Minutes September 13, 2023

 

VERNON TOWNSHIP LAND USE BOARD

REGULAR MEETING MINUTES

September 13, 2023

 

 

Call to Order

Meeting was called to order by Chairman Theobald at 7:00 p.m.

 

Statement of Compliance:

Pursuant to the Open Public Meetings Act, adequate notice of this Regular Meeting has been provided to the public and the press on January 17, 2023, by delivering to the press such notice and posting same at the Municipal Building.

Salute to the Flag

Chairman Theobald led the assemblage of the Flag.

 

Roll Call

Mayor’s Designee John Auberger	NP
Craig Williams	P
Councilmember Joseph Tadrick	P
Martin Theobald	P
Richard Spoerl	NP
Willard McPeek	P
Andrea Cocula	P
Michael Whitaker	P

Jacqueline Haley	P
Kelly Mitchell Alternate #1	P
Mark Heftler   Alternate #2	NP
Paul Mele Alternate #3	P
Mark Vizzini Alternate #4	NP

   

Also Present:

Glenn Kienz, Board Attorney

Cory Stoner, Board Engineer

Alison Kopsco, Board Planner

Kimberley Decker, Board Secretary

         

 

Chairman Theobald stated that Messrs. Heftler, Spoerl and Auberger notified the Board of their absence.

 

Public Hearings

 

LU# 2-23-4 – Sussex Cultivation, LLC – Block 153, Lot 43, & Block 168, Lots 2, 3 & 4 Preliminary & Final Major Site Plan for the construction of a Greenhouse, Eighteen (18) Cultivation/Support Pods, one Utility Shed, and related site improvements for a Cannabis Cultivation Facility

 

Frank Vitolo Esq. came forward on behalf of the Applicant and provided a timeline for Application.  On July 26, 2023 the Vernon Land Use Board voted 5-4 to deny application for Final Site Plan approval for Cannabis Cultivation at 1785 Glenwood Road for reasons including water availability at site; disagreement with permitted uses allowed on site and aesthetic concerns of 18 proposed cultivation pods on site.  On August 8, 2023 the Applicant filed a Motion for Reconsideration as permitted in the Board’s By-Laws seeking reconsideration of decision and reopening record. Grounds to re-consider additional information based on Highland Commission has jurisdiction over water availability and has already found water usage is acceptable on this site; the Land Use Board cannot act as a Legislative Body to rezone property; and the Applicant has agreed to improve the look and finishes of the cultivation pods.  He stated the Board granted the Motion for Reconsideration and reopened the application for purpose to clarify and present the supplemental information on grounds in Motion. Witness David Clark will testify on behalf of the Applicant showing improvement to pods.

 

Mr. Vitolo reminded the Board of Exhibit D previously on record: Highlands Council letter dated June 27, 2023 which concludes that cannabis is agricultural and allowed in Highlands Preservation Area and use of 12,000/gallons per day is acceptable subject to Water Conservation Plan provided to Board but noted has since been revised to lower usage and better efficiency.  Secondly, he reminded the Board of the email from Highlands Commission Attorney Gabrille Gallagher Exhibit E that while it allowed the Board to change wording of decision it cannot alter conclusion that water usage is appropriate.  Thirdly, he reminded Board of Ordinance 330-237.1.6 that the Board shall honor the decision of Highlands Council with respect to matter before it. 

 

Dave Clark, although previously sworn in at prior hearing was sworn in again and accepted by the Board as qualified Engineer to testify on behalf of the Applicant on items limited to the Reconsideration.

 

Mr. Clark presented an Exhibit of overall aerial rendering showing eighteen pods with proposed siding and roof, looking like one structure with three different color options for the Board to select: Green, Grey or Natural Brown. Rendering shows beams down the front side of pods and back to prevent shifting movement and a slope roof with gable ends.  Mr. Vitolo noted on August 11, 2023, the State of New Jersey Cannabis Regulatory Commission approved of these cultivation pods on this site should the Board approve application.

 

Mr. Clark explained that the wood siding is directly reinforced to the steel with no part of the wood touching the ground.  Ms. Kopsco stated the proposed colors are in compliance with the Township Ordinance per planning perspective. 

 

Mr. Williams stated the water conservation plan shows 367 gallons/day estimated with offsite disposal and questions why it can’t be reinserted into the septic.  Mr. Clark stated as part of the water treatment process, concentration of minerals and salts in wastewater does not bode well with the septic tank.  Mr. Williams questioned what percentage of cultivated product is being used as finished product and what happens to the remainder.  

 

Miles Perryman, Director of Cultivation was sworn in to testify for the Applicant. He stated 85% of cultivated cannabis is used for products and the remainder is sent to a licensed company and regulated by NJCRC to dispose of green waste.

