Borough of Brielle, NJ
| November 12, 2013
November 12th, 2013
|BRIELLE PLANNING BOARD
TUESDAY, NOVEMBER 12, 2013
The Regular meeting of the Brielle Planning Board was held on Tuesday, November 12, 2013 at 7:35 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 – Councilman Frank Garruzzo, James Langenberger, Thomas Condon, Gina Murdoch, Charles Sarnasi, James Stenson, Nicholas Stango (arrived 7:40)
Absent – Mayor Thomas Nicol, John O’Donnell, Tim Sigler, Terre Vitale
Also present was Karen S. Brisben, Recording Secretary, Michael Rubino, Board Attorney and Matt Zahorsky, Alternate Board Engineer. The room was filled to capacity.
Chairman Condon 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 Chairman also made the announcement that the hearing scheduled this evening for a variance to allow the existence of a tree house at 805 Ashley Avenue was being postponed, by the applicant, until the December 10th, 2013 meeting of the Planning Board; no further notice will be given.
The Minutes of the October 8, 2013 meeting were approved on a motion by Mr. Stenson, seconded by Mrs. Murdoch and approved unanimously by voice vote, all aye.
A notice was received from Monmouth County regarding the new rating system for flood insurance.
The Board turned to a Resolution of Dismissal for Eloise’s Café, Block 78.02, Lot 13, 416 Higgins Avenue, allowing continuation of establishment.
As all Board members, as well as the applicant, had received a draft copy and there were no changes or recommendations, the following was presented for approval:
“WHEREAS, the Planning Board of the Borough of Brielle, County of Monmouth, State of N.J. has before it an application for ruling on the actions of the Code Enforcement Officer along with site plan/variance set forth below on behalf of Eloise Knight t/a Eloise’s Café for premises known as 416 Higgins Avenue in the Borough of Brielle, said premises also being known as Block 78.02, Lot 13, and the applicant asking for an appeal to the Code Enforcement Officer’s notice as set forth below and for site plan/variance for parking requirements in the alternative and the Board having reviewed Minor Site Plan prepared by Richard V. Kenderian, PE, dated September 3, 2013, and the survey prepared by Thomas H. Stuart, Jr., PLS, dated May 10, 1986 and correspondence from his attorney, Patrick Accisano, Esq., and the Board having held a hearing on the matter on Tuesday, September 10, 2013 and Tuesday, October 8, 2013 and at that time the Board having listened to the testimony offered on behalf of the applicant and the 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 a public hearing as set forth above, and the Board having made the following findings of fact:
1. On or about June 21, 2013 the Borough of Brielle Code Enforcement Department wrote a notice of violation to Eloise’s Café stating as follows: “The Zoning Code for the Borough of Brielle, Section 21-32.2 establishes off- street parking requirements for all commercial uses. Retail food establishments require one (1) parking space per 200 square feet, while restaurants require one (1) parking space per 100 square feet.
The Borough tax records indicate commercial space at the referenced property of 1,500 square feet, yielding an off-street parking requirement of eight (8) spaces for retail sales of food and fifteen (15) spaces for restaurant. As the subject property maintains eight (8) spaces for the commercial use you are hereby notified that all seating associated with the commercial use must be removed and only retail sales of food may be operated without a variance from the Planning Board.” This was sent to Eloise Café.
2. As a result of that notice from the Code Enforcement Department, the applicant applied for a variance for parking along with minor site plan to allow the applicant to continue to operate the business at the premises. At the time of the first Board hearing (September 10, 2013) the applicant presented its case in support of its variance relief. Subsequent to the first hearing, through its attorney, Patrick Accisano, Esq., amended its application to request an appeal of the Code Enforcement Officer’s notice of violation as set forth above, pursuant to N.J.S.A. 40:55d-70.a. That letter of September 23, 2013 stated the following: “The Notices of Violation are in error. This use of the property has existed as long as my client had operated since 1999, and was similarly operated by her predecessors for many years. The property and its use was inspected by the Brielle Construction Department in 1999 when my client opened (Brielle does not issues COs for commercial uses). Further, my client has maintained her license and paid all fees required by Brielle without objection since she opened, and we have submitted permits from the Brielle Health Department. It is a pre-existing nonconformity. At no time has Brielle ever objected to or otherwise attempted to enforce its Ordinance with regard to my client’s business or the existing use, and to do so now is not legally permissible. Ms. Knight has relied on Brielle’s conduct in this regard to her detriment, including expanding substantial sums in the business over the years and hiring several employees, who will all lose their jobs if the current use is shut down due to the violation notices. There is no standing for the municipality to now issue violation notices, and it is stopped from objecting so many years after the fact.”
