Planning Board Minutes from 01/25/2007

Borough of Kenilworth

Planning Board Minutes

January 25, 2007

The meeting began with an affirmation of the Open Public Meetings Act requirements and the Pledge of Allegiance.� The minutes of January 4, 2007 and December 14, 2006 were approved.� Approval was given to pay the Recording Secretary and the Board Attorney.

Roll Call:� Present:� Mr. Cirillo, Mr. Michitsch, Mr. Beninati, Mr. DeLuca, Mr. O�Malley, Mr. Pantina, Mr. Schielke, Mr. Dick, and Mr. Mancino. Absent:� Mr. Soos, Mr. David, Mr. Peters, and Mr. Corcione.�

Communications: �Mr. Beninati read a letter from Mr. Buchalski (Application #20-06). The resident requested a postponement to revise his application.� He will notify the Board when he is ready to proceed.� His application presently is incomplete.� He must re-notice, but will not have to pay a new fee.� Mr. Beninati made a motion to postpone this application, 2nd by Mr. Mancino.� All in favor.

Mr. Fraser told the Board he received several letters regarding Application #300.

Mr. Cirillo had a correspondence from the Roselle Park Public School system.� A copy of the letter was given to the Board members.�

Mr. Robert Schielke was sworn in for a new term as board member.

Other Business:� Mr. Michitsch suggested the Board appoint a committee to review the present By-laws and bring them up-to-date.� Mr. Michitsch made a motion to adopt the existing By-laws, pending revision at a work session.� Mr. DeLuca 2nd this motion.� Mr. Mancino made a motion there be a 30 to 60 day window to discuss any proposed changes to the By-laws. All in favor.� Mr. Cirillo asked who, besides Mr. Beninati and Mr. Michitsch, would be willing to serve on a review committee.� Mr. Mancino volunteered, and Mr. Michitsch said he would chair that committee.�

New Business:� �Application #34-06, Cuppari, 103 So. 25th Street, Block 175, Lot 2, a bulk variance (carried from Nov 16, 2006)

Mr. Harvey Fruchter is the attorney representing the Cuppari application.�� He explained this is a minimal �C� variance in an R-3 zone.� He produced sample houses in the area in question.�� Currently, on this corner undersized lot, there is a 2� pre-existing, non-conforming side yard condition. This is a Bulk variance.� There is no change in the first floor and the second floor will not exacerbate this condition. They will replace the deck, and not expand it. �Mr. Fruchter said the footprint will not increase. He said this is a 2-family house in a two family zone.� Mr. Michitsch said this was used as a single-family home.� Mr. Fruchter said it was formerly a 2-family, used currently as a single family home.�� Sworn in:� Mr. Antonio Cuppari, applicants� son.� He lives on the second floor and wants to expand his living quarters.� There will be a storage attic.� There are three egress doors on the first floor and two means of egress on the second floor.�

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The height of the house was corrected on the plans to be less than 30� (to be measured out 15� and averaged).� He needs to be 15� from the street.� The plans appear to be incorrect and there are deficiencies.� Although the mailing address is South 25th Street, Mr. Cuppari said Newark Avenue (being the shorter of the two sides) is the front of the house.� Twenty five feet is required on the Newark Avenue part, but only 15.37� is the pre-existing, non-conforming distance.� Additional building will not be made on this side.� The side that is on South 25th Street is 15.7 feet; only 15� is required and does not need a variance.� The legal rear yard (where the stairs are located) is now 25.3�, and there will be no further encroachment.� One side of the house is 2� from the property line (a presently existing non-conformance).� This lot is undersized, and the proposed addition will not exacerbate this situation.� This condition will be acknowledged in memorialization of the resolution.� A Motion to accept this application to Resolution was made by Mr. Beninati, 2nd by Mr. Pantina.� All in favor:� Mr. DeLuca, Mr. Michitsch, Mr. Beninati, Mr. O�Malley, Mr. Pantina, Mr. Cirillo, and Mr. Schielke.� Mr. Mancino abstained.�

Old Business:� Application #300, Brahmatt/Neri, RE: 131 South 31st Street, Block 179, Lots 4 and 5.� A change of Use/Banquet Hall in an �I� zone (with variances).

Mr. Fraser said he has received letters concerned about the access to this structure via the A & P parking lot.� He also received a copy of a letter from Mr. Romans to Mr. Butler, regarding the concerns of the Kenilworth Inn.�

This is a Use Variance application, which requires five affirmative votes, to be heard by a maximum number of seven members.� Mr. Cirillo said those eligible to vote are:� Mr. Michitsch, Mr. Beninati, Mr. Corcione (not present), Mr. Schielke, Mr. Pantina (who heard the December tapes), and Mr. Cirillo.��� This is a six-member voting Board.� Mr. Butler, attorney, wishes to proceed with the decision of the present Board.

