December 11, 2024 Planning Board Special Meeting Transcript - WEHI

1 of 38 sheets Page 1 to 4 of 100 01/08/2025 12:06:06 PM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 TOWNSHIP OF WEST ORANGE DEPARTMENT OF PLANNING AND DEVELOPMENT WEDNESDAY, DECEMBER 11, 2024 6:30 P.M. RE; PB-24-01 WEST ESSEX HIGHLANDS, INC. BOARD MEMBERS: ROBERT BAGOFF, Chairman JERRY GUARINO, Vice Chairman SUSAN McCARTNEY, Mayor BILL RUTHERFORD, Council President WILLIAM WILKES II LEE D. KLEIN, PE PTOE LORI KAPFERER (Alternate 2) JOHN R. CARDOZA (Alternate 1) TREVOR TYLER, CME ASSOCIATES, Engineer GERARD M. HAIZEL, Planner FISHMAN COURT REPORTING AGENCY 89 HEADQUARTERS PLAZA NORTH 4 SPEEDWELL AVENUE, SUITE 1440 MORRISTOWN, NEW JERSEY 07960 (973) 285-5331 - FAX - (732) 605-9391 2 A P P E A R A N C E S :1 2 H U T T , S H I M A N O W I T Z & P L O C K E R , E S Q S . B Y B R Y A N D . P L O C K E R , E S Q .3 B p l o c k e r @ h u t t s h i m . c o m 4 5 9 A M B O Y A V E N U E4 W O O D B R I D G E , N E W J E R S E Y 0 7 0 9 5 A p p e a r i n g o n b e h a l f o f t h e A p p l i c a n t5 6 G A C C I O N E & P O M A C O , E S Q S . B Y D I A N A P . M c G O V E R N , E S Q .7 O N E B O L A N D D R I V E , S U I T E 1 0 2 W E S T O R A N G E , N E W J E R S E Y 0 7 0 5 28 A p p e a r i n g o n b e h a l f o f t h e B o a r d 9 B R U C E I . A F R A N , E S Q .10 1 0 B R A E B R U N D R I V E P R I N C E T O N , N E W J E R S E Y 0 8 5 4 011 A p p e a r i n g o n b e h a l f o f t h e O b j e c t o r , W e C a r e N J C o r p .12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 I N D E X1 W I T N E S S D I R E C T C R O S S R E D I R E C T R E C R O S S2 W A Y N E D E F E O 53 M R . A F R A N 4 I N D E X O F E X H I B I T S5 E X H I B I T D E S C R I P T I O N P A G E6 0 - 3 2 0 1 0 T R E E P L A N 67 0 - 4 W E S T E S S E X H I G H L A N D S A F F O R D A B L E H O U S I N G 5 98 D E V E L O P M E N T , 2 0 2 3 P R E S E N T A T I O N 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 C H A I R M A N B A G O F F : P B - 2 4 - 0 1 W e s t E s s e x1 H i g h l a n d s , I n c , B l o c k 1 7 9 L o t 3 2 Z o n e I H - 1 W a r n e r R o a d .2 T h e a p p l i c a t i o n p r o p o s e s t o d e v e l o p a 4 9 6 u n i t3 i n c lu s i o n a r y m u l t i f a m i l y r e s i d e n t i a l d e v e l o p m e n t o n a4 v a c a n t 1 2 0 - a c r e p r o p e r t y i n t h e n o r t h w e s t c o r n e r o f t h e5 T o w n s h i p .6 F o r t h e a p p

