September 11, 2024 Planning Board Special Meeting Transcript - WEHI

1 of 71 sheets Page 1 to 4 of 180 09/27/2024 06:14:01 AM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 TOWNSHIP OF WEST ORANGE DEPARTMENT OF PLANNING AND DEVELOPMENT WEDNESDAY, SEPTEMBER 11, 2024 6:30 P.M. RE; PB-24-01 WEST ESSEX HIGHLANDS, INC. BOARD MEMBERS: ROBERT BAGOFF, Chairman JERRY GUARINO, Vice Chairman SUSAN McCARTNEY, Mayor BILL RUTHERFORD, Council President LEE KLEIN WILLIAM WILKES II LEE D. KLEIN, PE PTOE LORI KAPFERER (Alternate 2) JOHN R. CARDOZA (Alternate 1) JORDAN RIZZO, Engineer GERARD M. HAIZEL, Planner FISHMAN COURT REPORTING AGENCY 89 HEADQUARTERS PLAZA NORTH 4 SPEEDWELL AVENUE, SUITE 1440 MORRISTOWN, NEW JERSEY 07960 (973) 285-5331 - FAX - (732) 605-9391 2 A P P E A R A N C E S :1 2 H U T T , S H I M A N O W I T Z & P L O C K E R , E S Q S . B Y B R Y A N D . P L O C K E R , E S Q .3 B p l o c k e r @ h u t t s h i m . c o m 4 5 9 A M B O Y A V E N U E4 W O O D B R I D G E , N E W J E R S E Y 0 7 0 9 5 A p p e a r i n g o n b e h a l f o f t h e A p p l i c a n t5 6 G A C C I O N E & P O M A C O , E S Q S . B Y D I A N A P . M c G O V E R N , E S Q .7 O N E B O L A N D D R I V E , S U I T E 1 0 2 W E S T O R A N G E , N E W J E R S E Y 0 7 0 5 28 A p p e a r i n g o n b e h a l f o f t h e B o a r d 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 I N D E X O F E X H I B I T S2 3 E X H I B I T D E S C R I P T I O N 4 0 - 1 B O S W E L L R E P O R T J U L Y 2 6 , 2 0 2 4 5 O - 2 T O W N S H I P O F V E R O N A R E S O L U T I O N 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 C H A I R M A N B A G O F F : T h e q u e s t i o n r e g a r d i n g1 t h i s a p p l i c a t i o n . W e w e n t t h r o u g h O v a l R o a d t o W a r n e r2 R o a d , w e w e n t d o w n t o t h e b r i d g e t h a t g o e s i n t o E s s e x3 F e l l s , w e w e n t u p W a r n e r R o a d a n d K u z i k D r i v e . W e t h e n4 l o o k e d a r o u n d t h a t a r e a , w e w a l k e d t h e s i t e f r o m t h a t5 p o r t i o n . W e w e n t t h e n u p a r o u n d t o H o w e l l D r i v e , w a l k e d6 d o w n t h r o u g h H o w e l l D r i v e t h r o u g h m o s t o f t h e s i t e . A t7 n o t i m e d i d w e m e e t a n y b o d y r e p r e s e n t i n g t h e a p p l i c a n t8 n o r a n y m e m b e r s o f t h e p u b l i c . W e m a d e n o d e c i s i o n s9 b a s e d o n w h a t w e s a w , w e w e r e o n

