and unreasonable and struck down by most reviewing courts in the US, albeit perhaps not in Monmouth Superior Court, whose assignment judge happens to hail from dear old Long Branch and does the prerogative writ reviews! Maybe she’ll give it to judge Perri to “handle” instead? Per the above meeting with DPW, Applicant agreed to widen the street 7′ by removing the grassy ROW and that a no parking zone should occur to allow vehicles to pass while trucks unload in the street, but that requires an Ordinance be passed by the city council and is a separate issue from a cul de sac.
Some of the other obvious rigging:
1. The board planner failed to do a basic investigation and count the total number of cars and pieces of equipment onsite and parking offsite during and after the workday in order to gauge the space needed versus what is alleged/proposed. Its obvious from photos sufficient space is lacking now. It will only get worse when the houses are built – that’s a reasonable assumption and the standard is reasonableness.
2. The board professionals though claiming to visit the site and witnessing the various pieces of equipment and processes in close proximity to neighbors, including sorting of scrap metal, failed to require applicant to have basic independent sound testing done
3. Despite being a major consideration as to the extent of the buffer area and available lot, DEP has not yet been consulted though the marking out of wetlands has occurred. This is unreasonable. However due to Plaintiff’s building shaking due to the 2 excavators and concrete pulverizing machine operating over there in addition to the noise, NJDEP was called. (See “DEP Notified” as to how this was handled) No questions either or concern by the board as to applicants lack of reasons for waiving the 100′ riparian buffer required under “preservation of features”, Ord. 345-11A
4. Applicant was made to propose a staging schedule for the various parts of the project but there was no concern or questioning by the board during the staging review as to the removal of the curbs and street widening. This was totally omitted. Since circulation of traffic is required regardless of any use approved, the rest of the staging should be contingent on the city council first approving this.
5. The zoning board engineer requests a stormwater drainage report yet it appears the city engineer was not authorized by the city administrator to furnish a report about the changed plans which added stone and retention basins, to see whether sufficient. Plaintiff called the engineer who confirmed this and further stated that “he didn’t think parking of heavy trucks on stone surface is plausible or advisable.
6. Due to Plaintiff’s objection as to the lack of specificity in the application as to the number of vehicles and businesses and pieces of equipment proposed, counsel had Applicant set benchmarks on this. While this is being done, counsel opines and imputes private garbage pickup to the various businesses at the site without any prior mention of such by Applicant who has been using city service. Applicant claims all yard employees will come in, get their vehicles and leave so only 2 persons are onsite in the office and 1 in garage. So why is commercial collection being pushed by the conflicts counsel? This is obviously intended to downplay the need for a cul de sac for city garbage trucks to maneuver and advocate for applicant’s use by instituting private collection. According to Applicant’s engineer, the City is to depend on Applicants access to snowplow the end of the street and turn around.
> Plaintiff/objector made the points that due to unclean hands, Applicant was not entitled to relief. Also, the use, if any was restricted to the inside of the garage so no outdoor use lawfully preexisted. Plaintiff documented how Bruno’s use was unilaterally created and this is about establishing a new nuisance outdoor use contrary to the case submitted by Applicant.
Plaintiff also showed why the Application should be denied with prejudice/permanently;
1. Use Detrimental: Plaintiff documented that the use is detrimental and depreciates the area, and will continue to do so if approved, according to the appraiser. This alone should deter the approval.
2. Other Beneficial Uses Exist: Plaintiff showed other beneficial indoor uses exist for the property such as a new warehouse with a cul de sac and widened street with no parking. The appraiser testified that this could eliminate the depreciation and benefit the area.
3. Insufficient Space for Use: There’s insufficient space for the use now and it will only get worse if houses are constructed where equipment was stockpiled. A cul de sac will further rule this out, which is why it is resisted. This is the type of use that should be located with other outdoor uses, not in the middle of a city block in close proximity to a new office addition, homes and a school yard.
4. Use Not Enforceable: It was shown how Long Branch has willingly permitted the use to continue and expand since 2002 though no prior site plan approvals ever obtained and prior findings of guilt and a restraining order for same. The 1986 restraining order,
2 findings of guilt in 2000 and 14 outstanding summonses issued to both Atlantic Paving and E&L Paving were documented. The point was made that any assurances by these Applicants as to noise, dirt, number of companies and employees, no off-street parking, a cul de sac clear of operating equipment, will need close monitoring by code enforcement who has shown it is disinterested in abating any violations. As further evidence that even the simplest violations are incapable of being reasonably abated by Long Branch at this location, it was documented how an abandoned truck parked on the street in front of Plaintiff’s property was not removed for 8 months despite 2 complaints to the Police and a letter to the Mayor and Administrator. Plaintiff will show how the zoning board denied a prior application for a use variance elsewhere in town due to the conditions of use such as parking being impossible to monitor and enforce.
Though the board secretary’s comments during Plaintiff’s questioning and testimony seemed hostile, it is hoped that, after having the total picture presented, enough members will display good will and disregard the rigging and provide honest service and deny this unreasonable, worst possible use for the area. However “anything can happen in Jersey” as the lottery ad. proudly and accurately notes.
4/28/17 Final Hearing: Application Denied!
Plaintiff concluded his above opposition arguments and documentary evidence which laid bare Applicant’s lies to the substitute board and Applicant’s unclean hands due to not abating the violations. Applicant’s attorney sought to bring in the recent trial verdict and Plaintiff’s rigging contentions as proof that perhaps Plaintiff was an unreasonable conspiracy monger. Plaintiff responded by enlightening the board on the history of corruption, stated that he was treated fairly in presenting his opposition, and that a trial judge nominated to the NJ Supreme Court had allowed for a conspiracy including the regular zoning board members and attorney. Plaintiff then asked the board to disregard the rigging of the board professionals, and nevertheless provide honest service and end this hoax/charade/conspiracy, and that it should take less than five minutes to do so. Plaintiff’s two neighbors thereafter also stated their opposition to this use.
Most of the board except Mr. Ging, the board vice-chairman and substitute chairperson, who is defendant in the damages matter, and Mr. Goldman, an alternate member, listened and returned a 5-2 vote in less than 5 minutes, to deny the Application. Though the Resolution is pending, this means the outdoor use must cease. The dumping has already stopped. It remains to be seen whether the charade of enforcement will continue nevertheless and how long for the illegal occupation to be terminated. Doesn’t look good based on the subsequently contrived minutes which totally lack any mention of testimony by Plaintiff and distorts & manipulates parts of the record by misstating that Plaintiff stated that the dirty zoning permit was validated by a court and that Mr. Turner stated the original use as a paving company was illegally created whereas Plaintiff testified to this. Mr. Turner testified the use was to be contained within the original garage and didn’t know why all the other lots are on the permit. So the conspiracy and official misconduct may continue nevertheless if honest service or interference in portraying the true minutes after 3 weeks is an indication.
Plaintiff’s current Appeal in Superior Court has provision for injunctive relief should the zoning violations not be terminated by the time the Appeal is heard.