Civil Suit Part 6

Factual and Legal Contentions of Seaside Heights Planning Board. Defendants/Applicants, Saddy Family, LLC and 2?4?6?8 Boulevard, LLC ?led an application with the Seaside Heights Planning Board for preliminary and ?nal site plan approval with variances I and/or waivers effecting premises known as Lots 66 and 51 in Block 4.01 as designated on the of?cial tax map of Seaside Heights, Commonly known as 302 Boulevard, Seaside Heights, New Jersey. The property in question is located on the east side of the Boulevard between Franklin and Hamilton Avenues and has an area of approximately 20,000 sq. ft. The site contains an existing and closed former bar known as ?Merge? on the south side (Franklin Avenue side) and a gravel parking lot on the north side (Hamilton Avenue side) of the property. Plaintiff, C.S. Boulevard Properties, Inc., is a property owner within 200 ft. of the propertyin question and therefore quali?es as an interested party under the Municipal Land Use Law. The property in question is located in the Retail Business (RB) Zone. Bars and taverns are permitted uses in the RB Zone provided the same are incidental to a restaurant use. The applicant af?rmatively established that he will operate the site as a restaurant and agreed, at the suggestion of the Board, to add a permanent dining area which will contain tables and chairs con?gured in a way that typically represents a dining room, and which tables and chairs will not be removed for the purposes of dancing or entertainment. The applicant required certain bulk variances for rear yard and front and side yard setbacks. The public hearing was held on April 23', 2014' and the applicant and the objector were heard personally and through counsel. The Board engaged in an interactive dialogue with the applicant and objector in order to address a variety of concerns raised during the hearing. As a result, the applicants agreed to revise the hunt yard setbacks and building facade to hem accordance with other comparable establishments along the Boulevard in Seaside Heights, to construct a knee wall to screen existing HVACkompreSsor units on the roof from the plaintiff?s property to east, to move new HVAC units to an alternate location to reduce noise and to further screen the same. At the conclusion of the public hearing, the Board voted to approve the application. On May 28, 2014, the Board met again in a public hearing to memorialize the application. Plaintiff and defendants/ applicants also appeared at that time and Were both heard on the form of the Resolution. The Board thereafter memorialized the Resolution. The actions of the Board were reasonable, appropriate, and grounded upon substantial credible evidence in the record. In addition, the approval granted by the Board was the result of a dialog between plaintiff and defendants/ applicants which resulted in a land use approval designed to accommodate the interest of the parties, the public and in keeping with the character of the historic land uses along the Boulevard in the Borough of Seaside Heights. I William T. Hiering (1946?2005) Frank I. Dupignac, Jr. Richard D. Stanzione Certi?ed Civil Trial Attorney Hiering, Dupignac, Stanzione, Dunn Beck, P.C. ATTORNEYS AT LAW Lynne A. Dunn Also Admitted in FL PA Rule 1:40 Quali?ed Mediator Michael R. Beck Also Admitted in NY Paige E. Baran Also Admitted in NY Michael R. Stanzione Also Admitted in PA September 8, 2014 Hon. Vincent J. Grasso, A.J.S.C. Superior Court of New Jersey Courtroom 211d Floor Ocean County Court House PO Box 2191 Toms River, New Jersey 08754 ?Re: C.S. Boulevard Properties, LLC v. The Borough of Seaside Heights Planning Board; Saddy Family, LLC and 2-4-6-8 Bouelvard, LLC Docket Number PW Dear Judge Grasso: . Enclosed please ?nd original and one copy of Pretrial Memo on behalf of defendants Saddy Family, LLC and 2?4-6-8 Boulevard, LLC, together with original and two cepies of defendants? Factual Statement, with respect to the above matter. By way of-a copy of this letter I are providing each my adversaries with a copy of the defendants? pretrial memo. Thanking you, I remain, ReSpectfully yours, a IGNAC, DUNN BECK, P.C. - RICHARD D. STAN ZIO {Hide RDS/lmd Enos. cc: Guy Ryan, Esquire (w/enc. Edward F. Liston, Esquire (W/enc.) pretrial memo'dc?c 64 Washington Street, Toms River, NJ 08753 732.349.1212 -- 732.349.1217 - - 732.349.1240 Real Estate FILING ATTORNEY: RICHARD D. STANZIONE, ESQUIRE N.J. ATTORNEY ID NO. 012951974 HIERING, DUPIGNAC, - STANZIONE, DUNN BECK, P.C. 64 Washington Street Toms River, New Jersey 08753 732-349-1212 Attorneys for Defendants, Saddy Family, LLC and 2-4-6-8 Boulevard, LLC C.S. BOULEVARD PROPERTIES, I LLC, a limited liability company of the State of New Jersey, Plaintiff, - V. THE BOROUGH OF SEASIDE HEIGHTS PLANNING SADDY FAMILY, LLC, and 2-4?6-8 BOULEVARD, Defendants. 