02/27/2025 Zoning Board Meeting

City of Cape May Zoning Board of Adjustment Meeting Minutes Thursday, February 27, 2025 Opening: The meeting of the City of Cape May Zoning Board of Adjustment was called to order by Chairperson Terri Werner at 6:00 PM in the City Hall Auditorium. In compliance with the Open Public Meetings Act, adequate notice was provided. Roll Call: Mrs. Werner, Chairperson Present Mr. Venuto, Vice Chairperson Present Mr. Ledwin Present Mrs. Notch Present Ms. Sheehan Present Mr. Walsh Present Mr. Zektzer Absent Mr. Yeager (Alt. 1) Present Ms. Stevenson (Alt. 2) Present Also Present: Richard King, Board Solicitor Craig Hurless, PE, PP, CME, Board Engineer & Planner Karen Keenan, Board Assistant Resolution(s): Motion made by Mr. Ledwin to adopt Resolution number 02-27-2025: 1, Steve Kawalek, 1206 Maryland Avenue, Block 1132 Lot(s) 7 & 8, seconded by Mr. Venuto and carried 7-0. Those in favor: Mr. Ledwin, Mrs. Notch, Ms. Sheehan, Mr. Walsh, Mr. Yeager, Mr. Venuto, Mrs. Werner. Those opposed: None. Those abstaining: None. Minutes: Motion was made by Mrs. Notch to adopt the meeting minutes of January 23, 2025, seconded by Mr. Walsh and carried 7-0. Those in favor: Mr. Ledwin, Mrs. Notch, Ms. Sheehan, Mr. Walsh, Mr. Yeager, Mr. Venuto, Mrs. Werner. Those opposed: None. Those abstaining: None. Application(s): Katherine & Robert Barbaro 106 Second Avenue, Block 1013 Lot(s) 10 Attorney Ronald Gelzunas of Ronald J. Gelzunas LLC introduced the application seeking hardship and substantial benefit variances to construct a 12’ by 16’ rooftop deck. He advised that variances were previously granted in 1988 for this property, and the deck will not expand the nonconformities or affect the previous approval. City of Cape May Zoning Board of Adjustment Meeting Minutes, February 27, 2025 Page 1 Owner Robert Barbaro and Architect Paul Farnan were sworn in by Solicitor King along with Board Engineer and Planner Craig Hurless for the record. Architect Farnan presented his credentials and was accepted as an expert in architecture by Chairperson Werner. Architect Farnan described the existing conditions at the property and said the proposed rear deck will be over the roof. He said there is no increase in lot coverage and no encroachment into any setback. He said the deck is to be on an interior beam, so the location and height may change slightly. Engineer Hurless asked that notations be made in the plans for this possible change to the structural member to be determined during construction and also note that there will be no encroachment into the setbacks. Architect Farnan said the deck will not be seen from the street. He testified there is no negative impact on the neighborhood and no substantial impairment to the zone plan or zoning ordinance. Board members were allotted time for questions of Architect Farnan. Member Notch asked about Historic Preservation Commission (HPC) approval. Architect Farnan said they did not seek HPC approval before the meeting but will seek HPC approval after learning the decision of the Zoning Board. Engineer Hurless then summarized his memorandum dated November 21, 2024. He described his completeness review and the waivers he supported. He summarized the details of the lot size, lot width, lot frontage, and the building and side yard setback variances requested. The General Review Comments 1-8 were reviewed and explained in detail with all items being classified as conditions of approval. Engineer Hurless advised the Fire and Public Works Departments and Shade Tree Commission recommended approval of the project in their reports dated January 13, 2025, January 9, 2025 and January 22, 2025, respectively. Board members were allotted time for questions of Engineer Hurless. Discussion was opened to the public within two hundred feet and beyond at 6:21 PM and closed with no public coming forward to comment. Attorney Gelzunas summarized the application in his brief closing statement. Solicitor King explained the vote to the board. Motion was made by Ms. Sheehan to grant the variances for §525-15B(1) Table 1 Lot Size, §525-15B(1) Table 1 Lot Width & Lot Frontage, §525-15B(1) Table 1 Building Setback, §525-14B(1) Table 1 Side Yard Setback and §525-73E Zoning Review variances, subject to waivers 19, 26, 27, 28 & 33 and condition 18 listed on page two and conditions 1-8 as outlined on pages four and five in the November 21, 2024 memorandum by Craig R. Hurless, PE, PP, CME, and subject to all conditions discussed at the hearing, seconded by Mr. Venuto and carried 7-0. Those in favor: Mr. Ledwin, Mrs. Notch, Ms. Sheehan, Mr. Walsh, Mr. Yeager, Mr. Venuto, Mrs. Werner. Those opposed: None. Those abstaining: None. Alan & Sherry Blumenthal 109B First Avenue, Block 1017 Lot(s) 14 C-2 City of Cape May Zoning Board of Adjustment Meeting Minutes, February 27, 2025 Page 2 Attorney Lyndsy Newcomb of Monzo Catanese DeLollis PC introduced the application seeking hardship, substantial benefit and use variances to construct a screened porch and new paver walkway. Owners Alan and Sherry Blumenthal and Architect Pam Fine of Fine Architecture were sworn in by Solicitor King for the record. Engineer Hurless remained under oath. Owners Sherry and Alan Blumenthal explained their reasons for requesting the screened porch and replacing the existing pavers with pervious pavers. Architect Fine was accepted as an expert in architecture by Chairperson Werner. Architect Fine described the existing conditions and the proposed porch. She said two family structures are not permitted, so a use variance is required. She said the lot coverage is being reduced from 46.1% to 45.5%. Architect Fine testified that the