A RESOLUTION OF THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF HADDONFIELD DENYING VARIANCE APPROVAL TO MPOWER YOGA, LLC ZBA #

Transcription

1 A RESOLUTION OF THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF HADDONFIELD DENYING VARIANCE APPROVAL TO MPOWER YOGA, LLC ZBA # A public hearing on this matter was conducted by the Board on February 21, 2017 APPLICATION NUMBER: ZBA# PROPERTY ADDRESS: NAME OF APPLICANT: OWNER OF PROPERTY: 115 Kings Highway East Block 21, Lot 9 on the Tax Map MPower Yoga, LLC 115 Kings Equities, LLC DATE OF HEARING: February 21, 2017 BOARD MEMBERS PRESENT AND VOTING: ALSO PRESENT: APPEARANCES: Linda Kuritzkes, Chair Kevin Burns, Vice-Chair Susan Baltake Brian Mulholland Wayne Partenheimer Ed Baum Dominic Fahey (Alternate I) Jennifer Johnson (Alternate II) Ron DiPietro (Alternate III) Marc Rubio (Alternate IV) Damien O. DelDuca, Attorney for Applicant Jeffrey Tucker, Applicant s Owner Todd Day, Borough Engineer Stephanie Heim, Zoning Officer & Board Secretary Francis X. Ryan, Esquire, Board Solicitor ZONING DISTRICT: D-4 PROPERTY DESCRIPTION Page 1 of 7

2 LOT DIMENSIONS: x 147 LOT AREA: 4,950 +/- square feet STREET FRONTAGE: STRUCTURES LOCATED ON LOT: Existing commercial building DEVELOPMENT PROPOSAL 1. Operation of a combined yoga studio and retail shop selling yoga-related products. VARIANCES REQUESTED 1. A variance from Section D-4(b)(1) which limits use in the zone to commercial and a Personal Services III use is proposed. SUBMISSIONS Application and supporting documents. A-1 Zoning Map A-2 Photograph of existing store and projected façade SUMMARY OF TESTIMONY AND EVIDENCE Applicant s attorney gave an overview of the case. The proposed use is that of a yoga studio and retail sales outlet for yoga-related goods as well as compatible health and lifestyle goods. The property in question is part of the old Steven Wisely Jewelry building. Counsel acknowledges that a yoga studio in and of itself would be a Personal Services III use and not be permitted in the zone. However, he contended that they met the requirements for variance relief. The principal of MPower Yoga, Jeffrey Tucker, then testified. He provided some of his business background and noted that he currently operates a separate business, Tucker Company Worldwide out of 56 North Haddon Avenue. His personal interest in yoga has now grown to an interest in developing it as a commercial venture. According to his due diligence he found that over the last four years the yoga industry has seen significant increases in sales as well as the number of practitioners with expectations that it will continue to rise. His Page 2 of 7

