November 13, 2024 Planning Board Special Meeting Transcript - WEHI

he impact that development would have 4 on that area because the rest of the forest was not 5 being disturbed. 6 Q But, you’re using the results from these 7 circled areas to discuss the health of the entire 8 forest, aren’t you? 9 A No, I’m using the results of these circled areas 10 to discuss the statistical number of trees in the 11 forest. 12 Q Well, didn’t you tell us that -- well, let me 13 ask you another question. How much of this forest did 14 you actually look at yourself? 15 A Myself? I’ve walked every inch of that forest. 16 Q Every inch of the forest. 17 A Well, let me be specific. I haven’t crawled 18 across it, but I’ve walked the perimeter of the forest, 19 edge to edge, top to bottom. 20 Q You’ve walked the perimeter around the 21 forest. 22 A Perimeter, I’ve walked through it, I’ve crossed 23 it. I’ve walked in different areas. I’ve walked up 24 and down in the areas, except for the wetlands. 25 Q Do you have notes of where you walked, what 100 1 you observed, what sections? 2 A Any of my notes -- anything I’ve seen is observed 3 and in the reports. 4 Q So, you have no other notes or records 5 showing where you went on the forest, aside from what 6 you’ve just generally described? 7 A No, other than the photographs I’ve submitted as 8 part of this. 9 Q Wouldn’t a scientist whose done your field 10 survey keep some sort of notes of the work they’ve done 11 and the places they’ve observed things on the property? 12 A I took photographs. 13 Q Well, you gave us one photograph if I’m 14 correct. 15 A There are multiple -- there are other reports that 16 have been submitted over the years, but, I don’t have 17 hundreds of photographs if that’s the question, but, 18 the presentation that was done, well, that’s not 19 relevant to this. The slides that I’ve shown here. I 20 don’t think it’s this presentation, I think it’s my 21 prior report. Forgive me -- 22 Q Well, that report is not here. The question 23 I’m asking is -- 24 A No, I mean the one I submitted, I’m sorry, the one 25 I submitted originally, I think.

101 1 UNIDENTIFIED SPEAKER: Is it the July one? 2 THE WITNESS: I think it’s the July one, 3 thank you. Thank you, because I can’t remember the 4 dates any more. 5 UNIDENTIFIED SPEAKER: I have -- there’s a 6 July 1 and there’s an October 16. 7 THE WITNESS: But, I think to answer you 8 question succinctly, no, I don’t have a study log or a 9 notebook log, if that’s what you’re asking me. 10 Q Now, the people from Amy Greene Environmental 11 who did the study plotting and did this work, did they 12 keep such records for the studies they did? 13 A I have no idea. They submitted a report to me. 14 Q You didn’t even ask to see their underlying 15 notes? 16 A No. 17 Q Okay. 18 A I asked to see the report. 19 Q Now, based on your testimony at the last 20 meeting, there’s one photograph of this forest that you 21 took and put in this report, is that correct? 22 A I’m not certain of the question, I’m sorry. 23 Q You put one photograph from this forest into 24 this report that’s on the screen, isn’t that correct? 25 102 1 A I think the only thing I put in here, yeah, here’s 2 the actual site. 3 Q Okay, so -- 4 A I guess, my presumption is, to answer your 5 question, I want to look to make sure I’m accurate by 6 the way. 7 Q Please take your time. 8 A It looks to be correct, yeah. The one picture was 9 used for illustrative purposes only, yes. Not meant to 10 be exhaustive. 11 Q Well, all photographs are for illustrative 12 purposes. I’m simply asking how many photographs of 13 this site did you include in this report? 14 A In this document, one. 15 Q Okay. Now, just scroll down a little so we 16 can get an identification for the record of the slide. 17 A I can’t control this, I’m sorry. 18 Q All right. There’s a -- 19 UNIDENTIFIED SPEAKER: Which slide do 20 you want? 21 THE WITNESS: I don’t know which one. 22 MR. AFRAN: The one which has the -- 23 well, the photograph, it has two photographs, one in 24 the lower left corner. 25 A Hang on, Joe, I think I can get back to it. 103 1 Q That’s it. 2 A That one? 3 Q Perfect, leave it right like that, thank you. 4 A Yes. 5 Q That’s a slide headed Example of excessive 6 deer browse, it contains two photographs, one on the 7 right side, one on the left. 8 A Mm-mm. 9 Q Now, do I understand your testimony that the 10 one on the left is the photograph you took of this 11 forest that we’re talking about? 12 A It’s -- yes. This is

