MLUB Denies Application Of Easy Fitness With Jeannie
By Saul Qersdyn
Published: June 1, 2014 @ 9:00 AM EDT
After two meetings that lasted for a combined time of over six and a half hours, the Municipal Land Use Board (MLUB) denied the application for Easy Fitness With Jeannie located at 293 West Clay Avenue at the end of the April 21st MLUB meeting and was memorialized as a resolution May 19th.
The first meeting, which had noticeable errors in protocol and procedure that included not only the unprecedented practice of having residents swear in during the public hearing that was not explicitly determined to be testimony, simply a ‘public comment portion’, but also having only some members of the public sworn in while others were not. Also, the Board held a hearing for a parking variance which was not legally allowed to be heard due to the wording “any and all” not being included in the public notice provided by the applicant’s attorney; that omission only allowed for a variance hearing on whether or not the business could be allowed to function in the designated business zone. Additionally, the MLUB’s own bylaws were violated when the legal meeting went past 10 p.m., the time set by the board’s regulations and possible vacant Board seats were not appointed in time for either hearing.
This last issue was brought up during the second April meeting when Ralph Ortiz, a MLUB member who had recused himself from the application due to a personal conflict of interest (he started a petition against the business) stated publicly that he had resigned from the Board over a month previous. If his resignation had been accepted, a replacement could have been appointed who could have sat and heard the application, as Glenn Costello did (who was not present during the first meeting). Mr. Costello had to sit and listen in on the audio of the first meeting and certify to having done so. Board Alternate Scott Nicol, who has not sat in on all but one meeting since being appointed, did not attend this meeting.
This left the applicant needing a unanimous vote since only five (5) members were available to hear each part of the application. Three (3) MLUB members had to recuse themselves from the hearing due to being within the proximity to the application being heard and Carl Pluchino could not hear it either, being the municipality’s Code Construction Officer and involved in summonses issued to the business last year.
The final decision of the Board was 4-1 in April against the variance to allow the business to operate in a B-1 zone, having voted down an interpretation that the business was not a gym but a wellness center at the previous meeting.
Victor Vinegra from Harbor Consultants, stated, “It’s difficult doing an interpretation. It’s an old ordinance . . . When this ordinance was drafted, these uses didn’t exist.”
During the first meeting in February, the MLUB held an interpretation phase of the application to determine if the wording of the ordinance could be interpreted to include one aspect of Easy Fitness With Jeannie – the exercise equipment. During that meeting, the municipal planner, Victor Vinegra from Harbor Consultants, stated, “It’s difficult doing an interpretation. It’s an old ordinance . . . When this ordinance was drafted, these uses didn’t exist.”
Mr. Vinegra was referring to the time period that the ordinance, which does not mention a comprehensive view to overall health which would, today, include exercise as well as diet and physical therapy – the last two things being allowed uses in a B-1 zone.
This was later re-iterated when he stated, “This ordinance is very old and doesn’t include a lot to things. There’s a lot of things missing that is permitted.”
“It’s a tough call,” Mr. Vinegra said, “I agree with a lot of their testimony, what they’re saying, except for one. they do [have] exercise equipment . . . The wellness, we felt that was included. The retail sales were definitely included. In-house consul we felt was included. Homeopathic [care], sure, we felt that was included. But the exercise portion we felt that this use would not be in a B-1 zone.”
The Borough Planner continued with his findings, commenting that under the B-1 allowed businesses, institutional and public uses had provisions that listed something very similar to the exercise equipment portion of Easy Fitness With Jeannie, but that it was related to sports clubs. He remarked, “If a soccer club wanted to have clubhouse, they could do that there [in that location]. It’s kind of odd, they could have a club house there.”
“It’s splitting hairs,” Mr. Vinegra added regarding the interpretation, “But that’s what zoning officers do. They’re being maybe a little overly safe . . . The majority of the uses they’re listing are permitted but the exercise equipment.”
Ms. Kurz responded,”There’s a reason the codes say what they say. Hopefully, they’re going to be followed by what it says there is.”
