Land Use Board Regular Meeting

Borough of Highlands LUB Meeting Minutes Municipal Building, 151 Navesink Ave., Highlands, NJ June 12, 2025 Chair Knox called the meeting to order at 7:00pm and asked all to stand for the Pledge of Allegiance. ROLL CALL: Present: Mayor Broullon, Chief Burton, Ms. LaRussa, Mr. Montecalvo, Mr. Zill, Vice Chair Tierney, Chair Knox, Ms. Chang, Mr. Cramer, Mr. Cody, and Ms. Vickery Absent: Councilmember Olszewski, Mr. Sayah Also Present: Board Engineer Carmela Roberts, Board Attorney Dustin Glass, Board Secretary Nancy Tran, Assist Board Secretary Alicia Jones Chair Knox announced that the applicant LUB25-05: Cahill – Amended application LUB24-02 was being carried to the August 14th meeting. Mr. Glass added that they will re-notice. PUBLIC COMMENTS: None APPROVAL OF MINUTES: May 8, 2025, LUB Meeting Minutes OFFERED BY: Mayor Broullon SECONDED BY: Ms. LaRussa All in favor. INELIGIBLE: Chair Knox, Ms. Vickery ABSENT: Councilmember Olszewski, Mr. Sayah May 8, 2025, LUB Executive Session Minutes OFFERED BY: Ms. LaRussa SECONDED BY: Vice Chair Tierney All in favor. INELIGIBLE: Chair Knox, Ms. Vickery ABSENT: Councilmember Olszewski, Mr. Sayah RESOLUTIONS LUB Resolution 2025-16 Memorializing Approval for LUB2022-04: Kirsh Kraft - 9 Fifth St., B57 Ls 8 & 9 - Extension Request LAND USE BOARD RESOLUTION 2025-16 MEMORIALIZATION OF 90-DAY EXTENSION OF MINOR SUBDIVISION APPROVAL WITH BULK VARIANCE RELIEF IN THE MATTER OF KIRSH KRAFT, LLC Approved: May 8, 2025 APPLICATION NO. LUB-2022-04 Memorialized: June 12, 2025 1  WHEREAS, an application for an extension of time for minor subdivision approval with bulk variance relief has been made to the Highlands Land Use Board (hereinafter referred to as the “Board”) by Kirsh Kraft, LLC (hereinafter referred to as the “Applicant”) on lands known and designated as Block 57, Lots 8 and 9 as depicted on the Tax Map of the Borough of Highlands (hereinafter “Borough”), more commonly known as 9 Fifth Street in the R-2.02 (Residential) Zone (hereinafter “Property”); and WHEREAS, a complete application has been filed, the fees as required by Borough Ordinance have been paid, and it otherwise appears that the jurisdiction and powers of the Board have been properly invoked and exercised; and WHEREAS, a public hearing was held before the Board on May 8, 2025 with regard to this application. NOW, THEREFORE, does the Highlands Land Use Board make the following findings of fact and conclusions of law with regard to this application: 1. The Applicant is seeking a 100-day extension of time, until July 31, 2025, for the minor subdivision approval with bulk variance relief granted by the Board on July 11, 2024 and memorialized in a Resolution dated August 8, 2024 bearing Resolution No. 2024-15, as well as from the 75-day extension of the minor subdivision approval with bulk variance relief, until April 22, 2025, which was granted by the Board on February 13, 2025 and memorialized in a Resolution dated March 13, 2025, bearing Resolution No. 2025-10. 2. The Applicant was granted minor subdivision approval with bulk variance relief to create two (2) single-family dwelling lots, which approval required, as a condition of approval, that the Applicant submit a deed of easement with adjacent Lot 5 subject to review and approval by the Board’s Professionals. 3. The Applicant was previously granted a 75-day extension of time, until April 22, 2025, pursuant to N.J.S.A. 40:55D-47(f) and (g). 4. The Applicant is now seeking a 100-day extension of time, until July 31, 2025, pursuant to N.J.S.A. 40:55D-47(f) and (g). 5. The Applicant did not testify at the hearing but submitted two (2) letters to the Board from its Professional Planner, John E. Taikina, PP, AICP, dated April 22, 2025 and April 29, 2025, respectively, requesting the 100-day extension of time to record the necessary deeds with the County of Monmouth. Although the Applicant’s April 29, 2025 letter did not identify a particular amount of time for the extension request, the April 22, 2025 letter requested a 100-day extension of time and was used as the basis for the request. 6. The Applicant’s letters explained that the reason for the extension request was that the Applicant needed additional time revise the deeds and descriptions as provided for in the Resolution of approval memorialized on August 8, 2024 and for those deeds and descriptions to then be submitted to and approved by the Board’s Professionals, and subsequently recorded with the County. 7. There were no members of the public expressing an interest in this application. 8. The Board has received, reviewed, and considered the Applicant’s April 22, 2025 and April 29, 2025 written requests for an extension, as well as the Land Use Board Resolution granting minor subdivision approval with bulk variance relief, dated August 8, 2024 pursuant to N.J.S.A. 40:55D-47 and the Land Use Board Resolution granting a 75-day extension of the minor subdivision approval with bulk variance relief, dated March 13, 2025. 