Asbury Park zoning board denies effort to legalize second-floor deck at 614 Fifth Avenue

The Asbury Park Zoning Board of Adjustment on March 11, 2025, denied a D2 variance application by property owner Chris Viola that would have legalized a second‑floor deck at 614 Fifth Avenue.

Viola said he purchased the building in February 2015 and that a building permit issued in February 2016 allowed conversion of a front porch roof to a flat roof and was inspected and closed out with a certificate of occupancy; the permit, he and board staff said, explicitly stated “no Second Floor deck.” Viola testified the railings now on the roof were added during the COVID period and that the upper space is used as private outdoor space by the occupants of the second/third‑floor unit. “We own that property,” Viola said when asked to state his affiliation with the application.

Kathryn Gregory, a licensed professional planner who described herself as a principal of Gregory Associates, testified for the applicant. Gregory said the building is a legal, existing nonconforming three‑family use and argued the proposed railings and open deck follow the existing roof line and prevailing setbacks on the block. “We are a legal existing nonconforming 3 family use,” Gregory told the board, and she urged that the change would not create a substantial detriment to the public good, citing comparable second‑floor decks in the area and the property’s corner‑lot setback.

Board members and professionals pressed several factual and legal points. Zoning staff and board members noted the 2016 permit record in the file says no second‑floor deck and that the most recent permit and plans were not fully available for the board’s review. Questions focused on whether adding a rail and formalizing the roof as a deck constitutes an expansion of a nonconforming use (a D2 variance), whether the conversion intensified the property’s use, and whether the deck’s proximity to a neighboring building increased privacy and noise impacts. Board members also discussed the borough’s community design standards and more recent accessory dwelling unit (ADU) rules; staff noted ADU rules and prior rezoning in 2019–2021 but the board emphasized the application before it was for a deck/expansion, not an ADU conversion.

Several members said they were troubled by the timing — the railings were installed after the 2016 permit and without a subsequent zoning permit. Board professionals confirmed the construction office issued a CO for the 2016 work on the flat roof, but zoning records showed a handwritten note on the permit restricting a second‑floor deck. The applicant and planner said the existing house already has three living units and that the deck would serve the upper unit only; Viola said the deck is used primarily six months of the year and provided personal outdoor space during COVID.

The board voted on the variance after deliberation. The roll call recorded the following votes: Daniel Harris — yes; Jill Potter — no; Tim Slick — no; Natalie Passerini — yes; John Hall — yes; Vice Chair Scully — no; Chairman Abeloni — no. The tally was three yes, four no. Because D2 variances require five affirmative votes under the board’s rules, the motion failed and the variance was denied.

Following the vote there was no public comment and no formal direction from the board to staff recorded on the transcript about next steps for the applicant. The meeting moved on and was later adjourned.