RESOLUTION OF FINDINGS AND CONCLUSIONS OF THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF BELLMAWR FOR USE VARIANCE BELLMAWR-BROWNING, LLC - #2016-02 RESOLUTION WHEREAS, Bellmawr-Browning, LLC, has applied to the Zoning Board of Adjustment of the Borough of Bellmawr for a Variance pursuant to N.J.S.A. 40:55D-70(d), for property located at 82 East Browning Road, known as Block 137, Lot 43 (the Property ), on the Official Tax Map of the Borough of Bellmawr, to permit a tenant at the Property to repair FedEx box trucks; and WHEREAS, the Applicant is also requesting a waiver of site plan approval in connection with its application for use variance approval; and WHEREAS, Orens Development, Inc., an affiliate of the Applicant, appeared before the Board on February 17, 2015 and received an interpretation from the Board, as Memorialized by Resolution #2015-02, regarding non-conforming use rights of prior owners/occupants of the Property; and WHEREAS, Scott Orens, a principal of the Applicant s affiliate, appeared at the February, 17, 2015 Board hearing and testified as to the Applicant s intended purchase of the Property, and that the proposed uses of the Property will be substantially similar to the historic non-conforming uses of the Property; and WHEREAS, a use variance is required because the tenant is a repair facility for a third party and any motor vehicle repairs that have taken place on the Property were by occupants of the Property repairing their own vehicles, evidence having never been introduced to the Board that third-party motor vehicle repairs was a non-conforming use of the Property; and WHEREAS, a Public Hearing for the Application was held on March 15, 2016, after the required Notice was sent to all property owners within 200 feet of the Property and published in the Official Newspaper of the Borough, as required by the Municipal Land Use Law of the State of New Jersey; and Page 1 of 6
WHEREAS, the Zoning Board, after carefully considering the evidence presented by the Applicant in support of its application, and after the meeting was opened to the public for their response and input, has made the following findings of fact: 1. The Applicant is the owner of the Property located at 82 East Browning Road in the Office Zoning District of the Borough. 2. The taxes on the subject property are current or exempt. 3. The Applicant has paid and/or posted all required fees. 4. Proper notice of the application for variance approval has been given, as based upon the list from the Tax Assessor's Office. 5. The Property is improved with four (4) buildings and an enclosed outside storage area, along with other site improvements. 6. The four (4) existing buildings are (i) a 2,750 square foot retail building currently occupied by a window sales and installation business; (ii) a 2,496 square foot garage building occupied by contractors for the storage of materials and/or equipment; (iii) a 1,750 square foot cape cod residential dwelling and (iv) a 28,855 square foot building occupied by the Applicant s affiliate and other contractors, including the tenant repairing the FedEx box trucks. 7. Board Member Joshua Harris recused himself from the Board for this Application as he is an owner of property within 200 feet of the Property. 8. The Applicant was represented at the March 15, 2016 Public Hearing by the lawfirm of DelDuca Lewis, LLC. Testimony was provided on behalf of the Applicant by Scott Orens, John Davis and Creigh Rahenkamp. 9. James Burleigh, the Borough Zoning Officer testified at the March 15, 2016 Public Hearing as follows: a. The FedEx repair tenant has occupied a portion of the large building without the Applicant applying for a certificate of occupancy as required; b. He has been receiving noise complaints from neighboring residents about the repairs being made to the FedEx box trucks; c. He has personally witnessed repairs being made to the FedEx trucks outside Page 2 of 6
of the building and FedEx trucks being towed to the Property before 6:00 a.m. and after 11:00 p.m. 10. The Board Solicitor read into the record portions of Resolution No. 2015-02, specifically relating to the testimony provided by Mr. Orens at the February 17, 2015 Public Hearing regarding the hours of operation and uses of the Property. 11. Mr. Orens testified at the March 15, 2015 Public Hearing as follows: a. Orens Development occupies approximately 5,000 square feet of the large building for its construction business; b. Approximately 6,000 square feet of the large building is occupied by other tenants, including 3,000 square feet for the FedEx repair contractor; c. He has rejected other tenants for the Property, including a tow truck operator and a retail repairer of cars, as not consistent with the non-conforming uses of the Property; d. Acknowledged that certificates of occupancy have been received for other tenants of the large building, but not the FedEx repair contractor; e. Thought that the FedEx repairer was consistent with the non-conforming uses because the tenant only services FedEx box trucks and was not opened to the public; f. Agrees to apply for a certificate of occupancy for the FedEx repair contractor and to take the necessary action so that all of the tenants comply with Resolution No. 2015-02, especially the hours of operation. 12. Mr. Davis testified at the March 15, 2016 Public hearing as follows: a. He is the superintendent at the Property; b. He will instruct the FedEx repair contractor regarding the hours of operation and that all repairs of the FedEx trucks must take place inside the building, no repairs will be permitted outside; c. All prospective tenants will be subject to the issuance of a Certificate of Occupancy prior to occupying any space at the Property. Page 3 of 6