9. All exhibits, resolutions, and statements have been incorporated herein in their entirety. WHEREAS, the Highlands Land Use Board, having reviewed the proposed application and having considered the impact of the proposed application on the Borough and its residents to 2 determine whether it is in furtherance of the Municipal Land Use Law; and having considered whether the proposal is conducive to the orderly development of the site and the general area in which it is located pursuant to the land use and zoning ordinances of the Borough of Highlands; and upon the imposition of specific conditions to be fulfilled, hereby concludes that good cause has been shown to approve the application of Kirsh Kraft, LLC for a ninety (90) day extension of time, until July 21, 2025, pursuant to N.J.S.A. 40:55D-47. The Board acknowledges that the Applicant has diligently pursued outside approvals, such as filing of the necessary deeds, but that due to circumstances beyond its control the Applicant has faced unavoidable and unexpected delays. The Board, therefore, finds that a 90-day extension, until July 21, 2025, pursuant to N.J.S.A. 40:55D-47 is appropriate in this circumstance. The Board further determines that although the Applicant initially requested a 100-day extension of time, the Board finds that a ninety (90) day extension is sufficient under the circumstances and provides the Applicant with a sufficient amount of time to revise the deeds and descriptions as needed, and for them to be submitted to and approved by the Board’s professionals and, ultimately, recorded with the County. NOW, THEREFORE, BE IT RESOLVED by the Highlands Land Use Board on this 12th day of June, 2025, that the action of the Land Use Board taken on May 8, 2025 granting Application No. LUB-2024-04 of Kirsh Kraft, LLC for a ninety (90) day extension of time, until July 21, 2025, for minor subdivision approval with bulk variance relief be and the same is hereby memorialized as follows: The application is granted subject to the following conditions: 1. The Applicant is granted a 90-day extension of time for minor subdivision approval with bulk variance relief, until July 21, 2025. 2. All terms and conditions of the Board’s previous approvals, except as satisfied or amended, shall remain in place. 3. The Applicant shall provide a certificate that taxes are paid to date of approval. 4. Payment of all fees, costs, escrows due and to become due. Any monies are to be paid within twenty (20) days of said request by the Board Secretary. 5. Subject to all other applicable rules, regulations, ordinances and statutes of the Borough of Highlands, County of Monmouth, State of New Jersey or any other jurisdiction. BE IT FURTHER RESOLVED that the Board secretary is hereby authorized and directed to cause a notice of this decision to be published in the official newspaper at the Applicant’s expense and to send a certified copy of this Resolution to the Applicant and to the Borough Clerk, Engineer, Attorney and Tax Assessor, and shall make same available to all other interested parties. OFFERED BY: Chief Burton SECONDED BY: Vice Chair Tierney AYES: Mayor Broullon, Chief Burton, Ms. LaRussa, Mr. Montecalvo, Mr. Zill, Ms. Chang, Vice Chair Tierney NAYS: None ABSTAIN: None INELIGIBLE: Chair Knox, Ms. Vickery ABSENT: Councilmember Olszewski, Mr. Sayah 3 LUB Resolution 2025-17 Memorializing Consistency Review of O-25-10 Amending Steep Slopes Ordinance LAND USE BOARD RESOLUTION 2025-17 MEMORIALIZATION OF CONSISTENCY DETERMINATON FOR ORDINANCE NO. O-25- 10 AMENDING §21-8 (DEFINITIONS) AND §21-84B (STEEP SLOPES AND SLUMP BLOCKS) OF THE BOROUGH CODE OF THE BOROUGH OF HIGHLANDS Decided: May 8, 2025 Memorialized: June 12, 2025 MATTER OF CONSISTENCY DETERMINATION FOR ORDINANCE NO. O-25-10 WHEREAS, under the Municipal Land Use Law pursuant to N.J.S.A. 40:55D-26a, prior to the adoption of a Development Regulation, revision or amendment thereto, the Land Use Board, shall make and transmit to the Governing Body, within 35 days after referral, a report including identification of any provisions of the proposed development regulation, revision or amendment which are inconsistent with the Master Plan and Recommendations concerning these inconsistencies and any other matters as the Board deems appropriate; and WHEREAS, the Borough of Highlands Governing Body introduced Ordinance No. O- 25-10 entitled Ordinance “Amending Chapter 21 (Zoning and Land Use Regulations), Part I (General Provisions), Article II (Definitions), Section 21-8 (Definitions) and Chapter 21 (Zoning and Land Use Regulations), Part IV (Zoning), Article XIV (Establishment of Districts), Section 21-84B (Steep Slopes and Slump Blocks) of the Borough Code of the Borough of Highlands”; and WHEREAS, the Mayor and Council of the Borough of Highlands referred this matter to the Land Use Board under the Municipal Land Use Law pursuant to N.J.S.A. 40:55D-26a; and WHEREAS, the Land Use Board has considered this matter at a duly-noticed, in-person, public meeting conducted on May 8, 2025. NOW, THEREFORE, the Highlands Land Use Board having reviewed Ordinance No. O-25- 10 makes the following findings of fact and conclusions of law in regard to the proposed amendments to the Code of the Borough of Highlands in connection therewith: 1. Ordinance No. O-25-10 revises the definition of “Steep Slopes” in Section 21-8 (Definitions) to apply to slopes greater than fifteen percent (15%), and updates the provisions of Section 21-84B (Steep Slopes and Slump Blocks) such that (a) when tree removal is proposed in a manner that does not compromise the slope, a tree stump of between 3 and 4 feet above grade shall be required to remain to maintain the existing root system and prevent future slope movement and (b) the maximum lot disturbance shall be no grater than 130% of the maximum lot coverage permitted for the lot, amongst other changes. 