Borough of Brielle, NJ
| July 12, 2011
July 12, 2011
|BRIELLE PLANNING BOARD
TUESDAY, JULY 12, 2011
The Regular meeting of the Brielle Planning Board was held on Tuesday, July 12, 2011 at 7:30 pm in the Brielle Borough Hall, 601 Union Lane.. After a moment of silent prayer and a salute to the flag, roll call was taken:
Present -- Mayor Thomas Nicol, Councilman Frank Garruzzo, Thomas Condon, James Harman, James Langenberger, John O'Donnell, Charles Sarnasi, Tim Sigler, James Stenson
Absent - Terre Vitale
Also present were Michael Rubino, Board Attorney, Glenn Lines, Alternate Borough Engineer and Karen S. Brisben, Recording Secretary. There were approximately 15 people in the audience.
Chairman Condon then called the meeting to order and declared a quorum. He announced that, in compliance with the Open Public Meetings Act, notice of this Body's meeting had been sent to the official newspapers of the Board fixing the time and place of all hearings.
The Minutes of the June 14, 2011 meeting were approved on a motion by Councilman Garruzzo, seconded by Mayor Nicol and approved unanimously by voice vote, all aye.
As there was no Correspondence, the Board then turned to the approval of a Resolution for Denial of Appeal of Zoning Officer's determination and Stop Work Order due to change of units for the site known as Mariner's Bend. As all Board members, as well as the applicant & their attorney, had received a draft copy and there were no changes or recommendations, the following Resolution was presented for approved:
"WHEREAS, Greentree Development Group, Inc. is the owner of premises known as Block 120, Lot 9.14 C0014, Block 120, Lot 9.17 C0017, Block 120, Lot 9.18 C0018 and commonly known a 14 Mariner's Bend, 17 Mariner's Bend and 18 Mariner's Bend, respectively, and
WHEREAS, the applicant has applied to the Zoning Board of Adjustment of the Borough of Brielle under NJ Rev. Stat. 40:55D-70(a) for a reversal of a decision and Order by the Zoning Officer of the Borough of Brielle as hereinafter described; and
WHEREAS, the applicant gave notice pertaining to the public hearing to be held on said application in accordance with the revised statutes of the State of New Jersey; and
WHEREAS, pursuant to said notice a public hearing was conducted by the Board at the Municipal Building, 601 Union Lane on May 10, 2011 which hearing was continued to June 14, 2011; and
WHEREAS, the Applicant presented the testimony of the following persons: Edwin Hale, Managing Member of the Applicant, Stuart Challoner, a Professional Engineer; and
WHEREAS, the Board received certain exhibits into evidence as follows:
Al. The originally approved floor plan of the subject units prepared by Jerome Morley Larson with a date of August 18, 2001.
A2. Revised floor plan for 14 Mariner's Bend, prepared by Dario Pasquariello with a most recent revision date of February 1, 2011.
A3. Revised floor plan for 17 Mariner's Bend, prepared by Dario Pasquariello with a date of September 28, 2001.
A4. Revised floor plan for 18 Mariner's Bend, prepared by Dario Pasquariello
with a most recent revision date of February 1, 2011 with a date of August 18, 2001.
A5. Originally approved grading, walls, and maintenance building plan, prepared by Jerome Morley Larson; and
WHEREAS, the Board considered all of the evidence and exhibits presented and the questions and comments of interested property owners, if any, and based thereon has made the following findings of fact and conclusions of law:
1. The subject properties are located on State Highway 70 and are located within the R-6 zone as shown on the Zoning Map and the Zoning Ordinance of the Borough of Brielle and are owned by the Applicant.
2. The subject premises are part of a townhouse development known as Mariner's Bend which contains 18 attached single family dwelling units in four separate buildings. The subject properties herein are located in the northern most building shown as Building D on Exhibit A-1.
3. The original approvals for the Mariner's Bend development were derived from actions by the Zoning Board of Adjustment of the Borough of Brielle on the following occasions:
A. February 3, 1998 approval by the Board of a use/density variance pursuant to NJSA 40:55D-70(d) with conditions as hereinafter described granting a density variance whereby the developer was permitted to develop 18 units rather than 15.5 units as limited by the Ordinance.
