October 30, 2024 Planning Board Special Meeting Transcript - WEHI

39 of 80 sheets Page 153 to 156 of 203 11/06/2024 03:21:43 PM 153 water absorption and regeneration of the 5803 trees that1 have been, mature trees, being cut down?2 THE WITNESS: Okay. So the storm water plan3 will deal with this. That is the whole premise which I4 cannot opine to the details. But a storm water plan5 deals with the disturbed areas. That is why the state6 requires a storm water plan for disturbed areas. The7 undisturbed areas won't change. That's a whole separate8 issue. This area is not disturbed and will be deer9 fenced so it should have less runoff over time because10 it will have more trees. More plants, I won't just say11 trees. Let me just be clear, talking all plant growth,12 could be ferns and anything else. So the answer to your13 question is, storm water planning deals with this,14 that's why this is here, this is here and this is here.15 That's all by storm water planning. This area and this16 area and this area will be similar to what it is today.17 THE PUBLIC: Okay.18 Just quickly an accounting of the samplings.19 So when was that study done?20 THE WITNESS: 2019. The original study was21 2019.22 THE PUBLIC: What date?23 THE WITNESS: I don't have the exact date in24 front of me.25 154 THE PUBLIC: Was the picture, the same day1 the picture was taken?2 THE WITNESS: No. It would have -- I'd have3 to look, I don't remember offhand.4 THE PUBLIC: Okay.5 I think it's an important question there.6 THE WITNESS: Go ahead.7 THE PUBLIC: Because the picture that you8 put up was December 10, I believe.9 THE WITNESS: Let me go to it rather than10 guess, shall we. I don't have a date on that one.11 There you go. Yup. Good observation. Thank you.12 THE PUBLIC: So once again it shoes the fact13 of zero saplings. A, were the arborist's/foresters that14 were on there at that outing instructed to count15 saplings?16 THE WITNESS: Yes, they were told to look17 for them in those study plots. Sure.18 THE PUBLIC: Is it possible to see their19 side of the report that they gave to you that you put20 into your report?21 THE WITNESS: It's a working document.22 He's asking -- did you hear the question?23 MS. MCGOVERN: Yeah. You want the notes, is24 that what it is?25 155 THE WITNESS: Yeah.1 THE PUBLIC: I want to see the count.2 MS. MCGOVERN: The raw data?3 THE PUBLIC: Yeah.4 MS. MCGOVERN: Do you have it?5 THE WITNESS: Yes.6 CHAIRMAN BAGOFF: You can produce it,

?25 155 THE WITNESS: Yeah.1 THE PUBLIC: I want to see the count.2 MS. MCGOVERN: The raw data?3 THE PUBLIC: Yeah.4 MS. MCGOVERN: Do you have it?5 THE WITNESS: Yes.6 CHAIRMAN BAGOFF: You can produce it, you7 don't have it with you?8 THE WITNESS: I don't have it with me.9 CHAIRMAN BAGOFF: Can you produce it?10 THE WITNESS: Yeah.11 MS. MCGOVERN: There's nothing --12 THE WITNESS: I'm not going to contradict13 anything.14 MS. MCGOVERN: Well, there's nothing in15 that report that requires attorney/client privilege?16 THE WITNESS: Okay.17 MS. MCGOVERN: You're just going to produce18 them as is. You're not asking for an explanation or --19 it's just raw data or however the data is --20 THE PUBLIC: That's fine.21 MS. MCGOVERN: -- currently.22 THE WITNESS: This is the explanation, what23 I've done.24 MS. MCGOVERN: Understood. You're going to25 156 get raw data for us?1 THE PUBLIC: And my follow-up?2 MS. MCGOVERN: Not you personally, it's3 going to be --4 THE PUBLIC: I know. I understand you're5 not going to send me a bunch of stuff. My e-mail is6 full enough as it is.7 CHAIRMAN BAGOFF: Last question, sir.8 THE PUBLIC: Sure.9 This is in December, obviously there's10 snowfall, wouldn't it be difficult to see saplings and11 small trees, shrubs and other things?12 THE WITNESS: There was virtually nothing on13 the ground there. I was out there. The short answer14 is, at least in that area, no, it would not be15 difficult. In fact it would be easier, because I16 wouldn't have any interference from the leaves or17 anything else around. So, no.18 THE PUBLIC: Okay.19 My last question. I'll step away.20 CHAIRMAN BAGOFF: Thank you.21 THE PUBLIC: Good evening. Seth Weisleder,22 W-E-I-S-L-E-D-E-R, West Orange.23 So I guess a couple of questions. I think24 what I'm looking at is that, those are the study plots?25