t side, one on the left. 8 A Mm-mm. 9 Q Now, do I understand your testimony that the 10 one on the left is the photograph you took of this 11 forest that we’re talking about? 12 A It’s -- yes. This is the actual site. 13 Q Okay. 14 A I can tell by the chair. 15 Q All right. Now, there are no other 16 photographs of the site that you’ve offered to the 17 planning board, is that correct? 18 A No, because the only thing that I’m looking at 19 here, what I’m trying to explain to the Board is, this 20 is an example of a forest that demonstrates excessive 21 deer browse and as explained in prior testimony, when 22 I can look through a forest with that kind of clarity 23 as I can in this other example of another forest, you 24 can see I can look through here. What it shows is, I 25 have excessive deer browse because I have no under 104 1 story. 2 Q For the record, the witness is pointing to 3 the photograph on the right side of the slide. 4 A But it -- sorry, I should have said that, I 5 apologize. The left side is the actual site, the right 6 side is the example photo and as you can see, the point 7 of these photographs, again, just for a simple example, 8 is to show an unhealthy forest with excessive deer 9 browse, you have very clear visibility through the 10 forest. 11 Q Well, you’re showing a photograph, is it fair 12 to say the foreground appears to be in the area about 13 40 feet wide? 14 Would that be fair to say? 15 A I don’t know. 16 Q Well, you took the picture, do you have any 17 idea how big a space this is? 18 A No. 19 Q Well, it shows two -- you can’t tell us how 20 wide the foreground of this photograph is? 21 A I didn’t measure it, I’d be guessing. 22 Q Well, you were there, do you have an estimate 23 of how large this scene was -- 24 UNIDENTIFIED SPEAKER: He said he 25 doesn’t know, move on please. He said he doesn’t know,

105 1 move on please. 2 Q I can press a little bit more. How far back 3 does this actually -- if you don’t know the foreground 4 width, how can you say how far back we’re looking in 5 the background? 6 A I did not give you an exact answer, I said, as I 7 stated, I can see a great distance. What that distance 8 is, I did not measure, but, it is comparable to this 9 other forest and then I tried to show -- I don’t know 10 why there’s two of -- 11 Q Well, stick with my question, please, I’m 12 just trying to get the dimensions -- 13 A Well, I’m trying to answer your question. The 14 difference is that in a healthier forest, this is not 15 this forest, there are four photographs here, try to 16 get the way you would do it. 17 Q This is the slides that says what a healthy 18 forest looks like. 19 A Correct. And these four photographs which were 20 taken by me, of another forest in New Jersey and to be 21 specific in Somerset County, New Jersey, a healthier 22 forest as you can see, looking through the aspect 23 ratio, is the same camera, so the aspect ratio is the 24 same, and you can see, I can’t see very well through 25 this forest. The less you can see, the more 106 1 undergrowth. The more undergrowth the healthier the 2 forest. 3 Q Mr. DeFeo, with respect, I’m not asking about 4 another forest, so if we can go back to the last slide. 5 Now, that slide, we’re looking at that slide on the 6 screen some distance, but, when we look at the printed 7 report, and you can look close up at the photograph, 8 there’s actually quite a large diversity of trees in 9 the background of the slide, aren’t there? 10 A Yes. Nothing in my report is commenting on the 11 diversity of speciation in that forest. 12 Q Right. No, no, I don’t mean speciation 13 necessarily, I’m sure there is a diversity of species 14 there. I’m referring to the width of the trees. If 15 you look in the background on the photograph as opposed 16 to foreground, there are hundreds of trees represented 17 of many different diameters according to the photo, 18 isn’t that true? 19 A Yes. 20 Q But, didn’t you choose a photograph 21 intentionally showing an empty foreground just to 22 illustrate the thesis of a dying forest? 23 A There was no presumptive element in trying to make 24 a point other than to show you if I took pictures 25 throughout this forest they would all have a similar 107 1 type of depth and

