BOROUGH OF WEST CAPE MAY
PLANNING-ZONING BOARD
REGULAR MEETING – March 11, 2008

The Regular Meeting 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:

Alternates:

Also Present:

Resolution APP 01-08, Alexander Johnson, Block 44, Lot 16, 306 Fourth Avenue
On motion of Chris Shriver, seconded by Doris Jacobsen, the resolution was unanimously approved on roll call vote after Fact Finding 4 was amended to strike “as in his previous application.”

Wilbraham Mansion, 133 Myrtle Avenue, Block 4, Lot 6, Continuance
Ron Gelzunas, attorney for objectors, called Norman Roach, Zoning Officer, to testify.  Mr. Roach testified he determined the use to be a hotel/motel and thus issued a permit to build at 12 room addition without any variances being required.  The applicant came in several times to have the permit renewed before beginning construction in December 2007.  At that time, it came to Mr. Roach’s attention that while no variances were needed, site plan approval should have been obtained before a permit was issued so he had a stop work order issued by the Construction Office. 

Mary Darcy Bitner, attorney for objectors at 128 York Avenue Christine Mueller and Patricia Pierce, also questions Mr. Roach asking for clarification on why he didn’t consider the use of the open space on the first floor in his decision to issue a zoning permit.  Mr. Roach explained that he based his decision on the building be a hotel/motel and permitted 12 rooms given the size of his property.  He did not consider the facility to be a banquet facility.  When asked about parking, Mr. Roach explained that the proposed parking was in compliance for the new building and he didn’t consider the pre-existing, non-conforming parking in his decision.

Robert DeSanto, attorney for the applicant, suggested removing the issue of the common room from discussion with the understanding that the applicant would use it only as a tea room for guests for guests of the hotel until he came back before the board for approval.  Ron Gelzunas objected to not allowing testimony and consideration on that detail before any approvals are given.  Mr. Russell explained that even if testimony is heard on the common room, no decision could be made because the applicant did not apply for or advertise that variance.  The Board agreed to allow the public comment on all issues even though it would not be making a decision on the use of the common room.

Brian Murphy of MV Engineering was sworn in by Board Solicitor Brock Russell and accepted as an expert witness.  Mr. Murphy felt the applicant did not meet the standards required for a site plan, particularly in the number of copies of plans submitted and the lack of drainage, lighting and other calculations on those plans.  Nor did he feel the notice the applicant provided met the requirements because all the variance necessary weren’t listed.  Mr. Murphy testified that parking and buffer variances could be reduced if the size of the building were reduced.  He also stated that the parking plan does not meet the RSIS requirement of 18’ fire lanes when there is only one drive aisle or the 24’ area needed for backing out of parking spaces.  He felt that latter was especially dangerous in this situation because there is also just a 2 ½ foot buffer before the fence on the property line.  He also found fault with the drainage plan, stating the minimum slope was too low and the drainage storage area was cut in half because its slope was too great.  Mr. Murphy felt that if the open area on the first floor were characterized as a restaurant, it would have between 40 and 50 seats which would make that the primary use and the rooms an ancillary use and would then need a D variance and plenty more parking.  He felt that granting a parking variance would be contrary to the master plan.

The Chairperson called a 5 minute break at 8:56 PM and reconvened at 9:01PM.

John Lucas, 119 Myrtle Avenue, was sworn in by Brock Russell.  Mr. Lucas testified that he has had some noise and parking problems in the past in connection with wedding events at the Wilbraham Mansion and events at the park across the street.  He felt the addition will exacerbate these problems.

Christine Mueller, 128 York Avenue, was sworn in by Brock Russell.  Mary Darcy Bitner presented 3 pictures that were marked Mueller 1, 2, and 3.  Ms. Mueller described the contents of the pictures.  She testified that she felt the building was too large for the site and she especially objected to the non-compliant buffer.

Patricia Pierce, 128 York Avenue, was sworn in by Solicitor Russell.  Ms. Pierce didn’t realize until this meeting that the buffer along her property would only be 2 feet and she didn’t see how that could be permitted.  She felt that nothing could possibly grow in a 2 foot buffer area.  She felt she would have to put in a fence along her property to try to block the view of the 35 foot tall building.  She expressed concerns over the increase in parking problems that the addition will cause. 

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

Charlotte Anderson, 129 York Avenue, was sworn in by Brock Russell.  Ms. Anderson expressed horror over the increase in parking problems and the size of the addition.

Carin Ruzicka, 153A York Avenue, was sworn in and expressed concerns over parking and the possible impact on flooding that the new building will have.

Kathleen Newman, 140 York Avenue, was sworn in and expressed concerns over the impact the addition and events will have on parking.

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

Chairperson Novak closed the public hearing and invited the counsels to make summary statements. 

Ron Gelzunas renewed each of his previous objections and incorporated them into his closing.  He argued that the applicant didn’t meet the noticing requirements of MLUL or the need to have plans filed at least 10 days before a hearing.  He also stated that the applicant did not meet the requirements for reliance upon a municipal mistake, particularly because the zoning language was not arguable, but rather clear in regard to parking, buffers, uses, etc.  Mr. Gelzunas argued that because he did not succeed in either test for reliance, the board should not consider the mistake that was made by the Zoning Officer when making their determination. He also argued that economic feasibility is not a basis for variance relief.  He argued the parking situation created by the addition would be contrary to the master plan.  Mr. Gelzunas claimed the purposes of MLUL were not being advanced.  He objected to the area given to events, the entire first floor of the addition as well as the first floor of the existing building, which is well in excess of the 10% limit in the Borough’s code.  He argued that the applicant should have been required to have a variance to have events on the premises.  In addition to that, he felt the principal use of the addition would be as an events center, which is not a permitted use.  Lastly, Mr. Gelzunas asked the Board not to get caught up in the fact that a mistake was rather to decide based on the facts of the application.

