September 11, 2024 Planning Board Special Meeting Transcript - WEHI

ns that people testified already23 about or asked questions about that things that have24 gone wrong in projects or they broke bedrock and cracked25 55 and thought it worked out and it didn't. So what I'm1 trying to understand is how many experiments are2 happening in this project.3 CHAIRMAN BAGOFF: Everything has to go to4 the building department. The building department has to5 look at each project, the fire department has to look at6 code. Everything will be up to code. So until they7 build something the answer is, nobody knows. And if8 there's an issue they will come back to the township and9 that's the way every project goes, so.10 THE PUBLIC: So even code has its flaws,11 right?12 CHAIRMAN BAGOFF: Everything has it's flaws.13 But we, but our professionals, things will stop, they14 will be reevaluated and then the township will, through15 it's engineers, it's architects and other professionals16 decide how we should proceed and if need be they will17 come back to the planning board if things change that18 drastically.19 THE PUBLIC: Got it. I guess at least my20 next question is, can you give three examples of past21 projects that were similar size and scope --22 CHAIRMAN BAGOFF: I'm sorry, he didn't23 testify to that and that's not the planning boards24 purview. We hear about this application and this25 56 project. So I want to focus on what we need to hear in1 order to make a rational decision based on the facts.2 THE PUBLIC: So my concern is since he3 mentioned the parking scenario where things are repeated4 when they work out well. I want to hear situations that5 haven't been repeated because they didn't work out well6 on a similar sized project so we can go eyes open7 knowing that some things can go wrong, even with the8 code being followed, even with the plans being followed.9 There's a lot of experiments and newness coming in here10 which may end up going wrong.11 CHAIRMAN BAGOFF: I understand your12 question. I'm going to refer to the attorney. I don't13 think this has anything to do with our application.14 There's an application before us that has the size of15 the structure and dimensions that is proposed and either16 it is or isn't within the guidelines and then the17 building department will evaluate it, the fire18 department will evaluate it, our engineers will evaluate19 it, so all our professionals will look at it, does it20 meet the

e guidelines and then the17 building department will evaluate it, the fire18 department will evaluate it, our engineers will evaluate19 it, so all our professionals will look at it, does it20 meet the requirements of the zone plan. So to your21 question --22 MS. MCGOVERN: I think I understood the23 question. It sounds to me like you're asking are they24 experimenting with anything in this project that might25

15 of 71 sheets Page 57 to 60 of 180 09/27/2024 06:14:01 AM 57 go wrong.1 THE WITNESS: No.2 MS. MCGOVERN: Okay.3 THE PUBLIC: Then what's the distinction4 between the parking lot being repeated and all the other5 things that you testified to that you didn't mention?6 CHAIRMAN BAGOFF: I'm sorry, I'm not going7 to allow it. We're done with that question. There's a8 parking lot that's proposed, either it fits the building9 departments requirements or it doesn't, and that's10 pretty much it. Everything has possibilities and at11 this moment there's something on the drawing board and12 we have to go with that.13 THE PUBLIC: My last question is, we talked14 about the sight lines from Howell, but not from Bakley15 Terrace and Bakley Terrace is higher than the rest16 topographically. Have you ever looked at the sight17 lines from there to see what they'll look like?18 THE WITNESS: I did not do a sight line19 exhibit for, for, in that direction.20 THE PUBLIC: Doesn't it make sense to do all21 the way around the building for all the houses affected22 not just some?23 THE WITNESS: We have met or exceeded every24 metric in the ordinance. Building codes alike. So the25 58 height is significantly below the maximum height as1 well. So there is no reason to do it. The reason we2 did that, that section was that so people understood the3 relative scale of the, the site and the topography.4 THE PUBLIC: Well, also to understand the5 view and how the view will change, right?6 THE WITNESS: Potentially it does show views7 as well.8 THE PUBLIC: So our view will change and we9 don't have a good sense of how much and how impacted it10 would be?11 MR. PLOCKER: I don't believe he testified12 that views would be changed.13 THE PUBLIC: Well, I'm asking specifically14 if you even considered our view. It sounds like no.15 MR. PLOCKER: Just to confirm, Bakley is16 part of The Grand?17 THE PUBLIC: Yes.18 MR. PLOCKER: All right.19 I just wanted that for the record.20 THE PUBLIC: So our view wasn't considered21 or looked at?22 THE WITNESS: I did not do a separate exhibit23 for that view.24 THE PUBLIC: Okay. Thank you.25 59 CHAIRMAN BAGOFF: Thank you.1 Okay. Mr. Plocker.2 MR. PLOCKER: Okay.3 Thank you Mr. Appel, I have nothing further4 for you.5 CHAIRMAN BAGOFF: Okay.6 MR. PLOCKER: The applicant would like to7 call our traffic engineer, Karl Pehnke.8 THE PUBLIC: Mr. Chairman, may I ask

