July 30, 2024 Planning Board Special Meeting Transcript - WEHI

ards? 3 MR. ANDERSON: There are differences 4 in the standard and many people say they are 5 stricter. I don't know what the impact would be 6 with this development. We have numerous locations 7 where stormwater management within the limit of 8 disturbance and I don't know whether we could 9 possibly still meet the newer standards but we're 10 not obligated to. 11 COUNCILMAN RUTHERFORD: Thank you, Mr. 12 Chair. 13 CHAIRMAN BAGOFF: Thank you, Council 14 President. Vice-Chairman Guarino. 15 VICE-CHAIRMAN GUARINO: Thank you, Mr. 16 Chairman. Can everybody hear me? Here we go. 17 Okay. (Indiscernible) 18 MEMBER OF THE PUBLIC: We can't hear 19 you. 20 (Public outburst) 21 VICE-CHAIRMAN GUARINO: Just to what 22 my colleagues said about storm, sanitary and a few 23 other things, one question. Mr. Anderson, did you 24 ever take a look at our Complete Streets 25 requirements in the Master Plan that deal with Page 89 1 public safety, sidewalks, crossing, lighting, you 2 know, all the people that come before the Planning 3 Board have, in many of our major projects, have 4 looked at, too, our Complete Streets requirements 5 and ordinance in the Master Plan, so if you haven't, 6 sir, and if the architect hasn't, we'd appreciate if 7 you did take a look at it because it does enable you 8 to make the, you know, the project more accessible 9 to our residents' walkability and safety, 10 particularly, for all the residents. 11 Secondly, sir, I was going through my 12 notes and in the site plan review meeting in March, 13 it was questioned about the sanitary volume pumping 14 stations and there were requirements to get back to 15 the Board, such as specifications, calculations. Do 16 you know when those questions and responses will be 17 available to the township engineers and to us? 18 MR. ANDERSON: I was planning on 19 approaching that process after Planning Board 20 approval -- 21 (Public outburst). 22 MR. ANDERSON: -- which is when I can 23 make the application to the DEP. 24 (Public outburst) 25 MR. ANDERSON: I cannot make the

24 (Pages 90 to 93) Page 90 1 application to the DEP without a resolution of 2 approval. 3 (Public outburst) 4 VICE-CHAIRMAN GUARINO: Thank you. 5 Thank you -- Mr. Anderson, thank you. Thank you, 6 Mr. Chairman. 7 CHAIRMAN BAGOFF: Mr. Hess, can you 8 comment on that? 9 (Applause by members of the public) 10 CHAIRMAN BAGOFF: Ladies and 11 gentlemen, I'm trying as hard as I can. You gotta 12 help me. We all want to hear the information. The 13 goal of this meeting is that the Board hears the 14 information, you hear the information, we make a 15 decision based on the facts, the ordinances and the 16 law, and if we do this, we're not going to get 17 there. We appreciate that you're standing there 18 with us. We're all together in this. Okay? So I'm 19 trying. 20 Mr. Hess, there were questions that 21 have not been answered. Mr. Anderson said they will 22 be answered after the Board's decision. I believe 23 that it is our usual and customary methodology to 24 have these -- that information prior to the Board's 25 decision so you, as our expert, can look at this Page 91 1 with the town engineer and make a rational decision 2 to help us. Am I correct? 3 MR. HESS: Well, I think the applicant 4 would be able to give flow estimations for sewage 5 flow and water demand. Those are simple 6 calculations based on the Residential Site 7 Improvement Standards. 8 CHAIRMAN BAGOFF: Yes. 9 MR. HESS: It's more difficult to make 10 a decision and come up with information regarding 11 how the sewage is going to be handled because that's 12 going to require additional -- additional studies 13 and collection of information, which currently is 14 not available. 15 CHAIRMAN BAGOFF: Okay. 16 VICE-CHAIRMAN GUARINO: Can I -- 17 CHAIRMAN BAGOFF: Vice-Chairman 18 Guarino. 19 VICE-CHAIRMAN GUARINO: I just want to 20 go back -- Mr. Hess, I just want to go back to the 21 point that when they do give us the information, it 22 needs to be soon because we need to know, if they 23 know there's a problem or there's going to be 24 issues, what remedies are going to be done that are 25 going to impact this project? Those are the key Page 92 1 concerns, what remedy will they need to do to, you 2 know, mediate any additional concerns with sewage 3 and such. Thank you, Mr. Chairman. 4 MR. HESS: Right, and I don't know 5 that they're going to be able to come up with that 6 information that quickly. I