11/06/2024 03:21:43 PM Page 157 to 160 of 203 40 of 80 sheets 157 THE WITNESS: Yes. From the study, yes.1 THE PUBLIC: Okay.2 You mentioned, and this is as you were3 talking, the study plots were very random in the entire4 forest, but they look pretty condensed to each other.5 If they were random they would be kind of all over. If6 I put a blindfold on and shot darts at the screen, sorry7 it's late, they wouldn't be condensed. So how is this8 not bias? It's on the footprint of the construction9 property --10 THE WITNESS: Correct.11 THE PUBLIC: -- it's entirety.12 THE WITNESS: It's randomized within the area13 of disturbance was my testimony.14 THE PUBLIC: The area of disturbance?15 THE WITNESS: We focused on the area of16 disturbance. But the plots within the area of17 disturbance are randomized.18 THE PUBLIC: Right. Well, why wouldn't you19 focus on the plots that are most vulnerable, like the20 areas we were discussing to understand the density? I'm21 just not understanding.22 THE WITNESS: Well, because there is no area23 of disturbance here. There is no disturbance here.24 We're focused on what is the worst case scenario that25 158 can occur. This is obviously, if you look at it1 carefully, not exact at the time, this is the best rough2 outline that we had so we focused on that area to3 determine the worst case scenario.4 THE PUBLIC: Okay. Of tree removal?5 THE WITNESS: There you go.6 THE PUBLIC: Okay. Fine. I'm sorry.7 THE WITNESS: No, no. That's okay.8 THE PUBLIC: Okay. I thought the study9 plots were used to determine the health and the10 statisticals of the trees and stuff?11 THE WITNESS: It was the tree density we12 were looking for. The health came -- the health you13 have to do observationally.14 THE PUBLIC: Right. But the study plot and15 the tree density came from a formula?16 THE WITNESS: Correct.17 THE PUBLIC: Okay.18 So this formula was created specifically for19 the agreement and then hence the ordinance?20 THE WITNESS: I'm not certain what formula21 you mean now.22 THE PUBLIC: The formula of the replacement23 that was created by, there's no standard formula that24 was used by an association, another government agency25 159 that says, hey, this is the formula you should use to1 determine tree replacement with deer fencing, etc.?2 THE WITNESS: The formula, the replacement3 and the credits were all a consequence of findings of4 the study, which

s the formula you should use to1 determine tree replacement with deer fencing, etc.?2 THE WITNESS: The formula, the replacement3 and the credits were all a consequence of findings of4 the study, which are the basis for the negotiation which5 ultimately led to a settlement, that's correct. There6 is not a third-party that said --7 THE PUBLIC: So you created it?8 Was it created by your suggestion?9 THE WITNESS: Well, yeah. Yes, I take10 responsibility.11 THE PUBLIC: Okay. I just wanted to know,12 there was no industry standard out there?13 THE WITNESS: No.14 THE PUBLIC: So I want to make sure I'm15 understanding. Can you explain that in five years you16 said there was no growth, correct?17 THE WITNESS: In the five years I've seen18 virtually no change in the forest, correct.19 THE PUBLIC: Okay.20 So -- so we talked about the, you said the21 undergrowth, right?22 THE WITNESS: The understory, the23 undergrowth, whatever you want to call it.24 THE PUBLIC: What about the, when you did25 160 this study, what about the overall health of the trees1 themselves?2 THE WITNESS: The mature trees, as we stated3 earlier, as I stated earlier, the mature trees appear4 healthy with certain exceptions. We did not do an5 analysis of every tree in the forest. But the mature6 trees with the exception such as American beech, which7 we did note are now, of course in December I wouldn't8 have noted that in 2019, but since we were there in the9 summer we noted that beech trees are infected with beech10 leaf disease, which we know, based on studies and11 reports done throughout the northeast, is fatal to beech12 trees. So those trees are not healthy, they're sic. We13 know that ash are unhealthy generally in most forests14 and sadly we think moving towards extinction due to15 Emerald Ash Bore and ash disease. Those trees would not16 be deemed healthy overall. Did I look at every ash17 tree, I did not. Did I look for evidence of Emerald Ash18 Bore, I did not. I don't need to, it's here. We see it19 everywhere. I don't need to look at the trees to know20 that in all likelihood many are infected.21 Overall the oak trees, if I looked at them,22 they looked healthy overall. We didn't analyze the23 trees per se, but based on growth and canopy and24 everything else observationally I would say that from25

