Borough of Kenilworth
August 27, 2009
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 Board approved the July, 2009 minutes. Approval was given to pay the Recording Secretary.
Roll Call: Mr. Lepore, Ms. Bogus, Mr. Candarella, Mr. Herbert, Mr. Cirillo, Mr. Sica, Mr. Laurie, Mr. Cammarota, and Mr. Pugliese (who arrived later). Excused: Mr. Picerno and Mr. Pantina. NOTE: Mayor, councilmen, and mayors-designee are not eligible to vote on Board of Adjustment matters.
Communications: Ms. Bogus, Secretary: There were no communications to report.
Minor Sub-division Committee Report: Mr. Cammarota and the other minor sub-division committee members deemed the following sub-division approved: Application #09-02, Rizzo/Hanley, re: 227 North 20th Street, Block 42, Lots 6 & 7. Ms. Bogus was asked to notify the applicant and the building department of this approval.
New Business: Application #7-09, Badali, 10 N. 24th St., Block 74, Lot 25,
Variance/ 2-family in R-2 zone. Mr. Candarella and Mr. Cammarota were excused.
Mr. Steve Heil, attorney, represented the applicant. He noted that any missing members could listen to the tapes, if the application would be delayed until the following meeting. Mr. Tripodi, Planning Board Attorney, agreed.
Mr. Heil said the applicant requests permission to use the above-mentioned property as a two-family home and also requests a certificate of non-conformity. This is a unique corner lot, located in a residential zone, and partially in a commercial zone.
Kevin O’Brien, Borough Planner, said the applicant must prove that the property was in existance as a two-family dwelling at the time the zoning ordinance was changed to a single family zone. Also, the applicant must prove that the site was used as a non-conforming use since that time. The applicant could bi-frucate this application, if desired.
Sworn in: Vincent Badali, his residence is 3 Via Vitale. He owned the property on 24th Street since 2002. When he purchased the (larger than standard) property, it contained two water heaters, two gas and electric meters, and three kitchens (one kitchen is in the basement). Since he purchased the property, he replaced the kitchens and bathrooms, and purchased a new air conditioning and heating system. The house has two separate entrances. There will be no further changes to the structure. In addition to the above-metioned items, the house also has two parking areas, that can fit several vehicles. It is in a “split” zone (R-2 and C). Mr. Cirillo asked what amount of the property is in the commercial zone. Mr. Badali replied about one-third, but the planner has an exhibit that may anser that question.
The second floor was vacant, but would be in use when his family visited. His cousin is there at this time. He said the house is about 2,700 square feet, and he is paying taxes accordingly.
Sworn in: Ed Kolling, 603 Madison Ave, Asbury Park. Mr. O’Brien affirmed that Mr. Kolling is a licensed professional planner and the Board agreed. Mr. Kolling provided (exhibit A-1), an ariel photo and a report (exhibit A-2). There is a restaurant on the corner of North 24th Street and the Boulevard. In a prior affidavit from Mr. Beninati, it was a doctors’ office and a residence in the 1940’s or 1950’s. Mary Restuccia used it as a dual residence with her daughter for many years. The present owner has not actively used this house as a two-family, because at the time, he believed the house could not be used in that respect. A corner of the property that runs across the south-east section is in a commercial zone. Mr. Heil said he could supply the percentages. No other lots in the area are “split-zoned”. The easement agreement is 13 ½ feet wide by 72 feet along the lot line. The property adjoins a restaurant and parking lot. It has two distinct parking areas, substantial for two families. The building was improved and brought to code.
It is suited for a Use Variance because of the location, pre-existing conditions, and the two parking areas. Regarding the negative criteria; it is not detrimental to the nearby area for a change-of-use.
Three photos (Exhibit A-4) were produced (showing the meters and water heaters) and given to Mr. Tripodi. Also, Mr. Kolling gave a photo-copy of the easement agreement, dated February 22, 1980. It was given to service the rear of the property. The structure will not be changed. Mr. Cirillo noted there are no two-family homes from the Boulevard to Washington Avenue as well as from Newark Avenue to Center Street (about 1//2 mile). One of the original owners of this house, Dr. Weiss, wanted living quarters separate from his office for income tax purposes.