mediate any additional concerns with sewage 3 and such. Thank you, Mr. Chairman. 4 MR. HESS: Right, and I don't know 5 that they're going to be able to come up with that 6 information that quickly. I think they'll be able 7 to tell us what the anticipated sewage flows are and 8 what the water usage will be, but what the remedy is 9 going to be, based on the lack of information, 10 that's going to take a while to put together. But 11 ultimately, that would have -- the township would 12 have to be satisfied with the improvements, there 13 would have to be water and sewer approvals granted 14 by the municipality to allow whatever upgrades are 15 required. 16 CHAIRMAN BAGOFF: So if approved, the 17 application may have conditions associated with 18 those forward-looking approvals -- 19 MR. HESS: Right. 20 CHAIRMAN BAGOFF: -- based on -- based 21 on evaluation afterward. 22 MR. HESS: Typically, it would be 23 what's called "conditions subsequent." 24 CHAIRMAN BAGOFF: Perfect. Okay, 25 thank you. Mayor McCartney. Page 93 1 MAYOR McCARTNEY: Thank you, Mr. 2 Chairman. I wanted to ask Mr. Hess, what other 3 questions did you have of this applicant in your 4 report that you said that he would get back on? Can 5 you elaborate on the questions you had? 6 MR. HESS: We had questions regarding 7 -- obviously, regarding the stormwater management -- 8 MEMBER OF THE PUBLIC: Can't hear. 9 MR. HESS: We had questions regarding 10 stormwater management, we also had questions 11 regarding -- regarding the sanitary sewer service to 12 the city, the water service to the site, we've asked 13 the applicant to address the -- asked them to 14 address the required outside agency approvals. 15 We've talked about that tonight, what's required for 16 the project. And we had asked for some revisions to 17 the plan, like they show -- they show the locations 18 of the electric vehicle charging stations on the 19 ground level or on the surface on the site plan 20 drawings but they're not yet shown on the 21 architecturals, so we need -- we need the plans 22 revised to provide that information. 23 We had a couple questions regarding the 24 overall number of parking space, just a lot of it is 25 minor technical details that just need to be worked

25 (Pages 94 to 97) Page 94 1 out between the design engineer and our office. 2 MAYOR McCARTNEY: Thank you. Mr. 3 Anderson, that raises another question. Chairman, 4 if I may. 5 CHAIRMAN BAGOFF: Go right ahead, 6 Mayor McCartney. 7 MAYOR McCARTNEY: On the -- I 8 understand, when the application was initially 9 submitted, there were four electric charging 10 stations and now I believe there are 15. Are they 11 scattered along the buildings or centrally located? 12 MR. ANDERSON: So I show, I believe, 13 two outside every building. There are some -- 14 obviously, the remainder of the 5 percent that's 15 required initially have to be inside the building 16 and the wiring for future ones would also be in the 17 building itself, they would not be outside, because 18 it's our feeling that people that are going to be 19 charging are going to be residents -- 20 MAYOR McCARTNEY: Right. 21 MR. ANDERSON: -- not guests, so we do 22 provide a minimal outside, but most of them will be 23 inside. 24 MAYOR McCARTNEY: At each location, at 25 each building. Page 95 1 MR. ANDERSON: At each building, yes. 2 MAYOR McCARTNEY: Thank you. Thank 3 you. 4 CHAIRMAN BAGOFF: Okay, thank you. 5 Mr. Afran. 6 COUNCILMAN RUTHERFORD: Mr. Chairman, 7 just -- 8 CHAIRMAN BAGOFF: I'm sorry, Council 9 President Rutherford. 10 COUNCILMAN RUTHERFORD: Thank you, 11 sir. I do apologize. I promise to be brief. It's 12 just one question. 13 So, you know, as we sit here and debate 14 this, all of the impact from stormwater, sanitary 15 sewer, has been discussed with regard to West 16 Orange. Is there any impact to our neighboring 17 towns either with regard to stormwater or sanitary 18 sewer? 19 MR. ANDERSON: There is no impacts for 20 any of those utilities to your neighbors. There's 21 no disturbance or drainage going towards Essex 22 Fells, there's -- Verona is uphill from the site so 23 there's no stormwater impact there, we're not 24 utilizing their sanitary sewer system or their water 25 system; it's just the water tends to flow to the Page 96 1 south, which is towards the condo association, and 2 to the two streams that discharge there and we're 3 using the West Orange water system and sewer system, 4 so there's no impact to your neighboring towns. 5 COUNCILMAN RUTHERFORD: Great. And 6 then with regard to the condominiums that are 7 downhill, we know that they have flooding now. Have 8 there been