l t i f a m i l y r e s i d e n t i a l d e v e l o p m e n t o n a4 v a c a n t 1 2 0 - a c r e p r o p e r t y i n t h e n o r t h w e s t c o r n e r o f t h e5 T o w n s h i p .6 F o r t h e a p p l i c a n t , M r . P l o c k e r .7 M R . P L O C K E R : G o o d e v e n i n g . B r y a n P l o c k e r ,8 f r o m H u t t , S h i m a n o w i t z & P l o c k e r o n b e h a l f o f t h e9 a p p l ic a n t , W e s t E s s e x H i g h l a n d s , I n c .10 C H A I R M A N B A G O F F : O k a y .11 M R . P L O C K E R : I w a s a b o u t t o s a y , I12 c o n f ir m e d w i t h M s . M c G o v e r n , w e d o n o t h a v e a n y13 w i t n e s s e s t o c a ll t h i s e v e n i n g . M y u n d e r s t a n d i n g i s14 t h a t M r . A f r a n w i l l h o p e f u l l y s t a r t a n d c o n c l u d e h i s15 c r o s s e x a m i n a t i o n o f M r . D e F e o , a f t e r w h i c h w e w i l l16 a d j o u r n u n t i l t h e J a n u a r y 2 9 m e e t i n g .17 C H A I R M A N B A G O F F : O k a y . T h a n k y o u .18 S o w e ' r e w a it i n g f o r M r . A f r a n t o c r o s s19 e x a m i n e M r . D e F e o , s o w e ' l l t a k e a c o u p l e m i n u t e s a n d20 w e ' ll r e p a s t .21 ( W h e r e u p o n , a s h o r t r e c e s s i s t a k e n . )22 C H A I R M A N B A G O F F : L a d i e s a n d g e n t l e m e n ,23 t h a n k f o r y o u r f o r b e a r a n c e , t r a f f i c t h i s e v e n i n g i s24 h o r r i b l e .25

01/08/2025 12:06:06 PM Page 5 to 8 of 100 2 of 38 sheets 5 Mr. Afran, you're up, sir.1 MR. AFRAN: Thank you. Give me one moment.2 Good evening. I'm sorry I'm late.3 CHAIRMAN BAGOFF: Okay. No problem. We4 understand.5 MR. AFRAN: Huge amount of rain and traffic.6 We're not going to be very long, we're7 finishing essentially with cross, so. I realize there's8 nothing else tonight on this case but we won't be that9 long.10 I'm sorry, just need one more minute.11 Mr. DeFeo, good evening.12 Q. Good evening. How are you, sir?13 A. Good. How are you?14 Q. Before I go further, did you have a chance to15 look at that exhibit we posted --16 CHAIRMAN BAGOFF: Mr. DeFeo, you're reminded17 you are under oath.18 THE WITNESS: Yes, sir.19 CHAIRMAN BAGOFF: Thank you.20 I'm sorry, go right ahead, Mr. Afran.21 My voice is not so good so I may not be able to22 Q. project too much.23 So Mr. DeFeo, did you have a chance to look at24 the tree plan that was posted, I'm referring to at the25 6 last meeting?1 If you are referencing -- what plan specifically,2 A. the one that you posted on the website?3 Right. It was from 2010.4 Q. Yes.5 A. MR. PLOCKER: Can we mark it if it hasn't6 been marked. Just so there's a clear record.7 MR. AFRAN: Absolutely.8 MR. PLOCKER: I'm not sure if it was or not.9 MR. AFRAN: It wasn't offered yet, so we10 didn't have it marked yet.11 MS. McGOVERN: That would be O-2 -- 3, I'm12 sorry. Tree plan, and what's the date on that?13 MR. AFRAN: Just call it 2010 Tree Plan.14 MS. McGOVERN: Okay.15 (2010 Tree Plan is marked as Exhibit O-3 for16 identification.)17 MR. AFRAN: It has other information but I18 think that's sufficient.19 MS. McGOVERN: That's your purpose for it,20 right?21 MR. AFRAN: Yeah. And as I noted in my22 communication, we're not offering it for purposes of the23 application -- the development application is a part of24 that. That was the 2010 proposal. We're using it for25 7 the tree plan information and the only other relevant1 information on the document would be the test sites that2 are marked out in the cross hatching. But the actual3 development plan, which you was a single family housing4 project, has no relevance to what we're saying, so.5 So you had a chance to look that over?6 Q. I have.7 A. Okay.8 Q. Have you ever seen that before it was posted?9 No.10 A. Okay.11 Q. Now, when you did your work in terms of the, you12 did -- your tree

