ZBA# A public hearing on this matter was conducted by the Board on February 21, Block 21, Lot 14 on the Tax Map

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1 A RESOLUTION OF THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF HADDONFIELD ISSUING AN INTERPRETATION OF THE ZONING ORDINANCE UPON THE APPLICATION OF YEASTIE BOYS, LLC ZBA # A public hearing on this matter was conducted by the Board on February 21, APPLICATION NUMBER: PROPERTY ADDRESS: NAME OF APPLICANT: OWNER OF PROPERTY: ZBA# Kings Highway East Block 21, Lot 14 on the Tax Map Yeastie Boys, LLC Gibbs Tavern Associates, 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) Richard Hoff, Esquire, Applicant s Attorney Robert Hochgertel, Applicant s Managing Member 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: 13 6 x LOT AREA: 884 +/- square feet STREET FRONTAGE: 13 6 STRUCTURES LOCATED ON LOT: Existing commercial building. NATURE OF APPLICATION 1. Applicant seeks an interpretation from the Board that its proposed use, a nanobrewery is a permitted use under Section D, Figure D and Section which permits retail use in the D-4 Downtown Commercial Zone. 2. In the alternative, if the Board determines that the proposed nano-brewery is not a permitted use then Applicant seeks a use variance to allow the proposed use in the Downtown Zone. Application and supporting documents. Power Point Presentation with slides. SUBMISSIONS SUMMARY OF TESTIMONY AND EVIDENCE The Applicant s attorney provided an overview of the application. Counsel stated that the application was being presented in phases. The first phase was testimony relevant to an interpretation that the proposed nano-brewery meets the functional test of a retail use which is permitted within the D-4 Zone. If the Board were to issue an interpretation that the proposed use was not permitted under the terms of the ordinance then the Applicant would move forward with testimony and evidence in support of a use variance. The most obvious question presented by the application and addressed by the Applicant was how a brewery could be permitted in an otherwise dry town? Counsel indicated that although Haddonfield does not authorize or issue any Class C retail consumption licenses, the town itself is not dry because local establishments are permitted to allow customers to consume alcoholic beverages on their premises. In fact, the only actual prohibitions relating to alcohol sales are found in Chapter 65 of the township general ordinances which prohibit the sale of alcoholic beverages on Sundays, on Borough property, or to minors. There are no traditional bars or restaurants which sell and serve alcohol Page 2 of 7

3 because the Borough has chosen to not issue any Class C plenary sales licenses. However, due to recent changes in state legislation, a new category of alcoholic beverage licenses has been created. Specifically, in 2012 the New Jersey legislature created new categories of liquor licenses. Among those changes was the creation of a statute which allowed for the brewing and selling of small lots of beer in what have become characterized as nanobreweries. There are multiple restrictions imposed by the statute and operational guidelines issued by the State of New Jersey. For example, no other products other than those brewed on premises can be sold. No food can be sold. There are no televisions or other types of devices allowed and anyone visiting the location must tour the brewing facilities prior to any purchase. It is that new type of nano-brewery that is now permitted by statute and which is the nature of the applicant s proposed use. Robert Hochgertel, the managing partner of the Applicant, then testified. He indicated that he is one of five principals in the business all of whom live in Haddonfield. In order to provide some sense of the scale of operation which is proposed for this location he compared their proposed production of approximately 300 barrels per year to Flying Fish which produces 24,000 to 30,000 barrels per year and Anheuser Busch produces approximately 135,000,000 barrels per year. The Applicant does not intend to produce beer for distribution to other retailers or sources even though such is allowed by statute. Instead, he envisions the operation as more akin to a coffee house. That is, the organic product beer will be brewed on site and then sold to retail patrons. They are limiting what they sell for offpremises consumption to growlers which are 16 or 32 ounce containers. They do not intend to produce kegs or the like for sale to third parties; they will limit their production to meet the demands of on-site consumption and on-site retail sales. Although all of the principals have an interest in the brewery industry, they do intend to hire a professional brew master if and when they secure proper licensing. Mr. Hochgertel then described the brewing process that will be followed by the operation. In response to some questioning about specific concerns, he indicated that the raw materials for the beer barley is packaged in pound sacks. The malts which are what give the different varieties of beer their flavor are purchased in smaller quantities. Any byproducts such as spent grain is given to farmers for animal feed. There is no substantial odor created by the brewing process, although the process does give off steam. That will be vented through the roof through an existing ventilation system. As noted by counsel, there are severe restrictions on the operation of these nano-breweries. For example, they can only sell their own product, not the products of other manufacturers. They cannot sell food nor wine nor other outside liquors. They will not have a kitchen and will not be selling food and they cannot provide entertainment. They will allow people to bring food in. However, they anticipate the more common scenario for their customers to take a growler with them to dinner at restaurants in town. He noted that there will be seating for approximately persons. In response to questioning concerning how this differs from any other bar and the concerns of people drinking too much and becoming intoxicated he said there were two responses to that concern. First, the craft beers tend to be more expensive than what is typically sold at a neighborhood type bar so it would be a very expensive way to sit and get drunk. He also indicated that the state requires that all servers Page 3 of 7