ing forest? 23 A There was no presumptive element in trying to make 24 a point other than to show you if I took pictures 25 throughout this forest they would all have a similar 107 1 type of depth and perception. 2 Q Well, I’m looking at this very picture in the 3 printed out version of your report and after the, you 4 know, first inch and a half is run, you can look at the 5 back of it and you can see a vast number of trees and 6 many of them actually are many different dimensions. 7 So, isn’t it fair to say that the foreground does not 8 represent accurately even this part of the forest? 9 A No, you’re conclusion is incorrect. 10 Q Okay. 11 A It’s factually incorrect. 12 Q You would agree that a large forest is 13 variable and has many different elements to it, doesn’t 14 it? 15 A All forests are valuable and have many different 16 elements, yes, I would agree. 17 Q So, why on earth did you give us one single 18 photograph of one small area of this forest to 19 demonstrate to a thesis that it’s a forest that will 20 not regenerate? 21 A It is simply meant to demonstrate it by a single 22 image to show and compare to others what you would see 23 in an unhealthy forest. 24 Q But, we have no way of knowing, do we, that 25 the rest of the forest looks like the foreground here 108 1 because you’ve offered no other photographs, isn’t that 2 true? 3 A I’ve offered my testimony to support that. 4 Q So, we have your testimony supported by no 5 notes or records and no photographs, is that fair to 6 say? 7 A You have my testimony supported by my reports 8 which I think are now three or four and my testimony on 9 three, at least three separate occasions. 10 Q And we have no documentary evidence other 11 than that photograph and the histogram, isn’t that 12 correct? 13 A The documentary evidence is my report and the 14 photographs contained and the tree study. 15 Q If this condition of the foreground is so 16 widespread, why haven’t you showed us photographs of 17 different parts of the forest? Wouldn’t that address 18 the issue without leading to speculation and doubt? 19 Wouldn’t a scientist do that and document properly 20 their thesis? 21 A There’s no need to show you multiple photographs 22 to take up multiple space in a report of this nature 23 because in my professional opinion and in my 24 professional observations which I’ve testified to and 25 stated in my

ou multiple photographs 22 to take up multiple space in a report of this nature 23 because in my professional opinion and in my 24 professional observations which I’ve testified to and 25 stated in my report, this is essentially what the

109 1 forest looks like. 2 Most importantly, the specific identification 3 of a specific area of the specific forest is irrelevant 4 because the overall conclusion of this forest shows 5 that walking the forest, the only, as I’ve testified 6 to, the only undergrowth that is there typically, to 7 say only, that’s absolute, the majority of the 8 undergrowth growing there is typically invasive species 9 such as Japanese spill grass and barberry, which are 10 non-native and also not wildlife habitat and throughout 11 the forest there is a dirth, a very strong lack of 12 undergrowth. So, lack of undergrowth -- so the lack of 13 undergrowth in the entire forest indicates that the 14 forest is overly browsed which is supported by at least 15 two documents that have been submitted as additional, 16 per your request, I might add, for additional 17 information showing studies the most recent being the 18 2023 summary of the South Mountain Reservation study 19 done by the Essex County Park system and you will look 20 in multiple documents even up to and inclusive of the 21 Association of New Jersey Environmental Commission’s 22 report on trees, dated 2024, every single report 23 discusses the impact of excessive deer browse leading 24 to a lack of under story growth. So, there are 25 multiple studies saying the same thing with different 110 1 observations. And the different reports that I 2 submitted, you don’t see any photographs in some 3 cases. Some cases it’s a statement of the scientist’s 4 observations. I have given you my scientific 5 observations and my scientific conclusions. 6 Q Is there anything else to add in response to 7 my question as to whether it would be a proper 8 scientific act to document this report more thoroughly? 9 A In my opinion, this report has been documented 10 properly. 11 Q Did you consult any other tree studies on 12 this property, aside from the one that you had Amy 13 Greene do? 14 A I’m not certain I understand the question. 15 Q Have any other tree studies been done on this 16 property? 17 A I don’t know. 18 Q Did you ask the developer if they had done 19 any? 20 A I may have, but, if I had he didn’t have one to 21 the best of my knowledge. 22 Q Do you recall asking the developer if they 23 had done a tree study on this property? 24 A Again, my recollection is, I probably would have 25 but, I can’t say with certainty but, I do not

