Fisher Hearing Continues with Focus on New Truck Traffic
The June 25 regular meeting of the Delaware Township Board of Adjustment heard testimony from Frank Banisch on behalf of applicant Charlie Fisher, who is seeking a variance to establish a commercial water pumping operation on land currently zoned for agricultural and residential use. Banisch is a professional planner, highly respected in the field, with thirty years’ experience in Hunterdon County.
Banisch said “I am very happy to be part of this application. The reason I got excited about it is that…using renewable resources in ways that make sense is exciting, as it will produce income that will allow the owners to avoid building houses on the farm.” Avoiding putting houses on the four approved building lots created by the applicant’s father, the late Henry Fisher, was in Mr. Banisch’s opinion one of the major benefits of the proposal: he mentioned it over thirty times in his oral testimony, and another dozen or so times in a written report he submitted to the Board.
In testimony Mr. Banisch also mentioned that the State Right to Farm Act allows commercial operations on farms, although he did not intimate that that Act would entitle an applicant to a non-permitted use and circumvent the Municipal Land Use Law that requires these hearings.
Mr. Banisch testified that “DEP has issued permits for the springhouse boxes that will replace the older and deteriorated collection devices so that the springs will be up to DEP standards and the spring water will be pumped from the springboxes to an array of three tanks…” Mr. Banisch was describing the tanks when he was interrupted by Mr. George Dilts, Esq, attorney for Mr. Fisher.
DILTS: “Frank, I just want to stop you there; there were two permits, one was the right to construct the water lines, the other was the General Permit Number One; they were originally attached to our application… So let’s do this: I’m showing you a DEP, Department of Environmental report, uh, Stream Encroachment Permit, it says to construct new water lines under an unnamed tributary of the Wichioke [sic] Creek; it’s dated Feb. 27, 2003, and that was the permit which allows Mr. uh Fisher to divert, uh water, correct?, and build…”
BANISCH: “The Department allows him to disturb that stream corridor area for the pipes to carry the stream water over to the tanks, so these are the permits that let those disturbances take place”.
DILTS: “OK. I just wanted to, I really appreciate that. And the second one is just the General Permit Number One and that allows him to disturb the area”.
BANISCH: “It’s dated September 1, 2006”.
DILTS: “Thank you”.
In seeking Mr. Banisch’s assent to the statement that Mr. Fisher has a “DEP permit which allows Mr. Fisher to divert water”, Mr. Dilts appears to mislead his witness, as well as possibly the Board: but not the Board’s Attorney. Mr. Steven Goodell, Esq., intervened at this point.
GOODELL: “Just to clarify: these are both disturbance permits; these are not water allocation permits. Correct?”
DIILTS: “[coughs] I take it, this moment, I think that’s correct – yes.” [Long pause] “Just to construct the waterlines and disturb the wetlands, yes”. [Long pause] “Continue, Frank, I’m sorry”.
Mr. Banisch never elaborated on what “DEP standards” for the spring he was referring to.
As the Board’s hydrogeologist Matt Mulhall explained later in the evening, a diversion of 43,200 gpd such as Mr. Fisher is seeking falls into a “broad area that is unregulated by the DEP; water diversions under 100,000 gpd are not covered by any regulatory authority”. Mr. Fisher has often testified that he has “all the necessary DEP permits”, which is true. He has been given three separate temporary disturbance permits to construct a temporary flow monitoring apparatus; to rebuild the springboxes; and to lay the pipe from the springboxes to the silos. None of these three permits will last throughout the life of the water pumping operation, and none of these three permits allow Mr. Fisher to establish his commercial water pumping operation; that is the subject of these hearings.
Mr. Banisch’s testimony continued with his opinion on how this water operation “substantially advances a number of the objectives that are reflected in your most recent Master Plan”. In a brief time he intimated in ten different ways that Mr. Fisher could build houses on the property if he were denied the variance.
Mr. Banisch went on to imply that the operation for which the variance is sought – pumping 24 hours a day to store water in tanks, and trucking it off site in a fleet of nine 18 wheel tractor trailers, is similar to the prior dairy operation: “taking the same spring water out of the ground, pumping it across the same creek and storing it in the same buildings, is part of what historically happened on this site”.
Mr. Banisch invoked the specter of development another score of times in the next brief space of his testimony, as “residential intrusion”, “penetration by development” and “disappearing landscape” He offered his remedy: “If successful, Mr. Fisher intends for those four units not to be constructed”. And conjured up his vision of “preserved lands”, “green gateway” and “rural and agricultural heritage”. He stated that “This proposal leaves practically everything about the property intact, with the addition of three tanks and some modifications to the driveway”, before plunging into his portrayal of how the proposal would benefit the entire community.
“The thing that’s special about this is that this is extra water. … It seems to meet the proper concerns of the DEP in the issuance of these permits”. Later in the evening during the public comment period, Township resident Margaret Schenk commented that there really is no “extra” potable water, and Mr. Banisch agreed that he might have misspoken.
