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A Community by the River

Borough of Brielle, NJ


November 10, 2015

December 30 2015

November 10th, 2015

BRIELLE PLANNING BOARD

TUESDAY, NOVEMBER 10, 2015

The Regular meeting of the Brielle Planning Board was held on Tuesday, November 10, 2015 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 Thomas Condon, John O’Donnell, Charles Sarnasi, Tim
Sigler, James Stenson, Terre Vitale

Absent Mayor Thomas Nicol, Councilman Frank Garruzzo, Eric Lapham, James Langenberger, Stacey Montalto

Also present - Karen S. Brisben, Recording Secretary, Joe Clark, Esq., Board Attorney, Board Engineer Alan Hilla Jr. from Avakian Engineering and Elissa Commons, Zoning Officer. There were 15 people in the audience and the Coast Star reporter recorded the hearings.

Mr. 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 Minutes of the October 13, 2015 meeting were approved on a motion by Mr. Stenson, seconded by Mrs. Vitale and approved by voice vote, all aye.

CORRESPONDENCE:

A copy of a CAFRA notice was received for Block 94, Lot 2-2.01, 401 Laurel Avenue, owned by Michael Zimmermann, to allow removal of an existing residence & pool, construction of a new residence & pool, rebuild and expand an existing dock, install two boat lifts.

NEW BUSINESS:

The Board turned to an application for Block 107.04, Lot 3, 1101 Aileen Road, owned by John & Sharon O’Donnell, to allow the construction of a pergola and outdoor fireplace. Front Yard Setback 40 feet required, 30.56 feet provided to the pergola and 32.19 feet provided to the fireplace.

The fees were paid, taxes are paid to date and the property owners within 200 feet as well as the newspaper were properly notified. Mr. O’Donnell, who is a member of the Board, stepped off the dais to present his application. He was sworn in and gave his address as 1101 Aileen Road; he said this is a corner lot so he has two front yard setbacks. The pergola and fireplace will be behind the existing fence and cuts in from the curb as the lot goes in, this created the need for the variance. He had submitted a photo of the pergola with his application and all members had a copy. Mr. Condon asked how high the pergola will be and the answer was 9 feet to the top, the fireplace will be 10 feet 8 inches. Mr. Sigler asked if these will affect the impervious coverage and Mr. O’Donnell said no; Mr. Sarnasi asked about the ground cover here and was told it’s just gravel.

As there were no more Board questions, the hearing was opened to the public for questions and, as there were none, that portion was closed. The hearing was again open to the public, this time for general comments and, again, there was no response so that portion was closed and the Board went into discussion.

Mrs. Vitale was in favor of approving this, Mr. Sigler felt it will improve the home & neighborhood and Mr. Sarnasi agreed. Mr. Condon also would be in favor as well as Mr. Stenson. At this time Mr. Stenson made a motion to approve the application, as presented, this seconded by Mrs. Vitale and then by the following roll call vote:

Ayes: Thomas Condon, Charles Sarnasi, Tim Sigler, James Stenson, Terre Vitale

Noes: None

Mr. O’Donnell came back on the dais and the Board proceeded to address the appeal hearing for Block 52, Lot 1, 622 Green Avenue, owned by 608 Green Avenue Associates, LLC, known as Waypoint 622 - Appeal of Zoning Officer’s findings and violations.

Mr. Condon announced to the audience that there will be no public comment as this is an appeal hearing on violations issued by the Zoning Officer, it is not a public hearing.

Mr. John Jackson, Esq. came forward to represent Waypoint 622. He said the Board is aware of the controversy since Mr. Larry Grafas took ownership and made improvements to the old Union Landing Restaurant. The neighbors complained about the band noise and Council is now working on a noise Ordinance.

He went on to say this is an appeal of the Zoning Officer’s decision and there is not a lot of guidance on how to handle this. The Zoning Officer started this and the Board has to apply the facts as they see it. He had provided an email, this afternoon, that lays out the case done by the Zoning Officer and said they are fundamentally in agreement but have a problem with the fine points.

He had two witnesses tonight, Tim Lurie of DW Smith, Engineering who was involved with the original design and Larry Grafas, owner of Waypoint 622. They are all here to appeal the decision of 8/7/15 from Zoning Officer Elissa Commons and he was going to go through issues A through G from that letter.

