e e e e e e e e e e
e e e e e e e e e testing okay just waiting to hear that it worked
haven't heard anything though e St everything tell me when you're ready you're ready so yeah I'm G to get paid in three months in compliance with the open public meetings Act of
1975 adequate notice of the this meeting has been provided if any member has reason to believe this meeting is being held in violation of this act they should state so at this time we'll have the Pledge of
Allegiance I pledge aliance to the flag of the United States of America and to the Republic for which it stands one nation under God indivisible with liberty and justice for all okay okay please put your microphones
on Mrs wner here Mr venudo here Mr Lewin here Mrs Notch here miss Shen here Mr Walsh here Mr Zer Mr Jagger here miss Stevenson here thank you we need a motion to approve
resolution of 22725 for Steve C 1206 Merin Avenue I'll make that okay so um shall we say uh you can
say okay I'll second Mr Lewin motions Mr venudo Seconds Mr Ln yes Mrs Notch yes Miss Sheen yes Mr Walsh yes Mr Jagger yes Mr venudo yes Mrs Werner yes we have people
inight okay we need a motion to approve the minutes of January 23rd 2025 make the motion I'll second so Mrs Notch motions was that Mr Walsh who seconded yes yes thank you Mrs
not motions Mr W seconds Mr Lewin yes Mrs not yes Miss Sheen yes Mr Walsh yes Mr Jagger yes Mr vudo yes Mrs wner yes thank you okay our first application this
evening is Katherine and Robert Barbaro 106 Second Avenue block 1013 Good Start good second good evening Madam chair board
members Ron gilis appearing on behalf of Robert uh Barbaro the property of course is 1062 Avenue uh this property contains a single family home situated a pre-existing 50 by 100t lot that backs
up to the marsh or the wetlands The Proposal is to construct a rooftop deck that will be fully compliant with all of the bulk regulations ordinarily such an expansion um of a non-conforming structure on a non-conforming lot is
permitted as long as you're not creating any additional variance situations and and the addition would comply um with all of the zoning regulations um although this deck is that it is fully compliant the the city does have an ordinance
5257 3E um which applies to properties which have are non-conforming which were previously granted variances uh so this property was granted variances back in 1988 copy of that resolution was
attached uh to the application none of those variances that were granted in uh 1988 are uh in play here in other words none of them are affected or in any way exacerbated um and and and we'll go
through them this evening here is uh Mr Paul Faron our architect from fulm Design Group and of course Ro Robert babro uh um to my left if we could please have them sworn in we have also swear our board engineer do each of you swear or affirm the tell the truth all
to the to I do okay um Paul could you just briefly place your credentials on the record sure um New Jersey state licensed architect um went to school New Jersey Institute of Technology Bachelor's of architecture
degree Masters in infrastructure planning and practicing in the state for better part of 10 years and have you testified before planning and zoning boards yes have you been accepted as an expert in your field yes by this board
as well um why why don't you take us through the current conditions uh on the property and and then the proposal sure so um the existing conditions as um already described a
twostory single family residents um the rear of the property which is the focus of the work is uh two story deck um the intent uh is to construct a roof deck over the roof structure itself um not
over the existing deck that's already in that's already um been built um the house was effectively reconstructed in the 80s from the ground up if I'm not mistaken um and at the time as Mr gunas mentioned
variance relief was required and that's what brings us back here today um the proposed design would not increase any of the lot coverage none of the impervious surface obviously the proposal is directly above the roof
structure um also we're complying with the setbacks what's required is 5T on the side um right now the house is about a little more than 4 and 1/2 ft from the side setback so the intent is to hold
the the that edge that Leading Edge on the side of the new roof deck um hold it back to comply with the five foot setback so we're not exacerbating that either um one thing I would call to attention is the way where the the deck
is designed it will be uh bearing on an on an existing interior beam that was um part of the Reconstruction in the 80s we don't know exactly where that is because it's embedded in the ceiling a hard ceiling um so there's a little bit of
leeway there in terms of where that uh edge of the deck joist will bear um that may impact the height slightly however even if our deck height was um co- plainer with the ridge of the of the
roof uh our proposed 42in handrail would still not exceed the 35 ft Max so we are not encroaching on or uh exceeding the allowable Building height either so right now you're you're showing on the
plan on the elevation the top of the railing of the um the deck is 30 feet 4 in correct could you bring your mic a little closer so it's 35 ft in the zone correct so correct under that correct maximum
Building height is 35 ft now in terms of can you see this from the street this is in the in the rear of the building that's correct and the the peak of the roof is actually between the deck and and the street correct so a person standing on the street or a car driving down the street would you be able to
even see the railing from that angle perhaps slightly um but it not it would not be obtrusive in my opinion and so what you were describing earlier about the the location you might have to move that deck closer to the peak or further
away from the peak um so that it rests on that uh structural support correct but in in no event is it you think that it's going to be it won't be higher than the uh the the roof Peak the level of the deck correct the root yes certainly not the level of the deck will not be
above the the ridge line we'll call it um but the railing will uh inevitably to some degree but even if even if the roof deck was uh as I said c-plan or the same level of the highest point of the roof
the railing would still fall beneath the maximum permitted Building height and is there any construction uh proposed in connection this with this that would touch at ground level that would in any way affect existing grading or or
drainage no and uh it as you I mean all the setbacks are met as you as you indicated correct in fact they're exceeded in many correct and then the existing building is not not a large building for the lot and in fact
it's could be said to be a little underdeveloped right right correct with the the entire development of the property is also falling below the maximum permitted lot coverage which again this will not impact at all so in
in 1988 and the reason we're here variance is granted where it's an undersized lot um the lot Frontage is is narrow lot width of course the sidey yard set back correct uh and the front
yard setback right uh and this additional deck proposing doesn't involve any of those features we're going to meet the side correct it's the side that's closest um but the proposal is to stay within and again we're not
necessarily bearing on that side wall either the closest to that side property line so um we have great latitude in terms of where that side is situated that edge of the deck but in no circumstance will it uh encroach that
setback that side yard setback it will meet the five foot requirement at least and you're allowed to have the rooftop deck correct so in I think if you go around the neighborhood you might see some other right right in the
neighborhood you'll see examples of effectively exactly what we're representing on on these drawings so in in light of that um the you see any substantial detriment to the public good after meeting all of those requirements or uh impairment to the Zone ordinance
or or plant no I I personally did not see um any impact that's detrimental to the neighborhood or any neighboring properties um again we're complying with all the various uh bulk standards
um so no I I I don't see how it would be impactful to the neighborhood okay does anyone have any questions for the applicant or Mr Faron I do I have one um will the investigation aware that structural member onto that beam will be
done before the compliance plans or submitted or during construction I would say during Construction Construction so I would just ask the applicant to add notes on the plan referring to that ensuring that you're not encroaching into the setbacks and that that
structural member is liable to change so it doesn't create any issue um before we issue a certificate of occupancy understood just just so that the plans are clear as to that is a variable that will be dealt with during construction
and that we'll review that before your CEO is issue makes sense I have a question um it's this house is located within the historical district is there an HBC approval we do not have conceptual approval no our
intent is hopefully pending the approval from this board we would submit that with our application to obtain approval from the HBC final approval um it is not contributing the house is not contributing so that's I'm sorry did you
say you have conceptual approval no we do not have conceptual approval the intent is again the hope is to leave here with this board's approval and attach that to our application to HBC for final approval um it is located in the historic district is not contributing structure so um we we
believe it'll be approved there as well if there's no other questions yes viewers let just if I could just write one note real quick okay so I would like to summarize my report um I'm sorry good evening everyone I would like to summarize my
report dated November 21st 2024 uh this is a project located in the R2 low medium density residential district um I agree with Mr gun's analysis of why they're here um
normally um if you're adding on to a non-conforming structure on a non-conforming lot and that addition is totally conforming with regards to Bulan area criteria they could normally just go pull a permit
for except when it has been heard prior by a planning board or a zoning board and variances have been granted that so this is what's called our zoning review section and it gives the board another review of it to ensure that it's not
it's complying with any of the conditions that were set forth during the original approval and to make sure that the criteria that was used to evaluate the variances at that time is not being impacted so that's why I in my opinion
why it's in there okay so um this is a 12 by6 rooftop deck you've heard uh testimony from the applicant's architect as to what that consists of um I'll roll right into my completeness review on page two um I've they've asked for
waivers from items 19 26 27 28 and 33 due to the the nature and scope of this application I supported all of those waivers item number 18 is just if the board grants approval there should be an approval signature PL um added to the plan so that should be provided as a
condition of approval um and if the board finds those waiver requests acceptable I did recommend deeming this application complete once again I did say that there is an undersized lot on a a non-conforming structure on a
non-conforming lot the lot is non-conforming with regards to size 7,500 ft is the minimum that's permitted in the zone where this lot is existing at 6,500 Square ft and it is sufficiently narrow that it doesn't
comply 60 ft is the requirement 50 foot is what exists there now the building itself has a non-conforming front yard setback is measured to the 2 Avenue 12.83% foot is the requirement that's not being
altered the deck is set back at a minimum of 25 ft so we're good on that aspect uh the sidey yard setback um there's a 15ot total in aggregate so 10 foot on one side 5 foot on the other um this structure has an