2. The Board’s Professionals and Mayor Broullon provided an overview of the Ordinance and recommended that it is substantially consistent with the Master Plan. 3. The Land Use Board finds that adoption of Ordinance No. O-25-10 is substantially consistent with the comprehensive goals, land use goals, and economic development goals as set forth in the Master Plan or is designed to effectuate such plan elements for the reasons expressed on the record as well as the reasons expressed by its Professionals and Mayor Broullon. NOW, THEREFORE, BE IT RESOLVED, BY the Highlands Land Use Board that Ordinance 4 No. O-25-10 entitled Ordinance “Amending Chapter 21 (Zoning and Land Use Regulations), Part I (General Provisions), Article II (Definitions), Section 21-8 (Definitions) and Chapter 21 (Zoning and Land Use Regulations), Part IV (Zoning), Article XIV (Establishment of Districts), Section 21-84B (Steep Slopes and Slump Blocks) of the Borough Code of the Borough of Highlands” has been determined by the Land Use Board to be substantially consistent with the comprehensive goals, land use goals and economic development goals in the Master Plan or is designed to effectuate such plan elements for the Borough of Highlands. BE IT FURTHER RESOLVED that the Land Use Board Secretary is hereby directed to transmit a copy of this Resolution to the Mayor and Borough Council. This Resolution shall serve as the report to the governing body pursuant to N.J.S.A. 40:55D-26a of the Municipal Land Use Law. BE IT FURTHER RESOLVED that this Resolution shall take effect immediately. OFFERED BY: Chief Burton SECONDED BY: Vice Chair Tierney AYES: Mayor Broullon, Chief Burton, Ms. LaRussa, Mr. Montecalvo, Mr. Zill, Ms. Chang, Vice Chair Tierney NAYS: None ABSTAIN: None INELIGIBLE: Chair Knox, Ms. Vickery ABSENT: Councilmember Olszewski, Mr. Sayah LUB Resolution 2025-18 Memorializing Denial of LUB25-01: Ayers – 19 Bay Ave., B38.01 L13 – Use Variance LAND USE BOARD RESOLUTION 2025-18 MEMORIALIZATION OF USE VARIANCE RELIEF DENIAL IN THE MATTER OF TIM AYERS Approved: May 8, 2025 APPLICATION NO. LUB25-01 Memorialized: June 12, 2025 WHEREAS, an application for use variance relief pursuant to N.J.S.A. 40:55D-70(d) with ancillary bulk variance relief and a design waiver has been made to the Borough of Highlands Land Use Board (hereinafter referred to as the “Board”) by Tim Ayers (hereinafter referred to as the “Applicant”) on lands known and designated as Block 38.01, Lot 13, as depicted on the Tax Map of the Borough of Highlands (hereinafter “Borough”), and more commonly known as 19 Bay Avenue, Highlands, New Jersey, in the WC-1 Waterfront Commercial Zone District (hereinafter “Property”); and WHEREAS, a live public hearing was held before the Board on May 8, 2025, with regard to this application; and WHEREAS, the Board has heard testimony and comments from the Applicant, witnesses and consultants, and with the public having had an opportunity to be heard; and WHEREAS, a complete application has been filed, the fees as required by Borough Ordinance have been paid, and it otherwise appears that the jurisdiction and powers of the Board have been properly invoked and exercised. 5  NOW, THEREFORE, does the Highlands Land Use Board make the following findings of fact and conclusions of law with regard to this application: 1. The subject property is an approximately 0.07-acre (3,220 square foot) through lot with frontage along Bay Avenue to the north and Shore Drive to the south, located at 19 Bay Avenue. The property is located on Lot 13 of Block 38.01 in the Borough and includes approximately 54.7 feet of frontage along Bay Avenue (two-way roadway) and 52.5 feet of frontage along Shore Drive (one-way roadway). 2. The property is developed with a two-story office building, which includes a ground floor area of 1,200 square feet, and second floor area of approximately 363 square feet. The building’s current use includes the offices of the Inspired Network Financial Group on the ground floor. 3. The second floor of the building is noted to include an open-concept room with a kitchenette and one (1) bathroom. The second level is only accessible via an external staircase and semi-enclosed porch. The ground level is faced with brick, while the second level is lined with white vinyl paneling. 4. The Property’s asphalt parking area, accessed to/from Bay Avenue, is located in the front yard of the existing building. Spaces within this parking area are not delineated, so it is currently unclear how many parking spaces are provided. Signage along a wooden fence indicates that parking is reserved for the Inspired Network Financial Group. 5. The office building is accessed up a flight of stairs from the parking lot. An additional, smaller parking area has been created directly adjacent to the building, and is accessed to/from Shore Drive. This area is marked by the same signage as the larger parking lot, that it is reserved for the finance office. This smaller parking area is located at a higher elevation on the lot and does not require the use of the stairs to access the building; however, no ADA signage or markings are present. 6. The subject property is located within the WC-1 Waterfront Commercial Zone. Directly east of the property, on Lot 12, is a one-story building that houses the offices of DSV Property Management. On Lot 15.01 to the west is the Chubby Pickle sports bar and grill. The remaining portion of the block on which the property is located includes surface lots for parking overflow from the nearby Bahrs Landing and Moby’s Lobster Deck restaurants and the Gateway Marina. 7. The subject Property was granted preliminary and final site plan approval by the Borough’s Zoning Board of Adjustment (which has since been consolidated with the Borough’s Planning Board, into the Land Use Board) on March 4, 2010 (memorialized in Resolution No. 2010- 03) to construct the (now) existing 363-square feet second-story addition, and a 158-square foot addition to the ground floor. 