Prior Resolutions of Approval submission

Brian Mauerer, 2 Yale Terrace who advised the Board of a resolution of the West Orange Historical Preservation Commission; and WHEREAS, Public Advocate Harvey Grossman questioned the various witnesses and made closing remarks; and WHEREAS the members of the Board questioned the witnesses and the Applicant’s attorney and Mr. Waldman, the objector’s attorney; Mr. Carp and certain members of the public; and WHEREAS, the Board considered the report and testimony of Susan Borg, Township Planner; and WHEREAS the Board considered the various reports and letters and testimony and proposed conditions to approval prepared by Eric Keller, P.E., specially appointed engineer to the Board for the project; and WHEREAS Board members individually visited the subject Property on one or more occasions and on June 17, 2010, placed on the record the observations they made when visiting the Subject Property; and NOW THEREFORE, the Board hereby makes the following Findings of Fact: 1. The Applicant is the owner of the Subject Property located at Block 81.01 Lots 1.01, 1.04, 1.05, and 1.06 and Block 82.01, Lots 1, 7, 7.01, 7.02 and 7.05, on the Tax Map of the Township of West Orange and located in the R-1 zone. 2. The Applicant has requested site plan approval for the installation of additional playing fields and 3 new structures. The Subject Property is an integral part of its operation of a -21-

private school, the academic portion of which is operates on a non-contiguous site on Northfield Avenue, less than one mile away from the Subject Property. 3. The Applicant requires the following variances: (1) a “DY 1 use variance for athletic fields, not permitted in the residential zone; (2) a parking variance for relief from requirement of the ordinance requirement of 663 Spaces, by providing 84 existing, 220 additional and 372 new, non-permanent spaces for a total of 676 spaces provided (3) a variance for construction of 2 free standing signs when none are permitted in the residential district; (4) a variance from the requirement of no disturbance of vegetation within 100’ of ridge line or disturbance of steep slope exceeding 25% permitted, 0 foot setback from ridge line for proposed disturbance and disturbance of steep slope exceeding 25%; (5) a variance for construction of chain link fence and netting exceeding 4 feet around tennis courts and baseball fields, to a minimum of eight to twelve feet with a 24’ backstop for baseball fields and protective netting around interior ball field of 50 feet; (6) a height variance from 35’ allowed maximum in residential zone for bleachers with press box not to exceed 40’. The Applicant is also need a soil removal permit and a tree removal permit. 4. During the Application, the Application was amended to include a height variance for a fence by the lacrosse field to prevent errand lacrosse balls from going over the cliff into the backyards of homes on Northfield Avenue. -22-

5. The Subject Property is approximately 45 acres in size. The Zoning Board has heard extensive testimony over the course of 26 meetings or hearings that commenced in November 2008. 6. Seton Hall is a private non-profit high school that is accredited by the New Jersey State Department of Education. 7. Seton Hall first leased the Subject Property in question in 1987 and purchased it in 1993. The Subject Property was previously the location of the Carteret Boys School. Seton Hall is a well-respected neighbor in Town. The Subject Property is situated in the R-1 zone and is private, not public, property. Across Prospect Avenue from the Subject Property is a golf course, and the Shillelagh Club, certain private homes and a church abut portions of the Subject Property. 8. Seton Hall seeks numerous variances in order to expand existing athletic facilities and fields and a field house at the Subject Property, with the construction of a football field, bleachers, a press booth, a concession stand, a storage room/athletic facility, five tennis courts, two baseball fields, practice fields, parking lots and required drainage facilities needed in connection with the further development of the Subject Property and a sign. 9. Seton Hall currently maintains certain practice fields and a field house at the Subject Property which were previously approved by the Township Planning Board. Seton Hall has demonstrated, by the testimony of Monsignor Kelly and Peter Steck, its planner, of its need to expand the athletic -23-

