470 Eagle Rock Avenue West Orange_Revised Planning Report_07072023

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.