2 ZBA Application

land). Further, Mr. Steck testified that the impervious coverage on the Subject Property with the Proposed construction would be less than 1%. Steck testimony of September 10, 2009 at page 37. 35. The Board adopts the conclusions of its engineer, Mr. Eric Keller, that the revised specifications and design drawings by Seton Hall regarding the drainage and storm water management design were appropriate and adequate. Thus, the Board accepts the drawings and studies done by Mr. Stewart as confirmed by Mr. Keller as being acceptable and demonstrating that there is no adverse impact to the public and that any drainage issues will not be exasperated by the proposed construction. 36. There is no basis to consider the objector’s engineer Brian Freidlicht’s “proposal” to relocate the bio-retention basin. When pressed, Mr. Freidlich stated that he had not done any design specifications for such an underground bio-retention basin at the Subject Property and he did not know if it would work or fit in the location. His attempt to make a proposal and state that the Board should adopt it, and when pressed conceded that he had not done any of the design specifications or work to know whether it would actually work demonstrated that Mr. Freidlicht's opinions were unsupported by any studies or data and, therefore, are disregarded. It should be noted that Mr. Stewart, Seton Hall’s engineer, met with Mr. Freidlich in an attempt to resolve many of the issues discussed with regard to the bio-retention basins and other drainage issues, As a result, Seton Hall made additional changes to the site plan Osis

during the Application, leading to the final proposal, accepted by Mr. Keller, the Board's engineer, and adopted by the Board. 37. The Parking variance should be granted with the Applicant providing for 372 non permanent spaces for overflow parking for home football games, as it is not good planning to provide for an impervious parking area that will only be used 4- 6 times per year. NOW THEREFORE, the kBoard hereby makes the following Conclusions of Law: zs “Zoning boards may choose which witnesses, including expert witnesses, to believe.” Board of Education v, Zoning Board, 409 N.J. Super. 389, 434 (App. Div. 2007). The board’s choice must be reasonable. Id. The board “cannot rely upon opinions that are unsupported by any studies or data.” Id. at 435. Thus, certain of the conclusions that were made by witnesses in this matter were, based upon the Board's assessment of the witnesses who testified in this application, not credible or supported. 2. The fact that Seton Hall is a private school, and not a public school, is irrelevant. N.J.S.A. 40:55 D-66(b) states: No zoning ordinance governing the use of land by or for schools shall, by any of its provisions, or by any regulation adopted in accordance therewith, discriminate between public and private non-profit day schools of elementary or high school accredited by the State Department of Education. *36-

3. Thus, any attempt to distinguish or discriminate between Seton Hall as a private school and what may be permissible for a public school cannot be permitted. 4. The fact that the Seton Hall educates only a small number of West Orange residents is irrelevant. The Board’s review of an Application should not simply stop at the Township's borders because many uses serve a larger, more regional purpose. Examples are hospitals, nursing homes, assisted living facilities, and various forms of manufacturing, businesses or commercial uses such as shopping centers or supermarkets. Each such use serves not only the residents of a particular township such as West Orange, but also the broader, larger community outside of West Orange. 5. The New Jersey Supreme Court in two separate decisions has likewise held that the fact that a particular Application to a zoning board will serve the larger community and not solely that township itself is not a negative or relevant factor. In Andrews v. Ocean Township Board of Adjustment, 30 N.J. 245 (1959), the Supreme Court was faced with reviewing an application that permitted the use of residential premises for a parochial school as living quarters for the teachers. The Supreme Court noted, “plaintiffs complain the school will serve the entire parish of which the township is not a part. No infirmity inheres in that circumstance. A municipality may provide cooperatively for the needs of neighboring communities as well as its own.” Id. at 251. Likewise, in hip Committee of Denville v. Board of Education, 59 N.g. 143 337

