IN THE MATTER OF
APPLICATION NO. PB 15-10
OF MIKHAIL & NELLY KARASIK
BLOCK 17, LOT 25
RESOLUTION GRANTING
DEVIATION FROM CONDITIONS
OF APPROVAL
WHEREAS, MIKHAIL & NELLY KARASIK, hereinafter the
"Applicant", has previously proposed the development of property
located at 100 Ocean Boulevard in the Borough of Atlantic
Highlands, County of Monmouth, and State of New Jersey, which
property is further known and designated as Block 17, Lot 25 on
the Tax Map of the Borough of Atlantic Highlands; and
WHEREAS, the Applicant previously applied to the Planning
Board of the Borough of Atlantic Highlands and, by Resolution
adopted November 14, 2013, received approval to convert a
medical office component of a pre-existing, non-conforming mixed
use residential/medical office building into a residential
apartment, resulting in a two family home where multi-family
dwellings are not a permitted use in the R-2 Residential Zone
District, contrary to the provisions of Chapter 150, Sections
150-30 and 150-31, and Exhibit 5-4 of the Development
Regulations of the Borough of Atlantic Highlands; and
WHEREAS, the aforesaid Resolution at Paragraph 7 provided
that there would be no increase to the size of the structure,
the height of the structure or the exterior walls of the
structure; and
WHEREAS, the subject property is located in the R-2
Residential Zone District and multi-family residential homes are
not a permitted use in the Zone, but is a permitted use on the
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subject property by virtue of the variance previously granted by
Resolution of the Planning Board adopted November 14, 2013,
subject to the aforesaid conditions; and
WHEREAS, subsequent to the adoption of the aforesaid
Resolution the Applicant decided not only to renovate the
downstairs medical office into an apartment, but also to
renovate the upstairs living unit, increasing the interior
ceiling height of those rooms and altering the roof line to
accommodate same, resulting in the height of a portion of the
roof increasing not more than 2 feet above the previously
existing height; and
WHEREAS, the Applicant had professional architectural plans
prepared and submitted to the Borough, which plans included and
showed the new ceiling and roofline; and
WHEREAS, permits were issued and construction commenced on
the Applicant’s property, during the course of which it was
brought to the attention of the Borough that the height of the
structure was increased contrary to the provisions of the
Resolution adopted November 14, 2013, and the Applicant having
been directed to the Planning Board to resolve the discrepancy;
and
WHEREAS, the Applicant appeared before the Planning Board
of the Borough of Atlantic Highlands on November 12, 2015, due
notice of said meeting having been given in accordance with New
Jersey Statutes, the Open Public Meetings Act and the Municipal
Land Use Law and a quorum of the Planning Board being present,
the application was heard; and
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WHEREAS, the Applicant’s witnesses were sworn, and the
Planning Board having heard the testimony of the Applicant’s
witnesses and having examined the exhibits submitted by the
Applicant, and having considered all of the evidence presented
in favor of or in opposition to the application, the Planning
Board has made the following findings of fact:
1.
The Planning Board has received and reviewed the
following documents, exhibits and reports:
1.1
Transmittal correspondence from attorney DeVito,
dated October 26, 2015, marked as Exhibit A-1 in evidence.
1.2
Application of Mikhail and Nelly Karasik with
addendum elaborating on items #5 and #6, dated October 26, 2015,
marked as Exhibit A-2 in evidence.
1.3
Exhibit “A”, Resolution of Planning Board granting
variance for PB#13-07, adopted November 14, 2013, marked as
Exhibit A-3 in evidence.
1.4
Exhibit “B”, containing various copies of
construction permits, including construction permit dated
December 30, 2014, building subcode permit, fire protection
subcode permit, plumbing subcode permit, electrical subcode
permit, steep slope permit application, construction permit,
dated September 17, 2015 and building subcode permit dated
September 17, 2015, marked as Exhibit A-4 in evidence.
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1.5
Exhibit “C”, stop construction order, dated July 23,
2015, marked as Exhibit A-5 in evidence.
1.6
Exhibit “D”, stop construction order, dated October
15, 2015, marked as Exhibit A-6 in evidence.
1.7
Survey of Block 17, Lot 25, prepared by C.C. Widdis
Surveying, LLC, date unreadable, marked as Exhibit A-7
in
evidence.
1.8
2013 application file of Planning Board for
application #PB13-07, marked as Exhibit A-8 in evidence.
1.9
Doctor’s Office Plan, prepared by S.O.M.E. Architects,
dated August 5, 2013, marked as Exhibit A-9 in evidence.