facilities and how the athletic facilities directly relate to Seton Hall’s core curriculum. Sports and athletic programs, especially in an all-boys high school such as Seton Hall, are a very important part of the education process and integral to the core function and curriculum of a high school such as Seton Hall Prep. Further, testimony demonstrated that Seton Hall also intends to use the Subject Property to conduct ecology classes and drivers’ education classes, which are part of the school’s curriculum. 10. The Subject Property is well suited for the expansion of the athletic facilities sought, and it is important to note that the athletic facilities are in reasonably close proximity to the Seton Hall school building, which is located on Northfield Avenue. 11. Various public and private schools in West Orange are in residential zones and have athletic or ball fields such as the Mt. Pleasant Elementary School, Gregory Elementary School, Hazel Elementary School, Liberty Middle School, Stag Field adjacent to St. Cloud Elementary School, Redwood Elementary School, Pleasantdale Elementary School, Roosevelt Middle School, West Orange High School and the Solomon Schechter lower school and high school, plus of course Seton Hall Preparatory School on Northfield Avenue. Thus, it is clear that it is common for athletic fields and facilities to be built in connection with schools. 12. Seton Hall owns no other land in the Township of West Orange suitable for use for the construction of additional -24-

athletic fields. Seton Hall has no additional space at its Northfield Avenue main campus to add additional athletic fields. The fact that Seton Hall already has athletic fields and a field house at the Subject Property, and the Subject Property is located near major roads in town, demonstrates that the Subject Property is well suited for an expansion of the existing athletic facilities. 13. The Subject Property is located in the R-1 zone. Seton Hall could, by right, develop single-family homes in the R-1 zone or a golf course and golf club house. Seton Hall, asa non-profit private high school, is not in the business of developing and selling single-family homes. 14. As noted, Seton Hall currently has been using the Subject Property for years for athletic fields and a field house. The R-1 zone has various permitted conditional uses such as public and private schools and parks or playgrounds. See Township Ordinance 25:24.2. Clearly, both public and private schools have, as part of their facilities, athletic fields as do parks and playgrounds. Thus, it is clear that the West Orange master plan contemplated at the R-1 zone would logically include athletic fields in connection with public and/or private schools or parks which are conditional uses at the Subject Property. 15. Similarly, while athletic fields are not listed in the West Orange zoning code as permitted conditional uses in the R- 1 zone, there can be no question that the Township has intended athletic fields go in tandem with public and private schools, parks and playgrounds. A number of the Township’s parks and -25-

playgrounds have athletic fields in conjunction with them, such as O’Connor Park, Degnan Park near the high school, and Stag Field, among others. Thus, the proposed use will not substantially impair the Township's master plan and zoning ordinances. 16. Seton Hall's proposed construction of the athletic facilities will have a de minimus effect on the value of neighboring properties, as the Board accepts the unrebutted testimony of Richard E. Polton taken on May 6, 2010 at page 115. 17. Since at least the late 1800's, when the Subject Property was the site of General McClellan’s summer home, the Subject Property has, in fact, been developed and redeveloped many times over. The prior owners and/or the Olmsteds on their behalf cleared the Subject Property, built houses, tore down houses such as General McClellan’s, built gardens and planted numerous non-native trees and shrubs. The testimony clearly demonstrated that the Olmsteds or others introduced many non- native species of trees and plants to the Subject Property. A photograph of the Subject Property (Exhibit A 53) clearly shows large sections of the northerly portion of the Subject Property with effectively no trees, demonstrating that the trees at that point in time where removed by humans and that there was no growth of trees in those locations. Likewise, testimony about the work of the Olmsteds and the Delanos demonstrate large sections of the Subject Property were cleared to plant non- native species of trees, flowers and shrubs (such as Japanese yews, which are not native to West Orange), clearly changing the -26-

fundameatal character of the original site, demonstrating that the Subject Property has been developed over the years and continued development is not inappropriate at the Subject Property. 18. The remains of parts of fences and the damaged metal shell of a greenhouse, which has been clearly abandoned for over half a century, based on the credible testimony of Mr. Hayden, are not a basis upon which to deny the Application. 19, Further, as the testimony has noted, the original McClellan house was destroyed many, many years ago, well before Seton Hall ever came on to the Subject Property, and that the gardens which may have been planted by the Olmsteds starting in the late 1930’s or 1940’s on the northern portion of the Subject Property have become overgrown and are no longer maintained. 20. The southern portion of the Subject Property has developed and was used as a school prior to Seton Hall’s use of the Subject Property. 21. Concerning the historic significance of the Subject Property, Mr. Hayden’s testimony was most credible. His written report and testimony demonstrated that none of the remaining structures, which clearly are in a state of disrepair or are partially destroyed, are eligible for or are on the National Historic Register because they lack historic significance and historie integrity. Nothing on the Subject Property qualifies for a designation under the National Historic Register. 22. The objector’s proffered historical expert Kathleen Galop lacked the same credibility. She primarily testified with -27-