existing non-conforming setback of 4.6 feet on one side and the applicant is indicated that that deck will not encroach into that required 5ft setback so I think we're good there um all of the other bul and area criteria is met it's not increasing loot coverage the Flor area ratio is uh
existing conforming situation they have adequate parking based on the number of bedrooms so this is essentially just a zoning review to ensure that um this is this um addition is proper on this lot
excuse me Craig I think I've got to type on mind okay the building height saying proposed 35 foot so I indicate so I I believe there was language in their application that indicated that they were going to be 35 foot or less okay so I I Incorporated
that to ensure that but we've heard you've heard some clarification that it's probably going to be lower than that but it it can be no more than 35 okay and then um on my general review comments on pages four and five um these
are should all be conditions of approval I already talked about the signature blocks item number one item number two is this is our standard condition that we apply to every application is that they have to comply with the minimum storm water management and Grading requirements both during
construction and after construction so that should be a condition of approval um item three is our standard condition that the certificate of occupancy is tied to uh an acceptance of those improvements and the inspection of those um item number four is compliance with
the requirements of the shade tree commission fire department and public works department we received memos from the fire department recommending approval dated 1325 Public Works recommended approval dated 1 1925 shry commission uh
recommended approval 12225 and had a email attached to that let me make sure Second Avenue there were two cities trees out front that are not being impacted so um they were okay with that
and that's all the reviews I have for that okay um item number five is compliance with all other state county and local approvals um we talked about the historic district you're required to provide evidence of final HPC approval
um item number seven is compliance with the applicable affordable housing requirements at the time of approval or issuance of permits and then finally should the board Grant approval you're required to revise the plans consistent with the conditions that they set and submit those requisite compliance plans
to the board engineer for review and approval that's a summary of my report I'm happy answer any questions the board has and the applicant doesn't take any exception to those requirements thank you any
questions from the board at this time I'd like to open it up to anyone within 200 ft of the property that wishes to speak anyone Beyond 200 ft that wishes to speak closed to the
public any final remarks no no I think there very straightforward application as you can see it doesn't create any any variances other than the requirement in the code that the applicant come back because previous variances were granted
um it's a very modest addition to the home um it gets them up past the the the the Dune which is healthy and so healthy it's growing Higher and Higher and blocking some view so right the motion I recommend be made unless um we're going
to phrase it in the positive of course you can always votee negative if you're going to vote in the negative please carefully articulate your reasons because most of what is on the record now are things that are going to say now you just make sure you clearly State your reasons the motion I recommend be made there a motion to Grant variances 1
through five on page three of the engineers Report with the waivers um 19 26 27 28 33 on page two and addition number 18 and numbers one through eight on pages
four and five of the engineers report that's the motion I recommend be made how is I make a motion I'll second missan motions Mr venudo Seconds Mr Lewin yes Mrs not yes Miss Shen yes
Mr Walsh yes Mr Jagger yes Mr venudo yes Mrs wner yes thank you thank you madam chair board members for your time thank you I think that was the quickest one
appr it's actually a book about Z uh good evening board members my name is Lindsay Nukem from the law firm of monzo Academy zalis here tonight on behalf of Allan and Sher Blumenthal both who are with me uh we also have Pam fine with us tonight the property address is 109b
First Avenue the property is currently developed with a one-story semi detached dwelling comprised of two units uh Unit B um that's the subject of this application is at the rear of the property the applicants here tonight seeking variance approval to construct
an 11 by3 12 screened in porch and a new PA walkway uh at the rear of the unit the screen dim porch is proposed to be located um in the exact location of an existing patio the Lots undersized um and as such the pre-existing non-conformities as to lot size lot
width and lot Frontage are pre-existing non-conformities um and although no non-conformity is being increased as in we are not fur they're encroaching into the setback or or exacerbating any of those because the use at the site is a non-conforming use
and we are screening in this Pao we're before the board asking for approval lock coverage is also a pre-existing non-conformity on the site uh that this application is actually improving um which you'll hear Pam testify to um if you wouldn't mind swearing in alen
Sherry and Pam please board engine remains of gr do each of you SAR yes I do yes so uh Sher we'll start with you you own um unit one unit B at 109 First Avenue correct um and can you tell
the board a little bit about why you want to add a screen in porch um well thank you for allowing us to speak um our reasons for wanting a screen in porch very much are um involved with health and quality of
life mosquitoes and we are pretty close to the um Nature Preserve do present many health hazards such as West Nile Virus Eastern equin and sephtis and Deni fever repellant are not completely
effective also having a roof over the patio area provides better sun protection from skin cancer which is now a personal issue Kate may also provides the benefit of Clean Air which promotes Health being
outside as much as possible is of course advantageous and a pleasure in Kate Bay there is no detriment to the plan our neighbors are actually looking forward to using it as well by replacing all of the existing
pavers with those that are pervious we will actually increase or have a net increase in natural drainage on the property the plan causes no hard ship to any neighbors or to the city it is only
visible by walking to the rear of the unit and does not extend even to the existing roof so it is merely covering a pre-existing patio we hope that you will consider our application favorably thank
you and Alan I believe you had a few uh words for the board about why you'd like this approved as well Al if you can thank you I think some of this is going to be similar when when we look to buy buy a property
in K May a long a longtime dream one of the one of the things we really wanted was a deck or a porch many of the units in our small complex had decks including the unit next door and the one right after that so we assumed it wouldn't be
any any issue then we found out to two years earlier the zoning laws had changed we looked into trying to get a variance to allow us to add a deck however we found the cost of applying for the variants and the steps needed to
go through was difficult so we decided not to bother after all we had a home we had a home with K may we live there five to six months a
year we don't now we're in a different situation I'll be 81 years old I'm sorry got it I'll be 81 years old and my wife's 79
when when we come back for the summer we have both had recent health issues as a result we'll be spending more time in our backyard my wife is lower is lovingly Made Beautiful with addition
of a garden however the older we get the more Su excuse me the more susceptible we become to the disease caused by mosquitoes therefore the application of
variance is more than an issue of not getting one that we had originally hoped for but instead it's an issue of health and quality of life we decided that it was necessary for us to do whatever we needed to do in order for us to get a chance to have an
outdoor space that would be safe and comfortable where we can spend our time thank you thank you um and with that Pam why don't you talk um a little bit about the plan that you created for uh the front for the
screened in porch and review it with the board of course so I'm going to uh start on the P1 sheet which is basically the architectural drawings um oh sorry I'm so sorry I absolutely should have done that we'll take it for GR okay sorry
about that I did take it for grammar good to be back um so I'll start on the P1 sheet um the left side is the existing plans and elevations right side are what we are proposing um so left side I'll run through this really quickly just to
outline what is here um you'll see the zoning conformant schedule up in the left hand um upper corner um as mentioned before we have an existing non-conforming use which is uh one of the main reasons why we're here tonight
uh we have a two family dwelling where only single family dwellings are allowed in the zone uh so no matter what we do on this property we would need a variance um in addition to that single uh that existing non-conformity
Conformity we have lot area lot width and lot Frontage are also existing non-conformities um so it's it's a small lot it's a narrow lot um so we're we're up against some hardships front yard setback we actually
comply um we are not proposing anything in the front yard setback side yards we are required to have 5T minimum and 15 ft total uh we have an existing non-conforming left side um sidey yard
which we are not changing um it's four feet where 5 feet is required everything that we are proposing is in the back uh where 25 ft is required and we're proposing 28t 2 so we are well within the confines of what is allowed to be
added along the back and as mentioned before we have lock coverage we are actually currently over in lock coverage um by a little over 400 square feet uh what we're proposing excuse me is to remove
existing concrete uh stones and to replace it with pervious papers so uh we are proposing a net reduction in lock coverage uh we feel felt that that was a good tradeoff for the um uh addition of the screen
porch and Flor eror ratio we are well under what is proposed um what is allowed I should say uh is 2600 what's proposed is 2 and 12 we are not changing anything with floor area ratio uh
Building height again we are currently at 15 ft a little bit over 15' 1 plus or minus 35 FTS allowed and we're not changing Building height at all uh the proposed roof height is actually below the ridge line and you'll see that in the uh
elevations and then parking we have one per unit for two total we're not changing anything and that complies so the new screen porch um the size of the screen porch is uh 11 or 13'
6 x 11 ft um which is a total of 148 Square ft as you see on the right hand side it is located along the back right corner of the property you cannot see it from the street we have no rear neighbors we have no neighbors to the left side and then to the right side we
just have another duplicate of what exists on this property so another uh two family dwelling um so everything is shielded from the street um what we're proposing in the backyard is within the setback uh
allowances uh as you see on the elevations the ridge line is much lower than the current roof line uh so you will literally not see anything from the street um and uh uh I will answer any
questions yeah um so we're asking for um a use variance obviously because we're pre-existing non-conforming use that we're going to put a screen porch in um and we are asking for uh variance relief related to um the pre-existing non-conformities even though we we
