Um, good evening everyone. Today is Tuesday, June 17th, 2025, and this is a regular meeting of the Asbury Park Zoning Board of Adjustment. Vice Chairman Scully, can you please call this meeting to order? Certainly. Uh, this meeting is being held in compliance with the Open Public Meeting Act,
chapter 231, Public Law 1975. Adequate notice of this meeting has been provided to the Coaster Nazberry Park Press by publication of the annual meeting notice and posted on the municipal building board and municipal website. All notices are on file with the board secretary. Official action may be taken on the
following matters before this board. This meeting is being recorded by APV and please ask everybody to silence their cell phones. Roll call, please. Wendy Glassman here. Daniel Harris here. Russell Lewis here. Jill Potter here.
Natalie Pasarini here. JJ Hall here. Vice Chair Scully here. And Chairman Avalone is recused. Okay. So, the first thing is the resolution for 807 Somerfield Avenue. Yes. Um I know there's some emails back
and forth. Do you want to catch us up? I sent you mine and I sent you Donna's. Uh tell me what you want to do. Right. So, I had expressed concern with Donna's version. Uh, I think it was the fifth whereas clause that it didn't pertain to
the actual application, okay, that we heard testimony on and that the language a little was a little broader and could be interpreted that it applies to any application that's under the redevelopment plan. Um, yeah, that one sentence at the end,
correct? That one sentence changes were fine at the All the other changes were fined. Uh I just in my opinion I felt that it it broadened it beyond just the application that we heard and that that interpretation could be applied to any application outside or within the redevelopment plan. Just my
opinion. I'm open to discussion if anybody else has something else or if somebody would like to make a motion on what resolution. I want to define it narrowly. Don't define it broadly. Define it narrow. That's my question.
So we have two two resolutions. We have the version of Jack's. Yeah. Which is the language is in that fifth whereas clause is specific to the application that was in front of us. Yeah. And then we have Donna's which again my opinion expanded
the broadness of the resolution. Yeah. That other than that everything else that Donna offered was fine with me. Correct. Yeah. I I agree. Can we rephrase that last sentence there? Well, we could we could strike it and then just leave everything else that
Donna put in. You can do whatever you like. I mean, it's your it's your choice. We can go back to Jack's language, which Jack, can you can you just read your language because I think you said something effective. Figure out which one is which. Okay. Yeah, but Donna testified the uh
No, you're talking about the Yeah, I think Yeah, that I think the language that came into question was now therefore be it resolved. No, up up further there's a paragraph that you
changed. It says um I talked about your testimony and then you added in like the second line from the bottom. However, any deviation from the applicable requirements of the redevelopment plan, such as parking, would require a variance which could
only be granted by the planning board as part of the application for site plan approval. A parking variance was required for the proposed use. Therefore, the plan by the city planning board was required. So, you struck out that that's right. Yeah.
So, um other than everything from the however after the however broadens the scope in my opinion as to what you did. I agree. Okay. Uh so the rest of it is stricken anyway and
the back end. So that that phrase for period after the involve the alteration the site review and approval of site plan is not required. Period. End. Then you take out the rest of that section.
Donna already struck out more of it. And then now the therefore that's fine. I'm okay with the therefore being resolved. Right. Of course that's that that Donna added and that's that seems appropriate. Right. So Okay. We'll take Donna's
version. I'll clean it up. I'll I'll you know I we won't pass it in. We'll pass it for tonight with the red markings, but I'll I'll read to I'll I'll omit the phrase, but we'll omit on page one at the bottom after the if after the word require line first second line from the
bottom. However, any deviation from the applicable requirements of that the redevelopment plan such as parking would require a variance which could only be granted by the planning board as part of an application for site plan approval. And then she had already stricken out the rest of that. But that was my testimony.
Yeah, but that's that was my testimony. Okay. Well, then the the paragraph is saying what I testified as to testify. Okay. then we I then then we should strike her testimony and not put it in there because you're broadening the
scope of the appeal and my job is to keep the appeal as narrowly defined as possible so that if any different set of facts comes in the planning the zoning board can interpret it differently. You're only dealing with this very narrow issue that was presented before
us. If you broaden the scope about if you start going into other things then it can be applied on a more broader base as precedent and I don't think that's what you want. I think what you want is to narrowly define your decision to only deal with what Andy's application
presented. Correct. That was that was my position is that is that the board should the resolution should only reflect Yes. that application. And I'd rather it be constrictive as opposed to expansive because there's some we if we start talking about other things people
may I'd rather them stand on their own in the future. So that this way the board Donna nor the internal staff is hamstrung by anything other than this one narrowed case the same set of facts. Yeah. So then then now therefore should
go back to the original. Let's see. All right. Site plan is not required. Right. This is a global Yeah, I would I would leave I would leave that alone because that's pretty innocuous. It's fairly straightforward that uh non permitted non-residential
use for no changes to decided proposed period. That makes sense. That's okay. That still narrowly defines what's been going on here. Jack, do we have to pass this tonight or or can you No. Can you No. Can you send around? Do you mind if we carry So, why don't why don't we Yeah. Why don't we send around a clean
copy? Yeah. and so everybody can see it. Okay. All right. So, we'll we'll car it for now. We'll carry it to the next meeting. Yeah. This way. I don't want anybody to We'll refine the language that we can both live with. Yeah. And I don't want anybody to approve something or vote for something that they they have. Makes
sense. Makes sense. Yeah. We've got time and Andy doesn't mind. So, we're a motion to table then. Yeah. Motion motion to table that. Um, so I'll make a motion to table that. Second Harris. Second. All in favor? I. Any opposed? I have it. Okay. Thank you. Okay. So, next
application is 301 8th Avenue, Unit 3. Mr. Carris, you want to give us a brief summary of how we got to this point. It's been a little while in case she disagrees.
