Filed Complaint with Exhibit

plans are required to be submitted for site plan approval, the preliminary plans and elevations shall be sufficient." N.J.S.A. 50:55D-46b provides that "if the planning board required any substantial amendment in the layout of improvements proposed by the developer that have been the subject of a hearing, an amended application for development shall be submitted and proceeded upon, as in the case of the original application for development" and "the planning board shall, if the proposed development complies with the ordinance and this act, grant preliminary site plan approval." N.J.S.A. 40:55D-50a. provides that final site plan approval "shall" be granted if the detailed drawings, specifications, and estimates of the application conform to the standards of all applicable ordinances and the conditions of preliminary approval. As such if the applicant meets the standards set forth in the ordinances, the planning board lacks the authority to deny approval of the site plan and subdivision. N.J.S.A. 40:55D-50a; PRB Enters., Inc. v. S. Brunswick Planning Bd., 105 N.J. 1, 7 (1987); Dunkin' Donuts of N.J., Inc. v. Twp. of N. Brunswick Planning Bd., 193 N.J. Super. 513,515 (App. Div. 1984). Conversely, if the application does not comply with all ordinance requirements, the Board must deny approval. Cortesini v. Hamilton Planning Board, 417 N.J. Super. 201, 215 (App. Div. 2010). However, there are two exceptions: (1) The first exception is where an application does not comply with all ordinance requirements but the Board grants relief in terms of variances or exceptions. In that case, the Board then must review the application against all remaining ordinance requirements and grant approval if the application complies with all such remaining requirements. {410 Main Street Draft Resolution} 11ESX-L-001637-25 02/28/2025 2:34:16 PM Pg 11 of 16 Trans ID: LCV2025492774

17. N.J.S.A. 40:55D-60 permits a planning board to grant vanances from the bulk regulations of a zoning ordinance and other zoning deviations that do not require a "d" variance as part of site plan or subdivision review. The variance proofs are the same as for "c" variances as set forth in N.J.S.A. 40:55D-70. A c (2) variance may be granted when the purposes of zoning are advanced and the benefits of deviating from the ordinance requirements outweigh any detriments. The benefits derived from granting a "c (2)" variance must include benefits to the community as a whole, not just the applicant or property owner A "c" variance must address the "negative criteria," and affirmatively demonstrate that the variance can be granted "without substantial detriment to the public good" and "without substantial impairment to the intent and purpose of the zone plan and zoning ordinance" of the municipality. 18. Applicant requested waivers from Item #'s: 20 (Delineation of existing or proposed for or dedicated to public use), 21 (Any existing or proposed easement or land reserved for dedicated public use), 22 (Development stages or staging plans), 28 (All existing street, water courses, flood points, wetlands or other environmentally sensitive areas on and within 200' of the site), 29 (Existing right-of-way and/or easements on and within 200' of tract), 42 (Proposed street names), 49 (Vehicular and pedestrian circulation patterns) and 52 (Plans and legal documents for compliance with West Orange COAH Ordinances.) 19. Applicant is also seeking a design waiver for the required 24 drive aisle width as they are proposing a 22 ft. wide drive aisle in the garage. 20. The proposed units consist of four (4) one-bedroom units and eight (8) two-bedroom units. {410 Main Street Draft Resolution}12ESX-L-001637-25 02/28/2025 2:34:16 PM Pg 12 of 16 Trans ID: LCV2025492774

21. The Board Planner, Gerard Haizel, testified that the proposed project would be the largest building in the area with only the Senior Building located a block away being larger. 22. Mr. Haizel further testified that parking was driving the design of the building because to achieve the necessary depth for parking the building had to cover most of the lot, but a smaller building would be more fitting. 23. Mr. Haizel expressed concern about the limited on-site parking, especially m comparison to the limited residential parking in the immediate vicinity. 24. Mr. Haizel also noted that the other buildings on Main Street in the area were significantly smaller than the proposed building and the length of the proposed building reinforces that size factor. 25. The majority of the Board members opined that the proposed building with 12 apartment units was too large for the site as they were concerned about the lack of parking provided on site and that there was no available on-site parking for the commercial space. 26. A majority of the Board members opined that the scale of the building and the close setback to Main Street was not in keeping with the other buildings in the area. 27. Most Board members were concerned about the safety of the tenants crossing Main Street to access parking, even with a crosswalk added to the area. 28. Board members did not find that the option of parking at the municipal lot a block away was a realistic option for the residents as they believed that rather than walk late at night or in inclement weather the most likely action taken by residents that did not have on-site parking was to park on the already over-crowded North and South Park Drive. {410 Main Street Draft Resolution}13ESX-L-001637-25 02/28/2025 2:34:16 PM Pg 13 of 16 Trans ID: LCV2025492774

