The guest speaker at the March 10 AHLOA Trustees meeting was Jeffrey Hesley, Avalon Zoning Officer. A summary of his comments follows: Zoning controls the use of property for single family homes, duplexes, commercial or multi-family units in town through the different districts and controls that are in place. Approximately 80% of the borough is zoned for single family homes.

Some of the factors looked at during the zoning evaluation of an application include:

• Density: - This ensures that the plans for a building on a lot conform to lot coverage, setback and height.
• Coverage: - The lot coverage, of 27%, relates to the footprint of the structures only. An additional 11% is allowed for decks and porches. Impervious Coverage relates to man-made surfaces and cannot exceed 65%. This includes swimming pools. Under the Landscape Ordinance 15% of the lot must be greenscaped.

The Floor Area Ratio, which is the ratio of habitable area to the size of the lot, cannot exceed 70% of the lot area. Setbacks are the distances from the front side and rear lot lines. There are setback requirements for accessory buildings, pools and equipment amongst other things. The rear yard setback is 25 feet except for some bulkhead lots that have an upland depth of less than 110 feet, or if the property is a corner lot. The bulkhead lot setback is designed to give a consistent line of house. Supplemental criteria govern Signs, Violations and Enforcement. The sign ordinance limits the number and size of signs on a property. Contractor signs must be removed 48 hours after Certificate of Occupancy (CO) has been issued. Signs placed on public property will be removed as soon as they are noticed. The biggest argument regarding structures is the matter of Height. The building height is determined from the top of block, which is one foot above flood, to the peak of the roof, and must not exceed 30 feet.]

The application process involves a plan review to determine that the use conforms to the zone. There has to be a plot plan and zoning schedule; all elevations must be marked on the plan and storm water management and landscaping plans must be included. Surveys must be carried out by an engineer licensed in New Jersey and are required when the structure has been laid out, when the foundation has been completed and when the peak of the roof has been framed. All plans for commercial properties go to Planning and Zoning Board for a site plan review.

The complete Zoning Ordinances are located in Chapter 27 of the Ordinances of the Borough of Avalon, site plan requirements are located in Chapter 26. The basis for the ordinances comes from N.J.A.C. Title 40, Municipal Land Use Law. Ordinances cannot be retroactively enforced. The Compliance Procedure is:

1. Survey showing setbacks relative to the lot lines.

2. Survey showing the setbacks of the building and the building height relative to flood level.

3. Final Survey showing all structures on the lot.

A good architect will gang all equipment together, such as a pool filter, HVAC, etc. and place them in one location. If a permit is denied the homeowner will get a letter of denial with the reason for the denial. The owner can reapply with a corrected plan, in which case the process starts over again. Alternatively the owner may apply to the Planning and Zoning Board for a variance to allow for nonconformity to exist, or for an interpretation of a zoning ordinance. Pre-existing nonconformities are handled as follows:

1. An owner can add to a nonconforming structure so long as the nonconformity is not increased. If the structure is demolished and rebuilt it must conform to the current ordinances.

2. Nonconforming uses may be enjoyed or updated with proper permits; no variance is required. It may not be expanded without a variance, nor may it be demolished and rebuilt in kind without a variance.

Zoning Enforcement

The Enforcement Officer is responsible to investigate complaints, rectify violations and issue summons. The Zoning Official conducts a plan review, approval or denial and will rectify or mediate violations.

The Deputy Zoning Official conducts field investigation of violations, substitute plan review and denial and a field verification compliance of final surveys.

Items that are NOT under the purview of the Zoning Official include trash/recycling violations, motor vehicle parking, noise, adherence to the construction code, rental inspections, sidewalks and curb cuts and nuisance complaints.

If it is noticed that trees are being cut down, Zoning should be called.

If sidewalks are in bad condition call the Construction Office.

The heart of Avalon's high dunes runs from 44th Street to 58th Street. The majority of the area bears the zoning designation public conservation [PC]. It is a heavily wooded and zealously protected area with restricted beach access, yet it contains a handful of highly prized residential properties each with a private driveway for ingress and egress. The residential properties, which predate the borough's zoning and dune ordinances, are designated single family residence [R-1AA], but redevelopment plans for two of the parcels have brought about a highly spirited debate between local property owners and government entities. It's a very fractious exercise in which private property rights, a municipality's zoning authority, the state's duty to protect environmentally sensitive land, the strength of an agreement between state and local government and the welfare of the public are all under scrutiny. [Source: A newsletter entitled SOUNDINGS published by Brian & Jane Campbell of Avalon Real Estate Agency].

1994 - A state aid agreement was signed between the NJDEP and Avalon which prohibits the construction of swimming pools, tennis courts and similar structures in the dunes. The agreement was a contingency to Avalon receiving state and federal funds for a beach replenishment project.

1998 - The Environmental Commission was asked by the Avalon Zoning Board to comment on a request by Michael Rice to reconstruct the property at 5299 Dune Drive. The Environmental Commission held a hearing and presented their recommendations to the Zoning Board. They pointed out that the footprint of the new structure did not comply with the Zoning Ordinances then in effect. In addition the applicant was questioned as to compliance with the July 1994 State Aid Agreement signed by NJDEP and the Borough of Avalon.

1999 - Notice was received of a CAFRA application filed by Michael Rice to redevelop the property at 5299 Dune Drive. The Environmental Commission incorporated many of the comments made to the Zoning Board in the response to the CAFRA application. Notice was received by the Borough and the Environmental Commission that CAFRA application had been denied by DEP.