3. The applicant testified that she opened up the subject business in the late 1990s. She stated that at the time she was acquiring the business she spoke to the Zoning Officer/Code Enforcement Officer who at the time was Sandy Ratz. She testified that she advised Mr. Ratz that her intent was to operate the café at the premises and she also testified that there was a prior business there that was similar to hers. She testified that the business was opened by her with permission from Mr. Ratz but that she did not receive any formal document from his authorizing her to do so. She has received numerous business licenses over the years. Her business has been run on an open basis since the time of its opening. She further testified that the business has been similarly run since the time of the opening. She testified that there are 44 seats inside of the premises which are between tables, barstools and counter and that there are 6 tables outside which are used during the warmer months of the year with a total of 16 seats. She testified that she has used this number of seats since the time the business was opened.
4. The Code Enforcement Officer was of the opinion that she did not have proper parking at the premises, which the Board notes is correct. However, stated below, the Board finds it not necessary to obtain a site plan with variances because if appears that this use was allowed since its inception.
5. The Board finds that since the late 1990s she operated her business in a similar manner, both in the interior and exterior of the premises. The Board finds that the amount of tables didn’t change and that during the summer months there were six (6) tables outside and that the amount of those tables did not change. The Board also noted that the business that has been similarly run since it opened. In support of this at the Board hearing, the landlord, Richard Kenderian, appeared. Mr. Kenderian is also a local engineer and so he presented a site plan of the premises. Mr. Kenderian testified that he owned the premises prior to Eloise’s Café entering and prior to the time that Eloise’s Café entered the premises it was used similarly by a prior tenant. He further testified that the prior tenant had the same amount of tables and chairs in it and its use was similar to the present use of the premises. Mr. Kenderian further testified that Eloise’s Café has been similarly run since the time it was opened. Mr. Kenderian further testified that he was not sure why they needed a variance because this business has been allowed at the site for a number of years. And he testified that it was certainly disturbing to him that one of his tenants would be challenged at the use of its business.
6. Mr. Langenberger, the Code Enforcement Officer for the Borough, testified at the October hearing. At that time, he testified that he was unable to locate any papers of record in possession of the Borough indicating what was applied for and 1998/1999 controlling what was allowed at the site. Mr. Langenberger was unable to identify any features at the site which would be substantially different then when the business first opened. It should be noted that Mr. Langenberger has been the Code Enforcement Officer in Brielle for a substantial period of time and is very familiar with the site. Mr. Langenberger was, therefore, not able to identify any use of the site that substantially changed since the time Eloise’s Café entered the premises.
7. In addition there were numerous people that attended the hearing in support of the application and testified that they are very familiar with the site and that nothing has changed at the site since its opening. A number of people testified that they went to the premises for breakfast on a weekly basis for a number of years and all swore that the operation has not changed.
8. It should be noted that the applicant has asked for site plan approval with variance for parking and had entered into an agreement with a neighbor across the street which would have allowed overflow parking to use that person’s premises if needed. It should be noted that this has been ongoing for a number of years, but they were willing to formalize this into an agreement to allow the applicant to have enough parking spots at the site, if necessary.
9. The Board finds that it is the Borough’s obligation to convince the Board that the business at the site was not substantially the same as what was permitted when the business first opened back in the late 1990s. The Board finds that there are no existing records stating what was to be allowed and not allowed at the premises at the inception of this lease. The Board does find it credible that Eloise’s Café did visit the Zoning Officer/Building Inspector and that her use was acknowledged and has been allowed since its inception. As this business is in a well known section of the Borough and as she has received her retail license for a number of years the Board finds credible that the testimony of the applicant and of Mr. Kenderian that the business has not substantially changed since its inception and the Board also finds that the Zoning Officer in the Borough also confirms that her did not find that the business has substantially changed its use since its inception.
WHEREFORE, BE IT RESOLVED that the Planning Board of the Borough of Brielle finds that the Notice of Violation was in error and that the use of the property has existed since 1999. Not only was it similarly operated by her predecessors but she has consistently used the premises as a café since she began operation at the site. The Board, therefore, finds that the notice of violation was an error, that the business was permitted with the blessing of the Borough in 1999, that since that time the business has operated in a substantially similar manner, that there has been no substantial change to the use of the business and, therefore, there is no requirement for the applicant to present a site plan with variances to the Borough.”
