August 14, 2024 Planning Board Special Meeting Transcript - WEHI

35 (Pages 134 to 137)35 (Pages 134 to 137) Page 134 1 MR. APPEL: -- but many of the items 2 in here are very similar to -- 3 MR. DOODNAUTH: Similar to not getting 4 you there. 5 MR. APPEL: We're not -- we're not 6 filling out and registering the project, but we are 7 going to be needing to submit this information to 8 the town so that it can be evaluated and -- to show 9 that we are going to meet or exceed the ordinance. 10 MR. DOODNAUTH: Okay, so my question 11 is, there's a lot of people here that have been 12 asking about environmental impact on the land, the 13 air around. Wouldn't it behoove the contractor to 14 go for the gold standard of protecting the area and 15 environment? 16 MR. APPEL: That -- that -- while many 17 of the features in the ordinance that are connected 18 to LEED provisions, we are not pursuing the 19 registration. 20 MR. DOODNAUTH: Is it purely financial 21 or just what you feel is -- 22 CHAIRMAN BAGOFF: I'm sorry, sir, 23 that's beyond the scope of the architect. 24 MR. PLOCKER: And I'm just going to 25 clarify for the record -- Page 136 1 agreement itself is not binding on the Board. Only 2 to the extent that the ordinance incorporates and 3 imports parts of the settlement is it binding on the 4 Board, and we need to get beyond this point of 5 always saying the settlement binds the Board. It 6 does not. What binds the Board is solely and 7 exclusively those elements of the settlement that 8 are incorporated into the ordinance. Now, I believe 9 Mr. Plocker may be right, the design elements may be 10 incorporated, but my point is it's not the 11 settlement that binds us, it's that part of the 12 settlement that's incorporated into the ordinance. 13 It's a very important distinction we have to bear in 14 mind. 15 CHAIRMAN BAGOFF: Mr. Plocker. 16 MR. PLOCKER: And I appreciate Mr. 17 Afran's comment so I'm going to read Section 25-19A, 18 it's the first provision of the IH-1 zoning 19 ordinance. It says. "Purpose. The purpose of the 20 IH-1 district is to provide for inclusionary 21 development that contributes to the region's fair 22 share of affordable housing in accordance with a 23 court settlement agreement which outlines provisions 24 per se," period. 25 MR. AFRAN: Well, it also goes further Page 135 1 CHAIRMAN BAGOFF: Mr. Plocker. 2 MR. PLOCKER: -- that Mr. Appel 3 slightly misspoke. The design terms and conditions 4 which are

24 per se," period. 25 MR. AFRAN: Well, it also goes further Page 135 1 CHAIRMAN BAGOFF: Mr. Plocker. 2 MR. PLOCKER: -- that Mr. Appel 3 slightly misspoke. The design terms and conditions 4 which are green related are not contained in the 5 ordinance, but they are contained in Exhibit C to 6 the settlement agreement, which was made part of the 7 application materials. It's entitled "Design Terms 8 and Conditions" and it is a one, two, three, four, 9 almost five-full-page single-spaced document and the 10 settlement agreement does require my client to abide 11 by those items as part of this. Even though the 12 Planning Board is not part of the settlement 13 agreement, we recognize fully that this development 14 must adhere to Exhibit C, these design terms and 15 conditions. 16 CHAIRMAN BAGOFF: Thank you, Mr. 17 Plocker. Mr. Afran. 18 MR. AFRAN: Yes, thank you. For the 19 record, Bruce Afran again. I just want to note that 20 our position is very simply the binding nature of 21 anything in the settlement agreement depends on its 22 incorporation into the ordinance. To the extent the 23 ordinance incorporates the design elements and 24 others of the settlement, that becomes binding on 25 the Board. I want to clarify, the settlement Page 137 1 and the settlement agreement -- I'm going to leave 2 it as I said it, but our position is it's the 3 ordinance that binds, not the agreement per se. 4 Thank you. 5 CHAIRMAN BAGOFF: On the record, 6 perfect. Thank you, sir. 7 MR. DOODNAUTH: Just one more 8 question. So I know that you said the LEED is, you 9 know, like you said, the gold star. Did you think 10 about going for the carbon neutral green building 11 just to show good faith and say "Hey, we're putting 12 this type of product out into the -- into the 13 environment"? 14 MR. APPEL: The provisions that were 15 included and referenced by Mr. Plocker was what we 16 were designing for. 17 MR. DOODNAUTH: So although you said 18 exceeds, it's fair to say you pretty much did the 19 bare minimum. 20 MR. APPEL: Well, it's -- it exceeds 21 code, so if there weren't -- if these provisions 22 weren't made available, we would be doing less to 23 meet code. This set a higher bar significantly 24 higher than most of the other projects we're 25 designing in West Orange as well.

