March 26, 2015

MINUTES TOWNSHIP OF WEST ORANGE ZONING BOARD OF ADJUSTMENT SPECIAL MEETING March 26, 2015 The West Orange Zoning Board of Adjustment held a special meeting on March 26, 2015 commencing 8:00 PM at 66 Main Street, West Orange, N.J. in Council Chambers. Chairman Buechler called the meeting to order at approximately 8:00 P.M. Jt was announced that notification of this meeting was given to the Township Clerk, the West Orange Chronicle and posted on the Township Bulletin Board on March 13, 2015 in accordance with the “Open Public Meetings Act.” Chairman Buechler asked everyone to stand for the Pledge of Allegiance. Alice Beirne, Esq., Board Attorney, read the Opening Statement. PRESENT: B. Buechler, G. Bullock, D. Gabry, P. Neuer, B. Quentzel, I. Schwarzbaum, W. Steinhart ABSENT: M. Sussman (excused absence) A. Weiss (excused absence) ALSO PRESENT: Paul Grygiel, Consulting Planner Frank Russo, Consulting Engineer Alice Beirne, Esq., Board Attorney Rose DeSena, Board Secretary H. Grossman, Esq., Public Advocate D. Dillon, Audio-Digital Transcription Service ANNOUNCEMENTS Future Meetings: April 16, 2015 (Regular Meeting) — 8:00 pm May 21, 2015 (Regular Meeting) — 8:00 pm June 18, 2015 (Regular Meeting) — 8:00 pm SWEARING IN Irv Schwarzbaum, who was recently appointed to the Zoning Board of Adjustment by Mayor Parisi, was sworn in as an alternate member by Ms. Beirne. Consulting Engineer for the Township Frank Russo and Consulting Planner for the Township Paul Grygiel were sworn under oath by Ms. Dillon

APPLICATION(S) 1. ZB-13-15/Quick Chek Carried from 2/26/15 Block: 168; Lot: 26; Zone: B-2 555 Northfield Avenue Seeking multiple “D” and several “C” variances for site plan and subdivision approvals For developing a Quick Chek food store with fuel sales. EXHIBITS O-1 — Site layout and aerial photograph map dated 2/26/15 O-2 —Ten (1) pages consisting of Figures 1 to 12 Vice Chairman Neuer stated for the record that he was absent at the last special meeting held on 2/16/15 and has read the transcripts from that meeting that were provided to him. He signed the required certification which was passed to Ms, DeSena for inclusion in the file. Jennifer M. Porter, Esq., attorney for the applicant, approached the podium. Ms. Porter stated that at the last meeting held on February 26" the meeting ended after the Board Members questioned the applicant’s Planner, John McDonough. She said that tonight’s meeting will begin with Mr. Magaletta, attorney for an objector, cross examining Mr. McDonough. John McDonough approached the podium and was sworn under oath. Mr. Magaletta referred to Exhibit A-15 and asked Mr. McDonough if everything was correct on the Exhibit; he replied yes. Mr. Magaletta asked Mr. McDonough to detail Exhibit A-15, specifically asking what lot the hotel is located on, the square footage of the hotel and where the hotel parking is located; Mr. McDonough complied. Mr. Magaletta asked Mr. McDonough if there will be internal access to the hotel from the front of the hotel to the back of the hotel; he replied no. Mr. Magaletta asked Mr. McDonough how deliveries will be made to the hotel; he said deliveries will be made exactly the same way they are made today. Mr. Magaletta asked Mr. McDonough where the dumpster is located; he said in the back of the hotel. Mr. Magaletta asked Mr. McDonough if the casement agreement between the hotel and Quick Chek has been completed; he said that he did not know.

Mr. Magaletta asked Mr. McDonough if he was correct in saying that hotel guests cannot park in the Quick Chek parking lot; he replied yes, that was correct. Mr. Magaletta asked Mr. McDonough how they will enforce that; he said he did not know, Mr. McDonough said that any parking enforcement would be an internal problem for Quick Chek. Mr. Magaletta stated for the record that the Municipal Ordinances for the Exxon case and the Razberry case, that Mr. McDonough referred to at the last meeting, were different in those cases than this application. Mr. Magaletta asked Mr. McDonough if the hotel guests park in the Chinese restaurant parking lot; he said he did not know. Mr. Magaletta said that at the last meeting Mr, McDonough stated that Quick Chek will be improving the physical appearance of the site. He asked Mr. McDonough if aesthetics is a basis to grant approval; he replied yes. Mr. Magaletta said that at the last meeting Mr. McDonough stated that the BP gas station on Northfield Avenue is an older facility. He asked Mr. McDonough if he knew that the BP was upgraded in 2014; he said no he did not know that. Mr. Magaletta stated that there is a driveway by Korn Plumbing that was utilized by the old Chinese restaurant. He asked Mr. McDonough if Quick Chek is asking the Board to approve the use of that driveway too; he replied yes. Mr. Magaletta asked Mr. McDonough what color the sidewalk will be in front of the driveway; he said the color will be in accordance to the Township’s specifications. Ms. Porter stated for the record that the color of the sidewalks are irrelevant to the application. Mr. Magaletta asked Mr. McDonough if he was aware that the Township requires different colored sidewalks; he replied no. Mr. Magaletta asked Mr. McDonough if he knew that the sidewalk in front of a driveway had to be a different color; he said he did not know that, Mr. Magaletta asked Mr. McDonough if he was aware of any business being open for 24 hours on Northfield Avenue; he said he did not know. Mr. Magaletta asked Mr. McDonough how often the Korn Plumbing driveway is used; he said that driveway has low activity. Mr. Magaletta asked Mr. McDonough what he based that answer on; he said he based it on the nature of the use.