Please raise your right hand to swallow the swear from testimony. The whole truth and the truth. I do. This way you can speak the cat. Donna Miller Ford plan. Thank you. Do we have to get additional people? No.
Okay. Let's for the record. Jill, you you uh viewed the video of this. Okay. Back back when? And you submitted an affidavit or certification? Back to the January 28th. She missed that meeting, but she then watched it because it was coming back. If we don't have the
certification, I'll put it in. Has any was everybody else here for the January meeting? Yep. Okay. So then everybody we have a complete board. Everyone is eligible. All seven members. The only person you're missing is Tim Slick who's no longer with Right. And Tim's gone. Okay.
All right. Go right ahead. If I may, Andrew Carris behalf of Karen May show Nielson. Um here with property 3018 unit 3 As park lot 4301 lot 6.036. 03 just
give the court a little reminder what this application is about. It's a bifurcated application. We're only here for an interpretation tonight. Depending upon the court does will determine whether or not we have to come back at a later time for a D2 variance. Property
is a multifamily uh piece of property. It's lo it's 7 unit condominium building located within the R2 residential zone. The reason we're here is to determine whether or not a roof deck that is uh
based upon the evidence that we claim uh reflects the state of the property uh needs a D2 variance to be utilized by my clients. The evidence that was presented shows that back in July of 2002, a zone
a certificate of zoning uh compliance was issued by the board of adjustment here in Nasbury Park establishing this structure, the seven unit structure as a valid nonconforming use. We take the position that based on that there is an
existing roof deck at that time that it continues today. my client has the right to utilize it and the mere adding of new decking and rail and desire to change that. So we take the position that is not an expansion of a non-conforming
because the existence of the door that is there and the use of that property that route. Number two, there's another consideration for the port. There is a ordinance within the zoning code here in Asbury Park section
30-73.12 that states as follows. Multifamily residenc is in any zone shall provide open space for residence that constitutes at least 30% of the lot
area. The open space requirement may be met with the means of common interior recreation areas, balconies, roof decks or terraces located on the same premises. So as a second reason why a D2
variance is not required within the zoning code any multi- family residence in any zone not restricted to particular zones that allow for multifamilies but any zone must provide the residents with at least
30% of open space on the lot area that can include as indicated specifically within this section roof decks I'm going to provide testimony tonight, some additional testimony. Number one, as to the percentage of area that is
dedicated to the residents at this particular piece of property that is way under 30%. I'm also going to present additional testimony from neighbors that this roof deck had existed back from 2002 2004 and historically that's been the
utilization of this property. With that being said, I have basically just a few uh witnesses tonight with you very quickly in terms of testimony. You can come sit right next. Okay. Please raise your right hand. Do you
solemnly swear or affirm that the testimony you're about to give in this matter will be the truth, the whole truth, and nothing but the truth? I do. Please state your name for the record and spell it. Elaine Leani. L I P A N I. Thank you.
Ma'am, can you please tell me your current address? 301 A, unit 4. And when are you the owner of that unit? Yes, my husband and I are. When did you purchase that unit? in 2005. And when you purchased the unit in 2005, you
obviously viewed the premises before you purchased it. Am I correct? Yes. You had the opportunity to take a walk around the premises and see what was situated on the outside within the premises. Am I correct? Yes. In terms of the roof area, could you have an opportunity at that
time to view it? Yes, I have. And what was up there? It was a roof deck and people would frequently go out there and sun themselves. What I'm going to do is I'm going to show you a document and I think we're at
A7 and it's indicates that it's a listing for the property and indicates that the property sold in 202 November 25, 2018. On the second page is a photograph. Now,
I want you to take a look at that. Do you see what's on the second page? Do you recogn I'm sorry. Do we have that in our is that in our packet? Okay. I'll wait for everybody. Yes.
Looking at page two, you recognize what's in that? Yes, I do. And what is in that photograph? Well, if you're asking me about where what we're speaking about to the right hand side um along web, you'll see a door and that's
where people would enter and exit onto that flat roof deck that was there that extended onto the front onto a So, is that the premise? Is that 301 A that? Yes, it is. And that's the building that when you purchased your premises, is
that the way it looked? Yes. And was that door there at that particular time? Oh yes. That was one of the selling points that you know we could have a deck and we could do the same thing. And at any point in time did you ever see anybody utilizing that roof? Yes, I had.
