October 30, 2024 Planning Board Special Meeting Transcript - WEHI

11/06/2024 03:21:43 PM Page 189 to 192 of 203 48 of 80 sheets 189 THE WITNESS: My retention by the planning1 board was to do and prepare for what you've seen2 tonight, prepare reports on this issue.3 THE PUBLIC: And what was the scope of4 services? What were your deliverables?5 CHAIRMAN BAGOFF: I'm sorry, ma'am. We've6 gone over that through his report and through his7 PowerPoint.8 THE PUBLIC: So is he not able to --9 CHAIRMAN BAGOFF: The problem is we're10 trying not to repeat things he already testified to.11 THE PUBLIC: So your sole deliverable for12 the project was this report, is that correct?13 THE WITNESS: Two reports.14 THE PUBLIC: Two reports. Okay.15 And so you were hired to do an environmental16 evaluation and so we heard a lot about the deer17 specifically. What other environmental factors have18 been evaluated for other animals, as far as endangered19 species, you know, what other evaluations have been done20 besides the size of trees and the number of deer?21 MS. MCGOVERN: By him?22 THE PUBLIC: By him, yes.23 THE WITNESS: Nothing. Those issues are24 dealt with by the DEP.25 190 THE PUBLIC: So you counted the trees and1 you counted the deer and you consider that a sufficient2 environmental assessment of the situation?3 CHAIRMAN BAGOFF: He didn't count the deer.4 I want the record clear.5 THE WITNESS: I observed the deer.6 THE PUBLIC: He observed ten deer, correct?7 He observed ten deer and made an estimate on the tree8 count.9 And do you think that, that is an10 encompassing evaluation for the entire environmental11 impact of this project?12 MR. PLOCKER: The scope of Mr. DeFeo's13 retention has been mischaracterized. I believe Mr.14 Chairman, and correct me if I'm wrong, he was originally15 retained in connection with pending litigation. The16 case settled, the property was rezoned, we made an17 application. Part of the things we needed to adhere to18 was the Schedule C or Exhibit C to the settlement19 agreement. And I believe Mr. DeFeo was retained by this20 board to evaluate the pending site plan application that21 we're all here many nights on and we're all taking our22 time on to evaluate our compliance with those23 requirements of the ordinance and the Exhibit C24 settlement agreement.25 191 MR. AFRAN: Well, with respect, I must1 disagree with Mr. Plocker's recitation to a degree. The2 ordinance and settlement agreement state that Mr.

inance and the Exhibit C24 settlement agreement.25 191 MR. AFRAN: Well, with respect, I must1 disagree with Mr. Plocker's recitation to a degree. The2 ordinance and settlement agreement state that Mr. DeFeo3 is here as an environmental consultant with respect to4 the project, not just limited, as Mr. Plocker just5 described. And all though Mr. DeFeo was chosen, we6 spent a great deal of time on the deer fence and related7 issues. His actual charge or brief, so to speak, is8 much broader. He's here as an environmental consultant9 and he has addressed other issues beyond just the deer10 fence. But it's not limited solely to evaluating the11 compliance of the developer in connection with the12 application. He's here as an environmental consultant13 in a much broader context, and that's what the ordinance14 says and that's what the settlement says. It is not15 limited as Mr. Plocker said.16 MR. PLOCKER: Well, where in the ordinance17 does it say that, Bruce. It's not in the ordinance.18 MR. AFRAN: The settlement agreement --19 MR. PLOCKER: You said the ordinance.20 CHAIRMAN BAGOFF: One at a time. He's going21 to hit me.22 MR. AFRAN: The ordinance.23 MR. PLOCKER: I want a clear record. We24 want a clear record.25 192 CHAIRMAN BAGOFF: Don't put that on the1 record.2 I'm sorry, go ahead, Mr. Plocker, respond to3 Mr. Afran's statement and Mr. Afran can respond.4 MR. PLOCKER: I just wanted to know, Mr.5 Afran, you said a couple of times, two, three times6 tonight that either the referral and input of the7 environmental consultant or even Mr. Defeo specifically,8 I'm not sure which one, I don't want to put words in9 your mouth, is set forth somewhere in the actual10 ordinance.11 MR. AFRAN: Yeah, the problem is12 dialytically the ordinance adopts the settlement and the13 settlement says, Mr. Defeo is to be the expert for, as14 an environmental consultant on this case. So it's all15 in that sense one in the same. He's here, I'm only16 making the point to dispute from my clients perspective17 Mr. Plocker's more limited description that he's here as18 an environmental consultant, not nearly to evaluate the19 compliance by the developer. That's all I wanted to20 say. When I cross we'll go into more of that from our21 perspective.22 CHAIRMAN BAGOFF: Fair enough. Thank you.23 Ma'am, continue.24 THE PUBLIC: Is Mr. Plocker the legal25

