October 30, 2024 Planning Board Special Meeting Transcript - WEHI

ntioned that it is,24 this is designed to encourage more area to be fenced in25 31 or you made some testimony about that. Can you refresh1 my recollection on that?2 THE WITNESS: Yes. The statement was during3 negotiations, the question was, how can I get, and work4 with the township to maximize preservation of the forest5 and encourage regrowth of that forest. Having seen its6 health status in this first time I went through it the7 best way, as I know to go to, to regenerate a forest is8 deer fencing. But as I stated, deer fencing on a linear9 footage basis is very expensive to install and it's10 often considered the last thing you want to put in11 because of cost. Not because it doesn't work, but12 because people don't want to spend the money, especially13 for this style deer fencing. This isn't like what you14 put in a backyard. Advice was to encourage the15 applicant to fence more area. The negotiations -- in16 the negotiations the recommendation was made and17 accepted to give more credit for more acreage of deer18 fencing.19 COUNCIL PRESIDENT RUTHERFORD: So the, do we20 have any data on the cost of the deer, to install this21 deer fencing versus the cost to replace or replant the22 trees?23 THE WITNESS: The cost of the deer fencing24 that I have calculated is about $20 per linear foot. I25 32 did not calculate the total linear footage on 33 acres,1 but the cost to replant the forest I will tell you most2 likely would be less on the initial planting depending3 on the saplings and seedlings you plant. However, you4 would be doing that every year and every year they would5 be eaten and destroyed, as they have been now. That's6 why there are no seedlings in the forest, or very7 little.8 COUNCIL PRESIDENT RUTHERFORD: All right.9 Just a moment ago the Mayor asked a question10 about the net number of required trees to be replaced.11 It's one of your slides. Top of the slide says, Tree12 Preservation Restoration Plan.13 THE WITNESS: Yeah, this one.14 COUNCIL PRESIDENT RUTHERFORD: It says, net15 required replacement is 1498 trees over the requirement.16 THE WITNESS: Correct.17 COUNCIL PRESIDENT RUTHERFORD: I didn't18 understand that answer.19 THE WITNESS: The answer was, I don't have,20 it was based on your tree ordinance. I just don't have21 what the required calculation is based on that ordinance22 at the time of negotiation, which is how this came23 about. I

r was, I don't have,20 it was based on your tree ordinance. I just don't have21 what the required calculation is based on that ordinance22 at the time of negotiation, which is how this came23 about. I don't have that baseline in front of me, but24 that's what it is based on.25

9 of 80 sheets Page 33 to 36 of 203 11/06/2024 03:21:43 PM 33 COUNCIL PRESIDENT RUTHERFORD: So, so it was1 based, the number, the net number, and I'm a layman so2 you got to help me understand this. The net number of3 required trees to be replaced is almost 1500 more than4 what the ordinance would have required at that time?5 THE WITNESS: No, it would be less. We're6 giving credit for 279 native trees. They're getting a7 credit of 7123 trees for the deer fencing based on the8 density of trees and acreage that's being deer fenced.9 That is 1500 trees more than they would have been10 required to replant. So this number would be 1500 less11 is the point. We're giving -- the credit given to deer12 fencing is designed to maximize the forest. Sorry.13 MS. MCGOVERN: I just want to confirm,14 you're talking about the ordinance, are you talking15 about the ordinance for, for this zone or are you16 talking about the tree ordinance?17 THE WITNESS: The tree ordinance.18 MS. MCGOVERN: That was in general for the19 whole town?20 THE WITNESS: In general for the whole town.21 MS. MCGOVERN: That was what the Chairman22 handed you a copy of, the ordinance for this zone, so23 that's different?24 THE WITNESS: No, that's --25 34 MS. MCGOVERN: So that is not good. Okay.1 THE WITNESS: No.2 COUNCIL PRESIDENT RUTHERFORD: So what is3 the formula?4 THE WITNESS: I don't have the formula in5 front of me for the ordinance.6 COUNCIL PRESIDENT RUTHERFORD: No, what is7 the formula used to determine the credit for the deer8 fencing?9 THE WITNESS: 212 trees per acre times 3010 acres.11 COUNCIL PRESIDENT RUTHERFORD: So --12 THE WITNESS: I mean, you can't use 212 per13 acre to calculate the number of trees removed without14 giving the same credit to put them in. So it's an15 equivalent value either way.16 COUNCIL PRESIDENT RUTHERFORD: So the deer17 fence credit is 212 trees per acre that's fenced in?18 THE WITNESS: Correct.19 COUNCIL PRESIDENT RUTHERFORD: And that gets20 you 7000 trees?21 THE WITNESS: Correct.22 COUNCIL PRESIDENT RUTHERFORD: So by not23 planting a single tree or shrub or anything else, this24 applicant gets a credit for over 7000 trees planted?25 35 THE WITNESS: That's correct.1 COUNCIL PRESIDENT RUTHERFORD: Okay.2 I just want to understand, that doesn't seem3 logical to me.4 THE WITNESS: Well, you have to understand5 the condition of the forest. Right now you have a6 forest