ledge. 22 Q Do you recall asking the developer if they 23 had done a tree study on this property? 24 A Again, my recollection is, I probably would have 25 but, I can’t say with certainty but, I do not have any 111 1 other studies which is part of the answer, I believe. 2 Q The photograph that’s on the screen, on the 3 slide example of excessive deer browse, would you agree 4 that actually reflects a trail or path that’s been trod 5 over the years? 6 A No. 7 Q That in your opinion there’s no evidence of - 8 - 9 A There’s no trail there. That is not a trail. 10 There are trails on the property, that is not one of 11 them. 12 Q Now, you do recall asking the developer if 13 they had a tree study? 14 A Yes, I do. 15 Q Did you ask the developer? 16 A My recollection is I did, and there wasn’t one. 17 But, I can’t speak to certainty on that. 18 Q How many trees per acre do you calculate in 19 your statistical discussion? 20 A Bear with me, it’s in here somewhere. There we 21 go. Using the analysis provided in the 2019 study, we 22 did a calculation of 212 trees per acre. 23 Q And you based that on what -- what was your 24 analysis that led to the 212 figure? 25 A The statistical tree study performed in 2019. 112 1 2 Q As reflected on the histogram. 3 A No, reflected in the tree study, which is posted. 4 Q But, you didn’t submit the tree study itself 5 to the Board, did you? 6 A The Board asked me for my report which is what 7 they obtained. Subsequently, the Board asked for the 8 original tree study, which I submitted. 9 Q And when did you post that? 10 A As I said yesterday, supplementals were able to go 11 up yesterday because of problems we had last week. 12 Q I just want to clarify, Mr. Bagoff asked me 13 at the next time to focus on that, so that’s one of 14 those documents we will look at. 15 A Okay. 16 UNIDENTIFIED SPEAKER: January 6, 2020? 17 THE WITNESS: That’s when my report is dated, 18 yes. 19 MR. AFRAN: I don’t remember the date off 20 hand but, whatever the date of that 2020 study was. 21 Q Now, the 212 figure comes from, is that an 22 average from the study plots? 23 A Well, statistical analysis doesn’t work quite that 24 way. 25 Q Well, I’m asking you.