 

Board questioned how applicant is handling variances requested for signs and parking.  Attorney Kienz noted that the Board previously did not state issues with variances requested in prior hearing and Reconsideration included only three items listed by counsel.  Board noted testing of odor levels was discussed previously but no documentation was presented by the Applicant.  Mr. Vitolo stated all testimony presented is on record and the Applicant is bound if approval is granted.  He added a company can be retained to certify compliance of odor level but noted proposal is per best practice industry standard. 

 

Attorney Kienz stated testimony has been made previously that an odor report will be submitted monthly and annually to the county health department and noted this hearing is for items of reconsideration.  Public Members speaking out of order.

 

Mr. Vitolo explained the Highlands Council stated the water availability is sufficient to the site and also required a water conservation plan per condition of approval.  Mr. Clark added that prior testimony indicated ownership of business is looking at options to improve water usage and has now added a water purification system which reduces the wastewater aspect.  He added ownership worked diligently on process side to reduce the numbers significantly from initial estimates of 12,000 gallons/day to now down to 4,887 gallons/day.

 

Board questioned the need for the proposed 112 cameras, but Security Expert witness was not present.   Mr. Vitolo asked if the Board wanted less security and explained the facility is for cultivation with no cash on hand and it is set back from the roadway.  Expert testimony stated measures taken to make sure the site is safe and secure with fences used primarily to keep wild animals from entering.  He added security equipment is recommended by expert to make it the safest facility in New Jersey.  The majority are internal cameras as required by the NJCRC with 10 being added to site poles inward facing. 

 

Chris Dowling, an owner of Sussex Cultivation, LLC was sworn in and testified that 95% of the cameras are inside of the greenhouse per NJCRC requirements to monitor entire growth process and there are no cameras by the roadway. 

 

Board Member questioned if pods are moveable or permanent.   Mr. Clark stated the pods are anchored together subject to all building codes with foundations but are able to be detached if necessary.

 

Chairman Theobald opened the hearing to the Public.

 

Sally Rinker – stated the Township Council recently discussed the current Ordinance for possible revisions due to improper vetting at the time of adoption.  Ms. Rinker noted, said application was previously voted down, providing new opportunity for the applicant to ask the Board for more in depth analysis and recommended not to rush any decision of approvals.  She stated the Township Council did vote affirmatively for support of this application and it is a permitted use but opined that the Land Use Board has jurisdiction over permitted uses.  She felt the applicant or landowner is confused over who has authority as evidenced by unpermitted state of project, now halted with a stop work order by Vernon Township. Ms. Rinker added the 6/27/23 letter by Highland Council determined the disturbance issues in a Preservation Area without required permits.  She listed five conditions from letter to any approvals: Copies of Final Plan and Resolution; Landscape Plan; Water Usage Plan; Exchange of good land for premature disturbance area of 5.88 acres; and outside agency approvals and NJ pollute permit for Wastewater discharge. Also required is LOI from NJDEP for wetlands location with all site structures and disturbances.  Ms. Rinker explains the numerous outstanding items required will take time and expense and urged the Board not to grant final until all have been completed. The Vernon Township zoning code allows steel containers in LI (light industry) zones but not in R2 and when joined together must adhere to building codes.  Ms. Rinker noted there is more to accomplish than what the applicant expected due to the site being in the Highlands Preservation Area and recommends only preliminary stie plan be approved to be equitable subject to fulfillment of all the conditions and requirements.

 

Mr. Vitolo stated applicant has been working with the Highlands Council for a long time, with site visits to determine water usage plan and stated all conditions will be met 100%.

 

Stephanie Blaine – listened to testimony about decreased water usage and expressed concern of potential overdrawing of water and how it will affect wells and property values.  She requested more clarity for public to understand and recommended clearly defined contingencies be included with any approval.

 

Louis Blaine – noted the number of hurdles the application must overcome with approvals, permits, water plan but with no mention of enforcement or penalties if criteria is not met. Mr. Blaine stated the water amounts are speculative under best conditions proposed but questions when goals are not met how it will affect the community.

 

Charles Peck - referred to #4 of Highlands Council letter, mitigation of disturbance caused due to activity prior to site visit but not able to show impact to resources.  He urged the Board to postpone decision until all information and all Highlands Council submittals are in hand or stop construction of facility.  Mr. Peck stated the R2 exception for cultivators, per code 330-160, requires 6-acre minimum but site is only 5.88 acres with no mention of variance needed. He questioned if conservation easement was submitted for land swap item and if responsibility of taxes falls on the lessor or lease.  He opined flaws in how application was structured due to numerous significant waivers for facility to occur and suggested finding other land that has less impact to community. Mr. Peck is concerned for Public Safety as deliveries are made in chase cars with armed guards drawing in criminal activity to a residential neighborhood with school bus stops nearby. He noted decrease in water usage proposed but questioned how amounts were calculated.

