Welcome everyone. Today is Tuesday, June 9th, 2026, and this is a regular meeting of the city of Asbury Park Zoning Board of Adjustment. Chairman Avalone, can you please call this meeting to order? >> I'd be happy to. This meeting is being held in compliance with the Open Public
Meetings Act, Chapter 231, Public Law 1975. Adequate notice of this meeting has been provided to the Coaster and Asbury Park Press by publication of the annual meeting notice and posted on municipal bulletin board and municipal website. All notice are filed with the board secretary. Official action may be
taken on the following matters before this board and this meeting is being recorded by APV and I ask everyone with a cell phone to please mute it for the duration of this meeting. Roll call, please. >> Um, Wendy Glassman is absent. JJ Hall
>> here. Daniel Harris absent. Um Natalie Paserini absent. Jill Potter absent. Carrie Dim >> here. >> Vice Chair Scoly >> here. >> Chairman Avalone >> here. >> Barbara Kerzac >> here. >> Jim Henry >> here. >> All right. So we're going to mix things
up a little bit. Um first we're going to carry 7001st Avenue to June 23rd, 2026 without further notice. And just uh members of the board just for jurisdiction purposes we did look at the
notice uh everything is uh in compliance so you can carry that matter without the further notice. >> I appre appreciate that Mr. Beman. Thank you. All right. Um before we go on to the executive session, I would be remiss in
not mentioning um one of our members uh Dan Harris lost his wife a few weeks ago and as out of respect to him and his family, I ask everyone for please stand for a moment of silence and reflection.
Thank you so much. Okay, executive session. Uh, this will be quick. Uh whereas the open public meetings act permits the exclusion of the public from a meeting of the board in certain circumstances and whereas the board hereby moves to open the public meeting and reconvene in close executive
session in order to discuss board professional staff issues pursuant to NJS24-12B8 which is permitted by the provisions of the open public meetings act and whereas it is anticipated at this time that the above matter will be made public at the conclusion of the discussions between the board members. Now therefore, be it
resolved by the city of Asbury Park zoning board that it will hereby close the public portion of this meeting in order to convene in private executive session for the reasons set forth above. >> May I have a motion? >> Motion. >> Second and second.
>> JJ Hall carried in. >> Yes. >> Vice Chair Scoly. >> Yes. >> Chairman Avalon. >> Yes. We'll be back. All right. I make a motion to come out of executive session. >> Second. >> All in favor? >> I
>> I >> Do we need a roll call back? >> Yeah, we should have a roll call and then obviously for the next application >> the recusals will step down. >> Okay. Do you want to go to the >> Do we have a motion for the carry of the other application?
>> We did do a motion. Yeah. Oh, we did. >> Okay. Um, forgot what I was doing now. Okay. Um, motion to reopen the meeting. JJ Hall, >> yes. >> Carrie Dim, >> yes. >> Vice Chair Scully, >> yes. >> Chairman Avalon, >> yes. >> Okay.
>> All right. So, the second application is up now. Uh, that being 5154th Avenue. I'm recused from that. So, I'm stepping down. >> I believe uh Mr. Hall, you're also recused from that. >> So, um as a matter of procedure,
we um because of the recusals and obviously we don't have a full board. We have two members from the planning board who we have asked to come um to this meeting to hear this next application. So, we will have a quorum for that application. Um our obligation is to try to make a a minimum which was what we
are providing. We have two regular uh one regular sitting me uh member, an alternate member, and then our two planning board members. Mr. Carris, any objection to that? Okay. And then I guess if you guys want to go up to the DA
company, >> and I'll just have a quick opening remark once they're situated. >> I thought I would have to climb those stairs. and John Scully will be our acting chair for the evening.
>> Stepping up the power tonight. >> So, just members of the board, uh before Mr. Carris introduces himself and and the application, so this application is for the board to interpret the zoning ordinance. We're not here to make a decision about a specific piece of property, even though the decision may
affect the process and procedures of pending application for specific property that may come before the board at a future date. NJSA 405D70B of the New Jersey Municipal Land Use Law authorize the zoning board of adjustment to and in quotes here and decide
requests for interpretation of the zoning map or ordinance or for decisions upon other special questions upon which such board is authorized to pass by any zoning or official map ordinance in accordance with this act. The board's focus must be on the meaning and legislative goal of the ordinance in
question. When an ordinance is unclear or contains language or terms that are ambiguous, the board must attempt to discern the intent of the drafter, the legislative body that enacted the law. In this case, it would be the governing body, the miss, the the mayor and council. Uh not any one specific
legislator or person, the entire body. Where little reading will lead to a result that is not in agreement with the essential purpose of the and design of the act, the spirit will control the letter. However, when the text of an ordinance is clear on its face, the board does not
get to offer a contrary meaning and must issue a decision that abides by the plain text of the zoning ordinance. Precedence. Generally, when you when you're doing an application for a specific piece of property, it it doesn't have presidential value. This is a little bit different. So, unlike most
land use applications, the decision on interpretation has precedential value. And once the board renders his interpretation, unless it is altered by an act of the governing body, it has the force of law and applies in all other similar instances. Thus, it is important for the board to consider the applicable
ordinance provisions so that the appropriate means of construction evaluation can be applied and with special questions. Not every interpretation involves deciphering the meaning of a specific ordinance text, but rather a determination whether a particular use being similar to or
having the same general charact characteristics as another specific use identified in the municipal ordinances. With tonight's application, you are being asked to determine whether a rooming and boarding house is similar to or has the same general characteristics as a dwelling, multif family, or
apartments, and whether both should be treated similarly or not. This is handled in much the same way as unclear or ambiguous language where an ordinance defines certain uses. The board will need to consider and compare the uses and the ordinance and determine whether they are the same or whether they are
different. If the ordinance language is not clear on its face, then the board may consider the legislative intent to make its decision. If the bo separately if the board determines that a rooming and boarding house use is the same or similar to a dwelling multif family or apartment the board is also asked with
this application to make an interpretation whether the addition of amenities including the construction of dedicated kitchens and bathrooms for each unit is considered an expansion of a non-conforming use or if it is a permitted alteration that does not require relief from the zoning board.