36 (Pages 138 to 141)36 (Pages 138 to 141) Page 138 1 MR. DOODNAUTH: Then I would just say 2 throwing the catch phrase and the buzz word "green" 3 around should have accreditation to it. That's it. 4 Thank you. 5 CHAIRMAN BAGOFF: Thank you. Mr. 6 Afran. 7 MR. AFRAN: Yeah, my client just asked 8 me to clarify a point based on the colloquy we just 9 had. 10 We understand that the ordinance as it 11 stands now is what governs the Board, of course. We 12 have legal challenges to that ordinance that are for 13 another forum. And as also mentioned at the last 14 meeting, we believe a 2004 settlement precludes the 15 developer from doing this anyway. So when I address 16 the zoning ordinance governs, to the extent it's 17 enforced, that's our position, but -- in other 18 words, our position is that you need to adhere to 19 the zoning ordinance in force now. Our position is, 20 legally, it may be defective and illegal, but that's 21 for another forum. I just want to reserve that 22 position. I don't want to seem like I'm conceding 23 those points by accident. 24 CHAIRMAN BAGOFF: No problem. 25 MR. AFRAN: Thank you very much. Page 140 1 we'd like you to ask questions of the architect 2 based on his testimony, please. 3 MR. FRESCHI: I understand, it just 4 seems like that's -- when is that time to ask -- 5 CHAIRMAN BAGOFF: As soon as everybody 6 has testified, all testimony's in, and Mr. Afran may 7 or may not present his experts; at the end of 8 everything, we will ask for public comment. And it 9 will be posted on the township website. 10 MR. FRESCHI: Thank you. 11 CHAIRMAN BAGOFF: Thank you, sir. 12 Welcome. State your name and spell 13 your last name for the record, please. 14 MR. FRESCHI: Good evening. My name's 15 Jonathan Redwine, R-E-D-W-I-N-E. I'm from West 16 Orange. I just have a couple of comments for you, 17 the architect. 18 Are you aware of the applications that 19 your client has made to the Department of 20 Environmental Protection? 21 MR. APPEL: On a peripheral basis. 22 CHAIRMAN BAGOFF: I'm sorry, could you 23 -- could both parties speak up a little bit? The 24 people in the back can't hear. 25 MR. REDWINE: Sorry, do you want me to Page 139 1 CHAIRMAN BAGOFF: Thank you, sir. 2 Come on up sir, spell your name for the 3 record, please. 4 MR. FRESCHI: Yeah, David Freschi, 5 F-R-E-S-C-H-I, Verona. 6 My question is directed to the Board 7 and any Council

AGOFF: Thank you, sir. 2 Come on up sir, spell your name for the 3 record, please. 4 MR. FRESCHI: Yeah, David Freschi, 5 F-R-E-S-C-H-I, Verona. 6 My question is directed to the Board 7 and any Council members that are here. While I 8 understand West Orange needs to address its 9 affordable housing obligations, this project is so 10 flawed for so many different reasons, I'm perplexed 11 as to how we even got this far. So how does the 12 Council and the Board see it in their -- in the best 13 interest of anyone other than the developer? It's 14 not even in the best interest -- 15 CHAIRMAN BAGOFF: Sir, can I -- I 16 don't mean to interrupt, but this is public comment. 17 At this time, it's time -- 18 MR. FRESCHI: Right. 19 CHAIRMAN BAGOFF: What you're saying 20 is public comment. 21 MR. KLEIN: Oh. 22 CHAIRMAN BAGOFF: At this time, I'd 23 ask you to ask a question of the architect. I 24 understand what you're saying and there's a time in 25 the process for that, absolutely, but at this time, Page 141 1 repeat the question? 2 CHAIRMAN BAGOFF: (Chairman nods.) 3 MR. REDWINE: Okay. Are you aware of 4 your client's applications to the Department of 5 Environmental Protection? 6 MR. APPEL: Peripherally. 7 MR. REDWINE: And have you dealt with 8 designs and plans that you've made before that have 9 had pending applications before the Department of 10 Environmental Protection? 11 MR. APPEL: There's a number of 12 projects that had requirements for either submission 13 or approvals at the DEP. 14 MR. REDWINE: Okay, so what's the 15 DEP's roles to your client's application to that 16 body? Is it possible that your plans that you've 17 created may need to change? 18 MR. APPEL: I could not -- I could not 19 have imagined that, but it's a little outside of -- 20 of my expertise to know what items would be 21 triggered from DEP. You know, am I aware of 22 anything? No. 23 MR. REDWINE: Have you ever needed to 24 change architectural plans that you've made on 25 behalf of a client as a result of any sort of