(1971), in reviewing an Application for the construction of a vocational school, the Court held that “Nor should the fact that a vocational school will serve a regional need rather than solely a municipal need, of itself, support a total or a limited zoning bar." Id. at 150. 6. Athletic fields are permitted and expected conditional or accessory uses to a school. See Shim v. Washington Township Planning Board, 298 N.J. Super. 395 (App. Div. 1997), wherein the Court stated: We note, for example, that public playgrounds and public and parochial schools and colleges are permitted in the R-1.5 zone. We doubt that the municipality intended that lighting for playgrounds or athletic fields for the schools are prohibited because lighting and athletic fields are not among the twelve specified enumerated items as permitted accessory uses in the zone. Id. 401-402, 7. In order to grant a D variance, the Applicant must prove both the positive and negative criteria to obtain a use variance. Smart SMR of New York, Inc. v. Borough of Fairlawn Board of Adjustment, 152 N.J. 309, 323 (1988). “In general, the positive criteria require that an applicant establish ‘special reasons’ for granting the variance,” and “the negative criteria require proof that the variance can be granted without substantial detriment to the public good and that it will not substantially impair the intent and purpose of the zone plan and the zoning ordinance.” id. at 323, citing Sica v. Board of Adjustment of Wall Township, 127 N.J. 152, 156 (1992). If the proposed use is inherently beneficial, an applicant’s burden is -38-

significantly lessened because “an inherently beneficial use presumptively satisfies the positive criteria.” Smart SMR, 152 N.J. at 323. The Sica court explained that with an inherently beneficial use, satisfaction of the negative criteria does not depend upon an enhanced quality of proof, but rather upon balancing the positive and negative criteria. Sica, 127 N.J. at 160-63. 8. In this case, much has been made as to whether the proposed expansion of the athletic fields is an inherently beneficial use given its connection to Seton Hall, a non-profit parochial school. In looking at this, all of the parties have repeatedly cited the Zoning Board to the Appellate Division's decision in Medical Center at Princeton v. The Township of Princeton Zoning Board of Adjustment, 343 N.J. Super. 177 (App. Div. 2001). What is fascinating is that the Medic Center decision at page 204 cites two very relevant decisions in connection with schools that have an impact on whether the proposed development to the Subject Property is in fact an inherently beneficial use. Cited in Medical Center is the Appellate Division’s decision in Scholastic Bus Co., Inc. v. Zoning Board of the Borough of Fairlawn, 326 Ng. Super. 49 (App. Div. 1999), In Scholastic Bus Co., the applicant sought review of the zoning board’s denial of a use variance to locate a school bus parking lot and maintenance facility in an industrial zone. The school bus company provided school bus services to a number of school systems located in the regional area. The Appellate Division stated: ~39-

We hold that the proposed use is inherently beneficial. Scholastic operates a bus business for the transportation of school children, fulfilling the public obligation to transport children. A school bus facility is a use necessarily accessory to the school buildings themselves, and as such, it is clearly inherently beneficial in the zoning sense. Even if not an inherently beneficial use, the evidence before the Board clearly established that the proposed site is clearly suitable for the proposed use and, therefore, satisfied the positive criteria. id. at 55 (internal citations omitted). a). Thus, the Appellate Division reversed the denial of the variance. While in Scholastic Bus the Appellate Division cited to the New Jersey Constitution that transporting children fulfills a public obligation, in today's age when various municipalities with the support of government are actively advancing charter schools, school vouchers for private schools and other related items, education, whether by the public or private system, is inherently beneficial. All of the objectors appear to agree that if Seton Hall were proposing constructing its school at the Subject Property, it would be inherently beneficial. As noted above, if transportation of children makes a school bus maintenance depot and parking lot for school buses an inherently beneficial use due to its relationship to the education of children, given that athletic facilities are an integral part of the high school experience and curriculum in both public and private high schools provide, not only in New Jersey, but throughout the United States, then the expansion by -40-

Seton Hall of its existing athletic facilities and field house at the Subject Property clearly are inherently beneficial. 10. Likewise, the Law Division in Rolf v. Borough of Emerson, 141 N.J. Super. 341 (Law Division 1976), the plaintiff sought to locate a school bus garage business in the Borough of Emerson. The Borough denied the applicant’s request for a variance. The court noted that the first question was “whether the use of the property for a school bus garage facility serving a regional need is so inherently beneficial to the general welfare as to constitute a special reason within the intendment of N.J.S.A. 40:55-39(d), thus warranting the grant of a use variance provided only that the negative criteria of the statute are met.” Id. at 345. Judge Pressler, then sitting in the Law Division, found that the school bus facility was “necessarily accessory to the school buildings themselves” because transportation of students was an intrinsic part of the government’s obligation to educate them. Id. at 355. Judge Pressler stated: It is this court’s conclusion, based on the facts above recited, the plaintiff has so clearly borne his ultimate burden of proof of particular suitability of the premise in question for the use sought that any contrary finding by the board of adjustment is arbitrary and unsustainable and that, as a further consequence, it is immaterial to this Application whether the use is an inherently beneficial one, although for the reasons herein stated, it is concluded that it is. Id. at 353. -A41-

