11/28/2023 Planning Board Work Session Meeting

City of Cape May Planning Board Meeting Minutes Tuesday, November 28, 2023 Opening: The meeting of the City of Cape May Planning Board was called to order by Vice Chairperson Michael Jones at 6:30 PM in the City Hall Auditorium. In compliance with the Open Public Meetings Act, adequate notice was provided. Pledge of Allegiance Roll Call: Mr. Bezaire, Chairperson Absent Mr. Jones, Vice Chairperson Present Mr. Crowley Present Mr. Gorgone Absent Mr. Lundholm Present Mayor Mullock Present Mrs. Reed Present Councilmember Yeager Present Vacant --------- Mr. Maloy Alt # 1 Absent Mr. Padussis Alt # 2 Present Also Present: Richard King, Esquire, Board Solicitor Craig Hurless, Board Engineer and Planner Karen Keenan, Board Secretary Minutes: Motion made by Mr. Padussis to approve the meeting minutes of November 13, 2023, seconded by Mr. Lundholm and carried 4-0. Those in favor: Mrs. Reed, Mr. Crowley, Mr. Padussis, Mr. Jones. Those opposing: None. Those abstaining: Councilmember Yeager, Mr. Lundholm. Mayor Mullock arrived at 6:33 PM. Application(s): Bogle Investment Properties, LLC 502 Washington Street Block 1050 Lot(s) 9 Attorney Anthony Monzo introduced applicant Joe Bogle of Bogle Investment Properties who was in the audience with Karen Thompson, owner of Sunflowers Boutique, the clothing shop at the property, Michael Slawek, owner of the Ugly Mug and the kitchen at the property, and Architect Paul Farnan. City of Cape May Planning Board Meeting Minutes, November 28, 2023 1 Attorney Monzo explained the application is a continuation of the September hearing and summarized the previous presentation. He said the past uses of the property include a bank and a bookstore plus prior approval granted for restaurant use at the property for 92 seats and a variance for parking with funds paid to the parking trust fund at that time. Currently, the property is used as retail space for Sunflowers Boutique with the kitchen in the rear used by Ugly Mug after renovations were done to separate the store from the kitchen. He said the kitchen is used primarily for food preparation of Ugly Mug takeout orders and diners at six Ugly Mug outdoor tables on Decatur Street. Attorney Monzo said the fundamental question is whether a variance is needed for one use or two separate uses, and they are seeking site plan approval. He said the police approved the application. Engineer Craig Hurless, Mr. Slawek, and Architect Farnan were sworn in by Solicitor King for the record. Owner Slawek explained the business operation and layout of the kitchen. He said food can be ordered and payment rendered at the takeout kitchen. He described Sheet A-101 – Construction and Egress Plans with the entry doors, the takeout service counter and the area for cooks who plate and cover the food. Runners take it to the outdoor tables. Or, runners bag the food for pickup at the counter or bring it across the street to the restaurant for pickup. Owner Slawek said there are no more than five employees working in the kitchen with the trash collected daily and stored in an enclosed area in the rear. The proposed signage was shown, will meet zoning requirements and will be reviewed by the Historic Preservation Commission. Member Crowley asked about the signage. Attorney Monzo said the signage will conform or approval will be sought. Engineer Hurless read from §525-48H of the zoning ordinance which states: “Each business or commercial establishment may erect signs to advertise its business.” He added there are sign provisions that must be met. Member Padussis expressed concern about safety for those crossing Decatur Street. Owner Slawek replied there is a blinking sign at the crossing area. Architect Farnan said the number of people crossing is inconsequential compared to the thousands of crossings in a year. Architect Farnan opined the retail sale of goods and prepared foods are the same and one use. He compared the business to Hot Dog Tommy’s on the corner of Jackson and Beach in the rear. Solicitor King asked if the Decatur Street tables are on the Ugly Mug property or the public sidewalk. Owner Slawek replied the tables are on Ugly Mug property. Mayor Mullock said they are not requesting any additional restaurant seats. Attorney Monzo said the takeout kitchen is not a restaurant. Solicitor King said there is no definition of restaurant in the code. There was a discussion on the §525-22 C-1 Primary Business District use regulations with the listing of the uses by right as including: (g) Drinking establishments licensed for on-premises consumption, (h) Eating establishments designed for on- premises consumption, including those having outdoor table facilities, provided that such facilities are portable and within 10 feet of the principal building. Drive-in facilities with window or curb City of Cape May Planning Board Meeting Minutes, November 28, 2023 2 service are not permitted, and (m) Retail sale of goods or prepared food. Engineer Hurless said (g) and (h) apply to the Ugly Mug, and he cannot find using the support kitchen across the street in the listing of uses by right. He said if the use is not expressly permitted, it’s not permitted. Solicitor King said the board will decide if a use variance is needed. Member Crowley asked about mercantile licenses. Owner Slawek replied he has two separate mercantile licenses. Mayor Mullock asked if the food for the six tables is