September 29 Zoning Board Special Meeting - Virtual

City of Cape May Zoning Board of Adjustment Meeting Minutes Tuesday, September 29, 2020 Opening: The special meeting of the City of Cape May Zoning Board of Adjustment was called to order by Chairperson Diane Hutchinson at 6:01 PM virtually via Zoom and streamed live on Facebook. In compliance with the Open Public Meetings Act, adequate notice was provided. Roll Call: Mrs. Hutchinson, Chairperson Present Mr. Murray, Vice Chairperson Present Mr. Iurato Absent Mrs. Werner Present Ms. Hesel Present Mr. Van de Vaarst Present Mrs. Lukens Present Mrs. Nelson (Alt. 1) Present Mr. Walsh (Alt. 2) Present Also Present: Richard King, Board Solicitor Craig Hurless, PE, PP, CME, Board Engineer Karen Keenan, Board Assistant Application(s): Atlantic City Electric Company Venice Avenue, Bank Street, Elmira Street Block 1055, Lot(s) 3-10 Block 1061, Lot(s) 16 Applicant Attorney Nick Talvacchia thanked the Board for arranging a special meeting for the hearing of this application. He added that they understand that the meeting will end no later than 8:45 PM to allow all to watch the Presidential debate. Attorney Talvacchia advised that there are four witnesses, with other experts standing by for questions, to present the application to upgrade, modernize and expand the existing substation to improve reliability and increase capacity for future growth. He went on to say it is an inherently beneficial use and meets the New Jersey state noise code. He added that, since Atlantic City Electric is a public utility, there is no substantial detriment to the public good and under state law, EMF cannot be regulated by a municipality, so it is not proper to discuss at the meeting. Attorney Talvacchia reported that the applicant received a variance in 2001. The four applicant witnesses, Rich Hall, Stuart Wiser, Kathryn Cornforth, Mike Conaway and Board Engineer Craig Hurless were sworn in by Board Solicitor Rich King. Project Manager Rich Hall described the upgrades proposed. He advised the Board that the project received HPC approval. ==================================================================== City of Cape May Zoning Board of Adjustment Meeting Minutes | September 29, 2020 | Page 1 Kathryn Cornforth described her educational background as a Civil Engineer and Professional Engineer and was accepted as an expert by the Board. Engineer Cornforth shared and described slides D-1 through D-21 from the application package including existing conditions, photographs, highlights of the materials, site plan sheets, the control building, new transformers, equipment, fencing, driveways, sidewalks, the temporary transformer to be located across the street on Elmira and gave testimony on landscaping, lighting, stormwater management design changes, the existing drainage map, and the proposed drainage areas including a swale to capture water. Engineer Cornforth stated that the plan meets the state’s stormwater standards. Board members were allotted time for questions of Engineer Cornforth and asked about lighting at the substation at night, the swale, equipment height, and the accuracy of the 100-year storm amounts given climate change. Attorney Talvacchia said the designs are for current times. Manager Hall and Engineer Cornforth said the equipment height is 4 feet higher than existing ground which is at 4 ½ feet. Engineer Hurless clarified for the Board that the 100-year flood elevation is eight feet, which is the tidal flood elevation such as when Cape Island Creek backs up, so there is a need to protect improvements. He added that stormwater runoff is protected by the swale system. Member Hesel said she is concerned about flooding and asked if climate change was considered. Manager Hall said that they did consider, and the equipment is over the 100-year storm and that the current equipment has not had a problem. Engineer Hurless said the resiliency element is part of the 2019 Master Plan Reexamination and the applicant is required to go the 100-year storm; the equipment is above the minimum. He added that the project affects the whole town. Sound Engineer Mike Conaway of Ostergaard Acoustical Associates presented his educational and professional experience background and was accepted as an expert by the Board. Engineer Conaway presented testimony on the modeling performed to predict sound and tested what is existing to predict the noise that will be generated at residential properties. He described the Cape May and New Jersey identical standards which are 65 dba during the day and 50 dba at night which can be compared to the noise heard when three feet away from a refrigerator. Mr. Conaway testified that the results of the study indicate that the substation sound will be below the night standard at all times as show in Exhibit A-7. Board members were allotted time for questions of Engineer Conaway. Professional Planner Stuart Wiser of ARH Associates testified regarding his background and was accepted as an expert. He said that the applicant is a public utility which is an inherently beneficial use as was found to be by the Board in 2001. Planner Wiser gave testimony on the history of rulings on inherently beneficial use and described the Sica Balancing Test, which was named after a court case and include evaluating public impact, identifying the adverse consequences of granting the variance, considering conditions which may be imposed to mitigate any adverse consequences and balancing the public interest in granting the variance versus adverse impact as lessened by any conditions and determine whether on balance there will be a substantial detriment ==================================================================== City of Cape May Zoning Board of Adjustment Meeting Minutes | September 29, 2020 | Page 2 to the public good being required to deny the variance. Planner Wiser described the variances needed and described the location of the substation in C-5 district as being the City’s most permissive district. He went on to say that even though a substation is not a permitted use in the district, it has been there since about 1909 and is an existing non-conforming use. Planner Wiser believes the positive and negative criteria have been met and discussed waivers that are required as they do not lend themselves to the application regarding barbed wire, continuous look of building, parking lots, curbing, and landscaping. He added that the temporary station