Prior Resolutions of Approval submission

Seton Hall of its existing athletic facilities and field house at the Subject Property clearly are inherently beneficial. 10. Likewise, the Law Division in Rolf v. Borough of Emerson, 141 N.J. Super. 341 (Law Division 1976), the plaintiff sought to locate a school bus garage business in the Borough of Emerson. The Borough denied the applicant’s request for a variance. The court noted that the first question was “whether the use of the property for a school bus garage facility serving a regional need is so inherently beneficial to the general welfare as to constitute a special reason within the intendment of N.J.S.A. 40:55-39(d), thus warranting the grant of a use variance provided only that the negative criteria of the statute are met.” Id. at 345. Judge Pressler, then sitting in the Law Division, found that the school bus facility was “necessarily accessory to the school buildings themselves” because transportation of students was an intrinsic part of the government’s obligation to educate them. Id. at 355. Judge Pressler stated: It is this court’s conclusion, based on the facts above recited, the plaintiff has so clearly borne his ultimate burden of proof of particular suitability of the premise in question for the use sought that any contrary finding by the board of adjustment is arbitrary and unsustainable and that, as a further consequence, it is immaterial to this Application whether the use is an inherently beneficial one, although for the reasons herein stated, it is concluded that it is. Id. at 353. -41-

il. Further, even assuming arguendo that the fields themselves are not inherently beneficial, the Applicant has met both the positive and negative criteria. The proposed construction can be done without substantial detriment to the public good and it clearly does not substantively impair the intent or purpose of the Township’s zoning plan and zoning ordinances for the reasons stated herein. Further, because the R-1l zone clearly permits playgrounds and parks and public and private schools as conditional uses, and athletic fields go with each of these uses, it clearly must have been intended, evidenced by the fact that when the Township master plan was last redone, there was no question with regard to the fact that Seton Hall was already operating athletic facilities and fields at the current site. Thus, there is no substantial impairment of the Town’s zoning plan and ordinances by the granting of the proposed variances. 12, It should be noted that prior decisions of courts have expressly permitted private schools to do similar types of construction. In Burton v. Town of Montclair, 40 N.J. 1 (1963), the New Jersey Supreme Court dealt with an application by the Montclair Academy Foundation to construct a new school building and gymasium on a nearby tract of land to where its existing facility was located. The board approved and granted the variance subject to a number of conditions. The Supreme Court affirmed the granting of the variance in part noting that the “educational and cultural use to be achieved thereby (by -42-

construction of both the school building and gymnasium) is in furtherance of the welfare of the community.” Id. at 4. 13. Under the New Jersey Administrative Code section 7:7A- 4.3(b) (5), because the Board has found that nothing on the Subject Property is listed on or eligible for listing on the National or New Jersey Register of Historic Places, that granting the variances sought would not be violative of the New Jersey Administrative Code. Seton Hall has clearly addressed the historic significance of the Subject Property. 14. To the extent that on appeal an issue is raised with the Board’s decision to not permit the West Orange Historic Preservation Commission to participate in the application, Chairman Neuer previously noted on the record during the hearing this application has received widespread notice and coverage in the local press, online at various websites in addition to the required notices. The Historic Preservation Commission waited until approximately mid-2010 to even approach the Board, which was too late given how much time had gone by and how far this application has progressed. Further, N.J.S.A. 40:55D-110 and 55D-111 do not instruct or require otherwise, although it is very questionable whether either of these statutes are applicable to this matter. It is clear under section 110 that a simple failure to refer to a matter to the Historic Preservation Commission will not void the Board’s approval. The legislative language does not sanction a wholesale ignoring of historic issues in reviewing an application, which was clearly not done in this case. Seton Hall and certain objectors presented -43-