sometimes prepared in the Ugly Mug kitchen, and Owner Slawek replied yes. Mayor Mullock said there is a need for more takeout food in town. Applicant Bogle was sworn in by Solicitor King. He said Owners Slawek and Thompson are great businesspeople who contribute to the community, and other businesses, including Stewart’s Root Beer, at the location failed. He spoke in support of the application. Architect Farnan read from the intent of commercial districts in the zoning code §525-21: A. Provide sufficient space in appropriate locations for the various types of commercial and service establishments anticipated by the comprehensive development plan. B. Assure light and air to the extent possible by controlling the spacing and height of buildings and other structures… E. …conserve the value of land and buildings and promote municipal tax revenues. He said this project applies to the intent as listed in the code. Member Padussis expressed concern about interpretation of the ordinance. Engineer Hurless said it must be determined if the Planning Board has jurisdiction—whether the proposed use fits into the list of the permitted uses by right. Owner Slawek said the takeout food operation enables him to close the Ugly Mug at 1:00 or 1:30 AM versus 3:00 AM which is a great benefit to the city. He no longer needs to rely on nightlife income. Engineer Hurless read from §525-9 regarding single principal structure or use: No part of a yard or other open space required about any building, structure or use for the purpose of complying with the provisions of this chapter may be included as part of a yard or other open space similarly required for another building, structure or use. Each site shall have only one principal building, structure, or use. Solicitor King said the quality of the business is not a consideration of the board. The Planning Board deals with permitted uses and must decide if the use is permitted. Only one principal use is permitted. The question is whether a clothing store and kitchen be considered one principal use where retail sale of goods or prepared food is permitted in the commercial district. A short break was taken at 8:13 PM. City of Cape May Planning Board Meeting Minutes, November 28, 2023 3 The meeting resumed at 8:22 PM. Discussion was opened to the public at 8:10 PM. Karen Thompson, 2 Pharo Lane, was sworn in by Solicitor King. She spoke in support of the application. Discussion was closed to the public at 8:13 PM. Board members were allotted time for questions. Solicitor King explained the votes for the board. He read from the zoning ordinance: §525-9 Principal Use. Each site shall have only one principal building, structure, or use. §525-22 C-1 Uses by right. In any C-1 District, land, buildings or premises may be used by right for the following purposes: focusing on (m) retail sale of goods or prepared food. §525-4 Definitions. Use. The specific purpose for which land or a building or structure is designed, arranged, intended, or for which it is or may be occupied or maintained. The term "permitted use" or its equivalent shall not be deemed to include any nonconforming use. Solicitor King said the question is considering uses as a whole, one principal use, the business plan as it was described and whether it requires a use variance. Motion made by Mr. Lundholm that the use is a permitted use under the ordinance, seconded by Mr. Padussis and carried 7-0. Those in favor: Mayor Mullock, Councilmember Yeager, Mrs. Reed, Mr. Crowley, Mr. Lundholm, Mr. Padussis, Mr. Jones. Those opposing: None. Those abstaining: None. Members gave reasons for their votes. Mayor Mullock said it is a permitted use in the C-1 commercial district. Councilmember Yeager said it is a permitted use in the C-1 commercial district and everyone benefits. Member Reed said the prepared food is for takeout. Member Crowley found the use consistent with retail sale of goods or prepared food. Member Padussis voted yes and asked the owners to watch for safety for those crossing Decatur Street. Vice Chairperson Jones echoed the comments of other board members. Solicitor King said the board can next vote on the merits of the site plan. Engineer Hurless said no parking variance is required, as the use is permitted, and the parking requirement is reduced at the site. Attorney Monzo agreed to the conditions listed in the June 29, 2023 memorandum by Engineer Hurless. Motion made by Councilmember Yeager for preliminary and final site plan approval, subject to the waivers and conditions, as outlined in the memorandum, by Board Engineer and Planner Craig R. Hurless, PE, PP, CME dated June 29, 2023, and on the record at the hearing, seconded by Mr. Lundholm and carried 5-2. Those in favor: Mayor Mullock, City of Cape May Planning Board Meeting Minutes, November 28, 2023 4 Councilmember Yeager, Mr. Lundholm, Mr. Padussis, Mr. Jones. Those opposing: Mrs. Reed, Mr. Crowley. Those abstaining: None. Members gave reasons for their votes. Mayor Mullock felt it is a less dense use in the C-1 district. Members Reed and Crowley objected to servers crossing the street in a chaotic area and the lack of a designated area for order pickup. Member Padussis relied on the approval of the application by the Police Department. Motion made to adjourn by Mr. Crowley at 8:31 PM with all in favor. Respectfully submitted: Karen Keenan, Board Secretary City of Cape May Planning Board Meeting Minutes, November 28, 2023 5