470 Eagle Rock Avenue West Orange_Revised Planning Report_07072023

470 Eagle Rock Avenue, Township of West Orange, NJ – Professional Planning Report 14 o COMMENT: The proposed development of the project site is a better alternative than the deteriorating existing conditions. The project will enhance the Eagle Avenue streetscape and fill in missing physical gap. The layout of the proposed restaurants on the site are arranged in a way so that traffic impacts will be minimal. Negative Criteria In terms of the negative criteria, there are two prongs that must be met. The first prong is that there will be no substantial detriment to the public good. The second is that proposed project will not substantially impair the intent of the zoning ordinance or the Township Master Plan. As previously identified in this report, numerous goals, objectives and excerpts stated in the Master Plan will be advanced through the implementation of this project (see page 5 of this report). Based on these relevant goals, objectives and excerpts, the proposed project would further the Township’s 2019 Master Plan. There is no substantial detriment to the public good as the project will not negatively impact the B-2 Zone or adjacent uses. The proposed development will activate a dormant commercial site and simultaneously blend with the adjacent residential community through buffering along the westerly property line and screening along the southerly property line. Landscaping along the Eagle Rock Avenue frontage contributes to the site’s walkability and pedestrian experience. The westerly driveway only permits a right egress turn, which funnels traffic away from the residential community and towards the business district. There is no curb cut driveway proposed along the Rosney Terrace frontage. To that end, this demonstrates that traffic impact will not significantly impact the adjacent residences in the R-6 District. Cumulatively, the design and layout of the proposed fast food restaurants will have numerous positive impacts and not cause substantial detriment to the public good. It is a better zoning alternative than the strict application of the Conditional Use standards for a fast food restaurant within the B-2 District.

470 Eagle Rock Avenue, Township of West Orange, NJ – Professional Planning Report 15 C Variances In addition to the D-3 Conditional Use variances required as part of the application, there are also “C” variances requested. These variances consist of: • Maximum impervious coverage (60% is the maximum permitted and 71.2% 68.8% is proposed) • Signage o Freestanding sign: § Section 25-15.3.c.2.(d): Maximum number of freestanding signs (1 is permitted, whereas 1 is proposed for the proposed Popeyes restaurant and 1 is proposed for the fast food restaurant for a total of 2 freestanding signs) § Section 25-15.3.c.2.(d): Maximum sign height (16’ is the maximum permitted, whereas 20’ for the proposed Popeyes restaurant is proposed) COMMENT: With the reduction in sign height, compliance has been reached and variance is not requested. § Section 25-15.3.c.2.(d): Maximum sign width (6’ is the maximum permitted, whereas 7.88’ is for the proposed Popeyes restaurant is proposed) o Building mounted sign: § Section 25-15.3.c.2.(b): Maximum number of façade signs (1 is the maximum permitted, whereas 5 is proposed for each fast food restaurant) § Section 25-15.3.c.2.(b): Maximum façade area (15% of front wall area or 120 square feet, whichever is less [100 square feet for the Popeye’s restaurant and 114 91 square feet for the Sonic restaurant], whereas 198.9 square feet is proposed for the Popeye’s restaurant and 160.2 142.5 square feet for the Sonic restaurant) • Parking o Section 25-12.1.b: The entire perimeter of all parking areas and the edges of all entrance and exit drives shall be enclosed with a concrete or granite block curb at least six inches above the paving surface. Curbing shall not be less than five feet from any fence or screening nor less than five feet from any structure. However, there will be a concrete curb directly adjacent to proposed building at drive-thru window and a fence located 1.3’ from curb. o Section 25-12.1.L.: Off street parking may be placed in the side or rear yard only. However, parking is proposed in front yard. • Driveway o Section 25-12.1.I: Each entrance or exit from such parking area shall be at least fifty (50) feet from any residential district. However, the northwesterly access aisle proposed is 37.4’ from the adjacent residential zoning district (R-6). • Supplemental Provisions for All Districts o Section 25-8.1A.: No accessory uses

strict. However, the northwesterly access aisle proposed is 37.4’ from the adjacent residential zoning district (R-6). • Supplemental Provisions for All Districts o Section 25-8.1A.: No accessory uses shall be located within any minimum required front yard or side yard. § COMMENT: A variance is requested as a parking area is proposed within the required front yard setback.