extensive historic evidence of the site in connection with the Board's decision to grant a variance. In order for the Board to determine if there was any detriment to the public good, the Board heard testimony on the record about the historic nature of the property in question. Thus, the Board was not required to seek referral or an opinion from the Historic Preservation Commission, or have a member of the Historic Preservation Commission give testimony, although this was permitted in this case. Neshanic Coalition for Historic Preservation v. Hillsborough Township Planning Board, unpublished opinion dated July 19, 2010 in the Law Division, Somerset County, Docket No. SOM-L-1437-08, at page 8. Thus, the Board's decision not to permit the Historic Preservation Commission to weigh in on this matter is clearly appropriate. Most importantly, when the Historic Preservation Commission submitted its August 18, 2010 letter to the Board attaching its resolution passed on August 4, 2010, it is clear that the Historic Preservation Commission did not take testimony, but simply made certain net conclusions which were not based upon the historical record provided during the public hearings before the Zoning Board. Thus, it is respectfully submitted that the decision of the Board not to formally permit the Historic Preservation Commission to reach a decision for the Zoning Board was clearly not erroneous as a matter of law and as the facts of this case demonstrate. 15. Based on the foregoing, and in conclusion, Seton Hall is entitled to the D and C variances sought in its Application as amended during the course of the hearings. While the Board -44-

has determined that the proposed use of the Subject Property is inherently beneficial, even assuming, arguendo, that it is not inherently beneficial, nonetheless, Seton Hall has demonstrated the positive criteria because it has established special reasons for the granting of the variances, as set forth herein. Likewise, Seton Hall has demonstrated the negative criteria because variances can be granted without substantial detriment to the public good and it will not substantially impair the intent and purpose of the Township’s Zoning Plan and Zoning Ordinance. Seton Hall’s revisions to its plan during the course of its Application have been done in large part to address the issues raised by the objectors especially in the area of storm water management and runoff, preservation of trees and certain safety issues. Accordingly, the Board will approve of the Application subject to a number of conditions that deal extensively with storm water maintenance issues, the bio- retention basins, insuring that the construction phase of the project is properly supervised and managed to prevent anything illegal, inappropriate or not approved by the Board happens and, to properly oversee the removal of the trees and the replanting of new trees, and to deal with some of the ongoing issues with regard to the use of the athletic fields in the future, such as the requirements with regard to use of police and parking attendants at home football games, the prohibitions of any lights on fields, the prohibition of a marching band, certain limitations on the use of the Subject Property, the requirement that Seton Hall enter into a maintenance agreement with the -45-

Township subject to the approval of the Township engineer for maintenance of the entire site, and most crucially, storm water management in the future, and requirement that any soil brought onto the Subject Property be properly checked to make sure it is appropriate for use. Based on the testimony and documents admitted into evidence during the course of the hearings, Seton Hall has complied with the Township's ordinances concerning the Environmental Impact Statement and Tree Removal. The Board's decision is without prejudice to the action against Seton Hall pending in the West Orange Municipal Court. WHEREAS, a motion was made by Mr. Buechler to grant the Application and variances as aforesaid, based on the findings of fact and conclusions of law and with numerous conditions for approval and voted upon as follows: Ayes Nays Abstentions Buechler Aye Bullock Aye Quentzel Aye Steinhart Aye Sussman Aye Weiss Aye Neuer Aye NOW THEREFORE, be it resolved by that the Zoning Board of Adjustment of the Township of West Orange, based upon the Findings of Fact and Conclusions aforesaid, and upon the laws established in the State of New Jersey hereby grants the Application by Seton Hall Preparatory School for amended -46-

preliminary and final variances: (1) (2) (3) (4) (5) site plan approval with the following a “DY 1 use variance for athletic fields, not permitted in the residential zone; 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 a variance for construction of 2 free standing signs when none are permitted in the residential district; a variance from the requirement of no disturbance of vegetation within 100’ of xidge 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%; a variance for construction of a 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 -47-