Sworn in:� Mr. Alfred Stewart, of Rockaway, a licensed engineer in New Jersey.� He reviewed a letter (dated January, 2007) from the PMK Group (Board engineer) and will comply with his requests.� He referred to another letter, dated January 10, 2007, from Mr. Romans, attorney for the Kenilworth Inn (re: drainage and access issues).� In response, the representative said the drainage issue was revised on the plans on January 8, 2007.� This new plan provides drainage by installing two catch basins, as well as a drainage line to be installed within the 18� boundary line. Mr. Romans was concerned about these catch basins and the Kenilworth Inn property.� Mr. Butler responded they would be put in the south eastern corner of the site (on the Neri property).�

Mr. Parker will address issues of the restaurant doorway and the Inn/Restaurant right-of-way.� Photos of this side doorway were presented to the Board.� There is a concern with an existing stoop that encroaches into the easement area. (Exhibit: Kenilworth Inn 1).� .� A concern of the Inn is a question of access to Lot 6.� Another photo, (exhibit:KI2) showed a fenced in area at the end of 31st Street. �There is a vacated portion of Newark Avenue (25� x 18�) at the end of 31st Street. There is a masonry building on this lot.�

Mr. Butler did not know who owns Lot 6.� There may be a southern access point to Lot 6.� Mr. Fraser said it is a function of the courts to arbitrate property disputes. The applicant has many different maps which make it difficult to correlate.

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�If the Board approves this application, and if the information given by Mr. Neri is �faulty�, the neighboring businesses have a right to vindicate their property rights.� Mr. Cirillo said Ms. Dolan (who previously testified for Mr. Neri) claimed the area leased by the A & P is a public thoroughfare.� This Board is unable to determine the legality of which is right.� The A&P may choose to pursue this issue, therefore the Boards� approval of this application would not be the final say.� Mr. Butler pointed out that if the Board denies this application, Mr. Neri has the right of appeal. Mr. Pantina thinks this matter should be resolved.� Mr. Michitsch said the applicant did not try to get in touch with the A & P or Benenson Developers in the past month.� He said some issues are not being addressed by the applicant and, therefore, the applicant is not prepared.� Mr. Butler said this is a complex project.� Mr. Michitsch said the proposal is to use A & P land (to access the Banquet Hall), which is private property.� Mr. Butler objected, saying this is not case law.� Mr. O�Malley said the applicants� letter addressing this issue was incorrect.� Prior to the A&P purchasing the land, Volco Brass and Copper did not have a public thoroughfare through the area.� Mr. Butler said after the A & P acquired the land, anyone could drive through the lot, even those who are not patrons of the A & P.� Mr. O�Malley said the supermarket could legally erect a fence around their area.� Mr. Butler said a sign �customers only� is not in place. This entryway becomes �adverse possession� after a certain number of years (20 years).� Mr. Fraser asked Mr. Butler if he has any testimony that the land is acquired by �adverse possession�.�

Ms. Judith Knap, a representative of the A & P, gave testimony.� She said her client has the same concern as stated in December.� She has a property survey and tax map (the land extending from the railroad section off the Market Street entrance) that shows this is part of the A & P property.� She said Mr. Butler did not respond to her attempts to reach him.� Mr. Butler asked what the percentage of people accessing the A & P is actual patrons.� Mr. Cirillo said this is a court matter between the A & P and Mr. Neri.�

Mr. Terry Parker, architect, was called to testify.� He reviewed the PMK letter of January 7, 2007.� He addressed items #12 (parking on 31st Street); #14 (he thought Borough would submit plans to the fire department), #21, (the retaining wall); #40 (re-establishment of parking drawings, and is not in agreement with PMK calculations) Mr. Parker calculates fewer spaces.� The building is ADA compliant.� #57 (re: code #197-17) no variance is required for an accessory enclosure.�

Another issue addressed 2� of landscaping along a section of paved parking area (creating 16� parking stalls as opposed to ordinance required 18� stalls)�

Mr. Swayze, Board Engineer, referred to item #12, and said the existing parking condition is sub-standard. �Item #21, the existing retaining wall, may have a detrimental effect on an underground retention basin. The Board would have to approve a variance to allow 16� sub-standard parking stalls.� Mr. Tom Romans addressed Mr. Parker.� He showed photo exhibit K 1.� He asked about the entrance on 31st Street, if it would be expanded or an overhang constructed.� Mr. Parker responded: no.� Mr. Romans displayed a photo (K 2) (showing a fenced area along 31st St.).� He is concerned that a dumpster may be placed there. �Mr. Parker said the dumpster will be located along the western property line.� Mr. Parker is an �urban planner� and familiar with the Planning Board Master Plan and deals with the proper use of land.