COUNCIL PRESIDENT RUTHERFORD: Okay.2 I just want to understand, that doesn't seem3 logical to me.4 THE WITNESS: Well, you have to understand5 the condition of the forest. Right now you have a6 forest that effectively, for practical purposes, is in7 decline. If you want to regenerate and bring that8 forest back you must do something. So you can do any9 number of things, there are lots of plans and lots of10 programs that are used to regenerate forests, many are11 unpopular. For example, in the South Mountain12 Reservation, I'm sure you've all heard of deer hunts. I13 don't think that would be highly popular, but it14 certainly would help, if you were in a pure mathematical15 perspective.16 I will say to you at Duke Farms, their17 program it required taking out hundreds and hundreds and18 hundreds of deer, because that's the only way in their19 mind, because that has a different plan. That's not20 part of this. However, what we do know is deer fencing21 on its own will work, does take time, obviously. And we22 know it's extraordinarily expensive. Planting a tree is23 not that expensive. Planting a tree that will be killed24 is not much value. It doesn't regenerate the forest.25 36 It does nothing for the forest really. This, giving1 them a credit, offsets the cost of that deer fencing,2 which is extraordinarily expensive. Again, we're not3 talking about putting in a nylon fence on plastic posts.4 We're talking about a New Jersey Department of5 Agriculture approved designed deer fence, and as you saw6 that's galvanized wire. The more you know metals,7 galvanized wire is expensive, on wooden posts with cross8 supports. This is not something you just put in. The9 $20 per linear foot by the way I believe was for the10 fencing not for the installation. Plus posts.11 COUNCIL PRESIDENT RUTHERFORD: You said, you12 mentioned something in your testimony that the13 settlement agreement allows more trees to be taken down14 than actually are, did I hear that right?15 THE WITNESS: Yes, because in the settlement16 agreement they were allowed, if I recall, I don't have17 that in front of me right now, but it is that they only18 had, number one, put in 30 acres of deer fencing and19 they were allowed to disturb over 30 acres of land. I20 would defer to the planner for the exact numbers, but21 they have proposed less than 30 acres of disturbance.22 So therefore there is less

and19 they were allowed to disturb over 30 acres of land. I20 would defer to the planner for the exact numbers, but21 they have proposed less than 30 acres of disturbance.22 So therefore there is less trees down.23 MR. KLEIN: And more fencing?24 THE WITNESS: And more fence. They proposed25

