Prior Resolutions of Approval submission

Board concludes that there is no old growth forest present at the Subject Property. 27. The removal of the trees at the Subject Property and their replacement by a greater or equal number of new trees is clearly appropriate. The majority of the older trees are only present in the northern section of the Subject Property. Many of the trees in that section are dead, dying, have fallen or are in various states of decline. The clearing of the older trees and their replacement with new trees that will grow over their lifetime is part of the natural cycle of trees dying and growing. This is not an example of where the Applicant simply is looking to clear-cut property and not replace the number of trees removed with new trees. Seton Hall proposes to replace the trees, which is part of the cycle that occurs in connection with trees throughout the United States and the world. 28. The tree survey done by the Applicant and the conditions that will be placed upon tree removal with oversight by a monitor, the Township Planner or the Township Forester will ensure that only those trees that should be removed will be removed, and thus comply with the intent and purpose of the Township’s tree ordinance. The Township Forester, Mr. Linson, testified that the Applicant’s plan has complied with the appropriate regulations and that the issuance of a tree removal permit is appropriate, and the Board so finds. 29. None of the wooded area east of Ridge Road, the steepest portion of the Subject Property, will be disturbed by the proposed construction. -31-

30. Seton Hall has proposed leaving the cross-country track in its existing location, a condition that was supported by the objectors’ environmental expert, Amy Green. At closing argument, counsel for two objectors stated that they wish the path to be moved further to the south which would result in the destruction of approximately 37 additional trees. The Board finds that the proper place for the running track is in its current location but will require as a condition that it be resurfaced on the top and sides so that it is solid. 31. With regard to the use of asphalt millings, objectors provided Exhibit Carp 5 which are the Asphalt Millings Guidance Document issued by the New Jersey Department of Environmental Protection with a revision date of September 10, 2009. Clearly, these revisions are not applicable because the path in question predates this Guidance Document and there was no testimony as to the exact composition of the path that exists on the Subject Property that has been there for many years. Further, section F of the Guidance Document notes that “several uses of asphalt millings are fully appropriate in accordance with the regulations for recycling and beneficial use and, therefore, asphalt millings may be used as follows below.” One of the permitted uses set forth in subsection F 3 is as surfacing materials if an appropriate binder is applied to keep the asphalt millings in place. Subsection F 4 notes that asphalt millings may be used to construct or repave a roadway or parking lots and used for a walking or running path likewise appear to be clearly appropriate under these regulations. The pathway is -32-

so utilized. Further, the concerns about the asphalt millings on the path is an existing condition and one that would continue to exist in place with no change whatsoever if the Application were denied. Therefore, this is a non-issue in this Application. 32. The Board accepts the testimony of Joseph Staigar, the Applicant’s traffic expert, whose credibility is accepted and who has testified before the Board in mumerous. other Applications. The revisions made by Seton Hall to the plans to deal with public safety are acceptable. The biggest concern raised was when home football games are played which will occur no more than six or so times during the year. The duration of each football game with both pre- and post-football activities will be no more than approximately four hours, or a maximum of some 24 or so hours per year, which clearly cannot have a substantial detrimental impact on the neighboring community. While people will have to park in neighboring areas, that is no different than at West Orange Public High School where at home football games the parking lot at West Orange High School is clearly inadequate to provide parking. Whenever home football games are played at West Orange High School, numerous people park on the neighboring streets and walk to the football field. The conditions imposed by the Board will require the Applicant to hire off-duty police officers along Prospect to maintain traffic flow as well as to stop traffic to allow pedestrians to cress the street and gain access to the Subject Property to attend football games. Likewise, the conditions will require -33-