1. NATURE OF ACTION: Action in Lieu of Prerogative Writs. SUPERIOR COURT OF NEW. JERSEY LAW - OCEAN COUNTY DOCKET NO. CIVIL ACTION PRETRIAL MEMORANDUM OF DEFENDANTS SADDY FAMILY, LLC AND 2-4?6-8 BOULEVARD, LLC 10ADMISSIONS AND STIPULATIONS: None. FACTUAL AND LEGAL CONTENTIONS: Annexed hereto. DAMAGES AND INJURY CLAIMS: None. AMENDMENTS: None. ISSUES AND EVIDENCE PROBLEMS: See attached ?Issues and Evidence Problems.? LEGAL ISSUES ABANDONED: None. EXHIBITS: . marked below. EXPERT WITNESSES: None. Trial is based on transcripts of hearings held on April 23, 2014 and May 28, 2014. BRIEFS: As ordered. ORDER OF OPENING AND CLOSING: Usual. ANY OTHER MATTERS AGREED UPON: I None. 14. 15. 16. 17. 18. 19. TRIAL COUNSEL: Richard D. Stanzione, Esquire ESTIMATED LENGTH OF TRIAL: One-half day. WEEKLY CALL FOR TRIAL CALL: As scheduled. ATTORNEYS FOR PARTIES CONFERRED 0N MATTERS THEN AGREED UPON: Attorneys for parties have not conferred. IT IS HEREBY CERTIFIED THAT ALL PRETRIAL DISCOVERY HAS BEEN COMPLETED, EXCEPT: None. PARTIES WHO HAVE NOT BEEN SERVED AND PARTIES WHO HAVE DEFAULTED: 1 None.- HIERING, DUPIGNAC, BECK, P.C. Dated: September 8, 2014. #3-4 - Factual and Legal Contentions FACTUAL CONTENTIONS The Applicants Saddy Family, LLC and 2-4-6-8 Boulevard, LLC (?Applicants?) applied for a renovation and expansion of the existing Merge bar/ restaurant. The use is permitted in the Retail Business (RB) Zone but required a front-yard setback variance on the Boulevard of 1/ 10?u of a foot when 10 feet is required and setback on the Franklin Avenue side of the property of 1/101?11 of a foot when 10 feet is required. Applicants, the owners of the property located 30-2 Boulevard, Seaside Heights, New Jersey, also known as Lots 66 and 51 in Block 4.01 as designated on the Of?cial Tax Map of Seaside Heights, New Jersey (?the Site?), applied to the Borough of Seaside Heights Planning Board (?Board?) for Preliminary and Final Site Plan Approval and the above-referenced bulk variances (?Application?). Public hearings were held on April 23, 2014 and May 28, 2014. During the hearings the Board entertained the testimony of John Saddy, the principal of Saddy Family, LLC and the prospective general manager of Merge; Edward Angster, P.E., P.P, L.S., R.A., the Applicant?s engineer/ planner; and Vincent Craparotta, a property owner within 200 feet of the Site, and the principal of Plaintiff, C.S. Boulevard Properties, Inc., and the sole objector to the Application (?Objector?). At the conclusion of the testimony, the Applicant represented that they would be-willing to amend the plans to address the Obj ector?s and the Board?s concerns, including, but not necessarily limited to, constructing the front-yard setback in accordance with the setback of a nearby restaurant, Hemingway?s (also owned by the Obj ector); moving the proposed HVAC unit and constructing a knee wall around the HVAC unit; adding a permanent dining room; moving the proposed bar and expanding upon the current kitchen; adding a refuse container on the east side of the structure a minimum of 32? from Objector?s preperty line; using reduced-sized recycling containers; and complying with the suggestions-of the Township Engineer as set forth in the Technical Revisions and/ or Corrections section of the Engineer?s April 21, 2014 memorandum and set forth in the Res'olution of Approval attached hereto at Tab 1. At the conclusion of the hearings, the Board voted to grant the Application and granted a variance for the rear-yard setback, a variance for the front-yard setback and granted a design waiver for off-street parking and further required the Applicant to submit revised plans incorporating the agreeduupon modi?cations. LEGAL CONTENTION I. THE APPROVAL OF THE VARIANCES REQUESTED WAS NOT ARBITRARY, CAPRICIOUS AND UNREASONABLE. Applicant satis?ed the relevant standards applicable to set back variance applications pursuant to N.J.S.A. and 70c(2) and as set forth in Wilson V. Brick Township Zoning Board of Adjustment, 405 NJ. Super. 189 (App. Div. 2009), affd, 2011 WL 2410049 Super.A.D. May 06, 2011) (attached hereto at Tab 2 pursuant to the court rules). Defendant Board applied the applicable standards and issued an approval that is not arbitrary and capricious, as evidenced in the hearing transcripts and con?rmed in the Resolution of Approval. #7 Issues and Evidence Problems 1. Was the approval of the Application arbitrary, capricious and unreasonable? . 