481 Eagle Rock Ave ZB 24 11 Planning Review October 8 2024

11 | Page 105 Grove Street, Suite 3 Montclair, NJ 07042 www.Nishuanegroup.com 973.954.2677 #51. Preliminary architectural plan and elevations. Justification: The proposed improvements are generally minor in nature and the limits of the improvements are within a small portion of the site and in previously impaired areas of the rear of the existing building, mostly within an existing gravel parking area. We do not recommend this waiver. As permanent structures, elevations shall be provided for the additional canopies with smokers. Zoning (§25-7.1) The site is located within the B-2 General Business zone and IHO-1 Inclusionary Housing Overlay Zone. Permitted uses within the B-2 zone are as follows: • Retail Store • Personal Service store or studio • Office or office building • Business or vocational school • Restaurant • Bar • Massage, bodywork or somatic therapy establishment • Fitness center/health club Permitted Accessory Uses include: • Required accessory parking • Signs • Vending Machines Permitted Conditional Uses include: • Motor Vehicle fueling station • Public utility building or structure • Telephone exchange • Senior citizens housing project • Hotel • Private club, other than a golf club • Video or amusement arcade • Fast food restaurant

12 | Page 105 Grove Street, Suite 3 Montclair, NJ 07042 www.Nishuanegroup.com 973.954.2677 • Commercial antenna • Microbreweries, craft distilleries and wineries • Licensed Cannabis Retail • Licensed Medical Marijuana Dispensary The following are the bulk standards for the B-2 zone: • Maximum Height: 2.5 stories and not to exceed 35 feet • Minimum Lot Area: 10,000 square feet • Minimum Lot Width: No minimum • Minimum Front Yard: 30 feet • Minimum Side Front Yard - Corner Lot: 25 feet • Minimum Side Yards: 10/10 feet • Minimum Rear Yard: 30 feet • Maximum Building Coverage: 40% • Maximum Lot Coverage: 60% Planning Comments The applicant requests an interpretation of zoning as Wonder Group, Inc. If determined by the Board to require a D1 Variance - Use 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),

13 | Page 105 Grove Street, Suite 3 Montclair, NJ 07042 www.Nishuanegroup.com 973.954.2677 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 If determined by the Board to require a D2 Variance – Expansion of an existing non-conforming use. 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 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 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. 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.

14 | Page 105 Grove Street, Suite 3 Montclair, NJ 07042 www.Nishuanegroup.com 973.954.2677 Conclusions The application involves the expansion of existing operations at the rear portion of the site at 481 Eagle Rock Avenue, which according to the applicant was verbally approved by the zoning officer in 2021. While the applicant has not provided any material evidence to that statement, Wonder Group, Inc,, current operations without any zoning violations may be considered by the Board this existing use is legally pre-existing as approved as part of an extension of the banquet hall, which has since ceased operations. The proposed expansion of a legally pre-existing nonconforming use must still demonstrate the positive and negative criteria, but there is already a presumption of site suitability. If the Board determines this use is not legally pre-existing because the applicant fails the provide material evidence, the applicant must also demonstrate site suitability. Respectfully submitted, George Wheatle Williams, PP, AICP Principal, Nishuane Group, LLC. Erik DeLine, PP, AICP, LEED AP Associate, Nishuane Group, LLC.