06 Previous PB and ZBA Decisions

WHEREAS, the Applicant presented the argument regarding res judicata through his attorney,Lawrence B.Diener,Esq.,who gave oral argument without any testimony being offered; and the submissions included Area Map,Title Survey,Topo Survey & Existing Conditions ,General Site Plan, Site Plan Detail ,Grading,Drainage,Soil Erosion; Construction Details & Erosion Notes; all prepared and signed by M.Lan7afama & H.Keller,Professional Engineers and all revised April 10,2000;Landscape Plan prepared and signed by Brian S. Conway,Licensed Engineer,dated November 12,1998;Floor Plans, Elevations, Sign Detail, prepared and signed by Harold Glucksman,Licensed Architect dated February 22,2000 and Engineering Report and Drainage Plan signed and prepared by Gary Szelc,Professional Engineer, and dated April 14,2000; and WHEREAS, the attorney for the Applicant pointed out that in the new application a drainage plan which provides for the installation for a "dry well" in the parking lot has been provided which was not included in the prior application; that the bridge inspection regarding the new application has been performed which includes core testing and a load rating, whereas the prior inspection was only a visual one;that the within application contemplates 2 stores that will be either retail and/or professional office space without any specific tenant; that a traffic engineer has been retained to do a professional traffic survey with this application which was not done before; and that the prior application consisted of a free standing building containing 3,600 square feet whereas the new application has been revised to scale the building down to 3,240 square feet with dimensions of 60 feet by 54 feet,thus reducing the depth by 6 feet . Further the easterly side yard will be increased by 4 feet and the sidewalk will be increased to 8 feet. Further changes include eliminating both the sidewalk at the rear ofthe building and the Page 2 RESPONSE TO OPRA 2023-1028_000436

retaining wall,the elimination of a rear door,the substitution of a ground sign for a free standing sign,the changing ofthe parking arrangement at the westerly driveway to comply with the Department of Transportation recommendations and to accommodate Storm Water Disposal,and the relocation of the dumpster enclosure; and WHEREAS, the Board considered the report and corn'lents of Susan Borg, Township Planner and the report and comments of Allan J.Palmere,Assistant Municipal Engineer; and WHEREAS, the various members ofthe Board questioned the attorney for the Applicant;and WHEREAS, no one else appeared in opposition to or in favor ofthe application; and WHEREAS, all the facts 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 ofthis Board as if set forth at length herein; and THE BOARD HAVING MADE THE FOLLOWING SPECIFIC FINDINGS OF FACT AND CONCLUSIONS: A. Applicant is the owner of premises known as 451 - 471 Mt.Pleasant Avenue, West Orange,New Jersey being Block 157,Lots 5,8.04 and 10 on the Tax Maps ofthe Township of West Orange. B. The property is located in the B-2 Zone,essentially a business zone. C. Lot 10 has an entrance from Pleasant Valley Way to the Metropolitan Plant Exchange Shopping Mall located on Lot 5 and consisting of various stores and a Page 3 RESPONSE TO OPRA 2023-1028_000437

large parking lot oflong standing which fronts on Mt.Pleasant Avenue. There is a bridge on Lot 10 leading to the Metropolitan Plant Exchange from Pleasant Valley Way. 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 previously fled an application for approval for the demolition and removal ofthe existing dwelling type structure and garage on Lot 8.04 and to combine it with Lot 5. The Applicant then proposed to erect a one story free standing retail building with some 3,600 square feet,with 2 stores with each one being 1,800 square feet so that the existing parking lot would provide parking for the new stores. E. The application sought a "D" variance to permit 2 principal uses on the same lot and concerning the construction ofthe free standing retail building with 2 store fronts. In addition "C" variances were needed for 196 parking spaces instead of 217 parking spaces as required,for a minimum sidewalk width of 4 feet instead of 5 feet as required and for dispensing with the 75 foot buffer to the residential area required in addition to set backs requirements; for maximum lot coverage of 84.8% instead of 60% as permitted; and for the installation of the free standing sign which is not permitted; and for a waiver for the requirement to submit a EnvironmentalImpact Statement since the site is already built and for Amended Site Plan approval. By resolution adopted July 15,1999 memorializing the action ofthe Board taken on June 17,1999 ,the application was denied by a vote of 5 to Page 4 RESPONSE TO OPRA 2023-1028_000438

1 under Resolution/.F-99-01. F. Applicant has since filed a new application for the same location seeking to demolish the 2 story house and garage in the rear located on Lot 8.04 and to replace it with 2 stores to be made part ofthe Metropolitan Plant Exchange Strip Mall . It was noted that the new application is different in many respects from the application that was denied and the differences were noted as follows: 1. A drainage plan has been submitted providing for the installation of a "dry well" in the parking lot. 2. A bridge inspection has been performed which includes core testing and load rating and notjust a visual test as before. 3. The present application contemplates either retail and/or professional office space for the two new offices but has no specific tenant. 4. A traffic engineer will do a professional traffic survey which was not done previously. 5. The new free standing building previously was 3,600 square feet and has been reduced to 3,240 square feet, being 60 feet wide by 54 feet deep . 6. The easterly side yard will be increased by 4 feet and the sidewalk will be increased to 8 feet. 7. Further changes include eliminating both the sidewalk at the rear of the building and the retaining wall and eliminating the rear door and substituting a ground sign for its free standing sign. Page 5 RESPONSE TO OPRA 2023-1028_000439

