Letter Requesting Extension of Approval athletic center 10 16 2025

FINAL — V1 - SKW — 10.18.23 be reflected on a revised plan. 18. | Mr. Stewart addressed the comments raised in Board Engineer Hess's January 20, 2023 and June 1, 2023 review memoranda pertaining to the application, to the satisfaction of Mr. Hess. In so doing, Mr. Stewart testified that: (i) no exterior lighting fixtures are proposed; (ii) no steep slope disturbance is proposed; and (iii) the Applicant would be amenable to adding additional landscape screening to the south of the southern field house on the Property. 19. No member of the Public asked questions of Mr. Stewart. Testimony Offered at the September 28, 2023 Hearing 20. On questioning by members of the Board and Board Professionals during the September 28, 2023 hearing, Mr. Fiore testified that: (i the existing field house would be used for the storage of primarily athletic equipment and not landscaping equipment, because the Applicant employs an outside landscaping contractor to maintain the grounds of the athletic complex; (ii) the proposed fitness center would not be equipped with an internal speaker system; and (iii) the proposed fitness center would pose less of an impact to surrounding properties than the existing field house as the proposed fitness center would be more centrally located within the Site. 21. No member of the Public asked questions of Mr. Fiore during the September 28, 2023 hearing. 22. | Mr. Dougherty testified that, in his professional opinion, the Applicant has sufficiently demonstrated the "positive criteria" for the grant of its requested (d)(2) expansion of use variance. In so doing, Mr. Dougherty opined that the existing, and would-be-expanded, athletic complex constitutes an inherently beneficial use, because (i) schools are specifically recognized in the Municipal Land Use Law (the “MLUL”) as "inherently beneficial uses"; (ii) the existing and would-be-expanded athletic complex is accessory to a school use; and (iii) thus, the

FINAL — V1 — SKW — 10.18.23 athletic complex itself is an "inherently beneficial use." 23. Mr. Dougherty testified that, in his professional opinion, the Applicant has sufficiently demonstrated the "negative criteria" for the grant of its requested (d)(2) expansion of a use variance, by satisfying the four (4) prong test set forth in Sica v. Board of Adjustment of Tp. of Wall, 127 N.J. 152 (1992). In so doing, Mr. Dougherty opined that: (i) the public interest at stake is quality education, with fitness, athletics, and necessary facilities being critical components in providing same; (ii) the proposal poses minimal detrimental impacts as, with the exception of the proposed expansion of the non-conforming athletic complex use, the Applicant does not propose any other zoning deficiencies, and the proposed fitness center's activities would be located further from nearby residences than the existing field house which currently hosts such activities: (iii) the relatively minimal detriments wrought by the proposal can be effectively mitigated by way of the conditions stipulated-to by the Applicant, including the restrictions on outdoor activities and noise, the continued application of conditions that were part of prior approvals pertaining to the Property, and the inclusion of bird strike-resistant window features; and (iv) the public interest benefits yielded by the proposed expansion of use, particularly including the benefit wrought by promoting quality education, outweigh the relatively modest detriments associated with same. 24. On questioning by members of the Board and Board Professionals, Mr. Dougherty testified that: (i) the proposal represents a slight expansion of the existing storage building/ proposed fitness center on the Property; (ii) the proposal would not lead to any change to existing buffers on the Property; (iii) by way of enhancing existing landscaping and moving the activities that currently take place in the fieldhouse to the proposed fitness center, the proposal represents less of a detrimental impact to surrounding properties than current conditions on the Property; and (v) in his professional opinion, the proposal poses no substantial detriment to the public good. 10