37 (Pages 142 to 145)37 (Pages 142 to 145) Page 142 1 regulatory proceeding? 2 MR. APPEL: Not -- not one that has 3 gone through this, you know, amount of, you know, of 4 design and interaction with the DEP. 5 MR. REDWINE: Has the DEP made a final 6 ruling on any of your client's applications? 7 MR. APPEL: I'm not aware of the final 8 status. 9 MR. REDWINE: Okay, is that -- once 10 the DEP makes a final ruling, is that something you 11 will need to re-review? 12 MR. PLOCKER: Mr. Appel did not 13 testify as to any environment -- 14 CHAIRMAN BAGOFF: All he has to do is 15 say he didn't testify to it, that's the answer. 16 MR. APPEL: It's not part of my 17 testimony, the DEP's work. 18 MR. REDWINE: Okay. If your 19 architectural plans need to change as a result of 20 any sort of regulatory -- any sort of review of our 21 town's ordinance, any sort of regulatory proceeding 22 before the DEP or anything else, are you prepared to 23 come back and testify and spend several days with 24 all the good people in this room again? 25 MR. PLOCKER: Once again, I'm going to Page 144 1 Chairman, or the attorney. 2 CHAIRMAN BAGOFF: The question is 3 actually now for the applicant's expert. 4 MS. BENNETT: Just point of -- I'm 5 just trying to find -- it'll streamline my questions 6 if the environmental impact statement was 7 accomplished or not. 8 CHAIRMAN BAGOFF: Did you do -- I 9 don't know. We have to look. It's a good question; 10 we have to look. Why don't you go on with your 11 questions while we look. 12 MS. BENNETT: All right. It would 13 abbreviate my questions and I'd like to be brief for 14 you all. 15 All right, so Mr. Appel, again, I 16 apologize, I walked in late, I don't want to assume, 17 but you were qualified as an expert in -- in 18 architecture, yes? 19 MR. APPEL: Architecture. 20 MS. BENNETT: And design, right. 21 Okay, and so your website is ADGarchitects.com. 22 MR. APPEL: That is correct. 23 MS. BENNETT: Okay, and you're a 24 principal of that -- of that company. 25 MR. APPEL: Yes. Page 143 1 address that. If any requirements change that 2 legally and lawfully apply to this application and 3 this site, obviously, he would have to come back, 4 but it all depends what that would be and the 5 circumstances under which that would advise. 6 MR. REDWINE: Thanks. 7 CHAIRMAN BAGOFF: Thank you. 8 Come right up, state your name and 9 spell your last name for the

pends what that would be and the 5 circumstances under which that would advise. 6 MR. REDWINE: Thanks. 7 CHAIRMAN BAGOFF: Thank you. 8 Come right up, state your name and 9 spell your last name for the record, please. 10 MS. BENNETT: Micaela Bennett, 11 B-E-N-N-E-T-T. 12 Chairman, just -- and I apologize, I 13 walked in a little late, so... This is a major or 14 minor application before you? 15 CHAIRMAN BAGOFF: Major site plan. 16 MS. BENNETT: Major. 17 CHAIRMAN BAGOFF: Yes. 18 MS. BENNETT: So did it have the 19 environmental impact statement, the environmental 20 impact piece accomplished yet? 21 MR. PLOCKER: It's not part of his 22 testimony. 23 MR. APPEL: That was not part of my 24 testimony. 25 MS. BENNETT: My question is of the Page 145 1 MS. BENNETT: Okay. So on your 2 website, you state that many of your projects have 3 also incorporated green sustainable design and 4 planning technologies, and it goes on, but that 5 paragraph ends with describing how you worked very 6 hard to receive the CGP designation, certified green 7 professional. Yes? 8 MR. APPEL: Yes. 9 MS. BENNETT: Okay. So a lot of my 10 questions are going to be about your environmental 11 considerations, and if it wasn't one of your 12 considerations, that's fine, if you would just say 13 whether it was or not. 14 Okay, so -- but the reason I'm going to 15 ask you questions about the environment is because, 16 as I understand -- I could be wrong, I'm not an 17 architect, but as I understand, the architect for 18 any design project should be considering, amongst 19 other things, the environmental impact, correct? 20 MR. APPEL: Environmental -- you're 21 talking about certain portions of environmental 22 impact are site related, there are certain pieces 23 that are architecturally related. My expertise and 24 responsibility is on the building design. 25 MS. BENNETT: Under -- I understand,