2. Was the approval of the Application supported by substantial credible evidence in the record below? - 3. Did the Board apply the proper variance standards to the Application? #0 Evidence List 1. Evidence submitted in connection with Saddy and 2-4-6-8?s Application: A. Application; B. April 8, 2014 Site Plan prepared by Edward F. Angster, P.E., P.P, L.S., R.A. entitled, ?Site Plan, Lot 66 and Westerly 100 Lot'51, Block 4.01, Seaside Heights, Ocean County, New Jersey?; I C. December 10, 2013 Survey prepared by Edward F. Angster, RE, PP, L.S., R.A. entitled, ?Survey of Property, Lot 66, Block 4.01, Seaside Heights, Ocean County, New Jersey; D. April 24, 2012 Survey prepared by Edward F. Angster, P.E., P.P, L.S., R.A. entitled, ?Survey of PrOperty, Lot 51, Block 4.01, Seaside Heights, Ocean County, New Jersey? E. April 8, 2014 plans prepared by Edward F. Angster, P.E., P.P, L.S., R.A. entitled, ?Proposed Plans for Temptations, Block 4.01 and Lots 66 and 51, 302 Boulevard, Seaside Heights, Ocean County, New Jersey; Copy of application to Ocean County Planning Board. 2. Transcripts from the April 23, 2014 and May 28, 2014 hearings; 3. Resolution No. 14-10 of the Seaside Heights Land Use Board adopted on May 28, 2014. Family, LLC and 2-4-6-8 Boulevard, LLC et als adv. C.S. Boulevard Properties, LLC\Pleadings\Pretrial Memo.doc EXHIBIT 1 Bl. 4.01 Lot 66 308 Boulevard - Saddy Fam?ilyTrust,LLC 4/23/2014 RESOLUTION NO. 14? 10 SEASJDE HEIGHTS LAND USE BOARD WHEREAS, SADDY FAMILY, LLC and 2-4-6-8 BOULEVARD, LLC, whose mailing address is 709 Woodchuck Lane, Toms River, New Jersey, 0875 8, have applied for Preliminary and Final Site Plan with variances affecting premises located on Lots 66 and 51 in Block 4.01, as designated on the Official Tax Map of Seaside Heights, commonly known as 302 Boulevard, Seaside Heights, New Jersey; and WHEREAS, such proof of service as may be required by New Jersey Statutory and Municipal Ordinance requirements upon appropriate property owners and governmental bodies has been furnished; and I WHEREAS, a public hearing was held on the said application on April 23, 2014 in the Municipal Building of Seaside Heights and testimony and exhibits were presented on behalf of the applicant and all interested parties having been heard; and WHEREAS, the said Board, having considered said application, testimony, exhibits submitted, and ?om its inspection of the site, itmakes the following determinations: 1. The applicant was represented by Richard Stanaione, Esq. 2. John Saddy and the applicant?s engineer/planner testi?ed in support of the application. The area of development has an area of approximately 20,000 square feet. 3. The area of development is in the Retail Business (RB) Zone. - 4. The applicant seeks Preliminary and Final Maj or Site Plan Approval associated with additions to and expansion of the existing Merge bar/restaurant building including new outdoor seating areas. w/ I 5. CS. Boulevard Properties, Inc, a property owner within 200 feet appeared in opposition to the application. Edward F. Liston, Jr., Esq, appeared on behalf of the objector. The applicant?s principal, John Saddy, testi?ed as follows, to wit: A. He will be the general manager of the operation. B. The land is owned by the col-applicant, Robert Bennett of 2-4-6-8 Boulevard, LLC and SaddyFamily, LLC. The liquor license is owned by Temptations, I LLC. C. He has an agreement to have the restaurant within the existing operated by the operators of the former Diamond?s Restaurant, ivhich was located at the Surf Club in Ortley Beach, before it was destroyed by Hurricane Sandy. D. The three bars along the Boulevard in the existing building will be combined into one front bar. Along the patio, the applicant proposes to have an outdoor bar. He intends to have separate bathroom facilities for private parties. E. The applicant intends to also have comedy club events and mystery theatre events, in addition to dining. F. The applicant wishes to expand the existing kitchen by three to four times the size, but due to time constraints will utilize the existing kitchen for'2014. G. The applicant proposes backlighted signs and neon signs similar to existing establishments in the area. H. The applicant will utilize a recycling company and reduced size dumpsters to recycle all recyclable materials. The applicant will have suf?cient space for these dumpsters. I. The applicant will utilize the Borough?s trash collection. .T. The applicant anticipates two liquor deliveries per week, but will have daily bread deliveries during the summer. K. Mr. Saddy testi?ed about his