FINAL — V1 — SKW — 10.18.23 25. | Nomember of the Public asked questions of Mr. Dougherty. 26. Kevin Malanga, a member of the Public, having an address of 57 Ridge Road, West Orange, was duly sworn according to law and provided testimonial commentary on the application. 27. Mr. Malanga testified that the Applicant has been a "good neighbor" in operating the existing athletic complex and he indicated that he would be supportive of the proposal, if the Board were to impose the following conditions: (i) no music would be played when the overhead garage doors of the proposed fitness center are open; (ii) no music would be played on the second- floor balcony of the proposed fitness center; (iii) only current students and faculty would be permitted to use the proposed fitness center; (iv) all proposed exterior-facing glazing would be equipped with bird strike-resistant technology or features; and (v) any interior lights within the proposed fitness center would be equipped with motion sensors. 28. Mr. Malanga also presented expert witness testimony from Dr. Christine Shepherd, Director of the American Bird Conservancy, having a business address of 431 Savage Farm Drive, Ithica, New York. Dr. Shepherd was duly sworn according to law, provided her credentials, and was accepted by the Board as an expert in ornithology, with particular expertise regarding bird strikes. 29, Dr. Shepherd testified that: (i) the expanded use of glass building facades over the past decade has lead to approximately one million bird strike deaths per year, according to studies; (ii) birds are generally unable to recognize the presence of glass barriers; (iii) in her expert opinion, the proposal would cause a substantial number of bird deaths, in the absence of preventative measures; (iv) there are various types of bird-safe features that can be implemented on exterior glazing, including ultraviolet light screens, etching, and pattern screens; (v) etching and pattern screens are the most effective forms of bird-strike resistance, as UV light screens are ineffective ll

FINAL — V1 — SKW — 10.18.23 at nighttime; (vi) almost 50% of bird-building collisions occur on one (1) to three (3) story buildings; (vii) interior lights attract birds and so may contribute to bird collisions with buildings and other structures; and (viii) as an expert in the field, she recommends that the Applicant integrate motions sensors on internal lighting fixtures and glazing features to minimize bird collisions with the proposed athletic center. 30. On questioning by members of the Board and Board Professionals, Dr. Shepherd testified that: (i) birds can be injured while flying at any speed and colliding with a building; (ii) studies show that birds can collide with buildings while flying from any direction, not just north or south; (iii) she is unaware of any existing statute or regulation in New Jersey that requires the use of bird-strike resistant building materials, though various other States do have such rules; (iv) bird strike-resistant building materials are relatively inexpensive; and (v) she believes that the Applicant would be making a good attempt at mitigating the potential for bird collisions by agreeing to integrate anti bird strike features on the proposed fitness center's glazing. 31. Except for Mr. Malanga and Dr. Shepherd, no member of the Public commented on the Applicant's proposal; no member of the Public objected to this application. 32. Mr. Grygiel advised that (i) the proposal does not require bulk variance relief and (ii) the Board's prior findings that the existing athletic field was an inherently beneficial use and that the Sica test was satisfied are material to the Board's consideration of the current application. 33. The Applicant, through its various witnesses and representatives, stipulated to the following conditions of approval, if so granted by the Board: i. All athletic training activities related to the proposed fitness center must take place indoors; ii. Additional/enhanced landscape screening shall be added to the area south of the existing field house, to the satisfaction of the Board Professionals; 12

iii. iv. vii. vi. FINAL — V1 —SKW — 10.18.23 The Applicant shall install minimal outdoor nighttime security lighting to the proposed fitness center, subject to the review and approval of the Board Professionals; An occupancy of no greater than ninety-six (96) persons shall be permitted on the proposed fitness center's second-floor balcony; The Applicant shall abide by all conditions of the 2010 and 2016 Approvals, to the extent not modified or rendered inconsistent by the grant of relief herein; No amplified music shall be played on the second-floor balcony of the proposed fitness center; Only current students and faculty of Seton Hall Preparatory School shall be permitted to use the proposed fitness center; All proposed exterior-facing glazing of the fitness center shall be equipped with bird strike-resistant technology and features, consistent with the guidelines of the American Bird Conservatory and subject to the review and approval of the Board Professionals; All interior lights within the proposed fitness center shall be turned off at night and equipped with motion sensors; and The Applicant shall comply with the requirements of the New Jersey Noise Control regulations, as set forth by N.J.A.C. 7:29, and the Township of West Orange Noise Control Ordinance, as set forth in Section 4-4 of the Ordinance. DECISION 34. After reviewing the evidence submitted, the Board, by a vote of 7 to 0, finds that the Applicant has satisfied its burden of proving an entitlement to the requested amended preliminary and final major site plan approval and (d)(2) expansion of pre-existing non- conforming use variance relief. Amended Site Plan Approval 35. As it relates to the Applicant's request for amended preliminary and final major site plan approval, the Board first notes that, in evaluating such a request, the MLUL requires a 13