One issue is the side yard setback adjacent to Union Lane; Mr. Jackson said they did receive a permit to construct in this area, there was no objection from the inspector and a CO was issued. When bands started, along with the crowds, then the town had a problem. This area is now an active restaurant area where before it was a passive seating area, Mr. Grafas reconfigured it with a concrete deck and tables. This area was always part of the premises, they did not change its use and the liquor license covers this area.

Mr. Condon disagreed with this and remembers when it was the Union Landing there was a bouncer who would not let you leave the bar area and go there into this passive seating area. Mr. Jackson said that might have been done but that area could have been used. Mr. Sigler commented that there were no tables there either and Mrs. Vitale agreed, there was just bench seating. Mr. Jackson said they will abide by the Board’s decision but they feel this is a legal activity and for ½ the summer this was not looked into. They are trying to show that this was done with good faith, but if the Board agrees with the Zoning Officer then they will comply; he mentioned this area is not used now as it’s getting to be winter.

Mr. Jackson then said they do have a Site Plan application submitted, he had asked for a postponement of this appeal until the application is ready to be heard but Mr. Clark said the appeal will be heard first; the application will be to legitimize this appeal and, where there was passive seating, to have tables and chairs. He said one other element is that the seating capacity of the restaurant remains the same as the new bar area takes up more room.

The next item is item B on the Zoning Officer’s letter, the rear stairs servicing the deck and they disagree with the Zoning Officer on this. The stairs are in a different place and are larger, but they feel they had a right to put the stairs there. He then quoted a Statute done by the State after Hurricane Sandy and said they are entitled to put steps down to land. The elevation now is at 11 feet so they needed more stairs. He had exhibits that will show the stairs and that these were approved.

Regarding the Fire Lane, Mr. Jackson said there is no deed restriction and there are no signs, it just claimed to be a Fire Lane and it is not in any approved site plan they have seen. He said they did see an old site plan but that plan shows a second floor which was never done and he again quoted the law, 58:168-103 that this is not a site plan violation. They did not need a variance for stairs to this area.

Mr. Jackson then spoke of item C and a letter from the Zoning Officer dated 1/2/15, that part of the patio and deck can be replaced with the same footprint. The Zoning Officer said the expansion of the deck went into area not previously a deck. But what they did was to build a patio/deck in the same area, their plan does not stay in the existing footprint and it was pulled back 5 feet from the bulkhead and expanded to the other bulkhead; he said this was allowed and again quoted from 58:168-103 saying this new use is exempt. They felt they stayed within the footprint and could rebuild, this site was inspected and a CO issued. He also said the new expansion is the same square footage, they just changed the design of the deck and did not add to it.

Mr. Jackson then went onto items D & E, the fencing. He said this applies to the Hoffman’s Marina lot, they felt people can park on other people’s property and taking the fence down will keep people from parking on the street. As of this evening, the fence has been replaced and this will be addressed during the site plan process.

He then addressed item F, a five-foot landscaping buffer. He had photos of a fire hydrant that was replaced and landscaping removed, they had nothing to do with this and this also will be addressed during the site plan application. Likewise, a tree came down in this area with permission from the Shade Tree Commission.

At this time Mr. Tim Lurie of DW Smith Engineering came forward and was sworn in. He has been an engineer for 20 years and is a Professional Planner in N.J. with a Bachelors and Masters degree from Stevens Institute; he has been in front of many Boards as well as this one. He was accepted as an Expert Witness by the Board.

Mr. Clark then marked the following exhibits:

A-1 existing 2011 survey.
A-2 approved plan by Zoning Officer.
A-3 as-built of deck 2015.
A-4 as-built versus existing version approved.

Mr. Lurie said the site is on the corner of Union Lane and Green Avenue and has 42,445 square feet. The site itself has a parking area, 3 buildings, concrete walkway between the restaurant and Union Lane where a coy pond was. On the water side there is a concrete patio and upper floor of a covered patio with steps to another concrete area. Mr. Clark commented this is all shown on Exhibit A-1.

