November 13, 2024 Planning Board Special Meeting Transcript - WEHI

he 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. Let’s not -- he 2 didn’t say miraculous. 3 MR. AFRAN: I’m being an advocate. 4 THE CHAIRPERSON: Okay. And this is 5 wonderful but let’s focus on the IH-1 zone. Those 6 things traveled into the IH-1 zone -- 7 MR. AFRAN: And they’re there anyway. 8 THE CHAIRPERSON: Excuse me? 9 MR. AFRAN: They’re there already. If it 10 traveled into it, it’s relevant. 11 THE CHAIRPERSON: As long as it’s in the 12 zone, that’s what we’re going to discuss. 13 MR. AFRAN: Mr. Bagoff, I must point out, the 14 witness repeatedly said how favorable this is because 15 the developer is willing to pay the high cost of this 16 deer fencing. It’s entirely proper for me to ask is 17 this proposal in place of the otherwise very high cost 18 the developer would have to pay to plant and replace 19 the trees. 20 THE CHAIRPERSON: And he did testify to that. 21 I’ll let him answer that because he did. 22 MR. AFRAN: Well, that’s what I asked. 23 THE CHAIRPERSON: Then he can testify to it. 24 MR. AFRAN: That’s all I asked. 25 THE CHAIRPERSON: And that’s what we’re going 68 1 to do. 2 MR. AFRAN: Good. 3 THE CHAIRPERSON: Thank you. 4 MR. AFRAN: We’ve reached consensus. 5 Q Do you remember the question? 6 A I think I have it. The simple fact is that the 7 deer fence -- if the applicant simply did a tree 8 replacement plan, the odds are better than even that 9 those trees would simply have been destroyed by the 10 deer. The idea of the deer fencing was in lieu of 11 simply planting lots and lots of trees which would 12 probably not survive and in my experience don’t 13 survive. 14 The fact is, the deer fencing would help to 15 regenerate the forest at a better rate and make for a 16 healthier forest. So it was a discussion of how much 17 deer fencing could we get the developer and could we 18 get regenerated forest. Deer fencing will leave to a 19 healthier forest with greater undergrowth than planting 20 trees. 21 Q Wasn’t it a fact that the deer fencing was 22 raised in substantial part because of the extremely 23 high cost of replacing the trees under the ordinance? 24 MR. PLOCKER: I’m going to object. The 25 settlement agreement references that. It speaks for

69 1 itself. It references another provision. My client is 2 providing a substantial set aside before 3 (indiscernible). Under the Mount Laurel doctrine and 4 its progeny as an inclusionary developer represents a 5 protected class of individuals in need of the housing. 6 The regulation is applicable to an 7 inclusionary developer, to the court settlement and 8 even to this Board talk about the reduction of cost 9 generative items. And it also talks about other 10 things. And Mr. Afran likes to say oh, well, the Board 11 is not bound by the settlement agreement. But the 12 settlement agreement does reference certain regulations 13 in that an inclusionary developer, applications are 14 looked on more favorably -- inferences are made. 15 The applicable regulations encourage the free granting 16 of variances, waivers, relief to make inclusionary 17 developments happen. 18 So, to the extent things like that are in the 19 settlement agreement, yes, and I believe Mr. Afran read 20 the provision. It does reference. I think it can be 21 easily inferred from this agreement that there was a 22 cost generative item with compliance, strict 23 compliance, with the tree ordinance. So, a combination 24 of that combined with what Mr. DeFeo testified to, is 25 reflected in the settlement agreement. 70 1 MR. AFRAN: Well then if it’s reflected in 2 the settlement agreement, then my question is perfectly 3 relevant. 4 THE CHAIRPERSON: What was the question? 5 MS. McGOVERN: I think the question is -- 6 THE CHAIRPERSON: Mr. Afran, is the question 7 which I believe was testified to, let’s just be clear 8 here, is with the deer fencing, you bring a longevity 9 to the forest at whatever cost as opposed to just 10 replanting trees. In your professional opinion, would 11 replanting trees get the same result as the deer 12 fencing would. Is that the question that you’re 13 asking? 14 MR. AFRAN: It’s a lovely question but it’s 15 not what I asked. 16 THE CHAIRPERSON: Ask the question again. I 17 want to understand. 18 MR. AFRAN: I asked, isn’t it a fact that the 19 deer fencing proposal was raised in order to free the 20 developer of the extremely high cost of replacing trees 21 under the ordinance. 22 MS. McGOVERN: I think he’s given several 23 reasons why he suggested deer fencing -- 24 MR. AFRAN: I don’t understand, Ms. McGovern, 25 why -- I don’t mean to be rude or anything -- why