B. May 4, 1999, grant of preliminary and final site plan approval including certain bulk variances and incorporating the conditions from the prior resolution authorizing the construction of the 18 townhouses. The prior Resolutions are incorporated herein by reference.
4. Each of the Resolutions contained provisions limiting the use of rooms within the units. The Resolution of February 3, 1998 contained finding number 21(c) stating: "(c) that each of the units to be developed pursuant to such variance shall be restricted to two bedrooms and that the third floor of each unit shall be restricted to use as an attic." The Resolution of May 4, 1999 contained conditions numbers 35 (c) and 35 (f) which stated respectively: "35 (c) each townhouse unit shall have a maximum of two bedrooms." AND "35(f) the basement and attics of all of the respective units shall not be used for living space.
5. After the Applicant obtained title to the subject premises the Applicant undertook modifications of the subject units as are hereinafter described. Based on subsequently obtained information, the Zoning Officer issued a rescission of the previously issued zoning permits based upon his review of the proposed modifications, the originally approved plans, the previously mentioned Resolutions of the Zoning Board of Adjustment and the architectural plans prepared by the Applicant's architect. The first notice of rescission is dated November 22, 2010 and is addressed to Albert P. Ratz, the Construction Official of the Borough of Brielle. A revised notice of rescission of Zoning Permit was issued by the Zoning Officer dated April 4, 2011 also addressed to Albert P. Ratz. The combined findings in the two notices recited that the original approvals from the Zoning Board of Adjustment conditioned the approval on an architectural layout whereby each unit would contain only a kitchen, dining room, family room, two bedrooms and two baths. Further, as previously mentioned, there was a condition that attic and basement space within the units would not be employed as living space. The approval of the layout and use of the space within the units were conditions imposed in conjunction with the grant of a use/density variance pursuant to the New Jersey Revised Statutes 40:55D-70(d). Relevant to this appeal, the Zoning Officer found that the following modifications were not in accordance with the originally approved plans:
A. As to unit 14, addition of a full bath in the basement; introduction of a study or den on second floor configured so as to be usable as a third bedroom.
B. As to unit 17, addition of study or den in addition to a loft on the second floor configured so as to be usable as a third bedroom.
C. As to unit 18, addition of full bath in basement, addition of full bath on second floor, addition of bedroom on second floor, addition of a den configured so as to be usable as a third bedroom.
6. The Applicant has argued on this appeal that notwithstanding the reconfigurations described, the subject units will all remain two bedroom units and will continue to satisfy the conditions imposed in the original Resolutions.
7. The Board finds that in this appeal, it is unnecessary for the Board to determine what constitutes a "bedroom." No evidence.has been presented to this Board providing a definition of that term. The Board notes, however, that notwithstanding the absence of legal definition, and based upon Exhibits A-2, A-3 and A-4 the spaces indentified by the Zoning Officer as potential "bedrooms" could physically accommodate facilities consistent with uses and activities commonly associated with bedrooms. Similarly, the installation of bathrooms and similar facilities in the basements support the conclusion that these areas can be considered to be living space.
8. In order to determine an identifiable point of reference by which the Board originally established the limiting conditions which are the subject of this appeal, this Board finds that the previously approved floor plans for the units as shown in Exhibit A-1 for Building D are dispositive and controlling. The Resolutions to fix the layout and configuration of rooms within the units as the only objective method of assuring compliance with the conditions.
9. No evidence was presented to the Board to justify modifying any of the conditions in the Board's original approvals and the conditions contained therein remain in full force and effect.
10. The Board notes that the Applicant has argued that other units within the development have been modified in ways inconsistent with the referenced floor plans. The Board finds that the existence of violations or non-conformities in other units is not persuasive evidence in the determination of the within appeal.
NOW, THEREFORE BE IT RESOLVED, by the Borough of Brielle Zoning Board of Adjustment based upon the foregoing findings of fact and conclusions of law that the Applicant's appeal as described herein is denied and the decisions and orders including specifically the rescission of the Zoning Permits made by the Zoning Officer of the Borough of Brielle are hereby affirmed.
BE IT FURTHER RESOLVED that a copy of this Resolution certified by the Secretary of the Board to be a true copy be forwarded to the Clerk of the Borough and within ten days of today's date, to the Applicant herein. Further, notice of this decision shall be published in accordance with the requirements of the Revised Statutes of the State of New Jersey."