3 proposed development is to create a studio that will enable independent contractor instructors to generate a business which they can own or hire instructors as employees and enable them to share in the profits of the business. With regard to the retail aspects of his business, he indicated that the sale of yoga related materials will be an important part of his venture. He indicates that they will sell items such as mats, blocks, straps, clothing, and other types of equipment. He is also hoping to introduce new innovative products that will be manufactured locally (albeit offsite), but will create a local feel that will generate greater interest in those materials. He also described the number of classes they hope to conduct and also their weekly schedule of business. The applicant also called upon the testimony of Creigh Rahenkamp, a licensed New Jersey planner who was qualified by the Board as an expert witness. In setting forth his traditional variance analysis the witness indicated that he was going to present same in reverse order. He believed there were three major changes that had taken place in Haddonfield and throughout the country for that matter since the ordinance was adopted. The first was a change in the yoga industry. In that regard he drew a comparison between golf and tennis shops which previously only existed to provide needed materials to athletes whereas now those retail outlets are much more substantial and generate independent foot traffic. The next is change in retail; he described the battles downtowns such as Haddonfield have been fighting over the years to combat other delivery systems. He described the early phenomenon as increasing the quality of goods and selling them in small boutique locations in order to set themselves apart from the more mass merchandiser available through the internet. However, that has also changed in that high quality boutique level items are available through the internet and the new way to challenge that phenomenon is by adding an experience that can be associated with a particular product. One example would be the kitchen supply store that now has less shelf space, but conducts cooking classes. He felt that people coming to a yoga studio would also be drawn to additional retail activity. The final change was the emphasis on localized goods. He echoed Mr. Tucker s testimony that they will be selling products that are logoed as made in Haddonfield and will try to find other local unique products for example, vegan makeup that can only be found locally with which the internet outlets cannot compete. He felt that this proposed use would help create the type of retail activity which advances the goal of this particular zone as evidence by the substantial retail display. He felt that the proposed use advanced at least three purposes of the MLUL: sub-paragraph (g) which talks about the variety of uses; sub-paragraph (m) which speaks to the efficient use of land and sub-paragraph (a) which discusses the general welfare. He could identify no real detriments from a zoning perspective. It would not generate noise, nor light, nor vibration nor any other type of impairment that could affect surrounding uses. With regard to the potential parking issues he opined that there was enough downtown parking in the immediate area and that such should not be a problem. Jacqueline Carle of Centre Street spoke in support of the application. She felt that there would be a symbiotic benefit between the people coming to yoga class and not only the Page 3 of 7

4 retail outlet within the store, but also adjoining stores and restaurants. Melanie Reeder of 24 Kings Highway North in Cherry Hill testified. She owns the property at 123 Kings Highway East and operated her business at that location for a number of years. She also had a type of business, an accent studio, in which part of the operation was retail and part of it was non-retail. Specifically, the back of the space was used for glassworks to allow individuals to fabricate goods. She found that over time the non-retail use took over and overshadowed the retail use. Eventually, she and her business partner did away with the retail aspects of their business and moved the glassworks part of their operation to another location. She felt that the yoga studio would eventually overshadow the retail use to a point where the retail use could be de minimis. She also indicated that the proposed hours of operation for the proposed business would deter retail customers as opposed to yoga practitioners looking to practice yoga in class. Thus, she felt that while the business could be valuable as a draw for traffic, it did not belong at this particular location. Guy Elzey of 317 Bellevue Avenue then testified. He described himself as a thirdgeneration Haddonfield resident. His family owns approximately 25 stores in town and he has spent the last 35 years managing properties. He serves on the HPC as well as the Partnership for Haddonfield. He identifies himself as a strong supporter of the downtown zone and its retail district. He expressed the opinion that this proposed use is really just a yoga studio and really not a retail outlet. While he is strongly in favor of this type of use, he does not believe it appropriate for this location. He cited experiences that he has had over the years trying to resurrect the downtown zone. He expressed the opinion that the allowance of a non-retail use in the retail district would be damaging to the retail district. He felt that this business would eventually evolve into just a yoga studio and that was not an appropriate use, because there are other spaces in town available for this use there is no need to grant a variance for this particular location. He also felt that this use would have an adverse impact on parking in that it would create more dense parking uses for extended periods of time when compared to the typical traffic patterns and parking patterns associated with a retail use. Suzanne Mackey of Hickory Lane who identified herself as an obesity medicine physician expressed support for the application. She feels that any type of business that encourages walking or yoga or healthy exercise should be encouraged. By way of rebuttal, the Applicant indicated that the retail location would be open on a continuous basis. However, the Applicant then conceded that he had no idea as to what percentage of his revenue would be generated by the retail aspects. He also indicated that during classes the retail portion of the store would necessarily have to close since there would be no personnel available to service it. He also indicated that while classes were going on, if a retail customer did come in that there would be no room available for them to try on clothes or the like because that area would be occupied by yoga practitioners. Various members of the Board expressed concern that the personal service use predominated, and Page 4 of 7

