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, 2^nd 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 2^nd 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. 25^th 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 25^th 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 25^th 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, 2^nd 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 31^st 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 31^st Street. �There is a vacated portion of Newark Avenue (25� x 18�) at the end of 31^st 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 31^st 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 31^st 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 31^st 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 31^st 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 31^st Street.� Mr. Neri owns 9� along side of his structure.� The Inn owns 9� of land plus an additional 9� of vacated 31^st 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 31^st Street.� Also, his client would try to insure the 36 parking spaces (along 31^st 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 31^st Street).� Mr. Longano said his patrons would then not be able to access the 36 parking spaces along 31^st 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 31^st 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 31^st 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 31^st Street side.� The 31^st 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 31^st 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 2^nd 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, 2^nd 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