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A Community by the River

Borough of Brielle, NJ


December 10, 2013

February 05 2014

December 10th, 2013

BRIELLE PLANNING BOARD

TUESDAY, DECEMBER 10, 2013

The Regular meeting of the Brielle Planning Board was held on Tuesday, December 10, 2013 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 – Councilman Frank Garruzzo, Thomas Condon, James Langenberger, Gina Murdoch, Tim Sigler, James Stenson, Nicholas Stango

Absent – Mayor Thomas Nicol, John O’Donnell, Charles Sarnasi, Terri Vitale

Also present was Karen S. Brisben, Recording Secretary and Michael Rubino, Board Attorney. There were 15 people in the audience.

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.

After Mrs. Brisben noted a correction to the Minutes (on the last page 4 tables were listed as approved for Urban Kitchen and it should read 3 tables) the Minutes of the November 12, 2013 meeting were approved on a motion by Mr. Stenson, seconded by Mrs. Murdoch and approved unanimously by voice vote, all aye.

CORRESPONDENCE:

Copy of a notice for a CAFRA permit application was received for Block 98, lot 1-2.01, 912 Jordan Drive, owned by Jerry & Linda Kokes, for construction of a deck & shoreline stabilization.

OLD BUSINESS:

The Board turned to the approval of a Resolution for Block 63.01, Lot 17, 715 Schoolhouse Road, Joseph & Kathryn Oehme, to allow a second story addition to an existing garage.

As all Board members, as well as the applicants, 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 New Jersey has before it an application before it for variance relief on behalf of Joseph and Kathryn Oehme for premises known as 715 Schoolhouse Road in the Borough, said premises also being known as Block 63.01, Lot 17 the premises lying in the R-2 Zone, and the applicants having representing themselves Pro Se and having submitted a drawing dated October 4, 2013 done by Paul K. Lynch, L.S., the Board having heard the matter on November 12, 2013 meeting and at that time having listened to the testimony of the applicants and no objectors appearing; 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 applicant appeared before the Board at its November 12, 2013 hearing. At that time the applicants presented their case as to why a variance should be granted to allow them to allow them to construct an addition to the existing one story garage on the premises.
2. The Code Enforcement Officer ruled that the application is in need of a variance because “Code Section 21-12.12.2(a)2(a) requires a minimum rear setback of 2/3 of the proposed accessory building height (for accessories exceeding 15 feet in height). The proposed full second story addition would drive the proposed building height to 25.25 feet, so the required rear setback back for this condition would be 16.83 feet. The existing structure (one corner) is 0.83 feet from the rear property line. Accordingly, a bulk variance will be required for this proposed non-conformity.”
3. The existing structure lies .83 feet off of the existing property line. The applicants purchased the home one and a half (1 ½) years ago. They subsequently learned of the faulty construction of the roof of the existing garage. They do not plan on enlarging the area. The footprint will remain the same. However, they will be adding some height to the existing garage, which will allow it to drain better and also be better constructed. It should be noted that the garage backs up to the Greenwood Cemetery, therefore there are no homes in the area that would be immediately affected by this application.
4. The Board also finds that the relief requested is reasonable in nature because of the existing location of the garage and the need to repair it, it would be impossible to do so without granting of the relief requested. The Board therefore finds that the hardship exists for this matter.
5. In granting the application the applicants represented the additional area in the garage will be used for storage not living quarters and would heated with electric in that portion of the building. There will be no pluming. They agreed that the premises will in no way be used for living space and agreed that that would be a part of the resolution.
NOW THEREFORE, be it resolved by the Board that it adopts the aforesaid findings of fact, and based upon the aforesaid finding the Board concludes that the applicant has satisfied the necessary criteria for granting the “C” Variances. The Board also finds and concludes that with respect to the “C” Variances:
(a) The Board finds that by reason on an extraordinary and exceptional situation that uniquely affected the subject property and the structure which exists lawfully thereon the strict application of the aforementioned regulations would result in peculiar and exceptional practical difficulties to, or exception and undue hardship upon the applicant. It should be noted that the Board finds that the building and structures at the site exist there lawfully;
(b) 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.
(c) The Board finds that the relief can be granted without substantial detriment to the public good and that the relief will not substantially impair the intent and purpose of the Zone Plan and Zoning Ordinances of the Borough.