.3 Thank you Mr. Appel, I have nothing further4 for you.5 CHAIRMAN BAGOFF: Okay.6 MR. PLOCKER: The applicant would like to7 call our traffic engineer, Karl Pehnke.8 THE PUBLIC: Mr. Chairman, may I ask a9 procedural question.10 CHAIRMAN BAGOFF: Hang on one second, sir.11 You are, sir?12 THE PUBLIC: I'm actually here representing13 the Town of Verona, my name is Jack MacAvoy. I'm former14 Mayor and currently Deputy Mayor.15 CHAIRMAN BAGOFF: Hang on one second, sir.16 Can we have some quite, please.17 Mr. Plocker, the board is going -- I'm18 sorry, are you representing the town council of Verona?19 THE PUBLIC: Yes.20 CHAIRMAN BAGOFF: Okay.21 Mr. Plocker, the planning board is going to22 give Mr. McEvoy the floor for a couple of minutes23 representing, officially representing the Town Council24 of Verona.25 60 Sir, you have the floor.1 THE PUBLIC: Thank you very much.2 MS. MCGOVERN: Full name.3 THE PUBLIC: Full name, Jack McEvoy,4 M-C-E-V-O-Y.5 MS. MCGOVERN: Are you going to be providing6 a little bit of testimony, right? So I do need to swear7 you in.8 THE PUBLIC: Maybe testimony. What I have9 is a --10 MS. MCGOVERN: I understand.11 THE PUBLIC: I just want to read it into the12 record.13 THE PUBLIC: Please raise your right-hand.14 Do you swear to tell the truth the whole15 truth nothing but the truth.16 CHAIRMAN BAGOFF: Do you swear or affirm.17 MS. McGOVERN: Do you swear or affirm to18 tell the truth the whole truth nothing but the truth.19 THE PUBLIC: I do, yes. Thank you.20 CHAIRMAN BAGOFF: Could you state your name21 for record and spell your last name.22 THE PUBLIC: My name is Jack McEvoy. Last23 name, M-C-E-V-O-Y.24 J A C K M C E V O Y, having been duly sworn25

09/27/2024 06:14:01 AM Page 61 to 64 of 180 16 of 71 sheets 61 testifies as follows:1 CHAIRMAN BAGOFF: Thank you, sir. The floor2 is yours.3 THE PUBLIC: What I want to do is just read4 the resolution into the record that was passed this past5 Monday. I do participate in --6 CHAIRMAN BAGOFF: Which resolution? You7 were there and discussed it?8 THE PUBLIC: Yes.9 CHAIRMAN BAGOFF: Okay. Very good. You're10 part of the resolution, correct?11 THE PUBLIC: Correct.12 CHAIRMAN BAGOFF: Okay. Go ahead.13 THE PUBLIC: "Township of Verona County of14 Essex, State of New Jersey. Resolution No. 2024-150.15 Requesting that the Township of West Orange Planning16 Board deny the Application of West Essex Highlands LLC.17 Whereas, the Township Council of the Township of Verona18 has reviewed the preliminary and final site plan19 application of West Essex Highlands LLC, for Block 179,20 Lot 32, Warner Road, West Orange, and21 Whereas, the application proposes the22 construction of 496 residential units on a parcel which23 is comprised of approximately 120 acres of undeveloped24 woodlands; and25 62 Whereas, the proposal will impact the1 Township of Verona based on the changes in land cover2 and runoff that will discharge towards Verona and the3 Peckman River and will have a significant environmental4 impact based upon the removal of trees; and5 Whereas, some of the Township's concerns are6 outlined in the attached," which I have here, "July 26,7 2024 correspondence of Paul W. Ferriero, PE, CME of8 Boswell Engineering; and9 Whereas, in order to mitigate against the10 high probability of increase flooding caused by the11 development (if approved), the Township requests that12 the application be reviewed and revised as necessary to13 ensure the latest and most up to date New Jersey storm14 water management rules and regulations are implemented15 and applied to the project; and16 Whereas, the Township also requests that the17 applicant is required to address the concerns raised in18 Mr. Ferriero's July 26, 2024 correspondence.19 Therefore, be it resolved by the Township20 Council of the Township of Verona that the Township21 Clerk is hereby directed to serve a copy of this22 resolution." Which I am doing tonight.23 CHAIRMAN BAGOFF: Do you have anything to24 add, sir?25 63 THE PUBLIC: That's it. Thank you, Mr.1 Chairman.2 CHAIRMAN BAGOFF: So before you leave, sir.3 THE PUBLIC:

lution." Which I am doing tonight.23 CHAIRMAN BAGOFF: Do you have anything to24 add, sir?25 63 THE PUBLIC: That's it. Thank you, Mr.1 Chairman.2 CHAIRMAN BAGOFF: So before you leave, sir.3 THE PUBLIC: Yes.4 CHAIRMAN BAGOFF: As a matter of law, you're5 asking for the official representation -- the Council of6 Verona is asking the Planning Board of the Township of7 West Orange to deviate from the ordinance and law of the8 State of New Jersey and give the applicant the full9 hearing to decide based on the facts is this application10 good or bad. That's what this says. Is that the intent11 of what you're doing today?12 THE PUBLIC: We are asking you to have the13 applicant work under the current New Jersey storm water14 management rules and regulations. The council for the15 applicant himself at prior meetings referred to the16 storm water management rules and regulations that17 they're using as, I quote, "the old regulations." So if18 they're using the old regulations, what good are they,19 if there is a new set of regulations that should be20 enforced we should be using those regulations.21 CHAIRMAN BAGOFF: There's two things you're22 asking here. One is the storm water management and one23 is you're asking the Township of West Orange Planning24 Board to deny the application, that's what this says.25 64 That it deviates from the Land Use Law in the State of1 New Jersey. We can not do that. It deviates from the2 law. This is a matter of law.3 THE PUBLIC: Deny based on our letter that4 our engineer --5 CHAIRMAN BAGOFF: That's not what this says.6 This is a legal document.7 THE PUBLIC: Yes.8 CHAIRMAN BAGOFF: I'm not arguing with you.9 I'm just stating the facts.10 THE PUBLIC: Written by our town engineer.11 CHAIRMAN BAGOFF: The planning board has12 this and you're asking them to deny it. You're asking13 two things and asking them to deny it. We will give the14 application indifference. We appreciate the council of15 Verona providing that to us and it will be in relation16 to the storm water management rules that apply by the17 State of New Jersey, absolutely. Our engineer and our18 expert engineering firm has reviewed and will review it19 but we can't deny it based on not hearing the20 application. That can't happen.21 THE PUBLIC: I didn't ask for the22 application to stop and deny it tonight. I, based on23 future testimony and updated rules --24 CHAIRMAN BAGOFF:

n not hearing the20 application. That can't happen.21 THE PUBLIC: I didn't ask for the22 application to stop and deny it tonight. I, based on23 future testimony and updated rules --24 CHAIRMAN BAGOFF: As a matter of reading25

17 of 71 sheets Page 65 to 68 of 180 09/27/2024 06:14:01 AM 65 this it does. I'm going to leave it on the table. We1 can't do anything with this because we must hear the2 application. The application is in progress. You can3 take that back to the council. We will hear the4 application. I understand what you said and the board5 will take that information and weigh it and the6 applicant has the option or opportunity to refute it or7 add to it. But thank you very much. We appreciate the8 concern the Town Council brought up.9 THE PUBLIC: Thank you.10 MR. PLOCKER: And Chairman, if I may for a11 second.12 CHAIRMAN BAGOFF: Mr. Plocker.13 MR. PLOCKER: And just for the record, it14 would not be within this boards jurisdiction to15 determine which set of storm water management16 regulations apply to the application. I know it was17 discussed and perhaps this is a good time, I had talked18 to Ms. McGovern about it, I know there was some concern19 or just the board asking for some backup, I would like20 to mark as an exhibit, what are we up to A-4?21 MS. MCGOVERN: A-4.22 MR. PLOCKER: Yeah. I did provide this to23 Ms. McGovern. There is an e-mail that was written from24 Danielle Jones, she's an environmental engineer with the25 66 Division of Land Resource Protection at the New Jersey1 Department of Environmental Protection. It was written2 in response to a query that Jennifer Shari, who I know3 has appeared here during these proceedings and inquiring4 about the storm water rules and which ones apply. And5 I'm just going to read the Danielle Jones very brief6 e-mail to Ms. Shari. It's dated July 31, 2024. It was7 sent to her at 7:46 AM. It says, "The FHA application8 is being reviewed under the current FHA Rule" and I9 believe that stands for Flood Hazard Area" however, the10 storm water portion of the application is being reviewed11 under the previous version of the storm water rule as it12 was never withdrawn and still pending under the FWW13 application. The FWW storm water review is being14 conducted under the version of the rule which was15 current at the time that the application was submitted."16 And I would like to have that marked as A-4 and I will17 submit it to you.18 CHAIRMAN BAGOFF: Great. Can you give19 Jamilet a copy of that.20 Mr. Afran, have a question at all?21 MR. AFRAN: Just a moment.22 MS. MCGOVERN: It will not be marked A,23 because it's not an