physical features of the property are a hardship, and the project advances the purposes of zoning by promoting health, safety and public welfare and appropriate population densities, and provides adequate light, air and open space, and creates a desirable visual environment. She testified there is no substantial detriment to the public good and no impairment to the zoning plan. Board members were allotted time for questions of Architect Fine. Members Walsh and Sheehan asked about the neighbors. Attorney Newcomb said the condominium association approved the plan, and she will provide the approval for the record. There was a discussion on the approval of the existing patio, and it was determined that there is no record of it being approved. Engineer Hurless then summarized his memorandum dated December 31, 2024. He described his completeness review and the waivers he supported. Engineer Hurless listed and made comments on the variances sought for use, lot size, lot width, lot frontage and lot coverage. The General Review Comments 1-12 were reviewed and explained in detail with all items being classified as conditions of approval. Engineer Hurless advised the Fire and Public Works Departments and Shade Tree Commission recommended approval of the project with no conditions/comments in their reports dated February 24, 2025, January 9, 2025, and January 22, 2025, respectively. Board members were allotted time for questions. Attorney Newcomb said they have no objection to the conditions listed by Engineer Hurless. Discussion was opened to the public within two hundred feet at 6:51 PM. Joanne Hollenbach, 107B First Avenue, was sworn in by Solicitor King. She will see the structure from her door and spoke in support of the application. Discussion was opened to the public beyond two hundred feet at 6:53 PM. Discussion was closed to the public at 6:53 PM. Solicitor King explained the vote to the board. City of Cape May Zoning Board of Adjustment Meeting Minutes, February 27, 2025 Page 3 Motion was made by Ms. Sheehan to grant the variances for 525-15A Use (Expansion of Non-conforming use), §525-15B(1) Table 1 Lot Size, §525-15B(1) Table 1 Lot Width & Lot Frontage, and §525-15B(2) Lot Coverage variances, subject to waivers 2, 19, 23, 26, 27, & 33 and condition 28 listed on page two and conditions 1-12 as outlined on page five in the December 31, 2024 memorandum by Craig R. Hurless, PE, PP, CME, the added condition that consent of owners of 109A First Avenue be provided and subject to all conditions discussed at the hearing, seconded by Mr. Venuto and carried 7-0. Those in favor: Mr. Ledwin, Mrs. Notch, Ms. Sheehan, Mr. Walsh, Mr. Yeager, Mr. Venuto, Mrs. Werner. Those opposed: None. Those abstaining: None. Tom Harrison 1000 New York Avenue, Block 1102 Lot(s) 1, 2, 61 & 62 Members Tim Walsh and Norman Ledwin recused themselves from the application, as they are on the list of property owners within two hundred feet. They departed the hearing at 6:57 PM. Attorney Erica Lezama-Simonson of Barry, Corrado & Grassi PC introduced the appeal from decision of administrative officer – zoning officer application. Present at the meeting and sworn in by Solicitor King were owners Pamela and Tom Harrison and Contractor Ken Mann. Engineer Hurless remained under oath. Attorney Lezama-Simonson shared Exhibit H-1 a power point presentation that was shown on the screen for the audience with paper copies distributed to each board member. The exhibit contains photos of the exterior of the home, various photographs of the garage attic space, bullet points of key features, history, intended use of this property and those of the owners’ other property at 1005 New York Avenue, the notice of violation/order to abate dated October 9, 2024, and other talking points of the presentation. Attorney Lezama-Simonson reported that the violation pertaining to the retaining wall has been addressed and the wall conforms at present. Pamela Harrison gave a background of their ownership of the property and their plan for making the property their permanent residence. Thomas Harrison shared he wanted a private, quiet place for writing and virtual meetings. He shared this with the interior designer and contractor since day one but not the architect. The designer interacted with the architect. Tom Harrison said he had no intention of creating living accommodations in the second floor of the garage. Contractor Mann testified that there is no water hookup on the second floor he constructed in the garage, and he said there is no outdoor shower connected to the garage. The discussion turned to Harrisons’ property at 1005 New York Avenue. Pamela Harrison said this property includes a two-story detached garage with no water connection. The photo was shown of the second floor at 1005 New York Avenue, and she testified it is used as a playroom and sometimes for exercise. She said zoning was approved in 2017 for this property. Attorney Lezama-Simonson said human habitation is not defined in the ordinance and read the definition of living accommodations: Kitchens, bathing facilities, sleeping quarters, toilets and toilet facilities, or any other improvements intended to support human habitation. She said City of Cape May Zoning Board of Adjustment Meeting Minutes, February 27, 2025 Page 4 Architect Ross’ plan for the garage with the “not for occupancy” notation may show intent but does not bind the owners. She said the violation at 1000 New York Avenue was arbitrary, capricious and unreasonable and inconsistent with the zoning approval for 1005 New York Avenue that has been granted in the past. Attorney Lezama-Simonson said the question is whether the second floor