Borough of West Cape May

The Regular Meeting of the Borough of West Cape May Planning-Zoning Board, held at the Municipal Building, 732 Broadway, was called to order by Chairperson Novak at 7:00 PM. After reading the Open Public Meetings Act of 1975 he led all present in the flag salute.

ROLL CALL:
Members:
            Doris Jacobsen           present             Dick Rigby                 present
            Art Joblin                   present             Chris Shriver             present
            Pam Kaithern present             Chris Wood               present
            Gary Novak               present             Alternates:
            Kevin O’Neill present             Mark Kulkowitz         present
            Diane Rea                  present             Archie Garnett            present

Also Present:                Brock Russell, Esq., Board Solicitor
                                    Ray Roberts, P.E., Board Engineer
                                    Elaine Wallace, Recording Secretary

Brock Russell swore in Archie Garnett as the newly appointed Alternate II. Mr. Garnett did not vote on any of the actions during this meeting.

MINUTES:
On motion of Chris Wood, seconded by Art Joblin, the minutes of September 25, 2007 Work Session were approved on roll call vote as follows: Jacobsen, Rigby, and Shriver abstaining, all other members present voting in the affirmative.

On motion of Art Joblin, seconded by Chris Wood, the minutes of October 23, 2007 Regular Meeting were approved as corrected on roll call vote as follows: Rigby and Shriver abstaining, all other members present voting in the affirmative.

RESOLUTION:
APP 08-07, Thomas Cupp, Block 53, Lot 1.02, 2, Pacific Avenue: On motion of Chris Wood, seconded by Doris Jacobsen, this resolution was approved on roll call vote as follows: Kaithern, Rigby, and Shriver abstaining, all other member present voting in the affirmative.

APPLICATION:
Application 04-07, James Pointer/Daniel Wesler, Block 37, Lot 9, 11, 422 Broadway:
Solicitor Russell explained that the applicants’ previously received a use variance and are now asking for relief from some of the conditions. Because this is a D variance hearing Kaithern and Rigby recused themselves. Solicitor Russell swore in the following: Louis Dwyer, Esq., Jim Pointer, Dan Wesler, and Vince Orlando, PE. After listing Mr. Orlando’s credentials as an Engineer, Solicitor Russell acknowledged him as an expert witness. Vince Orlando gave a brief history of the previous application for this property and reviewed the facts about the site. The owners are asking for relief from the condition put upon their previous approval that restricts them from offering take-out service. Mr. Orlando gave testimony on other restaurants that provide take out, even though it is prohibited by Borough Code. At the conclusion of Mr. Orlando’s testimony, Lou Dwyer advised that there were some collateral matters, but asked the Board if they’d like to segregate the D variance. The Board agreed. Engineer Roberts had no comments on the D variance portion of the application. The Board members asked questions of the applicants including clarification on operating hours and the nature of the take-out aspect of the business. The applicants explained that they would only offer take-out to people who call or come into the restaurant. There would be no take out window or drive-thru service.

Chairperson Novak opened the hearing to property owners within 200 feet.

David Serdynski, 500-502 Broadway, was sworn in by Solicitor Russell. Mr. Serdynski objected to allowing take-out after the applicants swore during testimony for original approval that they would absolutely not have take-out. He was opposed to letting the applicants provide take-out and with the Borough not enforcing the provisions of the original resolution of approval. Mr. Serdynski had other comments, but was asked to address just the use variance at this time. Mr. Dwyer explained that the applicants started serving take-out as a way to stay competitive with other businesses in town, but they stopped after the first summons was issued by the Borough.

Thomas Cupp, 501 Pacific Avenue, was sworn in by Solicitor Russell. Mr. Cupp felt that if the ordinance was going to be enforced, it should be enforced for everyone, not just the applicants. He felt the applicants are good people working to make their business succeed.

When no one else from within 200 feet wished to speak, Chairperson Novak opened the hearing to the general public.

Vicky Smith,121 Third Avenue, was sworn in by Solicitor Russell. Ms. Smith identified herself as Mr. Serdynski’s daughter and asserted that allowing the applicants to provide takeout just because other businesses do is poor reasoning. She felt the ordinance was written for a reason and should be enforced. She also testified that the type of food served by this business puts very strong odors in the air and allowing take-out would increase the problem.

Doug Carnes, 133 Myrtle Avenue, was sworn in by Solicitor Russell. Mr. Carnes supported the variance and was in favor of allowing restaurants to provide take-out because it promotes and grows businesses in West Cape May. If the restaurants in West Cape May can’t provide take-out, residents and visitor will go elsewhere to meet their needs. As a representative of the West Cape May Business Association, he expressed its support for the variance, as well.

Jimmy Labrusciano, 127 Myrtle Avenue, was sworn in by Solicitor Russell. Speaking as the out-going president of the West Cape May Business Association, the applicants have always helped the Association and supported the community. He stated that the businesses need to have take-out to stay competitive.

Pam Kaithern, 207 Stevens Street, was sworn in by Solicitor Russell. Ms. Kaithern spoke to the fact that the original resolution prohibited take-out, so the applicants had to appear before the Board to ask for a change.

Diane Flanegan, 324 Broadway, President of West Cape May Business Association, was sworn in by Solicitor Russell. Ms. Flanegan felt the applicants were following the proper procedure with the Planning Board and the Board should consider the change. The Business Association appreciates the support that the Borough gives to the businesses.

