06 Previous PB and ZBA Decisions

for the past five years and Peter G. Steck, Licensed Professional Planner in the State of New Jersey; and WHEREAS, various members of the Board questioned the various witnesses; and WHEREAS, the Public Advocate was in attendance but did not ask any questions of any of the witnesses; and WHEREAS, the comments and reports of Susan Borg, Township Planner, and the comments and report of Allan J. Palmere, Assistant Township Engineer were considered; and WHEREAS, various members of the public questioned various witnesses; namely Clark Alpert part owner of the office building located 449 Mt. Pleasant Avenue, West Orange, New Jersey; Susan Dolinko, owner of Party Liquors, a retail business in the Metropolitan Plant Exchange Mall; Sebastian Cobello of 22 Mt. Pleasant Place, West Orange, New Jersey, who lives behind the existing dwelling and garage that are to be demolished; and WHEREAS, the Board considered the comments of Sebastian Cobello mentioned above in opposition to the application, expressing concern about the noise, safety features and extra parking and traffic that would be generated by the convenience store proposed and the danger to the children on his block which number 14; and WHEREAS, no one appeared in favor of the application; and WHEREAS, no one else appeared either in favor or in opposition to the application; and WHEREAS, all the facts 3 and data contained in the

submitted application and all the facts and testimony adduced at the public hearing on said application are incorporated herein as Findings of Fact of this Board as if set forth at length herein; and THE BOARD HAVING MADE THE FOLLOWING SPECIFIC FINDINGS OF OF FACT AND CONCLUSIONS: A. Applicant is the owner of Lots 5, 8.04 and 10 in Block 157 known as 451-471 Mt. Pleasant Avenue, West Orange, New Jersey. B. The property is located in the B-2 Zone, essentially a business zone. C. Lot 10 is an entrance from Pleasant Valley Way to the Metropolitan Plant Exchange Shopping Mall located on Lot 5 and consisting of various stores and a large parking lot standing which fronts on Mt. Pleasant Avenue. of long There is a bridge on Lot 10 which leads to the Metropolitan Plant Exchange. Adjoining Lot 5 is Lot 8.04 on which is located a two story dwelling type structure with a garage in the rear, which said dwelling type structure had been occupied for residential purposes and more recently for commercial use. D. Applicant seeks approval for the demolition and removal of the existing dwelling type structure and garage in the rear on Lot 8.04 and to combine Lot 8.04 with Lot 5. The Applicant then proposes to erect a one story free standing retail building 3,600 square feet total of 2 stores with each one being 1,800 square feet so that the existing parking lot would provide parking for the new stores. 4

E. Because the Ordinance for B-2 Zone does not permit two principal uses on the same lot, a "D" variance is sought for that purpose with respect to constructing the free standing retail building with two store fronts. In addition "C" variances are required for permission to have 196 parking spaces instead of 217 as required; for a minimum side walk width of four feet instead of five feet as required; for dispensing with the 75 foot buffer to the residential area required in addition to setback requirements; for maximum lot coverage of 84.8% instead of 60% as permitted; and for the installation permitted; and for a of a free waiver of standing the sign requirement which to is not submit an Environmental Impact Statement since the site is already built; and for Amended Site Plan approval. F. The Metropolitan Plant Exchange existing mall, consisting of several retail stores besides the Metropolitan Plant Exchange, is a busy enterprise that draws many customers and many cars using the existing parking lot in the front and adding to the heavy traffic of Pleasant Valley Way and Mt. Pleasant Avenue which it abuts. G. The Metropolitan Plant Exchange area, namely Lot 5, was the subject matter of an application before the Planning Board of the Township of West Orange, which on March 23, 1994, adopted a Resolution regarding the providing of 190 parking spaces minimum and for allowing the Metropolitan Plant Exchange to conduct some of its sales and storage outdoors. H. The property fronts on Mt. Pleasant Avenue, a heavily

traversed road so that the proposed use would add to the traffic. The area is essentially commercial in character although there are residences to the rear of the buildings on Lot 8.04 that would be affected by the noise and operation of the proposed two new retail stores to be added one of which would be a dental office and the other a convenience store. There is a convenience store in the area on Pleasant Valley Way, West Orange across the street from Lot 10. I. No testimony was offered to establish the need for another convenience store in view of the proximity of the other one. J. The testimony of Kenneth Merrill, President of Food Shops Inc., developer of convenience stores and holder of a lease for one of the two new stores to be erected wherein a convenience store would be operated by their sublessee to be named, indicated that the expectation was up to 500 customers per day for the proposed convenience store which would mean up to 400 automobiles additional daily to what is going into the Mall now. Mr. Merrill further indicated that the convenience store would be open 7 days per week with hours from 6:00 A.M. to 11 P.M. and indicated that the turnover of customers was quick averaging probably no more than 3 minutes per customer. He indicated that the peak hours for such store would be 6:00 A.M. to 9:00 A.M., 11:30 A.M. to 1:00 P.M. and 7:30 P.M. to 9:30 P.M. K. Peter G. Steck, Professional Planner, was offered to testify to what he considered the positive and negative criteria 6