So you had a chance to look that over?6 Q. I have.7 A. Okay.8 Q. Have you ever seen that before it was posted?9 No.10 A. Okay.11 Q. Now, when you did your work in terms of the, you12 did -- your tree survey was in 2019, what was the year13 for it?14 2019.15 A. That was where those spot checks were done, that16 Q. was the year 2019, correct?17 Correct.18 A. Now, when you did that what other tree surveys19 Q. for this property had you been familiar with?20 I'm not certain I understand the question.21 A. Well, at the time you supervised the 2019 survey,22 Q. had you been familiar with any other tree surveys or23 tree plans for this property?24 No, it wouldn't have been relevant even if I had.25 A. 8 I didn't know of any.1 Why wouldn't they be relevant in your opinion?2 Q. In my opinion because I was asked to look at this3 A. property for the first time in terms of doing an4 analysis, therefore I would've developed and utilized5 our own methodologies and done a use study, a study that6 was current, because it would've been relevant to the7 site plan as it was proposed.8 Well, the trees on the site are on the site9 Q. regardless of what plan someone's proposing. So why10 wouldn't looking at an earlier tree survey not be11 relevant?12 It would depend how the survey was done. You're13 A. asking relevance, did I look at this particular14 submission. First, this is a statistically invalid set15 of data. There is nothing in this form exhibit, I16 believe we called O-3.17 MS. McGOVERN: Yes.18 O-3, yes.19 Q. Exhibit O-3 is statistically flawed. It does not20 A. meet the standards of a forest tree study in any way,21 shape are form, either statistically or in methodology.22 There is no methodology provided within what I have.23 Therefore, even if I had seen it I would have rejected24 it out of hand. This particular study used three plots25

3 of 38 sheets Page 9 to 12 of 100 01/08/2025 12:06:06 PM 9 of 10,000 square feet with no methodology stating how1 they selected the plots. Utilizing this method -- they2 utilized approximately 2.2 percent of the property, I3 don't know if they selected the plots because they saw4 heavy tree growth or not. 2.2 percent utilizing a tree5 survey is statistically invalid. Proper tree surveys6 must use anywhere, depending on the method, between four7 and five percent and the plots must be randomized.8 There's no evidence that these plots are randomized.9 Our tree study was utilized creating randomized plots on10 -- excuse me, on the current site plan, which is why we11 focused on the area of disturbance. We used 22 plots12 and overall sampled approximately four percent of the13 property utilizing what's then continued a mean system14 utilizing a rolling mean, which is considered a15 statistically valid method of reducing the number of16 plots you might use. So let me explain that. We might17 have used 50 plots had we wanted to get five percent.18 But after seeing 22 plots and using the rolling mean19 method of analysis, which is all explained in the tree20 report, what we determined is there's no variability.21 We don't need to do more plots to get the same numbers22 to get to the same end. This tree study, or whatever23 you wish to call it, you can call it a tree study, but I24 wouldn't give it that credibility, this particular25 10 drawing used 10,000 square foot plots, which might tell1 me more about trees in that 10,000 square feet, because2 again, that's 10,000 square feet, but did not utilize3 sufficient quantity or covering of land and does not4 explain it used a rolling mean. There's no proof of non5 bias, as far as I can tell it could be a bias plot. And6 one of the interesting elements of it as well is it7 either misidentifies trees by species because it8 recognizes a bur oak. A bur oak is not indigenous in9 our area, so either they missed identified it, and it's10 very common to misidentify oaks by the way, that's not11 unusual in the woodland area. So either they12 misidentified it or someone put it there. As to why13 someone would put it there, I don't know.14 Put what, on the chart or on the grounds?15 Q. No, the bur oak. Identifying one of the trees as16 A. a bur oak. Bur oak is not indigenous to our area.17 Well, that doesn't mean that it's not