During the public comment/testimony portion of the meeting, both opposers and supporters of the application; notably among them were former Roselle Park Mayor Joseph DeIorio who not only owns a property at 305 East Clay Avenue but is also the son of Gilda DeIorio, the owner of Iorio Deli and Casa di Martino’s, one of the next door neighbors of Easy Fitness With Jeannie who have had reports dealing with disputes between the applicant and, before then, George D’Agostino – the property owner of 293 East Clay Avenue. The owners of the business on the other side of Easy Fitness with Jeannie, Paragon Ballroom, did not attend the hearings.
Those against the application spoke of parking becoming a problem but none could state with any certainty that the issue was from Easy Fitness With Jeannie since there is a banquet hall and dance studio on either side of the applicant’s business. Under questioning from the applicant’s attorney, people admitted that parking issues existed during the hours and days that Easy Fitness With Jeannie was not in operation. Others claimed safety was an issue and that numerous calls had been made to the police since Easy Fitness With Jeannie had been in operation. An OPRA request by Roselle Park News during that time period showed that out of the only dozen or so calls made regarding parking and noise, six (6) of those calls were called in by Chris Tucci. Mr. Tucci is a former Roselle Park Police officer who is, by several accounts, an employee of Iorio Deli. It was discovered that during that same time period, three (3) burglary alarm calls were dispatched to 301 West Clay Avenue for Iorio Deli.
There was even one complaint filed by the owner of 293 West Clay Avenue requesting that the police move an unauthorized vehicle from its property.
After testimony, comments, and discussion by Board members, the Board brought the matter up for a vote. Even though the applicant provided testimony that her business was not a gym – where anyone could walk in at any time and start using weights or aerobic equipment – and based on a schedule in line with a health/dietary program which included use of gym equipment, the MLUB voted unanimously that the interpretation did not allow for Easy Fitness With Jeannie to operate under the B-1 zone. The second potion of the hearing proceeded with listening in on a variance to allow her business to remain in the B-1 district.
After testimony was provided for the variance and, again residents and clients gave their comments, the Board realized that a portion of the variance, for additional parking, was not part of the application. Diane Kurz, who was the Chair of both hearings due to the aforementioned conflict that prevented both the Chair and Vice-Chair from hearing the matter, was the only Board member who pushed to have a vote during the February meeting. This after the applicant, Ms. Mendes-Doman, stated she would be willing to comply and/or work with outside parties as well as residents to find a compromise to address their concerns and parking. Ms. Kurz, a former Chair of the Roselle Park Republican Committee who took over in that position for then Roselle Park Mayor Joseph DeIorio, was out-voted 4-1 to have the hearing adjourned for another month, and was the only Board member who did not want to afford Ms. Mendes-Doman the opportunity to address parking and concerns of the opposers. The use variance and parking variance were to be heard at a second meeting.
A misprint in the public notice from the applicant’s attorney delayed the hearing from March until April.
Ms. Mendes-Domain stated, “Ideally, I think for both myself and my neighbor, if we shared the parking lot… that would be the ideal situation. I’ve asked the neighbor if we had the option of doing this and it was not entertained.”
During the second meeting, Ms. Mendes-Doman stated that she looked at alternatives for off-site parking, going to local business such as DJ’s Limousine, Children’s Specialized Hospital, Well Done Building Products, and even organizations like the Church of the Assumption to propose to rent out parking spaces but none were available. Ms. Mendes-Doman even stated she tried to approach Mrs. DeIorio to find an arrangement to share the parking lot between the businesses since the hours for each business, for the most part, do not conflict, but was not accepted by Iorio Deli/Casa di Martino. Ms. Mendes-Domain stated, “Ideally, I think for both myself and my neighbor, if we shared the parking lot, drew out spaces within both our parking areas because our businesses don’t operate around the same time, that would be the ideal situation. I’ve asked the neighbor if we had the option of doing this and it was not entertained.”
When asked why, she added, “Because of some dislike between the neighbor and my landlord. So, because of that friction between the two landlords there was nothing I could do to make anything work with them.”