really aren't exacerbating them yes um so if you can go through the standard uh and how we meet that for the board sure um I'll touch on the C1 variance criteria uh basically is uh um the narrowness shallowness or IR regular
shape or exceptional topographic condition or other unique conditions or physical features affecting the property um as I touched on earlier we have an undersized lot it's narrower than what is permitted in the zone and the area is
smaller um we have existing non-conforming lot coverage which we are proposing to be reduced but that is another hardship we're forced to work with and then finally the existing non forming use uh it's an existing duplex which we cannot change so we're working
with three hardships on this property none of which we can really change um so I do believe that the C1 variance does apply um and for the C2 variants as well as the use variants uh you talk about the purposes of zoning yes yes so I
think um I have a few that I highlighted that I think apply to this project um the first one is letter A to encourage and promote the public health sa safety morals and general welfare um as uh the bloomingthals mentioned earlier we have
diseases from mosquitoes um sun damage um there there are many things that you could see become an issue just having an outdoor open patio um so the addition of a screen porch does help uh promote the
health of of my clients and the neighbors who are also invited to use that space um letter C to provide adequate light air and open space we are reducing lot coverage so um we are um reducing a
non-conformity uh by what we are proposing being added we're proposing a screen porch there are no walls it is open it's just shielded basically from above with an open uh with with a roof covering but open
walls um letter e um to promote the establishment of the appropriate population densities we're not adding to any floor area ratio what we're proposing is a screen porch which does not count in the floor area ratio
calculation and then finally letter I which is the desirable visual environment um obviously you can see that it enhances the aesthetic along the back area of the um unit so I feel that
this uh design will promote um the um the purposes of zoning and when we go to talk about the negative criteria which again goes to both the use variants and the C2 variants there's uh no substantial detriment to the public um to the public
good here or impairment of the zoning plan not at all I don't we don't have neighbors um the only neighbor is to the right um what they will be seeing is very very minimal as far as any changes go uh we don't have neighbors to the back
there are no views that were going to be uh sacrificed in this application so we are actually enhancing uh the the backyard space we're helping with loot coverage so I don't see any negative criteria with this application but there is a neighbor
directly behind this house and this this is visible from Broadway too there's a house directly behind this I some of I know that there are neighbor the first thing is that we did submit um from the Condominium Association it's a two unit we did
submit their consent and I think we uh have at least one neighbor here who will speak in favor of it but I I don't honestly I don't personally know this neighbor but I fully believe that that that that there is and I think what you're hearing Pam say is that there's an aesthetic benefit to it um to it
being located there make sure I was looking at the right house yeah I understand um and there's also this is going right where an existing uh patio already exists correct right yes there you can see that on the left side the existing concrete P paper patio is located in the back there is the
entrance door just from the outside or is there one from is the entrance door to the porch from just from the outside or is there one from the inside as well no inside entrance just outside outside okay I just have a question um you said you got written approval from the other
unit a yes okay it wasn't in our packet that's why I'm asking I apologize I thought it was submitted with the appc but if it wasn't I apologize I believe okay why why I'm asking is according to the survey where you want to build this sunro is common area M so um that was my
question is is it going to it's going to be for use for both units and it's going to be deeded to go with both units I I think the Blumenthal will allow the no I'm not telling allow because it's common area so I'm asking
is that going to be but condo doents can be agreed to by the property owners um and it'll be used however they agree with the condo documents amended accordingly okay and so that when you say the papers are going to be replaced is that the whole front or just in front
of B that's a Pan question um so where it is hatched on the P1 sheet um along the right side of just Unit B that will be replaced okay so not in front of a no okay now um I didn't see that the patio
was ever approved to be built you're you're putting on top of a patio did that ever get approval to be built that was PR I think it existed when my clients bought the property I have no knowledge of other approvals there
okay so the Pao was never approved I can't say whether or never approved how long have you live there since 2020 October 2020 and the patio was there when we
moved in the pavers were there when we moved in and you say there is approval from the condo association yeah yeah the um other unit owner is here I don't have a copy of it in front of me but the other unit owner is here and we'll speak to it and I can certainly submit okay because
there's there's no condo fees associated with this unit or these right it's just no there I don't know the answer to that the Blumenthal are saying no but I also don't know that it's particularly relevant to this board's
decision this is these two units if it would be all right if I answer sure of course um we the owners um we all manage it together ourselves okay and um we have a very good relationship so we've
discussed this and quite honestly there's the building there are four buildings sort of lined up it's 107 109 111 and 113 and most of us know each other and certainly The Neighbors in 107
a andb our unit which is 109 a andb we all get together on holidays we're all very friendly and the this is pretty much open to whomever wants to use it we feel like we're a community yeah well
let me just close this out um it's not I don't know that it's a zoning consideration but um as a lawyer sitting here who litigates most of the time I'm telling you you've got to really get that clear in your condo docks because it will rear as ugly head at the worst possible time when you go to sell it and
no one will know who can use this unit so you need to work with uh your Council to that very here um it's not a zoning issue but it's a understood de with someone like me the condo documents will need to be amended to reflect this the condo survey will
have to be amended to reflect this and there will be an indication about usage in the condo documents representing the condo other unit owner has consented to this I am and I apologize if it wasn't submitted I certainly have it in writing I know that Sher gave it to me and like I said they are here tonight so you'll
hear from them now this has gone in front of one of the windows is that correct uh yes so we have a double window on the corner there but there's no access from inside the house no just outside that's correct um Pam you've reviewed Craig's
um review memo yes and don't take exception to any of the comments in it correct not at all everything looks good including the requirement that we submit a uh drainage calculations um as a part of uh compliance plans correct yes
that's fine um and we do also have um public works as well as shade tree with no comments um as a part of this application okay let's go ahead and have Craig's report okay so my latest review memorandum is
dated December 31st 2024 uh this is a project that's also located in your R2 low medium density residential district this is an addition to a semidetached dwelling which is two units that are touching each other have a common party wall um so there are two
units on the site that is not permitted in the R2 zoning District R2 zoning District only permits single family dwellings okay so they've described exactly what this nature of the porch and the description of where that is and
I'm going to move into the completeness check this review on page two um they've requested waivers from items 2 19 23 26 27 and 33 I supported those waivers based on the nature of the application
um I did ask for item number 28 to be provided as a condition of approval um the applicant has just agreed to that um and essentially why I asked for that is because this area is in an area that has is prevalent with storm water issues and
this lot is over on lot coverage so we ask them to mitigate that coverage um it's one of the potential negative aspects of this and because they're doing that I think they they're satisfying that criteria by addressing the potential storm water
issue okay with regards to the Bulan area review on page three of five um this is an existing undersized lot uh the lot size requirement is 7,500 ft where 6500 ft exists the lot width and
lot Frontage requirements are also not met the existing lot is 50 foot wide where 60 foot is the minimum requirement and then finally they are modifying the lot coverage um they're taking up havers they're proposing a a roofed porch on
the rear of the structure um the the maximum permitted is 40% existing is 46.1% and they're mitigating that by providing perious pavers and taking crit that 50% credit for perious materials and mitigating that to
45.5% so those are the variances that are required the conditions of approval should be my in my general review comments item on page five item number one is provide the required signature approval block on the plan should the
board Grant approval item number two is we ask the zoning table be updated to reflect the comments in the review memorandum item three is we would like to see and verify that they're uh indeed pervious paving
materials that are being provided so those construction details must be provided on the plan so that the contractor will follow those and ensure that we're getting pervious material uh four I talked about the grading and drainage plan so that is that recommendation and that that item
as well as item number five which details that they're required to comply with chapter 525 the minimum stormw management and Grading requirements both during and after construction item number six is our standard condition that we evaluate the sidewalk after
construction to make sure nothing is damaged if there is we will ask you to replace that to the satisfaction of the board engineer item number seven is we tie the issuance of the certificate of occupancy to the acceptance of
improvements so we will inspect those improvements and verify your complying with the board's approval number eight you're required to comply with the requirements of the shade tree commission fire department and public works department we did receive uh recommendations from public
works department dated 1 1925 they recommended approval with no comments shatri commission recommended approval dated 1:22 25 um indicating that there are no trees involved and the
fire recommended approval dated 2 2425 with no comments Craig I have a question for you sure I'll pause okay I was sure if you done or pause um when you say that for review comments for the variants that
it's um semiat well are not permitted in the R2 area when this was approved was there any variances that were um anything that was carried along that that we could not that that that was restricted with this I don't know when