Are there any questions on that? No. >> Okay, Mr. Carris. >> Thank you. Well, um, my name is Andrew Carris. My client is 5154 LLC. I'm here for an interpretation exactly as your council has indicated.
Whether or not a rooming house that is located within the R2 zone is a permitted non or rather taking a rooming house and converting it to a apartment unit. essentially micro units is similar
enough where it's a permitted nonconforming use. There's number of cases that are relevant to this particular topic and I would argue are on point with regard to this topic. What also is relevant in addition to
those cases are the definitions that we find within our zoning code here in Ashbury Park where it defines what a rooming unit is as part of a rooming house. And it's defined as any room or group of rooms formed with a single habitable unit occupied or intended to
be occupied for sleeping or living but not for cooking purposes. So it does define a room unit but separates the cook separate and apart from a dwelling unit which is defined as a single unit providing complete independent living facilities one or more persons including
provisions for living, sleeping, eating, cooking and sanitation. That's really the only difference that you have between the definitions of a rooming unit and a dwelling unit here within Assbury Park. Now question becomes if you are looking to take these room units
and utilize them as in a sense dwelling units not increasing the number but keeping them exactly the same not altering the floor plan by adding additional square footage whether or not
that requires a D2 variance. Relevant case was nickel versus burrow of little ferry planning board 208 New Jersey 95 Supreme Court case in New Jersey 2011. The facts of that case are a little little different but the dict
of the court the holding by the court is relevant to why what we're arguing here today. In that particular case, a property owner sought approval for development of a hotel that sought a devariance for the use of adjacent lot for a proposed driveway.
What's relevant is the New Jersey Supreme Court had made reference and cited to what is known as the Leehan case. The citation for that case in Leehan is 252 New Jersey Super 392 division
1991 case. And why is that Leehan case relevant? talks about the min exceptions with uh devariance and it talks about on page 109 and going through its analysis of that particular fact pattern states
numerous cases have applied the dimminimous analysis to permit changes in a non-conforming use without requiring a variance where the policy of containment of such case not offended and particular the case held by Supreme Court held
construction to the uh construction to the change of ratio of rooms to apartments and a non-conforming grooming/boarding house alone is not sufficient to require variance relief. So I've talked about
changing apartments to Lehan case. I'll go into that a little more, but the Supreme Court was they affirmed the holding in Lehan by stating that if you're changing the ratio between apartments and uh rooming uh housing,
it's like that rooming house units doesn't matter. They're treated the same because they're the sense residential units. Now they also cited in that particular case the knuckle case the Supreme Court
to Wagner and the Wagner case is cited at 81 New Jersey super 206. It's a county court case in 1963 and in citing to the Wagner case, the Supreme Court stated increase in number of tenants in one
apartment of the house converted to two apartments is only an intensity or degree of use and cannot be said to represent a substantial and thereby unlawful enlargement or extension of defendants non-performing use. Now, when we look at
the state versus Wagner case, again, an 81 New Jersey Super 206 1963 case, the facts are as follows. It's a large house with two apartments. Property owner rented one apartment to family members. Property owner rented the other pro the
other unit apartment unit to 12 women. It was an existing non-conforming use. It was a one family zone where you have two family house non-conforming use. the municipality claimed that the property owner operating a rooming house or was
operating a rooming house relative to the rental of the unit to the 12 women. So basically they were saying well if you're taking that one unit renting it to 12 women that's basically a rooming case keeping in mind each apartment was self-contained separate kitchens and baths in that particular unit they were
each self-contained again rooming house were not permitted uses the issue was issue in that case was it an expansion of a non-conforming use to use the one unit as a rooming house as a fine under the municipal
zoning code in that particular case Minnesota County has said no required a D2 variance. However, the court stated on page 210 of that case, in order to retain the protection of the law, the use must retain substantially the same
character and the same kind of use to which the premises were put the time of the adoption of the zoning ordinance. 621 makes no difference that the defendant/propy owner to be said to operate a rooming or a boarding house within the definition of the ordinance
similar to what we have here if such use by the defendant does not represent a substantial change from the non-conformed use of the premises permitted to the defendant by law. Thus, the use of the premises from an apartment to a rooming house they found to be
indistinguishable as long as the increase was not a physical enlargement of the premises to accommodate a larger number of tenants. said as long as you're not increasing the physical space
within that particularly two family house whether or not you're going from an apartment to a rim house who's irrelevant Lehan which is another relevant case Lehan versus Atlantic Highlands zoning
board 252 New Jersey super 392 pel division 1991 again cited and approved by the Supreme Court in the knuckle case in that particular case the property had consisted of 10 boarding rooms. So, it was actually a boarding house or 10
boarding rooms and two apartments. Property was in a single family zone. Again, a a valid non-conforming use. Construction permits were obtained to change the number of boarding units to five boarding units and five apartments.