Under New Jersey law, the type of variance Mr. Fisher is seeking can only be granted after a consideration of both the “positive and negative criteria” – the pros and cons of the application, There must also be a determination that there is no “substantial detriment” to the community or its zoning regulations or Master Plan. Mr. Banish’s argument relies heavily on the avoidance of the four houses that were created on the site by Henry Fisher, and any additional houses that could be built on the lands remaining.
Mr. Banisch concludes that “what you want to see preserved is preserved, what you want to avoid [houses] you do avoid. What there is, is truck traffic. We won’t hide that”. Addressing the negative criteria, Banisch simply issued a blanket statement: “In terms of the negative criteria, I don’t believe there is any substantial detriment to the community”.
With that Mr. Banisch concluded his testimony and accepted questions from the Board.
Delaware Township’s professional planner Betsy McKenzie asked Mr. Banisch whether the Fishers had decided to retire or retain the development rights to the property. Mr. Banisch replied that not building the houses was in the best interests of the water operation, for water quality purposes; that there were two options: for the owner to retire the development rights voluntarily or to sell them to some agency; and that the Fishers had not yet decided which would be the best course for them: “I’ll let them speak for themselves”.
It should be noted, though, that the Fishers’ choice of agencies to preserve this farm may be limited by their past history. In the reading file for this application there are copies of correspondence between the Fishers and the SADC regarding an earlier attempt to preserve the farm. SADC offered to buy Spring Meadow Farm in fee simple to preserve it, just as it had done with the Fisher farm across Reading road. Henry Fisher negotiated this deal while Charlie was planning his water operation. For SADC, the plan to establish a commercial operation on a preserved farm was a deal-breaker; this was compounded by the location across the road from another preserved farm. SADC offered Henry the choice of either abandoning the water operation or dropping out of the preservation program. Henry chose the latter course. SADC considered suing the Fishers for expenses, but let the matter drop.
Board Attorney Goodell asked Mr. Banisch whether his opinion on the negative criteria would be changed if it were established that in addition to the water trucks on this road there would also be farm vehicles from other operations on the farm. Mr. Banisch dismissed the question, replying that when he moved to the area over thirty years ago someone put a flyer in his mailbox reminding him that he was in the country and would be exposed to the sights and sounds and smells of agricultural operations, and he was accustomed to that.
CROSS EXAMINIATION BY MR. LANZA
Seeing that there were no further questions from the Board, Mr. Goodell called Mr. John Lanza Esq., attorney for objector Mr. Robert K. Hornby, to cross examine Mr. Banisch. After an exchange of greetings, Mr. Lanza got right to business.
LANZA: Sir, I reviewed your report and heard your testimony with regard to the zone, which you characterized as the A1 zone, but isn’t it in fact the A2 zone?
After an awkward moment’s consultation of the zoning maps, Mr. Banisch conceded that it was in fact the A2 zone.
LANZA: And if it’s the A2 zone it’s not 3-acre zoning but 6-acre zoning: is that correct?
BANISCH: That’s correct.
LANZA: Now the property in question has four 6-acre lots approved and there’s approximately 40 acres left: is that correct?
BANISCH: That’s correct.
Under questioning by Mr. Lanza, Mr. Banisch testified that he had reviewed the site plan; there is a C-1 stream buffer on the property that limits development potential; there may be the potential for two more building lots on the farm.
Mr. Lanza asked Mr. Banisch, who used to be Delaware Township’s planner, whether he had known, when he formed his opinion that the operation would cause no significant detriment to the Township, that the tractor-trailer trucks that would operate from this site were 8 feet wide and 58 feet long, and would carry 5,000 to 6,000 gallons of water? Mr. Banisch said he had not known that; he had been told that the trucks were comparable to the milk trucks formerly used here.
LANZA: And the empty weight of the trucks would be approximately 29,000 pounds, correct? And you didn’t know that these trucks would weigh approximately 79,000 pounds fully loaded?
Mr. Dilts tried to interrupt this line of questioning:
DILTS: These questions are for our engineer, not our planner. I had to take these people out of order to keep this matter moving. If you would like we can have our engineer testify who will go into those details and then you can ask him these questions.
LANZA: This man is a planner; he gave an opinion that there was going to be no significant impact by this operation in this area.
GOODELL: I think we can continue; it is cross-examination; if Mr. Banisch doesn’t know it, he can say I didn’t know it, it didn’t form part of my opinion.
LANZA: Mr. Banisch, are you aware or aren’t you aware that as stated in the site plan for the application that the loaded weight of the trucks is approximately 79,000 pounds?
BANISCH: I didn’t have a complete recollection of that number, no.
Mr. Banisch finally conceded that he was aware that these were 5-axle, 18-wheeler tractor trailers: “I was aware of that – I knew these weren’t pickup trucks”, and cross examination continued. But he was reticent about his knowledge of the width of the road and the impact the big trucks could have on it: “I’m not a traffic engineer”. Pressed on the matter, he offered: “I’ve been living here since 1976 and I assumed the road was between 16 and 20 feet wide.
