November 13, 2024 Planning Board Special Meeting Transcript - WEHI

49 1 A The WREEC, those manuals were K to 12. 2 Q Now, what did you write your master’s thesis 3 on? 4 A I did not -- I did a master’s on the 5 interpretation -- I had two things I did for a 6 master’s. There were two paths I could take. The 7 first was called a comprehensive examination system 8 which I did take, and obviously passed. 9 The second was a thesis on the interpretation 10 of a natural area which was the Delaware and Hudson 11 Canal in Port Jervis, New York on natural 12 interpretation of the site. 13 Q What does natural interpretation refer to? 14 A Interpretation of natural areas. Like, you might 15 see, you know, when you go to a park, a national park, 16 a ranger will give you interpretations of nature as a 17 naturalist. It was my writing helping to write the 18 curriculum and studying the park for that. 19 Q Now, the Learning Tree Project was also an 20 educational program for school children, in effect, 21 right? 22 A Yes. 23 Q Okay. Now, you mentioned you did a report 24 during your Master’s degree program. When did you 25 graduate in your master’s degree program? 50 1 A Eighty-two. 2 Q Eighty-two. Now, in terms of your 3 professional experience, your resume from your website 4 doesn’t refer to anything dealing with forestry, would 5 you agree? 6 A Correct, because I’m not a forester. 7 Q And it doesn’t refer to anything dealing with 8 any areas -- strike that -- it refers to the following: 9 Sustainable solutions for commercial, institutional and 10 residential buildings, am I correct? 11 A Sounds correct. I don’t have it in front of me. 12 I’ll trust you. 13 Q Development of environmentally friendly 14 purchasing policies, does that sound right? 15 A Mm-mm -- yes, it does, sorry. 16 Q Energy reduction strategies? 17 A Yes. 18 Q LEED building practices? 19 A Yes. 20 Q Recycling? 21 A Yes. 22 Q Solid waste handling systems? 23 A Yes. 24 Q It also refers to -- strike that. Now, it 25 does say you have successfully negotiated with county 51 1 government, New Jersey Department of Environmental 2 Protection, New Jersey Attorney General’s Office and 3 New Jersey Board of Public Utilities on issues ranging 4 from solid waste licensing to environmental and 5 regulatory changes covering many areas of environmental 6 concern. Do you have any more specific to add to that 7 rather broad statement? 8 A I don’t know what you’re looking for in the way

ntal and 5 regulatory changes covering many areas of environmental 6 concern. Do you have any more specific to add to that 7 rather broad statement? 8 A I don’t know what you’re looking for in the way of 9 specifics. I don’t have a way to answer that. I’ve 10 been in business for nearly 30 years. I can’t really 11 remember everything I’ve ever negotiated at this point. 12 Q Where in your CV that you published on your 13 website does it refer to deer management or deer 14 maintenance? 15 A It doesn’t. 16 Q It does not? 17 A No. 18 Q And where in your CV does it refer anywhere 19 to holistic analysis of ecological settings? 20 A With those specific words it doesn’t state that 21 but the entire premise of the CV is to get to that 22 point, is to explain to a potential client that if they 23 have an issue, we look at things holistically. We 24 don’t look at a specific item, per se, unless that 25 specific item has relevance to the holistic issue. 52 1 For example, you will see LEED green building 2 in there, as you read. In LEED green buildings, one of 3 the things we look at, depending on the development 4 that we are looking at, we will look at the plantings. 5 We will look at whether it’s virgin land vis-a-vis 6 forest or if it’s brownfield. We usually look at both. 7 We will look at energy. We will look at 8 water. We will look at runoff, we will look at 9 stormwater, we will look at ways to reduce all of 10 those. I have worked on projects where I’ve done the 11 calculations to reduce stormwater from roof lines and 12 how to meet certain standards for green building, 13 working with an engineer, of course. That -- 14 Q Does it say anywhere -- sorry, go ahead. 15 A No, go ahead. 16 Q Does it say anywhere in your CV that you 17 actually do work in the area of analyzing forests, 18 woodlands or other natural settings? 19 A No, it’s not called that. 20 Q Okay. Thank you. Now, tell us how you 21 became to be involved in the negotiating committee that 22 lead to what we’ve generally referred to as the 23 settlement agreement? 24 THE CHAIRPERSON: We’re going to stop right 25 there. No settlement agreement here. We have an