ii. Further, even assuming arguendo that the fields themselves are not inherently beneficial, the Applicant has met both the positive and negative criteria. The proposed construction can be done without substantial detriment to the public good and it clearly does not substantively impair the intent or purpose of the Township’s zoning plan and zoning ordinances for the reasons stated herein, Further, because the R-1 zone clearly permits playgrounds and parks and public and private schools as conditional uses, and athletic fields go with each of these uses, it clearly must have been intended, evidenced by the fact that when the Township master plan was last redone, there was no question with regard to the fact that Seton Hall was already operating athletic facilities and fields at the current site. Thus, there is no substantial impairment of the Town’s zoning plan and ordinances by the granting of the proposed variances. 12, It should be noted that prior decisions of courts have expressly permitted private schools to do similar types of construction, In Burton v. Town of Montclair, 40 N.J. 1 (1963), the New Jersey Supreme Court dealt with an application by the Montclair Academy Foundation to construct a new school building and gymasium on a nearby tract of land to where its existing facility was located. The board approved and granted the variance subject to a number of conditions. The Supreme Court affirmed the granting of the variance in part noting that the “educational and cultural use to be achieved thereby (by -42-

construction of both the school building and gymnasium) is in furtherance of the welfare of the community.” Id. at 4. 13. Under the New Jersey Administrative Code section 7:7A- 4.3(b)(5), because the Board has found that nothing on the Subject Property is listed on or eligible for listing on the National or New Jersey Register of Historic Places, that granting the variances sought would not be violative of the New Jersey Administrative Code. Seton Hall has clearly addressed the historic significance of the Subject Property. 14, To the extent that on appeal an issue is raised with the Board’s decision to not permit the West Orange Historic Preservation Commission to participate in the application, Chairman Neuer previously noted on the record during the hearing this application has received widespread notice and coverage in the local press, online at various websites in addition to the required notices. The Historic Preservation Commission waited until approximately mid-2010 to even approach the Board, which was too late given how much time had gone by and how far this application has progressed. Further, N.J.S.A. 40:55D-110 and 55D-111 do not instruct or require otherwise, although it is very questionable whether either of these statutes are applicable to this matter. It is clear under section 110 that a simple failure to refer to a matter to the Historic Preservation Commission will not void the Board’s approval. The legislative language does not sanction a wholesale ignoring of historic issues in reviewing an application, which was clearly not done in this case. Seton Hall and certain objectors presented ~43-

extensive historic evidence of the site in connection with the Board's decision to grant a variance. In order for the Board to determine if there was any detriment to the public good, the Board heard testimony on the record about the historic nature of the property in question. Thus, the Board was not required to seek referral or an opinion from the Historic Preservation Commission, or have a member of the Historic Preservation Commission give testimony, although this was permitted in this case. Neshanic Coalition for Historic Preservation v. Hillsborough Township Planning Board, unpublished opinion dated July 19, 2010 in the Law Division, Somerset County, Docket No. SOM-L-1437-08, at page 8. Thus, the Board's decision not to permit the Historic Preservation Commission to weigh in on this matter is clearly appropriate. Most "importantly, when the Historic Preservation Commission submitted its August 18, 2010 letter to the Board attaching its resolution passed on August 4, 2010, it is clear that the Historic Preservation Commission did not take testimony, but simply made certain net conclusions which were not based upon the historical record provided during the public hearings before the Zoning Board. Thus, it is respectfully submitted that the decision of the Board not to formally permit the Historic Preservation Commission to reach a decision for the Zoning Board was clearly not erroneous as a matter of law and as the facts of this case demonstrate. 15. Based on the foregoing, and in conclusion, Seton Hall is entitled to the D and C variances sought in its Application as amended during the course of the hearings. While the Board ~44-