A motion to approve the above Resolution was made by Mr. Stenson, seconded by Mrs. Murdoch and approved by the following roll call vote:
Ayes: Thomas Condon, Gina Murdoch, Charles Sarnasi, James Stenson
Not Eligible to Vote: Councilman Frank Garruzzo, James Langenberger
The Board then turned to the application for a variance for Block 63.01, Lot 17, 715 Schoolhouse Road, owned by Joseph & Kathryn Oehme, to allow construction of a full second story addition to an existing single story garage. Required Rear Setback – 16.83 feet; existing setback .83 feet from rear property line. Bulk Variance required.
The proper fees were paid, taxes are paid to date and the newspaper and property owners within 200 feet were properly notified. Mr. Joseph Oehme came forward and was sworn in. He said they have a garage in the rear of their yard which is in need of repair, there are water leakage problems, etc. The setback for this garage is right next to Greenwood Cemetery where they store their equipment so this variance request is not affecting anyone in the area.
Mr. Rubino asked about the addition to this garage and was told it is a frame garage and the footprint will stay the same; there will be no plumbing. Councilman Garruzzo asked about its use and Mr. Oehme said it will be used for storage only, it will be an open floor plan with heat and electricity; Mr. Rubino told him this will be stated in the Resolution, no living space will be there.
Mr. Langenberger said he has been in the garage and saw no problem with this application. Mr. Sarnasi asked if the existing structure is being taken down and Mr. Oehme said no, just adding a second floor. Mr. Stenson, Mrs. Murdoch and Mr. Condon did not have an issue with the addition either so the hearing was opened for questions from the audience. Being there was no response that portion was closed and the hearing was opened for comments; there was again no response so that part was closed also.
At this time Mr. Langenberger felt it would be a nice addition and made a motion to approve the application as presented, this seconded by Mr. Stenson and approved by the following roll call vote:
Ayes: Councilman Frank Garruzzo, Thomas Condon, James Langenberger, Gina Murdoch, Charles Sarnasi, James Stenson
Not Eligible to Vote: Nicholas Stango (arrived after hearing started)
The Board then turned to the application for variance for Block 78.02, Lot 10, 406 Higgins Avenue, owned by Capricorn, LLC, (site of Urban Kitchen) to allow continuation of parking deficiencies for combined restaurant and retail food establishment. Both Councilman Garruzzo and Mr. Langenberger recused themselves from this hearing and stepped off the dais.
Mr. Tim Middleton, Esq. came forward to represent Urban Kitchen and started by speaking of the validity of the zoning permit issued 5/2/2012. This is a restaurant/deli located at 406 Higgins Avenue – in the winter of 2012 his client was looking for a location for his restaurant/deli and was interested in 406 Higgins Avenue as it previously was used for this. He met with Glenn Lines, the Zoning Officer, and was told a restaurant use was permitted with indoor seating and on 4/20/2012 a permit application was submitted with a drawing of 3 tables, 5 stools and other things associated with a deli. The zoning permit was issued in May with the tables and seating, he then spent $60,000 renovating the building before opening. During the summer he had outdoor seating without problems and no incidents or questions on doing it and he received a Mercantile License for 2013. He recalled Mr. Langenberger, Code Enforcement Officer, coming in the spring of 2013 but there were no issues; but in June he was given a summons by Mr. Langenberger to remove all seating and not operate as a restaurant.
Mr. Middleton proceeded to state he appealed this decision by Code Enforcement and the matter has become to the Planning Board, they are appealing the summons issued by Mr. Langenberger as they stand by what Mr. Lines approved in 2012. They did what they had to under the Ordinance and the restaurant was opened by the decision of the Zoning Officer, the sideline here is the issue of more seating. Mr. Condon said the seating plan shows 3 tables and 5 counter seats.
Mr. Rubino reminded the Board the applicant has a piece of paper that allows the restaurant use, his understanding is that more tables and outside dining was put in and Mr. Langenberger wrote the letter and summons; Mr. Langenberger did not know of the Zoning Officer’s approval for the indoor tables and stools. However, there is not enough parking for the seating that was approved by the Zoning Officer but the Board does not have the power to revoke a permit or override a Zoning Officer’s determination. His opinion was that Urban Kitchen should be allowed the use that was approved by the permit and he referred to the report from Matt Zahorsky, Alternate Board Engineer.