13. Mr. Rahenkamp, testified at the March 15, 2016 Public Hearing as follows: a. He is a principal of Creigh Rahenkamp & Associates, and he is the Applicant s planning consultant; b. He is a professional planner licensed in the State of New Jersey and has been qualified by New Jersey Land Use Boards to testify as an expert in his area of land planning; c. The FedEx repair tenant is not introducing a new use at the Property, as motor vehicle repairs have been ongoing use, rather it is more a question of who is doing the repairs and who the repairs are being done for; d. The FedEx repair tenant s use of a portion of the Property has less of an impact than the prior uses of the Property; e. The Property is particularly suited for the FedEx repair tenant s use of a portion of the Property as motor vehicle repair was a historical use of the Property. 14. The Board Engineer, Thomas Cundey, PE, CME, represented to the Board that the Applicant did address the site issues as required by Resolution No. 2015-02. 15. No evidence has been introduced to the Board that the non-conforming use rights of the Property included the repair of motor vehicles that were not owned by owners/tenants/occupants of the Property. AND, WHEREAS, based upon the above factual findings, the Zoning Board has come to the following conclusions: 1. Non-conforming use rights of the Property do not include the repair of motor vehicles unless the motor vehicles are owned by the Property owner/tenant/occupant doing the repairs. 2. The Applicant has provided the Board with sufficient information, in the form of plans, photographs and sworn testimony for the Board to make an informed decision on the Applicant s request for a variance pursuant to N.J.S.A. 40:55d-70(d) to utilize a portion of the Property for a tenant repairing FedEx box trucks. 3. This application relates to a specific piece of property and the purposes of the zoning Page 4 of 6
laws of the State of New Jersey and of the zoning ordinance of the Borough of Bellmawr would be advanced by the deviation from the zoning ordinance requirement pertaining to use in the Office Zoning District, as specified herein, as requested by the Applicant. 4. The benefits of the deviation from the zoning ordinance requirement specified herein would substantially outweigh any detriment to the public good as variance approval would promote the safety, health and general welfare of the community. 5. Relief as requested by the Applicant can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance of the Borough of Bellmawr, as the Property is particularly suited for the use of a tenant repairing box trucks for FedEx. 6. A waiver of the requirement that a site plan be submitted is appropriate as no changes to the site are proposed by the Applicant. NOW, THEREFORE, BE IT RESOLVED by the Zoning Board of the Borough of Bellmawr, on the 15 th day of March, 2016, that this Board grants to the Applicant the following: (i) A waiver of the requirement that a site plan be submitted; and (ii) A variance pursuant to N.J.S.A. 40:55D-70(d)(1) to permit a tenant to repair FedEx box trucks, in accordance with the Application, plans, photographs and testimony provided by the Applicant, and subject to the following conditions: a. Subject to the Applicant obtaining all other approvals that may be required for the development, including, but not limited to Camden County Planning Board and Soil Conservation approval. Copies of all other approvals shall be submitted to the Borough upon receipt. b. Subject to the testimony offered on behalf of the Applicant at the March 15, 2016 Public Hearing. c. Subject to all tenants at the Property complying with Resolution No. 2015-02. d. Subject to no salvage of motor vehicles permitted on the Property. e. Subject to all motor vehicle repairs, including the FedEx box trucks, taking place inside of the large building, no repairs are permitted outside the building. f. Subject to the Applicant applying for a certificate of occupancy for all tenants at the Page 5 of 6
Property, including any current tenant in which a C.O. was not previously issued by the Borough. g. Subject to the Applicant notifying the Zoning Officer of any storage or use of hazardous materials on the Property, including hazardous materials stored or used by tenants. ROLL CALL VOTE THOSE IN FAVOR: 7 THOSE OPPOSED: 0 THOSE ABSTAINING: 0 CERTIFICATION I hereby certify that this foregoing resolution is a true memorializing resolution, as adopted by the Zoning Board of Adjustment of the Borough of Bellmawr in accordance with its decision at its regular meeting on March 15, 2016. Dated: JOSEPH HARTMAN, CHAIRMAN Bellmawr Zoning Board of Adjustment Page 6 of 6