And was that over the years as you occupy the premises? Yes. Over the past 20 years, you know, on and off people would be using it primarily for sunning themselves. No further questions. Thank you. You're welcome. Could someone just point out
which you're supposed to be a doer? Go to the second pages. I still don't see looking at the roof that Okay. On the right. You see it? Uhhuh. Okay. Thank you. It's not that easy. I know. Sorry. So, I apologize. How do you say
your last name? Leani. Leani. Mr. Leani. So you state that you you saw people out there in the condition that it is with no railing? Yes. There was never a railing. Well, in the past 20 years, there's never been a railing. And when you saw people out
there, were these people just congregating or were these people out there to fix the roof or repair? Oh, no. They were out there sitting on towels just sunning themselves. Okay. You know, one or two people. It wasn't a huge gathering. Okay.
That's prior to you buying the house. Excuse me. That was prior to you buying the house, right? Purchasing the property. Well, I didn't see it prior, but once we purchased over the past 20 years, we had seen people out there on occasion
and you purchased in 2005. Yes, we looked at it in 2004 and we purchased in May of 2005. So after you purchased it, then you saw people on the roof. Excuse me. After you purchased it? Oh, yes. Yes. I'm sorry. Not before you
purchased it. Oh, no. Okay. Thank you. You're welcome. Do you recall the last time you saw someone out there using it for personal use? Uh, no. I I I can't say. I I can't give an exact time. Okay.
Did you mention earlier that when you were either looking or first bought that you did see the railings on there? No, there were never railings there. Oh, that there was never railings. Never a railing there as far as I Yes. So, this is for the application. The
interpretation that we have before us is for unit three and you live in unit four. Unit four, which is right next door. It's divided into Is this door a door that all owners No, it's on the
second floor. Part of It's on the second floor. Three. Unit three. So, it's not a common It is not a common door. No. Correct. Okay. I don't know how to ask this question,
but the ordinance that you read to us applies to common areas or private areas. It was the ordinance that I read says it shall provide open space for residents
that constant at least 30% of the lot area. It may be through common interior recreation areas, balconies, comma roof decks or terraces located in the same premises. So it doesn't mean it has to be covered, but
it doesn't presume. This ordinance I think relates to the use by all of the owners in that building. I I'm asking because it's a question for me that I'm
not sure so sure if the only way you can get to this area is through someone's private property. I'm not even sure if that that ordinance is relevant to this discussion. Well, the ordinance says
what it says that multifamily residences of any zone have to provide at least 30% open space for the residents and it can be met through various ways. It doesn't say that each particular area of open
space has to be for all the residents. It says it can be met through common interior recreation areas. Common balconies common roof decks or terraces. So it could be through individual terraces for
individual tenants. Look at it all together and you add it up. That's what it says. And it's not meant to the way I'm I'm hearing this is it's not meant to be either for everybody to use. It could be 10%age for this. That's
exactly. Okay. We don't know that. I'm asking but you add all together if there are common carriers you would add that to the rootex to the territory would the would the ordinance apply to a non-conforming applies to all multif family? Yeah. All
multi whether they're conforming or not conforming. Yeah. Just like the parking required is for all uses whether they're conforming or not. Would you know what the coverage is on the first floor for the first porch? So are you guys still asking questions?
Excuse me. When you're done. Thank you, sir. Um, when you purchased it, did you consider this a deck? When you purchased it, did you consider it a deck? Mean, it didn't have any railings or anything around it. I considered it a deck. I didn't know
the difference that whether you needed a railing or not. I do realize that you need one, but at the time, I didn't. Oh, I can't hear you. You're mumbling. I'm sorry. No, I didn't realize that it didn't have a railing and that but I I
saw it as a deck. I didn't think that it's a deck without a railing. Did you consider the safety aspect? Not just a roof. Uh because there was a door and people were out there sunning themselves. So I assume just a tar beach
situation. No, because when we purchased they had told us that there were several units for sale. When we bought in 2004, it had just recently been purchased by a um by a contractor and all these units were for sale at the time when we had
come in and one of them was unit three that had a deck. If I may continue now, so I didn't think that it didn't have a railing. I just knew that it had a deck. Did you take into consideration safety?
What? No, I didn't think of that. We weren't interested because we bought a unit, the only one that was renovated, which was unit three. So, that was our sale point. So, it didn't matter that they had a deck or not. We were not interested because it wasn't renovated,
if that makes sense. Can I follow up question? Yeah, go ahead. When you purchased the property, did you have an opportunity to take a look at the master deed? Yes. And you review the master deed? Yes. We'll show you what's been marked already as A5
dated August 24th, 2004. Does that look to you like the master deed? Yes. I haven't looked at it in years, but yes. Okay. And it reflects this particular property of 318. When you purchase the propert, did you have an opportunity to review and read
through the master de? Yes. And did he have an opportunity to look at the different diagrams for the various apartments? Yes, they were all enclosed. And looking at apartment three and that master deed, am I correct? It reflects
on there that 500 foot roof deck. Yes. And it indicates description as a roof deck. Correct. Correct. Along web. I have some questions. I'm doing. Okay. Since you're testifying
as to the contents of the master deed, are you aware whether or not the city was aware that that master deed contained debts? Do you have any personal knowledge of it? That the I don't understand what what the question is. You testified as to
what the contents of the masterpiece, right? Are you aware if the city was aware? No. The contents of the master? No, we didn't. No, I was. Are you aware whether or not the city gave permission in any way, shape, or form to file that
master deed? No, but I had no butts. Give me If you give me a butt, I'm going to keep asking questions. Okay. Okay. No. Okay, that's fine. Okay. All right. Are you aware of the surface of this so-called deck? No, I've never been on
it. So, you wouldn't know if it's a pitched roof or a deck personally because you've not seen it personally other than the fact that people are s out there. Correct. But it look flat from from looking looking at at it from
the street. It looked flat to me. Looking up. Correct. And do you know if it has a deck surface or a a tar paper roof or something? No idea. No idea. Okay.