Mr. Lurie said he was familiar with this site and has been going here for years; he was involved from the beginning of Hoffman’s Marina East and West and was before this Board for the condos and marina. Mr. Grafas purchased Union Landing Restaurant and then Hurricane Sandy hit. The elevation of the restaurant is at 11 feet and the lower area is at 4 feet; they went to the DEP to make the deck level and received a “no interest” letter, they did everything correctly. After they received the DEP letter they created a plan to give to the Zoning Officer, which is now exhibit A-2, an elevated deck and canopy. The original deck was at elevation 11 and the deck by the river was at elevation 5 and was impacted by Hurricane Sandy as the whole lower patio was under water to the retaining wall. So they decided to raise the deck for flood issues and keep it all level. Mr. Lurie said it was okay to do this and it was being done all along the coast.

He then referred to Exhibit A-2 again and showed the design of the new deck, it seemed to meet the needs. They submitted this and received a letter, dated 1/12/15 and the plan was stamped approved from Brielle. Mr. Clark then marked Exhibit A-5 which was a copy of the proposed deck and canopy marked approved by Zoning. He noted that concrete steps are shown but not the number of steps.

Mr. Lurie said there is also nothing on a Fire Lane, it’s all impervious blacktop and then a concrete area. They made the deck here which makes less impervious surface. The second Zoning Officer letter, dated 1/30/15 which spoke of bringing the deck into conformance and this made sense. He referred to Exhibit A-2 and A-3. He said they shortened the original plan by 5 feet and square it off so it matched the 2011 area. Exhibit A-4 is a composite overlay of the 2011 survey and the modified deck without the lines of the deck and the area moved.

Mr. Jackson asked if there was a structure here in 2012 and Mr. Lurie said yes. Mr. Jackson then read the definition of “structure” from the Municipal Land Use Law and said this applied here, the deck is now made flood compliant at elevation 11. As far as the stairs he referred to Exhibit A-3, at the water side (south side of the deck) and they extend 5 feet in width at the east end of the property. Exhibit A-2 shows the stairs that extend to Union Lane and Exhibit A-3 shows they are in an appropriate location and away from Union Lane, ingress and egress; there was no place else to put the stairs. They were submitted on the structural plans approved by the town.

Mr. Jackson then asked Mr. Lurie about the side area where the coy pond was and Mr. Lurie showed that area in Exhibit A-1, which showed the coy pond and walkway around it, all impervious coverage with one small area of pervious coverage.

Mr. Clark then marked as Exhibit A-6 a photo of the fire hydrant by their property. Mr. Jackson said they also had an inspection approval and that was marked as Exhibit A-7; Exhibit A-8 was a photo of the area. Mr. Sigler asked Mr. Lurie if they took into considering Fire Lanes and Mr. Lurie said they will address this at the time of the Site Plan application. Mr. Sigler asked if perhaps they should have asked if that was a right-of-way where they put the stairs and Mr. Lurie said the condition there could not be used and they had to provide access to the water way. Between the stairs and bulkhead is 12.6 feet which is enough room for people and fire hoses.

Mr. Condon noted the reference of “no interest” letter from the DEP is not on file but the Board does have one from 9/18/15 to the DEP. He asked if Mr. Lurie had that original letter and the answer was no. Mr. Condon said the Board would like to see it.

The next item to be marked was an ABC license for the premises, marked as Exhibit A-9. Mr. Condon went back to the Fire Lane issue and said there are signs on the bulkhead that say “No Parking Fire Lane.” Mr. Lurie said he did not see them. Mr. Jackson presented a photo of the pilings removed around 2015 and this was marked as Exhibit A-10. Mr. Condon asked if this was part of the appeal and was told no, they were just showing this area is not safe for a fire truck. Exhibit A-11 was marked, this a second bulkhead photo and Exhibit A-12 was a photo of a tree on the property.