53 1 overlay zone. The Planning Board is involved -- sorry, 2 it’s a zone plan, not overlay zone. We’re not involved 3 with a settlement agreement. That is not before this 4 Board. 5 MR. AFRAN: The witness spoke repeatedly of 6 his participating in the negotiating committee that 7 lead to the settlement agreement. Cross examination 8 follows -- 9 THE CHAIRPERSON: We’re not going through the 10 settlement agreement. The Planning Board is involved 11 with a IH-1 zone and I want to keep it with the IH-1 12 zone. 13 MS. McGOVERN: There’s another issue also. I 14 mean, if Mr. DeFeo was retained through attorney/client 15 privilege communication, I don’t know what, in fact 16 happened. I wasn’t around at that point -- well, I was 17 around I just wasn’t (indiscernible). That really 18 treads on attorney/client privilege communication. 19 MR. AFRAN: Mr. DeFeo has not given the 20 slightest shred of indication that anything he did 21 involved any communications with attorneys. 22 MS. McGOVERN: Settlement negotiations are 23 typically privileged and not evidentiary. So, in terms 24 of how he got to that point and what was said in the 25 negotiating room, that’s not -- 54 1 MR. AFRAN: Well, number one, I didn’t ask 2 anything about what was said in the negotiating room at 3 this point. Secondly, I don’t necessarily accept the 4 premise that all of that area is somehow privileged. 5 No one’s established that. 6 MS. McGOVERN: I’m not saying it’s all 7 privileged but it’s touching upon that area and it’s 8 also far afield from what we’re doing here which is to 9 concentrate on the ordinance whether they satisfied the 10 requirements (indiscernible). 11 MR. AFRAN: Well, Mr. DeFeo’s testimony is 12 quite broad and far reaching. He also repeatedly 13 analyzed -- he referred repeatedly, first of all, to 14 his role on the negotiating committee. All I did was 15 ask him how he came to be on that committee. I think I 16 can go further. 17 THE CHAIRPERSON: I think I can go look at 18 what Matt said. There’s nothing about what was said in 19 the committee meeting. Of course that’s privileged. 20 MR. AFRAN: Well, number one, this idea that 21 it’s somehow privileged, I don’t know where it’s coming 22 from. Not every settlement negotiation in the world is 23 privileged, especially when it involves the town and 24 the developer and it becomes part of a public 25 submission. I

ow where it’s coming 22 from. Not every settlement negotiation in the world is 23 privileged, especially when it involves the town and 24 the developer and it becomes part of a public 25 submission. I haven’t even asked about the settlement 55 1 negotiation yet, so I think you’re being, perhaps, 2 overly zealous in protecting something I haven’t 3 touched yet. 4 MR. PLOCKER: I have to weigh in. Mr. 5 Plocker. There was a mediation conducted through the 6 court with a special master in a confidential 7 mediation. There was pending litigation. That 8 litigation was a litigation filed by the Township of 9 West Orange seeking compliance which is with its third 10 round now for all affordable housing obligation. 11 Any communications in that room, it is the 12 applicant’s position, or any drafts of documents, 13 anything that was not within the public domain remain 14 privileged as part of the settlement communications 15 under Rule of Evidence 408. 16 MR. AFRAN: The applicant wasn’t even in the 17 settlement as far as I know. Well, I’ll strike that. 18 First of all, the settlement agreement I’m holding up 19 right here. It has been publically released. All -- 20 MS. McGOVERN: That’s the culmination of all 21 those negotiations. 22 MR. AFRAN: I really don’t understand why I’m 23 being interfered with at all at this stage. I asked a 24 simple question -- how did you come to be on the 25 negotiating committee. 56 1 MS. McGOVERN: And Dr. Bagoff said, go ahead 2 and answer that question. 3 MR. AFRAN: I know. But I don’t know why the 4 constant statement is made well I’m not going to let 5 you go further. You don’t even know where I’m going 6 yet. 7 THE CHAIRPERSON: Okay, go there and we’ll 8 see what happens. 9 MR. AFRAN: Thank you very much. Thank you. 10 Q Mr. DeFeo, how did you come to be on the 11 negotiating committee? 12 A Mind you, that was six years ago now. I received 13 a call from the township attorney who said he wanted 14 assistance in the process and that was it. 15 Q And you participated in negotiations with 16 whom? 17 THE CHAIRPERSON: You can answer that. 18 A I would have met with West Essex Highlands 19 representatives and with Township representatives. 20 Q Now, in the settlement agreement, there is a 21 plan for a -- strike that, sorry. At Paragraph 2.5.4 22 headed Trees, there’s a reference to a tree study 23 commissioned by the Township which