All right. Okay. Any further questions? No. Thank you for your testimony. Public. Oh, public. Public have any questions? Anybody in the public have any questions? No. No. Okay. Thank you. Thank you.
Thank you. Next, I have my client Karen May. If please raise your right hand so swear affirm the testimony of the given this m be the truth the whole truth and nothing but the truth. I do. Please state your name for the record. Karen May M A Y. Thank you Karen. Karen, am I correct
that you are one of the owners of 301 have you correct? Yes. I want to ask you about the or the areas that are utilized exterior for the tenants and also interior. There are any common interior areas within the
premises that are utilized in a sense as open space for the tenants that are available for all the tenants to use within the building. Within the building is only hallways and staircases. Okay. On the exterior of the building, are there areas outside that
are utilized in a sense open space for the panels? There is the main floor, front porch, and there's a patio in the back. And the main floor, front porch, do you know the size of that? Um, it's roughly
10 by 25 maybe. Okay. And what about the patio? Oh, the patio is I have that somewhere. is um it's roughly I think it was 40 by 35 35
or 40 by about 25 30 okay so am I correct round it out the porch is around 250 square ft and the patio is around 1,000 square feet correct the size of the property am I correct that it is 50
by 150 I believe so it's 7500 square ft am I correct correct As the owner of the property, when you purchased it, let me ask you this. When did you purchase the property? We closed on the property in March of 2021. And was there a door leading to the
roof? Yes. Has that door since you owned it always been there? Yes. Question. Good evening, Miss May. Um, the door that leads out to this Mhm. has it always been functional? Yes.
Okay. It's an original door as best I could tell. Okay. Um, when you were looking at the building for purchase, did you notice anybody using this area as a recreational deck, so to speak? It was
winter time, so no. Okay. And when you purchased it, your understanding was is that what was your understanding of that area? was that that was a deck four as part of our unit. Okay. And it's in the master deed. We talked to the management company and
that is a deck as part of unit three. Okay. Um and what's the material that that's on the area right now? It's a what an EPDM. Is that the right initials for it? It's a white membrane EPDM
surface. And um it's basically flat. It's got a slight pitch to it just for rain water to get off of it, but it is uh that white EPDM. It's not as it's not shingles. It's not tar paper. It's a
white flat surface. Do we have any pictures of the existing deck? like close pictures of what we're talking about so we can get a get like a close picture of the door and the door jam and what we're looking at it for the
floor. It seems we're really A6. Is that what A6 is? It might be Is that not really giving us a detail what we can Yeah. I'm trying to determine what the floor looks like and this is not helping me. Yeah. Um, can I ask, so you
applied for a zoning permit in 2024 to convert the porch roof to a fiberglass deck to redo the surface of it. It h it hasn't been touched in some time. So to first of all, most importantly, put a
railing on it and to add a new surface for the top. Why is that most important to put a railing on it? You've been there for 20 years without a railing. We have not been 20 21 years. I apologize.
So why wasn't it important when you bought to have a railing? It had a seal on it. To me, it's a we have a dog. If the dog wants to go out there railing, we have a dog and for the dog to go outside and be able to be on the deck, you want to have a railing because the dog's not smart enough to not fall over
the edge. Some people aren't either, but you may you may hang with a better crowd than I do. You never know. But I I just, you know, if you if I think of a Victorian house, a Victorian house has second floor decks and porches and their
railing. It's a part of the look and feel of the unit. And so, um, having that new surface and upgrading that and then part of what we would do is add a railing to that. And so is it the surface of the
porch roof that um is it in bad condition or why why change it to a fiberglass deck? That's what our contractor recommended would would to have the fiberglass deck rather than putting in, you know, say a
wood or um some other material. But is there anything wrong with what's there now? I don't believe so. It's just I I I we were just going to put in a new flooring upgrade. Upgrade it. Yeah. Did
you use it? Did you go out regularly? Did you I wouldn't say we go out there regularly, but we have been out there. How often? No, just a couple of times over the years. We were doing renovations, so we weren't there 100% of the time. And in the couple of summers
that we've had there, you know, we haven't been out there that often, but handful of times. So, to Russell's point, I'm still not certain what the what the material is. Is it Is it like a like a flat roof type material that's up there? Membrane. It's
a roofing EPDM is a roofing that is a roofing member. It's a roofing member. Like a waterproofing membrane. Yeah. It's like a John De Manville roofing member. Okay. So it's not meant to be to be walked on to be walked on. It's not decking. It's roofing. It's roofing just
Yes. That's what that is. Andy would know he's roofing membrane in of itself. Ordinarily you put that as a barrier. Okay. Is it wood? Is it wood? And it's Is it a composite? Any type of
composite? Yes. Is a manufacturing material? It's not a wood composite, but it's not a wood composite. fact material waterproofing. I'm just up here looking looking at the definition of a deck and it says um in a context of a house. A
deck is a flat elevated outdoor platform typically made of wood or composite material that extends from the house and serves as an outdoor living space often used for relaxation or entertaining and dining. Did any of this come into play when you purchased the house, purchased
the apartment in terms of what you wanted to do with it when you purchased it? Was it was your intent to utilize it as a debt? Yes. And you indicated you were upgrading the property, right? Correct. And you've done that over time. Yes. And was it always your intent to
upgrade that exterior area to put on better decking? Yes, that was the last phase. the last phase. But as I understand what you just said before, it's not putting on better decking. You don't have any decking. The material that you have
roofing is the is the under layer for a roof, not the under layer for a I haven't the same surface that extends beyond that area and goes around. This is the surface I'm looking at page
two. It it it goes around. I assume this is web and this is a correct. So is it the same surface here as it is over here? Yes. Okay. So Okay. The type of material you would need anyway. Anything that you put over, you're going to have to have an underllayment
um to make sure that it is waterproof. So that would have to be your respective. It's your job to determine based on the evidence what you feel it is. You you interpret it the way you see fit. Okay. Is it slanted?