that during home football games that parking monitors be utilized for the on-site parking in order to maintain the flow of traffic and safety. Mr. Staigar opined that there was safe ingress and egress to the Subject Property, and the Board so finds. 33. The Board finds that the practice of Seton Hall students walking from the school building to the athletic fields will likely continue even if the Application is denied. The Board finds it cannot require Seton Hall to install sidewalks on property it does not own to enable students to walk from the Seton Hall Prep school to the Subject Property, although Seton Hall is encouraged to take these issues to heart and instruct its students on how to walk properly to avoid any problems and to utilize sidewalks where they exists. This pre-existing issue of students walking to and from the Subject Property does not negate Mr. Staigar’s conclusion that there is safe ingress and egress from the Subject Property 34. With regard to the site plan itself, with the various revisions made by Seton Hall, and the relocation of certain of the baseball fields, the practice field on the northerly portion of the Subject Property will now be at least 380 feet from the boundary of the Carp and Malanga properties, and that buffer area will be heavily wooded with the exception of the path which is used for people to walk and cross-country track. Such a buffer is more than adequate, especially in light of Seton Hall's agreement not to do any further development in this northern portion for 30 years (assuming it continues to own the -34-

land). Further, Mr. Steck testified that the impervious coverage on the Subject Property with the proposed construction would be less than 1%. Steck testimony of September 10, 2009 at page 37. 35. The Board adopts the conclusions of its engineer, Mr. Eric Keller, that the revised specifications and design drawings by Seton Hall regarding the drainage and storm water management design were appropriate and adequate. Thus, the Board accepts the drawings and studies done by Mr. Stewart as confirmed by Mr. Keller as being acceptable and demonstrating that there is no adverse impact to the public and that any drainage issues will not be exasperated by the proposed construction. 36. There is no basis to consider the objector’s engineer Brian Freidlicht’s “proposal” to relocate the bio-retention basin. When pressed, Mr. Freidlich stated that he had not done any design specifications for such an underground bio-retention basin at the Subject Property and he did not know if it would work or fit in the location. His attempt to make a proposal and state that the Board should adopt it, and when pressed conceded that he had not done any of the design specifications or work to know whether it would actually work demonstrated that Mr. Freidlicht's opinions were unsupported by any studies or data and, therefore, are disregarded. It should be noted that Mr. Stewart, Seton Hall’s engineer, met with Mr. Freidlich in an attempt to resolve many of the issues discussed with regard to the bio-retention basins and other drainage issues. As a result, Seton Hall made additional changes to the site plan -35-

during the Application, leading to the final proposal, accepted by Mr. Keller, the Board’s engineer, and adopted by the Board. 37. The Parking variance should be granted with the Applicant providing for 372 non permanent spaces for overflow parking for home football games, as it is not good planning to provide for an impervious parking area that will only be used 4- 6 times per year. NOW THEREFORE, the Board hereby makes the following Conclusions of Law: 1. “Zoning boards may choose which witnesses, including expert witnesses, to believe.” Board of Education v. Zoning Board, 409 N.J. Super. 389, 434 (App. Div. 2007). The board’s choice must be reasonable. Id. The board “cannot rely upon opinions that are unsupported by any studies or data.” Id. at 435. Thus, certain of the conclusions that were made by witnesses in this matter were, based upon the Board’s assessment of the witnesses who testified in this application, not credible or supported. 2. The fact that Seton Hall is a private school, and not a public school, is irrelevant. N.J.S.A. 40:55 D-66(b) states: No zoning ordinance governing the use of land by or for schools shall, by any of its provisions, or by any regulation adopted in accordance therewith, discriminate between public and private non-profit day schools of elementary or high school accredited by the State Department of Education. ~36-

3. Thus, any attempt to distinguish or discriminate between Seton Hall as a private school and what may be permissible for a public school cannot be permitted. 4. The fact that the Seton Hall educates only a small number of West Orange residents is irrelevant. The Board's review of an Application should not simply stop at the Township's borders because many uses serve a larger, more regional purpose. Examples are hospitals, nursing homes, assisted living facilities, and various forms of manufacturing, businesses or commercial uses such as shopping centers or supermarkets. Each such use serves not only the residents of a particular township such as West Orange, but also the broader, larger community outside of West Orange. 5. The New Jersey Supreme Court in two separate decisions has likewise held that the fact that a particular Application to a zoning board will serve the larger community and not solely that township itself is not a negative or relevant factor. In Andrews v. Ocean Township Board of Adjustment, 30 N.J. 245 (1959), the Supreme Court was faced with reviewing an application that permitted the use of residential premises for a parochial school as living quarters for the teachers. The Supreme Court noted, “plaintiffs complain the school will serve the entire parish of which the township is not a part. No infirmity inheres in that circumstance. A municipality may provide cooperatively for the needs of neighboring communities as well as its own.” Id. at 251. Likewise, in Township Committee of Denville v. Board of Education, 59 N.J. 143 -37-

