9 22 2022 Letter to P Neuer and ZBA legal issues

Gsons B.C, Philip D. Neuer, Chairman, and Members Township of West Orange Zoning Board of Adjustment September 22, 2022 Page 2 year, not to exceed three extensions in total. In a project with multiple phases, however, that provides a potential for only five years of statutory protection, and also requires that the applicant return to the Board for extensions year after year. To avoid that and provide a reasonable period of statutory protection from zoning changes that is more in keeping with the size and phasing of the project, the MLUL also provides that “[i]n the case of a site plan for a development consisting of not Jess than 150,000 square feet of nonresidential floor area or not less than 100 residential dwelling units” the Board may approve a statutory protective period “for such period of time beyond two years, as shall be determined by the [Board] to be reasonable taking into consideration (1) the number of dwelling units and nonresidential floor area permissible under final approval, (2) economic conditions, and (3) the comprehensiveness of the development.” N.J.S.A. 40:55D-52.e. The developer may apply thereafter for extensions which may be granted based on these considerations as well as the amount of the project remaining to be developed. The project proposes 182 independent living units, which exceeds the statutory threshold of 100 residential units. Therefore, in view of the foregoing statutory factors, the nature of the project and the need for construction of each phase to proceed in a manner that allows for occupancy by existing residents, Daughters requests that the Board grant a statutory protective period whereby the rights conferred by N.J.S.A. 40:55D-52.a. would be for a duration of ten (10) years in accordance with N.J.S.A. 40:55D-52.¢. Duration of Approval Similarly, Chapter XXV of the Township Code (the “Land Use Regulations”) contains a provision which requires that in the case of a conditional use, variance, or final site plan, “the building or construction permit sought shall be secured and issued or the authorized action taken within two years and one day after the date of the granting of the conditional use, variance or site plan in question.” § 25-48.10.a. If the applicant does not comply with these time limits, which the Board may extend for good cause shown upon written application, “the approval shall be deemed null

e plan in question.” § 25-48.10.a. If the applicant does not comply with these time limits, which the Board may extend for good cause shown upon written application, “the approval shall be deemed null and void and of no further force or effect” and the applicant must then reapply for approval as ifit were an initial application. § 25-48.10.a. To avoid the need for recurring extension requests where it is known that the project will not be completed in the initial two year period, the Board may initially fix a longer period of time for appropriate actions which are in excess of the minimum two years. § 25-48.10.e. In view of these ordinance considerations, the nature of the project and the need for construction of each phase to proceed in a manner that allows for occupancy by existing residents, Daughters requests that the Board initially establish the period within which “the building or construction permit sought shall be secured and issued or the authorized action taken” in accordance with § 25-48.10.a., to be ten (10) years after the date of the granting of the variance and site plan approval as authorized by § 25-48.10.¢e. 3035540.1 116173-101909