April 21, 2016

MINUTES TOWNSHIP OF WEST ORANGE ZONING BOARD OF ADJUSTMENT REGULAR MEETING April 21, 2016 The West Orange Zoning Board of Adjustment held a regular meeting on April 21, 2016 commencing 8:00 PM at 66 Main Street, West Orange, N.J. in Council Chambers. Chairman Neuer called the meeting to order at approximately 8:00 P.M. The Chairman announced that notice of this meeting was given to the Township Clerk, the West Orange Chronicle and the Star Ledger and posted on the Township Bulletin Board in accordance with the “Sen. Byron M. Baer Open Public Meetings Act.” Chairman Neuer announced that a digital tape recording system is being utilized to record the proceedings of the meeting and instructed the general public on how the audio of the proceedings may be reviewed or obtained. Chairman Neuer stated that one of the applicants retained the services of Ms. Rene Russo, a certified court reporter, and she will be recording the Sai Hira Ram Trust and Stratford Manor applications at this hearing. Chairman Neuer asked everyone to stand for the Pledge of Allegiance. Alice Beirne, Esq., Board Attorney, read the Opening Statement. PRESENT: B. Buechler, C. Darconte, D. Gabry, D. Nash, P. Neuer, I. Schwarzbaum, W. Steinhart, M. Sussman, A. Weiss ABSENT: B. Quentzel (excused absence) ALSO PRESENT: Paul Grygiel, Township Planner Eric Keller, Consulting Engineer Alice Beirne, Esq., Board Attorney Rose DeSena, Board Secretary

ANNOUNCEMENTS Future Meetings: May 19, 2016 (regular meeting) June 16, 2016 (regular meeting) July 21, 2016 (regular meeting) Chairman Neuer announced that the applicant for application ZB-16-02/Arceo which was scheduled to be heard at this meeting, has requested that this matter be carried over to the next regular Zoning Board of Adjustment meeting to be held on May 19, 2016. ANNUAL REPORT Adopt: Zoning Board of Adjustment Annual Report — 2014 - 2015 Chairman Neuer asked the Board members if they reviewed the Annual Report and had any comments; seeing none the Chairman asked for a motion to approve the Zoning Board of Adjustment’s 2014-2015 Annual Report. Vice Chairman Buechler stated that report was well done by Mr. Grygiel and made a motion to adopt the Zoning Board of Adjustments Annual Report for 2014-2015. Ms. Gabry seconded the motion to adopt the Zoning Board of Adjustment’s Annual Report and all voted in favor. MINUTES Adopt Minutes: February 18, 2016 (executive session) These minutes were not yet circulated and no vote was taken on them at this meeting. February 25, 2016 (special meeting) Chairman Neuer asked the Board Members if they had any additional comments to the February 25, 2016 special meeting minutes that were submitted to them for review; there were none.

Chairman Neuer asked for a motion to approve the minutes of the February 25, 2016 special meeting. Mr. Buechler made a motion to approve the minutes of the February 25, 2016 special meeting; Ms. Gabry seconded the motion and all voted in favor. The record reflected that Mr. Schwarzbaum and Ms. Weiss were present at this meeting but did not vote on these minutes because they were not present at the February 25, 2016 meeting.. March 17, 2016 (regular meeting) Chairman Neuer made a motion to approve the minutes of the March 17, 2016 regular meeting. Ms. Gabry seconded the motion and all voted in favor. SWEARING IN Paul Grygiel, Planner for the Township for the Township and Eric Keller, consulting Engineer for the Township were sworn under oath. DISCUSSION 1. Application of Oren Rice to request that the Board allow him to request a re-hearing of the Panorama, Inc. “Chit Chat Diner”, Application ZB 15-11, out of time. Chairman Neuer stated that a number of people have recently requested that certain actions be taken by the Board, or personally taken by him as Chairperson, for certain applications. He said the Board will discuss these requests but no vote will be taken on them. Chairman Neuer stated that the first request was made by Oren Rice and he asked if Mr. Rice was present. Chairman Neuer said to let the record reflect that Mr. Rice was not present.