those were approved but I'm sure it predates this zoning because there's a successive four units that are duplexes okay I didn't know if there's like you know how Village Green they're not allowed to do not allow to have pools or things like that I know there's anything there's no restrictions on it they're just in the they're in this R2 Zone and
now they have to confli and that's why they're here seeking a use variance for the expansion of a non-conforming okay so it's nothing that was put in place when they were approved nothing that I'm aware of I don't we don't have a resolution of when they're approved they may have just been by right and just
built with no board approval my predate zoning I'm not sure how long those units have been there I think 95 okay but we don't we don't know that and absent of that we're we're granting a use variance based on their application and Tes it was just because you made that comment
in the last one that's why I was bringing it up okay okay um they're required to comply with um any and all other necessary state county and local approvals this project is not located in the historic district
so they do not need HPC approval um they're required to comply with any and all applicable housing affordable housing requirements at the time of approval or issuance of permits and finally they're required to revise the plan subject to the board set conditions
um and they're required to submit that requisite number of compliance plans to the board engineer for review and approval should the board Grant approval that was a summary of my report and I'm happy to answer any questions and just uh be aware that this
is a use variant so they need five affirmative votes okay like to open it up to the public within 200 feet welcome to come to the podium here and uh make sure that the microphone is
on yes can you please raise your right hand you swear or affirm to tell the truth for the truth sub gu please state your name spell it It's Tricky give us your
add good evening my name is Joanne hollenbach it's joa n n e h o l l e n b a c H first thing got me actually I'm
sorry how was that that Jo Jo I'm sorry spell your first name again j o a n NE all one word got We Make You Famous and put you in the resolution h e l l n b a c h ho
o it's okay l [Laughter] h o l l n b a c h okay your address my address is 107b 1 Avenue in Kate
may say what you like okay thank you um firstly thank you for the opportunity to make a com this also thank you for the work that you do for our community and the service do the city think people realize how difficult it is decision
hard to say but I'm here to hopefully ask you to yes in that I support the application that is before you I am the neighbor when I look out my front door um and our backyards share I see or will
see um this structure that they are asking for so I'm here simply to provide support and my confirmation for this so thank you very much thank you and I'm going to amend what I said to the board because honestly I thought that Mrs hollenbach was from
109a um but I apologize I will get I will submit the signed approval from the Condominium Association I apologize if it did not come over with our original resolution it will be submitted as a condition of approval we have it it's in my office is there anyone else within 200 ft that wishes to
speak anyone Beyond 200t feet close to the [Applause] public any final statements or no we appreciate your time what uh Mr Mrs bloomenthal are trying to do is wow what we consider to be kind of a modest
revision to make their property uh more usable um and and feasible for their what they need at this point um we hope that the uh mitigating of lot coverage um will uh be a benefit to the property
as a whole um and we'll you know offset some of our request we appreciate your time um I don't want to assume but the 109a is the person attached okay okay any other board talk the
um the motion I'd recommend being made but how you vote is up to you is a motion to Grant the variances requested by the applicant list 1 through four on page three subject to conditions and waivers described by the board engineer
on page two and the conditions outlines 1 through 12 on page five with additional conditions the applicant will submit the consent of the owner of 1098 First Avenue this is a expansion of a non-conforming use so the applicant
needs five out of seven votes in order to succeed if you're going to vote now please articulate your reasons carefully so I include them in the resolution I'm sorry Rich you said that it would include the approval of 107a
right that is condition 13 okay 10 109 I'm sorry I'm sorry 10 we heard from 109 yeah that was mine 107 I make the motion I'll second Miss Sheen motions Mr venudo
Seconds Mr Lewin yes Mrs Notch yes Miss Shen yes Mr Walsh yes Mr Jagger yes Mr venudo yes Mrs wner yes thank you thank you you very much thank
you thank you you taking off oh right right lucky our next application is Tom Harrison 1000 New York
Avenue we have two board members that need to recuse themselves who would that Mr Walsh and Mr leadwin will go into the audience oh okay so
I didn't see hiding there I can see um and if you want me to draw the lights down or anything anything just let me know you guys it's up to you I don't okay it's up to the board M chair you're the deci you okay with the lights on I oh I have a printed copy for
everyone to this is more for the audience so I will hand this out in just in just a minute good evening ladies and gentlemen of board my name is er Lama I'm an attorney and partner green is go green is go there we go all right good evening everyone
ladies and gentlemen of the board my name is Erica lazama Simonson I'm an attorney and a partner at the law firm of Barry curado and grai I am here today representing Pamela and Thomas Harrison they are the homeowners of 1000 New York
Avenue now I do have a paper copy for everyone I have pre-marked this already as age one thank you the people in the audience can you see the screen okay all right I will say standing for purposes
I'm sorry I need one I just gave you my copy as well she needs one here you go thank you I wanted to hand you the whole thing passing it down broke protocol
all said everyone has a copy okay excellent all right we are here today because of a notice of violation the Harrison received back in October of 2024 this violation states that the
second floor of their garage is a living accommodation for the benefit of the board and the audience these are photographs of the second floor of the garage in question here this photograph is taken with the back to the stairs this is immediately to the left
of that Arch if you see the corner right there I have a point to the left that is the wall immediately to to that side and it's equally shifting to the other side you can see that there's
a wall and that's where it's cut off this photograph is as if my back was to this window and that opening right there leads to the stairs going down to the first floor of the
garage that is the second floor of the garage key features I'd like to point out of this room it's only 282 squ ft there is no water connection no kitchen no closets no toilet no shower no sink
there is no outside shower hookup there is no additional room off of this primary single room this room what you see is what we have there is no other room branching off of this uh subject second
floor a little bit of history about this property this property received an HPC certificate of appropriateness on February 22nd 2021 there are no outstanding inspections or approvals they have
received fire Plumbing elevator have received all of these approvals the only thing outstanding is this one violation regarding the second floor garage now before we get into the the main issue of this case I do want to
introduce the homeowners here as well as their contractor and I'm sorry I'm standing behind you Pam and Tom but uh Pam would you please introduce yourself to the board just your full name but before that please uh the board could swear her in swear everyone in our board engineer
remains under oath each you each of you swear or affirm that you will tell the truth don't truth nothing nothing but the truth so we got yes okay Pam I'm sorry I'm speaking behind you but when did you purchase 1,000 New York
Avenue we purchased it in 2017 I believe could you please describe to the board what your vision was for this property when you purchased it well we're not new to Kate may we started vacationing here with our family
in 1988 so and then we fell in love with Kate may we bought our first home here in 1992 so we've actually been coming to Kate May for about 30 s years we've
owned our home here for 33 years um we raised our children spent Summers here every year it's very special place for our
family um we have three children we have 10 grandchildren who also enjoy Kate May our children bring their children here and we love Kate May we've talked often
talked about how we would like the possibility of of having our house in Kate may as a permanent as our permanent residence in Kate may we currently live in um armount New
York um so when the when the opportunity was became available to purchase 1,000 New York Avenue it was an opport opportunity for us to design a house that we could
use as a full-time permanent residence should we just decide to do that um our house now is um more of a summer Cottage not even in coat closet to store any winter clothing so we designed the house
with having a permanent residence in mind perfect thank you Pam Tom could you please explain what this home means to you what the vision of the of the Reconstruction of 1000 New York Avenue means to you sure thank you very much um
in addition to what Pam has said when uh we bought our first property it was my desire my dream that eventually at some point in time we could literally have the entire family
here which as Pam said is three children and 10 grandchildren at one time so that we could enjoy the holidays we can enjoy Summers as much as they could get here and so this property really was the
answer to that dream for me and with this property we can have all three children and 10 grandchildren here and as grandchildren are they happen to be noisy from time to time they happen to be running through the
house and that's ort of the beauty of what Kate May offers to us it is a place to bring the family together as a unit in one place that we all love and that they grew up in in the
summertime perfect thank you Tom sure thank you Tom so as you know we're here today because of the issue regarding the second floor of the garage yes could you please explain to the board what was your vision for the second floor of the garage
sure thank you so it's always been my vision to have a place here in Cap May because we have three children and 10 grandchildren a place where I could call
my own a place where I could Escape do the writing that I do do the thinking that I do um I am retired at this point in time I've been appointed to a number of boards of companies and a nonprofit board
most of those boards meet by zoom and so because of the nature of that I need a quiet place in which to work I certainly need a quiet place in which to write and to think because I am a published author and I have one more book that I'm
currently thinking about um and so private a private place for me to escape so that I'm not negatively impacted the rhythm of the family that's going to be in the proper house so that I'm not
interfering with them and so they're not interfering with me because it's really difficult to have a zoom meeting or to think and write a book when there are three five seven 10 grandchildren running around so it's always been again
my dream to have this I'll call it a man cave for me to go to so that I'm not interfering with the family and I'm not interfering with Pam and her moving through the house as well that's been my dream since day one
with this property thank you Tom sure did you share this vision of yours of I think you called it a man cave with Ken man your contractor with your interior designer with Joe Ross your architect did you share this intention with them