Mr. Magaletta asked Mr. McDonough if he specifically watched that driveway and witnessed low activity; he replied no, Mr. Magaletta asked Mr. McDonough if a 500’ buffer was required for the gym in the TSI East Brunswick case; he replied yes. Mr. Magaletta had no further questions for Mr. McDonough. Chairman Buechler asked if any members of the public who were not at the last meeting had any questions for Mr. McDonough. Eric Bellomo approached the podium and stated that he lives at 28 Bradford Avenue. Mr. Bellomo asked Mr. McDonough how many variances they are asking for; he replied twenty two (22) variances. Mr. Bellomo asked Mr. McDonough if the people of West Orange need a convenience store and gas station that require twenty two (22) variances; he replied yes. Mr. Bellomo asked Mr. McDonough if something else would be better for that site instead of a convenience store and a gas station. Chairman Buechler advised Mr. Bellomo that he cannot ask what would be better for the site because the applicant is not here for that. He said that is a hypothetical question. Mr. Bellomo asked Mr. McDonough if a convenience store and gas station is the best that the town can be offered after all of the money Essex County has spent in this area; he said that he feels that it is a perfect fit for this area. Mr. Bellomo asked Mr. McDonough if he thinks that the children in West Orange will ask their parents to take them to a convenience store; he said that he did not know. Stephen J. Christiano, Esq. approached the podium and stated that he lives at 45 Fairview Avenue and is here to represent the West Orange Board of Education. Mr. Christiano stated that it is a given that there is a BP gas station and a Delta gas station in close proximity to the proposed site along with other convenience stores close by. He asked Mr. McDonough what benefit does a Quick Chek convenience store and gas station provide to the St. Cloud area; he said a capitalistic society that offers choice. Scott Dias approached the podium and stated that he lives at 272 St. Cloud Avenue. He asked Mr. McDonough if they are going to require more truck trips for gas delivery; Vice Chairman Neuer stated that Mr. McDonough is not the traffic engineer. Mr. Dias asked Mr. McDonough how the gas delivery trucks are going to turn around on the site; Vice Chairman Neuer said that this is not a question

ted that Mr. McDonough is not the traffic engineer. Mr. Dias asked Mr. McDonough how the gas delivery trucks are going to turn around on the site; Vice Chairman Neuer said that this is not a question for this witness.

Mr. Dias asked Mr. McDonough why Quick Chek is going forward with this if there is a big public outcry; he said that the community will benefit from the aesthetics because they are enhancing an undesirable site. Mr. McDonough said that it will enhance the community as a whole. There were no further questions for Mr. McDonough from the members of the public. Vice Chairman Neuer asked Ms. Beirne if Mr. McDonough provided her with a list of all of the cases that he cited during his testimony; she replied yes. Vice Chairman Neuer said that a number of the cases he cited are unreported. He told Mr. McDonough that when he cites an unreported case, a copy of all such cases must be attached to his report. Ms. Porter stated for the record that she would provide the Board Members with copies of the cases. Vice Chairman Neuer asked Mr. McDonough if there have been any changes to his report dated 12/17/13 that was submitted to the Board; he replied yes. Vice Chairman Neuer asked Mr. McDonough if he submitted an updated report; he replied no. Mr. McDonough said he testified to the changes. Vice Chairman Neuer asked Mr. McDonough if his report is accurate; he said it is not 100 percent accurate. Vice Chairman Neuer asked Mr. McDonough if he has represented Quick Chek in other cases; he replied yes. Vice Chairman Neuer stated that at the last meeting, Mr. McDonough was asked if there were any convenience stores within a certain proximity and he did not know the answer. He still does not know the answer. Vice Chairman Neuer asked Mr. McDonough if he agreed that items such as cold beverages, hot beverages, sandwiches and soup are sold at the convenience store to the east of the proposed site; he replied yes. Vice Chairman Neuer asked Mr. McDonough if he would agree that the Chinese restaurant to the east of the proposed site sells soup; he replied yes. Vice Chairman Neuer asked Mr. McDonough if there is anything that the Quick Chek sells that the other stores do not sell; he said that he does not know.

