03/23/2023 Zoning Board Meeting

City of Cape May Zoning Board of Adjustment Meeting Minutes Thursday, March 23, 2023 Opening: The meeting of the City of Cape May Zoning Board of Adjustment was called to order by Vice Chairperson Sam Venuto at 6:00 PM in the City Hall Auditorium. In compliance with the Open Public Meetings Act, adequate notice was provided. Pledge of Allegiance Roll Call: Mrs. Werner, Chairperson Absent Mr. Venuto, Vice Chairperson Present Ms. Hesel Present Mr. Ledwin Absent Mrs. Notch Absent Ms. Sheehan Present Mr. Walsh Absent Mr. Zektzer (Alt. 1) Present Mr. Cataldo (Alt. 2) Present Also Present: Richard King, Board Solicitor Craig Hurless, PE, PP, CME, Board Engineer Karen Keenan, Board Assistant Oath of Office: New member Tom Cataldo took the Oath of Office and was welcomed to the Zoning Board. Minutes: Motion was made by Ms. Sheehan to adopt the meeting minutes of February 23, 2023, seconded by Ms. Hesel and carried 4-0. Those in favor: Ms. Hesel, Ms. Sheehan, Mr. Zektzer, Mr. Venuto. Those opposed: None. Those abstaining: Mr. Cataldo. Resolution(s): Motion made by Ms. Sheehan to adopt Resolution number 03-23-2023: 1, Christopher and Carol Czumbil, 944 Sewell Avenue, seconded by Ms. Hesel and carried 4-0. Those in favor: Ms. Hesel, Ms. Sheehan, Mr. Zektzer, Mr. Venuto. Those opposed: None. Those abstaining: Mr. Cataldo. Application(s): City of Cape May Zoning Board of Adjustment Meeting Minutes, March 23, 2023 Page 1 Cape CJ LLC 1301 Beach Avenue, Block 1146, Lot(s) 26.02, 27 & 28 Attorney Robert Belasco and Owner and Managing Partner Jeff Gernitis were present for this application. Attorney Belasco explained that this is a “Whispering Woods” application to consider an offer relative to an appeal of an application filed in court in addition to an estoppel claim filed in court. He gave a history of the prior application approval and shared that the patio was built 11% larger than approved, and a fire pit was added to the plan after the approval. The Board subsequently denied the patio as built and the fire pit. He said the patio has since been trimmed to the approved size, and the fire pit is movable. The application is for amended preliminary and final site plan approval with no variances required. Attorney Belasco said they will dismiss the litigation regarding this matter with prejudice if the application is approved. Owner Gernitis and Engineer Hurless were sworn in by Solicitor King. Owner Gernitis explained the history of the fire pit and that he received approval from Construction Official Vito and City Manager Voll to apply the brick to the fire pit as long as he did not connect it to the gas line. Owner Gernitis showed Exhibit A-1 a closeup photo of the fire pit area. He said they will rotate the movable fire pit to comply with the building setback to Beach and Trenton Avenue, and the fire pit is for use only by staying guests and those with a restaurant reservation. Attorney Belasco advised there are no regulations in the ordinance regarding fire pits, and he believes a fire pit is an amenity not a structure. He asked to resolve the case and said, given the lack of guidelines for fire pits, they did not ask the Historic Preservation Commission (HPC) for approval. Board members were allotted time for questions of Applicant Gernitis. Member Sheehan asked about the approval of the HPC. She felt the Board could not approve for the HPC. Solicitor King advised that appeals of the HPC are heard by the Zoning Board, so the HPC Chairperson is present to comment. Member Cataldo asked for clarification of a structure and what is movable. Attorney Belasco read the definition of a structure as a combination of materials to form a construction for occupancy, use or ornamentation, etc., and he does not believe a fire pit to be a structure. Owner Gernitis said the fire pit is a cement box that is not attached to the ground. Solicitor King said a wheeled grill for barbecue is not considered a structure. The Board Engineer says this fire pit, when situated in the setback, is a structure and would require a variance. The structure is proposed to be moved out of the setback and would no longer require a variance. The meeting was opened to the HPC Chairperson, Warren Coupland at 6:39 PM. HPC Chairperson Coupland was sworn in by Solicitor King and said Cape May’s period of significance is 1850-1948. He said the fire pit likely would not be approved unless it was not visible from the front and side yards and read from page 68 of the Design Standards under accessory structures regarding modern conveniences such as mechanical equipment may adversely impact the historic character by