49 of 80 sheets Page 193 to 196 of 203 11/06/2024 03:21:43 PM 193 representation for Mr. DeFeo?1 MS. MCGOVERN: No.2 THE PUBLIC: So I asked a question of Mr.3 DeFeo and Mr. Plocker chimed in, so I would like to4 reask my question to ask Mr. DeFeo specifically.5 CHAIRMAN BAGOFF: Go right ahead.6 THE PUBLIC: Do you think that the7 evaluation that you provided for your consultation8 services encompasses sufficient environmental impact for9 this project that of tree counts?10 THE WITNESS: Within the scope of my11 retention, yes.12 THE PUBLIC: And what is your relationship13 to the applicant?14 THE WITNESS: I have no relationship to the15 applicant.16 THE PUBLIC: Has the applicant hired you for17 any other projects or evaluations or guidance or18 consultations?19 THE WITNESS: I will state again, I have no20 relationship to the applicant. That means I have not21 done any work whatsoever with this applicant. I've22 never heard of this applicant before. The first meeting23 I had with them was on behalf of the town.24 THE PUBLIC: And do you have any involvement25 194 in the actual installation of the fence?1 THE WITNESS: No.2 THE PUBLIC: Of the deer fence?3 THE WITNESS: I have no involvement, no4 ownership of a fence company at all.5 THE PUBLIC: You seem to have a lot of6 knowledge about the cost of the fence.7 THE WITNESS: Correct. That was part of my8 charge by this board.9 THE PUBLIC: Were you charged with10 evaluating the cost of the installation?11 THE WITNESS: To find out the feasibility of12 deer fence installation, so I researched that cost by13 interviewing people who have installed deer fence.14 THE PUBLIC: And whose responsibility is it15 to pay for the installation of the deer fencing?16 THE WITNESS: To my knowledge the applicant.17 THE PUBLIC: Okay.18 And do you have any business involvement or19 investment in any fencing company or --20 THE WITNESS: Look, I'm sorry, no.21 CHAIRMAN BAGOFF: To broad. Way to broad.22 Sorry.23 THE PUBLIC: And so then I'll just continue24 with one other question. If the project as it is25 195 intended to regrow the forest with the deer fence and it1 is, if it is successful, are there any intentions on2 taking the fence down once that forest has been regrown?3 THE WITNESS: As stated in testimony, it is4 to be maintained in perpetuity.5 THE PUBLIC: And have you done any6 geotechnical assessments on the land in the

nce down once that forest has been regrown?3 THE WITNESS: As stated in testimony, it is4 to be maintained in perpetuity.5 THE PUBLIC: And have you done any6 geotechnical assessments on the land in the environment?7 THE WITNESS: I'm not sure what the question8 is.9 THE PUBLIC: For the land, the structural10 stability of the slope?11 THE WITNESS: I'm not an engineer.12 THE PUBLIC: So who was the one -- who does13 the geotechnical reporting of it?14 THE WITNESS: A geotechnical specialist.15 THE PUBLIC: And will there be a16 geotechnical specialist that will be able have questions17 as far as blasting, you know, digging into the land --18 MR. PLOCKER: This has nothing to do with19 his testimony.20 THE PUBLIC: -- heavy equipment on the, you21 know, unstable slopes that have not yet been evaluated?22 THE WITNESS: I can't answer any of those23 questions. Outside my area.24 MS. MCGOVERN: This is beyond the scope of25 196 his expertise.1 THE PUBLIC: I'm asking the board.2 MS. MCGOVERN: We're asking this witness3 questions right now.4 THE PUBLIC: Thank you very much.5 CHAIRMAN BAGOFF: Last question this evening6 then we have Mr. Afran.7 Go right ahead, ma'am.8 THE PUBLIC: Deborah Butensky,9 B-U-T-E-N-S-K-Y.10 Hello Mr. DeFeo and thank you to the board.11 THE WITNESS: Hello.12 THE PUBLIC: So my question as the13 environmental expert is you were the one who constructed14 the deer fence concept which gives the builder a15 tremendous amount of credit for trees that already exist16 on those locations, correct?17 THE WITNESS: As I've testified, yes.18 THE PUBLIC: So what evidence do you have19 that this is the optimum way to protect the forest as20 opposed to removing the barberry without deer fencing21 which would not give this builder so much credit?22 MR. PLOCKER: I'm going to object. This23 formula was in the ordinance. We submitted a plan, we24 had to follow the ordinance. This board has to follow25

