To be clear: Rooftop dining is not permitted by Morristown’s zoning. Not explicitly, anyway.
The zoning board came to that conclusion after three-and-a-half hours at a virtual hearing on Wednesday.
That means the Iron Bar/Revolution must seek a use variance, which is much harder to obtain than the conditional approval its owner hoped for, to place 134 seats and up to 230 occupants atop the Iron Bar on South Street.
It’s the latest challenge for the Iron Bar’s rooftop aspirations, which were dealt a blow in April 2021 when the town council, citing noise concerns, shot down a request to extend its liquor license to the roof. Before appealing that decision to the state, Iron Bar lawyers want to secure zoning approvals for the project.
So Iron Bar/Revolution attorney Steven Schepis on Wednesday sought an interpretation of whether rooftop dining is a conditional use, or a prohibited use. Because it’s not expressly allowed, it’s prohibited, the board decided.
(While the dining would top the Iron Bar, access is planned via stairs from the adjoining Revolution beer hall, the actual applicant. Both venues are owned by Jimmy Cavanaugh.)
Board Chairman Steve Pylypchuk offered analogies of drilling for oil, or erecting a nuclear power plant, on the Morristown Green. Neither action is specifically barred by town ordinances, but nothing in the zoning code suggests such uses are intended.
Board member Tom Ferrara Anthony Murphy cast the lone dissenting vote, without elaborating. Scott Wild said he looks forward eventually to supporting some form of rooftop dining at the Iron Bar, but added he was not persuaded by Iron Bar’s expert witnesses — architect Carolyn Young and planner John Szabo–that rooftop dining is synonymous with “outdoor space” provisions of the town code.
Schepis had pointed out that the town previously approved rooftop dining at the Town Bar & Kitchen on Elm Street, and at the Stirling Tavern on South Street.
Town’s approval predated present zoning, and rooftop seating at both locations is limited. Essentially, outdoor dining is akin to small outdoor “rooms” at those establishments, accessories to the main operations, the board countered.
Schepis also took the unusual step of having town Planner Phil Abramson placed under oath to field questions about how he reached conclusions in a series of memos he authored, and about the town zoning code, which his firm Topology also authored.
Abramson initially appeared to indicate that rooftop dining might qualify as a conditional use. But he changed his mind in a July 18, 2022, memorandum. Abramson testified that this occurred after a discussion with board Attorney David Brady, who asked how commercial rooftop dining could be allowed when regulations are stringent for such residential uses?
Abramson said he had made an error of omission by not expressly addressing the issue of commercial rooftop dining when updating the town code.
“This is not easy stuff. It can be complicated, it can be nuanced,” Abramson said.
The Iron Bar team intends to regroup and return before the board in June.
Wednesday’s hearing continued the Iron Bar’s quest to tap the public’s infatuation with outdoor dining, which took off during the pandemic when Morristown and municipalities across the country loosened rules and allowed sidewalk dining to help restaurants and bars survive indoor lockdowns.
The Iron Bar’s request to extend the liquor license it shares with the adjoining Revolution beer hall onto the roof was rejected almost two years ago by the town council, which cited concerns about noise impacting neighboring apartments and condos.
Robert C. Williams III, lawyer for Jimmy Cavanaugh, owner of both establishments, wants to line up town zoning approvals before appealing the council’s denial to the state Division of Alcoholic Beverage Control (ABC), where he has had repeated success beating down town-imposed curfews.
Cavanaugh was ready to go before the zoning board last summer. But that hearing was postponed when Abramson, the town planner, issued a report flagging technical questions about the application, including whether the Iron Bar is a nightclub or a restaurant.
The answer has implications for parking requirements, among other things. Last month the board determined the Iron Bar has operated as a nightclub since its inception without ever applying for approvals as such.
But because the Iron Bar predates the town’s present zoning code, the board granted it status as a pre-existing, nonconforming use–grandfathered, basically–sparing the establishment a potentially long, complicated application process. Pylypchuk cast the lone dissenting vote on that one.
Steve Pylypchuk’s analogy of the Iron Bar’s rooftop variance request being similar to a “nuclear reactor being built on the green” is insulting to the town taxpayers that support property owner attempting to invest and better their properties for the use of the general public.
This is exact type of obstructionism and reteric that deters creative and innovative design coming into Morristown. With it, we will continue to bear the brunt of the lowest common denominator contemporary design that will age as Headquarters plaza has.
And in case anyone on the board has been paying attention – the approval of Sterling tavern’s rooftop has been a success. Why is this proposal any different?…..
“This is not easy stuff. It can be complicated, it can be nuanced,” Abramson said
There’s either a noise ordinance that’s applied consistently to all businesses or there isn’t. The only thing complicated or nuanced is when you are looking for opportunities for disparate or discriminatory treatment against one particular business owner. Also, the town just endorsed outdoor dining with that ridiculous new fee structure. So dining at ground-level is A-OK, but anything above that is subject to a different noise interpretation?
Ridiculous. The town definitely needs some larger rooftop bar and dining areas. Stirling Taverns is neat but the outdoor space is quite small, with limited hours. Town Bar’s space is even smaller. Can just about fit a few tables out there – really sad the town wouldn’t allow them to make that area bigger with a bar.
Iron bar should make the whole thing glass enclosed on top with a large garage door opening scene looking over the Green as a compromise. This would help to deal with the noise concerns, but in exchange they can have more lenient open hours. Iron Bar can recoop the added cost by being open year round up there, decorating it for the holidays and such.