WHEREFORE, BE IT RESOLVED, that the Planning Board of the Borough of Brielle, does hereby dissolve to hereby grant variance relief to Joseph & Kathyrn Oehme for premises known as 715 Schoolhouse Road, Block 63.01, Lot 17to allow them to add an addition as set forth on the aforementioned plans within .83 feet of the property line subject to the following conditions. The maps cannot be signed until conditions 4 through 6 are met:



GENERAL CONDITIONS
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 application, all attachments thereto, and all exhibits offered by the applicant being accurate depictions of that which they purport to represent.
3. 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.
4. 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.
5. Subject to the applicant obtaining and complying with the approval of any other reviewing agency having jurisdiction over the improvement 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.
SPECIFIC CONDITIONS
1. The subject garage shall not be any way used for living quarters.
2. There shall be no plumbing added to the area of the proposed addition.

Further, this Board directs that the Land Use Office take whatever steps it may deem necessary to insure that restoration of this site to its original condition 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 Councilman Garruzzo, seconded by Mr. Stenson and approved by the following roll call vote:

Ayes: Councilman Frank Garruzzo, Thomas Condon, James Langenberger, Gina Murdoch, James Stenson

Noes: None

Not Eligible to Vote: Tim Sigler, Nick Stango

The Board then turned to a Resolution of approval 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 & retail food establishment.

As the applicant & their attorney, as well as all Board members, 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, has before it an application for an appeal from the determination of James Langenberger, Borough of Brielle Code Enforcement Officer, said matter being heard on November 12, 2013, and at that time the applicant having been represented by Timothy B. Middleton, Esq., and the Board having listened to the testimony that was presented to the Board along with the testimony of persons of interest and persons who have had objections to the matter and the Board having opened the meeting to the public; 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, James Langenberger, Code Enforcement Officer of the Borough of Brielle, forwarded a letter to Local Urban Kitchen, 406 Higgins Avenue, Brielle, New Jersey, which set forth the following:
“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, which restaurants require one (1) parking space per 100 square feet.
The Borough Tax records indicate commercial space at the referenced property of 1,000 square feet, yielding an off street parking requirement of five (5) spaces for retail sales of food and ten (10) spaces for restaurant. As the subject property maintains five (5) spaces for the commercial uses, 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.”
2. It should be noted that at the time that Mr. Langenberger sent out that violation the Borough Zoning Officer, Glenn D. Lines was seriously ill and not in the office. As a result, Mr. Langenberger was not aware of the zoning permit which had been issued to Maged Fattah, President of Local Urban Kitchen on May 12, 2012. That letter of Mr. Lines set forth the following:
“I am in receipt of your zoning Permit Application package (received April 24, 2012) to allow use of the subject structure for deli/café/catering/take out restaurant. the package includes an architecture sketch (1 sheet), undated, depicting the proposed floor plan of the building with three (3) tables for dining in the building, and the appropriate Zoning Permit fees. At this time, your request is hereby APPROVED subject to the following condition(s):
• Receipt of all applicable Construction Code permits as issued through the Borough Construction Office (located at Spring Lake Borough Hall).
• Any changes to the size or location of the signage on the building will require a Zoning Permit for review of the new signage for compliance with the Zoning Ordinance.”
3. Attached to that letter was a sketch which showed three (3) tables and five (5) counter seats. The table did not have any chairs drawn but the Board deters that each table would have four (4) seats per table. Subsequent to Mr. Line's letter of May 2, 2012, the applicant took possession of the site and claims to have spent hundreds of dollars renovating the site and it appears that it was clear that he was opening up a delicatessen with seating. It also appears that subsequent to opening the applicant expanded the use both inside the premises and established more tables and also expanded the use to outside tables. As a result of that complaints were made to the Code Enforcement Officer and hence the letter was written by Mr. Langenberger.
4. Due to a conflict with the Board Engineer, the Board hired Matthew J. Zahorsky, P.E., C.M.E., to review the application on behalf of the Board. Mr. Zahorsky issued a report indicating that the Zoning Permit permitted a deli/café/catering/takeout restaurant to occupy the building, and also specifically limited the interior seating to three (3) tables and five (5) counter seats. Mr. Zahorsky issued an opinion that the applicant should be entitled to operate within the confines of the Zoning Permit issued by the Zoning Officer, which would include three (3) tables and five (5) counter seats. He further opined that if the applicant was to expand the operation further than what was approved by the Zoning Officer, than the Zoning Permit, Application and Site Plan should be submitted to the Zoning Officer for review and subsequent decision as to whether site plan approval and any associated variances would be required.
5. The Board is in agreement with Mr. Zahorsky and believes that even though there is not sufficient parking at the site since a Zoning Permit was issued by the Borough Zoning Officer in good faith, that it is not the Board’s responsibility to revoke the Zoning Permit. However, the Board finds that the applicants expanded use of the premises and creating more tables and seats both inside and having outdoor dining is wrong and is not permitted. The Board further believes that in the event that the applicant wants to expand the use of the premises, it should go through proper procedure that is to seek approval from the Zoning Officer, and assuming the same would be denied, then to file a site plan with necessary parking variances with the Board. If the applicant can file a direct application with the Board requesting site plan with parking variance approval.
6. The applicant and part of its application did ask for some sort of site plan with variance. It should be noted that that issue was never raised at the Board meeting and the Board is leaning at that section of the application that is either denied or withdrawn.