Mary Darcy Bitner stated that her clients were sensitive to the predicament in which the applicant and the Board find themselves.  She felt the best solution was to approve a single story addition instead of the 3 stories.  Her clients would be willing to waive their rights to a proper buffer is a single story structure was approved and the applicant put in a fence along their property line.  Ms. Bitner also felt the applicant did not meet his noticing requirements.

Robert DeSanto argued that the notice was adequate and the plans were available prior to the meetings and hearing, evidenced by the opposition using them for their testimony.  Mr. DeSanto asked the Board to remember several facts about the case – the Wilbraham is in a C-1 commercial zone and thus the residential properties are the nonconforming uses.  In this district, a 12 unit hotel is a permitted use, so if a national chain came in, they would be permitted to build this structure on this lot.  Mr. Carnes based the plan of the building on what the Zoning Officer told him was permitted on his lot.  Mr. DeSanto presented a legal brief dated February 2008 that he submitted as exhibit W-12 rather than reciting all the pertinent legal authorities.  He asserted the applicant is ready and willing to meet the concerns of the neighbors and the Board.  Lastly, he stated that, according to Cox, the Uniform Site Improvement Act does not apply to non-residential construction.

Chairperson Novak opened the haring to comments from the Board.

Doris Jacobsen asked if the applicant would be willing to put up a higher fence to help with the limited buffer.  Mr. Carnes stated he would be willing to do so, but one already exists along the property line in question.

Art Joblin asked for one more report from the Board Engineer.  Ray Roberts concurred that the RSIS pertains to residential sites, which the site in question clearly is not. 

Brock Russell explained the Board must first make a determination on whether the property is a hotel/motel or a tourist guesthouse, which will determine if a density variance is required.  Mr. Russell advised the Board they need to determine whether the appearance of the building makes it a hotel/motel or a tourist guesthouse.  It must consider the building as it exists including the indoor pool, common areas, off-street parking, etc. 

Pam Kaithern expressed concern about the noticing.  Solicitor Russell felt the noticing was not adequate for the use of the common area of the new building because it exceeds the 10% limit, but other notice was adequate.  As for the documents being submitted 10 days in advance, he felt it wasn’t a concern because access was given to them. 

Gary Novak made a motion that the Wilbraham Mansion is a hotel/motel.  Mark Kulkowitz seconded the motion.  The motion passed on roll call vote as follows: Rigby recused, Shriver no permitted to vote, all other members present voting in the affirmative.  Since the Board determined the property to be a hotel/motel, no density variance is required.

The next matter to be discussed was the parking variance.  Brock Russell explained that 22 spaces are required and only 16 are proposed.  The Board can consider the existing deficit of 7 vs. the new deficit of 6.  Mr. Russell advised the Board that if they consider the variance for parking it should be subject to a condition that the applicant can’t use the common area on the first floor of the new building for special events until he applies for variance on that issue, because it would have a direct impact on parking.  The applicant could still use it as a tearoom for his guests which would allow for seats equal to the number of rooms, not number of guests.

Gary Novak made a motion to approve a parking variance that for 16 spaces where 22 are required with the condition that the common area in the new building be used as a tearoom for guests only with no more than 22 seats.  This condition will not effect the existing building.  Doris Jacobsen seconded the motion which was passed on roll call vote as follows: Rigby recused, Shriver not permitted to vote, all other members present voting in the affirmative.

The next issue was the proposed 2 foot buffer.  After some discussion, the applicant agreed to remove the proposed sidewalk along the new building and reducing the landscaping along the building in order to increase the buffer along the property line to conform to the 5 foot requirement.  He also agreed to put in a 6 foot fence from the back property ling to meet the existing fence belonging to the Albert Stevens Inn.  He will try to include taller plantings to help buffer the 35’ tall building.

The Board next discussed the existing non-conforming buffer from the front property line back to the handicapped parking space.  On motion of Pam Kaithern, seconded by Gary Novak, the Board approved the design waiver for existing non-conforming buffer form the pront property line to the handicapped parking space.  Roll call vote was: Rigby recused, Shriver not permitted to vote, all other members present voting in the affirmative.

On motion of Gary Novak, seconded by Mark Kulkowitz, the site plan was approved with conditions read into the record from the February 1, 2008 letter from the Board Engineer.  The manhole will be installed in accordance with Board Engineer’s and Water/Sewer Superintendent’s approval.  The motion passed as follows: Rigby recused, Shriver not permitted to vote, all other members present voting in the affirmative.

PRIVILEGE OF THE FLOOR:  No one wished to speak.

ADJOURNMENT:  On motion of Doris Jacobsen, seconded by Mark Kulkowitz, and carried by unanimous voice vote, the meeting was adjourned at 11:37 PM.

Respectfully submitted,

Elaine L. Wallace
Recording Secretary