es. 20 Q Now, in the settlement agreement, there is a 21 plan for a -- strike that, sorry. At Paragraph 2.5.4 22 headed Trees, there’s a reference to a tree study 23 commissioned by the Township which is, quote, reflected 24 in the tree study report of DeFeo Associates, dated 25 February 3, 2020.

57 1 Are you familiar with that study? 2 A Yes. 3 Q Have you presented that study to this Board? 4 A I think so. There have been a lot of papers 5 presented, but let me double check what was submitted. 6 You know, I don’t have my entire file with me. 7 Whatever I did submit to the Planning Board is posted 8 on the website. I’d have to look to see what was 9 submitted. 10 Q Well, as far as I know, I’m unaware of ever 11 seeing the February 3, 2020 tree study. Do you have 12 that in your possession in some way> Not here 13 necessarily but do you have access to it? 14 A Let’s just see if it was submitted. I did submit 15 as of this week or last week the original basis which 16 is what I was asked for in the last meeting was the 17 very original study on which my report was predicated 18 and that was submitted and posted. 19 Q When was that posted? 20 A Part of my letter was -- I believe it didn’t get 21 up until yesterday because we had technical problems. 22 Q Right. This was part of the material you 23 were going to post after the last meeting. 24 A But it was posted. 25 Q Yesterday? 58 1 A Yes because I couldn’t get it posted before 2 because of problems with the internet. 3 MR. AFRAN: Mr. Chairman, I’ll have to note 4 I’ve not yet had a chance even to see it so at some 5 point there may be supplemental questions on that 6 document. 7 Q In addition, the Duke’s Farm study, did you 8 post that? 9 A No, and as I posted in my supplemental report, 10 there is a statement in there that very specifically 11 says that what happened with the Duke Farm study is the 12 fact that I referenced the Duke Farm study. 13 The study was referenced in an article and 14 that was my reference to that because I personally 15 interviewed people at Duke Farms and I put the two 16 together here rather than remembering that I had done 17 the two separately. 18 So what I did post, however, was an article 19 that was published -- I’ll find that article which you 20 said you haven’t seen -- it’s called The State We’re In 21 and it was written by the New Jersey Conservation 22 Foundation which highlights the statements I made from 23 the Duke Farms study and also gives you a link, if you 24 so choose, as anyone so chooses I should say, if they’d 25 like to see the entire workshop that was given at Duke 59 1 Farms, about an hour long workshop on deer management 2 which is there for the