FINAL — V1 — SKW - 10.18.23 land use board to consider the development plan provided by an Applicant, and to grant site plan approval if the detailed drawings, specifications, and estimates of the application conform to the standards established by ordinance for final approval, pursuant to N.J.S.A. 40:55D-50(a). 36. Here, the Board finds that the Applicant has demonstrated compliance with the Township's Major Site Plan requirements, as set forth in Section 25-51.7 et seq. of the Ordinance, and that good cause exists to grant the Applicant amended preliminary and final major site plan approval, with the requested variance relief detailed below. (d)(2) Expansion of Pre-Existing Non-Conforming Use Variance Relief 37. Regarding the Applicant’s request for (d)(2) expansion of use variance relief, the Board first notes that a proposed expansion, or intensification, of a lawfully created, preexisting, nonconforming use, which also includes the expansion of a building in which a lawfully created preexisting nonconforming use is to be carried on, requires variance relief pursuant to 40:55D- 70(d)(2). See Burbridge v. Mine Hill Tp., 117 N.J. 376, 384-385 (1990); Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268 (1967); Black v. Montclair, 34 N.J. 105 (1961); Conselice v. Borough of Seaside, 358 N.J. Super. 327, 333 (App. Div. 2003); Anfuso v. Seeley, 243 N.J. Super. 349, 353- 357 (App. Div. 1990); Alpine Tower v. Mayor & Council, 231 N.J. Super. 239, 246-247 (App. Div. 1989); Kingwood v. Board of Adjustment, 272 N.J. Super. 498, 502 (Law Div. 1993). 38. The Board also notes that, to establish an entitlement to any form of variance relief under N.J.S.A. 40:55D-70, an applicant must demonstrate the "positive" and "negative" criteria applicable to the type of relief requested. In the case of (d)(2) expansion of use variances specifically, while an applicant for such relief need not show that it would have been entitled to a variance for the initial nonconformity, it nevertheless must satisfy the same positive and negative 14

FINAL - V1 — SKW - 10.18.23 criteria test as other subsection (d) variance applicant. See Fin. Serv. v. Little Ferry Zon. Bd. of Adj., 326 N.J. Super. 265, 275-276 (App. Div. 1999). 39. Accordingly, the Board notes that the positive criteria for (d)(2) expansion of use variance relief is established by a showing of "special reasons" to permit " an expansion of a nonconforming use." New Jersey Courts recognize three circumstances in which such "special reasons" may be found: (1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone; and (3) where the use would serve the general welfare because “the proposed site is particularly suitable for the proposed use." See Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adj., 388 N.J. Super. 67, 76 (App. Div. 2006). 40. The Board further recognizes that when a proposed use is held to be an "inherently beneficial" use, the positive criteria for use variance relief is presumptively satisfied. Smart SMR v. Fair Lawn Bd. of Adj., 152 N.J. 309, 323 (1998), citing Burbridge v. Mine Hill Tp, 117 NJ. 376, 394 (1990); Accord, Cell v. Zoning Bd. of Adjustment, 172 N.J. 75, 90 (2002); Salt & Light Co. v. Willingboro, 423 N.J. Super. 282, 287 (App. Div. 2011), certif. den. 210 N.J. 108 (2012); House of Fire v. Clifton Bd. of Adj., 379 N.J. Super. 526, 535 (App. Div. 2005); Med. Ctr. v. Princeton Tp. Zoning, 343 N.J. Super. 177, 200 (App. Div. 2001). An "inherently beneficial" use is defined at N.J.S.A. 40:55D-4 (emphasis added) as: "[...] a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such a use includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure." 41. Additionally, the Board recognizes that the "negative criteria" for all forms of variance relief pursuant to N.J.S.A. 40:55D-70 et seq., including (d)(2) expansion use variances, 15