8. The approved uses for the Property included a seasonal bicycle rental shop on the ground floor, and office space on the second floor for a local masonry contracting business. The second floor was to be occupied by at most two (2) employees. Access for the second level was always intended to be separate from the ground level. 9. The approved parking arrangement for the Property describes the parking lot along Bay Avenue containing three (3) parking stalls. The parking area accessed from Shore Drive is described as a handicapped space. Therefore, a total of four (4) parking spaces were approved In Resolution No. 2010-03. 10. On February 21, 2025, the subject Property was issued a zoning permit denial from 6 the Borough’s Zoning Official, for requesting to utilize the second floor of the building as a short- term rental studio apartment, because the proposed residential use is not permitted in the zone and which residential use is, in fact, prohibited in the WC-1 Zone. 11. The Applicant was represented by Daniel J. O’Hern, Jr., Esq. at the time of the hearing. Mr. O’Hern provided the Board with an overview of the application, confirming that the Applicant was requesting use variance relief, along with the associated bulk variances and design waivers for existing nonconformities on the Property, to convert the second floor of the building into a short- term studio rental apartment. 12. Jennifer L. Cook, an employee of the Inspired Network Financial Group, the ground floor tenant at the subject Property, testified on behalf of the Applicant. The Applicant submitted a power of attorney, authorizing Ms. Cook to act on his behalf. 13. Ms. Cook testified that she works for the Applicant out of the subject Property on the ground floor thereof. She continued that she is on site during the week and would be the main point of contact for any issues arising with the Property. 14. Ms. Cook provided additional testimony that the Applicant was proposing to use the second floor as a short-term rental unit and required variance relief as a result of the proposal. 15. Ms. Cook testified, regarding the existing conditions on site and in response to the Engineering Review Letter, dated March 14, 2025 and the Planning Review Letter, dated May 7, 2025. 16. In response to questions raised by Board Professionals in their review letters and at the hearing, concerning the width of the drive aisle and the number of parking spaces proposed on site, Ms. Cook testified that she measured the parking area by herself and determined that five (5) parking spaces could be accommodated on the subject Property. Similarly, she measured the drive aisle widths and concluded that they met the Zoning requirements. 17. The Board’s Professionals testified that the measurements taken by Ms. Cook were not accurate and, in fact, not based on any widely accepted methodology for doing so. Moreover, those measurements could not be independently verified by the Board’s Professionals. 18. The Board’s Professionals further opined that only four (4) parking spaces had been previously approved and that that the evidence did not support the finding that the site could accommodate five (5) parking spaces, that were ADA compliant. 19. In response to questions from the Board, Ms. Cook testified that the Applicant had posted the studio apartment for rent without first obtaining approval from the Borough or the Board to do so. Ms. Cook testified that the Applicant was not aware of the fact that the proposed use as a short-term rental property required Board approval or any municipal action, prior to posting the unit for rent. 20. The Board Planner testified, providing an overview of her report, dated May 7, 2025. She provided testimony that the proposed use was not permitted in the WC-1 Zone and was, in fact, prohibited in the Zone. Similarly, residential uses were found to be inconsistent with the 2016 Master Plan. She concluded her testimony by offering that, in her opinion, the Applicant had failed to satisfy the requirements for a use variance. 21. The Board and its Professionals, along with the Applicant, confirmed the need for the following variance relief: Use Variance  The applicant requires d(1) variance relief to permit apartment use within the WC-1 Waterfront Commercial 1 Zone. 7 Bulk Variances (Pre-Existing Nonconformities)  Insufficient Lot Frontage/Width (Chapter 21 Attachment 1) – A minimum lot width/frontage of 100 feet is required, where 54.7 feet exists along Bay Avenue and 52.5 feet exists along Shore Drive, and is proposed to remain.  Insufficient Lot Depth (Chapter 21 Attachment 1) – A minimum lot depth of 150 feet is required, where 57.1 feet exists, and is proposed to remain.  Insufficient Front Setback (Chapter 21 Attachment 1) – A minimum front setback of 20 feet is required, where 0.1 feet exists along Shore Drive, and is proposed to remain.  Excessive Impervious Coverage (Chapter 21 Attachment 1) – A maximum impervious coverage of 65% is permitted, where 87% exists, and is proposed to remain. Design Standards  Guide Rail Provisions (§26-65.14D) – Where guide rails are required for surface parking spaces, no guide rails exist, and none are proposed. 