Yes. Partially slanted. There's a slight there's a very very slight pitch to it for water to for water when it rain. Yeah. You would do that with any deck is you have to have a you want to have a slight pitch or you have to have planks away from the house and or you have planks where the water goes through.
You can have a deck and have planks there and the water just goes through the planks and it will be straight. Okay. Okay. Right. And you can have you can have things that absorb it. Right. Right. I mean,
just trying to get a picture because the picture that I look at it still looks like just the roof over top of the porch which you want to convert into a deck. Yeah. It's not shingles like what you see on the rest of Right. Yeah. Which there say there's no railing there which
if you had a dick that you know it's it's unimproved but it is according again the evidence that we present in my position is my client's position. It's a deck but it's unapproved and they're looking to improve whether or not it's a deck or
not. You're going to determine that and Garrison is going to tell you it's you'll determine whether it is or it is. Well, you can and you can walk on it. It's not like it's just a loose membrane and you're kind of like on a trampoline idea. It's one of my legal secretaries lived there for 10 years back in the
1980s. I know. Okay. Excellent. I didn't have this membrane then. I don't know. I can't testify. All right. Any other questions for Miss May? No. Anybody from the public have any questions regarding a question?
I No, I guess not. I pulled up this picture online and it's a lot clearer to see than this picture. It's a lot clearer. It also states here that there that you
purchased this with a a board approved plan. Is that the case? Was there a board approved plan for the It says walk out deck. Well, there's a door. So, you would walk out onto the deck, right? And the board has approved the board manages
the master deed and so for the condo that's the that's the condo association board. Was there was there an approved plan by the board that you received? So the master which board are you planning
HOA? The HOA. I just want to make sure we Yes, it's the master deed. So the HOA and when we put together the plans for the renovations that we've done on the unit that included doing this deck and so um
that has been approved when we when we shared that with the board and the rest of the condo owners as well. Are there two entry doors into your unit and and do you know if you there were two units combined at one point? I when you say
two entry doors, you mean the there's a door that goes out to this deck and then there's a door from the hallway into the unit. No, I'm talking about two two entry doors from the hallway. When we purchased, there was one door from the hallway into our unit. And is that into
the living room or is it into the hallway between the living room and the bedroom? It's into a hallway. There's no door into the living room that contains this bay window with the
door. That's your living room. Correct. Where this the door is out to the deck. Correct. And there's no door into that unit from the hallway. No. There's an old plan showing a door going in there, but that doesn't mean anything. I've seen that. Yes. So, it
combined at some point. I don't know if that's relevant. It's probably not. Or they moved the door from being in the middle of the living room to being in the hallway so that you walked into the hallway rather than to a living space would be another possibility. It was where it when we bought it, it's where
it currently is. Okay. Okay. Okay. Any other questions? Your your own your own internal plans or your board plans, whatever you were just referring to, you never did you ever submit them to the city? Yes, we have permits to do
the interior work and then we not not a construction plan. Um I don't know the association's planning documents or whatever. I understand that you went to seek approval for the construction but those
don't normally get submitted with sorry those don't normally get submitted for building but just checking that it was never sub okay if to the city or to the HOA board trying to understand it's not a document that the city would have been
aware of and approved it was your plans it was the HOA's plans master plan I assume the master the master deed floor plans the city wouldn't be aware of those. I can't say whether or not the city is aware back when the master deed was filed in 2004.
I can't say if the city was aware or not. I can say that the city did recognize this property back in 2002 2002 July 2002 as a valid
non-conforming use. Our position is if let me let me finish before you start nodding your head. Our position is that it was deemed a valid nonconforming use. It was deemed valid non-conforming use as what was there what existed.
You're saying the was there? That's a position that I'm taking. Um read the permit. Yeah. The permit doesn't say the deck exists, does it? No. It says it is a valid nonconforming seven family. Yes, we know that. I was the guy who authored the resolution, right?
But it doesn't go beyond that. But we take if it's you don't parse out different portions. What is there was deemed as a valid non-conforming piece. What was existing at that time? Wait a minute. One second. What was existing?