38 (Pages 146 to 149)38 (Pages 146 to 149) Page 146 1 but my question was a little different. My question 2 was: Is it your responsibility as an architect to 3 consider the environmental impacts of your design 4 and to consider any harmful -- or mitigate any 5 harmful impacts there might be? 6 MR. APPEL: So my responsibilities are 7 to follow the laws, regulations, ordinances and all 8 applicable codes that govern the project, so that 9 is, you know, that's what I need to do, and that's a 10 minimum standard, not a -- so that's what I would be 11 looking at. 12 MS. BENNETT: Okay, understood. So 13 when you say "all the applicable laws," so 14 regulation, like the wetlands, the Protection of 15 Wetlands Act, that would be something that you 16 should consider if there were wetlands on the site. 17 MR. APPEL: And that -- that is 18 something that is under the -- other consultants 19 would be working on giving us that information. 20 MS. BENNETT: Are you saying that the 21 architect for the site who's designed the plan 22 should not be familiar with where the wetlands exist 23 -- 24 MR. APPEL: Of course -- 25 MS. BENNETT: -- and whether or not -- Page 148 1 MS. BENNETT: Understood. So your 2 wetlands expert, if they designated that the 3 wetlands on this site was of extraordinary resource 4 value, you would have to take into consideration the 5 setbacks; is that correct? 6 MR. APPEL: I would follow the -- the 7 regulations and metrics that they provide. 8 MS. BENNETT: Okay, and that includes 9 the setbacks, correct. 10 MR. APPEL: Of course. 11 MS. BENNETT: Okay. You think -- 12 CHAIRMAN BAGOFF: Excuse me. Excuse 13 me one second, I'm sorry to interrupt but -- 14 MS. BENNETT: No problem. 15 CHAIRMAN BAGOFF: -- CME Associates, 16 our engineering firm, on their July 29, 2024 letter, 17 No. 15 describes the wetlands freshwater boundaries, 18 and the Planning Board has also engaged Wayne DeFeo 19 & Associates, who is an environmental consultant. 20 So there are and will be environmental information 21 available to the public. 22 MS. BENNETT: Okay, and I -- I'm sorry 23 to cut you off, Mr. Bagoff. So I will ask those 24 experts the questions that I have that is pertinent 25 to them, but I do believe that members of the public Page 147 1 MR. APPEL: Of course, I am, but I 2 don't delineate those wetlands, I am not the -- 3 MS. BENNETT: I understand. 4 MR. APPEL: --

nent 25 to them, but I do believe that members of the public Page 147 1 MR. APPEL: Of course, I am, but I 2 don't delineate those wetlands, I am not the -- 3 MS. BENNETT: I understand. 4 MR. APPEL: -- expert -- 5 MS. BENNETT: I understand. 6 MR. APPEL: The applicant hires 7 experts who do that professionally. 8 MS. BENNETT: I understand. But 9 knowing where the wetlands are delineated and 10 understanding the law on the wetlands, their 11 resource value, et cetera, that would impact your 12 design, right? Where you could design and build a 13 building, correct? 14 MR. APPEL: Well, the situation is 15 that there are various consultants that will work as 16 a team together -- 17 MS. BENNETT: Right. 18 MR. APPEL: -- that way -- 19 MS. BENNETT: Right. 20 MR. APPEL: -- you don't have this 21 tremendous overlap of responsibilities. 22 MS. BENNETT: Right. 23 MR. APPEL: I defer to people who are 24 far more skilled in their experience and education 25 than I am on wetlands. Page 149 1 who are here tonight asked questions about the 2 environment that if the expert could answer then, he 3 should have been permitted to answer them, and I 4 believe that Chairman and the applicant's attorney 5 suggested that they were inappropriate at this time, 6 so I would just suggest, to the extent that people 7 wanted to ask about trees, I saw trees on his -- his 8 renderings, so to the extent that they wanted to ask 9 about trees, at least you should have given some 10 latitude for that, but I -- but I don't want to -- 11 you have competent counsel so I'm sure you'll be -- 12 I'm sure you'll be, you know, but I think that you 13 should let some people ask some questions of this 14 expert because this expert just said that he has to 15 consider the environment and he has to mitigate any 16 negative impacts in the environment that he can with 17 his design. 18 MR. PLOCKER: No, no, that's -- I just 19 want to be clear -- 20 CHAIRMAN BAGOFF: Wait, wait, 21 everybody, one at a time. 22 MS. BENNETT: Should I read from 23 the -- 24 CHAIRMAN BAGOFF: No. 25 MS. BENNETT: -- licensure?