Chairman Neuer said that Mr. Rice requested a re-hearing for application ZB-15-11 for the Chit Chat Diner. He said he reviewed the request with the Zoning Board’s legal counsel and it is his opinion that the request was filed out of time and he will put some additional findings on the record in a few minutes. Vice Chairman Buechler stated for the record that he was recused from hearing application ZB- 15-11 for the Chit Chat Diner and asked the Chairman if he should step down from the dais before the Board discussed this matter. Chairman Neuer said that he would like to see who is here first before they discuss any of the requests. 2. E-mail from Brooke Carlson regarding ZB-16-01 and ZB-14-08 (Sai Hira Ram Trust applications) and the Open Public Meetings Act, received by the Zoning Board on April 19, 2016. Chairman Neuer said the next email request was from Brooke Carlson regarding the Sai Hira Ram Trust applications and asked if Ms. Carlson was present. Chairman Neuer said to let the record reflect that Brooke Carlson not present, 3. E-mail from Suzanne Bodevin regarding ZB-15-02 (Black and White Taxi) and the Open Public Meetings Act, received April 7, 2016. Chairman Neuer said that the next email request was from Suzanne Bodevin regarding an application for Black and White Taxi Company and asked if Ms. Bodevin was present. Chairman Neuer said to let the record reflect that Suzanne Bodevin was not present. 4, E-mail from Akhil Kumar regarding ZB-15-11 (Chit Chat Diner) and the Open Public Meetings Act, received by the Zoning Board April 7, 2016. Chairman Neuer said that the next email request was from Akhil Kumar regarding the application for the Chit Chat Diner and asked if Mr. Kumar was present. Chairman Neuer said to let the record reflect that Akhil Kumar was not present.

Chairman Neuer stated that he as Chairman has received inquiries from these individuals which has taken time from the Board’s legal counsel, secretary as well as himself and then these individuals do not appear at the meeting where their inquiries are to be considered. He said Ms. Beirne has written many emails and he has taken the time to research the law so that the Chairman could properly respond to these inquiries. Chairman Neuer said that he finds it disturbing that there are citizens of this community who the Board tries to protect. As Chairman, he listens to their complaints, performs research and consults with legal counsel and then those individuals do not appear to pursue the subjects of their inquiries when those matters are presented to the Board. Chairman Neuer asked the Board’s legal counsel to prepare an amendment to the Zoning Board Rules and Regulations so that any individual who submits inquiries to the Board, the Chairperson, including requests to have the Chairperson issue subpoenas, must provide their full name and addresses. Chairman Neuer said that the requests from Brooke Carlson, Suzanne Bodevin and Akhil Kumar assert that pursuant to the Open Public Meeting Act, because of a clerical error, the meetings may have been conducted without a second publication but the Board is still conducting their investigation. Chairman Neuer stated that even though the second notice may have not been published according to the Open Public Meetings Act, each one of those applications were fully and properly noticed to the public and all citizens within two hundred (200) feet of the site pursuant to the New Jersey Municipal Land Use Law. Chairman Neuer read from the statute and stated that under the Open Public Meetings Act improper notice can make an action taken at an improperly noticed meeting “voidable” and any person seeking to have it “voided” must do so within forty five (45) days after the action sought to be voided has been made public. Chairman Neuer stated that it is his opinion that the three applications in question are not subject to being “voided” because they were properly noticed pursuant to the New Jersey Municipal Land Use Act. He said in order for them to be declared “void” there would have to be a declaration by a court of competent jurisdiction.

Chairman Neuer said there were no claims filed by way of prerogative writ within the forty five (45) days. He said that the forty five (45) day time limit has been strictly enforced by our courts and cited case law iincluding, Bernardsville Quarry vs. Bernardsville Borough as an example. Chairman Neuer stated that application ZB-14-08 for applicant Sai Hira Ram Trust was approved on September 17, 2015, the resolution was adopted on October 15, 2015 and published on October 22, 2015. Chairman Neuer stated that application ZB-15-02 for 172 CSI Corp. t/a Black and White Taxi was approved on September 17, 2015, the resolution was adopted on October 15, 2015 and published on October 22, 2015. Chairman Neuer stated that application ZB-15-11 for applicant Panorama, LLC d/b/a Chit Chat Diner was approved on November 19, 2015, the resolution was adopted on December 17, 2015 and published on December 24, 2015. Chairman Neuer stated that no lawsuits were filed in the Superior Court of New Jersey within the 45 days on any of these applications and that he recommends that the Board not take any independent action to void the decisions. Chairman Neuer stated that the Open Public Meetings Act requires that notice of all public meetings must be delivered to two publications and unfortunately it was discovered recently that notice may not have been sent to a second publication. Chairman Neuer stated that this oversight was due to an unintentional clerical error by someone who works in the Township administration possibly due to some confusion regarding the requirements of the Open Public Meetings Act and the requirements of the New Jersey Municipal Land Use Law. He said that once it was discovered, the Board Secretary was instructed to deliver the notice to the Star Ledger and now all scheduled regular meetings for the remainder of calendar year 2016 are properly noticed according to the Open Public Meetings Act and the New Jersey Municipal Land Use Law so that there are no potential further problems. Chairman Neuer said that he recommends that no action be taken and opened the floor to the Board Members for any questions or comments. Vice Chairman Buechler stated for the record that he was recused from hearing the application for the Chit Chat Diner but not the Black and White Taxi or Sai Hira Ram Trust applications. He said that he concurs with Chairman Neuer’s