22. The hearing was then opened to the public, at which time Carolyn Broullon, of Miller Street stated that the proposed use was inconsistent with the Borough Master Plan. She continued that the proposed residential use was also not permitted in the WC-1 Zone and was, in fact, prohibited in that zone. 23. There were no other members of the public expressing an interest in the application, at which time the public portion was closed. WHEREAS, the Highlands Land Use Board, having reviewed the proposed application and having considered the impact of the proposed application on the Borough and its residents to determine whether it is in furtherance of the Municipal Land Use Law; and having considered whether the proposal is conducive to the orderly development of the site and the general area in which it is located pursuant to the land use and zoning ordinances of the Borough of Highlands; and upon the imposition of specific conditions to be fulfilled, hereby determines that the Applicant’s request for use variance relief pursuant to N.J.S.A. 40:55D-70d(1) along with bulk variance relief pursuant to N.J.S.A. 40:55D-70c(1) and c(2) along with a design waiver is denied for the reasons set forth herein. The Applicant requires the following relief: Use Variance  The applicant requires d(1) variance relief to permit apartment use within the WC-1 Waterfront Commercial 1 Zone. Bulk Variances  Insufficient Lot Frontage/Width (Chapter 21 Attachment 1) – A minimum lot width/frontage of 100 feet is required, where 54.7 feet exists along Bay Avenue and 52.5 feet exists along Shore Drive, and is proposed to remain.  Insufficient Lot Depth (Chapter 21 Attachment 1) – A minimum lot depth of 150 feet is required, where 57.1 feet exists, and is proposed to remain.  Insufficient Front Setback (Chapter 21 Attachment 1) – A minimum front setback of 20 feet is required, where 0.1 feet exists along Shore Drive, and is proposed to remain.  Excessive Impervious Coverage (Chapter 21 Attachment 1) – A maximum impervious coverage of 65% is permitted, where 87% exists, and is proposed to remain. 8 Design Standards  Guide Rail Provisions (§26-65.14D) – Where guide rails are required for surface parking spaces, no guide rails exist and none are proposed. I. Use Variance Relief The Applicant requires use variance relief in order to permit the second floor of the two- story building on the site to be used as a short-term rental studio apartment. The proposed apartment (which currently exists) would include an open concept living/sleeping room, with access to a kitchenette and bathroom. Residential uses are not permitted in the WC-1 Zone and are, in fact, prohibited in that Zone. The New Jersey Courts have been willing to accept a showing of extreme hardship as sufficient to constitute a special reason. The courts have indicated that there is no precise formula as to what constitutes special reasons unless the use is determined to be inherently beneficial, and that each case must be heard on its own circumstances. Yet, for the most part, hardship is usually an insufficient criteria upon which the Board can grant a variance. In addition, special reasons have been found where a variance would serve any of the purposes of zoning as set forth in N.J.S.A. 40:55D-2. However, in the last analysis, a variance should only be granted if the Board, on the basis of the evidence presented before it, feels that the public interest, as distinguished from the purely private interests of the Applicants, would be best served by permitting the proposed use. In these instances, the Board must also find that the granting of the variance will not create an undue burden on the owners of the surrounding properties. The Board also notes the special reasons requirement may be satisfied if the Applicant can show that the proposed use is peculiarly suited to the particular piece of property. With regard to the question of public good, the Board’s focus is on the variance’s effect on the surrounding properties and whether such effect will be substantial. Furthermore, in most “d” variance cases, the Applicant must satisfy an enhanced quality of proof and support it by clear and specific findings by this Board that the variance sought is not inconsistent with the intent and purpose of the Master Plan and Zoning Ordinance. The burden of proof is upon the Applicant to establish the above criteria. The Board finds that the Applicant has failed to satisfy either the positive or the negative criteria with respect to the use variance. As a whole, the Board finds that the Applicant failed to present any expert testimony supporting his request for relief. To that end, the Applicant did not offer any planning testimony, either. The only testimony presented on behalf of the Applicant was that of a lay witness, Ms. Cook, acting as an agent of the Applicant. Although the lack of a particular type of testimony being presented (or not) is not a reason to deny the requested relief in isolation, but forms a basis as to why the Board weighed the facts and reached the conclusions that it did. Ms. Cook provided lay testimony, but she could not provide expert testimony and was not qualified in that regard. She did, however, attempt to answer questions from the Board and its professionals regarding the current conditions of the site and proposed use. In response to questions from the Board and/or its professionals, Ms. Cook provided testimony concerning the width of the drive aisles, as well as to how the five (5) parking spaces were calculated. Although Ms. Cook testified that she personally measured the drive aisles and calculated the number of parking spaces, she is neither an engineer nor did she have any expertise in that regard. The Board finds that the calculations provided by Ms. Cook were not accurate. Although the Board appreciated Ms. Cook’s explanation as to the size of the drive aisles and number of parking 9 spaces proposed, it finds the calculations provided by Ms. Cook to be incorrect and that the calculations were not performed in accordance with any accepted method for doing so. The Board and its professionals also raised questions regarding the survey, which was approximately eight (8) years old. Ms. Cook testified that no major site improvements had been made within that time period but could