intention to construct future phases of the project. L. The applicant is prepared to add benches and shade trees consistent the streetscape along the Boulevard. - M. The applicant will maintain the existing gravel parking lot, likely to be. utilized via self and valet parking. I N. Mr. Saddy testi?ed that the facility will function principally as a restaurant during the hours of operation. - 0. Upon cross-examination, Mr. Saddy testi?ed that phase one will constitute an expansion of the existing building by approximately 30 feet to the north. P. Mr. Saddy testi?ed that he will have Diamond?s Restaurant offer a limited menu for restaurant purposes. He classi?ed it as a bar and restaurant, not as a The tables are designed to slide underneath a stage, so the dining area can be converted into a dance ?oor. The trash area is located adjaCent to a residence to the east, the swim as has been existing for 30 years and as was purchased by the current owner next to a Q. Edward F. Angster, P.E., P.P-., L.S., R.A., testi?ed in support of the application. He testi?ed regarding the cantilever roof (overhang) and the sliding patio roof. R. The applicant proposes a front yard setback on the Boulevard of 1/ 1 0"?1 of a foot, where 10 feet is required. The applicant also proposes a 1/ 10th of a foot setback on the Franklin Avenue side, with a 42? glass wall or railing, With pull down canvas sides, and the rolling patio roof. I S. The Applicant agreed to a condition that approval will be subject to a grant of an additional sewer lateral from the borough, as required. An additional transformer will be required for the building expansion, and the applicant agrees to comply with approvals from the borough electrical department with regard to the transformer location, which shall be re?ected as a note on the plans. The kitchen will be ekpanded into the current gravel parking area. T. New HVAC units are proposed to be located on the ?at roof, and will be restricted to NJDEP standards of SO Db standards and, if necessary, the applicant will construct a knee wall for sound deadening purposes as well as aesthetics. U. The applicant proposes two trench drains of approximately 100 feet long each, 18 inches wide and 2 feet deep. The existing site is almost 100% impervious, so the applicant will be improving storm water management and prevent adverse effects on adjacent properties. V. The applicant agreed to comply with the Technical Revisions and/or Corrections section in the review letter of the board engineer, dated April 21, 2014. W. Upon cross-examination, Mr. Angster testi?ed that the building is currently set back 10 feet from the property line along the Boulevard, presently complying with the Borough?s set back requirements. The applicant is proposing to have essentially a zero setback from the property line, leaving eight feet of area for sidewalk to the curb. X. The board?s engineer clari?ed the phasing of the project: Phase 1 will 4 include the existing second ?oor on the existing building. The glass wall along the Boulevard will also be installed as part of Phase 1. The curb cut will be eliminated on . the Boulevard and access to the gravel lot will be accessed from the curb cut on Hamilton Ave. The phasing plans should be addressed on the architectural plans and the applicant agreed. I Y. VinCent Craparotta, Jr., a property owner within 200 feet, testi?ed in opposition to the application. He also owns the property where Hemingway?s is located. The liquor license for. HemmingWay?s is owned by his wife. The area in front of Hemingway?s is 17 feet to the curb, with a 5 foot fenced in area, leaving 12 feet from the fencing to the curb. z. The Objector introduced Exhibit 01. MI. Craparotta testi?ed that the proposed sidewalk size in front of proposed site will be reduced to 7 feet, and that part of that area is occupied by benches and trees, making the area insufficient for pedestrian I access, in Mr. Craparottais opinion. AA. The Obj ector also introduced Exhibit 0-2 containing photos of the front yard setbacks in ?cnt of various including Merge, the Pool Club, Savor/Karina and the Bamboo Bar. Mr. Craparotta testi?ed that the applicant plans to build out into the front yard setback with approximately 10 feet of pavers which-were installed by the Borough. Mr. Craparotta testi?ed that the reason the Borough had increased, the size of the sidewalks during the prior Boulevard renovations was for pedestrian safety. He testi?ed that by allowing encroachment into this area, pedestrian safety would be reduced. I BB. The Obj ector introduced Exhibit 0-3 which were various photographs of side