Vice Chairman Neuer asked Mr. McDonough if he thinks it is appropriate to sell cigarettes in the store in an area highly populated with children and young adults; he said that it is against the law to sell cigarettes to minors. Vice Chairman Neuer stated that the phrase “lot line adjustment” has been used by Mr. McDonough and Ms. Porter. He said that he went through the Municipal Land Use Law and the Cox book and he did not see anything about “lot line adjustment”. Mr. McDonough agreed but stated that it is a phrase used in these situations. Vice Chairman Neuer asked Mr. McDonough if he knows the definition of a subdivision according to the Municipal Land Use Law; he replied yes. Mr. McDonough said that it is the division of one lot into two lots or multiple lots. Vice Chairman Neuer asked Mr. McDonough if the definition of a subdivision includes a lot line adjustment; he replied yes. Vice Chairman Neuer asked Mr. McDonough if it says that in the statute; he replied no. Ms. Porter stated that the application is for a major subdivision and that it meets that definition in the Land Use Law. : Vice Chairman Neuer stated that he could not find lot line adjustment and questioned why they did not just use the phrase subdivision of the property. He asked Mr. McDonough if the subdivision of the property is what is triggering most of the variances; he replied yes. Vice Chairman Neuer presented a copy of the major subdivision plan, dated 8/23/13, that was submitted with the application. He said that he took this plan from the Board Secretary’s file. Vice Chairman Neuer referred to the major subdivision plan and pointed out the proposed lot line on lot 26. He said that the lot line on the plan is clearly visible. Vice Chairman Neuer asked Mr. McDonough why he called the lot line an invisible lot line; Mr. McDonough said it was from a physical planning standpoint. ‘Vice Chairman Neuer stated that Mr. McDonough’s testimony was that they cannot move the building and this is why the building is right on the lot line. He said that you are creating a set back with a building in that lot line. Vice Chairman Neuer said there is no physical reason why you cannot move the lot line 10” to the west; Mr. McDonough said that the curb line is going to provide a separation. Vice Chairman Neuer asked Mr. McDonough if conditional uses should be permitted in a B-2 zone; he

the lot line 10” to the west; Mr. McDonough said that the curb line is going to provide a separation. Vice Chairman Neuer asked Mr. McDonough if conditional uses should be permitted in a B-2 zone; he said from a planning standpoint, no. Mr. McDonough said of multiple uses, he does not see a problem with one of them being a conditional use. Vice Chairman Neuer asked Mr. McDonough if he was the Planner in the Jazzy Xpress case in South Plainfield that he cited during his testimony; he replied yes. Vice Chairman Neuer asked

Mr. McDonough if the Zoning Board in South Plainfield found his testimony to be credible; he replied yes. Vice Chairman Neuer pointed out that the credibility was based upon the property being at the exit ramp from Route 287; Mr. McDonough agreed. Vice Chairman Neuer stated that the owner of the property never consolidated the lots since 1986. He said that the owner then sold jot 29 to a third party and asked Mr. McDonough if a property owner can sell an un-subdivided part of his property; he replied no. Vice Chairman Neuer asked Mr. McDonough if the owner of the property took a non- conforming lot and sold it to a third party; he replied yes. Vice Chairman Neuer asked Mr. McDonough if lots 26 and 28 are under common ownership; he replied yes. Vice Chairman Neuer said that there was a condition as part of an approval in 1986 that the lots should have been combined and they were not. Mr. McDonough agreed. Vice Chairman Neuer stated for the record that Stagg Field is owned by the Township and leased to the Board of Education. He asked Mr. McDonough how far the Quick Chek site is from the park; he said it abuts the property. Vice Chairman Neuer asked Mr. McDonough why a fence is not required; he said there is an existing fence along the Stagg Field side. Vice Chairman Neuer asked Mr. McDonough what the condition of the existing fence is; he said it is an older fence. Ms. Porter stated for the record that there is a fence on Stagg Field’s property. She said that Quick Chek has already agreed to repair the fence but will not replace it. Vice Chairman Neuer asked Mr. McDonough if he has done a study showing how long it takes a customer arriving al a gas pump, walks to the convenience store, shops around and then goes back to their car and pulls out of the parking spot; he replied no. Vice Chairman Never asked Mr. McDonough how long it takes to fill a gas tank; he replied three (3) to four (4) minutes. Vice Chairman Neuer asked Mr. McDonough approximately how long will someone to shop inside the convenience store; he said approximately three (3) to four (4) minutes. Vice Chairman Neuer asked Mr. McDonough why Quick Chek would not prohibit people getting out of their cars to enter the convenience store while their gas tanks were being filled; he said that it is his personal opinion and experience that it is efficient and convenient. Mr. McDonough said

out of their cars to enter the convenience store while their gas tanks were being filled; he said that it is his personal opinion and experience that it is efficient and convenient. Mr. McDonough said that he has done it many times and it works. Vice Chairman Neuer asked Mr. McDonough if in his professional opinion leaving the car unattended to shop in the convenience store was safe. Mr. McDonough said yes.