t a n y b o d y r e p r e s e n t i n g t h e a p p l i c a n t8 n o r a n y m e m b e r s o f t h e p u b l i c . W e m a d e n o d e c i s i o n s9 b a s e d o n w h a t w e s a w , w e w e r e o n a f a c t - f i n d i n g t o u r10 l o o k i n g a t t h e e l e m e n t s o f t h e p r o j e c t .11 T h e A p p l i c a t i o n P B 2 4 - 0 1 W e s t E s s e x H i g h l a n d s , I n c .12 B l o c k : 1 7 9 L o t : 3 2 Z o n e : I H - 1 . W a r n e r R o a d . T h e13 a p p l i c a n t i s p r o p o s i n g t o d e v e l o p a 4 9 6 i n c l u s i o n a r y14 m u l t i f a m i l y r e s i d e n t i a l d e v e l o p m e n t o n a v a c a n t 1 2 0 a c r e15 p r o p e r t y i n t h e n o r t h w e s t c o r n e r o f t h e T o w n s h i p .16 F o r t h e a p p l i c a n t , M r . P l o c k e r .17 M R . P L O C K E R : G o o d e v e n i n g . B r y a n P l o c k e r18 o f t h e f i r m H u t t , S h i m a n o w i t z & P l o c k e r , h e r e o n b e h a l f19 o f t h e a p p l i c a n t .20 C H A I R M A N B A G O F F : Y o u h a v e t h e f l o o r , s i r .21 Y e a h , t h a n k y o u v e r y m u c h .22 Q. W e l e f t o f f w i t h M r . A p p e l , o u r a r c h i t e c t . H e23 g a v e h i s d i r e c t t e s t i m o n y , t o o k q u e s t i o n s f r o m t h e b o a r d24 m e m b e r s a n d t h e p u b l i c , I b e l i e v e t h e o b j e c t o r ' s25

09/27/2024 06:14:01 AM Page 5 to 8 of 180 2 of 71 sheets 5 attorney needs to question him now.1 CHAIRMAN BAGOFF: Mr. Afran.2 MR. AFRAN: Yes. Thank you. Good evening3 Chairman, good evening members. If I'm a few minutes4 late and if I held you up, I apologize.5 I'm going to start over.6 Good evening, I'm Bruce Afran, A-F-R-A-N.7 I'm counsel for the objectors, We Care, and I was saying8 that I apologize if I was late and caused any delay.9 I have some cross examination, won't be --10 well, everybody says it won't be that long, so I'll11 withdraw that. I don't think it will take very long.12 Good evening, Mr. Appel.13 Q. Hello.14 A. When Mr. Anderson testified he indicated there15 Q. was no balloon test undertaken because the canopy of the16 trees didn't allow the balloon movement, do you recall17 hearing that?18 I do recall hearing that, yes.19 A. Now, I understand the reason he gave but the20 Q. balloon test is mandatory in the Settlement Agreement,21 is it not?22 MR. PLOCKER: I'm going to object, if I may.23 The balloon test was something that the condo24 association asked for and was contained in the exhibit25 6 to the Settlement Agreement regarding our obligation to1 the condominium association and I believe Mr. Anderson2 testified he didn't, certainly make it clear that they3 were out in the field and when they saw the sight lines4 and the view, they agreed that it wasn't necessary.5 MR. AFRAN: So the answers, yes, it is part6 of the Settlement Agreement and is required in the7 Settlement Agreement, does Mr. Plocker agree with that?8 MR. PLOCKER: I'm going object to the9 phrasing of the question. I know we're not in a court10 but that is very misleading.11 MS. MCGOVERN: I'm going to agree, what I12 think is the Settlement Agreement speaks for itself. If13 you want to highlight that paragraph, feel free to put14 that on the record, but otherwise I think that's the15 answer.16 MR. AFRAN: Well, the Settlement Agreement17 requires a balloon test which was not done for the18 reason Mr. Anderson gave.19 Now, my question Mr. Appel, are there any other20 Q. types of tests that can be done when a balloon test is21 impracticable or cannot be undertaken for any reason?22 To achieve what?23 A. To achieve an identification of how visible the24 Q. height of the buildings will be, which is the purpose of25 7 a balloon test in the first place?1 One would be to physically