11/06/2024 03:21:43 PM Page 37 to 40 of 203 10 of 80 sheets 37 3.6 acres more deer fence and I want to say 2.3 acres1 less of disturbance, plus or minus. So equivalently2 that's like saying six acres less of any disturbance.3 Which is significant acreage.4 COUNCIL PRESIDENT RUTHERFORD: Mr. Chair, or5 perhaps to our board attorney, we've heard this6 settlement agreement being referenced multiple times in7 the testimony by various people, including Mr. DeFeo8 tonight. Is the planning board a party of that9 settlement agreement?10 CHAIRMAN BAGOFF: It is not.11 COUNCIL PRESIDENT RUTHERFORD: Are we bound12 by that settlement agreement?13 MS. McGOVERN: What you're bound by is the14 ordinance that was drafted as a result of the settlement15 agreement. So this ordinance came and was passed by the16 council, whenever that was, back a few years ago and17 that's what the planning board is reviewing, whether18 this application meets the standards that have been set19 in that ordinance and a lot of the references to the20 settlement agreement are the rational and basis for why21 that ordinance was drafted the way it was.22 CHAIRMAN BAGOFF: And the ordinance created23 the zone, IH-1 zone. So they're looking at the24 requirement of the IH-1 zone.25 38 COUNCIL PRESIDENT RUTHERFORD: All right. I1 just wanted to be clear because it's been referenced2 several times and some cases it did say that the3 settlement governed. I want to be clear that that is4 not the case. I know Mr. DeFeo didn't say that, it's5 been said in prior testimony.6 MS. MCGOVERN: It governs because it was the7 basis for the ordinance. So it's the genesis of the8 ordinance. And you're following -- the planning board9 is required to follow the ordinance requirements for the10 zone.11 CHAIRMAN BAGOFF: Part of anything, any part12 of the Master Plan has a place in it.13 COUNCIL PRESIDENT RUTHERFORD: I see. I14 just wanted to be clear about our responsibility or, you15 know, requirement to follow the settlement agreement.16 MS. MCGOVERN: Mr. Plocker.17 MR. PLOCKER: No, and I thank Council18 President Rutherford because I think it's important.19 Mr. DeFeo did reference the settlement agreement20 multiple times, but can we just confirm so there is no21 confusion going forward so everyone here is on the same22 page and we have a clear record. The calculations that23 Mr. DeFeo referred to, the 212 per acre and all

can we just confirm so there is no21 confusion going forward so everyone here is on the same22 page and we have a clear record. The calculations that23 Mr. DeFeo referred to, the 212 per acre and all the24 numbers and the credit, I just want to confirm that is25 39 contained in the zoning ordinance?1 MS. MCGOVERN: Yes. So a lot of what's2 approved in the zoning ordinance was adopted in the3 ordinance.4 COUNCIL PRESIDENT RUTHERFORD: Understood.5 MS. MCGOVERN: It's really the ordinance6 that governs.7 MR. AFRAN: Yeah, I think Council President8 Rutherford's question goes to the question, is the9 settlement agreement itself binding as a separate entity10 from the ordinance and I'm not sure, Ms. McGovern, your11 answer, with due respect, necessarily explains this.12 The question I think is, is the settlement agreement a13 part of the ordinance or is the ordinance standing14 separately on its own?15 MS. MCGOVERN: I'm looking at the ordinance16 separately.17 CHAIRMAN BAGOFF: The settlement agreement18 created the ordinance.19 MR. AFRAN: Well, what is fair, adopted20 elements of that. The question I think Council21 President is asking is to what extent is the settlement22 agreement itself a binding document on the board.23 MS. MCGOVERN: This board had nothing to do24 with the settlement agreement. The board is following25 40 the ordinance --1 MR. AFRAN: Of course it didn't.2 MS. McGOVERN: -- and I think a lot of the3 crossover has to do with the fact that a lot of the4 information in the settlement agreement is replayed in5 the ordinance.6 COUNCIL PRESIDENT RUTHERFORD: And what7 would be helpful for me if instead of all these8 references to the settlement agreement, which all of us9 have now heard for months, that we would then reference10 the ordinance instead of the settlement agreement.11 Especially when there may be some confusion or there may12 be elements in the settlement agreement that's not in13 the ordinance.14 CHAIRMAN BAGOFF: That's a very good point.15 We will continue to do that.16 MR. PLOCKER: And one thing I can represent17 is that the ordinance was a -- a draft of it was18 attached as an exhibit to the settlement agreement and19 the town council adopted that ordinance in that form.20 MS. MCGOVERN: Yes, so that is part of the21 crossover. So the ordinance was attached to the22 settlement agreement but the board is reviewing this in23 terms of

adopted that ordinance in that form.20 MS. MCGOVERN: Yes, so that is part of the21 crossover. So the ordinance was attached to the22 settlement agreement but the board is reviewing this in23 terms of following the ordinance.24 COUNCIL PRESIDENT RUTHERFORD: Understood.25