4 so there's no impact to your neighboring towns. 5 COUNCILMAN RUTHERFORD: Great. And 6 then with regard to the condominiums that are 7 downhill, we know that they have flooding now. Have 8 there been any studies or observances of the water 9 that comes through that development under current 10 conditions? 11 MR. ANDERSON: We're obligated to 12 reduce the flow from the current conditions, so the 13 development of this project will actually improve 14 discharge that goes towards the condo association. 15 COUNCILMAN RUTHERFORD: Thank you, Mr. 16 Anderson. Thank you, Mr. Chair. 17 CHAIRMAN BAGOFF: Thank you, Council 18 President. Mr. Afran, you're up, sir. 19 MR. AFRAN: Thank you. If my voice is 20 too low, please let me know. I'm having some speech 21 problems, which is not good for a lawyer. 22 Good evening. Thank you. I'm Bruce 23 Afran, counsel for the objector, We Care New Jersey 24 Corp. I just want to apologize to two members of 25 the Council -- Planning Board. Page 97 1 MEMBER OF THE PUBLIC: We can't hear 2 you. 3 MR. AFRAN: I just want to apologize, 4 I had to leave for a moment or two while two members 5 were questioning so my apologies for walking out. 6 Mr. Anderson, good evening. 7 MR. ANDERSON: Good evening. 8 MR. AFRAN: I'll have some questions 9 for you. I'll just start in my notes -- 10 CHAIRMAN BAGOFF: Mr. Afran, a little 11 louder. 12 MR. AFRAN: Oh, I'm sorry. 13 CHAIRMAN BAGOFF: Or can you hold the 14 mic? 15 MR. AFRAN: I'll hold the mic. Thank 16 you. Is that better? 17 (Members of the public say "yes.") 18 MR. AFRAN: Thank you. I'm going to 19 go in the order of my notes. I know many members 20 had questions that moved it back and forth, so I 21 apologize if it seems a bit disjointed. 22 You mentioned that the residences will 23 be above parking; is that correct? 24 MR. ANDERSON: That's correct. 25 MR. AFRAN: Now, the parking is going

26 (Pages 98 to 101) Page 98 1 to be underground as the present conditions exist? 2 MR. ANDERSON: There is one side of 3 the building that is exposed, the foundation is 4 exposed; on the other side of the building, it will 5 be buried to just about below the finished floor 6 elevation of the first floor of the apartments. 7 MR. AFRAN: Will you be blasting into 8 stone to make the underground parking? 9 MR. ANDERSON: I would assume there 10 would be some type of rock removal associated. 11 There is rock in various locations throughout the 12 site. How it's removed, whether it's blasting or 13 hammering of the rock is not to be determined. If 14 it is blasting, it would have to be in accordance 15 with all state blasting requirements. 16 MR. AFRAN: But you don't yet know 17 whether the neighbors will expect blasting as part 18 of this project. 19 MR. ANDERSON: It's really something 20 to be determined by the contractor when he's there 21 whether he can actually hammer through -- 22 (Public outburst) 23 MR. ANDERSON: -- whether he can 24 hammer the rock out or if the nature of the rock 25 that he's dealing with has to be blasted. So it's Page 99 1 possible that he has to blast it, and if he does, he 2 would have to follow the standard requirements of 3 notifying the neighbors doing pre-blast surveys and 4 all the standard requirements. 5 MR. AFRAN: Now, have you done any 6 evaluation in the event of blasting as to the effect 7 of particulate on the association and on the natural 8 setting of the site itself? 9 MR. ANDERSON: I have not done any 10 studies on blasting. 11 MR. AFRAN: Thank you. Now, you 12 mentioned earlier that there will be 966 parking 13 spaces. There'll be some overage and you 14 identified, I believe, 102 other spaces, if I'm 15 correct. 16 MR. ANDERSON: 966 is the required 17 number of parking spaces. 1,070 is what the 18 proposed number is, and in addition to the 1,070, 19 there's the additional 102. 20 MR. AFRAN: Now, how many of these 966 21 spaces do you expect to be occupied by cars owned by 22 the people living in these buildings? 23 MR. ANDERSON: It's an RSIS standard, 24 so whether people -- they will very likely be -- you 25 know they're all reserved for the population plus Page 100 1 their guests, so -- 2 MR. AFRAN: All right, my question was 3 very specific. Of these 966 spaces, do you have an 4 understanding at present as to how