2 To achieve what?23 A. To achieve an identification of how visible the24 Q. height of the buildings will be, which is the purpose of25 7 a balloon test in the first place?1 One would be to physically measure the height of2 A. the tree, because that's typically what, one of the3 things that a balloon test is doing. Other than that,4 perhaps a drone. But that's, I'm not aware of other5 tests to do.6 Well, nothing else was done, to your knowledge,7 Q. to identify the height relative to both the trees and8 the visibility to other houses?9 I'm not aware of other, other tests that were10 A. done.11 Thank you.12 Q. Now, I would like to ask if you would put on the13 screen, and I'm not sure which of the slides it is.14 We'll start with 4.1. I don't have a set of these15 myself, so I'm not absolutely certain which number it16 is.17 Stop. If you can go back to 4.1.18 That's good. That's fine right there.19 Let's go to C, please. Okay.20 Both 4.4C and B depict the slope in different21 orientations, is that correct?22 Yes, if you look at the key map it indicates23 A. where those sections were taken.24 Now, if you look on 4.4 the screen we have in25 Q. 8 front of us, 4.4C, if you could move that just at little1 bit over to the right so we see the beginning corner.2 That's it. Thank you.3 Now, we have a house that's depicted on the4 bottom of the slope as you see. That's obviously meant5 to be an idealized demonstration of a house at the base,6 is that correct?7 Just diagrammatically.8 A. Right. So I said idealized, it's9 Q. diagrammatically illustrative. It's not intended to10 show existing conditions in any particular way, except11 if there are houses at the bottom?12 That's correct.13 A. Now, what is, I can't quite see because it's not14 Q. clear, at the very beginning of the slope there's two15 words, I can't make them out, at least my eyes can't.16 MR. KLEIN: Rosemont Terrace.17 Thank you.18 Q. Now, there is a point of a sight line that19 continues from that base right there. Now, Rosemont20 Terrace is referring to a street, is that correct?21 Correct.22 A. So you're referring to the grade of the street at23 Q. the beginning of the sight line, is that correct?24 That's correct.25 A.

3 of 71 sheets Page 9 to 12 of 180 09/27/2024 06:14:01 AM 9 Now, you have a sight line running on an angle,1 Q. it looks like, I don't know, probably a 30 degree angle2 if I'm estimating correctly, and it goes up, it skirts a3 tree and then it goes way up into the sky, if I'm4 correct. Now, what's the point of showing that5 particular sight line?6 Basically the sight line was shown7 A. diagrammatically so that it just represented over the8 house. Over the line of the house. So, but it wasn't9 representing that somebody can't tilt their head or, or10 otherwise move their head.11 So it's actually representing a position of say a12 Q. squirrel on the pavement standing behind the house and13 looking up?14 I think what was drawn was an automobile in the15 A. street and that way it was just giving a perspective of16 somebody driving by versus somebody being in the home.17 Okay.18 Q. Well, I don't see an automobile, but I understand19 what you're saying.20 Now, let's look --21 It's very small. You can see the distances are22 A. so great that all these pieces are quite small.23 It may not be quite to scale a real car with a24 Q. person sitting in it, I assume.25 10 Now, if you look at -- if you can enlarge that1 again, please. I'm sorry.2 Now, the next sight line seems to start from one3 of the eaves of that house, is that correct?4 We actually tried to raise that up to a vantage5 A. point that somebody would be looking out of a second6 floor window. So we considered that to be another7 potential viewpoint.8 Do most people on the second floor crane their9 Q. head up on a 60 degree angle so they're so looking at10 Alpha Centauri?11 This is a diagram.12 A. This is a diagram. So what's the point of that13 Q. second sight line from the eve of the house or wherever14 it is coming into on such a sharp angle upward into the15 night sky? Why are you showing us that.16 It was to show that an angle of view is not17 A. necessarily a straight line but it's a cone. So that18 somebody doesn't look in one direction but there's, but19 there is an upper and lower extremity to that. And it20 was just to, to be graphically show a viewpoint. It21 could have been a single line as well.22 You seemed to be focusing on the extreme end of23 Q. the cone where the sight line will be every part away24 from the building that you're constructing on the top of25 11 the ridge, aren't you?1 I'm not