ordinance. 22 MS. McGOVERN: I think he’s given several 23 reasons why he suggested deer fencing -- 24 MR. AFRAN: I don’t understand, Ms. McGovern, 25 why -- I don’t mean to be rude or anything -- why are 71 1 you interjecting? It’s a straightforward question. 2 MS. McGOVERN: I don’t know that he has the 3 expertise to answer that specific about cost. 4 MR. AFRAN: He has the expertise to answer 5 what he heard and what was traded back and forth. 6 That’s the point of the question. 7 MS. McGOVERN: And that’s exactly what you’re 8 asking for, is what went on in the back room trading 9 back and forth. 10 MR. AFRAN: No, I’m not asking for what went 11 on in the back room. 12 MS. McGOVERN: Yes -- 13 MR. AFRAN: Mr. Plocker already helped us out 14 greatly by admitting that the alternative of replacing 15 the trees by cost was referenced in the settlement 16 agreement. Therefore, it’s a relevant question to ask 17 him isn’t it a fact that the deer fence proposal was 18 raised to free the developer of the very high cost of 19 replacing trees under the ordinance. 20 MR. PLOCKER: I object to the form of that 21 question. I know this is not a deposition but that is 22 a very loaded question with a lot of characterization. 23 MR. AFRAN: It’s cross examination. We’re 24 not here to serve tea. 25 THE CHAIRPERSON: We’re not going to raise 72 1 our voices, you guys. 2 MS. McGOVERN: And we’re also not in trial. 3 Mr. -- Mr. DeFeo -- 4 THE CHAIRPERSON: Yeah, if you have the 5 information that is not privileged. 6 MR. AFRAN: Wait a second. It’s a 7 straightforward question. It relates directly to the 8 relevant statements made in the settlement. All of 9 these directions -- if you have the information, if 10 it’s not privileged -- are really carving out answers 11 from the witness. He should answer naturally on his 12 own. 13 THE CHAIRPERSON: Can you answer, Mr. DeFeo? 14 THE WITNESS: I’m not certain I can answer 15 the question exactly as asked. I can say, however, 16 since it’s been asked several different ways, what I 17 can say is deer fencing is an alternative to the 18 replacement of trees, both of which have a cost. 19 In my opinion, the deer fencing is a more 20 effective use of money from the developer. I did not - 21 - I can’t answer whether it’s a dollar for dollar 22 savings. I think that answers the question, but I 23 don’t know. 24 Q My question as asked stands.

use of money from the developer. I did not - 21 - I can’t answer whether it’s a dollar for dollar 22 savings. I think that answers the question, but I 23 don’t know. 24 Q My question as asked stands. Is that the 25 answer you’re giving, Mr. DeFeo?

73 1 A That’s the answer I can give you. 2 Q You mentioned that if trees were replaced, 3 they’d be eaten by the deer and we wouldn’t get 4 anything out of it anyway. That’s the summary of what 5 you said, right? 6 A Not exactly. But I said if trees were simply 7 replaced with trees which, of course, would be small 8 trees, relatively speaking, that there’s a good chance 9 that those trees might not survive. With deer fencing, 10 a natural receding of the forest and the natural growth 11 of seedlings have a much higher probability of 12 survival. 13 Q You said that in the area of disturbance 14 there are going to be native plants planted by the 15 developer, correct? 16 A The developer is limited to using native plants in 17 the area of disturbance -- in their landscaping plan, 18 let me be more specific. 19 Q And you said well that will help, 20 potentially, re-seed areas with native plants? 21 A Correct. 22 Q Now, deer eat native plants, right? 23 A Yes. 24 Q So, the developer is going to put these 25 native plants in the landscaping plan in the unfenced 74 1 area where the deer will congregate, won’t the deer eat 2 those native plants? 3 A Well, first you’re making several presumptions. 4 One, that the deer are immediately going to congregate 5 just in the paved areas of the property, which is 6 unlikely. They will certainly come there -- 7 Q Don’t deer walk down sidewalks, streets, all 8 over town? 9 A They do. They walk up my driveway. They will 10 walk around -- 11 Q Okay. So why do you think they won’t go to 12 plants in the paved areas? 13 A You did not listen to my answer, but I’ll try 14 again. What I am saying is, the deer can, in fact, go 15 to the landscaped area. There are precautions that the 16 developer can take with the trees that they plant in 17 that area because they are limited in number. There 18 are a number of protective measures they could take for 19 those young trees. 20 For the other plantings -- shrubs, et cetera, 21 and flowering plants, as I testified to on several 22 occasions, they can use a deer repellent system and 23 that repellent system can be applied on a regular 24 schedule if they so choose. It really is their call. 25 I can’t say what they would do, but if I was 75 1 investing that kind of money in plantings, I might 2 consider investing in a monthly repellent system which 3 will significantly reduce deer browse. It