Let's see what the documents. What was existing at that time was just this membrane with no decking material. Actually, no, the membrane came after 2002 according to the permit. So, do we know what was there? This is actually
test provided. This is this is your zoning permit, right? Sorry, what's that? There was a resolution resolution from We already confirmed that it's a non-conforming use by the zoning. Yes, correct. But the zoning permit that had had nothing to do with
decks, right? The resolution author saying that this was Well, there's a resolution acknowledging that is a permitted non-conforming. Absolutely. Yeah. I I drafted the resolution 7 12. Yeah. A 7 unit 12. The certificate of non-compliance that was issued that we
marked as A2 was July of 2002. Okay. I understand it's a valid non-conforming use. But as far as the deck is concerned, what where does it say that that's a valid non-conforming use? We take the position of two things. Number one, that whatever they deem as
valid, not conforming at that time is valid and not conformal. No decks were ever discussed at that hearing. But what I'm saying is what was there, we're taking that position. And number two, we're taking the position also that the
permit that was issued in A4 gives credence to what was determined in 2002. Which which one are you talking about? Read from what permit? There wasn't a deck there back in when when I did that resolution. There was a
doorway, I will concede, but there wasn't a constructed deck. There is a doorway out onto that roof area. Correct. Right. But that doesn't necessarily make it a deck. In 2005, we're taking the position that based upon the evidence that we have,
including the zoning permit that was issued and the master deed. There are two two ways we're making the argument. Number one, that it is a valid debt based upon the master deed consistent with A4, the zoning permit. And let me
finish. Go ahead. I'm I'll you may disagree with me that's positioned and then number two alternatively that based upon the ordinances that we have existing now that it has to be 30% a minimum of 30% of your open space. We
have two arguments that we're making. Okay. I may disagree with you but those are the arguments. First argument is I don't see what you're saying. I don't I don't buy that. Okay. There's nothing in the record to prove that. Second argument and equally important. Okay,
I understand the ordinance that you're quoting. You're going to have to show us that how that ordinance trumps or supersedes the law on expansion of non-conforming uses. You have to show me by way of ordinance, case law, or statute.
That section of the law overcomes the need for a D2 variance for an expansion of a non-conforming use. I think by the language in and of itself that it says there and it says multifamilies in any zone. I get what I get all of that but that doesn't take into consideration a
non-conforming use. Of course it says doesn't say a non-conforming use. It says multifamilies in any zone. Okay. But this is a multif family in any zone, but it doesn't speak of non-conforming uses that possibly are being expanded and there's no necessity for a variance.
You're going to have to show me legally. I'll do a memorandum to you of the law on it, but I can tell you right now by the very language that you are reading in there, it doesn't say multifamily in zones that are zones. You're going to have to do a memo. You're going to have
to quote the statute ordinance or case. I think they do the clear language of the ordinance. I want to understand that doesn't that doesn't work for me. What we're asking here, you're saying that section of the zoning code that requires multif family
dwellings to have open space um has to be achieved regardless of any other requirement. That's what it says. No, it doesn't say regardless of any other requirement. It just says the ordinance says multifamily residences any zone shall not may shall
provide open space for residents that constitutes at least 30% of the lot area. It's a requirement. Do you have 30%? That's test one we have that we have 7500 square ft. It's testimony that you
have 1,250 square ft of open space for the residents where Where? That's the patio and the downstairs deck. That's 12. How big is the deck? Wait, no. That's not the only stuff we count.
Really? That's what's I'm just saying that's not the only stuff that counts. All the property. Yeah. What is utilized as they define it in here? Open space. Yes. Yard areas. Right. No, no, no. Yeah. Yeah. I read you have to look but
look at the definitional sections. It doesn't say your front lawn. There is no area. It says yard areas. Please don't interrupt. You interrupted me five times already, Andy. I, you know, I'm tired of being told that. All right, let's let's see. I didn't get my question out. Can I ask my question? Yes, Donna. Please
finish your question and we'll all be respectful and professional. Is your premise that the requirement to provide open space more important than any other requirement in the code for uses? So multif family use has to have open
space. It also has to have parking. It needs to have side setbacks. It needs to have uh such a building needs a certain amount of lot coverage or not so much lot coverage. Which one of those things is more important or are they all equal?
If are they all equal? If what is all equal? All of the requirements in the code to each other. I'm asking a question. It depends upon the situation and it depends upon the application that you're presenting. We're not we're not presenting a parking application. It's
not an issue of parking. It's not an issue of No, I'm asking if all of the sections of the code are supposed to be equally approved. But it says in this particular section open space multifamily residences in any zone shall
provide open space for residence. That concept is 30%. There are definitions of open space within the code. And when it defines open space, it talks about space that is set aside, dedicated, designated or reserved for public or private use or
enjoyment property of the occupants. Now it also says area of land or were essentially unimproved. But here when you look at this particular section it doesn't reference unimproved. It references recreation areas that could
be in the common area within the inter balconies roof decks or terraces. So what it does is that the not only the implication the language of this ordinance is that the properties multifamilies must have
dedicated space designated reser or reserve for the residents. It doesn't say simply impervious. It could easily say okay it has to be impervious area and that would be any green area. It doesn't. It's dedicated space for the
tenants. But do you really think it makes any sense to say that there's open space which is reserved for one 100%? Because that's what it says. Falls under this. Yeah. Why? Because that's what it says.