So, they were reducing the amount of boarding units and increasing the amount of apartments in that particular case. All the renovations per the uh the construction permits were supposed to be internal. What happened though is that the property owner decided to remodel the
third floor by converting additional boarding units into another apartment and he added an additional 158 square ft. So what they did in that particular case they actually expanded the third floor. So they enlarged the premises
by just adding that 150 uh 58 square ft. The court has stated that that in of itself constituted a substantial enlargement with the nonconforming uh use. So by adding the square footage, it was did not comply and required a D2
bearings. However, the court also held the alteration of boarding rooms to apartments was not sufficient to deny the building permits and to require a barren review. So the internal renovations were not an issue in that particular case. The court stated that
future plans for construction or renovation of the building must revert to the original floor space, the square footage. It's okay to renovate, but you got to keep within the total square footage, the floor plan that is existing. The court found that it was able that there would be an increase in
the number of tenants since the new apartments were all one-bedroom units. So, they couldn't say that there was going to be an increase in the amount of people because we're going from one to one. That being the case, if we take a boarding house here in Nazbury Park and
you convert it to in a sense um micro units, adding the kitchen, adding cooking facilities within the unit, adding a bathroom, you're not enlarging the square footage, you're merely taking what is existing and you're keeping the units in a sense that you have
there. You're adding facilities, but you're not increasing or enlarging the facilities in and of itself. As a result, I asked the board to interpret that by doing so, you are not violative of the zoning code. You're still able to
do that by converting a rooming house to a sense micro units to apartment units within that same building. Thank you, >> Mr. Carris. I just want to clear up a couple facts. So, this is R1. I know you
said R2, but this isn't R1 cuz our professional >> R2. So, so there there's an assumption here. Again, we're not talking about a specific piece of property, >> okay? >> But there's an assumption here that we're in a residential zone, >> okay? >> A rooming and boarding house is not a permitted use in the residential zone
>> and a multif family apartment is also not a permitted use in that same zone. So, so that's assumed. We're not going to talk about a specific piece of property. We're going to talk about the ordinance, but that that is the situation that you have here where you have a pre-existing non-conforming
rooming and board rooming and boarding house. Is that what it's classified as? >> Rooming and boarding house. >> Okay. >> That's already in the residential zone. Can I can we talk about can we talk about the fact that
piece of paper that that we received from the zoning officer said that there's 19 rooms and the application is is saying 20 rooms. >> So that's that so that's the that that's the next question. I I think whether there's an expansion or not an expansion and how that's addressed and and quite
honestly I don't know that that the board can necessarily answer that question until the applications presented on on that issue. >> Right. >> Um but what what I think is more important is Mr. Paris refers to the
definition of a dwelling unit and the definition of a rooming unit, but he doesn't refer to any other sections of the ordinance that deals with what is a rooming and boarding house and what is an apartment and how are they his he's claiming that they're similar,
>> right? >> So, we're looking to treat them as a similar uh use, right? So I you know I I didn't hear any information about other section of the of the ordinance and how the definitions and the uh ordinance
provisions provide that those things are similar other than the two definitions he cited. >> Okay. >> And just so we're apples to apples if you have the same amount of units and you're converting to the same or same amount of wheeling units converting to the same amount of micro units you need.
And as far as the interpretation of the code, those are the only definitions that I found within the code that are relevant to this type of interpretation. >> Okay. Correct me if I'm wrong. So there's a state statute that says a boarding room is just one person. Correct. Can only one person can be in a
boarding room. Isn't there like a a state statute in in one of the cases? I thought it was uh >> there are statutes and regulations that identify what a rooming and boarding house is. But we but we for a dwelling we can't assume that it's more than one
person in there. We can only assume that there's one person in there >> in a rooming and boarding house >> in a in a dwelling in so rooming and boarding is just one. >> So so you so the definition that was referred to >> uh is rooming unit. >> Yeah.
>> And dwelling unit. So in Leham they they they they uh they say a dwelling unit under New Jersey uh 5 col28-1-2 a boarding room may be occupied by only one person apartments may be occup by
more than one. So can we assume as a board for this interpretation that the that the dwelling units or the apartments >> well and that's why I said I I don't think you can just limit it to dwelling unit and rooming unit. There are other sections of the ordinance. We have our the zoning officer here as well to provide
>> uh her comments on the matter. >> Okay. >> As well, >> keep in mind what in they said in the Leehand case, court found it was debatable whether or not there would be an increase in the number of tenants since the new apartments were all one-bedroom units.
So they didn't define how many people were going to live, but since they were basically in a sense rooms going to uh one bedrooms, they found that that didn't trigger the need for the D2.