not confirm whether the survey was accurate. With respect to the positive criteria, the Board finds that “special reasons”, i.e., whether the Property is “particularly suitable” for the proposed residential use, has not been demonstrated by the Applicant and that the Property can be developed with a permitted use, as it has been (and continues to be). Accordingly, there is no hardship. There is also no evidence that the proposed residential use advances the purposes of zoning or that it is inherently beneficial. In fact, rental units and, for that matter, studio apartments, are not inherently beneficial uses, nor were they alleged to be. No testimony was presented by the Applicant as to whether the proposed residential use advanced the purposes of zoning and the Board is loath to find that any such reasons exist. To the contrary, the second floor was approved to be used as an office space and can continues to be approved for that use, despite the fact that the Applicant had been attempting to rent out the unit, without Borough or Board approval to do so. The Board further finds that the Applicant has failed to satisfy the negative criteria because the evidence presented does not support a finding that the variance can be granted without substantial detriment to the public good or that it will not impair the intent and purpose of the Borough Master Plan and Zoning Ordinance. The 2016 Master Plan Reexamination Report for the Borough intentionally established distinct waterfront zones, separating waterfront commercial zones from waterfront residential and waterfront mixed-use residential/commercial zones. The subject Property is located within a waterfront commercial zone (WC-1), as most of the area’s development consists of restaurants, marinas, and commercial establishments; in accordance with the Master Plan Reexamination, all residential uses are prohibited within the waterfront commercial zones, including the WC-1 Zone. The Applicant did not provide testimony to support deviating from the Reexamination Report’s vision or the Zoning Ordinance’s prohibition of residential uses in the WC-1 Zone, by permitting a residential use within a waterfront commercial zone, rather than a waterfront residential or mixed-use zone. II. Bulk Variance Relief and Design Waivers Bulk Variances The Applicant requires four (4) bulk variances for existing conditions. The Municipal Land Use Law, at N.J.S.A. 40:55D-70c provides Boards with the power to grant variances from strict bulk and other non-use related issues when the Applicant satisfies certain specific proofs which are enunciated in the Statute. Specifically, the Applicant may be entitled to relief if the specific parcel is limited by exceptional narrowness, shallowness or shape. An Applicant may show that exceptional topographic conditions or physical features exist uniquely affect a specific piece of property. Further, the Applicant may also supply evidence that exceptional or extraordinary circumstances exist which uniquely affect a specific piece of property or any structure lawfully existing thereon and the strict application of any regulation contained in the Zoning Ordinance would result in a peculiar and exceptional practical difficulty or exceptional and undue hardship upon the developer of that property. Additionally, under the “c(2)” criteria, the Applicant has the option of showing that in a particular instance relating to a specific piece of property, the purpose of the Act would be advanced 10 by allowing a deviation from the Zoning Ordinance requirements and the benefits of any deviation will substantially outweigh any detriment. In those instances, a variance may be granted to allow departure from regulations adopted, pursuant to the Zoning Ordinance. Those categories specifically enumerated above constitute the affirmative proofs necessary in order to obtain “bulk” or (c) variance relief. Finally, the Applicant must also show that the proposed variance relief sought will not have a substantial detriment to the public good and, further, will not substantially impair the intent and purpose of the Zone Plan and Zoning Ordinance. It is only in those instances when the Applicant has satisfied both these tests that a Board, acting pursuant to the Statute and case law, can grant relief. The burden of proof is upon the Applicant to establish these criteria. Design Waivers The Applicant requires one (1) design waiver for existing conditions. The MLUL permits site plan design exceptions pursuant to N.J.S.A. 40:55D-51(b). The statute permits the Board to grant a deviation from the requirements for site plan approval if (1) doing so is “reasonable”, (2) within the general purpose and intent of the provisions for site plan review and approval of an ordinance adopted pursuant to Article 4 of the MLUL; and (3) if the literal enforcement of one or more provisions of the ordinance is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land in question. With respect to both the bulk variances and the design waiver, because the Board elected to deny the “d” variances sought in this Application, it did not need to resolve any of the issues concerning the site plan design exception or bulk variances sought by the Applicant and therefore makes no conclusions thereon. Had the Board reached a different conclusion on the “d” variance sought by the Applicant, it would have proceeded to deliberate and vote upon on the design exceptions sought pursuant to N.J.S.A. 40:55D-51(b) and the bulk variances pursuant to N.J.S.A. 40:55D-70c. NOW, THEREFORE, BE IT RESOLVED by the Land Use Board of the Borough of Highlands on this th 12 day of June 2025, that the action of the Land Use Board