LANZA: Now, the milk trucks that went into the farm: that was eight trips a week, correct?
Mr. Banisch did not remember. Testimony at the July 9 meeting by Frank van Horn, who used to drive the trucks that picked up milk at the Fisher Farm, revealed that pickups were made every other day, or 7 trips in two weeks. These trucks were 8 feet wide, 58 feet long, and had a loaded weight of 79,000 – 80,000 pounds. In this they were nearly identical to the trucks proposed for the water operation; the significant difference is the number of trips. For the dairy operation there were 7 fully loaded trips in two weeks; for the water operation there would be 108 fully loaded trips in the same time period.
LANZA: But you never compared the number of 18 wheeler tractor trailers that would be involved in the dairy operation and the number of trips that were made, with the number of trips proposed in this application? And when you gave your opinion that there would be no negative impact of this operation, did you take into account that the road was 18 feet wide and the 8-foot wide trucks would have to pass by school busses operating on Locktown-Sergeantsville Road?
BANISCH: Anybody who drives in Delaware Township knows that there are large vehicles on the road all the time.
Mr. Lanza pointed out that the tractor trailers for the water operation would operate 52 weeks a year; he asked Mr. Banisch to concede that when it snowed, the width of the roads could be narrowed.
BANISCH: I think we have to assume that there is 24 hour a day 7 day weather, and I did not assume that there would not be snow.
Mr. Lanza established that this operation was the only place that such frequent traffic by heavy 18-wheelers would exist in rural Delaware Township. He then introduced the Amendment to the Circulation Element of the Delaware Township Master Plan, dated June 28, 2005, and distributed copies to the Board. He directed Mr. Banisch’s attention to page 2, goal 25, which is “to preserve the rural character of existing Delaware Township roads”.
LANZA: So, Locktown-Sergeantsville Road where those 18-wheelers would be operating is deemed a rural roadway, is that correct? And the Master Plan states that these rural roads and bridges should not be altered to accommodate increased traffic; instead these roads should be preserved in their current state to preserve Delaware Township’s rural heritage? Correct?
LANZA: So when you gave your testimony and opinion, did you consider those goals with regard to 18-wheelers coming up and down Locktown-Sergeantsville Road?
BANISCH: There certainly is going to be an impact on the character of the traffic. But the greatest impact on the rural character of this area is going to be permitting those  houses to be built.
Mr. Lanza asked whether Mr. Banisch meant the two additional houses that might be approved under current zoning. Mr. Banisch said he meant the four houses already approved. Mr. Lanza asserted that Mr. Bansich could not know whether those houses would be built. Mr. Banisch replied that based on representations made to him by Mr. Fisher, he believed they would be.
Mr. Goodell commented that the Board would rely on Mr. Fisher’s future testimony to clarify his intentions to develop the property. The property is currently owned by Mr. Fisher’s mother.
LANZA: Now what this application would do if granted, is that this use would be granted in perpetuity? This application would be introducing this tractor trailer traffic into this rural area forever, correct? And that traffic could turn right from Ferry Road onto Rt. 523 and come into the village, right by this building where we are now, couldn’t it? Did you consider that when you gave your opinion that this operation would have no significant impact on the Township?
BANISCH: We’re talking about traffic that is such a transient element for the amount of time that it occupies the civic space that … trucks drive through Sergeantsville all the time.
Under repeated questioning by Mr. Lanza, Mr. Banisch conceded that there was no shoulder on Locktown-Sergeasntsville Road. Throughout his testimony Mr. Banisch made much of his long residence in Delaware Township; finally, Mr. Lanza challenged this credential:
LANZA: Did you consider when you gave your opinion that the 18-wheelers coming in and out would be sharing this rather narrow roadway with the pedestrians and bicyclists?
BANISCH: For the type of road that this is in Delaware Township there are pedestrians and bikes and all kinds of traffic. I drive by these people all the time so I am extremely aware.
LANZA: Do you drive an 18-wheeler?
Mr. Lanza asked whether Mr. Banisch considered wear and tear on the Township road by the trucks. Mr. Banisch said only that he did not think any bridges would need to be replaced to accommodate the traffic. Mr. Lanza asked about the noise of the trucks: the backup horns, jake brakes, etc. Mr. Banisch said he hears traffic noise every morning and didn’t think that compromised quality of life.
Mr. Lanza said he had no further questions for Mr. Banisch; the meeting was opened to public comment.
Ms. Margaret Schenk stated her concern that there really is no “extra” potable water; Mr. Banisch agreed that the term may be inappropriate.
Board Member Emmons asked what could happen to the traffic if the type of farming operation changed.
Board member Dalgiewicz asked about the size of trucks and whether the hours of operation could be scheduled to avoid school busses.
Mr. Robert M. Hornby asked how any of the conditions of the trucking operation could be known while Mr. Fisher does not have a contract with a trucking firm. These and other questions on traffic were deferred to later meetings, and the June 25 meeting adjourned.