470 Eagle Rock Avenue, Township of West Orange, NJ – Professional Planning Report 16 • Buffer Requirements o Section 25-11.3.a.: Along any side or rear property line which is also the boundary line between a nonresidential district and a residential district or is contiguous to a residential use in a residential zone, a buffer strip shall be planted and maintained in perpetuity with trees and shrubbery of such sizes and densities as to adequately screen the buildings from such abutting residential district or use in a residential zone. The required buffer width shall be fifty feet in all nonresidential zones. However, the proposed residential buffer is 1.1’. o Section 25-11.2.: Side yards of nonresidential buildings on lots which are contiguous to the boundary of any residential district shall have a minimum required width of seventy-five feet. However, the proposed Popeyes is 66.9’ from side front contiguous to residential district boundary (R-6). • Lighting Requirements o Section 25-11.2: Minimum of 20 lux/2.0 footcandles required in parking areas, whereas 0.5 footcandles is proposed. § COMMENT: 0.5 footcandles was determined to be appropriate as it would be less intrusive to neighboring properties, especially those that are residential. In reviewing this variance, the flexible C-2 Context [as stated in Section 40:55D-70c(2) of the MLUL], is appropriate. The granting of approval must benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be not on the characteristics of the land that, in light of current zoning requirements, create a “hardship” on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community. When a use variance is sought based on the assertion that the site is “particularly suitable for the proposed use,” the required bulk variances may be considered subsumed in the consideration of the use variance. In the case of Price v. Himeji, LLC, 214 N.J. 263, 301 (2013), in which the Court noted that although the board referred to the c(2) variances for setbacks and coverage as “subsumed in the consideration of the (d) variances,” the record of the board’s review supported its decision. The Price Court further found that the record and resolution demonstrated

and coverage as “subsumed in the consideration of the (d) variances,” the record of the board’s review supported its decision. The Price Court further found that the record and resolution demonstrated that the c(2) variances advanced the purposes of the MLUL and created benefits that outweighed any detriments caused by the deviations from the zoning ordinance. Additionally, in the case of Pullen v. Tp. Of South Plainfield, 291 N.J. Super. 1 (App. Div. 1996), the court reviewed a grant of a c(2) variance where a proposed pharmacy would be constructed on a “thru-lot” site lying between two streets. Plaintiff had urged that any deviation from the front yard setback at issue had to further the purposes of the MLUL, and that only those benefits flowing from the deviation should be factored into the required balancing test. The court, however, held that the benefits flowing from the entire proposal should be considered. To that end, in the context of the Pullen Case, the overall site arrangement works better as designed than the strict application of the Township’s Zoning Ordinance. Again, multiple Purposes of Zoning from the MLUL will be advanced from the implementation of this project. These include Sections a, g, and i. It is necessary to deviate from the strict application of the standards of the B-2 District. Additionally, the lot coverage deviation is necessary in order for adequate parking to be provided onsite. The building coverage deviation is needed for the proposed development to be viable.

470 Eagle Rock Avenue, Township of West Orange, NJ – Professional Planning Report 17 Similarly, there will be no substantial detriment to the public good in the implementation of this project. There will also be no impairment to the zone plan, for the reasons previously mentioned. The proposed lot coverage is necessary in providing adequate parking for the employees and patrons of the proposed fast food restaurants. It is also a decrease coverage ratio than the existing condition of 88.3% (71.2% 68.8% proposed; a decrease of 17.1% 19.5%). The requested deviations from the signage standards are necessary as these deviations will effectuate the proposed Popeyes restaurant. Although the project site abuts a residential zoning district to the south and west, adequate screening will be provided in the form of a variety of landscaped vegetation (along the westerly boundary) and a 6’ board of board fence (along the southerly boundary). Residential uses to the south and west will have minimal impacts, if any, as the vehicular circulation is designed to steer traffic away from the nearby residences while maintaining the commercial cohesion of the B-2 District and the adjacent business establishments. Cumulatively, all of the “C” deviations are better zoning alternatives than the strict application of the B-2 District standards set forth in the zoning ordinance. Lastly, additional proofs will be added during the time of planning testimony.

470 Eagle Rock Avenue, Township of West Orange, NJ – Professional Planning Report 18 APPENDIX I: Maps Map 1: Aerial Map Map 2: Zoning Map

470 Eagle Rock Avenue, Township of West Orange, NJ – Professional Planning Report 19 Map 1: Aerial Map The project site is located along the southern side of Eagle Rock Avenue. It is proximate to numerous commercial establishments, including the West Orange Plaza (Whole Foods, Chipotle, Jersey Mike’s etc.), CVS pharmacy and Kim’s Sushi restaurant (Source: Google Maps, accessed December 2022).

470 Eagle Rock Avenue, Township of West Orange, NJ – Professional Planning Report 20 Map 2: Zoning Map The project site is located within the B-2 General Business zoning district (Source: Township of West Orange Zoning Map dated November 2006). !"#$%&'()*'%

470 Eagle Rock Avenue, Township of West Orange, NJ – Professional Planning Report 21 APPENDIX II: Site and Surrounding Area Photographs (Dated 2/17/2022)