is needed and inherently beneficial because the project cannot be done without providing the temporary station for public to have electricity during construction. Board members were allotted time for questions of Planner Wiser. Board Engineer Craig Hurless then summarized his latest memorandum dated August 18, 2020 and indicated that there are two variances required: a rear yard setback variance and a side yard setback. Engineer Hurless said that the D-2 criteria review is appropriate. The details required for variances, conditional use approval and preliminary site plan approval were reviewed and explained in detail, with the items being classified as conditions of approval. Engineer Hurless commented that the applicant worked with the Historic Preservation Commission and received final approval, dated 7/2/2020, for the project. The review comments for design standard waivers were reviewed in detail with the reasons for supporting waivers. Manager Rich Hall confirmed that deficient landscaping to be furnished (at approximately fifty [50] trees) and installed at a location to be determined by the City and coordinated with the Shade Tree Commission to ensure there is no net loss of required vegetation. The General Review Comments were reviewed and explained in detail, with the items being classified as conditions of approval. Engineer Hurless highlighted that he rejected the first stormwater system proposed by the applicant who worked with him and changed the runoff patterns throughout the site with the result being two runoffs to the street redirected mostly to Cape Island Creek and never to Venice or Elmira Streets. The approval reports of the Shade Tree Commission (dated 8/14/2020 with notation that care needs to be taken to preserve the cedar trees due to grading and stormwater) and the Fire Department (dated 8/14/2020 with no notation) were reviewed and listed as conditions of approval. Board members were allotted time for questions of Engineer Hurless. Chairperson Hutchinson called for a break at 7:45 PM. The meeting resumed at 7:53 PM. Discussion was opened to the public within 200 feet at 7:53 PM with the public being sworn in for the record by Mr. King. Ken Murphy, 549 Elmira Street, explained to the Board that safety is what is important and he would like more attention on the flooding issue. He added that the Board has to consider that it is no longer the 1900s and there has been increased rain flooding and an increase in property values in the neighborhood. He also said that in the 2001 conditions of approval was that future flooding attributable to the site must be addressed by the applicant to the satisfaction of the Board. He went on to say that there were pumps toward the rear of Venice Avenue; these pumps are no ==================================================================== City of Cape May Zoning Board of Adjustment Meeting Minutes | September 29, 2020 | Page 3 longer operable. He asked if they could be made operable again, perhaps using the landscaping funds to get the pumps up and running. Chairperson Hutchinson asked Engineer Hurless to address the question. Engineer Hurless said they will need a CAFRA permit, which the State will need to review. Chairperson Hutchinson said the issue should be addressed with the City. Engineer Hurless said it is a municipal issue. Stephen DiCicco, 510 Venice Avenue, thanked the applicant for making the building look like a house. He asked if the project is being done safely with the flooding issue and said that flappers were never fixed and someone, specifically the applicant, needs to address it. Mr. DiCicco said it floods there terribly all of the time, is an evacuation route, and there are no drains in the area. There was a discussion among the Board members regarding the comments and Solicitor King asked Engineer Hurless to explain what the applicant is required to do in this case. Engineer Hurless said the applicant met the obligation to eliminate or reduce the water flow which meets the requirements. Engineer Hurless went on to say that this is the low point and the applicant cannot be forced to address it. He said it is a municipal stormwater issue; water is running off of the site. Eloise Boccella, 544 Elmira Street, said she is directly across the street and observes flooding about three to four times a year. She asked why put the substation in a heavily flooding zone. James Conti, 544 Elmira Street, said that Mr. Murphy made valid points regarding safety factors and the current stormwater runoff and tidal issues. He felt that the displacement of water is an issue that should be addressed by the applicant. James Ridgeway, President of Chamber of Commerce at 609 Lafayette Street, read a statement of support of the application to modernize and fortify the grid. He reported that businesses are left vulnerable if a single transformer fails or there are powerful and damaging storms. Larry Hirsch, 1160 Cape May Avenue, a business owner of hotels and commercial properties spoke in support of the application to reduce challenges of loss of power due to storms and demand generated by new larger homes in Cape May. He said he has experienced outages of two to three days without power, and there is a need to upgrade the substation. Discussion was opened to the public beyond 200 feet at 8:35 PM with no one coming forward. Discussion was closed to the public at 8:35 PM. Solicitor King explained the vote to the Board Motion was made by Mr. Murray to grant preliminary and final site plan approval and associated variances as listed in the Board Engineer’s report on page 5 of 6 subject to the waivers and conditions outlined by the Board Engineer Craig R. Hurless, PE, PP, CME, in ==================================================================== City of Cape May Zoning Board of Adjustment Meeting Minutes | September 29, 2020 | Page 4 his report dated August 18, 2020 and accepted by the applicant, seconded by Mrs. Nelson and carried 7-0. Those in favor: Mrs. Werner, Ms. Hesel, Mr. Van de Vaarst, Mrs. Lukens, Mrs. Nelson, Mr. Murray, Mrs. Hutchinson. Those opposed: None. Those abstaining: None. The Board gave reasons for their votes. Motion made by Mrs. Nelson to adjourn the meeting at 8:47 PM with all in favor. Respectfully Submitted by Karen Keenan, Board Secretary ==================================================================== City of Cape May Zoning Board of Adjustment Meeting Minutes | September 29, 2020 | Page 5