8. The parking arrangement at the westerly driveway has been changed to comply with the Department of Transportation recommendations and to accommodate storm water disposal . 9. The dumpster enclosure has been relocated . G. The Board then conducted a heating to determine whether or not the new application was substantially different so as to prevent the application ofthe Doctrine ofRes Judicata which would bar the new application from being heard substantively . IL After hearing argument from the Applicant's attorney and reviewing the briefthat he had filed in support of his application it was determined by the Board that the application was substantially different from the original one that was denied. The Board,therefore,determined it was sufficiently different to prevent the application ofres judicata to bar the Applicant from proceeding substantively and will permit the listing ofthe application substantively to be heard hereafter in the usual manner ofdetermination. T. This resolution hereby incorporates by reference the statements and reasons of each of the Board members stated on the record on July 20,2000 which comprises the Board's decision A Motion to adopt the interpretation that resjudicata was not applicable to the new application was madQ by Perry Jambor and seconded by Anthony Vecchio and voted upon as Mows: Page 6 RESPONSE TO OPRA 2023-1028_000440

AYES NAYS Abeles Jambor Sullivan Vecchio Weiss 0 ABSTENTIONS 0 NOW,THEREFORE,BE IT RESOLVED,that the Zoning Board of Adjustment ofthe Township of West Orange,based upon the Findings of Fact and Conclusions aforesaid,and upon the laws established in the State ofNew Jersey,hereby interprets that res judicata is not applicable to bar the Applicant from proceeding with their application to obtain a "D" variance and for "C" variances connected therewith for premises 451- 471 Mt.Pleasant Avenue,West Orange,New Jersey which shall include demolishing the existing 2 family dwelling with garage in rear located on Lot 8.04 in order to construct a "satellite" building for 2 offices or stores to be part ofthe Metropolitan Plant Exchange Strip Mall there located regarding which a hearing will be scheduled hereafter on the substantive merits ofthe application for said relief. MOVED BY: 7mr . Jambor SECONDED1W: Mr. Vecchio THOSE IN FAVOR: 5 THOSE OPPOSED: 0, ABSTENTIONS: 0 Page 7 RESPONSE TO OPRA 2023-1028_000441

I hereby certify that the foregoing Resolution was adopted by the Zoning Board of Adjustment ofthe Township of West Orange at its meeting on August 17,2000 and that said resolution memorializes the action ofthe Board taken at its meeting held July 20,2000 granting the motion that res judicata does not apply by a vote of 5 in favor and 0 against with no abstentions. ELLEN ROSS, Board Secretary Page 8 RESPONSE TO OPRA 2023-1028_000442

EXHIBIT E

BOARD OF ADJUSTMENT OF TILE TOWNSHIP OF WEST ORANGE RESOLUTION ZB-00-12 WHEREAS, Diener Mt.Pleasant Associates,LTD having their prinicipal office at 28 Millburn Avenue,Springfield, New Jersey, 07081,("The Applicant") applied to the West Orange Zoning Board of Adjustment("The Board") for a "D" variance to allow 2 principal uses on the same lot and for various "C" variances for lot coverage,parking spaces,a free standing sign, minimum sidewalk width of 4 feet instead of 5 feet and removal of the requirement of a 75 foot buffer to the residential area and for Amended Site Plan approval and for elimination of an environmental impact statement,for Lots 5,8.04,and 10 in Block 157 on the Tax Maps ofthe Township of West Orange and located in the B-2 Zone,so that approval would be obtained to demolish the existing house and garage on Lot point 8.04 and to incorporate Lot 8.04 into Lot 5 in order to construct a satellite store to be part of the Metropolitan Plant Exchange strip mall there located, being known as 451-471 Mt.Pleasant Avenue, West Orange,New Jersey; and WHEREAS,the Applicant presented proof that adequate notice of the hearing on said application was published in The West Orange Chronicle ,one of the official newspapers of the Board; and WHEREAS,the Applicant submitted proof of service of notice of the hearing upon all the property owners within 200 feet of the property ; and WHEREAS,the application was heard at public meetings ofthe Board on August 17th,2000 and September 21',2000; and Page 1

WHEREAS,the matter was presented by Robert Williams, Esq., as attorney for the Applicant; and WHEREAS,the Applicant submitted an Area Map,Title Survey,Topo and Existing Conditions, General Site Building,Proposed New Building Area ,Site Plan Detail , Grading and Drainage and Construction Details all prepared by and signed by Michael Lanzafarna and H.Keller, Licensed Engineers and Land Surveyors; and each dated April 10,2000; Landscape Plan prepared and signed by Brian S.Conway,Engineer; dated November 12,1998; Floor Plans,Elevations and Sign Detail prepared and signed by Harold Glucksman,Licensed Architect of New Jersey and dated February 22,2000 and revised June 22,2000 and Engineering Report and Drainage Plan prepared and signed by Gary W.Szelc, Professional Engineer, dated April 14,2000 and Traffic Impact Study prepared and signed by Harvey Yesowitz,Licensed Profesional Engineer and dated August,2000,and report of Christopher P.Statile, Professional Engineer regarding the bridge on the premises dated June 19,2000 and revised August 10,2000; and WHEREAS,various witnesses were presented on behalf of the Applicant in support of their case who included Gary Szelc, Professional Engineer,licensed in New Jersey who prepared the site plan and explained the various exhibits and pointed out the need for the various "C" variances needed and explained the parking situation and the basis for the variance sought and for the sign which will be an identification sign only; and Harold D.Glucksman ,Licensed Architect ofthe State of New Jersey who explained the plans that were submitted and explained how the revised plans show a reduction in size of the building that will be built to replace the house that will be demolished showing it to be 3,240 square feet instead of 3,600 square feet as Page 2