(1971), in reviewing an Application for the construction of a vocational school, the Court held that “Nor should the fact that a vocational school will serve a regional need rather than solely a municipal need, of itself, support a total or a limited zoning bar.” Id. at 150. 6. Athletic fields are permitted and expected conditional or accessory uses to a school. See Shim v. Washington Township Planning Board, 298 N.J. Super. 395 (App. Div. 1997), wherein the Court stated: We note, for example, that public playgrounds and public and parochial schools and colleges are permitted in the R-1.5 zone. We doubt that the municipality intended that lighting for playgrounds or athletic fields for the schools are prohibited because lighting and athletic fields are not among the twelve specified enumerated items as permitted accessory uses in the zone. Id. 401-402. 7. In order to grant a D variance, the Applicant must prove both the positive and negative criteria to obtain a use variance. Smart SMR of New York, Inc. v. Borough of Fairlawn Board of Adjustment, 152 N.J. 309, 323 (1988). “In general, the positive criteria require that an applicant establish ‘special reasons’ for granting the variance,” and “the negative criteria require proof that the variance can be granted without substantial detriment to the public good and that it will not substantially impair the intent and purpose of the zone plan and the zoning ordinance.” Id. at 323, citing Sica v. Board of Adjustment of Wall Township, 127 N.J. 152, 156 (1992). If the proposed use is inherently beneficial, an applicant’s burden is -38-

significantly lessened because “an inherently beneficial use presumptively satisfies the positive criteria.” Smart SMR, 152 N.J. at 323. The Sica court explained that with an inherently beneficial use, satisfaction of the negative criteria does not depend upon an enhanced quality of proof, but rather upon balancing the positive and negative criteria. Sica, 127 N.J. at 160-63. 8. In this case, much has been made as to whether the proposed expansion of the athletic fields is an inherently beneficial use given its connection to Seton Hall, a non-profit parochial school. In looking at this, all of the parties have repeatedly cited the Zoning Board to the Appellate Division’s decision in Medical Center at Princeton v. The Township of Princeton Zoning Board of Adjustment, 343 N.J. Super. 177 (App. Div. 2001). What is fascinating is that the Medical Center decision at page 204 cites two very relevant decisions in connection with schools that have an impact on whether the proposed development to the Subject Property is in fact an inherently beneficial use. Cited in Medical Center is the Appellate Division’s decision in Scholastic Bus Co., Inc. v. Zoning Board of the Borough of Fairlawn, 326 N.J. Super. 49 (App. Div. 1999}. In Scholastic Bus Co., the applicant sought review of the zoning board’s denial of a use variance to locate a school bus parking lot and maintenance facility in an industrial zone. The school bus company provided school bus services to a number of school systems located in the regional area. The Appellate Division stated: -39-

We hold that the proposed use is inherently beneficial. Scholastic operates a bus business for the transportation of school children, fulfilling the public obligation to transport children. A school bus facility is a use necessarily accessory to the school buildings themselves, and as such, it is clearly inherently beneficial in the zoning sense. Even if not an inherently beneficial use, the evidence before the Board clearly established that the proposed site is clearly suitable for the proposed use and, therefore, satisfied the positive criteria. Id. at 55 (internal citations omitted). 9. Thus, the Appellate Division reversed the denial of the variance. While in Scholastic Bus the Appellate Division cited to the New Jersey Constitution that transporting children fulfills a public obligation, in today's age when various municipalities with the support of government are actively advancing charter schools, school vouchers for private schools and other related items, education, whether by the public or private system, is inherently beneficial. All of the objectors appear to agree that if Seton Hall were proposing constructing its school at the Subject Property, it would be inherently beneficial. As noted above, if transportation of children makes a school bus maintenance depot and parking lot for school buses an inherently beneficial use due to its relationship to the education of children, given that athletic facilities are an integral part of the high school experience and curriculum in both public and private high schools provide, not only in New Jersey, but throughout the United States, then the expansion by -40-