July 31, 2024 Planning Board Special Meeting Transcript - WEHI

it's actually just 7 the opposite. So we pulled -- partially pulled the 8 permit that we had, we pulled the FHA individual 9 permit, but we left active the wetlands permit and 10 the stormwater review associated with the project, 11 and that does not have a calendar time limit, so now 12 that we've made the re-submittal of the individual 13 permit, it goes back to the standard of what we had 14 when we originally filed the application. 15 MR. SHARRET: So everything is under 16 -- everything is grandfathered; is that what you're 17 saying? 18 MR. ANDERSON: It's grandfathered to 19 the old stormwater standard, correct. 20 MR. SHARRET: Okay. In terms of the 21 steep slope and the stability of that slope, are you 22 qualified as an expert to testify to this Planning 23 Board as to the stability of that slope and whether 24 there's any risk of that slope failing? 25 MR. ANDERSON: Yeah, I've seen all the Page 21 1 geotechnical reports and I know what the slope is 2 and where it is and so forth, so yes. 3 MR. SHARRET: I didn't ask if you've 4 seen the geotechnical report, I'm asking if you, 5 yourself, have either an educational or other 6 professional qualification that allows you to 7 testify as to the stability of that slope. 8 MR. ANDERSON: Yes. 9 MR. SHARRET: And what is that 10 qualification? Because I don't believe you were 11 voir dired on that issue. 12 MR. ANDERSON: Could you say the last 13 part again, please? 14 MR. SHARRET: What is your 15 qualification regarding steep slopes, because I 16 don't believe that when you were voir dired, you 17 were voir dired on that particular issue. 18 MR. ANDERSON: Well, there's not a 19 special certification. I'm a professional civil 20 engineer, licensed since 1988, I've been practicing 21 site engineering on flat sites, steep sites, working 22 with soil conditions and with every project since 23 1988, so I have done this a few times. 24 MR. SHARRET: Is there anybody else 25 that will be testifying as to the stability of that

7 (Pages 22 to 25) Page 22 1 slope on behalf of the applicant? 2 MR. ANDERSON: Not that I'm aware of. 3 MR. SHARRET: Okay. Thank you. 4 That's it. 5 CHAIRMAN BAGOFF: Thank you. Ma'am 6 and then sir. Come up, state your name and spell 7 your last name, please. 8 MS. BUTENSKY: Deborah Butensky, 9 B-U-T-E-N-S-K-Y. I live on Rappleye Court, West 10 Orange. 11 So I have a question regarding -- 12 MEMBER OF THE PUBLIC: Can't hear. 13 CHAIRMAN BAGOFF: Ma'am, could you 14 hold the mic up a little? 15 MS. BUTENSKY: Question regarding the 16 deer fencing. And similar to Mr. Sharret, what is 17 your credentials in terms of expertise with the deer 18 fencing? 19 MR. ANDERSON: Well, deer fence is 20 just like any other fence, it's just taller and it 21 has openings in it that allows, you know, some 22 animals to go through and keep larger ones out; it's 23 really not a complicated topic. In terms of getting 24 animals out of it and so forth, that is not my 25 expertise, but installing -- Page 23 1 MS. BUTENSKY: That's not where I'm 2 going. 3 MR. ANDERSON: -- the deer fence is 4 fine. 5 MS. BUTENSKY: I'm going with the 6 environmental impact of modifying a forest by 7 closing out approximately 30 acres on the west, 30 8 acres on the east of this 120 acres. On what basis 9 is the deer fence even necessary? I know it gives 10 the ability for the saplings to grow, but is that 11 your area of expertise? 12 MR. ANDERSON: No, that -- 13 MS. BUTENSKY: Are you an 14 environmental -- 15 MR. ANDERSON: All right, so -- 16 MS. BUTENSKY: -- or ecological 17 expert? You did say yesterday -- 18 MR. PLOCKER: He's trying to answer 19 the question. 20 CHAIRMAN BAGOFF: Ma'am, ma'am, this 21 was part -- the deer fence was part of the 22 settlement agreement. There was an environmentalist 23 who did do their expert opinion and the expert 24 opinion is on the record. 25 MS. BUTENSKY: In 2020. Page 24 1 CHAIRMAN BAGOFF: That's correct. 2 MS. BUTENSKY: And perhaps things have 3 changed, because it should probably be revisited -- 4 CHAIRMAN BAGOFF: Ma'am -- 5 MS. BUTENSKY: -- by an environmental 6 expert. 7 CHAIRMAN BAGOFF: Ma'am, last evening, 8 the Board engaged an environmentalist who will be an 9 expert of the Board and this will be one of the 10 questions that will be revisited. So yes, it's 11 going to be revisited. His expertise is not in deer 12 fencing and it is also part of the