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’. (7) A soil removal permit; (8) Tree removal permit. (3) 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. BE IT FURTHER RESOLVED that the grant of said variances shall be conditioned upon the Applicant’s full and complete satisfaction of the following conditions: 1. All sheets in the site plan drawing must be revised to reflect the site plan changes shown on Sheets 5 & 7 of the site plans last revised May 24, 2010. 2. For any future development Applications for the Subject Property, the existing land surface conditions to be used in any future non-structural point system are to be based upon the proposed land surface conditions as shown on the approved 1999 site plans. 3. Gradation analyses are to be submitted for any imported soil used for storm water basins/infiltration basins and trenches with permeability rates; after placement of materials in field, in-field permeability tests are to be performed prior to covering and/or planting. -48-

4. The storm sewer pipe must be videotaped from the existing basin on the east side of the Subject Property to Northfield Avenue to determine the condition of this pipe. Repair any damage or defects in this storm sewer. 5. The existing roof drains at the existing field house are to be connected to the storm sewer system. 6. Add an inlet near the caretaker house to minimize Subject Property runoff from flowing onto the Shillelagh Club and adjacent residential homes and connect it to the existing storm sewer west of the practice field. 7. Revise the detention/bio-retention basin grading to show graded accesses into each basin. 8. Modify the sequence of construction to provide additional procedures for the bio-retention basin to reduce/prevent impacts during construction on its ultimate operation. 3. The site plan must denote which storm drain structures are oversized and details provided accordingly. 10. Add subbase outlet drains to Inlets 206, 207, 208, 209 and 210 to pick up any subsurface water flow. fa Revise the plans to change the perforated HDPE pipe to solid HDPE pipe from Inlet 311 to Inlet 313 and add sub base outlet drains at each of these three (3) inlets. Trench to be backfilled with clean stone, wrapped in filter fabric. Further, the trench should extend to the lower of the top of rock or elevation 596 (bottom of existing detention basin). M2. The bio-retention basin soil mix is to be inspected and certified by a licensed professional engineer prior to installation. 13. Lightweight construction equipment is to be used on the two baseball fields to minimize over compaction of the soils; a root zone soil mix, 10 inches in thickness is to be provided in accordance with approved specifications. 14. An oil/water separator is to be provided for the floor drain(s) in the proposed storage building. The roof drains are to be directed to the existing detention basin. The site plans are to be revised accordingly. -49-

15. Vacate the existing sanitary sewer easement adjacent to Prospect Avenue and replace with a new utility easement, 20 feet in width that is centered about the existing pipe. 16. On-site sanitary sewers are to remain private with maintenance the responsibility of the Subject Property owner. 17. Show the dimension of the fence heights on the Jv baseball field and the tennis courts on the plans. 18. Clear and regrade the sight lines at the existing and proposed driveways to achieve requisite sight lines (to limit of Subject Property). A note is to be added to the site plans denoting this requirement. 19. Additional right of way is to be dedicated along Mountain Drive to provide a 25 foot half width from the centerline of the existing pavement of Mountain Drive. 20. The bleachers at the football field are to be limited to 2500 linear feet of seating space (which is equivalent to 1500 people, as per the ordinance). 21. Install a construction fence along the limit of disturbance where no silt fence is provided. These locations must be shown on the site plans. 22. Implement tree protection measures as directed by the Township Forester and/or Township Planner and provide appropriate details of such on the site plans. 23. In accordance with Galway report dated October 15, 2009 undertake the actions listed in Subpart A. This section relates to the 4 specimen trees identified as the largest trees on Subject Property, to “improve their health and hopefully extend their life span”. A note to be placed on the plans should indicate that “the treatment will include removing competing and encroaching trees in the immediate vicinity of their crown; removal of all large dead branches; light thinning of live branches; cutting and/or chemically treating vines on the trees; and insect, disease and fertilizer treatment (integrated pest management), all as recommended by a certified tree expert or as directed by the Township Forester. 24. Provide deep root feeding for trees to remain along Prospect Avenue and the Shillelagh Club property line where impacted by construction activities as directed by the Township Forester or monitor who is a certified tree expert. -50-