Planning Board Minutes
Borough of Kenilworth
February 9, 2012
Open Public Meetings Act :The meeting began with an affirmation of the Open Public Meetings Act.
Pledge of Allegiance:Lead by Mr. Lepore
Roll Call: Present: Mr. Lepore, Ms. Bogus, Mr. Picerno, Mr. Cuppari. Mr. Sica, Mr. Pugliese, Mr. Zignauskas, Mr. Murphy.
Approval of Minutes: Motion was made by Mr. Picerno, seconded by Mr. Sica to approve the minutes from the December 8, 2011 Meeting& the Re-organization Meeting Minutes of January 12, 2012 were approved. All in favor.
Approval to pay Recording Secretary: Motion was made by Mr. Pugliese, seconded by Ms. Bogus to pay the Recording Secretary. All in favor.
Communications:Mr. Lepore reported correspondence from the applicant New Cingular, notifying the landlord on the cleanliness of the area. Mr. O’Brien said they are meeting at the site next week.
Resolution: Application #8-11 & 325, New Cingular Wireless, PCS, LLC (AT&T),
20-60 South 31st Street, Kenilworth, Block 179, Lots 2 &3. Site Plan and Variance. A motion to approve this application to resolution was made by Ms. Bogus, seconded by Mr. Picerno. All in favor: Mr. Lepore, Mr. Picerno, Ms. Bogus, Mr. Cupari, Mr. Sica, Mr. Zignauskas.
Motion was made by R. Picerno, seconded by Mr. Sica to approve that the application qualifies as a Minor Site Plan. Mr. O’Brien added to find that this application qualifies. Roll Call: Mr. Lepore voted yes, Mr. Picerno voted yes, Ms. Bogus voted yes, Mr. Cuppari voted yes, Mr. Sica voted yes, Mr. Pugliese voted yes, Mr. Zignauskas voted yes and Mr. Murphy voted yes.
Approval for Minor Site Plan Application #329
Motion was made by R. Picerno, seconded by M. Bogus to approve Application #325, contingent upon the stipulationsfrom the Planner and the Engineer. Roll Call: Mr. Lepore voted yes, Mr. Picerno voted yes, Ms. Bogus voted yes, Mr. Cuppari voted yes, Mr. Sica voted yes, Mr. Pugliese voted yes, Mr. Zignauskas voted yes and Mr. Murphy voted yes.
Mr. David Cunningham, 132 South 23rd Street, is appealing the denial of a zoning permit issued by Mr. Robert Herbert, Kenilworth Zoning Officer. The permit is for an addition over an existing garage.
Mr. Cunningham was sworn in by Mr. Guiditta.
Mr. Cunningham submitted an aerial view (goggle) dated February 5, 2012 of the Quinton Avenue area including his property for the Board to review. The photograph was marked as ExhibitA-1.
Mr. O’Brien asked if Mr. Herbert would be making a presentation tonight and Ms. Bogus replied that he will not be present tonight. Mr. Lepore asked if we have a statement from Mr. Herbert and Mr. Giuditta said we have his decision.
Mr. Cunningham said he is doing an addition because he is having his first child and he needs more space. He said the plans were to go out 1 ½ ft. from the garage. Mr. Cunningham said he brought an architect with him if the Board had any questions.
Mr. George Toma was sworn in by Nick Giuditta.
Mr. Toma said he is a licensed architect in New Jersey and New York and has testified in Union Township, East Brunswick, New Brunswick, Milltown, New York City. Mr. Toma said he received his first degree from Cairo, Egypt and his first license was in New York State and now in New Jersey.
Mr. Toma said Mr. Cunningham would like to put a small addition above the garage. He said basically the addition was to extend over the garage about 2 ft. He said the existing garageis about 1 ½ ft. beyond the set-back line and the permit was denied. He said without the foot andhalf you would not any room because it would be an 8ft. room. Mr. Tomasaid the zoning forR2 is 5 and 5 except for the corner lots. Mr. Cunningham is asking for a waiver and it would be about 12 ft. above grade, the existing on the ground will remain the same. He said if possible to go the 1 ½ ft. that would be great and if not he would go straight up the wall. Mr. Picerno said he is already 1 ½ ft. short on side-yard set-back but he wants to cantilever the top to go out 15 ft. so that the air space would be at 12 ½ ft.