Mr. Zahorsky then spoke and explained he runs the zoning in Wall Township and was asked to take this matter due to a conflict with Mr. Hilla, the Planning Board Engineer. Regardless of right or wrong, the Zoning Officer approved the indoor seating use, but outside seating was not in the permit approval and is not allowed. Mr. Rubino told the Board Mr. Middleton will have to come back before the Board and ask for a variance for approval for additional seating. The matter now before the Board is the issue of allowing the indoor seating that was approved by the Zoning Officer, that is the only issue tonight.
At this time Mr. Majed Fattah was sworn in, he is the owner of Urban Kitchen and in answer to a question from Mr. Stenson said he has 5 tables and 8 stools now inside. Mrs. Murdoch asked what the total seating is now and the answer was 30 seats; Mr. Rubino told him he is not allowed that many and Mr. Condon agreed, the approval was for 3 tables and 5 stools which totals 17 seats. Mr. Fattah said he has not had any issues with this for 1.5 years. Mr. Condon explained to him that the Board was trying to work with him, they do not want to see him shut down; they are not here to run a business out of town but he was approved for 3 tables with 4 seats and 5 stools and he can proceed with that. If more seating is needed he will have to come back with a parking plan. Mr. Fattah said he would like to have 8 seats at each table as there were no “seats” shown on the plan, just the tables. Mr. Condon said if no seats were shown, which is correct, then the plan can be literally read as no seating. Mr. Fattah said he did not have a problem, the problem came from Simko’s across the street and the town.
Mr. Rubino stated Mr. Langenberger said the Urban Kitchen was in violation, they did not fill out the application, Mr. Fattah did and it was not complete as there are not enough parking spaces. Mr. Fattah asked if they could find a common ground and Mr. Condon explained to him he has to make an application to the Board to show adequate parking, he heard they were thinking of using Lawrence Mayer’s Furniture lot which is 800 feet away. Mr. Middleton went back to the issue at hand, to re-affirm the Zoning Officer’s permit and to keep the seating that was approved.
Before proceeding, the Board felt it was time to open the meeting to the public for questions and, to keep matters moving, they would also accept comments. Mr. Mike Simko, owner of Simko’s Restaurant across the street from Urban Kitchen, came forward and was sworn in. He asked how many seats there are now at Urban Kitchen and the answer was 30. He then started to speak of problems he had and Mr. Rubino reminded him that the legal issue tonight is the Zoning Officer’s approval. Mr. Simko said there have been as many as 30 cars in his lot one evening and this is why he contacted Code Enforcement. Mr. Condon told him Urban Kitchen is allowed 17 seats and if Mr. Simko sees more he should contact the Police.
George Sevastakis then came forward and was sworn in, he resides at 408 Higgins Avenue. He did not feel everything has been properly said and proceeded to explain how Urban Kitchen helped out the neighborhood and workers after Hurricane Sandy struck. Mr. Condon told him the Board is not trying to push him out. Mr. Stenson felt he was to be commended for his work after Sandy but he still has to come back before this Board for parking. Mr. Sevastakis asked if he would be allowed outside tables and Mr. Rubino explained they are dealing with the inside seating this evening.
Prannath Marrott of 619 Holly Hill Drive came forward and was sworn in. He called this area the “avenue of restaurants” and felt Urban Kitchen served healthy food and we should help him in his new business. He felt more people need to walk and 800 feet is not very far if that is where the parking is.
Next to be sworn in was Kristen DelPino who is a patron of Urban Kitchen. She said it is hard to get organic and good quality food and did not appreciate the Board’s “dismissive” attitude; she hoped they get the outdoor seating. Two people then came forward to be sworn in, Alice Kurtanick and Cameron Castronova of Wall Township, sisters, who both said they would walk a mile for good food.
Next to come forward and be sworn in was Matthew Geroni who asked if patrons want to walk, what is the difference? He did not understand the parking issue and Mr. Rubino explained there is an Ordinance regulating parking, every town has a parking Ordinance and it affects the seating capacity for a business.
As there were no further comments or questions, that portion of the hearing was closed; Mr. Middleton did not have anything else to add. At this time Mr. Rubino said the Board has to make a motion to allow the applicant to operate under the May 2012 approval by the Zoning Officer allowing 4 tables and 5 counter seats. Mrs. Murdoch made this motion, seconded by Mr. Stenson and approved by the following roll call vote:
Ayes: Thomas Condon, Gina Murdoch, Charles Sarnasi, James Stenson,
As there was no further business to come before the Board, a motion was made by Mr. Stenson to adjourn, this seconded by Mr. Sarnasi and approved unanimously by the Board, all aye. The meeting was adjourned at 8:25 pm.
Karen S. Brisben, Recording Secretary