325 Mount Pleasant Ave ZB 24 06 Planning Review August 12 2024

11 | Page 105 Grove Street, Suite 3 Montclair, NJ 07042 www.Nishuanegroup.com 973.954.2677 SITE PLAN, MAJOR - Shall mean any development plan for one or more lots that does not meet the definition of a minor site plan, as defined herein. SITE PLAN, MINOR - Shall mean any development plan of one or more lots that does not involve planned development, any new street, or the extension of any off-tract improvement, the cost of which is to be prorated pursuant to N.J.S.A. 40:55D-42; and proposes development that would require not more than five new parking spaces over and above the existing permitted spaces on the site, pursuant to the Township's zoning requirements; and proposes development of not more than 1,000 square feet of new building floor area. Planning Comments N.J.S.A. 40:55D-70(d) permits a Board of Adjustment “in particular cases for Special Reasons” to grant a variance to permit “a use or principal structure in a district restricted against such use or principal structure.” This represents the Positive Criteria of the statute. In addition, a showing of the Negative Criteria is necessary to obtain a “d” variance. The applicant must demonstrate that the proposed variance can be granted “without substantial detriment to the public good and will not substantially impair the intent and the purpose” of the Master Plan and Zoning Ordinance. When considering the granting of a “d” variance, an applicant must demonstrate that special reasons are satisfied by either showing that the proposed use “inherently serves the public good” or that it promotes the general welfare because the proposed site is particularly suited for that use. It was held in Medici v. B.P.R. Co., 107 NJ 1 (1987) that the only “special reasons” which can be considered are those which promote the general purposes of zoning, as listed in N.J.S.A. 40:55D- 2. The court emphasized in Burbridge v. Mine Hill Twp., 117 NJ 376 (1990), however, that the MLUL includes all the zoning purposes listed in N.J.S.A. 40:55D- 2, not only the promotion of the general welfare. Therefore, each of these listed purposes may support an application for a “d” variance. In the case of a D2 variance, the Board has the power to grant the expansion of a lawfully created pre-existing nonconforming uses in particular cases and for special reasons. Because the use is lawfully pre-existing, the applicant shall show the

e power to grant the expansion of a lawfully created pre-existing nonconforming uses in particular cases and for special reasons. Because the use is lawfully pre-existing, the applicant shall show the positive criteria related to the advancement to the Municipal Land Use Law, but does not need to demonstrate suitability, as the use already exists. In Burbridge

12 | Page 105 Grove Street, Suite 3 Montclair, NJ 07042 www.Nishuanegroup.com 973.954.2677 v. Mine Hill, the Court noted that applications to expand lawfully created preexisting nonconforming uses offer boards opportunities to impose conditions, frequently aesthetic, which will help integrate the use with its surroundings, an especially important consideration for uses which are thriving and therefore not likely to end soon. When considering a d(6) height variance, the applicant must show the site is particularly suited for more “intensive” development and that the site can accommodate the potential problems associated with a height greater than that permitted by the ordinance. In addition, a showing of the Negative Criteria is necessary to obtain a “d” Variance. The applicant must still demonstrate that the proposed variance can be granted “without substantial detriment to the public good and will not substantially impair the intent and the purpose” of the Master Plan and Zoning Ordinance. Bulk “C” Variances As previously noted, the application requires three “C” variances. The first is related to lot coverage, where the maximum lot coverage for the zone is 30%. 41% lot coverage is existing and 44% is proposed, related to the slab foundations for the electrical equipment and although, not specifically discussed within the application, the “drive paths” proposed. A variance is also required for exceedance of the minimum side front yard for a corner lot. The requirement is 100 feet. The existing condition is 211.6 feet to Mount Pleasant Avenue and proposed to be reduced to 77.9 feet to the property line. The third bulk variance is for the height of the proposed fence. The existing fence along the perimeter is six feet and the applicant proposes to construct a new fence eight feet in height. The Township of West Orange Zoning Code permits a maximum fence height of six feet under §25-8.4 Walls and Fences. N.J.S.A. 40:55D-70c sets forth the criteria for a planning board to grant variance from bulk requirements of zoning ordinance. Two types of “c” variances can be granted:

13 | Page 105 Grove Street, Suite 3 Montclair, NJ 07042 www.Nishuanegroup.com 973.954.2677 (c) 1: in cases of hardship, such as “exceptional narrowness, shallowness or shape of specific piece of property,” or by reason of exceptional or unique topographic conditions, physical features, or an exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon. (c) 2: where the purposes of zoning would be advanced, and the benefits derived by the variance would outweigh any detriments. The applicant must also meet the negative criteria of the statute for the granting of a “c” variance, wherein a variance can be granted only “without substantial detriment to the public good” and where it “will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.” Conclusions Respectfully submitted, George Wheatle Williams, PP, AICP Principal, Nishuane Group, LLC. Erik DeLine, PP, AICP, LEED AP Associate, Nishuane Group, LLC.