When no one else wished to speak, Chairperson Novak closed public hearing.

Lou Dwyer summed up his clients’ position. Solicitor Russell reviewed the facts of the previous resolution and testimony given at this hearing. Taking the most conservative view, a D variance is required to allow take out service.

Chris Shriver made a motion to approve the D variance to allow take-out service with the condition that there will be no take-out window or drive-up service, people must go into the restaurant to pick up food, and patrons are permitted to take home leftovers from the premises. Chris Wood seconded the motion which was approved on roll call vote as follows: all members present voting in the affirmative (Kaithern and Rigby recused).

Vince Orlando gave expert testimony on the issues of site plan that were addressed by Board Engineer Roberts. The applicants, stating they have a very large parking lot, were willing to have a dedicated space for take-out customers and for loading/unloading of deliveries. The applicants were also asking to amend the original site plan to allow them to open the three kitchen windows on the back of the building. Lastly, the owners would like to change their sign from parallel to the building to perpendicular to the road for better visibility. They will meet all of the sign regulations and will submit plan to Mr. Roberts for review. Because this was part of a previously approved site plan, the owners would like to get approval for the amendments. When asked to stipulate that they would not have delivery trucks park on the street, Mr. Pointer explained that they could ask them to park in the lot, but couldn’t require it. Sometimes the trucks park on Broadway to deliver to both his establishment and Westside Market. Chairman Novak clarified that the applicants had agreed to have deliveries before 4 PM, but are now asking to just conform with the Borough Code that limits loading/unloading between 10 PM and 8 AM. After some discussion, the applicants agreed to designate the area between the buildings as the dedicated loading/unloading space.

Chairperson Novak opened the hearing to property owners within 200 feet.

David Serdynski, 500-502 Broadway, did not object to allowing the applicants to open the kitchen windows on the rear of building, as long as they didn’t open the kitchen window on Fifth Avenue. Mr. Serdynski objected to changing the parking and hours of operation. He also objected to allowing the trash trucks to pick up trash in the parking lot when the lot was full of customers, feeling it is a safety issue. Mr. Serdynski’s biggest problem was with the smoke and odor coming form the restaurant, particularly from the deep-fried foods. The exhaust is so bad, he can not open his windows and he has lost tenants because of it. Mr. Novak asked Mr. Serdynski to stick to the matter of the site plan being considered. Mr. Serdynski stated that during their original testimony the owners agreed to have an exhaust fan placed on the south side of the building close to the ridge. Such placement would put the smoke over the properties and help eliminate the worst of the problem and he felt a good neighbor would take such an action.

Mary James, 2 East Mechanic Street, was sworn in by Solicitor Russell. Ms. James objected to a restaurant being allowed to open its windows in a dense residential area.

Barbara Serdynski, 500-502 Broadway, was sworn in by Solicitor Russell. Mrs. Serdynski was opposed to changing the stipulations that the applicants agreed to, in order to get their original approval. She remembers many people being present during the original hearings and being opposed to the application and wanted to board to understand that if they changed the conditions, it would be against what the public wanted.

When no one else within 200 feet wished to speak, Chairperson Novak opened the hearing to the general public.

Vicky Smith, 121 Third Avenue, asserted that the applicants agreed to many of the conditions under duress to get their original approval and are now coming to the Board hoping that the new faces would help them eliminate them. Ms. Smith did not object to the back windows being open but expressed concerns over the vent. Mr. Dwyer said that although it would be a hardship, the owners would move the exhaust fan to the roofline on the south side of the building by April 30, 2008.

When no one else wished to speak, Chairperson Novak closed public portion.

Chris Wood felt it would be unwise to designate a specific space for take-out, fearing it could cause set a precedent for eliminating a space. Mr. Dwyer agreed, preferring to designate just a loading/unloading space.

Chairperson Novak asked for a motion to approve the site plan amendments with the conditions that loading/unloading will be done in accordance with the Borough Code in a specified space, the back three kitchen windows will be allowed to be opened, but the one facing Fifth Avenue would remain closed, the issues from Engineer Roberts report will be rectified and a new vent will be installed on the roofline on the south corner of the building. Art Joblin made the motion, which was seconded by Chris Wood, and passed on roll call vote as follows: all members present voting in the affirmative (Kaithern and Rigby recused).

The Board took a break from 9:10 to 9:17 PM.

PRIVILEGE OF THE FLOOR:
Bud McDonough, President; Mike Bean, Vice-President; and Joe Gilmarten, Treasurer, of the West Cape May Taxpayers Association appeared before the Board to present an alternative to the FAR. What they proposed was a sliding scale based on the maximum buildable space on a lot. Dick Rigby preferred to wait and see how the new regulations work out before considering any changes. Mr. McDonough asserted that changes had already been made to the ordinance, this wouldn’t be any different. Mrs. Kaithern explained that planning is not static, and the Borough is always glad to have input from the public. Chairperson Novak thanked the representatives of the Taxpayers Association for their suggestions, but in deference to the time, they members would read the recommendations and consider them at a later time.

When no one else from the public wished to speak, Chairperson Novak closed the Public Portion.

ADJOURNMENT: On motion of Kevin O’Neill, seconded by Chris Wood, and carried by unanimous voice vote, the meeting was adjourned at 9:54 PM.

Respectfully submitted,

Elaine L. Wallace
Recording Secretary

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