Planning Board Minutes from 10/25/2007

Borough of Kenilworth

Planning Board Minutes

October 25, 2007

The meeting began with an affirmation of the Open Public Meetings Act requirements: The schedule of meetings is on file in the Borough Clerks office, was posted on the bulletin board, and has been mailed to the Cranford Chronicle, the Kenilworth Leader, and the Star Ledger.� All present recited the Pledge of Allegiance.� The Minutes from September 27, 2007 were approved. Approval was given to pay the Recording Secretary and the Board Attorney.

Roll Call:� Present:� Mr. Cirillo, Mr. Michitsch, Mr. Beninati, Mr. David, Mr. O�Malley, Mr. Corcione, Mr. Pantina, Mr. Schielke, (arrived later), and Mr. Dick.

�Absent:� Mr. Peters, Mr. DeLuca, Mr. Soos, and Mr. Mancino.�

Communications:� Mr. Beninati said a letter from Mrs. Petschow (RE: Application #11-06, heard on March 23, 2006, 25 N. 20th Street, Block 81, Lot 7) would be discussed during the General Business part of this meeting.

Applications:� Application #17-07, A & P /Starbucks, 801 Boulevard, Block 179, Lot 7.01, Seeking relief of Zoning Ordinance to provide tables and seats associated with Starbucks Coffee use, and requesting approval of an additional advertising sign on the face of the A&P building.

Ms. Jennifer Knarich, Attorney for the A&P, stated her client requests relief of the zoning officials decision as it relates to the seating and sign for the Starbucks coffee section of the A&P.� Building department approval was given for the Kiosk only, and this is being constructed.� Starbucks is accessible only from the inside of the A&P, and does not comprise more than 20% of the total store area.� She said it is a use found in supermarkets to be a customary incidental.� Regarding the additional sign part of the application, she stated the Ordinance does provide for three signs.� An existing Pharmacy sign is mandated by law.� There is a Bank of America sign, and an A&P sign.

�Mr. David said the Board needs documentation to substantiate the statement that the total square footage for the Photo shop, the Bank of America, and the Starbucks area do not exceed 20% of the total square footage of the building.�

Mr. Pantina asked if the Starbucks is considered a concession or an accessory retail sales department.� Ms. Knarich said it is an accessory retail sales department, owned and operated by the A&P, using A&P cash registers.

�He asked if this would be a restaurant (RE: zone code #197-48D�Retail stores excluding restaurants).� Ms. Knarich replied that this would not be considered a restaurant since there will not be service to the tables.� Regarding the alternative, the definition of a fast food restaurant; a fast food restaurant is considered a �principal business�.� This would only be an accessory department.� Mr. Pantina said Starbucks coffee said it is a separate entity, serving food (pastries and coffee).� Ms. Knarich said the zone code for a �service� is not clearly stated.� Mr. Michitsch said this is not a �self-service� operation.��

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Mr. Lane said the definition of a concession from the Law Dictionary is: a privilege granted by a company (or a government) as to the right to sell food at a park.� This is not what is intended in this instance.� When the Board hears an appeal for consideration of the interpretation of an ordinance, the intent of the Governing Body, concerning that Ordinance, must be determined.� Does the Board believe that Starbucks is considered a restaurant or not.� The Applicant is challenging the Zoning officers� decision that this would be considered a restaurant and it requires a Use Variance.� (If so, the members who vote on a Use Variance would be the Board of Adjustment, not including the Mayor, Council members, or Alternates).� All members are entitled to vote with regard to the appeal/interpretation.� If the vote is in favor of the applicant, then there would be no further need for a variance.� If the vote opposes the appeal to reverse the zoning officers� decision, than the Board of Adjustment would hear this Application.�

Mr. Lane said a concession is not the same as a franchise.� The A&P will own and run this section of the store, and Starbucks may not be considered a concession, but it is a franchise.� The A&P has a licensing agreement for the Starbucks franchise.�

Sworn in: Mr. Robert Volosin, Vice President for A & P real estate and development.

