04/24/2025 Zoning Board Meeting

City of Cape May Zoning Board of Adjustment Meeting Minutes Thursday, April 24, 2025 Opening: The meeting of the City of Cape May Zoning Board of Adjustment was called to order by Vice Chairperson Sam Venuto at 6:03 PM in the City Hall Auditorium. In compliance with the Open Public Meetings Act, adequate notice was provided. Roll Call: Mrs. Werner, Chairperson Absent Mr. Venuto, Vice Chairperson Present Mr. Ledwin Absent Mrs. Notch Present Ms. Sheehan Present Mr. Walsh Present Mr. Zektzer Present Mr. Yeager (Alt. 1) Present Ms. Stevenson (Alt. 2) Present Also Present: Jeffrey Barnes, Esq. for Richard King, Board Solicitor Craig Hurless, PE, PP, CME, Board Engineer & Planner Karen Keenan, Board Assistant Resolution(s): Motion made by Mr. Zektzer to adopt Resolution number 04-24-2025: 1, William & Emily Young, 122 Decatur Street, Block 1041 Lot(s) 6, seconded by Mr. Walsh and carried 4-0. Those in favor: Mr. Walsh, Mr. Zektzer, Mr. Yeager, Ms. Stevenson. Those opposed: None. Those abstaining: Mrs. Notch, Ms. Sheehan, Mr. Venuto. Motion made by Mr. Yeager to adopt Resolution number 04-24-2025: 2, 519 Franklin Street LLC, 519 Franklin Street, Block 1076 Lot(s) 1, seconded by Mrs. Notch and carried 4-0. Those in favor: Mr. Walsh, Mr. Zektzer, Mr. Yeager, Ms. Stevenson. Those opposed: None. Those abstaining: Mrs. Notch, Ms. Sheehan, Mr. Venuto. Minutes: Motion was made by Mr. Zektzer to adopt the meeting minutes of March 27, 2025, seconded by Ms. Stevenson and carried 3-0. Those in favor: Mr. Walsh, Mr. Zektzer, Mr. Yeager. Those opposed: None. Those abstaining: Mrs. Notch, Ms. Sheehan, Ms. Stevenson, Mr. Venuto. Application(s): Matthew & Kara Crane 1026 New York Avenue, Block 1102 Lot(s) 13 & 14 City of Cape May Zoning Board of Adjustment Meeting Minutes, April 24, 2025 Page 1 Member Tim Walsh recused himself from the application, as he owns property within 200 feet. He departed the hearing at 6:04 PM. Attorney John Amenhauser of The DeWeese Law Firm introduced the application seeking hardship, substantial benefit and use variances to construct a pervious patio in the rear of the property. Engineer and Planner Paul Kates of Kates Schneider Engineering LLC was sworn in by Solicitor Barnes along with Board Engineer and Planner Craig Hurless for the record. Engineer Kates was accepted as an expert in engineering by Vice Chairperson Venuto. Engineer Kates described the existing conditions at the property including the semi-detached dwelling and the proposed project including a stormwater retention system. He described the variances required in detail and said the variances can be granted due to the exceptional narrowness and unique characteristics of the undersized lot plus there will be stormwater offset. He testified the project advances the purposes of zoning by providing adequate light, air and open space, providing outdoor recreation space, promoting a desirable visual environment, providing sufficient space in an appropriate location and enhancement to the safety and/or general welfare by reducing stormwater runoff. Engineer Kates said the project advances the purposes of zoning, there is no substantial detriment to the public good and no negative impact on the zone plan. Board members were allotted time for questions of Engineer Kates. There were questions about the increase in lot coverage and side yard setbacks. Engineer Kates said they are trying to convert an area that is currently being used as a gathering place situated with lawn chairs into a patio. The pavers can be installed to the property line, but the stormwater will be directed to the recharge system away from the neighbors. There was a discussion on the parking variance, and Engineer Kates said they could redo the walkway with pervious pavers or do drive ribbons to reduce the lot coverage by four to six percent. Engineer Kates believed the tree cited in the Shade Tree Commission report is on the neighboring property and will survive the construction. Engineer Hurless then summarized his memorandum dated February 24, 2025. He described his completeness review and the waiver he supported. He summarized the details of the use, lot size, lot width, lot frontage, lot coverage, parking and nonconforming structure on nonconforming lot variances requested. He said lot coverage is to be determined, as it was agreed the coverage to be reduced four