4 and employees be TIPS (Training for Intervention Procedures) certified. That is a program which trains individuals for how to detect and deter intoxicated persons from being served alcohol in commercial establishments. He said the more typical customer will probably purchase flights which are multiple samples of beer varieties, usually between 3 and 5 oz. each. Individual beers will be available probably in 8, 13 and 16 oz. glasses. In summary, he characterized the operation as being very similar to a coffee house of which there are several in town. And, in that regard, meet the criteria for a retail use as opposed to say a manufacturing use. Moreover, they also will be selling beer themed materials such as t- shirts, mugs, hats and the like. Several members of the public testified concerning the application. The first was Remi Fortunato, the retail recruiter for Downtown Haddonfield. She analogized the nano-brewery to the juice bar which recently gained approval to operate along Kings Highway. She also felt that the proposed use would be in keeping with the nature of the retail zone and would be an overall benefit to the downtown. Becky Elmuccio of 308 Grove Street identified herself as a local homeowner and business owner and a fifth generation resident. She thought that the proposed use was consistent with the Downtown retail zone and would be a benefit. Bob Wagner of Lincoln Avenue then testified. He identified himself as the owner of two different licensed premises, at least one of which is in Medford. He indicated that Medford now has new breweries and he expressed the opinion that so long as everybody follows the rules the system works extremely well. That is, there has been no adverse effect on his licensed businesses from the introduction of nano-breweries. Jason Carty, the Chairman of the Garden State Craft Brewery Guild, testified concerning how these nano-breweries have been treated in other communities. He testified that in a number of towns they have been determined to be retail uses and in others variances have been granted. He noted that there are currently 68 limited licensed breweries in the state of New Jersey and that the numbers continue to grow. Lisa Morgey of Pitman also testified. She is the president of the Pitman Chamber of Commerce. Two nano-breweries have opened in Pitman recently. Pitman, like Haddonfield, was a dry town in that it did not issue any Class C retail consumption liquor licenses. Their experience has been very positive and has been a boon to the Downtown Zone rather than a detraction from it. Finally, Susan Maslowski, the owner of Jay West, also spoke win favor of the application and expressed the belief that it was a retail use that belonged in the Downtown Zone. Page 4 of 7

5 FINDINGS OF FACT AND CONCLUSIONS 1. The subject property is located in the D-4 Downtown Commercial Zone. 2. The permitted use in that zone is retail. The ordinance defines retail use as follows: A place of business engaged in selling tangible goods or merchandise to the general public for personal or household consumption and rendering services incidental to the sale of such goods or merchandise. Travel agencies are retail uses. 3. As described by the Applicant, the nature of the proposed use fits the criteria for a retail use. They will be in the business of selling tangible goods and merchandise; to wit, beer and beer-related items such as clothing, glassware, and the like. The sales will be made to the general public for personal and household consumption. There was testimony that the Applicant does not intend to sell beer by the barrel or keg to either other retail outlets or commercial facilities. 4. Although Applicant will be producing or generating its product on site the process described does not appear to be a typical manufacturing process. Rather, much like a coffee shop which grinds and roasts its beans before making its coffee, or the juice bar which grinds and peels its fruits before creating its drinks, or even a bakery which mixes its ingredients and bakes them in an oven before serving, the nano-brewery operates in a similar manner. It takes raw, organic product or materials and processes them in such a way so as to create a product for retail consumption. 5. Based upon the evidence presented and the description of the use set forth on the record, the Applicant has met its burden that its proposed use constitutes a retail use under the ordinance and the Board does hereby so interpret the ordinance. 6. 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 subject to the conditions below, the Board finds that the applicant s proposed use satisfies the requirements of a retail use and is therefore permitted in the D-4 Downtown Commercial Zone. This interpretation is being given pursuant to the authority granted to the Board under N.J.S.A. 40:55D-70(a). Page 5 of 7

6 CONDITIONS OF INTERPRETATION 1. The actual development and use must comply with the plans and conditions submitted with the application and in support of the application. 2. Applicant must comply with all other applicable ordinances and codes including but not limited to building codes and fire codes requirements. 3. The Applicant must operate its business in the manner described as part of the application for an interpretation. Specifically, the production must be limited to volumes necessary for the retail sale of the product for both on-site and off-site consumption only and not for wholesale distribution to third party retailers or other commercial enterprises. Sales for on-site consumption must be made only in conjunction with a tour of the brewery. The Applicant must not prepare or sell food as part of its retail operation nor provide entertainment or other nonbeer amenities such as televisions, live entertainment or other forms of commercial activities. Sale for off-site consumption shall be limited to individual servings known as growlers as opposed to packaged goods (such as six packs) or kegs or other similar vessels for sale. All servers must be TIPS trained and certified. All sales must be made on the premises. 4. This interpretation is specific to the conduct of the business as described not only the application, but the sworn testimony and does not apply to any other proposed use. 5. Applicant s right to conduct its proposed business is subject to approval of its license by the state of New Jersey and nothing herein should be construed as an actual approval to operate a nano-brewery. Motion to issue interpretation: Johnson; seconded by Rubino Board members voting in agreement with the interpretation: Kuritzkes, Burns, Baltake, Partenheimer, Baum and Fahey. Board members voting against the interpretation: Mulholland 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 Mach 21, 2017, memorializing action taken by the Zoning Board on February 21, Page 6 of 7

7 Stephanie Heim, Board Secretary Page 7 of 7