The motion for approval was then made by Mayor Nicol, seconded by Mr. Harman and this Resolution of Denial was approved by the following roll call vote:
Ayes: Mayor Thomas Nicol, James Harman, James Langenberger Noes: None
Not Eligible to Vote: Councilman Frank Garruzzo, Thomas Condon, John O'Donnell, Charles Sarnasi, Tim Sigler, James Stenson
The Board then turned to the approval of a Resolution for Block 15.01, Lot 9, 632 Borrie Avenue, owned by Borrie Avenue Partners, LLC, to allow a Minor Subdivision.
Mr. Rubino noted one change in the draft Resolution, the removal of the final paragraph. As there were no other changes or recommendations, the following Resolution was presented for approval:
"WHEREAS, the Planning Board of the Borough of Brielle, County of Monmouth, State of New Jersey, has before it an application for Minor Subdivision on behalf of Borrie Avenue Partners, LLC for premises known as Lot 9, Block 15.01, said premises being known as 632 Borrie Avenue, Brielle, New Jersey and the Board having received a subdivision plan prepared by Ray Carpenter PE and Ronald W. Post, PLS dated March 24, 2011 and it appearing that variances are necessary for proposed Lot 9.02 as said lot is a corner lot under the definition of the Ordinance and variances are, therefore, needed for lot area and front yard setback and the applicant having been represented by Thomas J. Hirsch, Esq. and the Board having held an open public hearing on the matter on June 14, 2011 and at that time the Board having listened to the testimony offered on behalf of the applicant and objectors of any; and
WHEREAS, the Board has jurisdiction of the matter as a result of the applicable Ordinances of the Borough, adopted pursuant to the Municipal Land Use Law, Chapter 291, Law of 1975, as amended and supplemented, and the Board having considered the matter at a public hearing as set forth above, and the Board having made the following findings of fact:
1. The property in question lies on Borrie Avenue and Morgan Parkway and presently contains 15,170 square feet. Morgan Parkway along that section of the property is an unusual unapproved paper street and is unlikely to ever be developed in the future. Despite that, as it is a paper street, Lot 9.02 is considered a corner lot and is, therefore, subject to corner lot regulations.
2. Lot 9.02 is proposed to contain 7,500 square feet whereas corner lots in the R-3 Zone are required to contain 10,000 square feet. In addition, the garage is proposed to be setback 5 feet from the paper street where the front yard setback requires 30 feet.
3. Lot 9.01 is an interior lot and will contain 7,670 square feet. It will conform in all respects to the Borough's R-3 Zone requirements.
4. Morgan Parkway is presently used as a walkway from Borrie Avenue to property owned by the Borough of Brielle and it is unlikely to ever be - developed as a full street. The Board is satisfied that it is not an active street, and that there will be no negative impact to the area if the Board allows a 75'x100' lot on the property as the Board finds that Morgan Parkway at that point does not need to be treated as a full street, therefore, the Board finds that Lot 9.02 can be treated as an interior lot rather than a corner lot. The Board, therefore, finds that it can grant variances both for lot area and front yard setback for the proposed garage.
5. The Board does find that the subject property is unusual for the area in that it contains over 15,000 square feet which makes it the largest lot in the area by approximately 5,000 square feet. The Board, therefore, finds that the lot as it presently stands is underutilized and that there is no detriment to the Zoning Ordinances nor Master Plan in letting the property be subdivided as proposed.
6. The Board finds that the granting of the subdivision with the requested variances will satisfy at least three criteria under the Land Use Statute, those being (1) promotion of appropriate population densities, (2) promote efficient use of lands and (3) promotion of desirable visual environment. The Board is satisfied that these goals will be promoted by the granting of the relief requested as the lot as it sits is oversized and is the largest in that particular area of the Borough.
7. With regard to the "C" Variances, the Board finds the following:
i. The Board finds that by reason of an extraordinary and exceptional situation that uniquely affected the subject property and the structure which exists lawfully thereon, the strict application of the aforementioned regulation would result in peculiar and exceptional practical difficulties to, or exception and undue hardship upon the applicant.
ii. The applicant has demonstrated that the purposes of the Municipal Land Use Law and the Land Use Ordinances of the Borough of Brielle, would be advanced by a deviation from the Zoning Ordinance requirements at issue, and further that the benefits of any such deviation would substantially outweigh any detriment resulting from a grant of the application.
iii. With regard to the negative criteria, the Board finds that there will be no substantial detriment and no substantial impairment of intent and purpose of the Zone Plan and Zoning Ordinances of the Borough by the granting of this application.