41 of 80 sheets Page 161 to 164 of 203 11/06/2024 03:21:43 PM 161 the perspective of the overall canopy layer the trees1 appeared healthy. That doesn't make the forest healthy,2 it makes the trees within the forest healthy.3 THE PUBLIC: So you noticed the beech leaf4 disease five years ago or just recently?5 THE WITNESS: The beech leaf disease we6 noticed this summer.7 THE PUBLIC: Okay.8 THE WITNESS: That's relatively knew to the9 northeast.10 THE PUBLIC: And there's no cure?11 THE WITNESS: To the best of my knowledge12 there's very limited cure. It's sort of like the13 disease for ash. You can protect an ash tree but it14 takes one-on-one care with injections of pesticide to15 the system. To the best of my knowledge, as a botanist,16 there was no cure for beech leaf disease. It's being17 researched, companies like Bartlett and SavATree and of18 course Rutgers, et al., are all looking to see what --19 we know to what causes it, which is a mite, but we don't20 know what the cure is. Not yet.21 THE PUBLIC: Kind of manage it and slow the22 spread is what you're kind of saying?23 THE WITNESS: You know, that's a good24 observation and a tough question. The only way to25 162 manage spread of a disease like that is to cut down1 every tree that's infected and burn it, but not exactly2 feasible in a forest.3 THE PUBLIC: So just to make sure I'm4 understanding your report, that the issue and condition5 of the forest, the undergrowth, that cannot be6 generated, is a hundred percent because of the excessive7 deer browsing?8 THE WITNESS: Predominately. I wouldn't say9 100 percent but predominately because of deer browse,10 which is common throughout forests in the northeast and11 especially the Mid-Atlantic states in particular.12 States like New Jersey which are densely populated.13 THE PUBLIC: Well, what else in the forest14 would you observe that could have caused this?15 THE WITNESS: I didn't look for --16 THE PUBLIC: You didn't say 100 percent.17 This seems to be, the discussion of it seems to be 10018 percent that the deer is our issue, but you're not19 saying 100 percent, so what else did you observe? You20 walked through the forest several times, couple times,21 120 acres, what else did you observe?22 THE WITNESS: The other issue that's in there23 that is helping to deter good growth is invasive species24 invasion. Japanese stiltgrass, Japanese barberry,

s,21 120 acres, what else did you observe?22 THE WITNESS: The other issue that's in there23 that is helping to deter good growth is invasive species24 invasion. Japanese stiltgrass, Japanese barberry, these25 163 are invasive plants that currently crowd out native1 plants. Because I don't have enough native plants to2 fight back, they're winning. So those are also3 discouraging the growth of new plants. Other than that4 the answer is in science we don't like to use the words5 always and 100 percent. Predominately and probably is6 the best I could give you. Short of literally going in7 there and counting every single tree and doing hundreds8 and hundreds of soil logs, which would tell me no more9 than I have probably just told you, except with10 mathematical certainty.11 THE PUBLIC: So it's all, let's just say12 from what you just said then, it's 100 percent of nature13 that has caused this forest not be healthy?14 THE WITNESS: No, it's humans that caused15 this forest to not be healthy, through planting of16 invasive species, probably in every yard that I look at17 in the state of New Jersey and in West Orange, with18 certain exceptions. I won't say every one, but many19 people. With the plantings, with the movement of20 plantings across state lines. People for example have21 taken emerald ash bore and transplanted it across state22 lines by letting -- taking firewood illegally out of23 another state. So it's human activity that probably24 would be the cause.25 164 THE PUBLIC: So did you observe any bonfire1 pits in this 120 acres?2 THE WITNESS: Yes.3 THE PUBLIC: Motorized bike trials?4 THE WITNESS: Yes. One.5 THE PUBLIC: Did you notice any dog walkers6 coming through with their dogs?7 THE WITNESS: I didn't see any trespassers8 at the time that I was there.9 THE PUBLIC: Okay.10 Litter. How about litter, lots of litter?11 THE WITNESS: There was litter on different12 inspections from time to time. Typically what I -- what13 looked to be beer parties based on the number of cans14 and what they were.15 THE PUBLIC: Glass?16 THE WITNESS: Broken glass, beer bottles. I17 did see some wine bottles.18 THE PUBLIC: Any large pieces of concrete?19 THE WITNESS: I don't recall seeing large20 concrete. There was a squatters shack at one time on21 the property that we found with an easy chair in the22 middle. I don't know how they got it the there. I give23 them a lot of

call seeing large20 concrete. There was a squatters shack at one time on21 the property that we found with an easy chair in the22 middle. I don't know how they got it the there. I give23 them a lot of credit for perseverance. But, yes, those24 things have all been seen isolated.25