24 so choose, as anyone so chooses I should say, if they’d 25 like to see the entire workshop that was given at Duke 59 1 Farms, about an hour long workshop on deer management 2 which is there for the taking. 3 But in the reference that I give you in 4 regenerating native forest to fight climate change, the 5 statements -- the summary, and a very short summary, 6 I’ll grant you, of the Duke Farm study is presented and 7 that article was offered by Allison Mitchell, John 8 Watson, Tom Gilbert, Michelle Byer (phonetic) and 9 Michelle Byers (phonetic). 10 MR. AFRAN: Well, Mr. Chairman, a 11 representation was made at the last meeting that that 12 study would be posted. Members of the public asked 13 about it. The representation was made. I would ask 14 that Mr. DeFeo post it so at least in connection with 15 an upcoming meeting, we all have access to it. 16 Q Is there any technical reason, Mr. DeFeo, why 17 that can’t be done? 18 MS. McGOVERN: Okay. So, this is an online 19 study that anybody could find right now. 20 A The webinar is online. Anybody can find it -- 21 it’s public. The article that I submitted as part of 22 my supplemental report shows the link, so the link can 23 be taken and highlighted. 24 MR. AFRAN: Mr. DeFeo plainly relied on the 25 Duke’s Farm study as part of his testimony. That’s why 60 1 it was asked to be posted. We shouldn’t have to go 2 finding it -- the gentleman should post it. 3 MS. McGOVERN: Well, you know, this is not a 4 court of law with strict rules of evidence, so we -- 5 MR. AFRAN: And this is not a very strict 6 request. He said he would post it and for some reason, 7 it’s not. 8 MS. McGOVERN: And he gave you access to that 9 and -- 10 MR. AFRAN: Yesterday -- the day before we’re 11 here to do cross examination. It was supposed to have 12 been posted promptly so there would be time to use it 13 and study it. 14 THE CHAIRPERSON: One minute. 15 Okay. Mr. Afran, we’re going to ask Mr. 16 DeFeo to come back to the next meeting so you can 17 question on that specific document only. You can 18 continue questioning now -- 19 MR. AFRAN: Well, the documents that he 20 posted yesterday we need to question on plus the 21 missing document. 22 THE CHAIRPERSON: Yes. 23 MR. AFRAN: Thank you. 24 THE CHAIRPERSON: You got it. 25 MR. AFRAN: Thank you very much.

61 1 THE CHAIRPERSON: And we’re going to focus on 2 that next time. 3 MR. AFRAN: That’s fine. Absolutely. 4 THE CHAIRPERSON: Thank you. 5 Now, one moment -- Mr. DeFeo? 6 THE WITNESS: Just to be clear, the work that 7 was done by Duke Farms is a video conference. That’s 8 the study that was recorded. So, I don’t know what to 9 do other than to give you the link to the video 10 conference. 11 And as I stated in my secondary letter dated 12 December 6th -- I’m sorry, November 6th which, 13 unfortunately, we had trouble posting, I had stated 14 that I had interviewed the people at Duke Farms to draw 15 some of my conclusions, discussing the study with them. 16 I was inaccurate in my last testimony and I created -- 17 corrected that -- inaccurate in saying I had put the 18 two together. 19 I have seen the video. I talked to the 20 people at Duke Farms. I read the article and read 21 other deer studies. I don’t have a specific written 22 Duke Farms study to give you. It’s a video. I can’t - 23 - that’s posted. 24 MR. AFRAN: Well, that does clarify, Mr. 25 Chairman, but last week the representation was a study, 62 1 that’s why I asked. If you can just post the link, at 2 least that will be helpful. 3 THE WITNESS: It is posted. 4 MR. AFRAN: Great. Thank you. 5 Q Now, in Section 2.5.4 of the settlement 6 agreement, it references the following. The Township 7 and (indiscernible) recognize the importance of 8 preserving and/or optimizing the regeneration of the 9 forest in connection with the development of the 10 subject property. 11 But also recognize that the Township’s tree 12 protection and removal ordinance (Ordinance Section 13 25-7), (the tree ordinance), if applied to the proposed 14 development would constitute a cost generative 15 requirement contrary to Section 2.5.3 of this 16 agreement. 17 Now, is it fair to say that this is referring 18 to the cost of replacing those 6,000 plus trees under 19 the ordinary tree ordinance? 20 MR. PLOCKER: I’m going to object. The 21 settlement agreement speaks for itself. It was a 22 negotiated term and it was made part of the zoning 23 ordinance, that particular provision. 24 THE CHAIRPERSON: I’m going to say we’re 25 going to stay out of anything negotiated and stick with 63 1 the ordinance. Whatever is in the ordinance, that’s 2 what we’re going to follow. 3 MR. AFRAN: Well, I’m asking if, in fact, the 4 language I just