yard setbacks at various bars. including the Bamboo Bar, Hemingway?s, Savor, The Pool Club and the subject property. CC. The Obj ector introduced Exhibit 0-4 which contained photographs of the roofs of various liquor license establishments showing HVAC units and other utilities on such clubs as the Bamboo Bar, Merge, I-lemmingway?s, Savor and others. DD. Mr. Craparotta testi?ed that the Bamboo Bar and Savor have 40 feet of parking lots as buffers between their HVAC units on the roof and the neighboring properties. In contrast, the applicant has existing HVAC units on a ?at roof within 4 feet of a residential property, which is owned by the objector. BE. The Obj ector introduced Exhibit 0-5 which was a marked up site plan of the applicant?s property. Mr. Craparotta testi?ed that he believed the applicant is actually expanding the into a residential area. He also testi?ed that the architectural plans submitted by the applicant are vague and he would expect the applicant to have more detail if the applicant actually planned to Open the establishment this summer. I I RF. Upon cross examination, Mr. Craparotta admitted that he would still be objecting to the project even if the railings along the Boulevard were moved back 12 feet from the curb line. I GG. Upon further cross examination, Mr. Craparotta agreed that he Would'be I satis?edlif the applicant would move the hew HVAC systems to the center of the project, with a redesigned ?at roof in the center, with a barrel roof in the front and rear. The applicant thereafter agreed to modify the plans. EH. Mr. Craparotta testi?ed that he believes the side yard setbacks need to be 6 feet in order to have adequate ?re exists especially with a 30? or 36? doors. II. The Board engaged in an interactive dialogue with the applicant and suggested the applicant make revisions to the plans- As a result thereof, the applicant agreed to construct a front yard setback to the railings and building facade in accordance with the setback at Hemingway?s from the curb to the railing and building facades of the private establishment area. The applicant also agreed to construct a knee wall to screen the existing HVAWcompressor units on the ?at roof of the existing building for screening from the Obj ector?s preperty to the east. The applicant further agreed to move the new HVAC units for the existing building to the center on a ?at roof, between a front and rear barrel roof on the existing building. The applicant also agree to locate the new HVAC system units and compressor units, for the building expansion 32? to the north, on the ?at roof over the expanded kitchenfbathroom area adjacent to the applicants property to the east and install a knee wall to screen the new units on the building expansion to the north. H. In addition, to address concerns about whether or not the applicant would construct a facility that. complied with the provisions of the RB Zone, and was not a the applicant agreed to add a permanent dining room of approximately 32 feet in length to the north of the existing building, and to amend the site plan application accordingly. In addition, the applicant agreed to move the pr0posed bar that was intended to be part of the ?outside enclosure? to the north as part of Phase 2. I The ?outside enclosure? will now be enclosed into a permanent dining area and the current kitchen will be expanded. I K. The Board directed that the Board Engineer verify the front and side yard setbacks for railings and building facade and that any-approval provided that the setbacks for front and side yards must be the same as other businesses along the Boulevard, in particular Hemmingway?s. The applicant further agreed to comply with all Health - Department conditions. LL. Robert J. Bennett, Jr., principal of 2-4-6-8 Boulevard, LLC, testi?ed that he thought that the Objector bought the residential property to the east of the application Speci?cally to object the project just like he has purchased other properties near the applicant?s businesses in order to object. MM. The applicant agreed to add a refuse enclosure on the east side of the property a minimum of 32? distant from the Objector?s' property line and the applicant will return to the Board, if necessary, for site plan amendment but the applicant wishes to still maintain the south refuse area for loading and unloading. NN. The applicant had previously constructed a billboard on telephone pole size pilings facing to the north. The Board agreed to allow the applicant 120 days to either seek Board approval for the continued use of the pilings as part of another permitted use or to remove them. 00. The applicant agreed to provide revised plans to comply with all of the foregoing set forth above. 