11/06/2024 03:21:43 PM Page 197 to 200 of 203 50 of 80 sheets 197 the ordinance. Mr. DeFeo didn't testify he was the1 towns consultant in connection with the settlement. But2 any -- answering that question has no bearing on why we3 are here and a lot of people wasted a lot of hours over4 many days.5 THE PUBLIC: I don't consider it a waste.6 CHAIRMAN BAGOFF: Ma'am, ask the question7 again, please. I want to hear it again.8 THE PUBLIC: Well, the question is, I didn't9 hear any scientific evidence based on the testimony that10 deer fencing is the proper and only way to rehabilitate11 the forest.12 CHAIRMAN BAGOFF: Mr. DeFeo testified about13 a couple of ways to do it and as an expert he said this14 is the most reasonable way to do it.15 THE PUBLIC: That's an opinion that's not16 scientific.17 CHAIRMAN BAGOFF: That's right. That's18 exactly right. Ma'am, you're exactly right. He's our19 expert, it's his opinion. Short of culling the deer20 this was what he feels is the best way, that's what was21 presented to the board. I agree with you.22 THE PUBLIC: Correct. But he's not a23 forester either, by his own admission.24 CHAIRMAN BAGOFF: He's hired -- his company25 198 has hired, which was his testimony, foresters/arborist's1 that have presented a report to him that he's going to2 make available their information that will be published3 on the website.4 THE PUBLIC: Do you have the studies --5 well, let's say I would request that you present the6 studies from the Duke Estate that actually corroborate7 the plan that you came up with to have deer fencing. Do8 you have studies that prove that?9 THE WITNESS: I believe you asked me to10 provide you with that.11 CHAIRMAN BAGOFF: Ma'am, we've asked for12 that already. Duke Estate, and he will provide that.13 It will be on our website.14 THE PUBLIC: Does it exist?15 THE WITNESS: Yes.16 CHAIRMAN BAGOFF: It's a good question and17 it will be provided.18 THE PUBLIC: Because if we -- if you would19 just remove the barberry how would that have effected20 the forest?21 THE WITNESS: There are two answers to your22 questions -- two parts. First, a lot of the barberry's23 in the wetland area and therefore can't be disturbed.24 Can't go in there without getting DEP permission.25 199 The second part is, it would not do much1 because it would come back very quickly since barberry2 probably exist on most of the surrounding properties

