CAPE MAY — The city’s Planning Board approved the Cove Restaurant’s application for a site plan waiver for a concrete floor and foundation they built for their porch dining room with the condition the ultimate decision will be rendered in Superior Court regarding easement and access issues with the Third Avenue Jetty.
The Planning Board’s Nov. 24 decision, a 5-2 vote, also notes it would accept an agreement between the city and the Cove Restaurant’s owners, the Johnston family, if they can resolve their differences prior to a court decision, as a condition of its approval.
“Things get settled a lot faster when there is a gavel on the horizon,” said George Neidig, planning board attorney.
Attorney Louis Dwyer, representing the Johnston family, said the court was waiting for the planning board’s decision or a settlement between the parties. He said the court is ready to set a trial date.
Prior to the vote, City Solicitor Tony Monzo said three or four instance of case law supported the city’s position that the planning board had the authority to condition its approval on the Johnston’s granting the city an easement to the jetty from their restaurant property or altering an existing easement. He said the city was a third party that was negatively impacted by the porch dining room being placed in an easement.
Monzo said the city clearly had a 24-foot wide easement to the jetty under a 1965 ordinance. He said even if the board accepted a 1997 agreement between the city and the Johnston’s, of which no one can find a copy, it only eased deed restrictions, not the easement.
Monzo said the board had three options: deny the site plan waiver request, grant the waiver with condition the city be given alternative access to the jetty or grant approval with the condition the applicant be compelled to negotiate with the city an easement mutually acceptable to both parties.
In 1967, a deed restriction was placed which specified that no permanent structures were to be constructed in the vacated portion of Third Avenue, a paper street, said Monzo. He said the city filed a counterclaim to the Johnston’s lawsuit asking to have the porch dining room removed from the vacated portion of Third Avenue.
Monzo said he believed Superior Court Judge Steven Perskie “would ultimately decide the issue.”
Dwyer said the issue between the city and the Johnston’s had been unresolved since last January.
“Frankly, I’m done trying to negotiate this matter,” he said.
Dwyer reminded the board they had previously granted a site plan waiver to the Johnstons, which was undone by a vote of City Council. He said the city disputes the existence of the 1997 agreement.
It would have allowed the Johnston family to pour a concrete deck for the porch of their establishment.
Prior to 1997, the easements dealt only with the jetty because there was no beach replenishment in that era, said Dwyer.
He said the 1997 agreement gave the city the right to access the Johnstons property, specifically the vacated, lot portion for beach replenishment.
“They act like that exists but they don’t act like the 1997 agreement exists,” said Dwyer.
He said the concrete deck is identical in size and in the same position as was noted in the 1997 agreement and approved by the Planning Board at that time.
At issue, is allowing an easement for heavy equipment to repair the jetty or beach. The Johnstons have agreed they would take down the walls and roof of their porch dining room if the city needs access to the jetty.
“I am befuddled to see why beach equipment would have a more difficult time over essentially a ground level concrete slab versus a deck made out of wood planks,” said Dwyer.
He said the city suggested a 20-foot wide, alternate easement to the jetty through the Cove Restaurant’s parking lot which would lower the property’s value.
Dwyer said the Planning Board did not have the authority to expand easements and agreements between the city and private parties.
He said the cove restaurant’s deck had been in its current location in one form or another for 30 years. Dwyer said the beach in front of the Cove Restaurant was currently building back up.
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