29. Board members did not find Applicant's traffic expert to be credible and further noted that the expert offered no opinion as to the effect of delivery trucks, which are a daily use for residents, Uber and Lyft pick-ups and drop offs and other vehicles arriving and leaving the site could be reasonably accommodated. 30. Board members found the five-foot setback to a residential neighborhood where twenty-five feet was required and the lot coverage which was greater than 20% of what is permitted in the zone did not allow for sufficient light, air, and open space. NOW, THEREFORE, based upon the foregoing findings of fact, the Board reaches the following conclusions of law: 1. This application meets all the zoning conditions for a mixed-use development in a B-2 District as set forth in the Township of West Orange Land Use Regulations Ordinance, §25-24.2b.(m). 2. As for the requested variance relief; however, Applicant fails to establish that the c(2) criteria has been met as the detriments of the project substantially outweigh the benefits due to lack of required parking, lot coverage, and setbacks which do not allow for sufficient light, air and open space. NOW THEREFORE BE IT RESOLVED by the Planning Board of the Township of West Orange that while Applicant met all zoning conditions for a Mixed Use Development in a B-2 Zone, and the required proofs for approval of the c( 1) and c(2) variances for the site 410 Main Street Holdings, LLC for property located at 410 Main Street were NOT established and therefore the Application is hereby DENIED. {410 Main Street Draft Resolution} 14ESX-L-001637-25 02/28/2025 2:34:16 PM Pg 14 of 16 Trans ID: LCV2025492774

The undersigned secretary certifies the decision set forth herein was made by this Board on December 11, 2024 and memorialized herein pursuant to N.J.S.A. 40:55D10(g) on January 8, 2025. {410 Main Street Draft Resolution} 15ESX-L-001637-25 02/28/2025 2:34:16 PM Pg 15 of 16 Trans ID: LCV2025492774

Vote Action Taken by the Board on December 11, 2024: Board Motion Second Aye Nay Abstain Absent Member K. Alper X J. Guarino X X L.Klein X S. McCartney X B. Rutherford X C. Morgan --- P. Smeraldo --- W. Wilkes X L. Kapferer X J. Cardoza X R. Bagoff X X Vote on Memorialization on January 8, 2025: Board Member Motion Second Aye Nay Abstain Absent K.Alper X J. Guarino X X L.Klein ---- S. McCartney X S. Scarpa ---- C. Morgan ---- P. Smeraldo ---- W. Wilkes X L. Kapferer X J. Cardoza X R. Bagoff X X {410 Main Street Draft Resolution} 16ESX-L-001637-25 02/28/2025 2:34:16 PM Pg 16 of 16 Trans ID: LCV2025492774

1 PRIME TUVEL & MICELI By: Benjamin T.F. Wine, Esquire N.J. Attorney ID No. 289902018 1 University Plaza, Suite 500 Hackensack, NJ 07601 Attorney for Plaintiff, 410 Main St Holdings LLC 410 MAIN ST HOLDINGS LLC : SUPERIOR COURT OF NEW JERSEY : ESSEX COUNTY Plaintiff, : CIVIL PART - LAW DIVISION : v. : DOCKET NO. : TOWNSHIP OF WEST ORANGE : Civil Action PLANNING BOARD : : COMPLAINT IN LIEU OF : PREROGATIVE WRITS Defendant. : : Plaintiff, 410 Main St Holdings LLC (hereinafter referred to as the “Applicant” and/or “Plaintiff”), by and through its undersigned counsel, Benjamin T.F. Wine, Esquire, of the firm of Prime Tuvel & Miceli, hereby presents this Complaint in Lieu of Prerogative Writs against Defendant, Township of West Orange Planning Board (hereinafter referred to as the “Board” and/or “Defendant”), and, as such, respectfully avers as follows: OPERATIVE FACTS I. The Parties and the Property 1. Plaintiff is the owner of certain real property located at the corner of Main Street and Park Drive North in the Township of West Orange, Essex County, State of New Jersey, and designated as Block 113, Lots 262, 264, and 308 on the Township of West Orange Tax Map (hereinafter collectively referred to as the “Property”). 2. The Board is the duly constituted Planning Board of the Township of West Orange (hereinafter referred to as the “Township”), performing the duties and powers of a planning boardESX-L-001637-25 02/28/2025 2:34:16 PM Pg 1 of 32 Trans ID: LCV2025492774