WHEREFORE, BE IT RESOLVED that the Planning Board, Borough of Briefle, County of Monmouth, State of New Jersey, does hereby resolve to grant Minor Subdivision approval and variances for lot area and front yard setback along Morgan Parkway for the garage to Borrie Avenue Partners, LLC and the Board Chairman and Board Secretary shall not sign a subdivision plot until the following conditions are met:
1. Payment of all fees, taxes and escrows to date.
2. Monmouth County Planning Board Approval or receipt of communication indicating no interest in the subject application or passage of the appropriate time period pursuant to law.
3. Compliance with the letter of Glenn D. Lines, RE., P.P. C.M.E., Conflict Planning Board Engineer, Lines Engineering, LLC, 212 Second Street, Suite 401A, Lakewood, N.J. 08701 dated May 12, 2011.
4. The Applicant and its successors shall be limited to proposing conforming structures on the lots except for the garage as noted and all conditions on said properties shall comply with the Borough's Zoning requirements at the time of the permitting process.
5. The Applicant shall provide evidence from the Tax Assessor that lot numbering is satisfactory.
6. All buildings, if any, on the property shall be removed as a condition of approval.
7. The Applicant shall obtain any other outside approvals deemed necessary by the Board Engineer prior to the plans being executed by the Board Secretary.
8. Applicant shall provide a row of landscaping along the Morgan Parkway side of the property to the satisfaction of the Board Engineer.
BE IT FURTHER RESOLVED that, in accordance with the Municipal Land Use Law, that the Minor Subdivision shall be perfected within 190 days from the date of this Resolution of approval, or within any time frame allowed under the Permit Extension Act, with the Minor Subdivision map having been executed by the date, together with the conforming deed being recorded with the Monmouth County Clerk's Office as required, it being understood that this time limit is set by the Municipal Land Use Law, as to compliance with the terms of this Resolution, and the filing of the deed or the map to perfect this Subdivision shall be Applicant's obligation and responsibility to do so as it is applicant's obligation to comply with said law. In the event that the applicant fails to do so, then upon notice to the applicant, the Board Secretary shall list this matter on the Planning Board agenda for dismissal without prejudice unless the applicant offers appropriate reason for the delay."
A motion to approve the above Resolution was made by Councilman Garruzzo, seconded by Mr. Langenberger, and approved by the following roll call vote:
Ayes: Mayor Thomas Nicol, Councilman Frank Garruzzo, Thomas Condon, James Harman, James Langenberger, John O'Donnell, James Stenson
Not Eligible to Vote: Charles Sarnasi, Tim Sigler
The Board then turned to the approval of a Resolution for Block 71.01, Lot 1, 712 Union Avenue, owned by Mariner's Cove, LLC, to allow multiple expansions to first floor of restaurant.
Mr. Rubino said there were some differences in the numbers given during the testimony from what was on the draft Resolution. The Engineer reviewed this and agreed some of the numbers for various items were different and should be corrected. This was done and the Board has the corrected Resolution in front of them.
As there were no further changes or recommendations to be made, the following was presented for approval:
"WHEREAS, the Planning Board of the Borough of Brielle, County of Monmouth and State of New Jersey has before it an application for preliminary and final site plan approval along with a use variance and bulk variances for premises known as 712 Union Avenue, Block 71.01, Lot 1 in the Borough of Brielle, and a site plan package having been submitted to the Board entitled "Mariner's Cove Restaurant, Minor Site Plan, Tax Lot 1, Block 71.01, Borough of Brielle, Monmouth County New Jersey" prepared by Geller Sive & Company dated March 28, 2011 and architectural plans consisting of seven sheets dated March 12, 2011, prepared by Bach & Clark, LLC and the applicant being represented by Frederick E. Popovitch, Esq. and the Board having held an open public hearing on the matter on June 14, 2011 and at that time listening to the testimony of the applicant, its professionals and objectors, if any, and;
WHEREAS, the Board has jurisdiction of the matter as a result of the applicable Ordinances of the Borough, adopted pursuant to the Municipal Land Use Law, Chapter 291, Law of 1975, as amended and supplemented, and the Board having considered the matter at an open public hearing on June 14, 2011 and the Board having made the following findings of facts:
1. The property in question consists of one lot along Route 71 just north of the intersection of Higgins Avenue and lies within the Borough's gateway zone (C-IA). The subject property contains an existing two-story restaurant and associated parking facilities. The applicant proposes to construct a building expansion totaling approximately 860 square feet along with a trash enclosure and an update of the existing sign.