u seemed to be focusing on the extreme end of23 Q. the cone where the sight line will be every part away24 from the building that you're constructing on the top of25 11 the ridge, aren't you?1 I'm not sure I'm understanding your question.2 A. Well, it's a cone. You're saying there's a range3 Q. of views within an angle, but you're depicting really a4 view point that's on the extreme end that will have no5 relationship at all to the structure. Why would you6 include it that way?7 It was just shown to be diagrammatic and8 A. something to help somebody looking at this to show that9 is a viewpoint. It could have been a single line as10 well.11 Now, the trees you have depicted there are very12 Q. large round trees, aren't they? They're kind of like13 park trees. They grow full because they're in the sun14 standing by themselves, right?15 We had just shown the trees to be diagrammatic.16 A. We had spoken to the team and wanted to show something17 representative. The trees vary in size.18 But there's woods on the slope, right?19 Q. Yes.20 A. Right. And trees in the woods, if you have ever21 Q. hiked in the woods everyone would know this, generally22 grow tall and they're narrow and the canopies are narrow23 because they're all fighting for the sunlight. So you24 have trees, you have park trees where they stand in the25 12 middle of a park and grow as wide as they want. Your1 tree -- if you move the document to the left please now.2 All the way, please. Your trees look about as wide as3 the building. So this is really vastly out of scale to4 reality, isn't it?5 It was meant to be diagrammatic to show the6 A. relative distances and topography for, for viewpoint7 in -- so that, that really was the intent of here.8 Well, if you look right here at the top tree for9 Q. example, which is closest to the structure. It's really10 just about as big as a five story building that you're11 constructing, isn't it?12 Well, what you're, what you're looking -- so we13 A. drew a tree with a 60 foot dimension, actually our14 building is shorter than 60 feet.15 Okay.16 Q. So you're saying that the tree at that point17 might match the rough height of the building?18 It -- potentially, yes.19 A. Now, these trees you depict are all in leaf,20 Q. correct?21 The ones that we are showing here, we showed some22 A. with leaves and then some just ghosted behind.23 Now, beginning in the mid fall

9 A. Now, these trees you depict are all in leaf,20 Q. correct?21 The ones that we are showing here, we showed some22 A. with leaves and then some just ghosted behind.23 Now, beginning in the mid fall through the winter24 Q. and early spring in a deciduous forest, the trees all25

09/27/2024 06:14:01 AM Page 13 to 16 of 180 4 of 71 sheets 13 drop and the understory drops its leaves and one can1 generally see through woods, it's quite a long distance,2 you see buildings on the other end, isn't that correct?3 Potentially, yes. I mean, the, while the leaves4 A. will drop on deciduous trees, the, the limbs and trunks5 to the trees --6 Don't drop?7 Q. -- remain in intact.8 A. They remain intact.9 Q. But generally if you're driving by on the road in10 the middle of winter and you drive by the woods that11 otherwise would be full in the summer and the winter you12 could see straight through to the buildings on the other13 end of it, can't you?14 Potentially, yes.15 A. Okay.16 Q. Now, how many lighted windows will face the17 houses from Building D down the slope?18 I haven't counted those. I would have to count19 A. those. Typically they're, there are windows in20 bedrooms, there's windows in living, you know, living21 rooms, so the open areas. So there's typically windows22 in both of those. I would need to count the number of23 windows and the number of --24 Okay. That's fair.25 Q. 14 Would we say somewhere between 100 and 1501 probably?2 Couldn't even -- I, if I acknowledge that without3 A. counting I would be not be professional.4 That's fine.5 Q. It's fair to say that most of the building will6 be lighted windows? It's mostly going to be a glass7 building, isn't that correct?8 Not mostly glass. It's an opaque facade with9 A. windows but they're, there are generous windows. I10 don't know the exact percentage.11 Fair enough.12 Q. Now, during the winter those lighted windows will13 likely be visible to the houses on the base of the14 slope, isn't that fair to say?15 Could not say with certainty whether it's visible16 A. or not visible.17 Okay.18 Q. So we just don't know at this stage?19 I couldn't represent, you know, with certainty.20 A. Okay.21 Q. So you are not representing one way or the other,22 is that fair to say?23 That's correct.24 A. Okay.25 Q. 15 Could you turn to 4.4B. I just need a point of1 reference, please.2 You don't have a sight line I notice of a person3 standing on the ground in front of the house, do you?4 No. It was just one from reference point for5 A. vehicle and one for a reference point from the interior6 to the dwelling.7 Thank you.8 Q. Is there any viewpoint you have constructed or9 rendered from Howell