2 pursuant to the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (hereinafter referred to as the “MLUL”). 3. The Property is located on Main Street and situated in the City’s General Business District (hereinafter referred to as the “B-2 Zone”) as set forth the Township’s Zoning Ordinance (hereinafter referred to as the “Zoning Ordinance”). 4. The Property is made up of three (3) tax lots. The Property measures 11,936 sq. ft. and is situated on the southwest corner of Main Street and Park Drive North. The B-2 Zone allows for mixed-use development as a conditional use under §25-24.2(b)(2)(m) of the Zoning Ordinance on lots measuring 5,000 sq. ft. or larger under the following conditions: (1) Permitted uses on the ground floor of a mixed-use development shall include the following permitted uses in the B-1 and B-2 Districts: retail store, personal service store or studio, office, business or vocational school, restaurant, bar, massage, bodywork or somatic therapy establishment, and fitness center/health club; (2) One or more dwelling units shall be permitted on the upper floor(s) above any of the permitted ground floor uses in § 25-24.2b2(m)(1); (3) Access to upper floor uses shall be provided by means of a separate entrance than provided for ground floor uses; and (4) Minimum lot area shall be 5,000 square feet, and the minimum street frontage of such lot shall be 50 feet. The Board took jurisdiction of the Application (hereinafter defined) upon its determination that the Applicant meets the above-referenced conditions. 5. The Property is adjacent to a mixture of single-family, commercial, and multifamily uses. 6. The Property is currently vacant. II. The Application 7. Plaintiff filed an application with the Board on or about January 29, 2024 forESX-L-001637-25 02/28/2025 2:34:16 PM Pg 2 of 32 Trans ID: LCV2025492774

3 preliminary and final major site plan approval along with conditional use approval and bulk variance relief pursuant to N.J.S.A. 40:55D-70(c) (hereinafter referred to as “Application”). 8. The Application proposed to develop the Property with a three- (3) story mixed-use development consisting of an approximately 900 sq. ft. commercial unit and 14 indoor parking spaces on the ground floor, with 2 floors containing 12 residential units above, along with other related site improvements (hereinafter referred to as the “Proposed Development”). 9. Throughout discussions with the Board’s consultants and in a meeting with the Downtown West Orange Alliance, it was determined that it would be impractical and undesirable to develop the Property with one of the permitted uses, and that the site was appropriate for the conditionally permitted use proposed. The Property is also located on the border between standard single-family residential areas and the more transit-oriented B-2 Zone on Main Street. The Property had also been the subject of a number of development conversations over the years, none of which came to fruition. 10. Plaintiff’s plan met the conditional use criteria, but due to unique characteristics of the Property required bulk variance relief. 11. The bulk variances required as part of the Application included: a. Front yard setback (Main Street) less than required; 25 ft. required; 5 proposed. b. Front yard setback (Park Drive North) less than required; 25 ft. required; 5.14 ft. proposed. c. Side yard setback (ground floor) less than required; 10 ft. required; 5.22 ft. proposed. d. Rear yard setback less than required; 30 ft. required; 8.16 ft. proposed.ESX-L-001637-25 02/28/2025 2:34:16 PM Pg 3 of 32 Trans ID: LCV2025492774

4 e. Number of stories greater than permitted; 2.5 stories permitted; 3 proposed. f. Building coverage greater than permitted; 40% permitted; 73% proposed. g. Lot coverage greater than permitted; 60% permitted; 82% proposed. h. Number of parking spaces less than required; 25 spaces required; 14 proposed. 12. Single-family residential, as existed prior to demolition, is not a permitted use in the B-2 Zone, nor is multi-family residential permitted without a commercial component. III. Procedural History 13. The Board held a hearing on the Application over six dates: June 5, 2024, August 7, 2024, September 4, 2024, November 6, 2024, December 4, 2024 and December 11, 2024 (hereinafter referred to collectively as the “Hearing”). 14. Plaintiff presented testimony of the following witnesses during the Hearing: a. Brittany Klimm, RA and Yogesh Mistry, RA, licensed architects; b. Aliasgar Rangwala, PE project engineer; c. Harold Maltz, PE, traffic engineer; and d. Mallory Clark, PP, AICP, professional planner. 15. The credentials of Plaintiff’s witness were accepted by the Board without objection. In addition, Plaintiff’s witnesses were available for and subjected to extensive cross-examination by the Board, its professionals, and by various other members of the public. 16. On June 5, 2024, the Board held the initial Hearing. Plaintiff was represented by Jason R. Tuvel, Esq. Plaintiff had Ms. Klimm sworn in as a licensed architect and presented testimony regarding the Proposed Development to the Board. 17. Ms. Klimm oriented the Board to the Property’s location; it being situated on theESX-L-001637-25 02/28/2025 2:34:16 PM Pg 4 of 32 Trans ID: LCV2025492774