regard to the landscape architecture of the Subject Property, but admitted she was not a landscape architect. Most importantly, she admitted only being on the Subject Property for at most 10 to 15 minutes. Considering that she walked all the way to the location of the remaining metal frame of a greenhouse, which takes approximately 5 minutes to walk from where cars park based on Board member's visits to the Subject Property, she was barely on the Subject Property and therefore had no real ability to determine what was there. Further, unlike Mr. Hayden who performed extensive background research on the prior property owners and the Olmsted brothers, Ms. Galop did not. As noted by Ms. Galop, it has also not been adequately demonstrated whether any of the Olmsted plans pertaining to the Subject Property were ever implemented. 23. Seton Hall’s construction on the Subject Property of additional athletic fields will free up the use of the Township's fields for other Township uses, as there is much competition for the use of the public fields in West Orange. The testimony of Bill Keogh, the Township’s recreation director, and Mr. Edwin Johnson of the Township’s Recreation Department, demonstrated that the expansion of the Seton Hall fields will have the positive effect of freeing up use of the fields at the Township’s parks and schools for Township residents and children, thus providing a further benefit to the Township and the public good. 24. The use of the Subject Property for the proposed expansion of athletic fields and the field house is justified ~28-

and reasonable. The proposed use, as demonstrated by the testimony of Monsignor Kelly and Mr. Steck, is integral to the core function of Seton Hall as a school. The specific location of the Subject Property is key, as it is in close proximity to Seton Hall’s academic facilities and other fields located on Northfield Avenue, and Seton Hall owns no other property in close proximity available for it to expand upon. Furthermore, there is no additional large tract of land in close proximity to the Seton Hall School building on Northfield Avenue available for Seton Hall to build the proposed athletic facilities. 25. This Application poses no threat or potential harm to either the Indiana bat or its breeding habits or sites. No witness testified that they were aware of Indiana bats actually being on the Subject Property. For example, Amy Green, the objector's environmental science witness, testified that she had no actual knowledge of Indiana bats at the Subject Property. Green testimony of November 5, 2009 at page 130. Ms. Green further testified that a significant part of North Jersey includes habitats for the Indiana bat. Green testimony from December 3, 2009 at page 58. The U.S. Fish and Wildlife Service further advised that if the removal of trees at the Subject Property occurred during non-breeding season, the months of September through March, it would be acceptable to remove trees without any impact to the Indiana bats’ breeding habits. Seton Hall agreed that the removal of any trees would occur during this time period, and same will be made a condition of approval. In addition, Seton Hall actually performed at bat mist net -29-

survey in accordance with U.S. Fish and Wildlife Services guidelines and the results of that survey was that no Indiana bats were found. Thus, any testimony that the removal of trees might negatively impact the breeding habits and habitat of the Indiana bat is without basis and this is a non-issue in this Application. 26. There was much conflicting testimony and public comment concerning whether the Subject Property contains an old growth forest. Despite all the back and forth, the Township's Forester, who one of the objectors called as his own witness, Mr. Linson, testified, “There are old trees. But there is no old growth forest.” November 5, 2009 transcript at page 64. Mr. Linson further testified that there was really no forest at this location until some 50 or 60 years ago when the Subject Property was abandoned and natural growth resumed. Id. at 74. Mr. Linson was the only individual with the appropriate qualifications who testified before the Board as the Township Forester to make this determination. The Board finds his testimony to be very credible. Many of the other people who testified simply were not experts in this area or effectively were attempting to quote hearsay from articles written by other people or provide a net opinion. Ms. Green testified that she is not a certified tree expert. Green testimony of November 5, 2009 at page 25. In addition, the Applicant has clearly made numerous revisions in the Application to save a number of the older or champion trees on the Subject Property. Thus, the -30-