Mr. O’Brien said it might help to focus on the issue that is directly in front of us. Mr. Cunningham has asked to appeal the decision of the Zoning Officer. The Zoning Officer received Mr. Cunningham’s plans and said it violates the set-back to the street because he is on a corner lot. The ordinance allows you to build straight up on an existing corner lot, on an existing building but you cannot intrude any further into the set-back according to the ordinance. He said the very distinct issue in front of the Board, based up the application, is whether or not the Zoning Officer was right and said what you are proposing is a violation of the set back or that the Zoning Officer is wrong that there is no new violation of that set-back. He said that is the issue in front of the Board, the Board cannot grant you relief from an issue in the Zoning Ordinance, you have to apply for a variance for that. He said the narrow question you are asking tonight is “Did the Zoning Officer make the right decision in saying that what you are proposing further intrudes on the front yard set-back or not”. He said your discussion before the Board should be whether or not you are worsening that set-back or keeping it the same.
Mr. Giudittaasked Mr. Toma if he wants to build a room above the garage and does the garage encroach into the set-back by about 1 ½ ft. and is the addition going to be even with the wall of the garage or is it going to out further to the side yard? Mr. Toma replied that the drawing shows
it going out about 2 ft. further than the existing wall of the garage. Mr. Toma asked if he went above the existing wall would that be an issue? Mr. O’Brien replied if you go straight up from the current existing set back it is OK but if you go any closer to the street it violates the front yard set-back and that requires a new variance. He said if you are going to go straight up from the verticle level of the garage then you do not require a variance and that is the issue before the Board. Mr. Toma asked, even if the existing garage is 1 ½ ft. over? Mr. Toma said the discussion with Mr. Herbert was that they would need to back 1 ½ ft. into the garage. Mr. O’Brien said that is why he denied you and Mr. Toma said Mr. Herbert said he wanted him to go back into the garage 1 ½ ft..Mr. O’Brien said that may be a matter of interpretation.
Mr. Giuditta said he thought what the applicant wanted to do was just go higher, straight up and add a room but stay within the existing set-back of 13 ft. which is technically a violation but it’s not really enlarging, but now it looks like he wants to go out another 1 ½ ft. closer to the street. Mr. Toma said only if it is allowed, otherwise he will go straight up.
Mr. Lepore said that is the interpretation of our ordinance, if you go straight up with the existing garage, you are in compliance and the minute you go over, you have to come back for a variance.
Mr. Picerno said you are here appealing the Zoning Officer’s decision and he is not here to
make a statement butI think that what he did was he gave you a denial letter because you wanted to cantilever the building. Mr. Picerno said he would be right in that point by giving you a denial letter because according to the zoning ordinance you can’t do that.
Mr. O’Brien said you either uphold the interpretation of the Zoning Officer or you find that it is incorrect and state why.
Mr. Giuditta said to Mr. Toma that going beyond the wall is definitely a variance and he thought Mr. Toma was here to appeal a determination that said he wants to build a room above the garage and stay within the existing set-back of 13 ft. which basically violates the ordinance.
Mr. Toma said if he gets the OK to go straight without going for a zoning variance he will do that but based on the discussion with Mr. Herbert, he said anything before the 15 ft. he has to go for a zoning variance.
Mr. Lepore said even without seeing the plans he is sure that when Mr. Herbert looked at the floor plans he saw the cantilever and that is what he based the denial on. He said he is not sure because Mr. Herbert is not here.
Mr. Giuditta said that Mr. Herbert is pretty clear about what he is denying.
Mr. Toma said he is not disagreeing with the Zoning Officer that if he goes out he needs a variance, the discussion with Mr. Herbert was can he go straight up. He said if he got acceptance to go straight above without the zoning variance that is fine.