>> So Mr. Carris, in the situation at hand, are we assuming that the existing structure has both rooming and boarding units as well as apartments? >> Cuz in lean, that's what you have >> in Lee. That's correct. And what you did is you converted the rooming house units
to apartments, >> but you already had apartments. >> You had some you had apartments and I think they increase it to >> and they said the increase was irrelevant. >> Well, they said the ratio because they they they incre they they decreased the the the boarding rooms but increased the
apartments and that's where the court said that the ratio >> the ratio uh does didn't matter to them because it still kept the same number. >> Correct. But here to what you're saying, Jeff, is we're not decreasing. We're we're changing everything. You're under
under this assumption, not this particular property. We're assuming that everything is being changed over to apartments. >> Correct. >> I I that's the assumption. That's the applicant's >> right >> position. Yes. >> All you're doing is taking the units and
adding a bathroom, >> existing units. >> So, how do you get around that? The first case that you quoted the f and I forget what it is. I apologize. The first case that that you cited was you said that they didn't talk about cooking. Uh they didn't talk about the
Wagner case >> the non- cookook room. So So how do you get around that for for your interpretation since you're putting >> you have it was >> in the other case you had 12 women that were basically each they were have rooms
within that one apartment. All right. So, they didn't have individual in their bedrooms cooking. They had one parking unit that had one kitchen. Um, and they were all occupying that one bedroom
or whatever's veterans were in there, but it's 12 women that were living there. But they didn't find that as an issue. The cooking that was not an issue. >> Okay. But the issue was whether in both these case Wagner leans whether or not
spending the footprint the entire building that would have been enlarged the internal facilities within there and they they acknowledge they're going to be renovations but the renovations they didn't find were relevant as long as you weren't expanding that footprint
in in each of those cases the Wagner case and the lean case what did the ordinance say as As far as uh what was the definition of a rooming facility or rooming unit uh versus a uh a dwelling
unit? >> They in the Wagner case they they didn't I don't I'd have to look the case to see if they actually had a definition within there. But the in Wagdon, the municipality claimed the property owner was operating a rooming house relative
to the rental to the 12 women and it fell within the definition of a rooming house unit. How they defined it within that case >> as according to the uh definition in the ordinance. >> Yeah, they found that the definition of
the ordinance in Wagner is yeah, it's a rooming house. Didn't matter to that. Now, can can you define the difference between when you you've you've mentioned a couple of times the square footage is the same and then you've also mentioned
that the footprint is the same from looking. Okay, I know I'm not supposed to look at this application, but I did cuz I got all the information. I understand that the square footage is changing. >> No, >> there's you're removing a porch. A porch
adds square footage to the interior of the building. So you are changing the square habitable square footage. >> This application is if we keep apples to apples. We don't add anything. We just leave it the existing building without
adding the leading. We're keeping the exact square footage for the residential use. >> We are not renovating outside at all. We >> And you're not knocking down any porches. You're leaving everything internally identical.
>> Just removing walls. >> You're removing walls. You're adding kitchens. You're adding bathrooms. That's what you're doing. You're not You ultimately they're going to add siding on it. Add new railings. >> All right. So then you'll have a you'll have different plans because these plans
show things being removed. >> We're not talking about >> I understand that, but I'm just saying that these plans will change. Okay. So what do we do in this situation? Like let's say a rooming house has certain ordinances that we have to abide by.
Multif family dwelling has others. Let's parking as an example. Parking um >> affordable housing. We have different things that come in with a multiple multif family or an apartment building
versus a rooming house. So I personally don't understand how can we decide that these are the same because they have impacts they have reaching impacts of impacting parking impacting density impacting affordable housing. How can
you make a decision that a rooming house and a multif family unit are the same >> because they are different things that balance them out? >> That's what Lehham said. They said as long as they're residential. It's actually me having a saying in that as long as it's residential. Um, and
they're similar enough a rooming house and an apartment where they're the same and you don't need it you don't need a for I disagree with you a little bit there because because Liam they were saying they were reducing one and increasing
the other. Here again we can't talk about this but but >> can we talk about parking for a minute? Well, I I you know, again, I you have your zoning officer here. >> She's she's prepared prepared to provide her own um opinions on the matter and
and review the ordinance that she believes is applicable. So, if you want to hear from your zoning officer, she's here. >> Sure. Yeah. Let's hear from our zoning officer. >> Do you swear affirm that the testimony you're about to provide will be the truth? the whole truth and nothing but
the truth. >> I do. >> Okay. And you know, Donna, in case you want to have any comments, do you swear affirm that the testimony you're about to provide will be the truth, the whole truth, and nothing but the truth? >> I do. >> Thank you. >> And you want to qualify me or no? >> Just just for the record, just state who
you are, your your uh what are your certifications to be the zoning officer? And >> Okay. So, I am >> just make sure you're on a microphone, though. >> All right. I know. Is that going to Is that going to reach you? It's fine. >> I am the zoning officer of My name is
Michelle Alonso. I'm the director of planning redevelopment and I am the zoning officer of record as the director of planning and I'm the development director for the ordinance. So yes, so talking independently about not a
specific application but in general this this actually made us think about rooming houses while we haven't thought about rooming houses in a while because this is not a use that is typically built with new construction. But I also want to make a clarification that this
is an interpretation of a D1 or I should say of a change in use, not an expansion. That's part two depending on how this board votes. And that's a clear distinction because I had made the ter
determination that the changing the rooming house to an apartment building, a multif family dwelling is a change in use. And there's various reasons why. And the first part we start with is the definition section of the zoning ordinance. Chapter 30 that we have
different definitions for multifamily dwelling and boarding house. And actually, our boarding house/rooming house, I'm going to use the two interchangeably, comes out of the state statute, the um tenant houses, the about
the the statute that governs boarding houses. And I want to note it's from 1976. I'm going to bring that up in a why I'm mentioning that in a little bit, but that the big difference in our definitions is that boarding house or
rooming house does not have kitchen and bathroom facilities. They're single rooms. While a multif family dwelling unit is separate, it shall mean one or more rooms design occupied or intended for occupancy as separate living quarters
with cooking, sleeping and sanitary facilities provided within the dwelling unit for the exclusive use of a single family maintaining a household. So we had gone to the to the effort here
in this municipality to make a distinction between the two and we make a distinction because certain zones permit multif family or rooming house and others do not. more so as it was referenced. There are parking standards
for multif family dwell dwelling units and they do differ between zones but they have their own standard for parking while a boarding house and a rooming house does not. And why does it not? Because of the nature as defined by the
state statute of what is a rooming house or a boarding house. It's supposed to be transitor transit transitory and the idea is that an occupancy occupant doesn't stay there more than 90 days. That's the nature of it. Now, do people
live there longer? Yes, they do. But the intent of it is not permanent housing. And with that, that's why there are different regulations both locally and on the state level. So the biggest difference between a multif family
dwelling unit and a rooming house is the state license. A rooming house requires a state license with an annual inspection by someone from the state and the Mammoth House County Health Department. Multifamilies do not.