Ms. Commins asked if they got final approval for replacement of the deck and patio, her letter dated 1/12/15 authorized replacement of the deck as shown on Exhibit A-5, that was the date of release and approval. She was happy it was changed but it was never authorized to be done the way it was. Her second letter authorized a canopy but not the deck. After several discussions with Mr. Grafas she thought he understood and she did not have another plan for the deck or canopy and wanted to make that clear. There was no actual plan to reference, they were told they can simply replace what was there before. She again stated she was pleased with the new construction but again emphasized it was never authorized. She said that, as far as Chapter 58:168-103 she has never seen this applied to what has been rebuilt. Mr. Jackson then referred to subsection “C”, which speaks of reconstruction; Ms. Commons then referred to subsection “D” and Mr. Jackson stated this is a matter of semantics. They can’t raise a concrete slab and they thought they had latitude to do what they did.

Ms. Commins then asked Mr. Lurie if he ever advised Mr. Grafas to have an inspection during construction and Mr. Lurie said no. Mr. Sarnasi asked about the architectural plans for the deck, it would show the size of the deck approved for building. Mr. Condon referred to Exhibit A-8 and the retaining wall that was removed and expanded, he wanted to know if this needs Site Plan approval. Mr. Jackson said that was built over the deck which had a planter there. Mr. Condon then asked if this is a retaining wall or a planter? Mr. Lurie explained the planter was constructed on top of the area and water came up into that area, it was not a retaining wall, the retaining wall was behind it. Mr. Clark marked as Exhibit B-12 the structural plans of the current deck. Mr. Jackson said there was a difference of 5 feet between the decks so it needed a retaining wall.

At this time Mr. Larry Grafas came forward and was sworn in, he gave his address as 13 Oval Road in Millburn, N.J. He started by agreeing with Mr. Condon regarding signs for the Fire Lane, there is a sign on the end of Union Lane. He then stated he is the owner of this property and has been familiar with the site for 25 years, he purchased the property with a low deck and a high deck. He works in construction and knows about plans and wanted to make improvements so he hired professionals to help him. He wanted to create a new deck and hired DW Smith whom they had been working with and they designed a deck, they submitted the paperwork and got the permit. They wanted to build a deck on one level to help with handicapped access; he didn’t know about inspection and what was inspected, they had Zoning approval and didn’t know they needed zoning approval for the deck until the August 7th letter.

Mr. Jackson asked about the damage to the deck after Hurricane Sandy and Mr. Grafas said the bulkhead was falling into the water and has to be braced up; he said that age and neglect also played a part. He met with Mr. Imgrund of the Shade Tree Commission at least a half dozen times and planted under his suggestions, he planted 60+ trees on 623 Green Avenue across the street and also left trees he said to leave alone. On the other side where the fire hydrant was put in they did not do shrubs there and the other corner is where they took the tree out.

As far as parking they are guilty as they took down a fence and opened up to the lot next door; he said they were more successful than they anticipated and felt that using an empty parking lot was a fix for parking. He commented that patrons of the Sand Bar use their lot and when there is a wedding at the River House they use their lot also. He said that they have since replaced the fencing and it is back up.

Mr. Jackson asked him about the coy pond. Mr. Grafas said the coy pond and an oil tank had to be removed, they took up the concrete walkway and the coy pond, which was empty when he bought the property. He found out in August they can’t use that area and they are not using it now. Mr. Jackson asked Mr. Grafas if they could use the two decks as originally there and Mr. Grafas said no, it would not work.

Mr. Stenson said that in Ms. Commins letter she said the deck was constructed beyond the permit. They say the deck is in the same footprint, so the only thing in violation is the steps? Mr. Jackson answered yes. Mr. Stenson asked if they have the seating plans from before and now so the Board can compare them. Mr. Grafas answered and said there is maybe a difference of 5-10 seats. They took out the bar that had 18 stools and replaced it with a bar that is 20x45, 900 square feet, with 36 bar stools. The area they took out for this expansion were old tables and metal chairs and they just moved them over. Mr. Stenson asked if the pond area is included in their figures and Mr. Grafas said no, that is excluded from here.