 

Mr. Vitolo stated the property is 79 acres and 5.88 acres is the area of disturbance.  He added with respect of mention of chase cars, product is cultivated on site and then moved to other site for processing and while need is minimal for security, the applicant chose to use best practice for safest facility in New Jersey.

 

Heidi LeBris – noted Applicant’s Attorney should not be speaking during public time. Ms. LeBris questioned when and what type cannabis license was received by applicant as mention of Class 1 and Class 2 was found in paperwork.  She expressed concern with water usage and potential of well trouble for community and urged Board to vote down application.

 

John Dayon - expressed concerns brought forward previously by public.  He added the land is not owned by organization or where it is being processed on Maple Grange Rd which may leave water issues or damages left to community.  He questioned if insurance policy or bond can be condition to cover any issues.

 

Ann Larsen – questioned how and why applicant submitted request to use 12,000 gallons/day then lowered the proposal to 4,887 gallons/day and is concerned for residential wells nearby.  Ms. Larsen opined applicant is promising revenue for Township but does not feel confident it will come.  She noted application will harm local wells with no way to remediate and feels business is not good for Vernon. 

 

Kathleen Geary – stated the site is 78 acres but questioned if applicant is only leasing the 5.88-acre portion as noted in the Highlands Council letter.  She added further review of lease agreement should be done to determine responsibility of tax payment for future so farmer and Township are protected.     

  

Aaron Glickman – currently in a master’s Cannabis program with no stake in applicant’s business opined applicant has addressed every requirement put before them. He added that Cannabis is the most regulated industry enforced by the NJ Cannabis Regulatory Commission.  He noted an illicit market in town exists without any approvals but this organization is following every law and requirement to make it as safe as possible, in the most regulated industry, and should have the support of the town.  He added effects of cannabis do not come from the smell or eating the plant.  He opined this fight to stop legal cannabis is so counter productive and allows the illegal market to flourish hurting our community and families and the public should support the legal market and educate your children and neighbors every way possible. 

 

Patrick Distasi – stated he has worked as a land developer with many agencies outlined in this hearing and opined that the application has ambiguous language and does not know how this will move along reasonably.  He added there were five valid comments from the board and nine valid public comments and questioned if it makes business sense to move forward.  Mr. Distasi recommended a committee be formed to open dialogue between the applicant, public and township to fill in the blanks so Vernon can take advantage of this funding opportunity.

 

Bonnie Sybesma – stated favorable for growth of legal cannabis but it does not belong one mile from Township school.  She mimicked legality of guns and questioned if gun factory belongs in residential zone and near school.  Ms. Sybesma questioned how enforcement of lighting, parking, and water usage on a daily basis will be handled and, in the future, if it needs to change.  As a mother, she asked the Board if they would like to live across from a cannabis cultivation site and sited examples in other states of medical issues.  She questioned if the Township wants a security risk with armed guards one mile from the school.  Vernon is an amazing town to raise children for the health and safety of its citizens and the Township should not approve application just for the money.

 

Seeing no one further wishing to come forward, Chairman Theobald closed the hearing to the Public.

 

Mr. Vitolo stated he listened and respected the public’s comments but quoted Patrick Moynahan, “You are entitled to your opinion, but you are not entitled to your own facts.”  Cannabis Cultivation is a permitted use in the R2 zone as determined by the legislative body of Vernon Township.  Per the testimony at the hearings, the Board will make certain findings and give approvals with conditions to follow all rules applicable.  If the rules are not adhered to, there are mechanisms like all other Land Use Board applications that will bring the applicant back into compliance.  As a new industry, the applicant did anticipate and understand the trepidation of the public about how this would unfold and will respect all opinions on the matter.  Mr. Vitolo stated the Applicant promises that operators will use best practices, submitted in plans & protocols that go beyond what is requested by Ordinances and rules applicable to cannabis cultivation.  He reminds the Board that application is for a cannabis cultivation facility, a farming operation, growing product that is then transported to be processed then eventually sold. 

 

Mr. Vitolo explained the applicant went to the Highlands Council first because they are the body that governs what occurs in the Highlands region.  After site visit, evidence considered all uses and determined cultivation is agricultural and allowed in the Highlands region.  He noted many conditions in the Highlands correspondence that the applicant has to meet and satisfy to operate business which cannot be simply ignored.  The applicant put significant investment of time, effort, and funds to make this operation work and is continually planning to move forward.  In summary, cannabis cultivation is a permitted use by the Township Council, applicant has made application, presented evidence and testimony to meet burden of proofs.  Applicant will work with concerned public and community for safe operations that meets all conditions or parameters set by the Board and looks forward for a successful facility.