The other requirement on the flip side is we the municipality for a multif family require registration of tenants. If you have in a you have a multif family, you live in a multif family, our code and enforcement department has your name, your contact information that has
to be renewed every year. Rooming houses, we do not require that. And then we also have other ordinances beside the zoning ordinance that speak to rooming houses as their own definition. Building in construction
chapter 12 talks about the inspection specifically of rooming and boarding houses and certificates of inspection. Chapter 13 for code enforcement. Property maintenance code talks about rooming houses and their own separate
distinct use different from multifamilies. And then the tax assessor taxes rooming houses and multif family dwelling needs differently. 4 A is for a
rooming house. A multif family dwelling is a 4 C. So, I also want to bring up why I said the regulation of 1976 about that was the statue began for rooming houses because the Wagner case
predates that and I think that's a very clear distinction to make that back before 76 I think there was more of a blurring of the lines but we are not in the 1960s we're today. And I also want
to make a note with the Lean case that a very significant line is that the Lean case those were considered it says in the beginning of the case they were all considered dwelling units. Again the state
does not define a rooming house unit as a dwelling unit. It's excluded because again a dwelling unit per state definitions and local definitions has a kitchen facility and has a its own sanitary aka bathroom facility.
So those are very distinct but those are distinctions that are made. And then comes the other part of course on the local level besides the parking. And what it means, if this board decides that they're both in the same, that means that a permit can be applied for
without review of anything to convert the units and put in the bathrooms and the and the um and the kitchens without any discussion about affordable housing
or any discussion about collection of any additional fees because I do believe that they are different uses based on the tenency in that again one is transient meant for single occupancy one
even though they can be small units is can bring is a different kind of tenency and that's one of the reasons we define them differently. So that is the general about about the
about the interpretation of whe and whether it requires a D1 variance to convert a rooming house to a multif family dwelling. But I do also want to say that there have been plans in general floated where there is a change
in square footage of units and I'm just going to leave it at that and that but that is what had caused or started the ball rolling of the application for interpretation. So I think I summised everything I
wanted to summize tonight and I'm if I could just follow up briefly I don't disagree with the definition for what's been stated about the state regulations governing rooms however when we look at the lean case that was 1991 that was after number of
years after 1976 when those regulations were adopted was 15 years later when rehab case in this class and they acknowledged in that case they looked at they were boarding rooms and they part of their interpretation made reference to the boarding rooms in the state
statutes that govern not only that they also recognized that the renovations that were internal in that particular case and that wasn't what triggered the issue in that case they acknowledged you can do internal renovations I had no issue with that it
was whether or not you were adding square footage the bill when we look and I I agree with it. Uh it was from 1963. However, you cannot ignore the New Jersey Supreme Court case that was in 2011
way after New Jersey Supreme Court that references, acknowledges, gives credence to and it upholds the Wagner case. It specifically made reference to that Wagner case on
page 428 stating increase the number of tenants one apartment of the house and two apartments only increase the intensity cannot be uh said to represent a substantial and therefore unlawful large extension of the non-conforming use the
Supreme Court also references upholds and gives credence to the legal So the Supreme Court in 2011 specifically upheld both of those cases.
You can't ignore them and those are subsequent to the adoption of the regulations that govern the roomous in the 1970s. So you can't say well you know it it's inexplicable. I know the rooming house the rooming house units.
