Planning Board Votes for New Hearing for Cove Restaurant

CAPE MAY — The city’s Planning Board voted 4-2 Tuesday June 9 to rehear an application from the Johnston family to place a concrete floor in the porch dining room of the Cove Restaurant, 405 S. Beach Ave.
The Planning Board approved the work last year.
The Johnston family, long time owners of the Cove Restaurant, 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 even though they had received a permit for the work. At that point, the wooden floor had been removed.
At issue: the restaurant porch sits on a former, vacated street, Third Avenue, which the city seems retain access rights for maintenance of the Third Avenue jetty and beach replenishment despite giving the Johnston family use of the parcel years ago.
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..”
At a May 26 meeting, the Planning Board had the matter on their agenda but did not take action. At that time, City Solicitor Monzo told the board he had been in communication with the Johnston’s attorney, Louis Dwyer regarding a proposed settlement.
Planning Board Chairman Bill Bezaire said no settlement was reached between the Johnstons and the city.
Planning Board Attorney George Neidig said Dwyer submitted a brief and Monzo responded with a brief. The briefs were not given to Planning Board members until the meeting began.
Rather than recess and let board members read the briefs, which Neidig estimated would take about a half hour, both attorneys addressed the board. Neidig gave the board the option of reading the briefs if they did not feel they could rely on oral arguments.
The board elected to listen to the two attorneys.
Dwyer said the Cove’s dining porch was located on a partially vacated street, Third Avenue. The city vacated the street in 1967, which included deed restrictions concerning the use of the vacated street, he said. In 1997, that was modified by a resolution by City Council.
After the city revoked the building permit in February, the Johnstons went to the Planning Board and Department of Environmental Protection where they were issued a CAFRA Permit.
City Council adopted a resolution seeking the planning board to rehear the matter due to a mistake or newly found evidence.
Dwyer said it was his contention that there was no mistake or newly discovered evidence. He said it appears the city wants to revisit the 1997 agreement.
Dwyer said he did not believe that any of the materials prior to that date were relevant because the 1997 agreement superceded and modified those items.
The law is very limited in allowing a case to be reheard for reasons other than perjury, misrepresentation, fraud or mistake, said Dwyer. He said the scope of the Planning Board’s authority was limited to land use act, zoning and planning issues.
Dwyer said case law in New Jersey was very clear that covenants and deed restrictions do not belong in front of a planning board but belong in Superior Court. He said the board approved the Johnstons application based on the 1997 agreement and there was no reason to rehear it.
The 1997 agreement with the Johnstons allows the city to demolish the porch dining room of the Cove restaurant to repair the jetty or replenish the beach. The porch could then be reconstructed at the Johnstons expense, said Dwyer.
Monzo said the case was not a deed restriction but an easement issue dealing with the city’s property rights and interest to the vacated portion of Third Avenue. He said Third Avenue was the demarcation line between the portion of beach covered by the city’s 50-year beach replenishment agreement with the Army Corps of Engineers and the South Meadows Cape May Point area which is covered by a different beach renourishmet plan.
He said erosion has made the Third Avenue Jetty more apparent and more vital to the city’s interest in protecting property in that area.
Monzo said the 1967 vacation ordinance, which conveyed the property by deed to the predecessor to the Johnstons, allowed the placement of personal property on the vacated street provided it was removable.
He said a permit for a wood deck was obtained in the 1970’s, which did not meet the specifications of the ordinance but was allowed by the city.
Monzo said the Johnstons built walls, windows and a roof over the deck without permits in the 1990s.
As of a result fines were levied and back taxes assessed.
In 1997, the Johnsons came to the Planning Board and received as-built approvals, he said, conditioned on City Council executing an agreement that relaxed some of the conditions of the 1967 vacation ordinance and deed of conveyance, said Monzo.
He said City Council passed a resolution in 1997 to amend the 1967 ordinance, which was not proper.
Monzo said the city has been willing to let the Cove’s dining porch remain with a wood floor and wood piers. He said the Johnstons have been insisting on a concrete floor with concrete block piers which could only moved through major demolition.
“At that point, you may as well throw out the 1997 agreement and extinguish any rights the city has to Third Avenue..” said Monzo.
He said the Planning Board was not aware of all the evidence for the application, some of which was in file storage with former City Solicitor Robert Fineberg.
Board Engineer Craig Hurless said the board was not aware of the entire history of the property in particular to easement lines when it made its decision. Board member Jessie Weeks concurred.
Hurless said the Johnstons submitted a significant amount of information at the hearing last fall and he did not review all of it.
Bezaire asked if the wood floor could be replaced. Monzo said that would require a City Council decision but he believed that would be acceptable.
Dwyer countered that there was no new evidence. He said the 1997 agreement was very descriptive of the restrictions, which the Johnstons provided.
Dwyer said in 1997 there was a settlement which City Council authorized with a resolution.
“Just because there is a new city administration with some different thoughts, doesn’t give them right to throw out the earlier agreement,” he said.
“The substance of what’s there was permitted, good, bad or indifferent, Dwyer continued.
He said there was currently a thin layer of concrete under the wood floor. Concrete would only provide better traction for vehicles if work needed to be done on the jetty, he said.
Only planning board members that heard the case during its first hearing voted on the motion to rehear the case.
The rehearing has been tentatively scheduled for July 14.