 

Attorney Kienz stated application is for Preliminary & Final Major Site Plan for the construction of a Greenhouse, Eighteen (18) Cultivation/Support Pods, one Utility Shed, and related site improvements for a Cannabis Cultivation Facility with variances/waivers as testified and discussed subject to all conditions in Engineer’s and Planner’s reports and all other agency approvals.

 

Board questioned if approval is granted, no work on property will be done until compliance of all conditions set by all agencies are met. Attorney Kienz added condition to resolution that Applicant’s professionals will provide certification to the Board that they are in receipt of all other agency approvals.

 

Board questioned need for chase car/lead car for security purposes and requested reconsideration of process.  Mr. Vitolo stated applicant will agree to review security plan with Engineer for modifications to be less onerous but also meet standards by State of New Jersey. Board questioned if water usage will be metered for monitoring purposes.  Mr. Vitolo stated request is reasonable and reports on monthly basis will be provided to the Zoning Officer and Highlands Council within the confines of law for enforcement of compliance.  Mr. Stoner asked Board of color choice for pod structure. Board discussed and voted in affirmative for green color. 

 

Motion: Motion to Approve LU# 2-23-4 Preliminary & Final Major Site Plan for the construction of a Greenhouse, Eighteen (18) Cultivation/Support Pods, one Utility Shed, and related site improvements for a Cannabis Cultivation Facility; based on all discussions, conditions and testimony was made by Mr. Whitaker.  Motion was seconded by Mr. Tadrick and noted that use is permitted by law by previous Township Council. Mr. McPeek stated the Land Use Board sent a recommendation to the Township Council to remove the permitted use in a Residential zone, but Council did not make the change.  Mr. Williams stated additional testimony presented satisfied concerns on water allocation through water conservation plan, lighting, and odor.

ROLL CALL: WILLIAMS: Y; TADRICK: Y; MCPEEK: Y; COCULA: Y; WHITAKER: Y; HALEY: N; MITCHELL: N; MELE: Y; THEOBALD: Y.

Motion Passed.

Public Participation

Chairman Theobald opened the meeting to the Public for items other than on the agenda.  Seeing no one wishing to come forward, Chairman Theobald closed the meeting to the Public.

 

Resolutions

 

LU# 6-23-9- Phil Huling – Block 471, Lot 7, - Rear and Side yard Variance for a Deck

Eligible to vote: Williams, Spoerl, Cocula, Whitaker, Haley, Heftler, Theobald

Chairman Theobald read title and asked for Motion to Approve.

Motion: Motion to Approve Resolution for LU#6-23-9 was made by Ms. Cocula and seconded by Mr. Williams.

ROLL CALL: WILLIAMS: Y; COCULA: Y; WHITAKER: Y; HALEY: Y; THEOBALD: Y.

Motion Passed.

LU# 12-19-10 – Martin Theobald – Block 57, Lots 4 & 5, Block 58, Lot 7, - Site Plan with Minor Subdivision Request for Extension of Time

Eligible to vote: Williams, Spoerl, Cocula, Whitaker, Haley, Heftler

Vice Chairman Spoerl read title and asked for Motion to Approve.

Motion: Motion to Approve Resolution for LU#12-19-10 was made by Ms. Cocula and seconded by Mr. Williams.

ROLL CALL: WILLIAMS: Y; COCULA: Y; WHITAKER: Y; HALEY: Y.

Motion Passed.

LU#5-23-7 – Restoration Agriculture, LLC – Block167, Lot 11, - Preliminary & Final Site Plan with Bulk and Use Variances for a Farm-to-Table Restaurant and Banquet Hall

Eligible to vote: Williams, Spoerl, McPeek, Cocula, Haley, Mitchell, Heftler

 

Ms. Haley requested Resolution be carried until Meeting Minutes were complete.

 

Motion: Motion to carry Resolution for LU#5-23-7 was made by Ms. Cocula and seconded by Ms. Haley.  All Members were in Favor. Motion Passed.

 

Appendix A – escrows, board fees, bond reductions and escrow closure

 

There were no Board Fees to Approve.

Adjournment

There being no further items of business to be conducted on the agenda, a motion was made by Mr. Williams and was seconded by Mr. Mele.  All Members were in favor.

Meeting was adjourned at 9:04 pm.

Respectfully Submitted                        

Irene Mills, Recording Secretary