obscuring or damaging significant historic features. He added the HPC has approved fixed and movable fire pits, that were not visible from the front and side yards. He referred to the 2017 Secretary of the Interior Standards which says it is not recommended to install new City of Cape May Zoning Board of Adjustment Meeting Minutes, March 23, 2023 Page 2 mechanical systems to the streetscape so that character defining structural features are changed, damaged or destroyed. He said the fire pit at this property has not been before the HPC. He believed it would have required review by the full commission, and the fire pit likely would not have been approved. He said it is impossible to have a zoning ordinance that covers everything, and each HPC application is decided on its own merit. Board members were allotted time for questions of HPC Chairperson Coupland. Attorney Belasco asked about mechanical devices defined in the ordinance. HPC Chairperson Coupland said people did not have fire pits in Cape May during the period of significance. He said if there are visible fire pits in the Historic District, they have not been approved or reviewed by the HPC. Attorney Belasco said the hedges at the site may grow to cover the fire pit. Engineer Hurless then summarized his memorandum dated March 8, 2023 on this application for amended preliminary and final site plan approval without the need for variance approval. Engineer Hurless agreed with the applicant’s testimony and the plan complies. The General Review Comments 1-6 were described as standard with all items being classified as conditions of approval. Member Sheehan asked about condition 5 requiring HPC approval. Attorney Belasco said the applicant agrees to all conditions except condition 5. Board members were allotted time for questions of Engineer Hurless. Discussion was opened to the public at 6:59 PM and closed at 7:00 PM with no public coming forward to comment. Member Sheehan felt the Board should not consider the application before it has been reviewed first by the HPC. Solicitor King explained the “D” variance was eliminated by the applicant returning the patio to the previously approved size, so the vote is a regular majority vote that does not require five out of seven yes votes to carry. Attorney Belasco agreed with Solicitor King. Motion was made by Ms. Sheehan to approve the settlement as proposed by Attorney Robert Belasco: relocating the fire pit to comply with the setback, diminishing the patio to comply with the prior approval and no return to the Historic Preservation Commission for formal consideration and preliminary and final site plan approval, subject to all conditions of approval discussed at the meeting and listed in the Board Engineer memorandum, by Craig Hurless, dated March 8, 2023, seconded by Mr. Zektzer and carried 3-2. Those in favor: Ms. Hesel, Mr. Zektzer, Mr. Venuto. Those opposed: Ms. Sheehan, Mr. Cataldo. Those abstaining: None. Rosemans Marina LLC 5 Rosemans Lane, Block 1061, Lot(s) 130 & 131 Attorney Ron Gelzunas introduced the application for an addition for the applicants to use as their primary residence. Owner Donald Wiscott and Engineer and Planner Jason Sciullo were sworn City of Cape May Zoning Board of Adjustment Meeting Minutes, March 23, 2023 Page 3 in by Solicitor King for the record. Engineer Hurless remained under oath. Engineer Sciullo presented his credentials and was accepted as an expert by Vice Chairperson Venuto. Engineer Sciullo showed Exhibit A-1, a site plan with an overhead photo. He explained there are no other site improvements proposed and easements for access and parking will be formally executed. He outlined the variances for lot size, lot frontage, rear yard setback and lot coverage which are existing non-conforming and added the proposed floor area ratio for this small lot is still under the maximum permitted. He showed the schematic design and said there is nuisance flooding. He said the property is graded to drain to the bay. Engineer Sciullo said there is no negative detriment to the zone plan and zoning ordinance and the benefits outweigh potential detriments. He said the purposes of zoning are advanced by (a) general welfare with a height less than what is permitted, (c) adequate light, air and open space, (i) promoting a desirable visual environment and (m) effective use of land by protecting it from flooding. Board members were allotted time for questions of Engineer Sciullo and Owner Wiscott. Member Sheehan asked about the road easement following the Lot 130 line. Engineer Sciullo said the easement is to allow owners of Lots 129, 130 and 131 to traverse the lots. Currently, these