Four applications were on the Planning and Zoning Board agenda for November 14, 2023:
Two of the applications involved the same property at 335 6th Street. Both applications involved the existing installed pool on the rear of the property that faces a small private alley that intersects Inlet Drive. At issue is the classification of that alley as a public street per a decision reached in State Superior Court. Given the classification as a public street, the properties along that alley with 6th Street frontage have effectively two front yards, and the existing pool, which was constructed with previously issued permits, was now effectively installed in the 2nd front yard. The Borough, as a result of the classification, issued an order to have the pool removed.
The first of the applications sought a variance for the pool to remain under a combination of the C1 and C2 provisions. The 2nd application focused on an appeal of the zoning officer’s decision. Council for the property owner focused on the interpretation of street versus alley versus private driveway, and how the variance request could satisfy both C1 and C2 requirements. A group of property owners along the 6th Street and Inlet Drive alley/street presented counter arguments against allowing the pool to remain, with the opposition group represented by opposing council. Expert witness explanations and public opinion expressed by both the applicant and the the opposing property owners was heard.
After much, sometimes heated debate and expressed opinion, the six members of the Board who were present and authorized to vote discussed their opinion and questioned various owners who presented opinions/facts. After some deliberation, the final vote was deadlocked at 3/3 (for and against), and since a zoning variance must pass with a simple majority of the vote, the request was denied due to the tie.
The 2nd application was briefly discussed and ultimately postponed for a future P&Z session due to the fact that an appeal is pending in State Superior Court to overturn the judge’s decision to classify the private drive as a public street. The decision in Superior Court will obviously impact the 2nd application, so further consideration in Avalon will await the outcome in the court. In the interim, the Borough will not take any action to force the removal of the pool. Thus, the situation remains in a "wait and see” status for subsequent action at a future P&Z meeting.The 3rd application involved primarily the existing installation of an outdoor spiral staircase connecting the 1st and 2nd floor decks at property located at 3845 Ocean Drive. Council for the applicant, along with testimony from the applicant, focused on the fact that the 2-year old staircase was installed primarily to provide for emergency egress from the 2nd floor, to the 2nd floor deck, to the first floor deck, and then into the rear yard. The existing staircase was installed on the side-yard area of the property, and although not actually touching the ground, the airspace of the staircase extends too far into the side-yard navigable area, thus violating existing ordinance. The violation was triggered by a fire inspection of the property conducted as a result of Applicant’s filing for a mercantile renters license. With the staircase encroaching on the side-yard setback requirements, the violation was issued and the rental license was denied.
The variance as presented by Applicant and council was focused on the C2 provision with the argument being that the benefit to 2nd floor egress / emergency exit being far greater to public health and safety versus an approximate 2-foot violation in the side-setback requirement.
One member of the public whose property in not near the Applicant’s spoke against the variance request to emphasize that the set-back rules are there for a legitimate reason, and that even in the absence of any adjacent property owner opposition, the violating staircase may present future issues if the Applicant’s property or that of its neighbor were sold in the future.
After a brief period of questioning by members of the Board, the formal vote once-again ended in a 3/3 tie, and thus the application was denied.The 4th and final application scheduled for the evening was briefly discussed by council for the Applicant of the property located at 419 24th Street. The application involved a variance for the construction of a 3rd floor on the existing building and other less significant but related variances. Given the lateness of the hour, which would impact whether or not the application could be completed within the legal end time of the meeting, and given the fact that the 6 voting members of the Board were unable to break the tie on the prior two applications, it was agreed to postpone the hearing until the December 12 P&Z meeting, which will address this variance application as the initial agenda item in December.