Mr. Giuditta said that is what we thought we were here for, if you are here to ask if you can go straight up, there is still a question for the Board to decide whether that is a structural alteration that is further encroaching on the side-yard setback or not.
Mr. Picerno said he was under the impression that he did not have to come before the Board and would just be issued a permit because he can go straight up even though it is in a non-conforming use.
Mr. Giuditta said if Mr. Herbert was shown these plans then it is clear a variance is needed and Mr. Pugliese said that we agree with Mr. Herbert’s judgment on the cantilever.
Mr. Lepore suggested Mr. Toma redraw the plans to meet the straight up version and then submit the plan to the Building Department.
Mr. O’Brien said it might be appropriate for the Board to issue an interpretation of the ordinance, the one that Mr. Giuditta sites, that would show the building straight up even though it is within the set-back, as long as it is not a new violation of the set-back and meets the ordinance requirement to go straight up and no further in.
Mr. Picerno said tonight we would have to uphold Mr. Herbert’s decision on the extension but at the same time advise what could be done to cut through the red tape at the Building Department.
Mr. O’Brien said the Board has to define what the ordinance says and the Board is not saying approve this application. They are saying they find the ordinance does allow the building to go straight up, even though it violates the set-back as long as it is not a new violation.
Mr. Giuditta said if the Zoning Officer is presented with new plans that show what Kevin just stated, he would have to issue a permit. He said the Board has to interpret the ordinance tonight to mean that if the building goes straight up and does not further encroach, that it is a permitted use.
Mr. Pugliese said we have to have two votes, one on Mr. Herbert’s decision and the other on the ordinance itself as we interrupt it.
Mr. O’Brien said it has to be a vote and official resolutionfrom the Board to the Building Department saying they have made an official decision.
Motion was made by Mr. Lepore, seconded by Mr. Pugliese to uphold the Zoning Officer’sruling as far as a new violation on the set-back. Roll Call: A. Lepore voted yes, R. Picerno voted yes, M. Bogus voted yes, A. Cuppari voted yes, M. Sica voted yes, A. Pugliese voted yes, C. Zignauskas voted yes and T. Murphy voted yes.
Motion made by A. Lepore, seconded by M. Bogus to inform the Building Department of theBoard’s interpretation of the Ordinance 197-62B(2). The Board finds that as long as theapplicant builds straight up, it is acceptable. Roll Call: : A. Lepore voted yes, R. Picerno voted yes, M. Bogus voted yes, A. Cuppari voted yes, M. Sica voted yes, A. Pugliese voted yes, C. Zignauskas voted yes and T. Murphy voted yes.
Mr. Lepore advised Mr. Cunningham and Mr. Toma to revise their plans to show the building straight up the garage and hopefully with the second vote that we just did, it will expedite things.
Comments for the Good of the Board
Mr. Picerno stated that the Board had asked Mr. Appicie, who is the owner of the liquor store, to clean up his premises and make it look nice. He said he went by his place and it looks superb with the stucco work and it is bringing a whole new light to the neighborhood. He said some of the other people in town may be continuing that stucco look to compliment the Boulevard.
Mr. O’Brien commended Mr. Picerno for saying that because one of the problems with any planning, and we went through this with the Master Plan last year, is that people say things have been like that forever and even though we have had all these plans and resolutions, nothing has changed. He said it is one property at a time as they come before you and they get their approvals and that is how it starts.
Mr. Giuditta said that one thing he would strongly suggest is that if someone comes before the Board with an appeal for the Zoning Officer’s decision then the Zoning Officer should be present. He said if the applicant did not have plans with him tonight we would not know the basis of the Zoning Officer’s decision. Mr. Lepore said he would have postponed the hearing until the Zoning Officer was present. Mr.Sica said that the Zoning Officer has been in the hospital.
Other Comments from Public
No one from the public wished to speak.
Motion was made by Mr. Picerno, seconded by Mr. Cuppari to adjourn the meeting.All in favor.
Kathleen Jean Moschitta
Acting Planning Board Recording Secretary
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