to six percent by the change of the driveway to two ribbon paver strips with grass in the center. The General Review Comments 1-15 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 March 24, 2025, March 10, 2025 and March 14, 2025, respectively. It was agreed that the paver work would not affect the neighboring tree, and the plans will indicate location of the tree and root protection on the plan to satisfy the comment by the Shade Tree Commission in their report. Board members were allotted time for questions of Engineer Hurless. Member Sheehan asked about the change in lot coverage, and Engineer Hurless responded that the compliance plan must indicate a lot coverage better than 58% of the existing lot coverage if the board approves the application. City of Cape May Zoning Board of Adjustment Meeting Minutes, April 24, 2025 Page 2 Discussion was opened to the public within two hundred feet at 6:59 PM. Scott Loper, 1024 New York Avenue, was sworn in by Solicitor Barnes. He is the attached neighbor. His only concern was with stormwater. He asked if the stormwater system would flow directly to the front of the property and away from his property. Engineer Kates confirmed. Betsy Hamilton, 1028 New York Avenue, was sworn in by Solicitor Barnes. She is concerned with stormwater. She has not had any water problems in her basement nor her property. Engineer Hurless asked Engineer Kates to provide positive outflow to the street by connecting a pipe to that system so excess stormwater will bubble out at the street eliminating runoff to the side yards, and Engineer Kates agreed. Tim Walsh, 1022 New York Avenue, was sworn in by Solicitor Barnes. He had a question about the surveys and concern about the concrete strip. Engineer Kates said the reason the existing concrete strip was not shown on one of the surveys is that it is on the neighbor’s property. Engineer Kates said the driveway is being completely removed and replaced. Mr. Walsh asked about possible clogs in the drainage system, and Engineer Kates explained the new plan and discharge at the street. Mr. Walsh wanted the owner to be responsible for clearing any clogs during the entire year. Engineer Hurless said it is a condition of approval that the system be maintained, and the city can enforce the maintenance. Discussion was opened to the public beyond two hundred feet at 6:48PM. Discussion was closed to the public at 6:48 PM. Solicitor Barnes explained the vote to the board. 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, §525-15B(2) lot coverage, §525-49C(1) parking, and §525-73D nonconforming structure on nonconforming lot variances, subject to waivers 19 and 33 listed on page two and conditions 1-15 as outlined on pages five and six in the February 24, 2025 memorandum by Craig R. Hurless, PE, PP, CME, and subject to all conditions discussed at the hearing, seconded by Mr. Zektzer and carried 6-0. Those in favor: Mrs. Notch, Ms. Sheehan, Mr. Zektzer, Mr. Yeager, Ms. Stevenson, Mr. Venuto. Those opposed: None. Those abstaining: None. Member Walsh returned to the hearing at 6:50 PM. Joseph & Gail Stevenson 233 Capehart Lane, Block 1031 Lot(s) 38.02 & 39 Member Stevenson recused herself from the application and departed the meeting at 6:50 PM. Solicitor Barnes advised Attorney Gelzunas of six voting members for the application and Attorney Gelzunas elected to proceed with the application. City of Cape May Zoning Board of Adjustment Meeting Minutes, April 24, 2025 Page 3 Attorney Ronald Gelzunas of Ronald J. Gelzunas LLC introduced the application seeking hardship, substantial benefit and use variances to construct a second floor addition, solely on the Unit 1 dwelling shown on the plan, over an existing garage that will be converted into a storage area. Owners Joseph and Gail Stevenson and Architect Blaine Steinman of Blaine Steinman Architect LLC were sworn in by Solicitor Barnes for the record. Board Engineer and Planner Craig Hurless remained under oath. Architect Steinman was accepted as an expert in architecture by Vice Chairperson Venuto. Architect Steinman described the existing conditions at the property including an accessory apartment, two additional structures used for storage and detailed the plans for the addition on the second floor with the addition to replace the deck on the primary structure (Unit 1). He testified there is no negative impact on the neighboring