11 of 80 sheets Page 41 to 44 of 203 11/06/2024 03:21:43 PM 41 MR. AFRAN: Thank you.1 COUNCIL PRESIDENT RUTHERFORD: Mr. DeFeo,2 you mentioned South Mountain Reservation, which is a3 property nearby, I assume all of us are familiar with4 it. Are there any other spaces near by that use deer5 fencing?6 THE WITNESS: In terms of -- excuse me. In7 terms of deer fencing you're saying. Top of my head --8 well, I consider Hillsborough nearby, you might not, but9 Hillsborough would be the largest example I know of.10 Otherwise they're randomly throughout. Certain gardens,11 I can't speak specifically of each one, botanical12 gardens or horticultural gardens will often use deer13 fencing to protect in this area. I didn't go look at14 them. The ones I know of are the two I cited because15 they're the largest that I know of.16 COUNCIL PRESIDENT RUTHERFORD: Is there data17 from either South Mountain or Hillsborough that shows18 over the course of time the growth of the undergrowth in19 the forest?20 THE WITNESS: Oh, I just gave you21 photographic evidence, that's all from Duke Farms.22 COUNCIL PRESIDENT RUTHERFORD: That's a23 picture, is there data?24 THE WITNESS: You can go to Duke Farms25 42 website and you can read a study of their deer fencing1 project. You know, go right to Duke Farms Foundation2 and you would find their studies right there. I mean, I3 can get it for you.4 MR. AFRAN: With respect, I would raise an5 objection to the suggestion that the board --6 CHAIRMAN BAGOFF: Mr. Afran. Go ahead, sir.7 MR. AFRAN: With respect to Mr. DeFeo, he's8 not a lawyer, I understand that.9 THE WITNESS: Thank you.10 MR. AFRAN: I would raise an objection to11 the suggestion that the board may independently look at12 website discussions that are not being offered into13 evidence.14 MS. MCGOVERN: He raises a good point. Mr.15 DeFeo do you want to like summarize, just summarize16 briefly what those findings are, if you have them here,17 if not we can introduce it as an exhibit later on.18 THE WITNESS: I can certainly do both. In19 brief the study at Duke Farms, and they had a, I was not20 able to attend it, but about two or three years ago they21 had a seminar on this as well and I did talk to one of22 the people giving the seminar. Their findings were that23 within three to four years you had significant24 undergrowth come back into the forest. In three to five25 43 years you

I did talk to one of22 the people giving the seminar. Their findings were that23 within three to four years you had significant24 undergrowth come back into the forest. In three to five25 43 years you will see basically a new forest growing within1 the old forest and the deer no longer did damage.2 That's about as short a summary I could give you. But I3 would happily attach it and give you an amended report4 going forward.5 CHAIRMAN BAGOFF: I'm going to request that6 he send this to our secretary. It would be posted on7 our website and provide it to Mr. Afran and Mr. Plocker.8 THE WITNESS: Be my pleasure.9 COUNCIL PRESIDENT RUTHERFORD: My last10 question, Mr. DeFeo, at least for now, would be, is11 there any data with regard to projects similar to this12 one where you have an old growth undisturbed forest that13 gets developed utilizing deer fencing or a portion of14 it, with regard to storm water runoff? You mentioned in15 your testimony that the undergrowth will act like a16 sponge, is there any data around that?17 THE WITNESS: There is. I did not include18 it in my report, it wasn't part of what I was looking19 for. I'm happy to look up those reports for you and20 give you, again, a supplemental report showing that new21 growth absorbs water at a faster rate than older growth.22 That's a finding that's out there. I would gladly do23 that.24 CHAIRMAN BAGOFF: So I would request that,25 44 Mr. DeFeo.1 MR. KLEIN: Quick follow up.2 CHAIRMAN BAGOFF: Mayor McCartney and then3 Mr. Klein.4 MAYOR McCARTNEY: I was going to say that5 the County can also provide their findings on the deer6 fencing that they used in South Mountain.7 CHAIRMAN BAGOFF: We're going to let Mr.8 DeFeo do that, but thank you, Mayor.9 THE WITNESS: I'm happy to look at that as10 well.11 CHAIRMAN BAGOFF: Mr. Klein.12 MR. KLEIN: Are there different coefficients13 of runoff and things? Would you say the existing forest14 and condition that it's in has a certain absorption15 value or certain runoff value and then three to five, 1016 years from now it will have a different runoff or17 absorption value and it would be a greater absorption,18 less runoff. Is that -- I know gravel is different than19 asphalt, different than grass, different than --20 THE WITNESS: Grass is not a whole lot21 different than gravel and asphalt quite honestly. But,22 yes, there are such studies, I don't have them.