can’t say what they would do, but if I was 75 1 investing that kind of money in plantings, I might 2 consider investing in a monthly repellent system which 3 will significantly reduce deer browse. It does not 4 eliminate it, but it can significantly reduce it. 5 They could also use small and limited fencing 6 criteria around areas. If they have congregated 7 shrubs, they could put a mild -- I call it deer fencing 8 light -- but basically small fencing which you’ve 9 probably all seen around plants in certain areas. Any 10 combination of their actions would help to reduce the 11 damage to their horticultural plantings. 12 Q Is there presently a landscape plan that 13 you’ve seen that contains the repellent measures? 14 A The landscape plan would not include something 15 like that. 16 Q Are you aware of any deer repellent measures 17 the developers yet committed to? 18 A Again, nothing in the plan would reference that, 19 that I am simply answering your question is can 20 plantings be protected and the answer is yes, they can 21 be, but it is not part of the application. 22 Q Thank you. That answers my question 23 actually. Thank you. Now, it’s fair to say that you 24 proposed the deer fencing plan, correct? 25 A No. 76 1 Q Who proposed the deer fencing plan? 2 A I proposed the concept of deer fencing. The plan 3 was ultimately developed by the planner. 4 Q But the idea of the deer fence as a measure, 5 a remedial measure for lack of a better word, came from 6 you, initially, is that right? 7 A I think the concept -- yes, I can safely say the 8 concept was mine, yes. 9 Q Okay. Now, let me ask you a question. 10 Looking at the site as it is today, not the developed 11 site that appears in SP-11 on the screen, what 12 proportion of this 120 acre forest is core for interior 13 forest versus edge? 14 A I’ve not done that calculation. I can’t answer 15 that. 16 Q Thank you. What is the effect of creating an 17 edge in the interior of a forest on the health of the 18 forest? 19 A I’m not quite sure what you’re asking. Could you 20 clarify? If you’re asking what is an edge zone -- is 21 that what you’re asking me? 22 Q Well, why don’t you start off by saying what 23 you understand in the question, what is an edge zone? 24 A If you’re asking me what an edge zone is, an edge 25 zone is the border between a forested area and an un-

77 1 forested area, typically developed by grasslands or 2 non-trees. The best way would be to show you a 3 picture, I presume. Let me go forward here. Sorry, I 4 don’t remember where all the pictures are. 5 All right. So, if you look in this image, 6 for example, now this is showing you what a protected 7 area and unprotected area would look like and by the 8 way, it goes to an earlier question, there is a growth 9 and forest after nine years, this area right here would 10 effectively be what you would call an edge zone. It’s 11 an edge between a forest and an unforested area. 12 Q Now, you can also create edge zones 13 artificially by clear cutting 27 acres in the interior 14 of a forest, isn’t that correct? 15 A You create an edge zone by creating anywhere where 16 there’s a forested area meeting an unforested area. 17 West Essex, sorry, the development below is an edge 18 zone all along this developed area, where all these 19 homes are is an edge zone. All these homes preexist as 20 an edge zone. This is an edge zone. 21 Q Now, when you create the area of disturbance 22 in the center of SP-11 along with the roads that 23 connect, have you calculated how many feet or miles of 24 edge zone are being created in the interior of this 25 forest? 78 1 A No. 2 Q Why not? 3 A Unnecessary for the purposes that I was retained. 4 Q Well, what were those purposes in your 5 understanding? 6 A To develop this site in the best way possible for 7 the environment. 8 Q And don’t you think that examining how much 9 new edge zone is being created in the interior of this 10 forest would be relevant to the health of this 11 environment? 12 A Based on this plan, no. 13 Q Would you agree that edge zones create areas 14 of forest degradation beginning at the point of the 15 edge and going into the interior? 16 A Edge zones inherently are not damaging to the 17 interior of the forest, edge zones are created 18 naturally every time a tree falls or a forested area is 19 damaged, so I wouldn’t necessarily agree with that. I 20 would agree, of course, where there’s disturbance the 21 area of disturbance, the area outside, to give you this 22 context here. You see, you have a road here and as I 23 testified already, certainly when I cut this road I’ve 24 already testified that any trees along the very outside 25 edge here may, in fact, be impacted negatively by that 79 1 because of