l be an 9 expert of the Board and this will be one of the 10 questions that will be revisited. So yes, it's 11 going to be revisited. His expertise is not in deer 12 fencing and it is also part of the settlement 13 agreement, so it is agreed by all the parties that 14 it will be done. We will have our environmental 15 expert look at it to see how it -- if anything has 16 changed. So you will come back at another meeting 17 and hear more testimony. 18 MS. BUTENSKY: Okay. And it was also 19 stated by Mr. Anderson that the forest was deemed 20 unhealthy. 21 CHAIRMAN BAGOFF: There -- 22 MS. BUTENSKY: Is there any 23 substantiation? 24 CHAIRMAN BAGOFF: Yes. 25 MS. BUTENSKY: Is that opinion or is Page 25 1 that fact? 2 CHAIRMAN BAGOFF: That's fact, based 3 on the original documentation supplied to the three 4 parties and the Court that created the final 5 settlement agreement. 6 MS. BUTENSKY: Correct. And what date 7 was that? 8 CHAIRMAN BAGOFF: 2020. 9 MS. BUTENSKY: That's right. And what 10 date are we in now? 11 CHAIRMAN BAGOFF: If we're checking 12 dates, I have a calendar just like you do, so let me 13 just say -- 14 MS. BUTENSKY: My point is, just like 15 the Hudson River had been -- 16 CHAIRMAN BAGOFF: The Board -- 17 MS. BUTENSKY: -- polluted at one 18 time -- 19 CHAIRMAN BAGOFF: Ma'am -- 20 MS. BUTENSKY: -- things change -- 21 CHAIRMAN BAGOFF: Ma'am -- 22 MS. BUTENSKY: -- environmentally. 23 CHAIRMAN BAGOFF: Ma'am, the Board 24 understands and we've hired an environmentalist last 25 evening that will take this up and we will get an

8 (Pages 26 to 29) Page 26 1 opinion from that person and their -- their company. 2 MS. BUTENSKY: The question is: Just 3 because it was in the settlement that was done in 4 March of 2020 -- 5 CHAIRMAN BAGOFF: Ma'am, I'm going to 6 try this one more time. We will get a new 7 evaluation and see how it compares with the 8 information provided in the 2020 settlement 9 agreement. That's the goal of the Board, to hear 10 information based on expertise today and then and 11 compare them and see how anything has changed. 12 MS. BUTENSKY: Thank you. 13 CHAIRMAN BAGOFF: You're welcome. 14 MR. PLOCKER: Chairman Bagoff, may I, 15 very briefly? 16 CHAIRMAN BAGOFF: Yes, Mr. Plocker. 17 MR. PLOCKER: Just in relation to that 18 point, and I appreciate the Chairman's recognizing 19 the settlement agreement and I understand the member 20 of the public's concern about the passage of time 21 and we look forward to hearing what the 22 environmental expert has to say, but the fact of the 23 matter is, what hasn't changed in that settlement 24 agreement is that Court approval and the 25 implications and consequences that flow from that Page 27 1 settlement agreement and Court approval and, 2 obviously, we would reserve all our legal rights in 3 that regard. I just wanted to make that clear for 4 the record. 5 CHAIRMAN BAGOFF: Absolutely. 6 MR. PLOCKER: Thank you. 7 CHAIRMAN BAGOFF: And the Board 8 understands. Thank you. 9 MR. AFRAN: Mr. Chairman, as the 10 objectors' counsel -- 11 CHAIRMAN BAGOFF: Mr. Afran. 12 MR. AFRAN: -- I'd like to -- 13 CHAIRMAN BAGOFF: Yes. 14 MR. AFRAN: -- respond to that point 15 legally. I made this point yesterday and we still 16 maintain this point. That settlement agreement is 17 not binding on this Board and the individuals here, 18 including objectors, were not parties to it, and the 19 law is very clear that nothing is binding by way of 20 a settlement on persons who are not parties to the 21 settlement, and the settlement agreement is not 22 binding on this Board and this Board cannot defer to 23 it. So I just want to establish our position on 24 this point since it's now been raised in detail. 25 CHAIRMAN BAGOFF: The settlement -- Page 28 1 the settlement agreement said the Board was not 2 participant in the settlement agreement; however, 3 having said that, there is a zone plan that was 4 adopted by the Board and placed into -- and adopted 5