lots are owned by the applicant, but the easement will make it official should the lots be sold in the future. Member Sheehan asked about the shells and coverage at 100%. Engineer Hurless said the 50% shell credit is only allowed in residential districts. Engineer Hurless then summarized his memorandum dated February 2, 2023 including his completeness review, the waivers he supported including the access easement being required as a condition of approval and his comments on the four variances requested. The General Review Comments 1-13 were reviewed and explained in detail with all items being classified as conditions of approval. Engineer Hurless said the applicant requested waiver of preliminary and final site plan, which is not required for the application. Board members were allotted time for questions of Engineer Hurless. Discussion was opened and closed to the public at 7:44 PM with no public coming forward to comment. Motion was made by Mr. Zektzer to grant the variances 1-4, as outlined on page three of five of the February 15, 2023 Board Engineer’s review memorandum, subject to the waivers 26, 27, 28, 30, 31, and 33 outlined on page two, condition 32 on page two, as well as conditions 1-13, as outlined on pages four and five in the February 2, 2023 memorandum by Board Engineer Craig R. Hurless, PE, PP, CME, seconded by Ms. Sheehan and carried 5-0. Those in favor: Ms. Hesel, Ms. Sheehan, Mr. Zektzer, Mr. Cataldo, Mr. Venuto. Those opposed: None. Those abstaining: None. City of Cape May Zoning Board of Adjustment Meeting Minutes, March 23, 2023 Page 4 Steven Steger 905 Page Street, Block 1090, Lot(s) 57 Attorney Ron Gelzunas introduced the application for variances for lot size, building setback, lot width, lot frontage, side yard setback and lot coverage and change of use from commercial to single family dwelling. Owner Steve Steger Sr., Steven Steger, Jr. and Engineer and Architect John Halbruner were sworn in by Solicitor King for the record. Engineer Hurless remained under oath. Engineer Halbruner presented his credentials and was accepted as an expert by Vice Chairperson Venuto. Engineer Halbruner gave a history of the property which received site plan approval and variances in the past for commercial use. He said there will be no change to the footprint for this undersized lot in the proposed single family residence which is permitted in the zone. He added that the residential use is more compatible at the site and the floor area ratio complies at 39%. He said there will be a new recharge system installed at the property. He added the positives outweigh any detriments with a return to residential use a positive. Board members were allotted time for questions. Member Sheehan asked if there are plans for a swimming pool, and Engineer Halbruner responded that no swimming pool is planned. Vice Chairperson Venuto asked about parking. Engineer Halbruner said there is one parking space in the existing garage, and one parking space in front of the house. Engineer Hurless then summarized his memorandum dated February 15, 2023 including his completeness review, the waivers he supported and his comments on the five variances requested. The General Review Comments 1-13 were reviewed and explained in detail with all items being classified as conditions of approval. Engineer Hurless advised the Fire Department and Public Works Department approved the project with no conditions in their reports, dated February 15, 2023 and February 16, 2023, respectively. The Shade Tree Commission commented in their February 14, 2023 report, signed February 24, 2023, that the red cedars along the driveway on adjoining property may be trimmed to the property line, and the applicant agreed. Discussion was opened and closed to the public at 8:03 PM with no public coming forward to comment. Motion was made by Ms. Sheehan to grant the variances as outlined on page three of five of the February 15, 2023 Board Engineer’s review memorandum, subject to the waivers 26, 27, 31, and 33 outlined on page two, as well as conditions 1-8, as outlined on pages four and five in the February 2, 2023 memorandum by Board Engineer Craig R. Hurless, PE, PP, CME, the Shade Tree Commission condition in their February 14, 2023 report, signed February 24, 2023, seconded by Ms. Hesel and carried 5-0. Those in favor: Ms. Hesel, Ms. Sheehan, Mr. Zektzer, Mr. Cataldo, Mr. Venuto. Those opposed: None. Those abstaining: None. Motion made by Ms. Sheehan to adjourn the meeting at 8:05 PM with all in favor. Respectfully Submitted by Karen Keenan, Board Secretary City of Cape May Zoning Board of Adjustment Meeting Minutes, March 23, 2023 Page 5