You know that the court acknowledged in both of these cases they're room units state they know it's governed by by state law those units they know what the definitions are by state law as part
follows those definitions was irrelevant didn't matter it was subst it was similar or not there is no substantial difference that triggered a don I don't know if it's really my turn. I'm sorry. It was a little
>> So So take the Lehan case. I I understand what you're saying about about the court's finding and holding and that the Supreme Court cited that, but we don't know and and maybe I didn't read the whole case, but we don't know
if if what is it? the Atlantic Highlands had a separate ordinance or separate requirements for um a boarding house and a multif family like Asbury does. I I would find it maybe this is this is naive of me, but I
would find it hard to believe that the Supreme Court would say that a city that had a separate ordinance dealing with multif family and boarding rooms that that ordinance is invalid. >> They're not saying it's invalid. They're saying it's substantial enough between the boarding house and the apartment
unit, that doesn't matter. >> But if but if there's a but if there's a substantial difference between those ordinances, as our zoning officer said, take the parking. If there's a substantial difference between those, I don't know how we overcome that. >> Our ordinance falls with the state the
state and they they reference state. They reference board. Isn't the lean case distinguishable on the facts from this situation? >> Every single case you have, there are going to be facts that don't fit exactly
because every case stands on its own. All the facts are different. However, when you look at the facts of that particular case, when you're and how what the court the court didn't just look at facts, the court went beyond it. They looked at okay when you're taking
room as converting them to apartments. They didn't see a difference. Um but >> but didn't that are the facts in that case there were in that building there were rooming units and there were dwelling units as defined in the art in
in a similar or in in the Asbury Park ordinance under their definition you would have had both rooming units and dwelling units. you would have been up the same situation would >> the court was saying is that >> the fact that you're taking some of the
rooming or some of the rooming house units and making them apartments didn't matter. It's similar enough that it didn't matter if one was a rooming house or one for purpose of the dev variance or one was apartment. Didn't the court say that
it based their decision on the number or potential number of uh occupants of the building? >> Yes, they specific made ref they specifically made reference. >> Okay. And we don't know what what their ultimate decision was based on but but
they did make reference to the fact that there were uh you could not exclude uh the possibility of an increase uh They said they said specifically making reference to that
that it was debatable whether or not there would be an increase in the number of tenants since the new farms were all onebedroom units. The same as here because of that then said you can't then make the argument that there's going to be an increase in the intensity of the use. Thus there was no substantial
increase in the intensity of the use. But that also applies to the fact that there were uh rooming units and dwelling units in the same building at the same >> what they were making reference to was the alteration of the room units to the
apartments. >> So is it your position that the definition in Asberry's local ordinance of a boarding room and a multif family there's no difference between those two definitions? No, it's the same as
>> and there's and there's no difference in the requirements is what is your position? >> No, because it follows the same statute as >> Donna, you have comments. >> Wait, I just want to ask Michelle. >> Michelle, can you can you just for the record, can you just just take parking
and talk about the difference requirements for a boarding room house or boarding whatever we're calling it and a multif family with regards just to parking? >> Yes. So, we do not have a parking requirement for a boarding or rooming house. And we have parking requirements
for multif family in every zone that permits them. And it ranges from.99 per unit to two per unit, but depending what zone you're in. So, we did take into consideration that there's a
parking requirement. And again because we consider these these uses different and they function differently. >> Okay. Thank you. >> And there's there's also and correct me if I'm wrong. Is there a difference in between the two regarding uh the storage
of waste trash from a rooming house to a multi-dwelling unit? >> It could be. It could be because as you know dep um a multif family dwelling unit
depending could have its own private hauling or or not that that's a whole other thing depending where it is in the city but also yes about or how much garbage is generated. Yes. >> Yes. How much is generated and how much has to be held. >> Yes. because to be out
>> because it's also the difference between no no kitchen facilities to n to various kitchen kitchen facilities or a kitchen facility for each unit and also the it yeah it it it has an impact it has from
going from none to many or one or two one for a shared common area to one per unit. It does have a municipal impact. If I can just read from page 399 to 400, page 400. >> The PEL division was disagreeing with
the judge's view as far as whether or not the ratio of the change from the single room rentals to the apartments. We do disagree with the judge's view that the proposed alteration the ratio of single room rentals to apartments i.e E from 5 5 to 36 is an increase in the
non-performing as aspects of the use. We conclude we conclude from this record that any prediction on the impact of this change on the number of occupants increase in parking and so forth is
completely speculative. Technically there is actually a decrease in the number of living units. Whether the there is actually a decrease in the number of living units, whether the actual number of apartments or occupants that tech uh whether the actual number
of occupants increase is debatable since the new apartments or one-bedroom units. We find that the change in ratio of rooms to apartments alone is not sufficient in these circumstances to deny the building deny the building
permit and require the leans to get variance relief. >> But Mr. Carris, the zoning officer is saying that's not the only consideration. The zoning officer is saying the Asber's ordinance has a number of different uh comparison contrast between the two
types of uses. irrelevant. It's all spectrum. It's irrelevant. >> It's in the ordinance, >> but you're looking at the type of use, >> but you're not looking at a case that analyzes every aspect of an ordinance. It's it's one little bit of dicta.
>> And that that's not dicta. That's a you can't mistake dicta from the conclusion of >> it's inclusion to that case, the facts of that case. >> That's right. when you're taking you're converting the rooming house units to apartments
that said in the conclusion it didn't >> in that case >> right Lee Lee Han's talking about the the intensification of a non-conforming here you're changing the non-conforming you're changing the use
>> completely which is which is completely different from Leanne Lean saying that that wasn't was it intensification by by changing that that third floor reducing the dwelling from 5 to 6 to 7. >> They were talking about the change of the >> room cash unit.
>> That's what they were looking at. That's what they said. >> May I add something? So our affordable housing in the city when it it has a um parking requirement of zero as compared to a market rate apartment
unit which as I said has a anywhere from one space to two spaces per unit. >> You're going to say something. So, um I think it's again important to refocus what
we're being asked here. Um you're asked to interpret what the city's zoning ordinance says and how it would apply to an applicant desiring a change in their property.
So in our ordinance, we define change of use, which means the use of a building or premises for a purpose that is different than previously authorized and where one use classification is being changed to
another. And it has examples, one family residential to two family residential, retail sales to retail service. Those are very, very close, right? But it's still a change in use. Multif family residential to general office, hotel,
motel to multif family or rooming boarding house. And again, you could argue hotel motel, multif family, and rooming boarding house again are all very similar, but our ordinance specifically says those types of changes
constitute a change of use. Now, there's a lot of things in Liam and Wagner and some other cases um that may be really good reasons for in Mr. Harris's specific situation
to justify what they want to do in support of the grant of either an expansion of non-conforming use variance or D1 variance. Um but what they are doing is changing the use that is a different classification under our
ordinance to be either a rooming house or a multif family dwelling because our zoning ordinance doesn't allow rooming houses and boarding houses anymore. There used to be conditional uses. Now we don't permit them at all. Um but we permit multif family
dwellings. Um, we don't permit them in certain zones obviously, but that's because the ordinance has been designed based on policies in the master plan to handle different types of uses different ways.