ettlement agreement said the Board was not 2 participant in the settlement agreement; however, 3 having said that, there is a zone plan that was 4 adopted by the Board and placed into -- and adopted 5 by the Town Council and placed into the Master Plan. 6 So the Board is responsible overseeing the IH-1 zone 7 plan. So we are responsible based in that fashion 8 and we are responsible -- as the settlement 9 agreement says, the township and Board will work 10 together with the applicant to move forward -- and 11 the people in the township -- to hear the 12 application, and we are doing that based on the Open 13 Public Meetings Act. 14 MR. AFRAN: No dispute as to that last 15 point, we are certainly moving forward and we 16 appreciate the time involved. I'm simply pointing 17 out that we take the position, I just want to 18 preserve it for the record, that that settlement 19 agreement in itself is not binding, in our view, on 20 the Board or on other parties. To the extent it's 21 part of a zone plan, that may be a different 22 question, but there's been constant discussion that 23 "the settlement says this," "the settlement says 24 that." Our position legally is that that is not 25 binding. Page 29 1 Now, we also have the position, and I 2 should preserve it at this point, there was a 2004 3 set of settlement agreements between the developer 4 and various private parties, including my client, We 5 Care NJ Corp. That agreement contained 6 representations by the developer that limited the 7 use on the property to single-family homes of a 8 certain number. 9 MR. PLOCKER: I'm going to object. 10 That's an extreme mischaracterization of that 11 agreement. 12 MR. AFRAN: Well, that's not an 13 objection -- 14 MR. PLOCKER: But -- 15 MR. AFRAN: -- that's a disagreement. 16 MR. PLOCKER: And this isn't the forum 17 for legal disagreements regarding settlement 18 agreements. 19 MR. AFRAN: Excuse me. Let me -- 20 CHAIRMAN BAGOFF: Let me stop you a 21 second. The Board is not participant nor is that 22 settlement agreement before the Board, so at this 23 moment, we can't hear it, we can't evaluate it, my 24 attorney hasn't listened to it, so we're here to 25 hear the application. I understand you're making a

9 (Pages 30 to 33) Page 30 1 record, you said it, we don't want to hear anything 2 about it because it is not part of this application. 3 MR. AFRAN: Fully understood. I'm not 4 even asking you to evaluate it, but I don't want to 5 be in a position later of someone saying "We never 6 said there was an earlier settlement; therefore, the 7 2020 is the only one that's cognizable in this whole 8 set of cases. I just want to be clear that we 9 preserve the position that that is binding and it's 10 a legal matter for the courts, but I don't want to 11 be seen as neglectful in not stating that position 12 here. 13 CHAIRMAN BAGOFF: I appreciate it, I 14 appreciate both sides. 15 Ladies and gentlemen of the public, 16 what's happening here is two attorneys are 17 expressing their views of settlement agreements that 18 the Board is not participant in on either side. The 19 goal of the Board is to hear the information on this 20 application, that's it. All information flows to 21 us, we did not participate in the settlement 22 agreement; however, we understand there are many out 23 there. The application before us is for a plan, 24 we're going to evaluate the plan with the experts 25 from the applicant and from our experts and come to Page 31 1 a conclusion, including your public comments going 2 forward. Mr. Plocker. 3 MR. PLOCKER: Yeah, just very briefly. 4 Irrespective of who's actually a party to the 5 settlement agreement, because the settlement 6 agreement addresses the settlement amount or a 7 litigation, and the settlement agreement and 8 ordinance propose an inclusionary development. 9 There are certain state regulations which do apply 10 to this Board, and I'm not going to go into detail 11 now, you have very capable counsel, but those are 12 the types of regulations that say the municipal 13 development application review process is pretty 14 limited; you need to look to see if the proposed 15 application complies with the Court-approved zoning 16 and, in addition, imposes an obligation to cooperate 17 with the applicant, such as granting reasonable 18 variances. So those regulations are very real and 19 do exist, regardless of whether the Land Use Board 20 is a party to the settlement agreement. 21 CHAIRMAN BAGOFF: The Court said, and 22 I will just give my -- and counsel can weigh in on 23 this, the Court said that the township adopted a 24 zone plan. The