To support her position that parking is a problem regardless of her business, Ms. Mendes-Doman provided photographs showing parking violations made not by her clients but others, when there was ample parking on the streets. Photographs included that of a water delivery truck, a van parked on the yellow curb which was not a client of “Easy Fitness With Jeanie, and someone using her business’ lot who were not her customers. The applicant noted that Iorio Deli/Casa di Martino has a parking variance for their business that allows for only seven (7) parking spaces but that she noticed on quite a few occasions that there were a lot more than the allotted amount in the parking lot.
Between January and the publication of this article, Roselle Park News took and obtained photographs showing parking violations at 301 West Clay Avenue and provides a small sample below:
Mrs. Mendes-Doman went on to state that she has explicitly notified her clients to be mindful of where they park and that they should not block the driveway, “I have expressed to my customers, members, clients, how important it is that they follow the parking laws.”
She even had her clients leave their keys at the front in case anyone comes in asking to have a car moved.
Ms. Kurz did note that the Board had requested that the applicant have engineer provide testimony as to parking but that the applicant did not do so.
The public comment portion again had supporters and opposers to the application come forward to speak. One resident even brought out that an ordinance regarding angled-parking, was outdated and needed to be revised and updated to be removed from the borough code. Once more though, when those who came forward were directly asked if Easy Fitness With Jeannie was solely responsible for issues with parking, no one could state that was the case. This was re-iterated when Ms. Mendes-Doman concluded her closing statements by stating, “I find it hard to believe that the issue of parking is solely on the shoulders of my business.”
The Board then discussed the variance before voting.
Mr. Al Nitche, who did not mention whether he visited the business personally stated, “Parking is an issue. It remains an issue.”
Mr. Paul Baiamonte, commented, “I find this very very difficult for both sides. I went up and down all times of day and night including 15 minutes before this meeting [and] drove past. There were no cars in the right of way.”
He stated that the times he went when Easy Fitness With Jeannie was operating he did not find it difficult to park and that there had been a lot of spots open. Additionally, Mr. Baiamonte commented that he drove by one day when Easy Fitness With Jeannie was not operating where the parking lot at 301 East Clay Avenue was full and street parking was also full. He concluded, “So I kind of feel it may just not be her business that’s causing this . . . I don’t know how to fault one person for the problem.”
Mrs. Kurz commented, “I kept coming up with negatives.”
Ms. Kurz provided a statement, which she read for the record. In her statement Mrs. Kurz stated, “I want business in Roselle Park. I want them to be successful and I think that your presentation was excellent and that the business that you offer is a business that’s necessary and wonderful for our town and so when I was doing my research and thinking and trying to decide of what I thought of everything last month. I needed help and I went to certain places to get help for myself and I’m going to review with you what I looked at for me to come up with how I feel about how I’m going to vote. I am not going to make you wait for it, I am going to vote ‘no’ on this. I want you to know that but I want to put on the record so you understand why I’m going to do that. Some of it may sound, well, it doesn’t matter, it’s what I came up with as the board member trying to do my due diligence and the best that I could do as a board member.”
Ms. Kurz stated she had wanted an engineer to testify, and that she analyzed five (5) categories in reaching her decision: positive criteria, negative criteria, how the application affects the municipal master plan, how the application affects the general public, and how the application affects surrounding properties. In reviewing her criteria, Mrs. Kurz commented, “I kept coming up with negatives.”
In concluding, the Board Chair remarked, “This part is a little difficult to for me to say because I do not want to disparage you in any way. I have the utmost respect for you but I felt like that, this is my personal opinion, I felt like that you started with the town with, and unclean hands is probably the wrong term to use but I couldn’t think of another one, I know that in Union your studio was an aerobics studio and here now it’s a nutritional wellness center thing and I had… I know that your landlord helped with the initial application and having you come into the town so I can’t help but think that you were duped in a way so that set up a wrong to begin with.”
After all testimony, comments, and discussion, the vote was taken and with only Mr. Paul Baimonte voting ‘yes’ and the four remaining Board members voting in the negative, the application was denied.
An appeal was filed by Jeannie Mendes-Doman in May to have the application heard before a New Jersey Superior Court.