39 (Pages 150 to 153)39 (Pages 150 to 153) Page 150 1 CHAIRMAN BAGOFF: No, not yet. 2 MS. BENNETT: Okay. 3 CHAIRMAN BAGOFF: Go for it. 4 MR. PLOCKER: All right. Thank you, 5 Chairman Bagoff. I just want to make sure that Mr. 6 Appel testified this evening and at the last meeting 7 in his capacity as an architect. He is now fielding 8 questions regarding wetlands delineation and I 9 believe Mr. -- 10 MS. BENNETT: I didn't ask about 11 delineation, sir. 12 CHAIRMAN BAGOFF: Okay, let him 13 finish, please. 14 MS. BENNETT: I don't want him to 15 misstate what I said. 16 CHAIRMAN BAGOFF: You could -- you'll 17 have time afterwards. Let him finish, please. 18 MS. BENNETT: Okay. 19 MR. PLOCKER: And if I misspoke, my 20 apologies, ma'am, but Mr. Appel testified in his 21 capacity as an architect. He is not an 22 environmental professional, he never made himself 23 out to be one in his testimony. I believe his 24 testimony was that he designs the buildings and 25 places them where other professionals told him to Page 152 1 in this audience who asked some questions that it 2 sounds like should have been permitted to -- at 3 least to inquire, and if he could answer, he should 4 answer. 5 Okay. So -- so in your training and 6 experience, if you were asked to design a plan for a 7 dangerous location or that would be dangerous to an 8 environmental condition -- 9 CHAIRMAN BAGOFF: Okay, I'm going to 10 stop you right there. You can ask about this 11 location, you can ask about his testimony; we're not 12 going into hypotheticals, okay? 13 MS. BENNETT: Okay. 14 CHAIRMAN BAGOFF: I just want to focus 15 because the people in the audience have questions 16 about this location, not a hypothetical. Okay? 17 MS. BENNETT: Okay, no problem. 18 CHAIRMAN BAGOFF: Thank you. 19 MS. BENNETT: You've drawn plans 20 within seven feet of a ridgeline or a steep slope? 21 MR. APPEL: So the ridgeline in here 22 was a -- the ridgeline was a part of the ordinance 23 identifying a ridgeline and there were dimensions 24 that located the building in accordance with that 25 ridgeline, so that was one of the metrics that we Page 151 1 place them, and that was his testimony. 2 CHAIRMAN BAGOFF: Okay. Thank you. 3 MS. BENNETT: So, just in response, 4 Mr. Appel, if you know, are you required by your 5 licensure, by your profession, to consider negative 6 environmental impacts when you render designs? 7

nk you. 3 MS. BENNETT: So, just in response, 4 Mr. Appel, if you know, are you required by your 5 licensure, by your profession, to consider negative 6 environmental impacts when you render designs? 7 Simple question. 8 MR. APPEL: So what I indicated is 9 that -- 10 CHAIRMAN BAGOFF: Could you speak into 11 the microphone, sir? 12 MR. APPEL: What I indicated is the 13 information was provided by -- by the team and my 14 responsibility is to follow applicable laws and 15 regulations that govern the design of this project. 16 MS. BENNETT: And when I asked you 17 laws like the Protection of Wetlands Act, when I 18 asked you laws about steep slope, when I asked you, 19 like, laws about ridgeline, or when I asked you laws 20 like the tree ordinance, I thought you agreed that 21 you had to follow all those laws. 22 MS. McGOVERN: He did. 23 MS. BENNETT: That's what I thought. 24 Okay, okay, so then I'll just continue with the 25 questions. My only point was that there were people Page 153 1 were instructed to follow. 2 MS. BENNETT: Okay. Seven feet from 3 the ridgeline, at least in one point, the largest 4 building? 5 MR. APPEL: That was represented as 6 the pinch point to the ridgeline. 7 MS. BENNETT: Is that a yes? Seven 8 feet from the ridgeline at some point in the 9 building? 10 MR. APPEL: It's shown as seven feet 11 to -- to that -- the ridgeline, which is basically a 12 line on a drawing. 13 MS. BENNETT: Has this project 14 minimized the impact upon the trees? 15 MR. APPEL: My opinion is there was a 16 lot of areas of the site that were preserved. That 17 was an important portion of the design. As far as 18 where all the trees are and how that was done, that 19 was a real part of the site engineering and site 20 design. 21 MS. BENNETT: Has your design 22 minimized the negative impact on the ridgeline? 23 MR. APPEL: I don't know what the 24 negative impact of the ridgeline would be. 25 MS. BENNETT: All right, so I'll ask a