of the garage is a living accommodation and asked the board to overrule the zoning officer’s decision and direct that a certificate of occupancy be issued. Solicitor King read the living accommodation definition and said it covers kitchens, bathrooms and bedrooms and then improvements to support human habitation to cover rooms that are like those in a house; so, one lives in their house and garages in their garage. You cannot have rooms in your house plus rooms in your garage. The intention of the definition is about where you can have living accommodation. Solicitor King asked if the garage is temperature controlled. Contractor Mann said the whole garage is temperature controlled, as there is going to be a restored car in it. Contractor Mann shared the circumstances of a different property on First Avenue that was approved in 2012. Bruce Britton, Zoning Officer, was called to speak by Chairperson Werner. Mr. Britton said the pictures that were shown did not reflect what he saw when he inspected the garage. He said the pictures show the second floor when it was about halfway done. He saw a finished mahogany door, finished floors and a central vacuum system. His opinion is that the second floor shows living accommodations, whether it be for an office or other use, not storage, and that HVAC supports human occupancy. He added that window air conditioners and electric fireplaces could be added to condition the space if it lacked HVAC. Board members were allotted time for questions of Zoning Officer Britton. Engineer Hurless then summarized his memorandum dated December 30, 2024 including his completeness review and described the board’s power and procedure regarding the appeal. He referred to §525-55A(3)(i) in the memorandum where the code shows: no detached garage may contain living accommodations. He read the current definition from §525-4 of living accommodations: Kitchens, bathing facilities, sleeping quarters, toilets and toilet facilities, or any other improvements intended to support human habitation. He agreed with Solicitor King that the definition is not meant to capture all the names of rooms possible to support human habitation but rather a catchall whether it be a playroom, place to work or write or a man cave, and that is for the board to decide. He read the definition of garage, private: a building or part thereof accessory to a main building and capable of storing at least one but not more than four or less automobiles incidental to the principal use of the property with no provision for repairing or servicing such vehicles for profit and which is not intended, designed or used for human habitation and does not contain living accommodations. He went on to say that 525-55A(3)(i) says no detached garage may contain living accommodations and the following section that controls other outbuildings indicates the two accessory types of structures that are typically permitted as accessory to detached dwellings or duplexes have provisions that no detached garage may contain living accommodations, and no outbuilding may be used for human habitation and cannot contain living accommodations. He opined that the code is quite clear that these accessory structures are not intended to have these habitable areas in them. City of Cape May Zoning Board of Adjustment Meeting Minutes, February 27, 2025 Page 5 Discussion was opened to the public within two hundred feet and beyond at 7:54 PM and closed with no public coming forward to comment. Attorney Lezama-Simonson made a closing statement and asked the board to decide based on past approvals/precedent. Solicitor King said the board is to decide if the Zoning Officer made an error in his determination and explained the vote to the board. Motion was made by Ms. Sheehan to affirm, agree with the Zoning Officer, or reverse, disagree with the Zoning Officer, seconded by Mr. Venuto, and the decision by the Zoning Officer was affirmed 6-0. Those affirming: Mrs. Notch, Ms. Sheehan, Mr. Yeager, Ms. Stevenson, Mr. Venuto, Mrs. Werner. Those reversing: None. Those abstaining: None. Members gave reasons for their votes. Member Sheehan supported the decision of the Zoning Officer because she believed that the structure was designed, constructed and intended as habitable space with the temperature controlled and the finished floors plus the definition of the garage to not contain any living accommodations, which she believes exists. She said it is not an apartment with no bathroom, but it is habitable under the code. Member Yeager affirmed the decision and said he might vote in favor of a variance if presented. Member Stevenson agreed with the comments of the other members that the space is habitable. Member Venuto and Member Werner affirmed the decision, as the Zoning Officer followed the code. Members Tim Walsh and Norman Ledwin returned to the meeting at 8:02 PM. Discussion: Payment of Bills Motion made by Mr. Venuto to approve the payment of bills, seconded by Mr. Ledwin and carried 7-0. Those in favor: Mr. Ledwin, Mrs. Notch, Ms. Sheehan, Mr. Walsh, Mr. Yeager, Mr. Venuto, Mrs. Werner. Those opposed: None. Those abstaining: None. Land Use Development and Work Group As the representative of the Zoning Board, Member Walsh provided a summary of the first meeting which was held last month. He said the group will discuss what could happen if Cape May was affected by a tragedy like the devastating fires that occurred in Lahaina, Hawaii in August 2023. Motion made by Mr. Ledwin to adjourn the meeting at 8:08 PM with all in favor. Respectfully Submitted by Karen Keenan, Board Secretary City of Cape May Zoning Board of Adjustment Meeting Minutes, February 27, 2025 Page 6