CAPE MAY — The Johnston family, long time owners of the Cove Restaurant, 405 S. Beach Ave., began to replace the wooden floor in the porch section of their business with concrete when they received a stop work order from the city’s construction office even though they had received a permit.
At that point, the wooden floor had been removed.
At issue: the restaurant porch sits on a former, vacated street, Third Avenue, claimed by sand decades ago which the city seems retain some access rights despite giving the Johnston family use of the parcel years ago.
The Johnson family was told they must return to the city’s Planning Board.
The city also refused to issue the Johnstons their annual mercantile license preventing the restaurant from opening on its normal date on April 1.
The Cove was closed for the busy Memorial Day weekend.
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.
Attorney Louis Dwyer, representing the Johnstons, addressed City Council.
He said he received a letter with attachments from City Solicitor Tony Monzo dated May 15. Dwyer said he filed a complaint with Superior Court following receiving the letter.
Monzo’s letter referred to a structure built on the property in the 1990s without permits or approvals, said Dwyer. He the restaurant’s deck received a permit and was built in 1976.
Dwyer said the roof received an approval and was built in the early 1980s. He said he believed windows and walls for the deck section were built in 1997 with permits and approvals.
“To say it was constructed in its present location without permits and approvals is erroneous,” said Dwyer.
He said the city vacated Third Avenue by ordinance in 1965 and corrected that several years later due to a one-foot discrepancy. He said the city vacated the property and the Johnston family were the owners of record of the lot, which has been merged into one parcel.
Dywer said the Johnstons bought both lots from the former owners.
He said there were disputes over work being done at the premises during the mid to late 1990s with enforcement action, appeals and litigation. City Council and then solicitor Robert Fineberg with the authority of council put together a settlement agreement that was approved by resolution and relied upon by clients, the city and planning board at that time, said Dwyer.
The Johnstons paid retroactive taxes totaling $15,000 and a fine of $17,000 to the city.
Dwyer said the Johnstons went back to Planning Board and received approval for all items on the site plan relying on the agreement and the work was inspected by the city engineer.
He said the city was to modify use of the easement by quitclaim deed.
“To my knowledge, the city never followed through with that or did it,” said Dwyer.
Now the city takes the position that the agreement was not valid, he said.
He said state statutes deal with vacation of street and sale of easements. He said they did not deal with amending an easement.
Dwyer said he believed the action was done properly by a resolution of council in 1997 and was enforceable.
He said the city was well aware of all the documents and reconsideration by a planning board must be based on fraud or a glaring mistake. Dwyer said that is not the case with the Cove “where everything was documented and well known.”
After permits were issued, he said he and his clients met with representatives of council and construction official. Dwyer said his client returned to the Planning Board and contacted state Department of Environmental Protection.
He said the Planning Board issued an approval and the Johnstons awaited a resolution so the restaurant could be ready for the summer season.
If the city’s actions prevail here, the restaurant will be defunct and not able to open for business, said Dwyer.
He said the cost of the litigation “would be extreme.” Dwyer said his client would rather work this out with the city.
On Tuesday May 26, the Planning Board had the matter on their agenda but did not take action.
Monzo attended the meeting. He told the Planning Board he had been in communication regarding a proposed settlement in the next few days which could be presented to City Council at its June 3 meeting.
Monzo said he believed a resolution would be reached. The Planning Board continued the matter to its June 9 meeting.
He said if council approves a settlement, the Johnstons would not need to return to the Planning Board.
Monzo told the Herald, when the Johnstons filed an application to reconstruct, he was asked to review the file and he saw problems dating back to when Third Avenue was vacated by the city. He said he thought the city should revisit and possibly modify the street vacation ordinance which was not changed since 1967.
He said the Cove’s porch began as a wooden deck that ended up as a framed and enclosed deck that became more of a permanent structure over the years.
“It was never contemplated that it would be anything but a temporary wooden deck and now when you add concrete footers and a concrete foundation and a concrete floor, it’s more of a permanent, long term structure that could impede the city’s rights with respect to the stone jetty which it abuts and may in fact, be built on top of it.
He said when the city vacated Third Avenue, it preserved rights to the street because of the jetty.
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