WHEREFORE, BE IT RESOLVED, that the Planning Board of the Borough of Brielle, County of Monmouth and State of New Jersey does hereby resolve to reverse so much of Mr. Langenberger’s decision for as to allow that was permitted by the Zoning Permit issued in May 2, 2012 which is specifically permitted a deli/takeout restaurant and limit the seating to five (5) counter seats with three (3) tables. As noted above the Board is allowing four (4) seats per table as reasonable interpretation of how many seats should be allowed at each table. The Board also determines that in the event that the applicant seeks more than that which is set forth herein, that it should file a site plan with variance application with the Board and also encourage the applicant at the hearing that it was going to do so to seek alternative parking, if available in the area.”

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, James Stenson, Nick Stango

Noes: None

Not Eligible to Vote: Councilman Frank Garruzzo, James Langenber, Tim Sigler

Mr. Rubino asked about the court case on this matter and was told they did appear in Municipal Court and had about $5,000 in violations they had to pay. They may be back to the Planning Board.

NEW BUSINESS:

The last item of the evening was an application for a variance for Block 76.01, Lot 7, 803 Ashley Avenue, owned by Richard & Laurie Schuler, to allow a constructed treehouse to remain where located. Front Yard Setback – 40 feet required, treehouse is less than 1 foot from Brown Street right-of-way, 39 foot setback variance requested. Also installing an outdoor shower: Rear Yard Setback – 40 feet required, 10 feet proposed, 30 foot variance requested.

Before this hearing started Mr. Langenberger recused himself and left the dais. Mr. Condon asked about setback issues as the roof on this treehouse goes over 2 feet into the Borough right-of-way and Mr. Rubino explained the Board can grant a variance to the setback but not over it, that has to be approved by the Governing Body. He was also concerned because the application stated the treehouse will be used to “play and sleep in” and, for the Board to allow that a Use Variance would have to be given and a Use Variance was not asked for, this treehouse cannot be used for sleeping quarters unless there is approval from the Board.

At this time Laurie Schuler came forward and was sworn in, she & her family live at 803 Ashley Avenue. She testified that they did not realize the treehouse was in violation and they have put up gutters and leaders to protect from snow. Mr. Sigler asked if she had gotten a permit to build this structure and she said she was told by the Zoning Officer that she did not need a permit to build a treehouse, he just advised her to build it safely and have fun, there is nowhere in the Zoning Ordinance that refers to a treehouse. Her husband is a builder and the treehouse is built well.

Mr. Rubino asked if the treehouse obstructs anyone’s view and Mrs. Schuler said it is a mini-model of their home and did not think it obstructed a view. Councilman Garruzzo said his big concern was the overhang onto the Borough road, if anyone falls there is a concern. Mr. Condon asked if anything can be done to remove the overhang and Mr. Schuler came forward to be sworn in. He said the overhang is two feet and it could be cut back if needed but it would change the whole look.