r the record that he was recused from hearing the application for the Chit Chat Diner but not the Black and White Taxi or Sai Hira Ram Trust applications. He said that he concurs with Chairman Neuer’s analysis regarding some of the case law and the

applicable statutes and recommends that the Board adopt the Chairman’s position and move forward with the remaining applications on the agenda for this meeting. Mr. Sussman said that he also concurs with the Chairman and is disappointed in those who filed these requests and did not have the courtesy to appear. Mr. Schwartzbaum said that he also concurs with the Chairman and recommends that the Board take no action on all three requests. Chairman Neuer asked Ms. Beirne to also revisit the rehearing section of the Zoning Board Rules of Procedure and asked her to tighten and clarify the procedures. Mr. Sussman asked Chairman Neuer if they should add that any person who makes a request is required to appear before the Board; he replied yes. Chairman Neuer stated that he would like the record to reflect that he issued four (4) subpoenas that were requested by someone and they were never picked up from the Board Secretary’s office and they were never served. APPLICATION(S) 1. ZB-15-17/Prism Green Associates II], LLC Carried from 3/17/16 Block: 155; Lot: 26.03; Zone: O-R Rooney Circle Seeking “c” variances to erect a monument sign EXHIBITS A-1 — Sheet 2 of the site plan with a date of 10/27/15. Mr. Steinhart stated that he is recused from hearing this application and stepped down from the dais. Frank Regan, Esq., attorney for the applicant Prism Green Associates, approached the podium.

Mr. Regan stated that his client is here requesting two variances for a monument sign. He said that in October, 2013 the applicant was approved to construct a fitness center with signage but, at that time, they did not ask for an approval for a monument sign and, further, they stated that they would not be requesting approvals for any additional signage. Mr. Regan stated that at the time of the approval, the applicant had not signed a lease with the tenant and that the lease was not executed until November 24, 2014. He said that he provided a copy of the redacted lease to the Board as requested at the last meeting. Vice Chairman Buechler stated that the date on the lease that was sent to the Board was incorrect. He said that instead of a date there was an “ii” after the month and asked Mr. Regan if he has a copy of the actual lease. Mr. Regan stated that he has a copy of the full lease in his office and it is dated correctly. He said that he did not send the Board a copy of the entire lease; he just sent them excerpts of the lease. Mr. Regan said that he has read it in its entirety and it has the correct date of November 24, 2014 on it. Vice Chairman Buechler stated that the copy of the lease that was sent to the Board does not add up; he said there are no page numbers and he is not sure they received everything. He said that he did not read anything that states there is an actual contingency that the tenant could walk away from the lease if this sign is not approved. Chairman Neuer referred to page seven (7) of the lease regarding pylon sign approvals and stated that the sign is not a mandatory requirement under the lease. Mr. Regan stated that he is not disputing the provisions of the lease; he said that they are here before the Board to ask for sign approvals according to the provisions of the lease. Chairman Neuer asked Mr. Grygiel if there is a pylon sign on the approved plan; he replied no. Chairman Neuer asked Mr. Grygiel what the difference is between a monument sign and a pylon sign. Mr. Griegel said that a pylon sign is typically raised above the ground between two poles and a monument sign is typically lower to the ground and is on a base.

Chairman Neuer asked Mr. Regan if he is correct in saying that the lease presented to the Board refers to a pylon sign and the applicant is here for a monument sign; Mr. Regan said that is correct. Mr. Regan stated that he has no idea why a pylon sign was included in the lease because it is not permitted in that zone and a monument sign is permitted. Chairman Neuer stated that one of his concerns is that the applicant came back for a sign after a comprehensive application was approved for that site and they should have a good reason for this variance substantially after-the-fact. Mr. Regan said that at the time the application was approved the applicant had no intention on putting up a monument sign. He said that something transpired when they negotiated the lease, after the application was approved, and that is why there are here at this meeting. Mr. Regan called his first witness. John Brucker approached the podium and was sworn under oath. Mr. Brucker stated that he is the senior project manager for Prism Green for the L.A. Fitness center. Mr. Brucker detailed the sign stating that it will be 4’ high and 6’ wide and will be located ten (10) feet back from the property line off of Rooney Circle where it is more visible. Vice Chairman Buechler asked Mr. Brucker if the sign will six (6) feet off the ground; he replied yes. Vice Chairman Buechler asked Mr. Brucker if the sign is on Prism’s property; he replied yes. Vice Chairman Buechler asked Mr. Brucker if any work has been started to construct the sign yet; he replied no. Chairman Neuer asked Mr. Brucker what location he would have to be coming from to see the sign; he said either coming from Prospect Avenue or Rooney Circle.