10/27/2022 Zoning Board Meeting

City of Cape May Zoning Board of Adjustment Meeting Minutes Thursday, October 27, 2022 Opening: The meeting of the City of Cape May Zoning Board of Adjustment was called to order by Chairperson Diane Hutchinson at 6:00 PM in the City Hall Auditorium. In compliance with the Open Public Meetings Act, adequate notice was provided. Roll Call: Mrs. Hutchinson, Chairperson Present Mr. Murray, Vice Chairperson Present Mrs. Werner Present Ms. Hesel Present Mr. Ledwin Present Mrs. Notch Present Mr. Walsh Present Mrs. McDade (Alt. 1) Present Sam Venuto (Alt. 2) Present Also Present: Richard King, Board Solicitor Craig Hurless, PE, PP, CME, Board Engineer Karen Keenan, Board Assistant Minutes: Motion was made by Ms. Hesel to adopt the meeting minutes of September 22, 2022, seconded by Mr. Ledwin and carried 6-0. Those in favor: Mrs. Werner, Ms. Hesel, Mr. Ledwin, Mrs. Notch, Mr. Murray, Mrs. Hutchinson. Those opposed: None. Those abstaining: Mr. Walsh. Resolutions: Motion made by Mrs. Werner to adopt Resolution number 10-27-2022: 1, Yacht Harbor Marine, LLC, 1505 Yacht Avenue, seconded by Mr. Murray and carried 5-0. Those in favor: Mrs. Werner, Ms. Hesel, Mrs. Notch, Mr. Murray, Mrs. Hutchinson. Those opposed: None. Those abstaining: Mr. Ledwin, Mr. Walsh. Application(s): Lokal Stockton LLC 5 Stockton Place, Block 1064, Lot(s) 17 Chairperson Hutchinson announced a delay for the applicants’ attorney to reach out to an expert they have engaged to speak for the applicant and who had not yet arrived at the meeting. Board Solicitor King characterized the meeting of the application for appeal of a Historic Preservation Commission (HPC) decision and read paragraphs one and two, for the record, of the document entitled, “Appeal of Determination of HPC to Zoning Board of Adjustment,” which City of Cape May Zoning Board of Adjustment Meeting Minutes, October 27, 2022 Page 1 sets for the standards to be applied to appeals from HPC Determinations and has been distributed to all Zoning Board members: I. STANDARD TO BE APPLIED “A certificate of appropriateness issued by the Commission shall be required before a permit is issued, or before work can commence, for any of the following activities within a historic Appeals from determinations of the Construction Official pursuant to referral to the Historic Preservation Commission may be made by the applicant to the Zoning Board of Adjustment, according to N.J.S.A. 40:55D-70(a). Nothing herein shall be deemed to limit the right of judicial review of the action after an appeal is concluded by the Zoning Board of Adjustment. The appellant shall pay all costs for copies of any transcript(s), which shall be a certified court reporter. The appeal shall be heard on the record made before the Historic Preservation Commission. 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 N.J.S.A. 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.” II. EXPLANATORY STATEMENT Pursuant to Section 525-37(E)(5) of the City Code, determinations by the HPC on issues within its authority are entitled to “due deference” and may be overturned only if the Zoning Board finds that the HPC determination was arbitrary, capricious, unreasonable, or contrary to law. This is commonly referred to as the “arbitrary and capricious” standard of review which is a highly deferential standard of review under the law. This simply means that a determination will not be disturbed unless there has been a clear abuse of discretion. Review pursuant to this standard is intended to be a determination of validity of the HPC’s action, but not the substitution of the Zoning Board’s judgment in its place. This means that even if the Zoning Board doubts the wisdom of the HPC’s determination, there should be no reversal in the absence of clear abuse of discretion by the HPC. Basically, the Zoning Board must determine whether the HPC made a decision pursuant to the Historic Preservation Commission Design Standards and properly exercised its discretion under the City Code. The law recognizes that government agencies like the HPC have a peculiar knowledge of local conditions and must be allowed “wide latitude” in the exercise of their delegated discretion. Furthermore, the HPC’s recommendations should be considered with the same care afforded to all City of Cape May Zoning Board of Adjustment Meeting Minutes, October 27, 2022 Page 2  expert information before the Zoning Board and damage to the historic preservation district is an appropriate consideration under