well the answer to that question is yes and no Ken's known about it from day one our interior designer has known about it certainly since day one we had that conversation but I didn't have the conversation with the architect because
we've actually never met the architect everything that we conveyed to our designer was conveyed to Mr Ross the architect so indirectly he knew what I wanted to do but I didn't have that
conversation directly with him okay did you have any intention of creating a living accomodation above the second floor of your garage absolutely not Ken you were the contractor on this project correct yes okay how did you
first come to meet the Harrison I've been a contractor GC um for about 25 years since about 2000 um I've done probably somewhere between 40 to 50 what I would say called new homes
or complete restro mods where I would call this job a restro mod where we take an older house and bring up all new wiring Plumbing that type of stuff um I met the Harrison I believe in 2005 I had done a project um for the
designer Mrs um buet I had done work on her house and um they were working working with um Sandy and I think that's how we were introduced that's on the house that they they use as their residents right now their original one the summer Cottage and I redid that one
in about 2005 I think that's right about 2005 did the Harrison ever ask you to create a livable a living accommodation above that second floor garage no no did they ever consider or have the intention to do so
no did you construct the second floor with any kind of water hookup yeah is there even an outdoor shower connected to this garage no okay thank you Pam you have another property in the R2 District that's 105 New York Avenue
correct yes we do okay this home when was it constructed I'm not sure what year it started but the construction was finished in 2017 okay when the construction was done in 2017
did zoning inspect let me back up let me strike that does this property have a detached garage with two floors yes it does could you please describe the features of the second floor of the garage on at 10:05
New York Avenue well that I can ask it another way is does it have water connection no okay okay it has no water connection has any kitchen no closet toilet shower sink or
outdoor shower no okay when construction was completed did zoning come to your home and inspect this principal home and the second floor of that detached garage yes they did okay were you cited for any violations
of having a living accommodation above that garage no none where you issued a certificate of occupancy yes is this an accurate depiction of the second floor of 105 that is it yes okay is this if I'm standing here this
my my wall is to the back where the stairs are they're directly behind me is that the left wall I can't tell if it's the left wall yeah that's the left wall it's the left wall that angle that you see on the far right is that that Peak that's kind of
the triangle it's the edge of that triangle correct yes yes okay is there any room coming out of this one single room in other words is it just this one room or are there other closets or additional
rooms branching out of this main room it is just this main room with stairs leading up from the from the lower garage do you have happen to know what the height of the ceiling is on this room those that that particular one yeah I would say
it's probably somewhere between seven and 8 ft maybe most thank you it's got to be the the whole garage has to be below I believe it's 18 ft so it's you know you have a 8ft ceiling in the garage four Joys it can't be much I'm 5T and it was pretty 5 fo three and it was
there was some distance so it'ser just to reiterate though Pam zoning came inspect did this and gave it a stamp of approval you got a COO yes when was that 2017
okay this is just a reiteration of what we just covered I was there I was actually there when the zoning person came okay what how was this space used back in 2017 or from any that point until
20125 how has this space been used well this property um is used by our family members and they have small children so sometimes the children play there as a play room you can see that there's toys there um there's also from
time to time been various pieces of exercise equipment there that they've gone out there and they've used it to exercise that's primarily the use you have never had anyone live in that second floor correct no
so ladies and gentlemen of the board what we're dealing with today is this zoning violation that was issued by zoning officer Bruce Brittain on October 9th 2024 there are two violations here on this letter one is the one we're focused on today that no detached garage may contain living accommodations the
second is the retaining wall as soon as we received this violation and we found that the retaining wall was within the right of way the Harrison's immediately address this it is now conforming and is no longer an outstanding
violation so as I stated the only one we have left to deal with is that whether the detached garage contains a living accommodation I took the liberty of also pasting down here living accommodations and I'm sure you've seen this definition before I will just read it into the
record though living accommodations or kitchens bathing facilities sleeping quarters toilets and toilet facilities or any other improvements intended to support human habitation as you've heard from the Harrisons the 1,000 New York Avenue
detached garage is only 282 Square ft no water no kitchen no closets no toilets no breakoff rooms no sink no outside shower they have already had an
identical setup at 1,05 approved by zoning however I anticipate the board is going to bring up Mr Ross's architectural plans and what he stated in his plans of not for
occupancy what this means now is the Harrison are no longer able to use the space above the second floor of their garage that is not a living accommodation what the architect did and
he could have done it in error was prohibit and now limit the use of his own client space on their property I'd like to make clear that architectural plans do not bind the owners the architect is not an attorney
he is not a judge he's not a FactFinder he misinterpreted the zoning code because occupancy is not noted anywhere in the definition of living accommodations he does not have the ability to limit a client's use in their own home and it isn't directly in
contrast to what his clients the contractor and the designer all knew were Mr Harrison's wishes and that was to be able to have a space to write on that second floor at the end of the day the zoning ordinance overrules an
Architects interpretation can can I tell my personal opinion is that it's irrelevant what the architect called it I'm sorry I don't see the relevance of what the AR necessarily called it it's not relevant I agree that may be
called it a bathroom it doesn't make it a bathroom agreed no this board's going to determine whether that is habitable space or not not the architect so I wouldn't worry too much about that I I don't see the relevance I mean the board may feel differently but the architect called it could have called it anything
we have architects all things all the time storage and we know it's a bedroom so you know I don't know perfect so then you go into my next Point uh Mr King so habitable I believe you called it habitable space habitable
area I I didn't catch the definition but let me you're you're making your I'll do my thing when I do my thing got it all right so let me go into that definition living accommodation is the term before the board it is in the
ordinance it is in the definitions we've already seen that right here in living accommodations at the very end it says intended to support human habitation human habitation is not
defined in the ordinance so I anticipate the board will try to find some kind of common word or common meaning and that would lead to habitable area habitable area is not H human habit
it's not the same term and it's not human habitation not defined so there's a filler an attempt to use habitable area habitable area then States an interior finished room enclosed by a floor ceiling and a permanent weather resistant walls which has a minimum floor to ceiling height of 6 and 1/2 ft
which is intended primarily for human occupancy so human occupancy has come into this picture through a 1 2 3 4 degree of separ operations we have gone from living accommodations to human habitation which
is not defined in the ordinance to habitable area to then human occupancy which is also not defined in the ordinance by going so far three degrees of separation we have removed oursel from
the original intent of that definition of living accommodations we know occupancy was never contemplated under the original definition of living accommodations which was amended in 2005 because we know of at least one property identical
to this one at 105 that was approved there are others that were approved but unfortunately these folks could not be here today they are not in the area but we know that other second floor garages have been approved human occupancy was never
contemplated human occupancy does not mean you can live there if the zoning board wants to take into consideration that something cannot be used because it's a human occupancy there is a pathway to do that and that is to amend the
ordinance if the board denies this appeal because they find this is a space for human occupancy they have in fact circumvented an entire procedure where an amendment needs to be introduced first reading second reading public
comment that was completely taken off the table if human occupancy is supposed to be or desired to be under the definition of a living accommodation there needs to be an ordinance that reads that for human habitation and human occupancy I'd like to talk about the
chilling effects that will take place if our appeal is denied today I understand that Mr King noted that I shouldn't be too concerned with human occupancy and that our architect cited that and highlight I don't I'm not sure who highlighted it but it was in
the plans I'd like to point out that a zoning decision is left to the zoning board the zoning board cannot delegate any responsibility or statutory authority to
an architect or another professional and say here your professional said it's not for human occupancy we have to listen to to them now it is up to the zoning board to make that decision if the zoning board does not approve our appeal in effect it has now
made every second floor Garage in the R2 District not allowed without the introduction of an amendment to the ordinance that is arbitrary capricious and unreasonable on its face there is a process to include the term human
occupancy in the definitions of the zoning ordinance and it's through an ordinance amendment by denying this appeal ladies and gentlemen you are now stating folks of the R2 District you can't even step foot in your upstairs to
read a book you cannot step foot upstairs to play an instrument you can't step foot upstairs to be on your phone to find some quiet time you have created I respectfully say this non-conforming uses in the R2 District without a zoning
Amendment this space has already been approved 105 has been approved there are other places that have been approved unfortunately like I said the homeowners could not be here today but to deny now this appeal would
be arbitrary and inconsistent with the precedent made by the zoning board and by what has been done in the past the chilling effect that will happen across the City of Cape May is severe there is a method and there is a
procedure in place to address human occupancy but that does not mean living accommodations the impact to the Harrison as I've already stated he cannot step foot up there for a moment of Peace for a moment to write his book that he's currently working on
he cannot play on his phone he cannot play an instrument if he's so desired but the chilling effect that this would create is severe there is only one question before the board and it is not is the second
