July 31, 2024 Planning Board Special Meeting Transcript - WEHI

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