2. Along with the site plan approval the following variances are required:
a. Code Section 21-18A.la states that restaurants are not a permitted use within the C-1A Zone. The Applicant proposes to expand the restaurant through this application. Accordingly, a Use Variance will be required for the proposed expansion of an existing non-conforming use.
b. Code Section 21-18A2. Sets forth the development standards for the C-1A (Gateway) Zone. A review of the application and zoning data table in conjunction with these standards reveals the following inconsistencies:
i. Minimum Lot Area -- 40,000- square feet required, 14,575 square feet existing.
ii. Minimum Lot Depth - 200 feet required, 186.8 feet existing.
iii. Minimum Lot Width - 200 feet required, 140 feet existing.
iv. Minimum Front Yard Setback (Route 71) - 45 feet required, 42.3 feet existing and 38 feet proposed. A bulk variance will be required for this proposed non-conformity.
v. Minimum Front Yard Setback (Route 35) - 45 feet required, 45.8 feet existing and 41.3 feet proposed. A bulk variance will be required for this proposed non-conformity.
vi. Minimum Rear Yard Setback - 25 feet required, 24.4 feet existing and 20.4 feet proposed. A bulk variance will be required for this proposed non-conformity.
Note: Items "i-iii" are existing non-conforming conditions that are not being altered by the application.
c. Code Section 21-23-5 states that no sign or any part thereof shall be located closer than 15 feet to any lot line, whereas the existing and proposed sign is located 1 foot over the Route 71 Right-of-Way line. A variance will be required for this existing/proposed non-conformity.
d. Code Section 21-30.2a4.(4) states the permitted free-standing sign area as 25 square feet where the existing proposed sign is 129 square feet. A variance will be required for this existing/proposed non-conformity.
e. Code Section 21-31-.16 states that parking should be provided on the same lot as the main building to be served, whereas, the existing/proposed parking is located partially within the Route 71 right-of-way. A variance will be required for this existing/proposed non-conformity.
f. Code Section 21-31-.21 states that parking spaces may be located within a front yard setback provided a 5 foot landscaped area is provided along the front and side lot lines, whereas the proposed parking is located along the front and side front yards and does not provide a 5 foot landscaped area. A variance will be required for this existing/proposed non-conformity.
g. Code Section 21-32.2m states the parking requirements for restaurants as 1 space per 100 square feet of gross floor area. Based on the proposed 3,806 square feet building 38 parking spaces are proposed, whereas only 20 spaces are provided on-site. A variance will be required for this proposed non-conformity.
3. During the course of the hearing the applicant offered testimony that the site has been used as a diner for a number of years and that the proposed addition is a minimal expansion and an improvement to the site. The addition
will allow 2,870 square feet of restaurant space and 938 square feet of office space.
4. Testimony was offered and the Board finds that the property is next to an existing municipal parking lot which contains 33 shared municipal spaces and that although the site is short approximately 15 parking spaces that the Borough permits use of the municipal spaces for all of the commercial uses in the area, including Mariner's Cove. The Board is satisfied therefore, that although the applicant is deficient in parking spaces, there will be sufficient parking in the area to handle parking at the site.
5. As there is a conflict in traffic in the front of the premises, the applicant has agreed to rearrange the parking along the front and to have traffic flow one way. Said changes shall be made to the satisfaction of the Board Engineer.
6. The applicant has agreed, during the course of the hearing, to either repave and/or seal the entire parking lot and the same will be restriped.
7. The Board finds that the additions to the building will substantially enhance
the look and aesthetics of the building.
8. During the course of the hearing, the applicant stipulated that there will be absolutely no residential use of the premises.
9. The Board finds that the restriping and design of the parking area will improve the circulation and free flow of traffic at the site.
