WHEREAS, Kessler Realty, LLC (the Applicant), has applied to the North Hanover Township Joint Land Use Board (the Board) seeking Use Variance Relief with respect to the property commonly known as Lot 18 in Block 903, as shown on the official tax maps of North Hanover Township; and

WHEREAS, the property in question contains approximately 5.58 acres and is located on the north side of Cookstown-New Egypt Road approximately 0.66 miles north of its intersection with Meany Road; and

WHEREAS, the applicant proposes site improvements to include the construction of an apartment building to replace a structure demolished in the 1990’s as a result of a fire, which structure would have 16 two bedroom

WHEREAS, the structure that previously existed and which was destroyed by fire contained 16 onebedroom units; and

WHEREAS, the property is located in the C-1 Commercial Professional Zoning District of the Municipality,

WHEREAS, the applicant has submitted a Use Variance Plan prepared by Avila Engineering dated

WHEREAS, this matter was the subject of a public hearing held before the North Hanover Township Joint

WHEREAS, prior to said hearing the Board had an opportunity to review the March 10, 2017, report of the

WHEREAS, the applicant has been represented by Jeffrey S. Appel, Esq.; and

WHEREAS, at the time of the public hearing, the applicant submitted into evidence as Exhibit A-1:

WHEREAS, applicant submitted the testimony of Mark Lichtenstein, a representative of the Property Management Team for the applicant and who has been associated with the property for the past six years; and 

WHEREAS, the applicant testified that in addition to the new construction proposed, the applicant also intends to upgrade its existing septic system for the existing apartments already located on site; and

WHEREAS, the proposed apartments are not a permitted use in the C-1 and, therefore, the applicant

WHEREAS, it was the applicant’s burden of proof to establish both the positive and negative criteria of the

WHEREAS, in addition to the use variance relief required, the Board notes that there are existing nonconforming conditions on site with respect to the rear yard setback, 40 feet required and existing structure located 37 feet from the rear property line; and

WHEREAS, with respect to parking on site, the New Jersey Residential Site Improvement Standards require 1.8 parking spaces for each one bedroom apartment and 2.0 parking spaces for each two bedroom apartment. As a result, for the 32 one bedroom units currently existing, 58 spaces are required and for the proposed 16 two bedroom units, 32 spaces are required for a total of 90 spaces and the applicant proposes 77 total spaces as part of this plan; and

WHEREAS, the Board notes that had the applicant re-evaluated the number of bedroom units in the nearly proposed structure and the existing parking availability on site, as it relates to all RSIS standards, the applicant may have been able to meet this requirement; however, the applicant sought all new two bedroom units to be part of the new structure; and

WHEREAS, the Board and the Board’s professionals raised a number of concerns with respect to various site plan issues including lighting, traffic directional signs, identification signs, rental signs, re-striping of parking areas, replacement and repair of damaged and broken sidewalks, landscaping, dumpsters and an existing driveway, and the applicant requested those matters be deferred to a future site plan application; and

WHEREAS, with respect to the parking issues, the applicant testified that they had not received any complaints regarding parking and the average use of the existing units was between 40 and 45 vehicles; and

WHEREAS, the applicant submitted the testimony of Michael Avila, a Professional Planner of the State of New Jersey, who provided his professional opinion as to the proofs required for use variance approval; and

WHEREAS, Mr. Avila acknowledge that apartments are not a permitted use in the C-1 Zone and the plan as presented would essentially expand a pre-existing nonconforming use located on the subject property; and

WHEREAS, the positive criteria sited by the applicant’s expert was that the property was particularly suited for the proposed use since the site has previously been utilized as an apartment complex for many years and because the new structure would be in proximity to the footprint of the apartment building that previouslyburned down; and

WHEREAS, Mr. Avila further opined that the site is particularly suited for the proposed apartment building since it will complement the existing apartment structures on site and, therefore, be compatible with its surroundings while at the same time the construction would promote the general welfare by providing housing opportunities; and

WHEREAS, with respect to the positive criteria as sited by the applicant’s expert, the Board notes that essentially the same argument could be made to expand any pre-existing, nonconforming use since its proximity to other pre-existing, non-permitted uses would always be an argument to advance under such a scenario; and

WHEREAS, the Board notes further that, while the applicant refers to the proximity of the prior footprint of an apartment building, it has been over 20 years since such an apartment building was located thereon and the

WHEREAS, the Board is mindful of the case law of this State that when dealing with pre-existing,

WHEREAS, the Board further determined that the property is not particularly suited for the proposed apartment building, since a prior structure located thereon burned to the ground and the existing septic system is in need of replacement; and

WHEREAS, with respect to the negative criteria, the applicant’s expert testified that since the site has existed “as is” for years as an apartment complex and since the proposed use is not a “new use” on the subject

WHEREAS, with respect to these arguments the Board notes that the applicant’s expert has essentially parroted the language of the statute as to substantial detriment and notes that the applicant has failed to submit

WHEREAS, while the use proposed is not necessarily a “new use” it is a large expansion of what has actually existed for the past 20 years and the applicant has failed to present any testimony as to such impact upon

WHEREAS, the Board also raised concerns regarding the soils located on site noting that these are some of the porous soils in town and the applicant has testified that the existing septic system is failing and needs to be

WHEREAS, the Board believes it is inappropriate to expand the septic system to permit 16 new twobedroom apartment units when the soils are of such a poor quality, and the Board notes that the applicant has

WHEREAS, North Hanover Township is, among other things, a farming community and the Board Members are fully familiar with the soils throughout the community and the fact that the existing septic system

WHEREAS, based upon historical facts that one building has already been burned down as there is insufficient fire suppression to address same, it would be foolish for the Board to permit the construction of a new

WHEREAS, the Board is satisfied that the applicant has failed to establish the entitlement to relief, has failed to establish the positive and negative criteria of the statute, has failed to advance sufficient special reasons

NOW THEREFORE BE IT RESOLVED on this 22 day of March, 2017, by the North Hanover Land Use Board that the Applicant’s request for Use Variance Relief be and hereby is denied; and

BE IT FURTHER RESOLVED notice of this decision shall be published by the Board Secretary in the official