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.