The Hopewell Borough Planning Zoning *Board met Monday, January 29, to hear the appeal of Lyn Farrugia regarding Aunt Chubby’s Luncheonette’s outdoor dining area. Farrugia, the proprietor of the restaurant, received permission to construct the outdoor seating area under COVID-19 special ordinances. In order to make it safer and more stable, Farrugia said she recently chose to replace the wooden deck with stone, a well-intentioned decision that put Chubby’s afoul of zoning ordinances. Ultimately, the Board ruled to accept the patio as an acceptable change under the special ordinance, with conditions. However, those present at the meeting – including some members of the public during Public Comment – used this hearing as an opportunity to discuss transparency and communication in the Borough.
In June of 2020, New Jersey Executive Order 157 was issued to ease the burden of COVID-19 lockdowns on the public. Among other things, this order allowed restaurants to use materials that were not commercial grade and extend seating into temporary locations without a formal zoning change. For most restaurants, this meant putting tables out in parking lots or on sidewalks for the public to use. Chubby’s had an outdoor lot that was large enough for the purpose, but too uneven and muddy to be practical. Farrugia worked with an architect to design a stable and level deck using spare construction materials. The architect’s plans were approved by the Planning Board with the condition that they continued to comply with fire and safety regulations, and Farrugia was given permission to “maintain and repair” this temporary structure.
The special ordinances are still in place and have been extended several times over. By 2023, the deck had been patched twice, but was reaching irreparable levels of wear. Farrugia said that the instability of the surface and tripping hazards that it caused left her with no real choice but to have the entire deck torn out and replaced. Rebuilding the deck in its original form would have been an expensive endeavor, though, even with low-quality materials, she explained Instead, she hired landscapers to install deck stones on a bed of sand. The stones were donated, and to the best of Farrugia’s understanding, the material was not relevant as this new patio had the same footprint as the old deck but was more stable and safe. The work was done over a pre-scheduled two-week maintenance closure.
However, as Farrugia would soon learn, the new patio put her at risk of serious fines due to a zoning violation. A stone patio is considered a permanent and impervious structure under zoning law, whether it’s laid in a bed of sand or sealed with concrete. The new patio was complete and Aunt Chubby’s Luncheonette was about to re-open, but Farrugia was suddenly faced with what she thought was an incredibly harsh choice: remove the new structure immediately and return it to “pre-COVID conditions,” or face thousands of dollars in fines per day of violation.
It came out in the hearing that this seeming ultimatum was a miscommunication between the zoning board representative and Farrugia. Farrugia was never issued an official citation – only an informal notice that she had committed a violation. She also was told she had the right to submit an application to the zoning board for the new patio, which would immediately stop any fines or punitive measures. By submitting an application immediately, she could avoid any fines at all. Even so, that application required more than $3,000 in fees, as well as representation from an attorney and a review of the site by an engineer. The expense would be very large and difficult to handle.
At the appeal meeting, Farrugia’s defense was very extensive. It was made not only to demonstrate that the patio filled the same purpose as the original deck, but to demonstrate that the error was made in good faith and with no intention of violating any local ordinances. Between this defense, the ensuing discussion, and public comment, the hearing took a full three hours. Borough Council member David Mackie apologized on behalf of the Borough for all of the time, emotional distress, and financial hardship that Farrugia underwent as a result of poor communication and seemingly unfair treatment.
In the interest of transparency, the Board discussed the decision in public without going into an executive session.They retroactively extended approval for the new stone patio. The patio must be approved by the zoning board if it is to remain after the special ordinances end. The Board gave Farrugia a deadline of the end of July to submit that application; in the meantime, the patio will stay up and in its current form, pending approval from the Fire commissioner Marshall** and the Construction Officer.
Photo courtesy of Aunt Chubby’s facebook page.
Editor’s Note 2/19/23:
Corrections:
*Thank you to Peter Macholdt, Chair of the Hopewell Planning Board for pointing out that “The Hopewell Borough Planning Board sits as both a planning board and as a zoning board. The zoning board is a subset of the full planning board and consists of Class 4 planning board members only.” This was a Zoning meeting, not a Planning meeting.
**Thank you to John Biasi, Fire Commission of Station 52 for pointing out that “Hopewell Borough’s (a.k.a. Station 52’s) Fire Commissioners https://www.hopewellfire.com/commissioners/ only deal with department’s finances. Hopewell Township’s Fire Marshall deals occupancy & other fire related issues.” and