floor of the garage a living accommodation or suitable for human occupancy that is not the question before the board the question before the board is is the second floor of the garage a living accommodation
only I respectfully ask that the board grant our appeal of the zoning officer's determination and issue and direct the Construction office to issue my client a final certificate of occupancy absent any other questions
that is the summation of my case thank you very much Council I do have a question for you if I could please um excuse rich could you just bring that mic advantage of just having dealt with this a month ago so I inadvertently know more about it than I did a month ago um
can we just go to the definition of living accommodations it says kitchens bathing facilities sleeping quarters toilets and toilet facilities or any other improvements intended to
support human habitation okay aside from kitchens bathrooms and bedrooms what else is in a house so to me this is saying kitchens bedrooms bathrooms and any
other room that would be in a house that's a living accommodation so what we can't have is people putting rooms in their garages so I don't I don't think we have to go anywhere other than that list to find the answer to this to to this
question it's sleeping quarter so the running water thing that knocks out running water cuz sleep records don't have running water so I think that the purpose of this is that you live in your house and you Garage in your garage okay but you don't live in your
house and live in your garage and sure you can stand in the cold in your garage and work on things like my dad does and you can you can do all that and you can store a bunch of stuff upstairs in your garage you can do all that but what you can't do is have rooms in your house and
rooms in your garage because K May is so dense and it's at such a premium that if we allow that we will have bedrooms above every garage it'll just be put bedrooms up there and now because people go inside and go to the bathroom and it's a it's a $600
bedroom a $600 night bedroom above the garage so I believe this definition is intended to capture the rooms and the type of rooms that are generally found in a house and a children's playroom is one of those things that we can't list every kind of room we can't say
bathrooms kitchens bedrooms living rooms dens writing rooms so it's other living accommodations and our zoning officer goes and he he looks to other definition about Hab habitable space and all that and he looks that is there dry wall can it be temperature controlled things like
that that make it seem that make it clear like because maybe there's something part way but that's that's what's going on and that's what this last resolution Al that was an out building so it had another layer of complication because they don't they don't just have that definition they have another layer of definitions for an
out building um because out buildings are really supposed to be things you find on a farm um that's kind of the out Building Concept so so I mean it's not that your argument isn't good and persuasive I just want you to respond to
to to that concept I respectfully disagree that I do sorry let let me just answer really quick kind if you don't mind I agree that all we have to look at is this definition we don't need to look at
human occupancy we don't need even to go two three four degrees of separation going from living accommodation human habitation which is not even defined habitable area human occupancy that is going so far beyond the original scope of this definition that it becomes
arbitrary and capricious to go that far down and say because you occupy that space it's livable it doesn't become arbitrary and cous it's more thorough so you certainly can go look at the other definitions to help inform this one but I think that the board has come to the
conclusion and we did it last two weeks ago I think it was this board it was a planning it was this Bo right um that we want people to live in their houses and garage in their garages and out building in their out buildings and what we don't want people doing is moving their living
accommodations into their garages now the fact that maybe that that had happened previously I guess it happened for these folks if we had permitted it be if we had denied it before would you be arguing well you should deny it now no the the fact that it may have been done wrong
before I can't speak to that I don't know all the circumstances and maybe it was done wrong but right now I think this board and and they'll decide I'm not a decider but I've just sat here with him for three hours the other night doing this exact similar issue and I've got three pages of decision making here
so I have some idea what's in their head that I think that's what's going on so when you look look at that definition of living accommodation if they didn't want people to have their rooms of their house out of their house it's hard to phrase it
differently than they did I mean that seems to be a pretty good catch all don't you think no I don't what's the difference between this and a bedroom go ahead want well let me ask you this what's the difference between what's up there and a bedroom that's not for sleeping what we have in this case and
it's not a living accommodation if this G I'm sure he's very spry okay but if he's writing and he gets a little tired he has a little couch next to his writing desk takes a little nap but there is no couch well how do we but let
me let me stop there really this gets very dangerous there is a quote by a judge from 1600 that says a man's home is his castle to take away a man's right to use
the second floor to his pleasure to even be on his phone for a moment of quiet that infringes upon a person's very right to enjoy their home that is a dangerous precedent to set it's been approved in the past and I I hear you're
saying well that was wrong that's arbitrary there was a zoning officer that already looked at this space and said this is approved that is not consistent no with what's before the board he's no longer with that does can can I just speak real quick um in
reference to this is this temperature controll this second floor well the the whole garage is temperature control because um you have you're going to have a restored car in there and you have to have okay so I'm just kind of talking to I've sat in front of this board on 301st
Avenue I know it's not in the same zoning but you did say Off K May is not supposed to have things with garages and we had an approval in the zoning board to put an art studio acclimated above a historic
garage where we took the roof off the garage and we went in front of HBC and the zoning board and it passed why' you go before the zoning board what's that why were you before the zoning they came in front of the zoning board and they didn't require us to get a variance they all they required on Mr Milligan to do
was basically sign a letter that he wasn't going to use it for occupancy basically is what they told him which street is that on that's number 31st Avenue there's one right to the right of it and one to the left of it three garages in a row all have areas above them one's uses I think a playroom one's
uses an art studio I'm not sure what the other one is and the other one the gentleman I think sat on the zoning board or one of the boards at one time I've also done other projects and I this is a what I would call a complete Resto mod and when you're going in front of
HBC they do not want attached garages and the Harrison try to keep this whole project within a realm of trying to keep it down to a certain size so it doesn't look like a monstrosity so it looks like a period piece and I think they did a fabulous job and one of the things they don't want is attached garages and above
attached garages lots of times people have these low areas and they might put their office and people they make you do separate garages and they do these rooms above them and we've been doing these things for years it's not like it's not just them I mean everybody has them and it's all it's like an art studio
playroom some of it storage some of them are finished some of them aren't finished but that's kind of what it is because they don't allow that space or their on those restored houses to have those garages attached to the house they want them separate and that's kind of keep the period piece and so forth so that's really how that all came about
now listen we've had inspections on all these other properties and there's a lot of other contractors the same thing and and I understand from the zoning from Mr Brittain who's a zoning officer I understand that he's he's the new guy he comes in he's interpreting how it is I understand and I understand we had other inspections from other zoning officials
but I sat in front of this board on number 31st Avenue and we got approval you said 31st Avenue number 30 30 I just want 30 30 First Avenue okay Mr Milan Joe Milan Joe and Lori Milan when was that I believe it was
um 2012 maybe maybe 2012 I've been here nine years I I don't 2012 so you're saying if it was a attached garage they have a detached garage I'm just saying you're saying if it was a detached garage then he could have his space above it but you have a house right now that you have a finished attic a Happ
attic so he could have his man space space up in his attic if he wanted to there's enough rooms in the house that there's another place for him to have his man space let alone in a what I'm saying is is I built redid that house it was a non-conforming um historic house
it was like a little cottage we I redid the cottage in 2005 I believe the house I built the house in 2005 it had an old Square garage very similar to one of the ones on Harrison's property okay it had that it was a one-story garage we came and got
permission to put a second floor and we had to keep it within the 18t High to put as an art studio because Mr Milligan is an artist he he has stuff in town here all the time so I mean and we came in front of the board for that let me let me just thank you Ken let me just summarize
this if the board wants to prohibit human occupancy it can do that through a proper procedure by amending the zoning ordinance there is a procedure there's a first reading
there's a second reading there is public comment by denying this appeal you are telling people who have second floors for man caves for art studios for places to read for places to write to say you don't have that right to use
that anymore even though they already got a CO that is arbitrary and capricious that is going to be a blanket wide impact across the R2 Zone and across the city of cape May that is dangerous ground and I don't mean to to
be disrespectful when I say that but there are properties that have CEOs issued for them they enjoyed the second floor of their garages and now the zoning board is saying that's not allowed without an amendment in place if the zoning board wants that to be talk
to the council about it have there be an amendment there is a process for that but that is not in place today I just disagree with you that's all I think our what we have right now says that to a point that says that you don't you don't have another room
outside of your house like Mr King was saying that's how we interpret or we have been interpreting our our zoning roles having another room outside is very different than having something with a living accommodation respectfully but it's a bedroom I the bedroom's in
the list but how's that any difference than just the separate gar tell me that how's that any different you live out I live in my garage probably a third of my life I get but that's the but that's sort of the point is so what makes use the garage as a garage you can still do Workshop stuff
in there but once it starts getting finished and and and is heatable and is sealed and looks like a a place where you would sleep or start like a playroom or a living room it's a believeing combination it's not an evil thing it's not it's not prohibited it just means