10. The Board finds that the proposed addition and restriping will be a desirable visual improvement to the site.
11. The Board finds that as the site has been used as a restaurant/diner for a significant amount of years, at least in excess of 60, that the site is particularly suited for the proposed use.
12. The Board finds that the site, as an undersized lot, deficient in depth and
width with a number of existing conditions, creates a hardship to develop.
13. At the hearing the applicant offered testimony that the lot is a unique lot as to location, frontage, access to public parking with existing setback and parking problems and that the proposal will be an improvement to the existing site.
14. The architect testified that the additional space will allow more room to the kitchen vestibule, the exterior of the dining room and the walk-in refrigeration box.
15. Based upon the aforesaid findings, the Board concludes that the applicant has satisfied the following:
a. The Board finds that the positive and negative criteria necessary to support the granting of the "D" variance has been satisfied. With regard to the "D" variance, the positive criteria was satisfied as a result of the particularly suited use for the building and because the property in the past was used for the same use. The negative criteria was satisfied as the Board finds no detriment as a result of the granting of the application. The Board also finds that there will be no adverse impact as a result of the granting of the application.
b. With regard to the negative criteria the Board finds that there will be no
substantial detriment and no substantial impairment of intent and purpose of the Zone Plan and Zoning Ordinances of the Borough by the granting of this application.
c. With regard to the "C" variances, the Board finds the following:
i) The Board finds that by reason of an extraordinary and exceptional situation that uniquely affected the subject property and the structure which exists lawfully thereon the strict application of the aforementioned regulation would result in peculiar and exceptional practical difficulties to, or exception and undue hardship upon the applicant.
ii) The application has demonstrated that the purposes of the Municipal Land Use Law and the Land Use Ordinances of the Borough of Brielle would be advanced by a deviation from the Zoning Ordinance requirements at issue, and further that the benefits of any such deviation would substantially outweigh any detriment resulting from a grant of the application.
WHEREFORE, the Planning Board of the Borough of Brielle, County of Monmouth and State of New Jersey does hereby resolve to grant a site plan approval with bulk and use variances for Mariner's Cove, LLC, Block 71.01, Lot 1, 712 Union Avenue, Brielle, New Jersey.
1. Subject to the development here at issue being undertaken in accordance with the testimony presented to the Board and the plans submitted to/approved by the Board.
2. Subject to the testimony of all witnesses called on behalf of the applicant being true and accurate.
3. Subject to the application, all attachments thereto, and all exhibits offered by the applicant being accurate depictions of that which they purport to represent.
4. The applicant shall furnish proof that taxes have been paid through the current quarter and through the quarter in which he receives his initial construction permit.
5. Subject to the applicant paying in full all application fees, review fees, engineering and consulting fees, and escrows. Subject to the applicant posting deposits for the required engineering and inspection fees, in amounts fixed by the Board and/or Borough Engineers.
6. Subject to the applicant obtaining and complying with the approval of any other reviewing agency having jurisdiction over the improvements of the property as proposed under this project, including but not limited to the Board of Health, the Borough Engineer, the Borough Fire Official, and any County, State or Federal agency, provided, however, that in the event that any other agency or authority shall require any changes in the plans herein approved, then any such changes must be submitted to this Board for review and approval. Further, if another governmental agency grants a waiver or variance of a regulation, which same affects this approval or any condition attached hereto, or otherwise requires any changes in the plans herein approved, then this matter shall be brought back before the Board for review of any such action, and the Board shall have the right to modify this approval and/or the conditions attached hereto.
1. The applicant shall comply with the requirements of the letter of May 19, 2011 of Alan Hilla, Jr., the Board Engineer.
2. Revise the plans to show one-way isle along the front of the premises along with redesign of the parking spots.
3. The applicant shall provide bollards or curb stops at the front of the parking spaces that face the building.
4. The applicant shall restripe the entire parking lot along with sealing or repaving the same.
5. Any improvements in the public area will need approval by the Governing Body.
6. A fire lane at the site will be refigured in accordance with the representations made at the hearing to the satisfaction of the Board Engineer.
FURTHER, this Board directs that the Land Use Officer take whatever steps it may deem necessary to insure that restoration of this site to its original conditions occurs if the developer is deemed by the Land Use Office to be in substantial non-compliance with the standards of performance and the conditions set forth in this Resolution of the Planning Board (and/or Borough Ordinances) and that steps also be taken as may be deemed necessary by the Borough to place the responsibility of same financially and otherwise upon the Applicant and the principal involved as well as his heirs, successors and assigns."