properties or public and no substantial impairment to the zone plan or zoning ordinance. He said the project advances the historic district and general welfare and promotes a desirable visual environment. He testified that the site can accommodate the expansion with no increase in intensity of the use and no exacerbation of the other existing non-conformities on the property. Board members were allotted time for questions of Architect Steinman. Member Sheehan asked if the house would be raised, and Architect Steinman replied no. Member Sheehan asked if the space becomes habitable once the garage door is removed. Engineer Hurless commented that the interpretation of the zoning code indicates it will be habitable space, which changes the habitable space to a percentage that does not exceed what is permitted, even if the garage use was abandoned in the 1960s. The space increase was clarified to be .0385, which is de minimus. Vice Chairperson Venuto asked about Historic Preservation Commission (HPC) approval. Joseph Stevenson said they have received HPC final approval for the project. Engineer Hurless then summarized his memorandum dated January 8, 2025. He described his completeness review and the waivers he supported. He said the calculation of the floor area ratio and habitable space calculation to include the garage to be conditions of approval along with detailed lot coverage calculations on the plan. He summarized the details of the use, building setback line (Capehart Lane) – Unit 1, lot frontage, minimum habitable ground floor area – Unit 2, rear yard setback – Unit 2, side yard setback and nonconforming structure on nonconforming lot 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 and Public Works Departments and Shade Tree Commission recommended approval of the project in their reports dated March 11, 2025, January 9, 2025 and March 11, 2025, respectively. The Shade Tree Commission report included requirement that the four large elm trees located on the property be protected as per ordinance with a notation that one of the elms is of a size to be considered a landmark tree and one dead ginkgo and one crepe myrtle can be removed. The applicant agreed to the Shade Tree Commission conditions. Board members were allotted time for questions of Engineer Hurless. Member Sheehan asked about the other structures on the property not included in the plans. He responded that the existing City of Cape May Zoning Board of Adjustment Meeting Minutes, April 24, 2025 Page 4 nonconforming accessory structures are not being touched. The applicant agreed to all conditions included in Engineer Hurless’ memorandum and the conditions discussed at the hearing. Discussion was opened to the public within two hundred feet at 7:33 PM James Lee, 232 Perry Street, was sworn in by Solicitor Barnes. He spoke in support of the application. Discussion was opened to the public beyond two hundred feet at 7:34 PM. Discussion was closed to the public at 7:34 PM. Solicitor Barnes explained the vote to the board. Motion was made by Ms. Sheehan to grant the variances for §525-15A use (expansion of non- conforming use), §525-15B(2) Table 1 building setback line (Capehart Lane) – Unit #1, §525-15B(1) Table 1 lot frontage, §525-15B(1) Table 1 minimum habitable ground floor area – Unit #2, §525- 15B(1) Table 1 rear yard setback – Unit #2, §525-15B(1) Table 1 side yard setback – Unit #1, and §525-73D nonconforming structure on nonconforming lot, subject to waivers 8, 23, 24, 26, 27, 28, 31 and 33 and condition 13 listed on pages two and three and conditions 1-13 as outlined on pages five and six in the January 8, 2025 memorandum by Craig R. Hurless, PE, PP, CME, and subject to all conditions discussed at the hearing, seconded by Mr. Venuto and carried 6-0. Those in favor: Mrs. Notch, Ms. Sheehan, Mr. Walsh, Mr. Zektzer, Mr. Yeager, Mr. Venuto. Those opposed: None. Those abstaining: None. Member Stevenson returned to the hearing at 7:36 PM. Jason & Cynda Kliewe 501 Hughes Street, Block 1049 Lot(s) 10.01 The Historic Preservation Commission Solicitor Chris Gillin-Schwartz attended the hearing of this application by phone, at the request of the applicant with approval by the board. Attorney John Amenhauser of The DeWeese Law Firm introduced the application, an appeal from decision of administrative officer - Historic Preservation Commission (HPC). Present at the