The two heating units were not in the photos, but are in the architectural plans. Mr. Badali said everything was up to code for a two-family house. The entire interior was re-modeled. Mr. Badali’s parents live in the house. Mr. Herbert said, after the doctor converted the house into two dwellings, the next owner, Mr. Cuppari, lived on the first floor and rented the second floor. The present owner did not have a tenant.
Sworn in: Mr. Kevin O’Brien, Board Planner. His report was marked Exhibit B-1 and B-2. He said this burden of proof must be made: if the (two family) use was in existance legally when the zoning was changed (to R-2), and, therefore, was made illegal. He asked if that was proven to the Board. Second, (the Board must determine) if the use was abandoned, (in any way) since it was made illegal, from then until now. The Board should determine if this criteria was met before rendering their decision to grant a certificate of non-conformity. It does not help the case that the people who signed the affidavit (regarding the prior owners) were not present. Mr. Tripodi mentioned the affidavit was signed in 2001.
The meeting was opened to the public. Sworn in: Mr. Pat Guida, 15 N. 24th Street (across the street from the applicant), since 1973. There was a bar on the corner. Mr. Restuccia (a prior owner) made the side parking area 8’ wide x 100’long, along the side of the (present) restaurant. Because of the restaurant, there is a major parking issue in this area.
Also, commercial vehicles use the street. He testified that the property was used by Mr. Restuccia and his daughter (who lived upstairs) and not as a two-family dwelling. In thirty-six years, it has not been a two-family home. Mr. Guida said he has often called the police department to move trucks (some tractor-trailers), because he could not get onto his property. Unless the restaurant approves removal of cones (that separate the properties), the applicants’ side parking area cannot be accessed. In the past four years, he has noticed people on the third floor. (When Mr. Restuccia owned the house), he saw only one kitchen, not three, which was in the main part of the house.
Sworn in: Mr. William Urban, 24 N. 24th Street. He has two documents: one is an application for development (dated 2001). It states the premises is taxed as one-family, and must remain as such, unless the Planning Board approves a two-family use. Another document was a letter from Mr. Frank Rica, prior zoning official. It states, although there is an extra kitchen, the property shall remain a one-family house. He said the 2001 Planning Board decision denied that owner (who was represented by Heil and Heil) a two-family status. It was dismissed without prejudice and withdrawn. Another letter was from Mr. John Rizzo, former construction official. It stated: (on 4/8/1997) the plumbing (for two meters) and electrical permits (for two meters) was cancelled for work not done. An electrical permit was later issued on 3/27/ 2001 for two meters.
Mr. O’Brien commented about the issuance of a previous Board application. If the Board has already heard an application, it may not hear this application again, unless there has been a substantial change. Mr. Tripodi said the (Mr. Urban’s) testimony should go into record. Mr. Urban gave copies of the building inspections, noting there are no separate entrances to the upstairs (exhibits 4 and 5). Concerning the issue of an oversized lot, Mr. Urbans’ lot is the same size as the applicants’ lot. A portion of the property (the “C” zone) cuts across the driveway, not across the residence. A Board member stated the easement designates that section could be used by either side. Mr. Herbert said that portion is light commercial and the other part is residential; a “split-use”. Mr. Urban said according to documentation, in 1973 and 1987, the property was a single-family use. Another letter from Mr. Rica, stated an extra electric meter must be removed before the house is sold, since it is a single-family home. Mr. Urban also produced a non-referenced ad (dated 2001) from the Star Ledger.
Sworn in: Ms. Dona Urban, 24 N. 24th Street. She said the outside of the applicants’ house has been improved. If the Board grants permission for a two-family dwelling, this will (adversly) impact the integrity of the neighborhood.
Mr. Heil stated the prior application (in 2001) was withdrawn without prejudice. He has not had enough time to review the documents (presented at this meeting). Mr. Lepore said the Board, also, must have time to review these documents. Copies of the documents will be supplied to all concerned.
Mr. Tripodi said, in light of the new documents, the applicant could consent to adjourn until the next months’ meeting (no further notice be given). The applicant agreed, and the Board approved the hearing be continued to the September 24, 2009 meeting.
Other Comments for the Good of the Board
Adjournment: The meeting adjourned at 8:40 p.m.
Janet M. Murphy,
Planning Board Recording Secretary
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