�He said the Kenilworth A & P was updated to a �fresh market�.� The A&P had owned and sold �Eight-o-Clock� coffee.� Some area stores now have existing cafes and Starbucks will be incorporated in them.� A&P has a permit for construction for the Kiosk machine, and a nearby seating area is anticipated to include tables and 23 seats.� Most of the existing Starbucks in A&P stores have seating.� The products sold will be Coffee, tea, iced tea, and defrosted pastries.� Since there is a self-serve salad department in the store, a sign could be in place to limit the tables to Starbucks purchases only.� In a past, tables and chairs near the salad bar were removed, because they were set up without town approval.� Mr. David said what is served is important to this discussion.� For example, Dunkin Donuts has expanded its products over the years.�

Mr. Lane said the Zone Official defined one of the characteristics of a restaurant is the existence of tables and seats.

�He said the second part of this application would require a �C� variance, and would be voted on by the Board.� Mr. Volosin said the exterior signs include:� the Bank of America sign, the Pharmacy sign, and the A&P sign, with Fresh logo signs.� A Photo shop has a window sign, not on the face of the building.� The Board contends the A&P exceeds the three sign requirement.�

Mr. Volosin will give documentation of the calculations that the concessions in the A&P do not exceed 20% of the total floor area.� The Site Plan (SK#1, dated 9/27/07) was given an Exhibit number A-1. These are the dimensions of the store concessions:�

Photo Shop: 512 square feet, the Bank:� 888 square feet, Starbucks:� 794 square feet, and the Pharmacy is 568 square feet. (for a total of 3,762 square feet)� The store totals 66,385 square feet, and therefore, the concessions do not exceed 20% of the floor square footage.�

The dimensions of the A&P signs must be stated as well, and may not exceed 10% of the wall area.� This calculation should be submitted to the Board.�

Mr. Lane suggested this application could be bifurcated; with a separate sign request.� Ms. Knarich agrees this would be best to bifurcate the application, in the event the Board denies the request to oppose the zoning officers� decision.�

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A motion, to approve the Zoning Enforcement Officers� denial for the sign, was made by Mr. Michitsch, 2nd by Mr. Dick.� All in favor:� Mr. Corcione, Mr. O�Malley, Mr. Pantina, Mr. Dick, Mr. David, Mr. Beninati, Mr. Michitsch, and Mr. Cirillo. �

Another motion, to approve the Zoning Enforcement Officers� denial for the Use, was made by Mr. Dick, 2nd by Mr. Pantina.� All in favor:� Mr. Corcione, Mr. O�Malley, Mr. Pantina, Mr. Dick, Mr. David, Mr. Beninati, Mr. Michitsch, and Mr. Cirillo.�

Since a permit was given for the Kiosk, the Attorney for the A&P will provide this documentation, as well as other requested documentation.� She requested a hearing be scheduled for the November 15 meeting.�

Other Business:In a past meeting, there was a discussion to increase the time (and, therefore, payment) for the Building Officials.� Both Mr. Lema and Mr. Malanda are very competent Officials.� This matter may need to be delayed until after the November elections.�

Another matter was discussed, regarding a past application heard in March, 2006, (#11-06, Petschow, 25 N. 20th Street, Block 81, Lot 7).� The Board requested the applicant to increase the front yard setback.� This, in effect, moved the house back and will not allow room for the detached garage.� She must come before the Board to request a variance to not build a garage.

Storm Water Management Plan:� The Board must approve an amendment to the Master Plan soon, and Mr. Beninati will consult with PMK, the Board engineer.�

Impervious Coverage:� Mr. David said a discussion of this ordinance was held at the last Mayor and Council Work Session.� The Council and Borough Attorney are reviewing the wording, and will come back to the Planning Board with the suggested modifications.

Other Matters�� Mr. Beninati said the Board will need a quorum for the November 15, 2007 meeting, since a Use variance needs five affirmative votes.� There is a meeting of the League of Municipalities in Atlantic City that week.� The Blackthorn application needs an additional traffic study, but may be a part of the November agenda, along with the A&P application.�

The meeting was adjourned at 9:05 p.m.

Respectfully submitted,

Janet M. Murphy, Planning Board Recording Secretary

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