meeting were Jason and Cynda Kliewe accompanied by son. Attorney Amenhauser summarized the application and described the process of multiple reviews of the application by the HPC. He feels the HPC decision to be arbitrary, as he believes the Planning Board condition of approval that the applicant return to the HPC for full commission review did not give the HPC authority to review any part of the application except the fence. Then HPC acted to hear the entire project application, which he thought to be arbitrary, capricious, unreasonable and contrary to law. He summarized the applications that were submitted to the HPC on the following dates: March 25, 2024 and May 15, 2024 and advised that an application was heard by the full HPC on November 25, 2024. Attorney Amenhauser reiterated the HPC had City of Cape May Zoning Board of Adjustment Meeting Minutes, April 24, 2025 Page 5 many opportunities to deny the application before the applicant incurred the expenses necessary to apply to the Planning Board. HPC Solicitor Gillin-Schwartz said a mistake was made by the HPC, and he feels the board is to decide if one gets approval for a pool in the front yard of the Historic District by accident in Cape May city. The HPC is a strong HPC and not bound by an approval in review, which is for these types of applications: siding, windows, doors and roofs. Pools are accessory structures and should not be approved by the review committee. He said the HPC does not need the Planning Board’s permission to review the pool, as they have the right as written in the code. He went on to say the applicants acknowledged when they appeared before the HPC that construction of the pool has not occurred at the property that is commonly known as the Empress, and which has lost contributing status due to modifications over the years including parking in the front. However, the non-contributing status does not mean anything goes on the site; this property is in the heart of Cape May. The HPC does not want to compound more negatives for the site and further detract from the district at this property that has two front yards. He said it is impossible to say the HPC reasoning is arbitrary because there are historic design standards to follow, and a pool is an intrusive feature not to be seen in the streetscape. One of the board members noted the probable reason for the error is the fact that the site survey plot plan did not clearly show the streets locations relative to the site with two front yards. He disagreed with Attorney Amenhauser on the legal basis that all government action is voidable under 1972 case: Hill v. Board of Adjustment, Eatontown 122 NJ 156. He said the local HPC governs building and construction in this national historic landmark city. The HPC wants the garden to remain, as it at least contributes to the Historic District. The procedure may have been incorrect, but the substance of the HPC decision is appropriate based on the Design Standards and city code provisions. Member Sheehan said the HPC is a strong commission and HPC approval by the full commission is required for the major project. Member Yeager had questions about the board’s role, so Board Engineer Hurless explained the role by reading the following from city code: A determination by the Historic Preservation Commission on issues within its authority shall be entitled to due deference. If, in the case of an appeal made pursuant to this subsection, the Zoning Board of Adjustment determines there is an error in any order, requirement, decision or refusal made by the Construction Official pursuant to a certificate or denial of a certificate submitted by the Historic Preservation Commission in accordance with NJSA 40:55D-111, the Zoning Board of Adjustment shall, in writing, include the reasons for its determination in the findings of its decision thereon. The determination of the Historic Preservation Commission may be overturned only if the Zoning Board of Adjustment finds that the Historic Preservation Commission determination was arbitrary, capricious, unreasonable, or contrary to law. Solicitor Barnes explained the role of the board members related to the HPC decision and summarized the arguments of the two attorneys. Attorney Amenhauser reiterated his position that the full commission ratified the decision of the review committee. City of Cape May Zoning Board of Adjustment Meeting