the negative criteria for granting any variances from design standards. Similar to other applications before the Zoning Board, the applicant has the burden of proof to demonstrate they overcome this deferential standard. Solicitor King stated the members have the transcript of the January 6, 2020 hearing and the ordinance for guidance. He said the items to be reviewed include the railing and stair design and the overall design. He said the HPC has a certain area of expertise, as membership on the HPC has requirements, and the testimony for the appeal is limited to the record below. Board members were permitted time for questions. Vice Chairperson Murray asked if the appeal is to be determined on the record made before the HPC, and Solicitor King responded that absent a new law or extraordinary circumstances, there should be no supplement to the record. Attorney Peter Chacanias represented Lokal Stockton LLC, gave reasons for introduction of expert testimony and shared that a lawsuit was filed with the Court, which is why they brought a court reporter to this meeting. The Court found the applicants failed to exhaust administrative remedies. The applicant felt it was not required and also did not agree with the incomplete memorandum, dated June 6, 2020 and Exhibit B-2, that was issued by the Board Engineer in response the appeal filed to the Zoning Board in 2020. The applicant believed that supplying the items in the Engineer’s memorandum supplements the record below. So, Attorney Chacanias felt they could supplement the record with a report by their historian Barton Ross. Solicitor King advised the Board Secretary to not distribute the report to the Board and Attorney Chacanias wrote to the Court with the Judge deciding to allow the Zoning Board to decide whether or not to hear the testimony of the applicants’ expert. The Court Order Granting Injunctive Relief Pendente Lite, marked Exhibit B-1 by Solicitor King, was discussed. Solicitor King read from page two of the Engineer’s June 2, 2020 memorandum regarding what was pending from the application: a. The Resolutions of the City of Cape May Planning Board (the “Planning Board”) approving construction of the Hotel; b. The site plans and the architectural plans submitted to and approved by the Planning Board and the HPC, along with as-built plans of what has been constructed; and c. Re-application and escrow fees totaling $481.50 Engineer Hurless explained his review and memorandum dated June 2, 2020 and added that the applicant requested variances in addition to the HPC appeal requested in the application. Engineer Hurless added that the Zoning Board does not have jurisdiction for variances or amending a site plan that was granted by the Planning Board. Vice Chairperson Murray asked how expert testimony would affect the application and disagreed with Attorney Chacanias reply that they wish to avoid having to return to the Court. City Solicitor Chris Gillin-Schwartz represented HPC Solicitor Robert Fineberg, who could not be present, as respondent for the HPC in accordance with municipal land use law. City Solicitor City of Cape May Zoning Board of Adjustment Meeting Minutes, October 27, 2022 Page 3 Gillin-Schwartz explained that he has been involved in the litigation with the Court, and the finished project deviates from the 2018 HPC resolution. He explained the New Jersey rules of evidence (numbers 201 and 202) are relaxed for the Zoning Board, a quasi-judicial body, and believed the items requested are relevant to the record. He said the applicant already had an expert on record and counsel by their side. City Solicitor Gillin-Schwartz did not believe additional testimony should be part of the record. Solicitor King read from the transcript of the January 6, 2020 HPC meeting on page 27 where Chairperson Coupland says: “We spend a lot of time and energy and we have a plan in front of us and we make changes and modifications and discussions…” Solicitor King felt the request for additional items by the Board Engineer and as directed by the Court were not supplemental to the record nor an invitation to reopen the record with supplemental testimony. Motion was made by Mr. Murray to allow to supplement the record with expert testimony, seconded by Mrs. Notch and did not carry 0-7. Those in favor: None. Those opposed: Mrs. Werner, Ms. Hesel, Mrs. Notch, Mr. Ledwin, Mr. Walsh, Mr. Murray, Mrs. Hutchinson. Those abstaining: None. Solicitor King explained the next step is for the applicant to present argument that