113 1 A You do mean media mode, you do standard deviation 2 of variance. It is the result of the conclusion of the 3 original tree study that was done in the field. 4 Additionally, although we did find different 5 calculations of different densities in some areas, I 6 picked the highest density of trees as I testified to 7 before in the original report to reflect the greatest 8 potential loss of trees, which I testified to before, 9 that might impact the developed site. 10 In fact, the projection is, there are 11 probably fewer trees in that area because there may be 12 some variation in density throughout but, we picked 13 what we thought would be the worst possible outcome in 14 the disturbed area to show the greatest possible impact 15 on the trees. 16 Q How did you get 212 per acre, what did you do 17 to get that figure? 18 A I used -- Amy Greene provided me a statistical 19 analysis which you are free to read, which uses a 20 methodology, if you’d like the methodology it’s called 21 the Mueller-Dombois Ellenberg 1974 methodology to 22 conduct a tree survey. 23 Q Okay. And that was based on the tree study 24 in the study plot that we see on the other slide. 25 A Correct. Yes, correct. That tree density is 114 1 based on that, that is correct. 2 Q And the data for that conclusion of 212 came 3 from those individual study plots. 4 A It came from the entire study of that area and 5 then a statistical analysis of that. 6 Q Correct, but the study was in the plot 7 itself, correct? 8 A The study area was in, and let me be, to show you 9 the slide again, just so we’re clear. There. That is 10 the image that was provided as part of the tree study 11 and from the data collected in the study plots, I think 12 this answers your question, correct me if I’m wrong. 13 Q Yes. 14 A Yes, those conclusions were drawn. 15 Q The data came from the study plots not the 16 whole square where the plots were. 17 A Correct. 18 Q Okay. Thank you. I just wanted to -- 19 A Correct. You don’t count every tree, correct. 20 UNIDENTIFIED SPEAKER: I don’t want to stop 21 you on this roll, but could we take a five minute bio 22 break? 23 MR. AFRAN: I was just checking my phone to 24 see whether it was a good time, yes. Thank you. 25 UNIDENTIFIED SPEAKER: Five minutes. 115 1 (Off the record) 2 THE CHAIRPERSON: Back on the record. 3 MR. AFRAN: I understand we’re going to break 4 at ten in

ther it was a good time, yes. Thank you. 25 UNIDENTIFIED SPEAKER: Five minutes. 115 1 (Off the record) 2 THE CHAIRPERSON: Back on the record. 3 MR. AFRAN: I understand we’re going to break 4 at ten in terms of timing tonight, right? 5 THE CHAIRPERSON: I’m sorry? 6 MR. AFRAN: We’re breaking at ten o’clock in 7 terms of timing. 8 THE CHAIRPERSON: Yes, sir, yes sir. Ten 9 o’clock. 10 MR. AFRAN: Okay. With respect to, I was 11 asking Mr. DeFeo about any earlier studies, tree 12 studies by the developer on this site and in general 13 his answer was, he was not aware of any, but he did 14 recall asking but he wasn’t aware. 15 We do have evidence of that nature which in 16 discussions before Council, we will supply the 17 documentary records. There is a tree study that was 18 filed before on this property on another occasion and 19 we will submit that to Mr. Plocker, to the Board and 20 Mr. DeFeo so that it can be posted so the Board just 21 could look at it beforehand. 22 And, I’ll just note that that was a document 23 that is present in other site plan proposals for this 24 site we are not submitting it for the site plan above 25 that, we’re submitting it for the tree study results 116 1 that are on the bottom part of document. 2 So, we will submit them, but, just so people 3 see it, I don’t want anyone to spend time studying the 4 site plan on that, that’s not really relevant here. 5 What’s relevant is the tree study that’s on the 6 document and that’s what we’ll question Mr. DeFeo on at 7 the next meeting. 8 THE CHAIRPERSON: Will you submit a letter to 9 the Board so that is posted also describing exactly 10 what you said so nobody will get confused? 11 MR. AFRAN: With pleasure. 12 THE CHAIRPERSON: Thank you. 13 MR. AFRAN: I’m sorry, just give me a moment. 14 Q Mr. DeFeo, in terms of the undisturbed area 15 -- strike that. Let me turn to the limits of 16 disturbance or the disturbed area, as we see on SP-11, 17 is there a survey identifying the specific species that 18 are in the area of the disturbance? 19 A I’m sorry, you’re talking about a specific species 20 of trees, in that area? 21 Q Well, let me rephrase that. Let’s get to SP- 22 11. 23 A Oh, SP-11, I’m sorry. 24 Q I have another slide for you. If we can get 25 a little darker like we did the first -- thank you.