a party to the settlement agreement. 21 CHAIRMAN BAGOFF: The Court said, and 22 I will just give my -- and counsel can weigh in on 23 this, the Court said that the township adopted a 24 zone plan. The Court didn't adopt a zone plan, it 25 agreed that all parties will have a zone plan. We Page 32 1 have reviewed it, the township Council has adopted 2 it, it is part of our Master Plan, so we are looking 3 at this application as though it is part of our 4 Master Plan, which it shall be, and that's the way 5 we look at it going forward, for the public. 6 Mr. Afran, you want to say something. 7 MR. AFRAN: Yes, thank you. I just 8 want to note our view that Mount Laurel issues, 9 whatever may have been decided in a Mount Laurel 10 fairness hearing, does not extend to this 11 application, it does not govern this Board. The 12 Mount Laurel decision in a court is extremely 13 limited to solely questions of fairness in 14 affordable housing. It does not presume a project 15 will be built, it only says if it's built, if it's 16 approved, if it meets the law, then these hundred 17 units could count towards the fair share goal. It 18 does not mean it must be built, it does not direct 19 this Board, and I would not like to have any 20 misunderstanding, because reference to Mount Laurel 21 and regulations has just been made. We're now 22 getting off the point, but I can't be silent each 23 time the applicant's counsel suggests there's this 24 outside set of regulations that govern it. 25 CHAIRMAN BAGOFF: I would say that the Page 33 1 Board feels no pressure. 2 MR. AFRAN: Thank you. 3 CHAIRMAN BAGOFF: Thank you. 4 COUNCILMAN RUTHERFORD: Mr. Chairman? 5 CHAIRMAN BAGOFF: Council President. 6 One second, sir. Yes, sir. 7 COUNCILMAN RUTHERFORD: So now I'm a 8 little confused. I've heard both sides and I 9 probably won't get an official answer tonight but I 10 would like our Board attorney, Ms. McGovern, to 11 weigh in -- it doesn't have to be in realtime right 12 now -- about whether or not we are, as the Planning 13 Board, bound by the settlement agreement, and 14 further, there's some reference to an ordinance 15 being included into the Master Plan. Is that the 16 one from 2020, is that what we're... 17 CHAIRMAN BAGOFF: Yes, sir, it's IH-1, 18 inclusionary zone. 19 COUNCILMAN RUTHERFORD: So I'll need 20 the Board attorney to also weigh in as to propriety 21 of relying on

020, is that what we're... 17 CHAIRMAN BAGOFF: Yes, sir, it's IH-1, 18 inclusionary zone. 19 COUNCILMAN RUTHERFORD: So I'll need 20 the Board attorney to also weigh in as to propriety 21 of relying on that given the questions about the 22 timing of the filing of that particular ordinance. 23 Unless I'm speaking about something different, it's 24 my understanding that there was an ordinance 25 properly passed by the Town Council in 2020 but was