FINAL — V1 —SKW — 10.18.23 is shown by an applicant demonstrating that the proposed deviation(s) from the requirements of the Ordinance will neither pose a "substantial detriment" to the public good, nor "substantially impair" the intent and purpose of a municipality's master plan and zoning ordinance. However, within the context of a request for a (d)(2) expansion of use variance where the proposed use is an "inherently beneficial" one, New Jersey Courts have applied a different standard for evaluating the negative criteria. As per the Supreme Court in the Sica case, in evaluating the negative criteria for use variance relief within the context of a proposed "inherently beneficial" use, a board of adjustment must (i) "identify the public interest at stake;" (ii) "identify the detrimental effect that will ensue from the grant of the variance”; (iii) consider "reduc[ing] the detrimental effect by imposing reasonable conditions on the use;" and (iv) "weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Id. at 165-166. 42. Here, the Board finds that the Applicant has satisfied the positive criteria required for the grant of its requested (d)(2) expansion of use variance, because it has demonstrated that the proposed-to-be expanded use is an inherently beneficial one. In this regard, the Board concurs with the unrefuted expert opinion of the Applicant’s Professional Planner, Mr. Dougherty, in that the existing, and to-be-expanded, athletic complex use constitutes an inherently beneficial use because the athletic complex is exclusively used to further the athletic program of Seton Hall, a school. As schools are specifically recognized by the MLUL as "inherently beneficial uses," and use of the to-be-expanded athletic complex is accessory to a school use, the Board thus concurs with Mr. Dougherty in finding that the athletic complex is also itself an "inherently beneficial use." 43. The Board also concurs with Mr. Dougherty's unrefuted expert testimony in finding that the Applicant has satisfied the negative criteria for (d)(2) expansion of use variance relief 16

FINAL — V1 —SKW — 10.18.23 under the basis for same set forth in Sica. 44. As per the Sica test, the Board concurs with Mr. Dougherty's unrefuted expert opinion in finding that: (i) the public interest at stake is quality education, with fitness, athletics, and necessary facilities being critical components in providing a quality education; (ii) the proposal poses minimal detrimental impacts as, with the exception of the proposed expansion of the non- conforming athletic complex use, the Applicant does not propose any other zoning deficiencies, and the proposed fitness center's activities would be located further from nearby residences than the existing field house which currently hosts such activities; (iii) the relatively minimal detriments wrought by the proposal can be effectively mitigated by way of conditions stipulated-to by the Applicant, including the restrictions on outdoor activities and noise, continued application of conditions that were part of prior approvals pertaining to the property, and inclusion of bird strike- resistant window features; and (iv) the public interest benefits yielded by the proposed expansion of use, particularly including the benefit wrought by promoting quality education, outweigh the relatively modest detriments associated with same. 45. Thus, based upon the foregoing, the Board hereby finds that the Applicant has demonstrated an entitlement to the requested amended preliminary and final major site plan approval and (d)(2) expansion of pre-existing non-conforming use variance relief. WHEREAS, the Board took action on this application at its meeting on September 28, 2023 and this Resolution constitutes a Resolution of Memorialization of the action taken in accordance with N.J.S.A. 40:55D-10(g); NOW, THEREFORE, BE IT RESOLVED by the Zoning Board of Adjustment of the Township of West Orange, that the application of SETON HALL PREPARATORY SCHOOL, for amended final site plan approval and (d)(2) expansion of use variance relief, as aforesaid, be 17

FINAL — V1 — SKW — 10.18.23 and is hereby granted, subject to the following conditions: 103) 2) (3) (4) The Applicant shall post sufficient funds with the Township to satisfy any deficiency in the Applicant’s escrow account; The Applicant shall comply with the comments and recommendations set forth in Board Engineer Hess's, memorandum pertaining to the application, last revised August 10, 2023, to the extent not already satisfied or otherwise inapplicable; The Applicant shall comply with the comments and recommendations raised in Board/Township Planner Grygiel's review memorandum pertaining to the application, last revised August 4, 2023, to the extent not already satisfied or otherwise inapplicable; The Applicant shall comply with all conditions stipulated to during the proceedings, including, but not necessarily limited to, the following: i. All athletic training activities related to the proposed fitness center must take place indoors; ii. Additional/enhanced landscape screening shall be added to the area south of the existing field house, to the satisfaction of the Board Professionals; iii. The Applicant shall install minimal outdoor nighttime security lighting to the proposed fitness center, subject to the review and approval of the Board Professionals; iv. An occupancy of no greater than ninety-six (96) persons shall be permitted on the proposed fitness center's second-floor balcony; v. The Applicant shall abide by all conditions of the 2010 and 2016 Approvals, to the extent not modified or rendered inconsistent by the grant of relief herein; vi. No music shall be played on the second-floor balcony of the proposed fitness center; vii. Only current students and faculty of Seton Hall Preparatory School shall be permitted to use the proposed fitness center, except for the second-floor balcony which may be used by alumni and others, subject to the restriction contained in Condition 4(vi) above; viii. All proposed exterior-facing glazing of the fitness center shall be equipped with bird strike-resistant technology and features, consistent with the guidelines of the American Bird Conservatory to reduce the incidences of bird strikes with buildings and subject to the review and approval of the 18