that you might need a variance for it or that it's got to be in inside the main structure and there may be good reasons to to Grant variances for that people may come in and it may be a really old historic structure and be very small and there's a huge garage and it's space for some reason and maybe the board
exercises its discretion to permit it but as a matter of right we're deciding whether the board's decision that they're making because they didn't bring it to us as an interpretation necessarily we're supposed to review whether the um zoning official has
committed an error is did he make an error in determining that this space violates this ordinance let me let me that's decision that for I hear the you had some pictures up original pictures up that
had no carpet in them then the other pictures you show have carpet in them okay but that doesn't make something livable you can't live in a place the UN carpet or uncarpeted that's the one that that's what is this that's the one that's was already approved
that's at 10:05 that's already approved Street that's already approved okay I'm sorry I thought it the this is already approved and they have a CO this has been allowed if and and I'm hearing the list I have something drafted by construction and Zoning non-habitable detached
garages which non habitable again is not in the definition no finish flooring no HVAC walls and ceilings must be bare stud Joy insulated no sheetrock fine but that should be through an amendment of The ordinance
I'm Sor that is not clear I believe it's through the Cape May City Mr Britain drafted this but I'm also hearing well you have carpet there's do you have HVAC is it finished fine but that is something that should be amended
in the ordinance because it's already been approved it's been approved here and it's been approved in many other homes across the district it's dangerous precedent to now go back and say this is not approved without an amendment to the ordinance that is not within the zoning board's
purview that is through the council through an amendment that which the zoning board then enforces you understand that when things are approved by the zoning official unless someone appeals it it doesn't come to us so it's whatever
happened when they let when they approv these things those are things that were done by I guess if to testimony is true we have no real documents about this I I don't know that that was there when it was approved there's testimony um we don't see the things that are approved by this zoning construction Department
we only get appeals if they come here so I have to tell you I've been here for nine years and I I've never I haven't seen this board act contrary to what they're doing tonight it may have happened but I have not seen it in nine
years so what goes on out out there we can't speak to it only when it comes to us so it's only meaningful to us if we have in the past read this differently I guess that would be relevant but the fact that it got passed as a for a CO at
some house that never we never even saw it's just not that meaningful to everybody here with this group as far as I recall has always um looked to the height of the ceiling the finish of it temperature control they've done all these things because people try to trick
us a lot um as to what's storage and what's living space so we've always been pretty consistent careful about that there's no trick but if I came in front of the board we deal with it we deal all time I did not mean to say they tricked us architect may have if I came in front of the board and you guys approved a
second floor Garage on historic structure I say this is actually the appropriate board to approve that kind of thing because you can't go pull a building permit for because it's not a permitted use without coming to this board and I came we came here and you approved
it because specifics to that specific property in case we're not blanketly saying do these everywhere but we didn't we didn't have even a full variance on would have had to come here exactly we came we came as a they asked us to come
from the board and we and we came it was a Harris slack was the the architect on that who Harris slack was the architect on that I'm not sure you can request well I mean no one's ruled yet okay but I mean we have a four kind of hold on hold on get you
somea but you could still apply for a variance and and and may or may not be granted but I mean even even if you do lose tonight I'm not saying you will you may win I mean I not a voter I just I know where we I understand I just don't know what variants we would seek if it's
not a living accommodation let me I I hear you saying well it's a bedroom once we say it's a living accommodate respectfully once this board says it's a living accommodation until the judge overrules it that's what it is so you can appeal that or you can try to get a variance but I'm not that's all I'm saying I mean you can disagree sure and
you have the absolute right to disagree you know sometimes I disagree what the board does I mean I get it like we can't all we can't all agree I don't want to speak in circles I think the board has heard our argument uh I just want to remind the board the
decisions cannot be arbitary precious or unreasonable arbitrary would be if this is denied it's already been approved and I hear what you're saying Mr King well this doesn't come of for us but your zoning officer who goes out to enforce the zoning laws is approving
them If you deny this appeal the definition of living accommodations has been constru to now mean human occupancy because a bedroom is what I'm hearing is if you sleep there because I sleep somewhere it
doesn't make it a living a sleeping quarters or a bedroom it's just somewhere where you slept for a moment but that doesn't make it a bedroom or a sleeping quarters capricious because there is no Amendment to the zoning ordinance allowing the
board to do what it may do in terms of denying this appeal there is no amendment to that ordinance the right Avenue to do that to get clarity because this is not a the four degree of separations from living accommodation human habitation
habitable area human occupany which I've seen in the resolution is so far from the original definition of living accommodation I saw the resolution Mr King that you mentioned and there was a road map to get to where we got to human that's that respectfully that was an out building
and an outb building uses different language than the living merely the living accommodation this is a garage so it's understood just the living accommodation analysis appeared to me to be the same uh so I asked the board to rule on what's
before it now and if there's any changes that need to be made to CL be clarified to include no hfac no insulation no sheet rock no finished flooring which is not clear from the living accommodations definition that should be
through an amendment that should be a conversation had with the zoning board and Council that is the correct Avenue so absent any other questions that is our case thank you very
much we'd like to have um the zoning officer Bruce Brittain come up and speak please hello hello um um I mean it's pretty straightforward I think uh I do believe the pictures you showed of the era aren't accurate though they might
have been taken while it was being done but that's not what I saw the top of the steps is a finished mahogany door the the floors a finished floor everything's finished it wasn't half done like you showed in the pictures so it's basically
the the the same you know it's it's everything else and in my opinion it's it's it's living accommodations um the fact that you're going to use it as an office or or whatever you're using it for that's living
accommodations that's not storage um that that's pretty much it for me any questions yike M yeah I'm sorry just grab a microphone from you okay Mr Brittain just to confirm is there a
water connection at this property is there what a water connection on the second floor no not that I saw okay was there a Kitchen nope did you see a stove no sink no closets or breakout rooms no
any shower nope any sink any Central back I'm a sink a sink did you see a sink no sink okay in the definition of living accommodations does it say you can't have
HVAC um I don't know the exact wording of that last sentence of any other elements that contribute to human habitation that's HVAC you can live somewhere if you don't have HVAC correct sure you can yeah so you don't necessarily need to have bring
in a window air conditioner you could also bring in a plugin electric fireplace I mean there there's lots of things you could do I thank you Mr Brent very much thank you thank you okay we're gonna have report okay
I'll summarize my December 30th 2024 review memorandum for this application this is a project located in the R2 low medium density residential district this is an appeal from the decision of the zoning officer um the first part is my completeness review and
that's just a section that's that requires uh what what has to to be submitted and I did um believe that this is a complete application um on page two of my report um I pull the section out of our code um that deals with the appeals procedure um
sections A and B are are typically how the applications are submitted um C I think is the appropriate part just for you to focus on is the Zoning Board of adjustment May reverse or affirm wholly or in part or may modify the action order requirement the decision interpret
ation or determination appealed from and to that end have all the powers of the administrative officer from whom the appeal is taken okay um the the following section um just details uh what the zoning official cited and
they've already posted that up on the on the screen um and there were two violations they've essentially said that they will address the retaining wall issue um what they're really appealing is section 52555 A 3i which says no detached garages may
contain living accommodations um so right after that I I pull the definition out of our code uh for living living accommodations kitchens bathing facilities sleeping
quarters toilets and toilet facilities or any other improvements intended to support human habitation now I'll give you my opinion on this um I I agree with with um our solicitor that is not meant to capture
all of the names of rooms that could be in a house or you know that support habitation dens offices playrooms you know things that they mention that are part of this are all part of that and that last part of that or any other
improvements intended to support human habitation is the catchall like what you interpret as being living accommodations um so that's that's for the board to decide um but I believe that a playroom or a place to work and
write or a man cave could fall in under that category but that's that's the board's decision um I also pull out what and we've just done this a couple of times I pull out the definition of habitable area um our
ordinance is quite clear that we we have controls on habitable areas on um whether it's in a garage and I I'll go into that in a second but um our floor area ratio is very important to the city
um as as a determination of the massing and the use of a specific lot and how it's controlled by that definition so that definition is an interior finished room enclosed by a floor ceiling and permanent weather resistant walls which
has a minimum floor to ceiling height of 6.5 ft which is intended primarily for human occupancy so that has been a very determining factor a very important factor this board considers it all the time when we deal with these floor area ratio variances um in in dealing with
this now back to the garage issue um one thing I didn't con I didn't indicate in this because I didn't know where this discussion was going but I think it's pertinent um our definition of garage comma private I'm going to read that into the