taken on May 8, 2025 denying Application No. LUB2025-01, for use variance relief pursuant to N.J.S.A. 40:55D-70d(1) with associated bulk variance relief pursuant to N.J.S.A. 40:55D-70c and design waivers is as follows: The application for variance relief and design waivers under the Municipal Land Use Law pursuant to N.J.S.A. 40:55D-70d(1), N.J.S.A. 40:55D-70c, and N.J.S.A. 40:55D-51(b) as well as the Land Use Ordinance of the Borough of Highlands is hereby denied. BE IT FURTHER RESOLVED that the Board secretary is hereby authorized and directed to cause a notice of this decision to be published in the official newspaper at the Applicant’s expense and to send a certified copy of this Resolution to the Applicant and to the Borough Clerk, Engineer, Attorney and Tax Assessor, and shall make same available to all other interested parties. OFFERED BY: Ms. LaRussa SECONDED BY: Mr. Zill AYES: Chief Burton, Ms. LaRussa, Mr. Montecalvo, Mr. Zill, Ms. Chang, Vice Chair Tierney NAYS: None RECUSED: None INELIGIBLE: Mayor Broullon, Chair Knox, Ms. Vickery ABSENT: Councilmember Olszewski, Mr. Sayah 11 HEARING ON NEW BUSINESS Fourth Round Affordable Housing Plan and Spending Plan Susan Gruel, Consultant Planner for the Borough, was sworn in. Mr. Glass explained the Affordable Housing Plan hearing and verified the Board’s jurisdiction. Ms. Gruel introduced her associate, Megan Adam, prior to giving summary of the Fair Housing Act and the municipality’s obligations. She noted that Highlands has been diligent about its obligations and explained the number of ways that the obligations were addressed. Chair Knox asked for clarification for numbers associated with the Shadowlawn redevelopment project and obligations of owner units vs. rental units. Ms. Gruel answered. Ms. Gruel continued with her presentation and explained that he spending plan was included for transparency sake as it falls under the Governing Body jurisdiction, not the LUB. She reiterated that the Housing Plan is part of the Borough’s Master Plan. Chair Knox opened the floor for Public Questions. Terry Turner, Rt. 36, asked how many affordable housing units the Shadowlawn project would provide and Mayor Broullon answered that conceptually, there would be about 44 affordable rental units available. Ms. Diebold asked whether the stormwater and sewer system could sustain such a project. Chair Knox answered that there were no applications yet but that there will be many considerations and steps to be taken before any approval. Mr. Glass added that the question falls outside the Housing Plan. With no further public questions and comments, Ms. Gruel thanked the Board for its time. The Board then considered the Housing Plan and Spending Plan. Votes are as follows. LAND USE BOARD RESOLUTION 2025-19 ADOPTING A HOUSING ELEMENT AND FAIR SHARE PLAN FOR ROUND FOUR WHEREAS, the Borough of Highlands (hereinafter the “Borough” or “Highlands”) has a demonstrated history of voluntary compliance as evidenced by the entry of a Judgment of Repose, dated May 22, 2020, approving the Borough’s Housing Element and Fair Share Plan for Round 3; Third Round record; and WHEREAS, in March of 2024, Governor Murphy signed an amendment to the New Jersey Fair Housing Act, N.J.S.A. 52:27D-301 et seq.; and WHEREAS, for ease in reference, this resolution shall refer to the Fair Housing Act as amended as “FHA II”; and WHEREAS, FHA II established a procedure by which municipalities can secure approval of a Housing Element and Fair Share Plan and secure immunity from exclusionary zoning litigation, including builder’s remedy litigation, in the process; and WHEREAS, that procedure contemplated that municipalities would adopt a resolution by January 31, 2025 committing to a fair share number and filing a declaratory relief action within 48 hours from adoption of the resolution and then filing a Housing Element and Fair Share Plan by June 30, 2025 and filing that plan within 48 hours from adoption with the Affordable Housing Dispute Resolution Program (the “Program”); and 12 WHEREAS, the Borough adopted a resolution by January 31, 2025 committing to a fair share number and filed a declaratory relief action within 48 hours from adoption of that resolution; and WHEREAS, the Borough asked its affordable housing planning consultant, Susan Gruel P.P., of Heyer Gruel Associates, to prepare a Housing Element and Fair Share Plan (hereinafter “HEFSP”) to address the Borough’s affordable housing obligations under FHA II; and WHEREAS, the Borough now wishes for the Highlands Land Use Board to consider adopting the HEFSP prepared by Ms. Gruel, P.P. and the file the duly adopted HEFSP with the Program within 48 hours; and WHEREAS, Susan Gruel P.P., also prepared a Spending Plan, which shows how much money the Borough has in its affordable housing trust fund; how much it anticipates receiving by June 30, 2035 and how it plans to spend trust fund money in accordance with FHA II and applicable law and WHEREAS, in accordance with the provisions of N.J.S.A. 40:55D-13 of the MLUL, the Land Use Board scheduled a public hearing on the HEFSP for June 12 at 7:00 p.m. at Municipal Building, 151 Navesink Ave Highlands, New Jersey 07732; and WHEREAS, in accordance with the provisions of N.J.S.A. 40:55D-13 of the MLUL, the Land Use Board published a notice of this public hearing in the Borough’s official newspaper at least ten days before the scheduled date for the public hearing and served a copy of this notice upon the clerks of all municipalities adjoining the Borough, upon the clerk of the County Land Use Board, and upon the New Jersey Office of Planning Advocacy; and WHEREAS, a copy of the HEFSP and the Spending Plan