That's why we have certain uses in certain zones. Certain uses are conditional uses in certain zones. certain uses have different requirements in different zones like parking or um the the trash and recycling standards
and um other other requirements like in the mass in the different redevelopment areas. Those are again zones within the city subject to land use. They have their own special rules and those are all multif family dwellings usually. Um no roaming houses,
no boarding houses. Um, so, so again, the state regulates rooming and board houses, boarding houses differently than it regulates hotels differently than it regulates multif family dwellings. And it does regulate multif family
dwellings, but it has different rules for each of those use classifications because it knows they have different operational requirements, different impacts, different things to be careful of. Um, and the city has likewise
mirrored some of those definitions and and classifications so that we again distinguish between those types of use having different types of um standards or requirements in different areas of the city. So if you want to change from one thing
to another, the zoning office evaluates whether the thing you are can be changed to the thing you want to be based on those rules. And it's as simple as that. Again, Lean may have some really good
reasons for doing something, but you got to get it first. And getting there first is determining whether this change is an expansion of a non-conforming use or a D1 use variance. Because again, what are
you changing from what to what? >> Aren't we looking at the ordinance and trying to determine what the intent of the ordinance is? Isn't it that >> Well, you're first reading what does the ordinance say? >> Does it have plain language that's easy
to understand? you know the meaning of without having to read the tea leaves and parse out. You >> and the definitions are different between the uh the definition of use of a rooming house is one thing >> between a dwelling unit and a rooming unit. Yes, there's two different
definitions >> and >> and they're treated they're treated differently also in different parts of right you said not only parking but I think you mentioned taxes inspections >> a full scope of whatever city actions sure different >> a full scope a full set of city actions
that are different between the two top standards >> yes it's it's the code enforcement treats them differently construction treats them differently um the county health department treats them differently and the tax assessor treats them differently and the state of New
Jersey treats them differently. >> Do you want me to read what the >> definition ordinance? >> No, I so I I Mr. Chris, I I understand what you're saying about the cases and and the in hypothetical if you're going from 25 to 25,
but I disagree that the definitions and how a boarding house as to a multif family is treated within the city are the same. And and that's why I can't get over that hurdle.
To me, they're treated differently and they're not apples to apples. Regardless of what regardless of how many units you're putting or whether you're sticking at 25 or you're sticking at 30, you're changing the use of a you're
change you're taking a non-conforming and you're changing the use of it and therefore there's different requirements under under the ordinance. >> Then you're ignoring what the courts have said. >> Yes. because they don't apply to this situation.
>> Anybody else have anything else they want to add? >> No, I I have to say that I I agree with what you're saying having to do with the city calls these two things different. It's a change in use. If you have at least, and I bring them down, at least
seven different things that the city does differently between the two, it's a change in use, right? In my opinion, only my opinion. I don't I can't see how it's the same.
All right. So, Jeff, help me out here. I'll make a motion that our interpretation is that there is a if to go from a boarding room boarding house to multifamily that the ordinance does require a
variance. Right? Am I am I saying this correctly? >> I I so no so so the the the question here is an interpretation of the ordinance, >> right? So, if you're saying that you want to make a
motion that a rooming and boarding house is not the same as or similar to >> multi family, >> a multifamily uh apartment building >> according to the ordinances of Asbury Park. That's probably the motion that
you're making. >> Okay. >> All right. >> I think it got to be a little it got to be clarified more than that. Well, I I I think they can clarify it when they vote. >> No, I'm just If you're I think you have to put if you're
taking the same amount of rooming house units to the same amount of homes. No, >> I think you have to clarify >> that. And that's what the interpretation
is, whether or not you're taking the whatever 1920 grooming couch units and making those into 21 bedroom whether or not under the code you would be required to have >> but you're still
I don't think it's you're changing the use. >> I don't think we need to clarify the number of units. The question the the first question here is >> the first question here is whether under the ordinances as park again we can only
interpret the ordinance. So we we we can't interpret a specific piece of property we can't interpret what's happening on a specific piece of property. We're right now we're only interpreting the ordinance and the determination that this board has to
make is whether a rooming and boarding house is treated the same as or similar to a an apartment building. >> That's not what we're >> when you are changing from one to the
other solely one to solely the other. The interpretation I request is whether or not you take you take x amount of room units and are converting to x amount the same amount of parking units.
>> We can make that decision make that decision. I need to make sure I don't want to get it sent back from the court. I don't want the court to say I don't understand what you're coming up with. We need something that's clarified. So I'm trying to avoid that.
>> So 3080.4 of our ordinance is regulation of non-conforming uses. Number A, letter A, the first thing. No existing building, structure, or premises devoted to a
non-conforming use shall be enlarged, extended, reconstructed, substituted substituted or structurally altered except when changing to a conforming use.