being satisfied, and he accepted as part of his presentation the projections of Kenneth Merrill and also the testimony of Richard Blenden, the manager of the Metropolitan Plant Exchange Mall site who had conducted his own parking survey with random samplings at different times of day although he is not a traffic expert. L. The Board also considered the report of Christopher P. Statile, Engineer regarding the existing bridge on Lot 10 which provides ingress and egress to the area from Pleasant Valley Way. No testimony was offered thereon. M. Permitting a' convenience store with the projected activity presented, will add to already existing heavy traffic and traffic hazards and pose safety threats to users of the mall and vehicles entering and exiting. N. The Board was also concerned with security problems that would arise from a congregation of people using the convenience store in the area of the convenience store and affecting the residential people that live behind so as to pose a possible safety threat to the area, to the users of the facilities and to the residential homes in the vicinity. 0. The Board expressed concern, with the projection given by Kenneth Merrill, for the anticipated business of the convenience store, about the adequacy of parking and the dangers posed to exiting and entering vehicles and to the already burdened traffic in the area and to the present flow of traffic which results in blockage of traffic on occasion and with the bridge report failing to assess the danger aspects of continued use of the bridge in its 7

present state in that there was no physical testing of the bridge and the report was based upon a visual inspection. P. Proofs presented by Applicant are insufficient to establish the basis for granting the parking variance sought. Q. Internal circulation and flow of traffic in the Metropolitan Plant Exchange Mall as it now exists with difficulties traversing around the rear of Metropolitan Plant Exchange store occasioned by delivery trucks loading and unloading there will be exacerbated by the contemplated traffic increase for the new additions, particularly the convenience store, so as to adversely affect safety concerns and increase traffic hazards for pedestrians walking in the parking area to get to the stores and for vehicles using the area for ingress and egress, so as to substantially increase hazards to public welfare and the safety of the users of the facility. R. The bridge on Lot 10 is built over the west branch of the Rahway River which abuts the mall site. The proofs presented did not satisfy the Board regarding storm drainage and runoff on the site being increased and adversely affecting the environment as not being adequately provided for. S. Applicant failed to provide for preventing undue soil erosion and to prevent runoff of gas and oil into the river from the parking lot during storms by failing to provide for oil and water separaters. T. All the foregoing adversely affects the environment which will result in substantial detriment to the public safety, good, 8

and welfare. U. It appeared that there are no benefits that would arise from the granting of the variances sought. V. A granting of the variances would result in substantial detriment to the public safety, good and welfare. W. insofar The Applicant failed to sustain their burden of proof as satisfying the positive and negative criteria are concerned. X. To grant Applicant's relief would substantially impair the intent and purpose of the Zoning Ordinances and Master Plan of the Township of West Orange. Y. The proposed application does not advance any of the purposes of the Municipal Land Use Law as enunciated in NJSA 40:55D-2. Z. Granting the application would negatively impact on the safety and welfare of the users of the area and existing mall and residential residents to the rear thereof as set forth on the record by the various Board Members for the reasons stated. A motion to approve the Application subject to certain conditions as enunciated by Susan Borg, Township Planner in her report and by Allan J. Palmere, Assistant Municipal Engineer in his report was made by Zal Velez, but failed to obtain a second and therefore could not be voted upon. A motion to deny the application in its entirety was made by Alice Weiss and seconded by Bruce Buechler and voted upon as follows: 9

AYES NAYS Buechler Gunning Sullivan Weiss Williamson Velez ABSTENTIONS 0 NOW, THEREFORE, BE IT RESOLVED, that the Zoning Board of Adjustment of the Township of West Orange, based upon the Findings of Fact and Conclusions aforesaid, and upon the laws established in the State of New Jersey, hereby denies the application of Diener Mt. Pleasant Associates, LTD. in its entirety for the "D" variance sought for a second principal use on the same lot and for the various "C" variances sought and for the Amended Site Plan Approval, all of which are hereby denied in their entirety. MOVED BY: Bruce Buechler SECONDED BY: William Sullivan THOSE OPPOSED: 1 THOSE IN FAVOR: 5 ABSTENTIONS: 0 I hereby certify that the foregoing Resolution was adopted by the Zoning Board of Adjustment of the Township of West Ornage at its meeting of July 15, 1999 and that said Resolution memorializes the action of the Zoning Board taken on June 17, 1999 denying the application by a vote of 5 to 1. BARBARA MURRAY, Board Secretary 10

EXHIBIT D

BOARD OF ADJUSTMENT OF THE TOWNSHIP OF WEST ORANGE RESOLUTION ZB-00-12 WHEREAS, Diener Mt.Pleasant Associates,LTD having their principal office at 28 Millburn Avenue,Springfield,New Jersey, 07081,("The Applicant") applied to the West Orange Zoning Board of Adjustment("The Board") for a determination as to whether the new application submitted for a "D" variance to allow 2 principal uses on the same lot and for various "C" variances for premises known as 451-471 Mt.Pleasant Avenue, West Orange,New Jersey, Block 157,Lots 5,8.04,and 10 on the Tax Maps ofthe Township of West Orange,which application was denied previously,and concerning whether the new application is sufficiently different to avoid the imposition ofa finding ofres judicata ; and WHEREAS, the Board first considered the application by motion that res judicata is not applicable so that if successful the Applicant can hereafter proceed with a substantive application; and WHEREAS, the Applicant presented proofthat adequate notice ofthe hearing on said application was published in The West Orange Chronicle,one ofthe official newspapers ofthe Board;and WHEREAS, the Applicant submitted proof ofservice of notice ofthe hearing upon all property owners within 200 feet ofthe property; and WHEREAS, the motion regarding the resjudicata application was heard at a public meeting ofthe Board on July 20th,2000;and Page 1 RESPONSE TO OPRA 2023-1028_000435