was placed on file with the Land Use Board Secretary and was available for public review at least ten days before the scheduled date for the public hearing; and WHEREAS, upon notice duly provided pursuant to N.J.S.A. 40:55D-13, the Land Use Board held a public hearing on the Housing Element and Fair Share Plan on June 12, 2025; and WHEREAS, at the public hearing, Susan Gruel, PP, AICP provided professional planning testimony regarding the HEFSP and the Spending Plan; and the Board provided members of the public with the opportunity to provide their comments about the HEFSP and the Spending Plan. WHEREAS, the Land Use Board determined that the attached HEFSP is consistent with the goals and objectives of the current Master Plan of the Borough of Highlands, and that adoption and implementation of the plan is in the public interest and protects public health and safety and promotes the general welfare. WHEREAS, the Land Use Board determined that the Spending Plan represents an appropriate means of advancing the HEFSP. 13 NOW, THEREFORE, BE IT RESOLVED by the Land Use Board of Highlands, County of Monmouth, State of New Jersey, that the Land Use Board hereby adopts the HEFSP and Spending Plan attached hereto. NOW, THEREFORE, BE IT RESOLVED by the Land Use Board hereby directs the affordable housing attorney for Highlands Borough to file the duly adopted HEFSP and Spending Plan with the Program. BE IT FURTHER RESOLVED by the Land Use Board hereby directs the affordable housing attorney for Highlands Borough to present the duly adopted HEFSP to the Borough for endorsement and to present the Spending Plan to the Borough for adoption. BE IT FURTHER RESOLVED that Affordable Housing Counsel is authorized to pursue approval of the HEFSP and Spending Plan and to submit such additional documents as may be necessary or desirable in an effort to secure such approval. OFFERED BY: Chair Knox SECONDED BY: Mr. Zill AYES: Mayor Broullon, Chief Burton, Ms. LaRussa, Mr. Montecalvo, Mr. Zill, Ms. Chang, Mr. Cramer, Vice Chair Tierney, Chair Knox NAYS: None RECUSED: None INELIGIBLE: None ABSENT: Councilmember Olszewski, Mr. Sayah The Board then voted on the Spending Plan. Votes are as follows: Spending Plan OFFERED BY: Chair Knox SECONDED BY: Ms. LaRussa AYES: Mayor Broullon, Chief Burton, Ms. LaRussa, Mr. Montecalvo, Mr. Zill, Ms. Chang, Mr. Cramer, Vice Chair Tierney, Chair Knox NAYS: None RECUSED: None INELIGIBLE: None ABSENT: Councilmember Olszewski, Mr. Sayah LUB25-07: 125 Bay Ave LLC – 125 Bay Ave., B46 L4 – Change of Use Mr. Montecalvo stepped down from the dais. Salvatore Alfieri, attorney for the applicant, explained the request for the change for use of the former churches. Walter Hopkin, planner and engineer for the applicant, was sworn in, gave his credentials, and described the property, its location, and the surrounding area. He noted the existing nonconformities and listed the positive and negative criteria. Mr. Hopkin stated that in his opinion as a planner, the change of use does not present a detriment to the neighborhood. 14 Chief Burton asked for clarification of the permitted uses. Board discussion of permitted uses and existing use of house of worship ensued. It was verified that the request was to lift the current exclusive use of house of worship and that the applicant was not tearing down the existing structure. Melissa Pedersen, Bay St., asked how the different uses requiring different needs be handled. Chair Knox and Mr. Alfieri answered that any improvements, including parking requirements, will need to come back before the Board. Prior to the Board vote, Mr. Glass clarified that tonight’s approval is just lifting the restriction for house of worship use, allows for any combination of uses, and may need further approval. OFFERED BY: Mr. Zill SECONDED BY: Vice Chair Tierney AYES: Mayor Broullon, Chief Burton, Ms. LaRussa, Mr. Zill, Ms. Chang, Mr. Cramer, Vice Chair Tierney, Chair Knox NAYS: None RECUSED: Mr. Montecalvo INELIGIBLE: None ABSENT: Councilmember Olszewski, Mr. Sayah LUB25-08: Bay Ave. Property Management LLC – 181 Bay Ave., B59 L11.01 – Change of Use Mayor Broullon stepped down from the dais. Salvatore Alfieri, attorney for the applicant, explained that this application was similar to the previous application. Walter Hopkin was sworn in as the planner and engineer for the applicant and Mr. Glass noted that the Board accepted his credentials. Mr. Hopkin described the property and noted that there was no pre-existing nonconformity. Chair Knox explained the application. Mr. Glass asked if the applicant agreed to the same conditions as for the previous application and asked if there was no improvements to the existing structure. Mr. Hopkins answered yes to both questions. OFFERED BY: Ms. LaRussa SECONDED BY: Chair Knox AYES: Ms. LaRussa, Mr. Zill, Ms. Chang, Mr. Cramer, Mr. Cody, Vice Chair Tierney, Chair Knox NAYS: None ABSTAIN: Chief Burton RECUSED: Mayor Broullon, Mr. Montecalvo INELIGIBLE: None ABSENT: Councilmember Olszewski, Mr. Sayah Mayor Broullon and Mr. Montecalvo returned to the dais at 7:44pm. 15 Ms. Chang had a question about the interpretation of the building height for the Cahill application. Mr. Glass suggested that the Board waits to discuss it when the applicant presents to have it on record. He restated that the applicant will have to renotice. ADJOURNMENT Offered by Mr. Cody and seconded by Ms. LaRussa. All in favor. None opposed. Meeting adjourned at 7:46 pm. I, Nancy Tran, certify that this is a true and correct record of the actions of the Borough of Highlands Land Use Board June 12, 2025 ___________________________________________ Nancy Tran, Land Use Board Secretary 16