t know.14 Put what, on the chart or on the grounds?15 Q. No, the bur oak. Identifying one of the trees as16 A. a bur oak. Bur oak is not indigenous to our area.17 Well, that doesn't mean that it's not growing.18 Q. We have lots of things that aren't indigenous.19 That's true. But bur oak is not that common a20 A. find. It's more likely it's an indicator that it's21 misidentified. My point being, there are enough flaws22 in this entire methodology that it had no validity to23 me. This has no validity in my mind and therefore I24 wouldn't have used it, even if it had been submitted,25 11 even if I had seen it, again, for the reasons cited.1 It's statistically invalid. It does not have2 methodology, does not cover sufficient quantity of area.3 It's not non bias, it has no randomization and as far as4 site plan, that isn't near what we're working off of.5 Having said all that --6 You said -- go ahead.7 Q. -- it does anything, it comes up with a number of8 A. trees per acre that could be higher depending on how you9 read it. If that's true and it was accurate then it10 would only corroborate my study which says the forest11 isn't defined and that the number of trees per acre is12 defined because trees are dying. And we know ash are13 dying and we know that for a fact and we know beech will14 be. So, yes, I did review it after you had posted it15 and I discount it completely.16 Why do you say there's an indication it would17 Q. mean trees are dying, explain that?18 Well, if it shows a higher concentration and some19 A. people may say, depending on how you choose to read20 this, you can pick and choose numbers off of this thing21 any way you like. But the simple fact is it's a22 statistically invalid and meaningless piece of paper.23 Why don't you answer my question. Why do you say24 Q. it means trees are dying?25 12 If it shows a higher concentration of trees, my1 A. study, the study we did, would show fewer trees per2 acre, if it does that then my point being, all it would3 mean -- so for example, if you read off of this, Exhibit4 O-3. By the way, I'm using what is off the website, is5 that allowable, Counsel?6 We'll put it up on the screen eventually.7 Q. I just opened it up.8 A. It's the same document. I have no problem with9 Q. that. Go ahead.10 Okay. You know, this is showing here average of11 A. trees certain size, 2 inches or greater. Two inches are12 not

pened it up.8 A. It's the same document. I have no problem with9 Q. that. Go ahead.10 Okay. You know, this is showing here average of11 A. trees certain size, 2 inches or greater. Two inches are12 not trees technically, that's another flaw with the13 study. It shows 558 trees per acre then it shows 18214 trees per acre 6 inches or greater. That -- okay, so15 it's 182, it's actually showing less trees per acre than16 we calculated and as I stated earlier --17 Well, that's because you're taking away all the 218 Q. inch trees?19 Two inch are saplings. They are not trees nor20 A. are they defined as trees in the ordinance in West21 Orange.22 Well, that's the category you're referring to is23 Q. 2 to 6 inches?24 I understand that.25 A.

01/08/2025 12:06:06 PM Page 13 to 16 of 100 4 of 38 sheets 13 You would agree 4 and 6 inches are trees by every1 Q. definition?2 Absolutely, but I would also say I have no3 A. methodology. There's no methodology explaining what4 trees are what. Where do they draw the line between 25 and 4. As I said, this document is not, in my opinion,6 worth the, I hate to say paper because it's not printed7 on paper, but not worth the paper it's printed on.8 Now, you say it means trees are dying because9 Q. they have more trees than you found. Is that the basis10 of your reason?11 I didn't say that. I said if, if it was12 A. accurate. If the high number was accurate.13 Let me just say for sake of argument it's14 Q. accurate for my question, you said it would mean the15 trees were dying and confirms your view of a dying16 forest, isn't that what you said?17 No, not exactly what I said. You're taking it18 A. out of context.19 I'm using the very words you gave us. If there's20 Q. a different context that you intended, please give it to21 us?22 I'll try to explain it again.23 A. No, just answer my question.24 Q. I am.25 A. 14 Why do you say, if their studies accurate it1 Q. means the trees are dying. Why do you say that?2 Our study is statistically valid. Our study3 A. shows fewer trees per acre. Our study utilizes a4 highest number of trees per acre in order to make the5 greatest impact possible on the site and still came in6 at a lower concentration. Oddly enough, depending on7 where the 558 and 182 fall where we go from 4 inches or8 other, then the interesting element of it is the 2 to 69 you almost have to discount out of hand because there's10 no methodology saying where's the 4, 5 and 6. We don't11 know.12 Well, that doesn't matter --13 Q. There's no number.14 A. -- if you're counting 2 to 6 inches?15 Q. If you're counting 2 to 6 inches it's inaccurate.16 A. It doesn't comply with the West Orange Tree Ordinance.17 The tree is defined as 4 inches DBH or greater, anything18 less is not a tree, it's a sapling.19 That ordinance is -- what ordinance is that, do20 Q. you have the number in front of you?21 I don't have it. I don't know the West Orange22 A. Tree Ordinance number.23 Is that the ordinance number --24 Q. I don't know.25 A. 15 Is that the -- okay. The current ordinance in1 Q. force?2 Almost any tree ordinance in the State of New3 A. Jersey, anyone who does forestry