re all reserved for the population plus Page 100 1 their guests, so -- 2 MR. AFRAN: All right, my question was 3 very specific. Of these 966 spaces, do you have an 4 understanding at present as to how many are expected 5 to be used by cars owned by people to live in these 6 buildings? 7 MR. ANDERSON: I don't have an actual 8 number for you. It's more of a traffic engineering 9 number. The breakdown between residents and guests 10 is something that our traffic engineer can discuss. 11 MR. AFRAN: You've never talked about 12 it with your traffic engineer? 13 MR. ANDERSON: No, I have not talked 14 to him about it. It's not a question that I've 15 heard before. We're obligated to provide 966, we 16 provide 1,070 and plus an additional 102, we've met 17 our parking obligation. 18 MR. AFRAN: Why are you closing Kuzik 19 Road except for emergencies? 20 MR. ANDERSON: Because it was 21 requested as part of the settlement agreement. 22 MR. AFRAN: And that settlement 23 agreement was between the town, the association, I 24 believe, and who else? And the developer. 25 MR. ANDERSON: And the developer, Page 101 1 correct. 2 MR. AFRAN: Now, that settlement 3 agreement was not part of any site plan application 4 before this body, was it? 5 MR. ANDERSON: That's correct. 6 MR. AFRAN: Now, why is the settlement 7 agreement seeking to close Kuzik Road? 8 MR. PLOCKER: Board Chairman, may I 9 address that? I believe it is a legal issue. 10 CHAIRMAN BAGOFF: Mr. Plocker, yes, go 11 right ahead, sir. 12 MR. PLOCKER: All right. 13 CHAIRMAN BAGOFF: Mr. Afran, one 14 minute, please. 15 MR. PLOCKER: Just so it's clear, and 16 I appreciate Mr. Afran asking, the settlement 17 agreement itself was made a part and was submitted 18 in connection with this application for site plan 19 approval. I believe your question dealt with did 20 the -- was there any kind of proceeding before the 21 Planning Board in connection with the negotiation 22 and execution of the settlement agreement. Was that 23 your question? 24 MR. AFRAN: I -- it's a very lawyer- 25 like question, I compliment my colleague. That

27 (Pages 102 to 105) Page 102 1 wasn't really my question. My question is simply: 2 Why is Kuzik Road being closed, what's the reason? 3 MR. PLOCKER: Okay, that is an easy 4 answer and I'll address everybody here. The 5 settlement agreement is between the Township of West 6 Orange, the applicant and the West Essex -- the 7 Highlands Condominium Association. Attached to the 8 settlement agreement were many terms and conditions 9 which were negotiated specifically between the town, 10 my client and the condominium association. One of 11 those terms was the association expressed a desire 12 not to have traffic for the proposed development 13 traverse Kuzik Drive; therefore, as part of the 14 settlement agreement, we agreed to submit a site 15 plan application which had Kuzik Drive open but that 16 we would seek a de minimus exception or waiver or 17 whatever would be required to close off Kuzik to 18 emergency access and only allow emergency access. 19 MR. AFRAN: I appreciate counsel's 20 explanation. 21 Now, is it fair to say -- and if 22 counsel wishes to answer, that's certainly fine. I 23 don't mean that sarcastically. Is it fair to say 24 that this settlement agreement did not get put up 25 for public discussion before this Board so that Page 103 1 these good people could comment on the question of 2 so little actual access for all of these vehicles? 3 MR. PLOCKER: I can address that. 4 Obviously, there was a pending Mount Laurel 5 declaratory judgment litigation that was filed by 6 the Township of West Orange which sought compliance 7 with their Third Round affordable housing 8 obligation. The Planning Board was not a party to 9 that litigation and was not required -- 10 CHAIRMAN BAGOFF: Excuse me. Speak up 11 a little bit more. 12 MR. PLOCKER: Oh, I'm sorry. 13 CHAIRMAN BAGOFF: That's okay. 14 MR. PLOCKER: The litigation that was 15 filed was filed by the Township of West Orange, it 16 is what we call a declaratory judgment action. 17 Towns who are looking to voluntarily comply with 18 their Third Round Mount Laurel affordable housing 19 obligation were given the option to file that type 20 of lawsuit by July of 2015 pursuant to a Supreme 21 Court ruling. Many towns filed them, West Orange 22 was one of them. The Planning Board was not a party 23 to that case. My client, as a developer owning 24 property in town, successfully intervened in that 25