Substituted. We if you agree that a roaming house is a different use from an multif family dwelling, you cannot substitute one for the other
under 30 84.4. >> Yeah, I I agree. I I understand what you're saying about the the number and the use, but we first have to to to Donna's point, we first have to determine whether it's a we're changing from apples to oranges here, which >> or apples to apples
>> or apples to apples, >> right? >> So, I I I understand what you're saying. You don't want to be kicked back from the court, but >> Jeeoff, I I don't I don't feel comfortable putting a number in there. I I I'm fine making the motion that that they're they are treated differently,
but I don't think we should put a number in there. I >> I think under the zoning ordinance, as you as you point out, the zoning ordinance does not make reference to a certain number. If if you're below certain number, if this happens or you're above, it it's it's it makes no
reference to numbers. I I totally agree with what you're saying. It's it you know >> right yeah there's not a different requirement if you're there's only 5 to 5 or 6 to 6 or 30 >> 19 to2 >> the change is >> so you're saying irrespective of whether or not there's an increase in the
intensity if you're going from a growing house to multifamily requires a dev >> yes >> according according to but but here's >> so if you were here but here's the Andy,
if you were in a zone that multif family h housing was was permitted, but you have a rooming and boarding house, it doesn't need a D1 variance. >> We're not talking about what we're talking about. But the interpretation has to be in the zone that's >> so so if you if you if you want to
strictly limit it to in the residential zone where you have a nonconforming rooming and boarding house being proposed to be changed to a nonconforming multif family apartments >> irrespective of the intensity
>> whether that is a change of use >> irrespective of whether or not there's an intensification of the use. Well, I don't like that. >> I don't like that. That's the language from the That's what that's with regards to the ratio. They
also said that it was intensification because they built out that >> but that's a separate issue because >> it it is because that's more of a determination whether we're now talking about a D2 variance as opposed to a D1 >> variance irrespective whether or not
there's an attackation that's based upon the fact you're going as a nonconforming use of a room and not conforming multifamily to rest whether or not intensifying use that you can't do >> no I I don't think that's what you're
saying at all. I think what what's being said here, according to the Asbury Park ordinance, >> the uh use as defined in that ordinance under the section that refers to uh rooming houses
is a different use than what is found in Asbury Park's ordinance under uh dwelling unit. And that's what the interpretation is. as I believe it, right? >> And and and in Leanne, they actually said that that the where is it that the
there's no doubt whether the extension of the use is substantial because they were expanding that third floor. I I think if we put if we put in irregardless of intensification that that's way too broad for our interpretation. I think that's that's too fact specific. So >> I would agree that if you're expanding
the third floor, then no doubt sure. >> Right. Right. But you're asking us to you're asking us to put that broad language in there and I don't feel We can limit I'm not talking about an enlargement and you can say we can limit it where we're not including enlargement >> but then we're we're back to putting a
number on it and and I don't I don't think this board should put a number put a number on it. >> I'm just trying to avoid it coming back from the court for more. >> All right. So Jeff, I'll So I'll >> But can I also say but here's the the thing that for not setting the motion up for for an appeal of the decision. But
again, this >> but listen, this is an inter this is an interpretation. >> Uh this was a requested spec interpretation based upon my saying it was a change in use.
So let's and it remember it sets precedent. So that means that it it changes it because it's if you look at it what the purpose of the board is to do rather than how it's going to be appealed. It's about the D1, not the D2.
>> All right. So Jeeoff, I'll I'll restate my motion and correct me if I'm wrong. Um, so I I make a motion that under the ordinance under Asbury Parks zoning ordinance that a a rooming house and a
multif family apartment dwelling, whatever we want to call it, are not treated the same or similar under the ordinance. And then are we adding in the residential or we're we're not adding in the residential?
I I just we just had this conversation before about >> making a determination. You've interpreted that rooming house rooming unit is a different thing than a dwelling unit. >> Correct. >> That's right. Okay. And then secondarily, you're determining a change in use under
the ordinance pertains to use. >> Correct. >> Not how many units, not how big it is. >> That's right. And not even what zone. >> Correct. It's a change in classification of use as defined in the ordinance.
>> Correct? >> Then you can go to the third step which is in the case of a non-conforming use changing to >> anything other than a permitted use would require a variance.
>> Right. Any see what you read that the substitution what was that? That was uh >> and again doesn't matter if you're in the R1. It doesn't because if it's a multi family in the R4, whatever. >> No. Good. Thanks. >> The definition defines non-conforming use,
>> right? >> Okay. >> All right. Do I have a second? >> Second. >> Roll call. >> Um, Barbara Kerzac, >> do we have to state why or are we just saying that whether we agree or not? I I I would ask that you state your reasons
for your vote. >> Happy to. Um I vote that it's a uh it is a change in use. Um so I'm guessing that that's a no. >> I'm not sure it's a yes, depending on how you're saying it. >> So So the the motion is >> I'm supporting the motion.
>> Yes. The motion is that >> it's different. >> A rooming and boarding house is and and apartment building are not similar. >> I'm supporting that motion. And the reason why well the reason why I'm supporting the motion is because there
are because we treat these multif family units very differently with the parking with the waste with the inspections with the registration of the tenants with the taxation affordability code enforcement
building code enforcement all of that. It's all different. The two are treated very differently in our ordinances. That's why I am supporting the motion. >> Jim Henry,
>> I also support the motion and Barbara has listed a whole series of uh reasons for that support and I will adopt this same reason. carried Dem.
>> I also support the motion. I think um the city has gone to um great lengths to try to specify in our ordinance the difference between those and how they're treated. And I think our we were asked here to interpret the city
ordinance. And I think the the differences are pretty clear according to how the city defines them. and John Scully. Uh I vote yes for the uh the motion as well and uh based on
all of the statements from my fellow board members in addition to the fact that uh the testimony from our professionals that uh the local ordinance uh strictly prohibits any substitution
from a non-conforming other to other than to a a permitted use. >> Okay. >> Thank you very much. Thank you. >> I'll make a motion to >> motion to um adjourn. >> Ajourn.
>> Yes. Second. All in favor? I Okay. Thank you everyone.