o stay out of anything negotiated and stick with 63 1 the ordinance. Whatever is in the ordinance, that’s 2 what we’re going to follow. 3 MR. AFRAN: Well, I’m asking if, in fact, the 4 language I just quoted is referring to what would be 5 the cost of replacing the trees under the ordinance. 6 Mr. DeFeo was a consultant to the committee. He’s 7 obviously familiar with this and it’s a proper 8 question. 9 THE CHAIRPERSON: Ms. McGovern? 10 MS. McGOVERN: I think you’re getting past 11 his expertise. He’s not here to interpret the 12 settlement agreement. 13 MR. AFRAN: To the contrary. He spoke very 14 clearly about the cost of deer fencing versus other 15 measures and -- 16 MS. McGOVERN: He is not here to interpret 17 this document. 18 MR. AFRAN: Well -- 19 MS. McGOVERN: The document is a negotiated 20 document prepared by attorneys and reviewed by the 21 parties as agreed to by the parties. 22 MR. AFRAN: Well, let me ask a question. 23 Q What role, Mr. DeFeo, did you play in 24 preparing the settlement agreement? 25 MR. PLOCKER: I’m going to object and just 64 1 say for the record, Mr. DeFeo did not prepare the 2 settlement agreement. 3 MR. AFRAN: I don’t know what Mr. DeFeo did 4 or did not and I don’t know how Mr. Plocker knows that. 5 MS. McGOVERN: Mr. DeFeo, did you prepare the 6 settlement agreement? 7 THE WITNESS: I did not. 8 Q Did you contribute to any of the items in the 9 settlement agreement? 10 MS. McGOVERN: Again, I think his testimony 11 is clear and I’m not going to answer for him but we’re 12 not going to go into the negotiation that took place 13 that resulted in this document. 14 Q Mr. DeFeo, who came up with the idea of deer 15 fencing in this agreement? 16 A I did. 17 Q And is it fair to say that you came up with 18 that as a replacement for the cost of placing trees 19 that the developer would otherwise have to bear? 20 A Not exactly as you stated. It came in as an 21 alternative because, if it’s allowable -- 22 MR. PLOCKER: Well, I think, Mr. DeFeo, with 23 all due respect, I’m just going to stop you there. 24 Object. 25 MR. AFRAN: He can talk -- well, he can

65 1 object, you can’t stop him. 2 MR. PLOCKER: I can continue talking without 3 interruption, too, so I’d like to do that. I think Mr. 4 DeFeo was going to go and start to refer to possible 5 discussions that may have been had during the 6 negotiations, so I would just ask him to tread 7 carefully in that area. 8 MR. AFRAN: I don’t know why we’re treading 9 so carefully. What’s in here is a public document. It 10 was released to the public. It forms the substantive 11 basis of why Mr. DeFeo is here. 12 MS. McGOVERN: That’s right. However, what 13 is on the table, what got taken off the table, what got 14 changed, that part is not in this document. 15 MR. AFRAN: It says specifically that -- 16 MS. McGOVERN: And that part is not going to 17 be discussed here because those settlement discussions 18 that are privileged communication. 19 MR. AFRAN: You don’t know that, Ms. 20 McGovern, with due respect. 21 MS. McGOVERN: I do know that. I know that 22 all settlement discussions on any cases in litigation, 23 they’re not evidentiary. 24 MR. AFRAN: I, number one, didn’t ask about 25 settlement discussions, per se. Number two, I reject 66 1 the premise you’ve raised that a settlement discussion, 2 a settlement document released to the public is so 3 subject to privilege, the questions about it can’t even 4 be asked in public. There’s no basis for it. There’s 5 no basis for blocking me. 6 THE CHAIRPERSON: Obviously, the basis is the 7 Planning Board was not part of -- it says it clearly in 8 the documents. The Planning Board was not a part of 9 the settlement agreement. We have nothing to do with 10 the settlement agreement. He -- 11 MR. AFRAN: You do have something to do with 12 (indiscernible). 13 THE CHAIRPERSON: The zone was adopted into 14 the Master Plan and the Board’s responsibility is the 15 zone in the Master Plan. So, anything that travels 16 from the settlement agreement into the master plan, we 17 can refer -- into the O-IH-1 zone, we can talk about. 18 As long as it belongs in the IH-1 zone, we can talk 19 about it. 20 MR. AFRAN: This witness retained by the 21 Board to be here repeatedly referred to the virtues of 22 this settlement proposal because the developer agreed 23 to pay for deer fencing which he says is such a 24 miraculous occurrence, he’s never even heard of it 25 before happening. So, the question of the -- 67 1 THE CHAIRPERSON: Okay.