11/06/2024 03:21:43 PM Page 165 to 168 of 203 42 of 80 sheets 165 CHAIRMAN BAGOFF: We're done with this line1 of questioning.2 THE PUBLIC: Okay. No, I mean, I guess this3 has been vacant for 20 years private property, so let me4 get to my point then, that you could maintain a forest5 to be healthy, correct? I mean, how do we -- sounds6 like a matter of urgency right now this forest cannot7 grow but over 20 years of being vacant you can manage a8 forest to be healthy and stay healthy by eliminating a9 lot of these issues that we were discussing coming up to10 this time?11 THE WITNESS: Well, again, as I stated to12 you, the issues that you kept enumerating are13 observational one-offs. You know, this small area, that14 small area. They are not effecting the forest as a15 whole.16 CHAIRMAN BAGOFF: I don't want to lose17 sight. This is an application to do a project.18 THE PUBLIC: Correct.19 CHAIRMAN BAGOFF: The applicant, based on20 the zone plan, has a right to do certain things. Now,21 if this was owned by the town, state or the county22 these/they or the applicant could have decided to leave23 the forest. Yet he chose to do something, so we're24 listening to information to help us make a reasonable25 166 decision, does this fit the zone plan.1 THE PUBLIC: 100 percent, I agree.2 CHAIRMAN BAGOFF: Okay. Good. So let's3 move on.4 THE PUBLIC: Yes.5 CHAIRMAN BAGOFF: Thank you.6 THE PUBLIC: Mr. Chairman, thank you.7 I just, there was more discussion on deer8 than any other things that was causing the underlying to9 grow, that's why I was asking that or asking those10 questions. Because --11 MR. AFRAN: I'd like to raise a response to12 the chairs statement.13 CHAIRMAN BAGOFF: Mr. Afran.14 MR. AFRAN: I have to agree with the member15 of the public speaking because there was enormous focus16 on deer over browse giving rise for the deer fence and17 how this general settlement is a good deal because we18 get a deer fence. So inquiry by public about other19 possible causes of harm to the forest is directly within20 the point Mr. DeFeo brought to the board. So I would21 say this is highly relevant.22 CHAIRMAN BAGOFF: If the applicant chose to23 do something, remember this is private property, is this24 within the zone plan is what the planning board has to25 167 look at. How this occurred, our expert is discussing.1 All the other things that are there may have added

is is private property, is this24 within the zone plan is what the planning board has to25 167 look at. How this occurred, our expert is discussing.1 All the other things that are there may have added to2 what he has presented as an expert.3 MR. AFRAN: I must take issue with that with4 respect. The zone plan actually requires Mr. DeFeo's5 testimony as an environmental consultant in this case6 and this board. And Mr. DeFeo opened the issue to this7 board of the deer over browse as the primary cause of8 the lack of forest regeneration. Assuming all that to9 be true, and therefore questions directed to other10 potential causes are directly responsive of what the11 expert has introduced on his own. And therefore12 regardless of what the developer could do in it's own13 initiative the expert, who's required by ordinance to be14 here, has introduced the subject that naturally provokes15 these questions. I think they're highly relevant.16 CHAIRMAN BAGOFF: The easiest way to satisfy17 you is ask the expert, are the things that he just said18 pervasive or focused? If it's pervasive, it's relevant.19 If it's not pervasive for the whole 120 acres, then it's20 focused. If it's focused then do these issues cause the21 whole area to fall into the category that you described.22 MR. AFRAN: Well, with respect, the witness23 never said, made a distinction between focused and24 pervasive, you have. Now, I understand you may have a25 168 idea how this thing works, but that's not the witnesses1 testimony. And regardless of that concept that maybe2 sought as valuable to some, including yourself, the3 public has a right to question by their own questions4 not directed or captained by the chair.5 CHAIRMAN BAGOFF: And the public has had the6 right.7 MR. AFRAN: Right. And I'm staying in8 response to your response to this member of the public,9 it is relevant for him to be asking about other causes10 of the alleged forest degeneration. That's all I'm11 saying.12 CHAIRMAN BAGOFF: At the end of the day, the13 applicant takes that information and decides what they14 want to do with it.15 MR. AFRAN: Well, this board has the duty to16 hear the expert and the ordinance says so. We don't17 assume that's meaningless verbiage in the ordinance.18 Mr. DeFeo is here because this board must consider all19 the issues he's raised. So it's not just on the20 applicant at the end of the day could do in

e that's meaningless verbiage in the ordinance.18 Mr. DeFeo is here because this board must consider all19 the issues he's raised. So it's not just on the20 applicant at the end of the day could do in its own21 initiative. This board by ordinance is directed to22 study that testimony, questions of the public, respond23 to him and my cross examination. So it's not solely24 within the hands of the applicant. This board has the25