2 ZBA Application

athletic fields. Seton Hall has no additional space at its Northfield Avenue main campus to add additional athletic fields. The fact that Seton Hall already has athletic fields and a field house at the Subject Property, and the Subject Property is located near major roads in town, demonstrates that the Subject Property is well suited for an expansion of the existing athletic facilities. 13. The Subject Property is located in the R-1 zone. Seton Hall could, by right, develop single-family homes in the R-1 zone or a golf course and golf club house. Seton Hall, as a non-profit private high school, is not in the business of developing and selling single-family homes. 14. As noted, Seton Hall currently has been using the Subject Property for years for athletic fields and a field house. The R-1 zone has various permitted conditional uses such as public and private schools and parks or playgrounds. See Township Ordinance 25:24.2. Clearly, both public and private schools have, as part of their facilities, athletic fields as do parks and playgrounds. Thus, it is clear that the West Orange master plan contemplated at the R-1 zone would logically include athletic fields in connection with public and/or private schools or parks which are conditional uses at the Subject Property. 15. Similarly, while athletic fields are not listed in the West Orange zoning code as permitted conditional uses in the R- 1 zone, there can be no question that the Township has intended athletic fields go in tandem with public and private schools, parks and playgrounds. A number of the Township's parks and -25-

playgrounds have athletic fields in conjunction with them, such as O’Connor Park, Degnan Park near the high school, and Stag Field, among others. Thus, the proposed use will not substantially impair the Township's master plan and zoning ordinances. 16. Seton Hall's proposed construction of the athletic facilities will have a de minimus effect on the value of neighboring properties, as the Board accepts the unrebutted testimony of Richard E. Polton taken on May 6, 2010 at page 115. 17. Since at least the late 1800's, when the Subject Property was the site of General McClellan’s summer home, the Subject Property has, in fact, been developed and redeveloped many times over. The prior owners and/or the Olmsteds on their behalf cleared the Subject Property, built houses, tore down houses such as General McClellan's, built gardens and planted numerous non-native trees and shrubs. The testimony clearly demonstrated that the Olmsteds or others introduced many non- native species of trees and plants to the Subject Property. A photograph of the Subject Property (Exhibit A 53) clearly shows darge sections of the northerly portion of the Subject Property with effectively no trees, demonstrating that the trees at that point in time where removed by humans and that there was no growth of trees in those locations. Likewise, testimony about the work of the Olmsteds and the Delanos demonstrate large sections of the Subject Property were cleared to plant non- native species of trees, flowers and shrubs (such as Japanese yews, which are not native to West Orange), clearly changing the 26 -

fundameatal character of the original site, demonstrating that the Subject Property has been developed over the years and continued development is not inappropriate at the Subject Property. 18. The remains of parts of fences and the damaged metal shell of a greenhouse, which has been clearly abandoned for over half a century, based on the credible testimony of Mr, Hayden, are not a basis upon which to deny the Application. 19. Further, as the testimony has noted, the original McClellan house was destroyed many, Many years ago, well before Seton Hall ever came on to the Subject Property, and that the gardens which may have been planted by the Olmsteds starting in the late 1930's or 1940’s on the northern portion of the Subject Property have become overgrown and are no longer maintained. 20. The southern portion of the Subject Property has developed and was used as a school prior to Seton Hall’s use of the Subject Property. 21, Concerning the historic significance of the Subject Property, Mr. Hayden’s testimony was most credible. His written report and testimony demonstrated that none of the remaining structures, which clearly are in a state of disrepair or are partially destroyed, are eligible for or are on the National Historie Register because they lack historic significance and historie integrity. Nothing on the Subject Property qualifies for a designation under the National Historic Register. 22, The objector’s proffered historical expert Kathleen Galop lacked the same credibility. She primarily testified with =2y7 -