A motion to approve the above Resolution was made by Mr. Langenberger, seconded by Mr. Stenson and approved by the following roll call vote:
Ayes: Thomas Condon, James Harman, James Langenberger, John O'Donnell, James Stenson
Not Eligible to Vote: Mayor Thomas Nicol, Councilman Frank Garruzzo, Charles Sarnasi, Tim Sigler
The Board then turned to the last item of the evening, an application for Site Plan approval for Block 65.01, Lot 8, Brielle Sports Club, 629 Higgins Avenue, owned by M. Holtzman Realty, LLC; applicant - Joseph Penniplede, to allow construction of an 8,221 square foot addition to an existing structure to house an indoor swimming facility. Parking spaces - 232 required, 223 proposed, 9 space variance requested. Buffer requirements: 50 feet required, 41 feet proposed, 9 foot variance requested. Loading spaces: two loading spaces to-the rear of the existing building will be inaccessible. Variance for providing two loading spaces may be required. Waivers to Site Plan requirements also requested.
Before this hearing started, Mr. Condon and Councilman Garruzzo stepped off the dais due to a conflict.
Roger McLaughlin, Esq. then came forward to represent the Sports Club. The proper fees were paid, taxes are paid to date and the property owners & newspaper were notified. Mr. Rubino had to step in and state there is an objecting attorney who has an issue as to jurisdiction.
Mr. McLaughlin they came prepared to proceed, but noted Mr. Kenneally who had an issue in respect to a Borough Ordinance and agreed that should be addressed first. At this time Mr. Scott Kenneally came forward and told the Board he had an issue with the notice given. In the code book there is a specific Ordinance regulating swimming pools; it does exclude pools in residences. There is a specific process for public or private club pools, an application has to be made to the Board of Adjustment and a request to be made to the Governing Body, in writing, that this is not against the health and welfare of the townspeople.
Mr. Kenneally said there are two things that are important 1) the language here is referring to the Board of Adjustment and 2) the language in the Ordinance, in his opinion, refer to a need for a Use Variance. Mr. Rubino remarked that all this was just presented to him this evening and, from a statutory standpoint, there is a right to bring something to the Board of Adjustment and that Board has limited authority and he asked what other authority they have. Mr. Kenneally said he saw this application as a "D" Variance case. Mr. Rubino said a club wants to put up a pool and they go to the Board of Adjustment and make an exception to the pool. He felt this was a permitted use, but said they then are to write to the Governing Body. He did not feel this was a proper way to go under the Municipal Land Use Law and asked where in the Land Use Statute is there reference to hearing a matter and then advising the Governing Body?
Mr. Kenneally still said he read this as a Use Variance, he could only state what he read in the Borough's Ordinance. Mr. Rubino asked if this is a legal Ordinance and does this Board have to follow it, there are some Ordinances that should just be eliminated as they do not apply anymore; he thought this was one of them. Mr. Kenneally noted that, in the C-1A Gateway Zone a pool is not listed as a permitted use and this is a defined term, so this pool is not a permitted use and commented pools are a permitted use in the C-2A Marine Zone and it is so noted in that Ordinance, so there is a need for a Use Variance here.
Mr. McLaughlin said it was unfortunate that this jurisdictional question was held until this evening and no one was notified before this time as professionals were here to testify. He did not agree and did not think it creates a Use Variance need. But if this is correct there is a notice issue and Mr. Penniplede, the applicant, would prefer to carry this matter to next month for a new notice to be sent out & published. Mr. McLaughlin felt this may be in the best interest for both the town and applicant.
Mayor Nicol asked Mr. Rubino to contact the Borough Attorney, Mr. Montenegro first thing in the morning to discuss this to avoid any further conflict and Mr. Rubino agreed to do this. Mr. Stenson then announced that this application will be carried to the August 9th meeting of the Planning Board.
As there was no further business to come before the Board, a motion was made by Mayor Nicol to adjourn, this seconded by Mr. Langenberger and approved unanimously by the Board, all aye. The meeting was adjourned at 7:50 p.m.
Karen S. Brisben, Recording Secretary