9 22 2022 Letter to P Neuer and ZBA legal issues

GrBons P.C. Philip D. Neuer, Chairman, and Members Township of West Orange Zoning Board of Adjustment September 22, 2022 Page 4 club membership shall not be deemed to be club members. Id. All alcoholic beverages must be consumed on the licensed premises; no sales for off-premises consumption are permitted, N.J.A.C. 13:2-8.9. As the foregoing illustrates, licensing is highly regulated and, by definition, a club license prohibits sale of alcoholic beverages to the general public. Only club members and their bona fide guests can be served. Land Use Regulations The Land Use Regulations do not regulate uses based on whether or not sale or consumption of alcoholic beverage occurs, or whether an alcoholic beverage license is obtained. Thus, there is no requirement than an existing restaurant, for example, which seeks to obtain an alcoholic beverage license, apply for or obtain approval from the Planning Board or Zoning Board of Adjustment. Similarly, there would be no requirement for an existing CCRC, which seeks to obtain a club license, to apply for or obtain approval from the Planning Board or Zoning Board of Adjustment. Here, since a newly constructed facility is proposed which will include a number of amenities, the proposed pub and the possibility of it serving alcohol subject to obtaining a liquor license, was specifically referenced in the application documents to provide full disclosure. Similarly, the applicant’s public notice indicated that the project would include among the proposed amenities a “pub serving alcoholic beverages (subject to obtaining a liquor license).” This is consistent with the holding in Pond Run Watershed v. Hamilton Tp. Zonine Bd. of Adjustment, 397 N.J. Super. 335 (App. Div. 2008) (finding notice to be deficient where it did not specifically indicate that a restaurant with liquor license was included in the application). Under the Land Use Regulations, the proposed pub would constitute an “accessory use” which is defined as a “use naturally and normally incident and subordinate to the principal use of the premises or lot.” § 25-4.b. By contrast, “principal use” is defined as “the primary use and purpose of a lot or structure.” § 25-4.b, Although to be conservative, the applicant sought a use variance from § 25-8.12 to permit multiple principal uses on a lot in the event that independent living, assisted living and skilled

” § 25-4.b, Although to be conservative, the applicant sought a use variance from § 25-8.12 to permit multiple principal uses on a lot in the event that independent living, assisted living and skilled nursing were characterized as separate uses even though comprising a single CCRC facility, the pub would not appropriately be classified as a principal use because (i) it meets the definition of “accessory use,” (ii) it does not meet the definition of “principal use,” (iii) it is not open to members of the public unaccompanied by one or more residents, and so therefore is wholly dependent on the existence of the principal CCRC use and its independent living and assisted living components, and could not independently function as a standalone establishment, and (iv) it consists of 1,000 square feet, representing a mere 4.3% of the 43,296 square foot community center. See First Floor Plan (Sheet Al.1) prepared by KDA Architects, dated October 21, 2021, revised May 20, 2022. 3035540.1 116173-101909