5 the associated retail was not an important element of the use. They were concerned about as to how this use was particularly suited to this location and how to possibly condition the establishment and continuation of the retail use to be more in keeping with the downtown zone. FINDINGS OF FACT AND CONCLUSIONS 1. The subject property is located in the D-4 Downtown Zone. The existing use in the property is that of a clothing store operating under the tradename Fun In the Sun. 2. The proposed use combines elements of a yoga studio which is a personal services Type III under the Haddonfield Ordinance and a retail store which is a permitted use under the D-4 Zone. The general downtown zone district was adopted as a significant reorganization and redrafting of the downtown element of the Haddonfield Master Plan. The current ordinance was adopted in There was a revision in 2012 which further divided the D-4 Zone into a D-4 and D-4A; the latter Zone characterized as non-core. Figure D to the zone ordinance which is Section 135 attachment 3 was further amended in 2012 to correct an error on the table and did not make any substantive change. 4. While the Board recognizes that there have been changes to the retail environment since the adoption of the ordinance, the preservation of the D-4 Downtown Zone or core area as a retail zone only is obviously one of the points of emphasis under the current zoning scheme. The ordinance clearly expresses a preference that personal service facilities or operations not be included in the core area of the downtown zone. This is to encourage an emphasis on retail uses and the continued appeal of the downtown zone as a shopping district. 5. The Board is concerned that the retail aspects of the Applicant s proposed use is limited and obviously secondary to the proposed yoga studio. The Applicant had no projections as to what percentage of its business would be generated by its retail activity. The Applicant also indicated that the size of the retail element would likely be adjusted in response to the level of activity. That suggested that at some point the retail component could be little more than a few items for sale, which is not in keeping with a retail operation. 6. The Board also finds it disconcerting that the retail portion of the location would not be open to customers on a continuous basis during normal retail hours. Instead, there was testimony that the retail portion of the store would have to be closed off while classes were underway. Due to the large number of classes that were being considered on a daily basis it left little time for retail sales. The Board further expressed concern as to how it could appropriately impose conditions on the Applicant s operations to assure a strong retail presence. There was debate over whether they could impose a physical condition; that is, so Page 5 of 7

6 much square feet needed to be dedicated to retail. The other alternative was defining the number of hours that the retail area would need to be open and available to customers. There were reservations about the Board imposing those types of conditions on a businessperson. 7. The Board expressed concerns that it would not be able to properly condition any approvals in such a way to ensure that the proposed used, while not permitted under the ordinance, would not have a detrimental effect on the surrounding properties. And, it was felt that having retail space only open during limited hours while other activity was going on could have a detrimental effect on the adjoining stores. 8. Accordingly, the Applicant has not established entitlement to relief under N.J.S.A. 40:55(D)-70(d) in that it has not established any significant benefit deriving from this particular use in this zone. To the contrary, there was testimony that other properties are available that would be more conducive to this use and would be consistent with the permitting zoning and therefore there was nothing about this particular location that made it especially suitable for the proposed activity. 9. The relief requested cannot be granted without violating the spirit and intent of the zoning ordinance, the zone plan and the Master Plan which places a significant emphasis on retail use in the core downtown D-4 Commercial Zone. 10. Due notice has been given in accordance with the Municipal Land Use Law (N.J.S.A. 40:55D-1 et. seq.) and the rules of the Board of Adjustment. RESOLUTION NOW, THEREFORE, BE IT RESOLVED, by the Zoning Board of Adjustment of the Borough of Haddonfield, that the Applicant has not satisfied its burden of proof and therefore the application for a variance pursuant to N.J.S.A. 40:55D-70(d) shall be and is hereby DENIED. Motion by: Baum; seconded by Fahey Board members voting to grant the requested variance: Burns, Mulholland Board members voting to deny the requested variances: Kuritzkes, Baltake, Partenheimer, Baum and Fahey Page 6 of 7

7 CERTIFICATION I hereby certify that the foregoing is a true, accurate, and complete copy of the resolution of memorialization adopted by the Zoning Board at its regular monthly meeting on March 21, 2017, memorializing action taken by the Zoning Board on February 21, Stephanie Heim, Board Secretary Page 7 of 7