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He produced exhibits concerning the pre-existing use and the proposed use.� The area was a heavy Industrial site changed to a mostly Commercial area. He believes this proposed use would enhance the �Gateway Area�. The Banquet hall would not have substantial impact on area traffic and would be an upgrade from the present use, in his opinion.� Mr. Pantina said any traffic signal on the Boulevard would have to be reviewed by the County, if there is an increase on 31st Street traffic. Mr. Sal Candarella, from the public, questioned the planner concerning the �hardship� necessity for the requested use and variances.� Mr. Parker said, in his opinion, an Industrial use is not appropriate for this area.�

Sworn in: Mr. Anthony Longano, manager of the Kenilworth Inn.� He identified a photo showing markings along the center of the vacated part of 31st Street.� Mr. Neri owns 9� along side of his structure.� The Inn owns 9� of land plus an additional 9� of vacated 31st Street.� He is concerned about the traffic use in this right-of-way. Mr. Romans produced exhibit (K-4) a 2005 survey and Exhibit (K-5) an old survey of the property.� Mr. Longano is concerned with the safety of his patrons by the Banquet halls� use of their side door �drop off�.� Both the Inn and Mr. Neri are not allowed to build structures along this 18� right-of-way.�� The existing curb and doorway to the Neri property are presently infringing on this right-of-way.� Mr. Butler suggested to Mr. Longano that his client could erect a sign stating �right turn only� at the parking lot end of 31st Street.� Also, his client would try to insure the 36 parking spaces (along 31st Street) that belong to the Inn would not be used by patrons of the Neri property.� Mr. Pantina asked about the possibility of closing the end access to the Kenilworth inn parking lot (off 31st Street).� Mr. Longano said his patrons would then not be able to access the 36 parking spaces along 31st Street.

Mr. Butler stated his client does not intend to remove the side door.� Mr. Fraser suggested Mr. Romans give the applicants� attorney a copy of his surveys and concerns.� Mr. Romans asked Mr. Longano if the vacated part of 31st Street would become 2-way traffic.� He replied this concern would be alleviated if the Banquet patrons would make a right hand turn at the end, go around the back of the hall and continue on by making a right onto the Clinton Avenue portion that exists in front of the building.� Patrons would then have to make a left onto 31st street to the Boulevard.�

Mr. Butler called Mr. Neri, who was previously sworn in.� He said the main entrance to his building would be on the westerly side, not the 31st Street side.� The 31st Street entrance would not be a main entrance.� This part of the street is not 2-way, although there are no signs indicating this.� He denied the allegation his clientele use the Inn lot to turn around.�

Mr. Pantina suggested Mr. Swayzes� letter requirements be made a �condition of approval� if the Board votes in favor of this application.� He also suggested 16� parking stalls may not be satisfactory.� He asked Mr. Fraser if another �condition of approval� be that the applicant prove he has legal right to use the A & P lot section as a right-of-way.�

In addition, if this right is denied, the applicant must, as a further �condition of approval�, provide mitigation for the traffic signal at the Boulevard.

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Mr. Fraser said if access through the A&P lot is legally denied, the Board could (as a condition of approval) either invalidate their approval or allow the applicant to establish a secondary plan to mitigate traffic concerns at the Boulevard traffic signal (at 31st Street).�

Mr. Fraser said there is a procedural issue.� A vote could be taken on the Use.� If the application fails on the use, the site plan issues are void.� Mr. Cirillo asked the Board about their decision.� Mr. Michitsch made a motion to deny the use.� Mr. O�Malley 2nd this use denial.� Mr. Beninati noted the property has been improved (over the industrial site) and asked if there was a way for the Board and the applicant to compromise on both sides and come to a viable conclusion.� A �no� vote would in favor of a denial of a use variance, not the site plan.� Roll call:� in favor of use denial:� Mr. Michitsch, Mr. O�Malley, and Mr. Cirillo.� Opposed to use denial:� Mr. Beninati, Mr. Pantina, and Mr. Schielke.� Mr. Fraser said the motion made was a denial motion; it did not get a majority, therefore, this motion did not carry.�� Five affirmative votes on a motion to approve the Use Variance are needed to pass this application to resolution.� Mr. Schielke made a motion to approve the Use only, 2nd by Mr. Pantina.� All in favor:� Mr. Beninati, Mr. Cirillo, Mr. Pantina, Mr. Schielke.� Opposed:� Mr. Michitsch and Mr. O�Malley.�

The Use Variance is denied, and the site plan need not be addressed.

The meeting adjourned at 11:05 p.m.

Respectfully submitted,

Janet M. Murphy,

Planning Board Recording Secretary

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