the HPC decision was arbitrary, capricious and/or contrary to law. Attorney Chacanias said the appeal is for granting of a certificate of appropriateness by HPC and to avoid the need for further Court action. He gave a history of the past applications to the HPC including testimony of one of the owners, Chad Ludeman and Peter Primavera who felt the finished structure met the HPC Design Standards. He added that the applicants’ architect representative went rogue and represented them without their consent and knowledge. Board members were allotted time for questions of Attorney Chacanias. Solicitor King asked when the applicants believed they had final approval and noted in the transcript that the applicant knew they needed final approval. Attorney Chacanias replied that they thought they had final approval when permits were approved. Chairperson Hutchinson and Member McDade questioned the applicants’ lack of knowledge of the process for a project of this size. Attorney Chacanias believed any mistake was not of the owners. Solicitor King read from the transcript on page 57 where Mr. Ludeman stated he understood that final approval was necessary. Member Werner did not believe the applicants were not aware of the changes. Solicitor King said whether built already, legally or illegally, is not relevant with Judge Blee to decide estoppel. Vice Chairperson Murray said the HPC determined the property is in the historic district, the project does not meet the Design Standards and the building was completed. Solicitor King said he believes the building status (built or not built) is not relevant to this appeal. City of Cape May Zoning Board of Adjustment Meeting Minutes, October 27, 2022 Page 4 Attorney Chacanias referred to the HPC Design Standards and said the HPC decision was arbitrary and capricious. He said a certificate of appropriateness should be issued, so a certificate of occupancy can be issued. There was discussion on the historic status assigned to the property and clamshells not being permitted by ordinance. City Solicitor Gillin-Schwartz said the applicant had a point of view and vision for the project, and the question of the period of significance does not apply. The City’s period of significance is not comprised solely of the Victorian period. The HPC reviewing details, such as Chippendale railing, is exactly the charge of the HPC. The HPC offered alternatives to the applicant, the applicant went ahead without approval and should have known when they went to the Planning Board with the architect representative in question and applicants present at that meeting. Therefore, it was not the error of the City. Solicitor King said the September 2018 resolution was essentially a road map for this project. Then new ideas were presented in 2020, and no one said the 2018 resolution was wrong. The HPC stayed with their 2018 resolution, so how could the decision be arbitrary and capricious. Attorney Chacanias said the applicants feel the as-built structure is entitled to a certificate of occupancy. City Solicitor Gillin-Schwartz said the block wall was too modern as per the HPC Design Standards as listed on page 102; the HPC was not penalizing the applicants. The HPC decision was rational and based on their standards. Vice Chairperson Murray said the members of the HPC are experts, which is necessary to serve on the Commission. Board members were allotted time for questions. Member Ledwin asked about the 2018 HPC meeting. Attorney Chacanias said the applicants did not attend the 2018 meeting; their architect representative attended the 2018 meeting without their knowledge. City Solicitor Gillin-Schwartz said all of the HPC design elements contribute to the approval. Solicitor King said the question for the Board is: did the HPC act arbitrarily or capriciously. Motion was made by Mr. Murray to affirm the HPC decision, seconded by Ms. Hesel and carried 6-1. Those in favor: Mrs. Werner, Mr. Ledwin, Mrs. Notch, Mr. Walsh, Mr. Murray, Mrs. Hutchinson. Those opposed: Ms. Hesel. Those abstaining: None. Vice Chairperson Murray said the HPC determined the building is in the historic district and is a historic building. He said their decision was not arbitrary nor capricious. City of Cape May Zoning Board of Adjustment Meeting Minutes, October 27, 2022 Page 5 Motion made by Mr. Murray to adjourn the meeting at 7:59 PM with all in favor. Respectfully Submitted by Karen Keenan, Board Secretary City of Cape May Zoning Board of Adjustment Meeting Minutes, October 27, 2022 Page 6