7. The following person(s) appeared to question the applicant and make statements with regard to the proposal: None, other than as detailedabove. 8. The Board reviewed the following evidence, to wit: A. The application. B. ?Site Plan, Lot 66 and Westerly 100 FT Lot 51, Block 4.01, Seaside Heights, Ocean County, New Jersey?. The drawings, consisting of two (2) sheets, have been prepared by Edward F. Angster, NJPE #13450. The drawings are dated April 8, 2014 with no revision dates indicated. I C. f?Survey of Property, Lot 66, Block 401, Seaside Heights, Ocean County, New Jersey?. The drawing, consisting of one (1) sheet has been prepared by Edward F. Angster, #13450. The drawing is dated December 10, 2013 with no revision dates indicated. I D. ?Survey of Property, Lot 51, Block 4.01, Seaside Heights, Ocean County, New Jersey?. The drawing, consisting of one (1) sheet has been prepared by Edward F. Angster, #13450. The drawing is dated April 24, 2012 with no revision dates indicated. B. ?Proposed Plans for Temptations, Block. 4.01 and Lots 66 and 51., 302 I Boulevard, Borough of Seaside Heights, Ocean County, New Jersey?. The drawings, consisting of three (3) sheets, has been prepared by Edward F. Angster, NJRA #06316. The drawings are dated April it, 2014 with no revision dates indicated. F. Copy of application to Ocean County Flaming Board. - 9. The Board makes the following ?ndings, to wit: A. This application does not require a use variance pursuant to 40:5 5D?70d as bars and taverns are permitted uses in the RB Zone provided the same are incidental. to a restaurant use and the applicant af?rmatively testi?ed that he will Operate the site as a restaurant and agreed, at the suggestion of the Board, to add a permanent dining area, which will contain tables and chairs configured in a way to typically represent a dining room, and which tables and chairs will not be removed for the purpose of dancing or type entertainment. B. The application requires the following bulk variance. for a rear yard setback where 3 feet is required and 2.0 feet are existing-and pr0posed. Borough Code Section C. The application requires a bulk variance from the front yard setback requirements Were 10 feet is required, where 9.6 feet is existing from the Boulevard and less than 10 feet is preposed along Hamilton Avenue, Franklin Avenue and along the Boulevard. Borough Code Section D. - This "application requires a design waiver for off-street parking, Borough Code Section where retail business uses shall supply parking at one parking space for 500 square feet of gross ?oor area, and where the applicant proposes no formal paved and striped off-street parking. E. The purposes of the Municipal Land Use Law would be advanced by the deviation from the. zoning ordinance requirements for the approval of the variance. The variance can be granted without substantial detriment to the public good, the bene?ts of the deviation will substantially outweigh any detriment and the variance will not substantially impair the intent and purposes of the zoning plan and zoning ordinance of the Borough of Seaside Heights. i. . The Board finds that the applicant has compromised with applicant?s neighbors by agreeing to construct a knee wall to screen the existing HVAV/compressor units on the ?at roof of the existing building for screening from the Objector?s property to the east. The applicant further agreed to move the new HVAC units for the existing 10 building to the center on a ?at roof, between a front and rear barrel roof on the existing building. The applicant also agree to locate the new HVAC system units and compressor units, for the building expansion 32? to the north, on the ?at roof over the expanded kitchen/bathroom area adjacent to the applicants property to the east and install a knee wall to screen the new units on the building expansion to the north. - The applicant also agreed to use reduced sized recycling refuge containers, by complying with Health Department conditions, by adding a refuge enclosure .on the east side a "minimum of 32? distant from the Objector?s property line, by maintaining but limiting the south refuge area for loading and unloading of products and supplies, by adding a permanent dining room and by adjusting the setbacks from its original plans. G. The Board ?nds that the relief requested is not of such a magnitude as to be _a detriment to the public good nor an impairment of the intent and purpose of the zone plan. H. - The bulk variances referred to above can be granted