and as I 23 testified already, certainly when I cut this road I’ve 24 already testified that any trees along the very outside 25 edge here may, in fact, be impacted negatively by that 79 1 because of their roots being cut. And how far in that 2 would go, it depends on the depth but, most likely, no 3 more than one or two trees in. It’s not going to go 4 very far into the forest. 5 Q Isn’t it a fact that most foresters and 6 people who work in this field believe that an edge zone 7 generally incorporates 300 feet from the edge to the 8 interior? 9 A I couldn’t answer for most foresters. 10 Q Are you familiar with this concept? 11 A I’m familiar with foresters having a concept of 12 buffers and impacts that go beyond the roads that they 13 cut to forest and lodge, sure. But, I have not 14 specifically analyzed it to this particular project. 15 Q Well, wouldn’t it be relevant if edge zones 16 can damage the interior of a forest, to determine how 17 deep the edge will be from the area of disturbance in 18 order to figure out how much forest is going to be 19 left? 20 A No, you’re over simplifying this pretty badly. 21 What this would do, the indication or the implication 22 you’re making is that the developed area is going to 23 somehow have an impact that -- and this is not to 24 scale, I can’t give you the scale, but, is going to 25 negatively kill an entire area out here. There’s no 80 1 presumption for that. The fact is that the developer 2 will have someone on site, retained by the township, to 3 ensure that minimum damage is done to this area, in 4 terms of it expanding out. The area will be gated, 5 fenced -- not gated, I’m sorry, will be fenced off or 6 marked off so that equipment is limited in its impact. 7 Absolutely, there will be an impact. Any 8 time you disturb land you have an impact. There’s no 9 argument about that. 10 Q Are you in a position as a professional or 11 expert to discuss the depth of impact on the 12 surrounding woods as caused by the creation of new 13 edge? 14 A I would not make a comment to that in this, I have 15 not analyzed it. 16 Q And do you have the expertise to provide a 17 professional answer to my question if you had analyzed 18 it? 19 A I would have consulted with my foresters and I 20 would have come up with an answer if I was asked to, 21 but, I don’t need to see this impact. 22 Q Is it fair to say that it’s the

nalyzed 18 it? 19 A I would have consulted with my foresters and I 20 would have come up with an answer if I was asked to, 21 but, I don’t need to see this impact. 22 Q Is it fair to say that it’s the foresters who 23 would have the expertise to answer this question? 24 A Foresters would have expertise in general impact, 25 they don’t necessarily know the specific site, but they

81 1 could use general knowledge. 2 Q Is it fair to say that as compared to you, 3 it’s the forester who would have the expertise to 4 address the issue of damage caused be creating new edge 5 in the interior of the forest? 6 A I don’t know that a forester would have any more 7 knowledge of that compared to an environmental 8 scientist, but, they would have look at it more often, 9 certainly. 10 Q But, you agree you don’t have that expertise 11 yourself. 12 A I haven’t looked at it, so I can’t answer the 13 question because I haven’t looked specifically to give 14 you that answer. I would understand the studies, I 15 would be able to read the analysis and certainly report 16 on it, but I didn’t in this case. 17 Q All right. So, in any event, you’re not able 18 to answer the question because you didn’t do that 19 analysis. 20 A Correct. 21 Q Okay, thank you. Now, I just want to go back 22 for one moment. You referred to your academic work 23 taking some courses in forestry or teaching some 24 students and you did report. I forgot what year you 25 graduated in your masters program, I’m sorry. 82 1 A My undergraduate was 1980, my graduate was ‘82. 2 Q Okay, thank you. Now, in your report, you 3 make a statement -- well, let’s go back. It was mostly 4 in answer to questions from the public that you made 5 the following statement, as I recall. You compared the 6 photographs for this forest going back a certain number 7 of years and you indicated there’s been no change in 8 the tree canopy in that span of time. Do you recall 9 those general answers? 10 A Generally, yes. They go to the slides that were 11 up here. 12 Q And then went back I think about 30 years 13 those slides, right? 14 A I don’t believe that far. Twenty-two years. 15 Q Now, in this 22 year period you testified 16 that you did not observe any death of -- death, 17 d-e-a-t-h, death of tree canopies of any substance in 18 the different photographs that we saw, is that correct? 19 A What I testified to is based on my general 20 observations, I don’t see any major impact. But, 21 that’s what I testified to not specifically. And as I 22 pointed out in this testimony of these three particular 23 images, this is just meant to show an overview of the 24 site. Had I gone back further and I do have -- there 25 is an old photograph, it’s really not very good, very 83 1 hard to see, from 1985 when the entire