was just one from reference point for5 A. vehicle and one for a reference point from the interior6 to the dwelling.7 Thank you.8 Q. Is there any viewpoint you have constructed or9 rendered from Howell Avenue?10 You said from Howell Avenue?11 A. Yeah. Do we have any depiction of a viewpoint --12 Q. Howell Drive, my apologies.13 I believe this is, this house is on Howell Drive.14 A. You said Rosemont Terrace?15 Q. I'm sorry. I'm sorry.16 A. Okay. So that's the car on Howell Drive, is that17 Q. correct?18 Yeah, I have to apologize. I can't read those19 words from where I'm standing, so I didn't see Howell?20 MS. MCGOVERN: It says Howell Drive.21 MR. AFRAN: To me it's invisible, not the22 drawings fault, it's my fault.23 There is a very faint square image to Howell24 Q. Drive, is that the vehicle?25 16 Yes.1 A. I honestly can't see it.2 Q. So at this point you have sight lines -- what is3 the, what is the, I don't know the road specifically4 myself, so I'm going to ask you this, if you know. To5 the left of the car there appears to be a sort of an6 embankment, an angular part of the hill. Then there's a7 flat area with another type of embankment and then we go8 to the house. What is that first embankment like9 structure?10 My, my recollection is that there was a retaining11 A. wall in the front of that home and we were showing that12 diagrammatically.13 What number on Howell Drive?14 Q. I'm not sure which number it is.15 A. Have you looked at the viewpoint from other16 Q. houses on the road, except this one? Other than this17 one.18 This exhibit was just at this one point.19 A. Now, 4.4C, was that to be done at a singular20 Q. point as well?21 Yes.22 A. Okay.23 Q. So this doesn't represent the viewpoint from24 other houses on this street other than the one you25

5 of 71 sheets Page 17 to 20 of 180 09/27/2024 06:14:01 AM 17 chose?1 Correct.2 A. Is the slope 4.4D and C intended to be reflecting3 Q. actual conditions?4 We took those, those lines from topography from5 A. the survey and site drawings.6 Okay.7 Q. So you're saying that the slope on both8 renderings reflect the topography as you understand it?9 Yes.10 A. Okay.11 Q. It's not idealized in that sense?12 When you say idealized?13 A. I'll rephrase it. That's my word.14 Q. It's not really diagrammatic but you're saying15 the slope represents existing conditions?16 It is diagrammatic but we took, and took these17 A. numbers not arbitrarily but from the site drawings.18 From the site drawings?19 Q. Yes.20 A. Okay.21 Q. I'm asking, so those drawings reflect the actual22 topography -- excuse me. Topography, to your23 understanding?24 To the best of my understanding, yes.25 A. 18 Okay. Thank you.1 Q. I would like you to turn, if you can, to the2 renderings that depict the allocation of the affordable3 housing units in the building. I don't have the exact4 numbers in front of me.5 So I think what you're asking me is to, is to6 A. show any floor plan, because they would be shown on7 almost every floor plan.8 Well, you had pointed to some of the affordable9 Q. housing units in your testimony earlier in response to10 some questions from the public. So whichever renderings11 you feel comfortable with that illustrate the12 allocation.13 So if I recall I believe we were potentially14 A. looking at Building D. I believe.15 Well, looks at D then.16 Q. So PB-4.2.17 A. Now, I can't really see any distinction between18 Q. coloring from where I'm standing. Can you identify --19 that's a little bit better. The lighter color I think20 are the affordable housing units, is that correct?21 It's like an orangey color. We did them in a22 A. different color so that it would pop out.23 Okay.24 Q. So the affordable housing units on the view we're25 19 seeing now on the building, that's depicted on the lower1 part of the document, show seven affordable housing2 units on the lower side of the hallway, is that correct?3 Three, four, five, six, seven. There's 7 there4 A. and additional ones on the other side, so there's -- the5 buildings broken up into D-1 and D-2, so.6 I see three on the other side.7 Q. One, two.8 A. I see that's -- yes. If you go back. If you can9 Q. enlarge the --10 Depends