It doesn't say it's not it uses plural. It keeps saying residence with the plural. It keeps saying spaces. I mean, but it doesn't say that it has to be a common area for all the residents in all the decks, all the terraces. That's not what it says. It has to be the
residents. They have to provide for the residents. It doesn't say that. Okay, you have to have a yard that's 30% for all the you're never going to achieve it. But that's why it says when you have terraces, when you have roof decks, you
know, multifamily residents, if you have a roof deck, it's not going to be for the entire building. If it's three families, there's not going to be access to somebody's apartment to a roof deck for everybody. Just common sense. Mr. There's nothing about what you're saying
to me that is absolutely You keep saying common sense. Common sense, Mr. Car if I may. So your argument based on that ordinance is that any property in any zone, right, including non-conforming. So the
legislative intent behind that was that if I have a non-conforming building in any zone within the city, I can go and add outdoor space to get me to the 30% and I don't have to go in front of the zoning board or the city.
you're if you're going to go into side or whatnot, you may need side, right? But but yeah, so let's all set equal you're required to provide under the city ordinance as stated in there. You are required to provide this for
multifamily residents. So I'm baffled by this. This ordinance is was adopted when 2021 2021. I I can understand that requirement. for anything new,
right? Slick. That's what I'm saying. I What I need to know is I Andy's gonna have to send me something. I need to say I need to see something that legally that section trumps the law on expansion of non-conforming uses because that's
exactly what he's saying. is saying that matter. It doesn't matter that this controls and no matter what the law says otherwise you're expanding in well so what we we we have to put this deck in there right which could mean that any
property any property that's non-conforming right how is that just living% you got to provide 30% and they don't have to come they don't have to come in front of us for a variance yes unless
right unless it triggers a set back. Well, in this case, it may not trigger a setback, but it's about quite possibly a D2 expansion of anforming non-conforming structure and use. So, Jack, from the board's position, this is another Right.
We're asked to do to do an interpretation. Yes. Does this ordinance fall within the board's authority to do an interpretation of that ordinance? 100%. Yes. Yes. So, I think I would We don't have that in our packet, do we? That the ordinance that you're What I
can do is I can draft something request in certain but you're going to have to you're going to have to show me how this trumps the law on non-p performing use expansions. Yeah. So you're so you're saying that you're saying that first point all the case law the highlands case. I can't
remember what it is. You're saying that that that ordinance would trump if if we if we decided that this was an intensification. You're saying doesn't matter. That's going to trump our interpretation that it's an that it's an intensification that this
is a that this ordinance it's not an intensification because the requirements of this ordinance. No. No. But but if leave that leave that ordinance aside if if the board found that it was an intensification, you got to come back for a a D. But we also and then alternative or alternatively what we're
saying is this ordinance deems reaching that 30% not to be an intensification but but okay I'd still like to go ahead. So then by extension of what you're saying, you're like dancing on the head of a
nail. There are maybe many properties in Aspbury Park predating this ordinance that lack 30% open space. What do you expect to happen with those?
I can't say what's going to happen any I'm only concerned with the application I'm dealing with you and my again because you're trying to just like squeeze it the situation ordinance and specific language and what I'm saying is that based upon this
language adding that outdoor space as required is not deemed it's required so I don't it doesn't I don't agree either I don't I don't see it street parking in and of itself taken in the abstract absolutely it says what
it says but it does got to show me something legally that says that trumps the expansion on non-conforming use laws so here's my thought without without seeing that ordinance and reading that as part as part of the packet and having
Jack provide us an opinion and your opinion I I don't feel comfortable that's I can get a legal memorandum of that certainly myself anybody else on the If they want to make a motion and continue the testimony, that's fine. But do you know, Donna, do you know who
created or the entity? I wrote it. You wrote it. So, part of it was in the old ordinance. We wanted to tighten it up because of other development that was happening outside of the waterfront for new multif family development. That's what they
intention. We weren't going to pigeon hole them into they got to provide us green space around the building. We'll count decks. We'll count balconies. We'll count the interior amenity space, roof decks. That was reasonable.
Um and it again reasonable if we have a um existing multif family, I don't want to name any of them, but um that needs to do some type of modifications. they're coming to the
board for um a site plan approval of some kind. Maybe they're doing an interior renovation. Maybe they're putting on a small addition, right? We're going to capture that and say, "Oh, the standard is open space. Show us where it is, how you're providing." And and we've done that with a multif family
that came in to get an approval for a site plan. And we applied parts of the building that were outside the porch, the yard areas. We counted it and that application met the standard. And that was new construction or old construction? That was a that was a
modification alteration of children. How do you how do you see that different from this from this? Exactly. So the thing I see about this is taking the you know we're we're tangled with the interpretation question on the
expansion of the non-conforming use. If the applicant is coming in to put a deck on their roof, apply for the variance. Just like Maryannne said in her zoning denial, you can't have this unless you get a variance from the zoning board. You come to the zoning board, we do the
calculation that goes into the the question. But just like lot coverage, building coverage, off-state parking, all of the things that every use is required to meet in the code, it gets evaluated. Do you meet it or do you don't meet it? If
it's an existing nonconformity, it's an existing nonconformity. If it's new, you're exacerbating it in some way, then you need the variance. I mean, that's literally right what we do, right? Two times a month for a
jillion years. Um, I can't talk about prior applications as an example. No closed case. No. All right. No, we shouldn't. Okay, it's good to understand the intention behind it. Thank you. But my concern is is on one end the board looks at intent.
