24 03 17 MPB Realty Planning Review 2

West Orange Zoning Board March 17, 2025 Re: MPB Realty (Popeyes & IHOP) Our File No. WRZ0153.V01 Planning Review #2 Page 8 S:\West Orange\Zoning Board\VWRZ0153.01 - MPB Realty, LLC\24-03-17 MPB Realty - Planning Review 2.docx 6. Planning Comments a. The applicant should discuss the proposed project, addressing the general scale and scope of improvements proposed for the site. The plans indicate that the existing building is to remain, but the parking areas are to be removed and replaced. What are the extents of renovations of existing improvements and what is proposed to be entirely new construction? b. We note that this is not the first application for a drive-thru facility on this property, and that earlier this year last year an application on this site was dismissed by the Board without prejudice. The applicant should provide testimony addressing any similarities and differences between the previous application before the Board, and the application that is now before the Board. c. The application as proposed will require a d-3 conditional use variance for non-compliance with four of the conditional use requirements for a fast food restaurant in the B-2 business district. With any ‘d’ variance, the applicant has an enhanced burden of proof to demonstrate that both the positive and negative criteria can be satisfied before the Board can grant a ‘d’ variance: i. Positive Criteria: The applicant must show that the site remains suitable for the proposed use despite not satisfying the conditional use requirements. ii. Negative Criteria: The applicant must show that the proposed use will not have a substantial detrimental impact on the public good, and will not substantially impair the intent and purpose of the zone plan. d. With this being a ‘d-3’ conditional use variance, and not a traditional ‘d-1’ use variance, the applicant does not necessarily need to show special reasons to grant the variance, or that the site is suitable for a fast-food restaurant in general. In accordance with the standards set in the Coventry v. Westwood case, the focus of the Board in applying the positive and negative criteria should be on the deviations from the conditional use requirements rather than on the proposed use overall. As a conditionally permitted use a fast food restaurant is considered suitable for this site, if the conditions were met. The applicant must show that

irements rather than on the proposed use overall. As a conditionally permitted use a fast food restaurant is considered suitable for this site, if the conditions were met. The applicant must show that the site continues to be suitable for a fast food restaurant, and that the site can accommodate any problems associated with the use. e. It appears that the general intent of the conditional use requirements for fast food restaurants is to limit the impacts of driveways and drive-thru services on the circulation network of the Township for both vehicles and pedestrians, and to limit the impacts of these uses on existing residences. These types of uses tend to have higher traffic impacts during peak hours than other commercial uses, and a high turnover of vehicles entering and exiting the properties which can cause issues with traffic flow.

West Orange Zoning Board March 17, 2025 Re: MPB Realty (Popeyes & IHOP) Our File No. WRZ0153.V01 Planning Review #2 Page 9 S:\West Orange\Zoning Board\VWRZ0153.01 - MPB Realty, LLC\24-03-17 MPB Realty - Planning Review 2.docx f. Outside of the conditional use requirements, it appears that the proposed fast food restaurant satisfies all the standards for a drive-thru service, including signage and space for stacking of vehicles. g. The application as proposed will also require several bulk or ‘c’ variances. The applicant must satisfy both the positive and negative criteria for each of these variances as well: i. Positive Criteria: The applicant must show that either there is an undue hardship (practical difficulty) in conforming to the code, or that the proposed conditions represent a preferable alternative to conforming to the standards of the code, and that the benefits of the deviation would outweigh any detrimental impacts. ii. Negative Criteria: The applicant must show that the variance can be granted without substantial detriment to the public good, and without substantially impairing the intent and purpose of the zone plan. h. The applicant should address the potential impacts specifically of the drive-thru use to the adjacent residences, in terms of both the visual and potential noise impacts of the use. i. We note that the acoustical report provided by the applicant indicates that the proposed uses will comply with state noise regulations, however the technical nature of the report may be difficult to understand. The applicant should discuss the anticipated sound impacts in as plain and practical terms as possible. ii. The acoustical report recommends that the fence between the restaurants and the residential uses be constructed of two layers of ¾” plywood, while the site plans show a board on board fence with alternating 1”x4” vertical wood slats. The applicant should discuss how the difference in proposed fencing may impact sound attenuation. The revised plans now show a solid vinyl fence, and the revised acoustical report reflects this. The report no longer recommends the plywood. The applicant should address the reasoning behind this revision. i. The proposed garbage dumpster will be located in the southeast corner of the property, 9.4 feet from the rear property line and adjacent to an existing residential lot. The applicant should discuss the

he proposed garbage dumpster will be located in the southeast corner of the property, 9.4 feet from the rear property line and adjacent to an existing residential lot. The applicant should discuss the methods for collecting garbage, and the anticipated timing and frequency of collection. The proposed location of the dumpsters has shifted to be 28.9 feet from the property line. j. The applicant should address the proposed landscaping for the site. i. Several existing trees along the property lines are proposed to be retained, however it appears that much of the drip line of these trees and likely the root structure will be within the areas of disturbance. The applicant should address the