1.10
July 18, 2014, Doctor’s Office Plan, prepared by
S.O.M.E. Architects, marked as Exhibit A-10 in evidence.
1.11
September 19, 2014, Doctor’s Office Plan, prepared by
S.O.M.E. Architects, marked as Exhibit A-11 in evidence.
1.12
February 27, 2015, Doctor’s Office Plan, prepared by
S.O.M.E. Architects, marked as Exhibit A-12 in evidence.
1.13
August 19, 2015, Letter of Dr. Cetron, marked as
Exhibit A-13 in evidence.
1.14
August 5, 2015, Letter from Attorney Kennedy to
Construction Official Kachinsky requiring removal of stop work
order, marked as Exhibit A-14 in evidence.
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1.15
August 28, 2015, Letter of Attorney Kennedy to Zoning
Officer Dunn, marked as Exhibit A-15 in evidence.
1.16
September 18, 2015, Letter from Borough Attorney
Bernard Reilly to Attorney Kennedy, marked as Exhibit A-16 in
evidence.
1.17
Letter from Attorney Kennedy responding to Attorney
Reilly, dated September 23, 2015, marked as Exhibit A-17 in
evidence.
1.18
August 21, 2015, Letter from Zoning Officer Dunn to
Attorney Kennedy, marked as Exhibit A-18 in evidence.
1.19
Six Photographs, marked as Exhibit A-19, a through f.
1.20
Planning Board Minutes from October 10, 2013, marked
as Exhibit A-20 in evidence.
2.
The premises in question are located at 100 Ocean
Boulevard in the Borough of Atlantic Highlands, County of
Monmouth and State of New Jersey, which property is further
known and designated as Block 17, Lot 25 on the Tax Map of the
Borough of Atlantic Highlands.
3.
The subject property is located in the R-2 Residential
Zone District and multi-family homes are not a permitted use in
the Zone. However, the multi-family home in this case has been
granted use variance approval by Resolution of the Planning
Board adopted November 14, 2013.
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4.
The subject property has approximate dimensions of
152.37 ft. x 281.27 ft. x 150.78 ft. x 283.10 ft. and is
substantially rectangular in shape with a curvature along its
frontage on Ocean Boulevard.
The property has an approximate
area of 41,410.65 sq. ft. (0.951 acres).
5.
The property was previously developed with an existing
single family residence with a professional medical office on
the lower level. By Resolution dated November 14, 2013 the
Applicant was granted use variance approval to convert the 900+
square feet medical office into a two bedroom apartment and 500
square feet of medical office into an access from the garage to
the upper level housing unit.
6.
The Applicant presented the testimony of Edward W.
O’Neill, Jr., a Licensed Architect and Professional Planner of
the State of New Jersey, Kevin Kennedy, a Licensed Attorney for
the State of New Jersey, Peter Spagnullo, a contractor/builder
for the Applicant in charge of the construction renovations on
the subject property and Mikhail Karasik, the Owner/Applicant.
Testimony was also received from interested parties Cetron,
Veth and Bandiera.
7.
Mr. O’Neill testified as to the history of the previous
application for use variance to convert the former medical
office into an apartment, its approval and the subsequent
decision of the Applicant to renovate the upstairs portion of
the structure simultaneously with the lower portion of the
structure in order to provide for better upstairs living
accommodations.
The Planning Board notes that the Applicant
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presented extensive testimony from Mr. O’Neill, Mr. Kennedy, Mr.
Spagnullo and Mr. Karasik with respect to the chronological
events that led to the current application.
The Planning Board
finds that it is not necessary for this Resolution to recite the
chronological history of the events, nor to assign
responsibility for any action or inaction taken by any of the
parties involved.
Rather, the Planning Board finds that it is
appropriate to focus on the issue before it. That issue is
whether the current construction, pursuant to the plans prepared
by Architect O’Neill, are consistent with and comply with the
spirit of the condition contained in paragraph 7 of the November
14, 2013 Resolution. If not, whether it is appropriate to amend
that condition to permit the construction pursuant to the
aforesaid plans for which permits were issued.
8.
The Planning Board finds that its Resolution of
November 14, 2013 granted use variance approval based upon the
representations of the Applicant. As set forth in that paragraph
there would be no increase to the height of the structure. The
permitted structure height for the R-2 Zone District is
expressed in both feet and stories. Two and a half stories are
permitted and 35 feet are permitted for the height of the
building.
