City, Cove Restaurant Disagree on Jetty Easement

CAPE MAY — Did the Cove Restaurant have a 1997 agreement with the city that allowed the Johnston family to pour a concrete deck for the porch of their establishment?
Louis Dwyer, attorney for the Cove Restaurant says “yes,” while the city says “no.” Dwyer said the Johnstons have relied on the 1997 agreement for 12 years.
The Johnstons began to replace the wooden floor in the porch section of their business with concrete last February when they received a stop work order from the city’s construction office in April even though they had received a permit for the work. At that point, the wooden floor had been removed.
On May 19, City Council unanimously passed a resolution rejecting any planning board approvals for the construction of improvements “in the vacated portion of Third Avenue, requesting the site plan application for the property be reheard by the planning board and reconfirming the city’s rights to the vacated portion of Third Avenue as previously set forth in an ordinance vacating the property. Following litigation, the board decided to rehear the matter.
Unable to complete work on the porch due to the stop work order, the Cove was closed for the busy Memorial Day and reopened after a Superior Court judge ordered temporary relief allowing the Johnston’s to use the porch dining room.
Dwyer said the city vacated a portion of Third Avenue, a paper street next to the Third Avenue Jetty, in 1965. The Cove porch dining room is located on a portion of Third Avenue.
The 1965 agreement reserved an easement for the city to have access to the jetty for maintenance and repairs. Dwyer said the Johnstons purchased the property in 1967, giving them 24 feet of Third Avenue.
In 1970, permits were issued to the Johnston for construction of the main restaurant building, said Dwyer. In 1976, permits were issued for a deck to be constructed on the vacated portion of Third Avenue.
He said the city issued permits in 1984 for the construction of a roof over the deck and walls. In the mid 1990s, the Johnstons had disputes with the city over curbing and parking.
In 1996, the Johnstons submitted a plan to add a second floor to the restaurant which was later withdrawn. In 1997, a site plan application to the planning board was amended to add screened windows to the deck area, said Dwyer.
That year, issues with the Cove and the city went to Superior Court. Robert Fineberg, who was Cape May’s solicitor, drafted an agreement between the city and the Cove which was approved by Nancy Johnston, said Dwyer. He said he had draft copies of the agreement but no one has a signed copy of the final agreement.
“The bottom line is my clients acted in reliance on the agreement,” said Dwyer.
He said the Johnstons paid fines and back taxes to the city and received an approval from the planning board for the porch and a deed of consolidation. Paul Johnston told the board he signed an agreement with the city.
Dwyer said he has a 1997 resolution from City Council authorizing the agreement and issuance of a quitclaim deed. He said the city never issued the deed to change the language of the original deed restriction.
Dwyer said the 1997 agreement allows the Johnstons to remove the porch dining room at their own expense if the city needs access to rebuild the jetty or replenish the beach and rebuild the porch when work is completed. He said the concrete deck would allow better traction for repair vehicles than the old wooden deck.
City Solicitor Tony Monzo said the city objected to the Johnston’s’ application because the renovation to the Cove Restaurant made the building slightly higher. He asked if a vehicle could drive over the concrete slab of the porch dining room to repair the jetty based on the grading of sand.
Steve Fillipone , planner/engineer for the Johnstons, said a dump truck could drive over the slab with minor grading changes. He said there was 9 feet between the jetty and restaurant porch.
Monzo said if work needed to be undertaken on the base of the jetty, there was only 4 feet to the porch. Fillipone said the walls of the porch could be removed. He said the jetty has been in its current location since 1952 and he doubted it ever needed maintenance.
Dwyer said the city has suggested the Johnstons give the city a 20-foot wide easement to the jetty from their rear parking lot. He said that was not an acceptable plan to the Johnstons and the board did not have the authority to create a new easement.
Monzo said there was no 1997 agreement between the city and the Johnstons, so the deed restrictions from 1965 regarding easements were still in effect. He said City Council could not have amended the 1965 ordinance by a resolution in 1997.
Dwyer said the legitimacy of the 1997 agreement may be decided in Superior Court as a part of continuing litigation between the city and the Johnstons.
City Engineer James Mott testified only a portion of Third Avenue was vacated by the 1965 ordinance. He said work on the jetty would require the entire removal of the Cove’s porch including the concrete slab.
Mott said rapid erosion has put the jetty “in jeopardy.” He said he believed building the Cove’s porch in the easement violated the 1965 ordinance because it does not provide enough access to the jetty.
Dwyer asked Mott if he “was serious” when he said he believed the jetty was in jeopardy. Mott said he was serious. Dwyer said the ocean washed up on the jetty for its first 35 years unprotected by dunes.
Mott said if the sub grade underneath the jetty erodes in the manner that it has for the last three or four months, the jetty could be in jeopardy. Dwyer reminded Mott that the city issued building permits for the roof porch and wall addition over top of the top of the partially vacated Third Avenue.
Board Engineer Craig Hurless said the Cove application was seeking a waiver from a site plan but the city wanted easements and the topography of the dune and jetty provided in a plan. The Johnstons are also seeking a waiver of an environmental impact study, he said.
Board Attorney George Neidig requested briefs from both attorneys. After three and a half hours of testimony, the hearing adjourned. It will resume Nov. 24.