regard to the landscape architecture of the Subject Property, but admitted she was not a landscape architect. Most importantly, she admitted only being on the Subject Property for at most 10 to 15 minutes. Considering that she walked all the way to the location of the remaining metal frame of a greenhouse, which takes approximately 5 minutes to walk from where cars park based on Board member's visits to the Subject Property, she was barely on the Subject Property and therefore had no real ability to determine what was there. Further, unlike Mr. Hayden who performed extensive background research on the prior property owners and the Olmsted brothers, Ms. Galop did not. As noted by Ms. Galop, it has also not been adequately demonstrated whether any of the Olmsted plans pertaining to the Subject Property were ever implemented. 23. Seton Hall’s construction on the Subject Property of additional athletic fields will free up the use of the Township's fields for other Township uses, as there is much competition for the use of the public fields in West Orange. The testimony of Bill Keogh, the Township’s recreation director, and Mr. Edwin Johnson of the Township’s Recreation Department, demonstrated that the expansion of the Seton Hall fields will have the positive effect of freeing up use of the fields at the Township’s parks and schools’ for Township residents and children, thus providing a further benefit to the Township and the public good. 24. The use of the Subject Property for the proposed expansion of athletic fields and the field house is justified ~28-

and reasonable. The proposed use, as demonstrated by the testimony of Monsignor Kelly and Mr. Steck, is integral to the core function of Seton Hall as a school. The specific location of the Subject Property is key, as it is in close proximity to Seton Hall’s academic facilities and other fields located on Northfield Avenue, and Seton Hall owns no other property in close proximity available for it to expand upon. Furthermore, there is no additional large tract of land in close proximity to the Seton Hall School building on Northfield Avenue available for Seton Hall to build the proposed athletic facilities. 25. This Application poses no threat or potential harm to either the Indiana bat or its breeding habits or sites. No witness testified that they were aware of Indiana bats actually being on the Subject Property. For example, Amy Green, the objector's environmental science witness, testified that she had no actual knowledge of Indiana bats at the Subject Property. Green testimony of November 5, 2009 at page 130. Ms. Green further testified that a significant part of North Jersey includes habitats for the Indiana bat. Green testimony from December 3, 2009 at page 58. The U.S. Fish and Wildlife Service further advised that if the removal of trees at the Subject Property occurred during non-breeding season, the months of September through March, it would be acceptable to remove trees without any impact to the Indiana bats’ breeding habits. Seton Hall agreed that the removal of any trees would occur during this time period, and same will be made a condition of approval. In addition, Seton Hall actually performed at bat mist net -29-

survey in accordance with U.S. Fish and Wildlife Services guidelines and the results of that survey was that no Indiana bats were found. Thus, any testimony that the removal of trees might negatively impact the breeding habits and habitat of the Indiana bat is without basis and this is a non-issue in this Application. 26. There was much conflicting testimony and public comment concerning whether the Subject Property contains an old growth forest. Despite all the back and forth, the Township’s Forester, who one of the objectors called as his own witness, Mr. Linson, testified, “There are old trees. But there is no old growth forest.” November 5, 2009 transcript at page 64. Mr. Linson further testified that there was really no forest at this location until some 50 or 60 years ago when the Subject Property was abandoned and natural growth resumed. Id. at 74. Mr. Linson was the only individual with the appropriate qualifications who testified before the Board as the Township Forester to make this determination. The Board finds his testimony to be very credible. Many of the other people who testified simply were not experts in this area or effectively were attempting to quote hearsay from articles written by other people or provide a net opinion. Ms. Green testified that she is not a certified tree expert. Green testimony of November 5, 2009 at page 25, In addition, the Applicant has clearly made numerous revisions in the Application to save a number of the older or champion trees on the Subject Property. Thus, the Srl

Board concludes that there is no old growth forest present at the Subject Property. 27. The removal of the trees at the Subject Property and their replacement by a greater or equal number of new trees is clearly appropriate. The majority of the older trees are only present in the northern section of the Subject Property. Many of the trees in that section are dead, dying, have fallen or are in various states of decline. The clearing of the older trees and their replacement with new trees that will grow over their lifetime is part of the natural cycle of trees dying and growing. This is not an example of where the Applicant simply is looking to clear-cut property and not replace the number of trees removed with new trees. Seton Hall proposes to replace the trees, which is part of the cycle that occurs in connection with trees throughout the United States and the world. 28. The tree survey done by the Applicant and the conditions that will be placed upon tree removal with oversight by a monitor, the Township Planner or the Township Forester will ensure that only those trees that should be removed will be removed, and thus comply with the intent and purpose of the Township's tree ordinance. The Township Forester, Mr. Linson, testified that the Applicant’s plan has complied with the appropriate regulations and that the issuance of a tree removal permit is appropriate, and the Board so finds. 29. None of the wooded area east of Ridge Road, the steepest portion of the Subject Property, will be disturbed by the proposed construction. ose