to you.18 CHAIRMAN BAGOFF: Great. Can you give19 Jamilet a copy of that.20 Mr. Afran, have a question at all?21 MR. AFRAN: Just a moment.22 MS. MCGOVERN: It will not be marked A,23 because it's not an applicant. So we are going to mark24 the Verona resolution as, do we have opposition, did you25 67 submit anything in opposition?1 MR. AFRAN: Which one, I'm sorry.2 MS. MCGOVERN: Did you submit anything that3 we marked already, I don't remember.4 MR. AFRAN: I don't believe we submitted5 anything.6 MS. MCGOVERN: So that would be O-1.7 MR. AFRAN: Oh no, wait.8 MS. MCGOVERN: O-2.9 MR. AFRAN: Well, why you say that, with10 respect, O?11 CHAIRMAN BAGOFF: Opposition.12 MR. AFRAN: O, that would be opposition.13 Not me. I didn't submit anything.14 MS. MCGOVERN: What was O-1?15 THE SECRETARY: That was the engineering.16 The one that --17 MS. MCGOVERN: Boswell. Okay. So that is18 actually attached. So the cover letter, the resolution19 I should say, is now O-2 and Boswell is marked O-1,20 which is the report of July 26, 2024. Okay.21 CHAIRMAN BAGOFF: Okay.22 You're up Mr. Afran.23 MR. AFRAN: Just the reservation of right.24 I understand the e-mail Mr. Plocker read into the25 68 record, I am familiar with it. We do not, as the1 objectors, we do necessarily accept the engineer from2 DEP conclusion is correct. As a matter of law she is3 not necessarily a decider of the legal question in terms4 of what regulations are applicable, so the objectors are5 reserving their position on this issue. We do not6 necessarily accept the reference that the engineer made7 and Mr. Plocker recited. It may well be our position in8 the appropriate forum, whether it's in a court or at9 DEP, that the new regulations must be deemed to apply.10 But I just want to note, I don't want my silence to have11 suggested that we necessarily agree with the position12 Mr. Plocker took. We are reserving our right to suggest13 and argue appropriately that the new regulations may be14 appropriate.15 CHAIRMAN BAGOFF: Okay. We take note.16 MR. AFRAN: Thank you.17 CHAIRMAN BAGOFF: Thank you.18 Mr. Plocker.19 MR. PLOCKER: The applicant would like to20 call the traffic engineer, Karl Pehnke.21 CHAIRMAN BAGOFF: Thank you.22 MS. MCGOVERN: State you name for the23 record.24 THE WITNESS: Certainly. It's Karl, with a25

09/27/2024 06:14:01 AM Page 69 to 72 of 180 18 of 71 sheets 69 K, Pehnke. P-E-H-N-K-E.1 MS. MCGOVERN: Mr. Pehnke, please raise your2 right-hand.3 Do you swear or affirm to tell the truth the4 whole truth and nothing but the truth.5 THE WITNESS: Yes, I do.6 MS. MCGOVERN: Thank you.7 K A R L P E H N K E, having been duly sworn8 under oath testifies as follows:9 Thank you, Karl. Can you briefly give the board10 Q. the benefits of your qualifications?11 Yes.12 A. Again, for the record, my name is Karl Pehnke.13 I'm vice president with Langan Engineering and14 Environmental Services. I'm a registered professional15 engineer in the State of New Jersey. My license is in16 good standing. I've been practicing for over 38 years.17 CHAIRMAN BAGOFF: Do any members of the18 board have any questions for Mr. Pehnke?19 Seeing none.20 You have the floor, sir.21 Okay.22 Q. Mr. Pehnke, just before you get going, I just23 would like to state for the record Mr. Chairman, if I24 may, Mr. Pehnke is testifying here as a traffic engineer25 70 and I just want to make clear for the record that1 legally the planning board, because we are zoned,2 because the density is permitted, the planning board is3 without authority to deny the application because of4 off-site traffic concerns. And I will let Ms. McGovern5 correct me if I'm wrong, I'll cite to you Dunkin Donuts6 of New Jersey v. Township North Brunswick case which is7 193 NJ Super 513, 1984. That being said, as an8 accommodation and a curtesy to the board and everybody9 here, Mr. Pehnke did prepare a Traffic Impact Study10 which he will reference and testify to here tonight.11 CHAIRMAN BAGOFF: Thank you.12 Mr. Afran.13 MR. AFRAN: I would like reserve the14 objectors position on this issue. We do not necessarily15 -- so sorry. Hang on. I will start over.16 The microphone is now turned on. I am reserving17 the objectors position on this issue. We do not agree18 that off-site impacts necessarily are barred to the19 boards consideration. In fact there are times when20 safety issues concerning the egress/ingress may well be21 based on the road construction outside of the project22 site. So we do not agree that in fact all of that23 evidence is not within the jurisdiction of the board.24 We believe that it is and I just want to reserve our25 71 position on that issue.1 CHAIRMAN BAGOFF: So noted, Mr. Afran.2 MR. AFRAN: Thank you.3 CHAIRMAN