go in there without getting DEP permission.25 199 The second part is, it would not do much1 because it would come back very quickly since barberry2 probably exist on most of the surrounding properties in3 that area. Actually three parts.4 Third part is, it doesn't stop the deer from5 over browsing the area. So it wouldn't, removing the6 barberry, I'd love to see it removed because I don't7 like the plant, but it's not going to do much to8 regenerate the forest. It'll do very little, if9 anything.10 THE PUBLIC: I just want to review, how long11 do you, when you have a regeneration, X amount of years12 are undergrowth and what is that amount?13 THE WITNESS: As I testified before, I can't14 give you absolute answers, but the slides I've shown you15 and the studies I've read say that within nine years or16 so you will not be able to tell that this was the same17 forest. Now, as was asked earlier, I forget who asked18 me the question at this point, what happened if weather19 and climate and everything else changed. That changes20 everything. All those numbers change. Everything21 depends on the weather, the climate and everything else22 that happens. But I would say, based on the studies23 that have been done, within nine years or so it should24 be pretty well growing in there.25 200 CHAIRMAN BAGOFF: Ma'am, I want to thank you1 for your questions. The hours struck.2 I would like to thank all the members of the3 public and all the members on Zoom for excellent4 questions.5 Mr. Afran, the question we have for you is,6 are you going to have experts, and if so, how many do7 you plan on having for us so we can have some8 management?9 MR. AFRAN: Yes, thank you. I assume that10 means Mr. Plocker's case is finished at this point?11 MR. PLOCKER: No, not at all.12 MR. AFRAN: Okay. So the next -- that's why13 I was asking. I have cross examination of Mr. DeFeo, as14 I mentioned, probably two hours. At that point I assume15 Mr. Plocker will go on with other witnesses. How we16 working that, because it depends on when I bring17 witnesses. In other words, if the applicant hasn't18 finished his case --19 CHAIRMAN BAGOFF: We now have another20 meeting, special meeting on November 13.21 Mr. Plocker, are you providing a planner or22 anybody else?23 MR. PLOCKER: We have a planner, you know,24 and we'll likely have a couple of others witnesses that25

51 of 80 sheets Page 201 to 203 of 203 11/06/2024 03:21:43 PM 201 we're working on.1 CHAIRMAN BAGOFF: Okay. First thing will be2 cross examination of Mr. DeFeo, see where that goes and3 we'll go from there.4 MR. AFRAN: So I assume, I'm not trying to5 -- it doesn't matter too much to me, I want to6 understand. I assume the applicant, assuming there's7 time left in the meeting after Mr. DeFeo's finished,8 would move on with his next witness, is that correct?9 On November 13.10 MR. PLOCKER: All depends on timing, yes.11 MR. AFRAN: Yeah, assuming time is left.12 So I most likely -- I will not bring a13 witness until next meeting, December 13. December 11,14 sorry.15 CHAIRMAN BAGOFF: Okay. November 13.16 MR. AFRAN: No, no. The next meetings17 November 13.18 CHAIRMAN BAGOFF: Correct.19 MR. AFRAN: It appears that I will cross Mr.20 DeFeo, and if there's time Mr. Plocker will call more21 witnesses. So I won't bring a witness until the meeting22 after that.23 CHAIRMAN BAGOFF: Okay.24 MR. KLEIN: Do we know that date?25 202 MS. MCGOVERN: Well, I sent out --1 MR. AFRAN: December 11 works for two of our2 experts. So to answer your question Mr. Bagoff, we will3 have an environmental expert, a planner, a storm water4 management expert and perhaps more. But we won't bring5 any expert until the meeting after November 13.6 CHAIRMAN BAGOFF: Perfect.7 Thank you very much.8 MR. PLOCKER: Just so we complete, I9 appreciate it, Mr. Chairman, announcing the November 1310 date. We can just confirm we do not need to provide11 notice.12 CHAIRMAN BAGOFF: No need to do any further13 notice. Okay.14 The next special meeting of the planning15 board is November 13, 6:30 PM in council chambers in16 person. We're going to carry this application, no17 further notice is required.18 The next regular meeting of the planning19 board will be November 6, 2024, via Zoom.20 (Hearing concludes at 11:05 PM.)21 22 23 24 25 203 C E R T I F I C A T E1 I, ERIC S. FISHMAN, a Shorthand Reporter2 and Notary Public of the State of New Jersey do hereby3 certify that the foregoing is a true and accurate4 transcript of the testimony as taken stenographically by5 and before me at the time, place and on the date6 hereinbefore set forth, to the best of my ability.7 I DO FURTHER CERTIFY that I am neither a8 relative nor employee nor attorney nor counsel of any of9 the parties to the action; and that I am neither

hereinbefore set forth, to the best of my ability.7 I DO FURTHER CERTIFY that I am neither a8 relative nor employee nor attorney nor counsel of any of9 the parties to the action; and that I am neither a10 relative nor employee of such attorney or counsel; and11 that I am not financially interested in the action.12 13 14 ---------------------15 ERIC S. FISHMAN, S.R.16 17 18 Dated:__________________19 20 21 22 23 24 25

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