record a building or part thereof accessory to a main building and capable of storing at least one but not more than four or less automobiles incidental to the principal use of the property with no provision for repairing or
servicing such vehicles for profit and which is not intended designed or used for human habitation and does not contain living accommodations so that that was not brought up but that's our definition of
of private garage now section 52555 a3i says no detached garage may contain living accommodations the following section is our section that controls other outbuildings so the the
the typically the two accessory type of structures that are permitted accessory to detached dwellings or or uh duplexes um have Provisions that no detached garage may contain living
accommodations and then it says no outbuilding um may be used for human habitation and and can't contain living accommodations that's paraphrasing because I didn't pull it up but that's what that the other out buildings has another clause in it um that brings
another definition into play but I believe it's my opinion that the code is quite clear that these accessory structures are not intended to have these habitable areas in them all right so I'll continue on with my
review um I think the last part of this just U section 591 17A um your power is to hear and decide appeals where it is alleged by the appellant that there is an error in any order requirement decision or
refusal made by the building inspector or any other administrative official or agency based on or made in the enforcement of CH 525 comma zoning so that's a summary of my report and the applicable sections of the code
I believe that you're making your decision under and I'm happy to answer any questions the board has okay thank you I'd like to open it up to the public within anyone within 200 fet that wishes to to
speak anyone Beyond 200 ft that wishes to speak okay it's closed to the public so we are voting is there there's no do I do a closing or oh you can do whatever you like okay right you can do
a closing right yes yes ma'am okay all right I hear the engineer I hear the comments of the board members I ask that the board look at precedent look at what's been done in the past your zoning officer I understand
he's no longer with us has made determination and has approved spaces such as this on many occasions to say well he was wrong that's not enough because now sudden change the way a zoning board
decides if there is something that the board has disagreed with that the last zoning officer did that should be clarified through an amendment to the ordinance otherwise going from precedent is arbitrary and capricious
it's arbitrary certainly because it's random they've now supon decided to go a different direction interpret it a different way and now takes away the right for many dozens of your
constituents right to use the second floor of their garages the push back is going to be severe I ask that the board continue with precedent if it needs to amend the
ordinance to include the No agac No finishing it can do so through an amendment with Council but again I ask that it follow what it's been doing follow what its last zoning officer has
approved because deviating from precedent and what's been approved taking away second floor garages from R2 citizens is arbitrary andc precious and unreasonable thank you thank you
just so the board just to clarify for the board this is an appeal from a decision by a zoning officer year to determine whether or not he made an error in his determination although this isn't a inter inter interpretation as that is classically discussed in the ml
obviously you are going to interpret your ordinance in a way to to determine whether your zoning officer uh made an error um he is the zoning officer so he deserves some respect uh but ultimately
I I believe you are the board that is charged with determining what the ordinance means and whether your zoning officer did it correctly or not so um I'd like you to have an open mind and a
clear mind consider the good arguments by Council who's done a very nice job um and decide whether or not you think it was error to decide that this Improvement above the garage um is
not permitted because it is a living accommodation as you understand the ordinance in total so the motion I'd recommend being made so everybody looking at me is we will say um this is always a little confusing but the motion I'd recommend
being made is to either you're either going to say affirm or reverse if you say affirm it means you agree with the zoning officer if you say reverse it means you're reversing him and approving him okay so affirm or reverse I'm going try that
this time right so the motion is uh so there's a motion someone make a motion the zoning officers determination make a motion to vote on the zoning board zoning officer's recommendation a
second okay missan motions Mr bero seconds Mrs Notch affirm Miss Shen I affirm because I feel that the structure is designed constructed and intended as habitable
space it is temperature controlled the floors are finished um our our um definition of a garage is not containing any living accommodations I feel it's a living
accommodation I feel that it is not apartment because there is no bathroom but it doesn't mean it's not habitable the uh again it's temperature controlled it's comfortable for human and would be habitable area under the
code Mr Jagger okay um I'm going to um unfortunately affirm uh I do want to say that if I were back on the planning board again or if I were back on the U
City Council again I would probably vote in favor of getting you a variance because I I'm not but I'm I can tell you what I'm listening to is we have a board engineer we have a board uh
solicitor who clearly feels that the interpretation is correct I can see walking into a completely finished Attic in a above a garage you would conclude that it's a a living accommodation I get all that but I you
know in another another board or another Council I might go another way but in this case I have to affirm but I'm sure if there is an application for a variance you will approach it with an open mind either way correct either way yes Miss
Stevenson airm um I agree with everyone's statements to me tonight when it comes to our last meeting we spoke at length about what habitable space means and I agree with our conclusion on that Mr venudo affirm I think this
appeal is fresh our mind from last month and I don't want to appear arbitrary or capricious so I want to vote the same way I did last month Mrs wner I'm voting to
affirm our zoning officer's opinion I do think that there's room to look at this in the future um but this is we're affirming his
decision because he's following what our code says right now that's it okay ccil thank you good job good look for future application if everyone to look at the bills I ask hey if
you discuss that yeah it'd be okay no well well the thing is okay it BEC do we have a motion temperature control I'll make the motion to approve I'll make the motion to approve the payments
second thank you Mr venudo motions Mr Lewin seconds Mr Lewin yes Mrs Notch yes Miss Sheen yes Mr Walsh yes Mr Jagger yes Mr venudo yes Mrs Werner yes thank you and if
everyone feels that they have a few minutes of time um Tim is our liaison with the land use and Development workg Group for the zoning board and he attended the first meeting and he just wanted to speak
briefly I'll be real brief um first meeting was February 25th from what we deem the idea of the board is um basically to make sure that everybody's on the same page as much as
we can be the different boards but also one of the things they did bring up that I thought was important is that we should all I think have a copy of the master plan and maybe in decisions like this to really review the master plan and see if that can be some kind of guidance to us you know I don't
know what the master would say about this specifically but this is twice now we've run into this and I think we're going to see a lot of this um the interesting thing that they brought up at the very end is that Paul asked everybody's idea and
wants to start a conversation on what we want to see happen to Kate May if there's a disaster Hawaii lost that whole town Lina burnt to the ground California's had these terrible terrible disasters Kate may had a disaster burned half the town down back in the was 1890s or
whatever it was we're sort of I'm just saying this myself we're sort of living on borrowed time here it's a just a matter of time for we get whacked with the hurricane we get whacked with fire what do we want to see happen in case of something like that happens we get a fire and it burns from here to Congress
Hall do we want to rebuild all these houses can we rebuild all these houses nothing here is to code nothing is here to anything could be built you know just the they use it as an example the red houses un stocked in there you know how did they get rebuilt could they ever be
rebuilt what would happen to Kate May if we lost all this you know we couldn't put these houses two feet apart anymore um and Paul just wants a conversation to start everybody start talking about it thinking about it and come back the board is going to be four times a year and you know there's just sitting there
for a few minutes there's like a lot in my mind like yeah just there's nothing to code this building probably isn't even code the way it's supposed to be you know stairs know railings and you know little things like that you couldn't build this stuff like this and I think that was pretty much it
um oh I'm also going to send everybody an email um the new HBC chair is very concerned about the Water Survey that went out every we I think we all got in the mail and uh he I don't know why he's was on it but he's very concerned about
this and he would like everybody to really take it to heart and he sent me an email and I'll just send that out to you a copy of the survey and instructions about it and how he thinks it's important is that okay with everyone because they asked me too so
yeah yes do you want me to do it Tim or do you want that'd be great yeah I'll do it I'll send it out tomorrow okay the master plan is on the website or used to be I think it's still there right still there okay I I have Mo but I can if anyone wants a digital copy I can always
email them too you know what this tonight I thought it'd be great if you were like really familiar with it if you could I typically I typically will pull excerpts out of the master plan especially when we do consistency reviews and stuff like
that with with ordinance before the planning board um and and bring excerpts into my review memos um I don't believe the ordinance deals with this this is becoming a recurrent theme that we're seeing all the time so we're going to
have to address this at some point with Clarity in the ordinance or changing of the ordinance I feel like the applicants are sort of trying to play fast and loose with the difference between habitable space and occupant can we not do this I'd rather not revisit this issue
we made a decision so let's and that's it they we're going to meet four times a year and uh like I said he wants to get um everybody's like there really thinking that I think was the gist of this whole committee is to get people to think what is going to happen in case not to say when something
but in case something does happen if we had a major fire again what would become of the city what is people's idea of what they want the city to become in case it happens so we're all not sitting here with our heads stuck in the sand and isn't there a provision yeah yeah
isn't there a provision in the ordinance that allows you to rebuild what you had if it's demolished in in in I don't know I don't know no partial partial okay so if it's totally demolished then okay
gotcha I remember something like that I cover everything you were there that's all got motion to adjourn all in favor y thank you everyone I haven't figured