ing. Many towns filed them, West Orange 22 was one of them. The Planning Board was not a party 23 to that case. My client, as a developer owning 24 property in town, successfully intervened in that 25 litigation along with the Fair Share Housing Center, Page 104 1 who is the public -- the organization nonprofit who 2 kind of serves as the public advocate for the 3 protected class of those people who are in need of 4 the housing units. 5 The negotiations and the mediation 6 sessions were conducted with the association. My 7 client, the township, Fair Share Housing Center, in 8 connection with the court-appointed Special Master, 9 the settlement agreement was borne out of those 10 negotiations. The Planning Board was not a party to 11 that case. There was no public process before the 12 Planning Board in connection with the settlement 13 agreement and none was required; however, when the 14 zoning ordinance was introduced by the township 15 counsel pursuant to their obligation under the 16 settlement agreement, which was required by a court 17 order, that went through the normal process, the 18 ordinance was introduced, and eventually, there was 19 a discussion held on second reading before the 20 Council adopted that ordinance. In between the 21 reading -- the first reading and the second reading, 22 it was referred to the Planning Board, which is 23 required by law. 24 MR. AFRAN: It hasn't been before this 25 Board on a site plan application, I think we can Page 105 1 agree on that, correct? 2 MR. PLOCKER: I'm sorry, I didn't hear 3 the question. 4 MR. AFRAN: It has not come before -- 5 am I on? 6 MR. FAGAN: Yes. 7 MEMBER OF THE PUBLIC: Yes. 8 MR. AFRAN: It has not come before 9 this Board in a site plan application. That's 10 correct, right? 11 MR. PLOCKER: What has not come before 12 this Board? I just want to make sure the record is 13 clear. 14 MR. AFRAN: The element of the 15 settlement agreement recommending the closing of 16 Kuzik. 17 MR. PLOCKER: That was not discussed 18 by this Board before the settlement agreement was 19 signed and approved by the Board. 20 MR. AFRAN: I appreciate that. Thank 21 you. Now, you would agree that this Board is not 22 bound to that provision in the settlement agreement; 23 is that a fair concession I can ask of the 24 applicant? 25 MR. PLOCKER: I'm not sure what the

28 (Pages 106 to 109) Page 106 1 question is because, obviously, we're getting into 2 some legal conclusions here. 3 MS. McGOVERN: He's talking about 4 Kuzik Road. 5 MR. PLOCKER: What about Kuzik? 6 MR. AFRAN: This Board is not bound to 7 that provision in the settlement closing Kuzik, is 8 it? 9 MR. PLOCKER: No. The way it -- 10 MR. AFRAN: That's all I want to know. 11 MR. PLOCKER: Yeah, and I just want to 12 clarify. I think Mr. Anderson did explain it, I 13 believe the Chairman even referenced it in his 14 opening comments. The site plan that is before the 15 Board now as filed has Kuzik open, along with Warner 16 Road as a means to access the site. The applicant 17 has asked for the granting of what, under the RSIS 18 standards, the Residential Site Improvement 19 Standards, a de minimus exception that would permit 20 the closure of Kuzik to regular traffic and allow it 21 to serve as an emergency access only. 22 MR. AFRAN: I understand. I 23 appreciate that, thank you. 24 Now, if you would turn, Mr. Anderson, 25 to the top of -- I believe -- is that north, the top Page 107 1 of the map? Is that intended to be north? I can't 2 tell from here. 3 MR. ANDERSON: It would be north at 4 the top of the sheet, correct. 5 MR. AFRAN: Thank you. So if you turn 6 to the right-hand corner of the northern part of the 7 map, Warner Road goes right up to Howell; is that 8 correct? 9 MR. ANDERSON: Right up a hollow? 10 MR. AFRAN: No, no, no. In other 11 words, you mentioned there's a second exit that's 12 gated for emergency use. What street is that? 13 MR. ANDERSON: There's a secondary 14 exit to Howell. 15 MR. AFRAN: To Howell. 16 MR. ANDERSON: Yes. 17 MR. AFRAN: Now, that will also be 18 closed except for emergencies, correct? 19 MR. ANDERSON: That's correct. 20 MR. AFRAN: What study or survey or 21 research has the applicant done with respect to the 22 utility of the roads past the gate in terms of 23 accepting emergency traffic and emergency trucks and 24 vehicles? 25 MR. ANDERSON: There's been no Page 108 1 additional studies, this is part of the concept 2 plan, it is part of the settlement agreement, that 3 we would have another access point there for use in 4 emergencies only. 5 MR. AFRAN: My question was. What 6 studies have been done with respect to the carrying 7 capacity of the roads past the gate for purposes of 8 accepting and facilitating the movement of