10 (Pages 34 to 37) Page 34 1 not properly filed with the county and there's some 2 -- some information in our inboxes as Council 3 members regarding that. So if we're going to rely 4 on it, I need to understand from the attorney what 5 we are relying on, what is proper, and what we're 6 not relying on. 7 MS. McGOVERN: So part of the 8 requirements when you pass an ordinance is that an 9 ordinance involving land use be filed with the 10 county and that part of it was not completed at the 11 time that the ordinance was passed, but that defect 12 was cured and the ordinance was filed on July 3 of 13 this year. It doesn't affect the actionable status 14 of the ordinance. It took effect as soon as it was 15 filed and the applicant's attorney re-noticed this 16 hearing, which is why, when we were originally 17 scheduled in July, it was moved to these dates, to 18 allow everybody to receive notice that this 19 ordinance is perfected and we are ready to go. 20 The settlement agreement refers 21 directly to the intent of the parties and there is 22 language in the settlement agreement regarding the 23 trees, because I think this is how this started, 24 about the forest and about the fact that it was 25 unhealthy. These are all almost like legislative Page 35 1 intent as to why the town passed the ordinance that 2 it did, so you are all here to enforce this 3 ordinance and you have this understanding, based 4 upon the settlement agreement, as to why this was 5 put together, and one of the very important reasons 6 why the ordinance was passed is because you have an 7 affordable housing obligation, and there was 8 litigation regarding that, and this settlement took 9 care of or settled the action by the owner who owned 10 the property and wanted to develop it; as I 11 understand, wanted to develop it with even more 12 units, around the town, who had an obligation with 13 respect to affordable housing and had, I think, even 14 more units than what was originally agreed to, and 15 working with the Fair Share Housing and the town and 16 the owner of the property, the settlement was 17 achieved. That's put together and what was passed 18 after -- or in conjunction with the settlement was 19 the ordinance. What you all here, as Planning Board 20 members, are listening to is whether they meet the 21 status under that ordinance and that's what we're 22 here about. 23 CHAIRMAN

tlement was 19 the ordinance. What you all here, as Planning Board 20 members, are listening to is whether they meet the 21 status under that ordinance and that's what we're 22 here about. 23 CHAIRMAN BAGOFF: Thank you. Yes, 24 sir. 25 MR. KNIGHTS: Yes, Orin Knights, Page 36 1 K-N-I-G-H-T-S. 2 CHAIRMAN BAGOFF: Yes, sir. 3 MR. KNIGHTS: I have a question I'd 4 like to revisit and it's imperative both for the 5 contractor and the township, and it's imperative 6 because I think this is an issue and a subject that 7 we must take seriously, and that's concerning the 8 bedrock of the area that we're talking about. I 9 know the contractor said "Oh, we do this all the 10 time and it's no big deal," but we're talking about 11 an area that's on a slope and on a hill, and if I 12 remember correctly, in 2021, we had a disaster here 13 in Elizabeth. So the question that I have to ask 14 you, when it comes to blasting in that area, has 15 there been a study regarding the bedrock of that 16 area and is DEP involved? Because for the sake of 17 ill gotten game, you just don't want to rush through 18 this and make it something that's trivial. So has 19 there been a study concerning the bedrock of this 20 area? Because that's on a high slope. You talk 21 about these buildings and I'm quite sure you have 22 Lot 4, I believe it is, that's close to the corner. 23 And I haven't gotten any specific answers to how 24 it's going to be done, how it's going to be built, 25 it just seems to be knee-jerk reactions or answers. Page 37 1 So that's my question. And bedrock, can somebody 2 explain to me what the bedrock is and has there been 3 a study of that area concerning the bedrock? And 4 what the bedrock really is is when you start to 5 blast, it's not only going to affect that area up 6 there but it's going to affect downhill. 7 MEMBER OF THE PUBLIC: And the houses. 8 MR. KNIGHTS: And houses. So that's 9 my question. 10 (Applause by members of the public) 11 CHAIRMAN BAGOFF: Thank you. Thank 12 you, come right up. 13 MEMBER OF THE PUBLIC: No answer? 14 (Public outburst) 15 CHAIRMAN BAGOFF: I'm sorry, Mr. 16 Anderson, can you answer? 17 MR. ANDERSON: I don't know if there 18 is a question there, but I do know that we were just 19 discussing -- 20 MS. BENYO: The question was -- 21 (Public outburst) 22 CHAIRMAN BAGOFF: Woah, woah, woah. 23 MR. ANDERSON: Let me finish my 24 sentence,