On the other end, it looks at plain language. And I'm almost inclined to agree to some degree that there may not be an expansion. But regardless, I do have a question on page four, the master D, just out of curiosity to humor me.
Um, section 8, limited common elements. Units three and seven shall have roof rights to the area of the roof adjacent. Doesn't say deck rights as roof rights. Although the door in question has been there, which is also concerning since it wasn't a Juliet balcony. It wasn't
anything. Or could you testify? Was there anything blocking the door prior? No. Okay. Um, unit two, I'm sorry, section two of that, unit four shall have the exclusive right to use their balcony. Does anybody know if unit 4 still has a balcony that they use? Yes. Okay. Unit three, I'm sorry. This
third section, unit six, shall have the exclusive use of the existing patio. Does anybody else besides unit 6 use the patio or allowed to? I think we've all set there. Two separate build. And just out of curiosity, there's two build there's two buildings and patio. Please
everybody, let just just let Miss May testify. So, there's two buildings and there's patio in between. Unit 6 has a small area that is theirs um which we've all sat at with them. Okay. And then lastly, are any of these limit limited
common elements paid for through the HOA as a whole or is it only maintained by that unit owner as it's spelled out here in section 8? So the front porch and the back patio, the maintenance of that as well as the the roofing area that's
being claimed here in section one or subsection one of section 8. So the roofing area on both buildings that you refer to for unit seven three and seven um that is maintained by the board and
then um for the patio and the front porch that is also maintained through the HOA and by the board. Okay. Thank you. So, I wanted to point out because so the land development regulations
aren't like a mandate like you don't have to get everybody in town to comply with everything in the code. It only applies to development or um when you change something about your
property and if you don't get a permit or you're required to get a permit, you don't get a permit. So, for example, um off streetet parking. There are a lot of properties in town that don't have the minimum required off- streetet parking.
who don't go around telling people to put in parking and driveways in their on their properties. Um, you're allowed to keep what's non-conforming. There are lots of properties that don't comply with the lot coverage or impervious coverage standards in the
ordinance. We don't go around saying, "Now you got to take all that pavement out." Unless you come to the board or come to the zoning office and say, "I want to change something about my property. What applies? what parts of this regulation, this book of
regulations apply to what I want to do. So again, we don't go around telling multif family dwellings, where's your open space? Give us your open, you know, you got to change, you got to change your property to comply with this requirement. Nobody's doing
that. That's not what the regulation is. But also by the position that you're taking, you're asking us to ignore the impact and burden on a on a community. Yeah, that's
by saying this one this one element that's not a relevant consideration. I think that's not a relevant consideration. You're here to look at this particular application and the law that applies to this particular application.
Well, this application is the individual wants to do something to their property. The city says you're not allowed to do that to your property unless you get a variance. Your client said, "Well, I don't think
that rule really applies." And that's why we're here for the interpretation. Right. Right. The interpretation is does that rule really apply? And the rule is expansion of non-conforming use. the thing I want to do the city fields constitutes an
expansion but now you're in addition to that you're asking us to interpret that ordinance that is correct as well okay all right any other any other questions for Miss May any questions from the audience for Miss
you have another witness sure excuse me would it be a parts to ask for variance. We have and what we've done is we've done a bifurcated application. Okay. So the first part is the interpretation
depending how the interpretation will come back if we need various. So we have asked for it when we submitted the application but we split up the application to first determine whether or not we even need it. If we do then I'll come back for proper testimony
to support that application. Mr. compares it all. So, so either way, you're prepared to get a deck one way or the other. I'm going to fight for it as hard as I can. I appreciate that. Thank you. So, Mr. Caris, so you you said you
bifrocated it, right? You you you had you put in this for interpretation, but then you also put in an application. Your position is though that ordinance trumps the need for a variance. So, why why put in that application if you're confident on your ordinance? I'm always
confident but not everybody agrees with me. So if you disagree with me and you know you're right to do that certainly the ultimate wisdom then I'm prepared for educ
one round bout. I just had to point it out that's all. All right. So what are we doing? All right. So I'll do a memorandum of law um as requested certainly get that to your council and okay I mean I me personally I would I
would feel better getting a better understanding of that ordinance and at least having a copy to read it before will respond. All right. So do we have to carry this to Well I I really can't do any memorandums of law between now and about July 15th. Yeah. No at all. After
tonight, I'm hanging up my jacket. So, what's our next? Yes. What's our next available date, Ry? So, August 12th. We could fit it in or you but I don't we we just discussed that
week. You might not be here. The what did he say? The 8th. August 12th. The other one was August 8th. That should be good. The 12th. 12th. You can do. Why don't we put it down? Are you okay with that? Yeah. I'll make it one time.
August 12. I won't What would What's Is there a second meeting in August or only one? There's only one. Wait, you're saying you're not going to be here? So, we wouldn't have my mother's birthday. So,
can we go to September? We're looking at September. September 9th. We have September 30th. Let's see. September 9th. Why? Why? Yeah. I mean, okay. Okay. September 9. All right. I'll
make a motion to carry this to September 9th without further notice. The case you second. Thank you. All in favor? I I
make a motion to adjourn. [Music]