West Orange Zoning Board March 17, 2025 Re: MPB Realty (Popeyes & IHOP) Our File No. WRZ0153.V01 Planning Review #2 Page 10 S:\West Orange\Zoning Board\VWRZ0153.01 - MPB Realty, LLC\24-03-17 MPB Realty - Planning Review 2.docx measures that will be taken to protect those trees during construction as they serve as a portion of the proposed buffering between the commercial and residential uses. Minimal details have been provided in the plans. ii. There is no landscaping proposed along the eastern property line, where many existing trees will be removed. There is a narrow space between the existing sidewalk on the property line and the proposed parking areas. The applicant should discuss the potential to include some landscaping in this area, and the potential of shifting the proposed retaining wall to create adequate space for plantings. A row of switch grass is now proposed between the parking and the ROW. iii. The applicant should discuss anticipated maintenance of trees and plantings in the rear of the property. There appears to be an existing fence at the property line, and a new fence is also proposed in the area, and some trees are proposed to be planted in between the fences. iv. In general, we have concerns about maintenance in the rear yard area. Having two fences along the same property line with what appears to be as little as 3 feet of space between them may create an area where maintenance will be difficult at best, and is unlikely to occur. The revised plans indicate that the existing fence is to be removed, and only one fence will now be located between the two properties. k. There are no sidewalks proposed for Rosney Terrace ROW. The applicant should address the potential to include sidewalks on this street. We note that no sidewalks currently existing along this frontage or elsewhere down the street. A sidewalk is now proposed within the Rosney Terrace ROW. l. A detail is included in the site plan package for a “drive-thru canopy with speaker and conference board”. It is not clear what is intended by the “conf board” portion of this structure. This is not noted to be a menu board, and the speaker is relatively small at the base of the structure. Will there be any messages or signage attached to the face of the structure? Other than the speaker and the canopy, the structure is a +/- 40 s.f. wall. The applicant has clarified that this is not a

Will there be any messages or signage attached to the face of the structure? Other than the speaker and the canopy, the structure is a +/- 40 s.f. wall. The applicant has clarified that this is not a “conference board” and is only a canopy above the speaker. m. We defer any comment on grading, drainage, utilities, and stormwater management to the Board Engineer. n. The applicant should address the status of any necessary outside agency approvals.

West Orange Zoning Board March 17, 2025 Re: MPB Realty (Popeyes & IHOP) Our File No. WRZ0153.V01 Planning Review #2 Page 11 S:\West Orange\Zoning Board\VWRZ0153.01 - MPB Realty, LLC\24-03-17 MPB Realty - Planning Review 2.docx If you have any questions about this report, please do not hesitate to reach out to our office. Sincerely, CME Associates Christopher N. Dochney – PP, AICP Program Manager CD cc: MPB Realty LLC – Applicant Matthew Bersch, PE. – Applicant’s Engineer Robert A Grimaldi – Applicant’s Architect Mallory Clark – Applicant’s Planner Lewis Goodfriend & Associates – Applicant’s Acoustical Engineer

West Orange Zoning Board March 17, 2025 Re: MPB Realty (Popeyes & IHOP) Our File No. WRZ0153.V01 Planning Review #2 Page 12 S:\West Orange\Zoning Board\VWRZ0153.01 - MPB Realty, LLC\24-03-17 MPB Realty - Planning Review 2.docx 7. Materials Submitted The following materials have been submitted and reviewed in association with this application: • Application form and submission checklists dated July 1, 2024; • Two (2) page application cover letter from Jason Tuvel, Esq. dated August 12, 2024; • Twenty-one (21) sheet set of site plan drawings prepared by Dynamic Engineering, dated June 7, 2024, last revised February 24, 2025; • Two (2) sheet set of architectural drawings prepared by G 141 Architecture, dated June 12, 2024; • Acoustical Evaluation report, prepared by Lewis S. Goodfriend & Associates, dated June 17, 2024, revised February 3, 2025; • Drainage statement for subject property, prepared by Dynamic Engineering, dated June 2024; • Environmental Impact Statement, prepared by Dynamic Engineering, dated June 2024, revised February 2025; • Stormwater Management Operation and Maintenance Manual, prepared by Dynamic Engineering, dated June 2024; • Traffic Impact Study, prepared by Dynamic Traffic, dated October 21, 2022, last revised June 4, 2024; • Variance & Waiver Request List, prepared by Dynamic Engineering, dated June 7, 2024; • Planning Report and Justification for Variances, prepared by Dresdner Robin, dated August 2, 2024, revised February 24, 2024; • Tree Removal Report, prepared by Dynamic Engineering, dated June 2024, revised February 2025; • Solid Waste Management Plan, prepared by Dynamic Engineering, dated June 7, 2024; • Copy of Resolution PB-97-18, dated October 8, 1997; • Copy of Resolution dismissing previous application without prejudice, dated March 21, 2024; • One (1) sheet survey drawing prepared by Dynamic Survey, LLC, dated May 13, 2021