Mr. Sarnasi asked what did Mr. Grafas know about the Fire Lane and he said he did not know anything, he met with Tom Nolan, Borough Administrator, and said his survey did not show the 12 feet of bulkhead to him, it really belongs to the town. The town fixed the bulkhead; Mr. Grafas then met with Rod Zarelli, the Fire Chief, who said you can’t put a Fire truck here. Mr. Sarnasi then said the new bulkhead will not hold a fire truck and Mr. Grafas said that was correct. Mr. Jackson said that Exhibit A-1 shows Hoffman’s and Waypoint and a sign on the other side that says Fire Lane, there is also a drafting port there.
Mrs. Commins asked if there is a continuous patio to the old pond area now and the answer was yes. Mrs. Commins said there is a section in the “as built” that continuously flows into the rear deck, a white area on Exhibit A-3. This was where the coy pond was and it is now a patio, that is an expansion. Mr. Grafas said they can put planters on it and make it a passive seating area.

Mr. Jackson told the Board they now have had an opportunity to hear this and he hoped the proofs submitted are straightforward. They had to raise the deck and they have put a lot of work into it and he did try to get approvals. They could understand the issues with the coy pond/passive seating area, this wasn’t done in defiance and they hope they presented the proofs needed.

At this time Mr. Condon called a 5 minute recess and then the Board will hear testimony from Elissa Commins, Zoning Officer. After this recess Elissa Commins came forward and was sworn in, she is the Zoning Officer for Brielle Borough and she did the letter of August and two in January. She said Mr. Grafas has been doing this since 2014 when she started as Zoning Officer, he did come in with a CAFRA “no interest” letter but she told him the town needs a site plan approval for what he wanted to do. She has met with his attorney and him and also Tom Nolan, Borough Administrator. She told him he could replace what was there and not go any closer to the water, he wanted to replace the decks and patio that existed. Then he added a canopy and she authorized/approved that in January 2015. She didn’t hear much until Memorial Day and found it to be quite different then. In August she took photos and had to issue violations, this was in the August 7, 2015 letter. The patios and decks were elevated into the area on the side that was passive seating, he turned it into active seating; this needs site plan approval and is an expansion; also, the rear stairs go into the Fire Lane and are higher than 3 feet they may need CAFRA approval as they are closer to the water.

She went on to say the Planning Board also needs to give parking approval at the time of the site plan review and violations #E through #F require this approval from the Planning Board. They are sharing open space, landscaping she could appreciate Mr. Grafas meeting with the Shade Tree Commission but the plans must be done by a landscape architect and be approved by the Board and this was not done. She visited the site and additional work has been done, she thought maybe one parking space has been removed but all this can be addressed through the site plan process.

Mr. Condon asked her if he can put the stairs in and she said she is a Flood Plain Manager and it is not required. Mr. Condon then asked about the fire hydrant and was that done by the Borough contractor; she said there is a new hydrant there and she didn’t know the details about it or the landscaping; she didn’t think Mr. Grafas put in the fire hydrant. Mr. Condon asked her about the area that buffered the lower deck form the upper deck and was that an expansion of use, the answer was yes, a staircase could be done. He then asked if one continuous patio is safer and she said yes and its also more accessible. Mr. Jackson commented a retaining wall was used here but Mrs. Commins stated she didn’t know if it was needed. Mr. Jackson then said you don’t need stairs to elevate a structure and Mrs. Commins said it is a structure that was raised, she was not familiar with a statute on the need for this. Mr. Jackson then quoted the statute and showed it to Mrs. Commins; she said if someone reconstructs and needs a variance they have to come to the Board. Mr. Jackson said they could also appeal to the Board, Mrs. Commins said she could see his reasoning of the details of the statute but she would not change the way she did this and still felt it was a violation; this is a “replacement” of a deck, not a “reconstruction” of a deck. There would be no site plan approval needed if they built within the same envelope.

Mr. O’Donnell asked her about the rear setback and is there a violation there, the answer was yes, he then asked about the stairs and Mrs. Commins stated they could be in violation as the rear setback is 30 feet and there is a CAFRA provision that says the rear is 15 feet. The deck and patio were made into one level and the patio was expanded into the coy pond, as shown on Exhibit A-3. The testimony given was that the stairs are 12.3 feet from the bulkhead. Mr. Condon felt this did need site plan approval. Mr. Lurie said this is a corner lot so they looked at this as two side setbacks but Mrs. Commins said this is actually two front setbacks, the water is the rear yard and Hoffman’s is on one side.