2000 - Mr. & Mrs. Michael Rice purchased the 1.2 acre dune-top property at 5299 Dune Drive with plans to build a 20,000 sq. ft. home.

2001 - After the permit application was rejected by the Avalon Environmental Commission and the Planning Board, the owners appealed to the NJ Department of Environment and the DEP also rejected the application. The owners appealed to a New Jersey administrative law judge, who urged the DEP to negotiate a settlement with the owner. A compromise was reached, without notifying or involving Avalon officials, that downsized the size of the home to 15,000 sq. ft., gave permission to build a pool, and required the owners to place deed restrictions on the open portions of the property preventing future construction. It was further required that construction must begin no later than five years from the date of the settlement. This was all accomplished without notifying the Borough that an appeal had been made and the first the Borough knew about it was when the case was presented to the Planning Board long after a settlement had been reached between the NJDEP and the applicant.

2002 - Avalon's Planning Board approved the application based on the negotiated settlement between NJDEP and the owners.

2006 - In the spring, construction began at 5299 Dune Drive and this touched off action by the Borough and a group of interested citizens named SAD [Save Avalon's Dunes}, who are very much opposed to what was happening in the dunes. The Planning/Zoning Board, after months of public meetings, approved amendments to the Beach Protection Ordinance and forwarded it to Borough Council for their review and approval. Borough Council approved the amended ordinance and submitted it to DEP for their review and approval. A key addition to the ordinance requires the Avalon Environmental Commission to be involved in review by the NJDEP of applications for development within the Beach Dune Area. Also, officials of the Borough, Planning Board and Environmental Commission had several meetings with DEP officials to explain these amendments and urged them to expedite their review and approval. In addition, at the urging of these same local officials, a bill has been introduced in the state legislature amending the Coastal Area Facilities Review Act [CAFRA] to require the DEP to give written notification to coastal municipalities when it enters into discussions that may lead to settlements with property owners. SAD members attended many of these Planning Board and Borough Council meetings that included the Beach Protection Ordinance on the agenda and voiced their support of the changes as well several others.

In July, an application submitted by Seven Mile Island, LLC, came before the Planning Board as SAD was rallying against the Rice construction and residents came out in numbers against building a new home and pool at 5109 Dune Drive to replace an existing home on the property. The Planning Board denied two variances requested by Seven Mile and decided because of that it did not have to consider whether the application should be granted under the beach protection ordinance.

Several lawsuits have been filed:

[1] SAD filed a lawsuit against the Rices, the Borough and the DEP, challenging the construction of a new home and pool on high dunes property owned by the Rices at 5299 Dune Drive.

[2] The Rices filed a lawsuit against the Borough to compel them to issue a permit to build a pool. The Borough had refused to issue a permit to build a pool in light of the 1994 State Aid Agreement.

[3] Seven Mile Island, LLC, filed a lawsuit against the Planning Board and the Borough claiming that a variance for lot frontage should be granted because the size of the lot was grandfathered and could not be enlarged to meet current size requirements. It also maintained that no application was required under the beach protection ordinance because it is preempted by the DEP's CAFRA regulations.

2007 - On January 18, Superior Court Judge Steven Perskie ruled that the construction of the Rice property can continue because it has all the required approvals and directed the Borough to issue a pool permit. Seven Mile Island , LLC, won its challenge of the planning Board's denial of one variance and abandoned the other , but the judge would not decide the preemption issue and referred it back to the Environmental Commission. The attorney for Seven Mile Island, LLC, has indicated they will probably go back to the environmental commission and will ask that panel to accept the plan that DEP has already approved, which includes a pool. SAD can continue to challenge DEP but has to do so at the appellate court level. The judge decided he did not have the jurisdiction to consider the DEP's approval of the Rice home and pool. According to SAD's attorney, they intend to do so and he believes that action will be taken within a short time. In directing the borough to issue a pool permit, the judge cautioned that the Rices were proceeding at their own risk by putting in the pool. Stephen Barse, Avalon's Borough Solicitor, was informed by the DEP that giving a permit for the swimming pool would not be considered a violation of the State Aid Agreement and would not result in state fines and as a result "the borough is in a position where it will have to issue the pool permit".

We will keep you informed of any further developments.

Sources: Articles in the Herald Newspaper, written by Christine Cote; Articles in the Atlantic City Press, written by Brian Ianieri

DESERT SAND MOTEL & MIRAGE RESTAURANT

On October 3, 2006, the Planning/Zoning Board heard an informal review of plans to convert the existing Desert Sand Motel and Mirage Restaurant into 132 hotel/condominium units, 2,000 square feet of retail space, a 3,000 square foot restaurant, a 3,200 square foot banquet facility with 2,280 square feet of banquet support service area, a pool area and multi-level parking garage. The building height proposed is 56.33 feet. It will, also, include a conference center and 105 - (1) bedroom units, 25 - (2) bedroom units and 2 penthouses for a total of 132 units with 2 stacked parking spaces for each unit on the 5 floors. Since this was an informal review, there were no public comments from the large group in attendance and no vote was taken by the Board. The applicant stated they will consider the questions and comments from the Board and return with a preliminary and final site plan.

As of December 5, 2006, no plans have been submitted and we will keep you advised of this project.

As of March 1, 2007, the parties involved in the Desert Sand Hotel and Mirage Restaurant have withdrawn their applications.