without subatantial detriment to the public good becauSe the same are consistent, as amended, with existing setbacks along the Boulevard for _similar businesses in the surrounding area. i I. The design waiver for parking can be granted because the Board ?nds that the current metered spaces on public streets in the area as well'as the availability of off- street private parking lots adequately supports the need for public parking. I The site previously operated as a without off?street parking and several surrounding I restaurants/bars inthe RB Zone likewise successfully operate and accommodate patrons without off-street parking. I. With regard to the previously-constructed billboard on telephone pole size 11 pilings facing to the north, the applicant shall have 120 days from the date of adOption of this resolution to either seek Board approval for the continued use of the pilings as part of another permitted use or to remove them. NOW, THEREFORE, BE IT RESOLVED, by this Board, based on the ?ndings herein above stated, it docs hereby grant the application subject to the following conditions: A. Applicant should obtain any other approvals with respect to the submission from any other Federal, County, State or Municipal Agency having jurisdiction over same, including approvals, if any, for the glass wall as may be required by virtue of its location adjacent to a state highway and county roadway. B. Applicant. should re-subrnit this entire proposal should there be any deviation from this Resolution or the submitted documents, which are hereby made a part hereof and shall be binding on the applicant. C. Applicant shall construct at applicant?s sole cost and expense all improvements re?ected on the submitted documents. D. The relief granted hereunder shall be rendered null and void should the applicant fail to commence construction within 1 year of the date of this Resolution. E. The applicant shall comply with all representations and agreements made by the applicant or the applicant?s representative during the consideration of this application. F. The applicant shall comply with all of the Engineer?s conditions as set forth in the Engineer?s memo dated April 21, 2014 in the ?Technical Revisions andfor Corrections? Section. G. The applicant shall redesign the project in accordance with the agreements reached with the Board at the public hearing, including but not limited to, redesigned front and side yard setbacks, construct a knee wall to screen the existing HVAVfcompressor units on the 12 ?at roof of the existing building for screening from the Objector?s property to the east. The applicant shall further move the new HVAC units for the existing building to the center on a ?at roof, between a front and rear barrel roof on the existing building. The applicant shall locate the new HVAC system units and compressor units, for the building eXpansion 32? to the north, on - the ?at roof over the expanded kitchen/bathroom area adjacent to the applicants property to the east and install a knee wall to screen the new units on the building expansion to the north. to prevent noise from in?ltrating away ?om the site, construction of an area dedicated as a permanent dining room, modi?cation of- refuge' containers a minimum of 32? distant from the Objector?s property line and modi?cation of the loading zones as agreed to by the ?aming Board. A material and non-waivable condition of this approval is that the application shall submit revised plans, subject to review and approval by the Board Engineer, con?rming the revisions and modi?cations agreed to during the public hearing. H. The applicant shall add a permanent dining room of approximately 32 feet in length to the north of the existing building, and subinit revised plans clearly depicting this dining room. I. I The ?South Refuse Area? shall no longer be used for storage of refuse but maybe used for loading and unloading of products and supplies needed to operate the facility. The applicant shall submit revised plans accordingly. 13 Resolution 14-10 - B1. 401 Lot 66 308 Boulevard - Saddy Family Trust, LLC Moved by: John Camera Seconded by: Harry Smith ROLL CALL VOTE Those in Favor: John Camera; Bob Brewer; Harry Smith; Art Ascoli; Mayor Bill Akers. Those Opposed: John Martinez. Those Absent: Frank C. German; Frank German; Lou DiGuilio. Those Not Voting: Steve Sanzone (con?ict of interest); Peter Jarkezian (arrived too late to vote). I hereby certify that this is a true and accurate copy of the aforesaid Resolution memorialized by the Seaside Heights Planning Board on May. 28, 2014. Dated: 94 - %A?r ANN STABILE, Seeretary EXHIBIT 2