Mr. Condon said this is not your average treehouse, if a tree supports it that is one thing but this has posts in 4 corners supporting it which makes it a permanent structure; he thought this was where the confusion comes in as far as the Zoning Officer’s comments – there are liability issues. Mr. Rubino reminded the Board they do not have the right to allow this to overhang into the Borough’s right-of-way and, if the Board approves this variance the Schulers will have to go to the Governing Body for a Hold Harmless Agreement. If the Governing Body says no the Schulers will have to remove the overhang to the property line and can go no further.

As there was no further testimony and meeting was opened to the public for questions only to the Schulers; hearing none that portion of the meeting was closed and the hearing was opened to the public again, this time for general comments.

Before this started, Mr. Rubino reminded the Board there is another part to this application, to allow an outdoor shower. Mrs. Schuler said this became an issue as their home is on 3 corners and thus a variance was needed. Mr. Schuler said the shower is mostly installed, they have tied into the sewer system, the hard part is done.

The hearing was again opened to the public for questions on the shower and as there was no response that portion was closed and it was opened for comments.

Mr. Michael Carr of 405 Brown Street came forward and was sworn in. He is a big fan of the treehouse and it should stay in place. Holly Sinclair of 802 Ashley Avenue came forward and was sworn in. She loves it and has no problem with its location. Michael Treese of 401 Brown Street came forward and was sworn in. He lives right across the street from the creative treehouse and his grandkids & he love it, he thinks it adds charm to the neighborhood. Tim Burke of 404 Brown Street came forward and was sworn in, it’s right next to his home and he has no problem at all with it, it is beautiful. Debbie Jeffrey of 804 Ashley Avenue came forward and was sworn in. She felt it was done tastefully and looks forward to seeing the inside with her grandchildren. Elizabeth Burke of 404 Brown Street came forward and was sworn in. She said all the children love it.

Joe Crecca of Ashley Avenue came forward and was sworn in. He used to be a member of the Board of Adjustment and knows that all kinds of issues have to be taken into consideration. Brielle is special and he felt their corner of town was also special, he has an old windmill at his house and people have suggested he take it down as it requires maintenance but it is special to him – he felt the same way about the treehouse and said the Schulers did made an effort to find out what to do and then did was a reasonable person would do; he hoped the Board could find a way to make this work. Mary Jane Beretta of 810 Ashley Avenue came forward and was sworn in. She is a realtor and shows homes in the area and people she takes around always comment on how charming this treehouse is.

As there were no further comments that portion of the hearing was closed and the Board went into discussion. Mrs. Murdoch has no issues with approval as long as there is protection for the town. Mr. Stenson agreed and felt the Schulers should go to the Council or remove the overhang; Mr. Stango agreed with what was said by the other members. Mr. Sigler asked how far out is it from the shower to the property line. As it was not shown on the plan Mr. Rubino asked that Mr. O’Malley, who did the plan, send him specifics on how far the shower is to the property line.

Councilman Garruzzo said it was the coolest treehouse he has ever seen but was concerned with the easement needed. He felt the overhang either had to be cut or the Schulers have to apply to the Governing Body for the Hold Harmless Agreement. Mr. Condon said the problem is that this is now a permanent structure and goes right to the property line, but he did agree that the Schulers did asked about a permit and were told one was not needed. He is in favor of both the treehouse and outdoor shower but there has to be an agreement with the Governing Body or trim the overhang back.

Mr. Rubino asked the Schulers if they were willing to go to Council for a Hold Harmless Agreement and they said yes they would. Councilman Garruzzo suggested they attend the January 13th meeting of Council so this can be taken care of before the Planning Board meeting on the 14th. At this time Councilman Garruzzo made a motion to approve this application with the stipulation that a Hold Harmless Agreement be made with the Council, this seconded by Mr. Sigler and approved by the following roll call vote:

Ayes: Councilman Frank Garruzzo, Thomas Condon, Gina Murdoch, Tim Sigler, James Stenson, Nick Stango

Noes: None

Before adjourning, Mr. Rubino explained he is getting older and wants to cut back on some of his work and is ready to leave working for the Brielle Planning Board. He has discussed this with the Mayor and Mr. Rubino told him if he can’t find a replacement he will be back in January.

As there was no further business to come before the Board a motion was made by Mr. Stenson to adjourn, this seconded by Councilman Garruzzo and approved unanimously by the Board, all aye. The meeting was adjourned at 8:05 pm.

Karen S. Brisben, Recording Secretary

Approved:






 

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