25 12 10 127 MITCHELL STREET LLC Planning Review 1 rcd 12 10 2025

West Orange Zoning Board December 10, 2025 Re: 127 Mitchell Street, LLC Our File No. 115.WRZ0154.V01 Planning Review #1 Page 6 c. The application as proposed will require an amendment to the previously granted d-1 use variance. Although this is technically an expansion of a non-conforming use and not the establishment of a new use on the site, under the case of Puleio v. North Brunswick, the courts determined that the d-2 variance only applies to uses that predate the adoption of the ordinance that would make them non-conforming, and not for uses that exist but were permitted by the granting of a d-1 use variance. However, as the use variance has already established that mixed uses can be permitted on site in the form of office and residential dwellings, the application of the statutory criteria should be very similar, if not essentially the same as what is necessary for a d-2 expansion of a non-conforming use. d. 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 there are special reasons to grant the variance. Special reasons can come in one of three forms: 1) that there is an economic inutility in using the property for one of the permitted uses in the district; 2) that the proposed use is considered “inherently beneficial”; or 3) that the proposed use would promote the general welfare by advancing one of the purposes of zoning, and that the site is particularly suited for the use. ii. Negative Criteria: The applicant must show that the proposed use will not have a substantial detrimental impact on the public good (quality of life for residents or character of the community), and will not substantially impair the intent and purpose of the zone plan. e. For expansions of non-conforming uses, the applicant must demonstrate that the site can accommodate the expansion, that the proposed expansion will improve the site conditions, and that with the expansion the site will continue to satisfy the negative criteria. Mixed uses of commercial office and residential apartments have already been permitted by variance on the site. The applicant must demonstrate that the site can reasonably accommodate the additional office space and two additional apartments without having

ts have already been permitted by variance on the site. The applicant must demonstrate that the site can reasonably accommodate the additional office space and two additional apartments without having a substantial negative impact on the surrounding community. The Board’s consideration and the applicant’s testimony should focus on the expansion and intensification of the use on the site, and not on whether the site is suitable or appropriate for a mix of office and residential uses on the same lot. f. The application as proposed will also require a D-5 density variance for exceeding the implied permitted density requirements for residential uses in the OB-1 Office Business district. For a density variance, similar to the expansion of the non-conforming use, the applicant must demonstrate that the site is suitable for the proposed density and can accommodate the intensity of the use while still satisfying the negative criteria required for ‘d’ variances.