Minutes, April 24, 2025 Page 6 Member Notch said the HPC is a strong one, and she said the HPC should rule. Member Sheehan said the review committee could not make the approval; only the full HPC could make the approval. Engineer Hurless explained his review and memorandum dated January 9, 2025 and corrected the memorandum to eliminate the reference to a variance required for swimming pool setback; the variance request was withdrawn at the Planning Board meeting. Board members were allotted time for questions of Engineer Hurless. Member Zektzer asked for a summary of the Planning Board approval. Engineer Hurless explained the original request for the swimming pool setback variance and subsequent withdrawal of the variance by the applicant. He further described the Planning Board discussion on the six foot high fence which they determined would require a variance. The applicant did not request a variance for the fence, but the HPC had approved the six foot fence. Engineer Hurless said the Planning Board remanded the applicant back to the HPC for full-commission review of a four foot fence for the application. Engineer Hurless said the board should make their determination and decision based on what the HPC did and on the record. Board members were allotted time for questions by Solicitor Barnes on the decision for the board. Solicitor Barnes allowed Jason Kliewe to speak on the HPC record but not on emotions. Jason Kliewe said they never wanted a wood fence. After they had received approval for a four foot fence, they purchased a wrought iron fence. He talked about the family’s dreams for the property and the way the property has been treated by them and the public. He had prepared something for their son to say, but the matter was not open to the public. HPC Solicitor Gillin-Schwartz was permitted to respond to Mr. Kleiwe’s testimony and asked if the HPC Chairperson could respond to the applicant’s comments. HPC Solicitor Gillin-Schwartz said the HPC made an error, but it does not change the fact that the reasons for the denial are based on the HPC Design Standards. Solicitor Barnes determined that enough was said, and the matter was turned over to the board to deliberate. A member of the public wished to speak, and Attorney Amenhauser remarked that the person’s testimony at the HPC meeting is in the record. Solicitor Barnes asked Engineer Hurless to read the board’s role again. HPC Solicitor Gillin- Schwartz asked that the motion be crafted in the affirmative and asked the members to say if the HPC acted arbitrary and capricious. Motion was made by Ms. Sheehan to accept the findings of the HPC decision, seconded by Mr. Walsh and carried 7-0. Those in favor: Mrs. Notch, Ms. Sheehan, Mr. Walsh, Mr. Zektzer, Mr. Yeager, Ms. Stevenson, Mr. Venuto. Those opposed: None. Those abstaining: None. Members gave reasons for their votes. Member Notch believed the HPC did their job, and she agreed with them. Member Sheehan agreed with the HPC and commented that it is a strong HPC. She said the major application required HPC approval by the full board, and the Planning Board City of Cape May Zoning Board of Adjustment Meeting Minutes, April 24, 2025 Page 7 does not trump the HPC. The two entities are separate and distinct, and the HPC used their Design Standards, specifically pages 5, 12 and 45, which show a pool is an intrusive structure. Members Walsh and Zektzer agreed with the HPC. Member Yeager agreed with the HPC once he learned one cannot have a pool in the side yard and a pool cannot be visible in the Historic District. He did not find their vote arbitrary nor capricious. Member Stevenson believed the HPC acted in a reasonable manner by following their Design Standards in the city code. Vice Chairperson Venuto agreed the HPC did not act arbitrarily nor capriciously. He felt they would have acted arbitrarily and capriciously if they did vote for the pool. Discussion: Payment of Bills Motion made by Ms. Sheehan to approve the payment of bills, seconded by Mrs. Notch and carried 7-0. Those in favor: Mrs. Notch, Ms. Sheehan, Mr. Walsh, Mr. Zektzer, Mr. Yeager, Ms. Stevenson, Mr. Venuto. Those opposed: None. Those abstaining: None. Motion made by Ms. Sheehan to adjourn the meeting at 8:56 PM with all in favor. Respectfully Submitted by Karen Keenan, Board Secretary City of Cape May Zoning Board of Adjustment Meeting Minutes, April 24, 2025 Page 8