November 13, 2024 Planning Board Special Meeting Transcript - WEHI

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.