The Planning Board notes that there was substantial
discussion and disagreement as to whether the subject building,
as constructed, complies with the 2.5 story requirement. That
disagreement depended, in large part, on whether the lower
portion of the building qualified as a cellar. However, the
Planning Board finds that the resolution of this issue not
necessary to the resolution of the within matter. The testimony
of Mr. O’Neill and others demonstrated that, notwithstanding the
renovations to the structure, such renovations did not create a
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new story in addition to the other stories that existed at the
time of the November 14, 2013 Resolution.
Consequently,
regardless of the number of stories that existed at that time,
they were approved and there has been no increase in the number
of stories over what was approved in the previous application.
9.
The Planning Board does find that there was an increase
in the height of the building in feet.
Architect O’Neill
testified that the new roof line does increase the height of a
portion of the structure by not more than two feet above the
prior building height.
He noted, however, that the current
building height is 26.3 feet which is substantially less than
the 35 feet permitted in the zone.
Mr. O’Neill opined that the
change between the previous height in feet and the current
height is imperceptible.
That was supported by the testimony of
the interested citizens as well.
The Planning Board agrees.
Notwithstanding that there was an architectural change that
increased the height of the building contrary to the conditions
of the November 14, 2013 Resolution, the Planning Board finds
that the change is de minimis in nature and results in a more
functional interior of the building for its residents insofar as
it has permitted them to increase the ceiling height and to
provide for a better functioning and livable home.
10.
The Planning Board also notes that the walls of the
structure have been replaced in order to accommodate the new
improvements.
The new walls are post Hurricane Sandy and now
comply with the new wind resistance code requirements. This
results in a safer structure.
The Planning Board finds that the
stories of the building are the same as previous and that the
building is in the same footprint, that the interior layout is
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the same as it was previously, that the only change is a de
minimis increase in the roof line on approximately one third of
the building.
The Planning Board finds that under the
circumstances of this case it is appropriate to amend the
condition of its November 14, 2013 Resolution to permit the “As
Built” height.
The Planning Board finds that this a technical
violation of the previous condition that should be addressed by
an amendment to the condition as an appropriate means of
resolving the current situation. The Planning Board finds that
it is appropriate to grant a deviation from the prior approval
at this time.
11.
The Planning Board further finds that all property
owners within 200 ft. of the premises in question were given
proper notice of the Hearing of this Application and were
provided with an opportunity to present testimony in support of
or in opposition to the appeal.
NOW THEREFORE, BE IT RESOLVED by the Planning Board of the
Borough of Atlantic Highlands on this 10th day of December, 2015
that the Application of MIKHAIL & NELLY KARASIK for an amendment
to the conditions of approval of Paragraph 7 of the Resolution
adopted November 14, 2013 be and is hereby approved, which
approval is expressly conditioned upon compliance with the
following terms and conditions:
1.
Except as modified herein, all terms and conditions of
the prior Resolution dated November 14, 2013 shall be continuing
conditions of this approval.
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2.
This Resolution permits a deviation from the prior
conditions of approval with respect to the height of the
structure and constitutes an amendment to that approval to
permit the structure to be completed at its “As Built” height
pursuant to the plans prepared and submitted by Edward W.
O’Neill, Jr. of S.O.M.E. Architects.
BE IT FURTHER RESOLVED that nothing herein shall excuse
compliance by the Applicant with any and all other requirements
of this Municipality or any other governmental entity.
BE IT FURTHER RESOLVED that a written copy of this
Resolution, certified by the Secretary of the Planning Board to
be a true copy, be forwarded to the Applicant, the Code
Enforcement Official of the Borough of Atlantic Highlands, and
the Construction Code Official of the Borough of Atlantic
Highlands.
A written copy of the certified Resolution shall
also be filed in the office of the Administrative Officer of the
Municipality, which copy shall be made available to any
interested party and available for public inspection during
normal business hours.
BE IT FURTHER RESOLVED that a proper notice of this
decision be published once in the official newspaper of the
Municipality or in a newspaper in general circulation within the
Borough.
OFFERED BY:
Mrs. Murray
SECONDED BY:
Councilman Archibald
ROLL CALL:
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YES:
Councilman Archibald, Chairman Greco,
Ms. Hoffmann, Mrs. Murray, Mr. Neff,
Mr. Bishof, Mr. Caccamo, Mr. Colangelo
NO:
None
ABSTAIN: Mr. Hawley
ABSENT:
Mr. Kelley, Mr. Ottignon, Mr. L. Hubeny
RECUSED: Dr. Cetron
_______________________________
Chairperson, Planning Board
Borough of Atlantic Highlands
I certify that the above is a true and exact copy of the
Resolution passed by the Planning Board of the Borough of
Atlantic Highlands at its meeting held on December 15, 2015.
_____________________________
Secretary, Planning Board
Borough of Atlantic Highlands
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