Mr. Jackson said this is a strange bird and felt this whole thing was being handled in an awkward manner. The town has to apply the law and they should not be on an unequal footing because of the Zoning Officer, he still thought you can put the stairs there without a problem, this is what the statute says and they have rebuilt in the existing footprint; he felt they followed the law for the deck and they are in compliance with State Law.

At this time Mr. Clark told the Board they can vote now or come back next month and take a vote then. Mr. Condon felt that each issue should be voted on separately and done this evening. Mr. Clark explained that the standard here is to see if the Zoning Officer acted correctly, he said the Fire Lane is not within this Board’s jurisdiction. Mr. Condon felt the notion of a “Fire Lane” is misleading as it’s used by Police and First Aid as well, there is a plan from 1979 that shows a Fire Lane, it has been repaved and there were signs there saying it was a Fire Lane; its really an Emergency Access Lane.

The Board then went into voting on each item of the August letter, starting with item A: Side Yard area, going from passive seating to active seating. Mrs. Vitale felt the area should stay the same as it was and this is an expansion of use; the rest of the Board agreed with her and Mr. Condon noted it does increase the square footage. Mrs. Vitale made a motion to uphold the Zoning Officer’s determination, this seconded by Mr. O’Donnell and then by the following roll call vote:

Ayes: Thomas Condon, John O’Donnell, Charles Sarnasi, Tim Sigler, James Stenson, Terre Vitale

Noes: None

The next item was item B: rear stairs beyond the footprint. The Board agreed with the Zoning Officer’s determination on this matter and Mr. Stenson made a motion to uphold the Zoning Officer’s findings, this seconded by Mrs. Vitale and then by the following roll call vote:

Ayes: Thomas Condon, John O’Donnell, Charles Sarnasi, Tim Sigler, James Stenson, Terre Vitale

Noes: None

The Board then turned to item C: the new deck construction is an expansion. Mr. Sarnasi felt the way the deck was done was okay and Mr. O’Donnell agreed with him, the rest of the Board felt it was an expansion. Mrs. Vitale made a motion to uphold the Zoning Officer’s determination that this was an expansion of use, this seconded by Mr. Sigler, then the following roll call vote:

Ayes: Thomas Condon, Tim Sigler, James Stenson, Terre Vitale

Noes: John O’Donnell, Charles Sarnasi

The next point was item D: fencing. Mrs. Vitale asked if this still has to be voted on as the fencing was replaced and Mrs. Commins agreed, this was corrected. Mr. Clark said they still had to vote on whether this should be upheld or not so Mrs. Vitale made a motion to withdraw item D and not uphold the ruling on this, this seconded by Mr. Sigler and then by the following vote:

Ayes: Thomas Condon, John O’Donnell, Charles Sarnasi, Tim Sigler, James Stenson, Terre Vitale

Noes: None

The Board felt they could just bypass item E as it spoke of sharing a yard, this was taken care of in the vote for item D. They then turned to item F: 5 feet of landscaping needed. Mrs. Vitale did not think there was landscaping there and Mr. Condon said this will be addressed at the time of site plan review. Mr. Clark commented we don’t know who removed any landscaping so this is not an issue. Mrs. Vitale then made a motion to not uphold this ruling by the Zoning Officer, this seconded by Mr. Sigler and then by the following vote:

Ayes: Thomas Condon, John O’Donnell, Charles Sarnasi, Tim Sigler, James Stenson, Terre Vitale

Noes: None

The last item for consideration was item G: off street parking requirements. The Board noted there was no testimony given on this issue of parking, so Mrs. Vitale made a motion to uphold the Zoning Officer’s determination, this seconded by Mr. Stenson and then by the following roll call vote:

Ayes: Thomas Condon, John O’Donnell, Charles Sarnasi, Tim Sigler, James Stenson, Terre Vitale

Noes: None

Mr. Condon then announced that the appeal hearing was concluded. As there was no other business to come before the Board a motion to adjourn was made by Mr. Sarnasi, seconded by Mr. Stenson and unanimously approved, all aye. The meeting was adjourned at 9:55 p.m.



_______________________________
Karen S. Brisben
Recording Secretary

Approved: December 8, 2015


 

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