30. Seton Hall has proposed leaving the cross-country track in its existing location, a condition that was supported by the objectors’ environmental expert, Amy Green. At closing argument, counsel for two objectors stated that they wish the path to be moved further to the south which would result in the destruction of approximately 37 additional trees. The Board finds that the proper place for the running track is in its current location but will require as a condition that it be resurfaced on the top and sides so that it is solid. 31. With regard to the use of asphalt millings, objectors provided Exhibit Carp 5 which are the Asphalt Millings Guidance Document issued by the New Jersey Department of Environmental Protection with a revision date of September 10, 2009. Clearly, these revisions are not applicable because the path in question predates this Guidance Document and there was no testimony as to the exact composition of the path that exists on the Subject Property that has been there for many years. Further, section F of the Guidance Document notes that “several uses of asphalt millings are fully appropriate in accordance with the regulations for recycling and beneficial use and, therefore, asphalt millings may be used as follows below.” One of the permitted uses set forth in subsection F 3 is as surfacing materials if an appropriate binder is applied to keep the asphalt millings in place. Subsection F 4 notes that asphalt millings may be used to construct or repave a roadway or parking lots and used for a walking or running path likewise appear to be clearly appropriate under these regulations. The pathway is ies

so utilized. Further, the concerns about the asphalt millings onthe path is an existing condition and one that would continue to exist in place with no change whatsoever if the Application were denied. Therefore, this is a non-issue in this Application. 32. The Board accepts the testimony of Joseph Staigar, the Applicant’s traffic expert, whose credibility is accepted and who has testified before the Board in numerous other Applications. The revisions made by Seton Hall to the plans to deal with public safety are acceptable. The biggest concern vaised was when home football games are played which will occur no more than six or so times during the year. The duration of each football game with both pre- and post-foothall activities will be no more than approximately four hours, or a maximum of some 24 or so hours per year, which clearly cannot have a substantial detrimental impact on the neighboring community. While people will havé to park in neighboring areas, that is no different than at West Orange Public High School where at home football games the parking lot at west Orange High School is clearly inadequate to provide parking. Whenever home football games are played at West Orange High School, numerous people park on the neighboring streets and walk to the football field. The conditions imposed by the Board will require the Applicant to hire off-duty police officers along Prospect to maintain traffic flow as well as to stop traffic to allow pedestrians to cross the street and gain access to the Subject Property to attend football games. Likewise, the conditions will require 3a

that during home football games that parking monitors be utilized for the on-site parking in order to maintain the flow of traffic and safety. Mr. Staigar opined that there was safe ingress and egress to the Subject Property, and the Board so finds. 33. The Board finds that the practice of Seton Hall students walking from the school building to the athletic fields will likely continue even if the Application is denied. The Board finds it cannot require Seton Hall to install sidewalks on property it does not own to enable students to walk from the Seton Hall Prep school to the Subject Property, although Seton Hall is encouraged to take these issues to heart and instruct its students on how to walk properly to avoid any problems and to utilize sidewalks where they exists. This pre-existing issue of students walking to and from the Subject Property does not negate Mr. Staigar’s conclusion that there is safe ingress and egress from the Subject Property 34. With regard to the site plan itself, with the various revisions made by Seton Hall, and the relocation of certain of the baseball fields, the practice field on the northerly portion of the Subject Property will now be at least 380 feet from the boundary of the Carp and Malanga properties, and that buffer area will be heavily wooded with the exception of the path which is used for people to walk and cross-country track. Such a buffer is more than adequate, especially in light of Seton Hall's agreement not to do any further development in this northern portion for 30 years (assuming it continues to own the ~34-