Is that the ordinance number --24 Q. I don't know.25 A. 15 Is that the -- okay. The current ordinance in1 Q. force?2 Almost any tree ordinance in the State of New3 A. Jersey, anyone who does forestry work defines a tree as4 4 inches DBH or greater. Anything less than that is a5 sapling.6 When you referred to the tree ordinance you mean7 Q. the one that's enforced currently now?8 To the best of my eye I would agree. Now, when9 A. this was done I can't tell you, but in relation to the10 work I was doing, the initial ordinance from that time11 of 2019, we wouldn't have focused on, to much other than12 that. So my point being, even if the thing was13 accurate, which it's not, it is statistically invalid14 and it is an invalid document. It has no meaning from15 the perspective of trees per acre in my professional16 opinion.17 I appreciate hearing that, you said it several18 Q. times. I asked a simple question. Why do you say this19 means the trees would be dying? It's a simple question.20 Because if you have a higher count from -- this21 A. actually was done in --22 2010 approximately.23 Q. The tree study was done in 2007, if I recall.24 A. Looking at this plan, I have to look at it again, but my25 16 recollection in reading this it was done in 2007.1 We'll settle that date --2 Q. Let me just say that, that makes it 12 years old3 A. from the time it was done to when we performed our4 study. We also did a quick update, as you know, and5 didn't find any significant visual difference in 2019 to6 2024, but if the tree count went down per acre that7 would indicate there are less trees.8 That would assume your count is accurate --9 Q. Correct.10 A. -- as well?11 Q. And our count is accurate.12 A. Now, if theirs is the accurate count that would13 Q. mean no evidence one way or another about trees dying?14 But there is no, if their count is accurate, this15 A. study did flawed. It would never stand up to any16 scrutiny by any professional forester, arborist,17 botanist or biologist.18 You had the study several weeks already, did you19 Q. trouble yourself to contract Mr. Anderson and get the20 information about how this survey was done?21 I have been away for a week. I did -- Mr.22 A. Anderson and I have played telephone tag, we did speak23 briefly but, and I said I've never seen this before,24 Paul. And he said, no, you haven't. And we went from25

5 of 38 sheets Page 17 to 20 of 100 01/08/2025 12:06:06 PM 17 there. And I guess the best I sign would be, he doesn't1 know, I don't think, know how this was done. I don't2 know if he does, I can't speak for him.3 Well, Mr. Anderson signed it, okay. You saw his4 Q. signature there, right?5 Engineers sign work other people do in their firm6 A. all the time.7 Did you ask Mr. Anderson --8 Q. I don't know.9 A. Did you ask Mr. Anderson for the tree study? The10 Q. actual documentation and notes underlining this11 document.12 This is what I was provided. This is what I13 A. reviewed.14 Now try answering the question given, please.15 Q. It's not that difficult. Did you ask --16 I did.17 A. Did you ask Mr. Anderson for the underlying18 Q. documentation?19 I did not ask for anything further than what I20 A. was provided.21 So you can declare that this study is invalid22 Q. statistically, invalid scientifically, invalid23 arboreally and you never even asked for any of the24 information underlying it, is that your testimony?25 18 "Yes" or "no", is that your testimony.1 I do not need to see the underlying report2 A. because enough information is given here to tell me just3 looking at these three plots you have not statistically,4 not you personally of course, it has not statistically5 covered sufficient land area to be accurate. It's that6 simple.7 Now, you said you have a tree report that8 Q. referred to the rolling mean, I think. Am I using the9 right terminology?10 There are methodologies that you utilize -- the11 A. tree study that I posted, to answer your question, you12 asked me to post it, I posted it.13 What day, was that the October 16, 2024 report?14 Q. No, I believe -- I'd have to look and see the15 A. filing.16 You haven't used that in your testimony, as far17 Q. as I know. Is that something before the board?18 I believe, correct me if I'm wrong, I was asked19 A. after one or -- I don't remember which hearing, to post20 the original tree study from 2019, my recollection, and21 I know I submitted that.22 MS. McGOVERN: It's on a November 6 report,23 I think. I see it starts with, "I have attached more24 documents. The original tree study conducted" is that25 19 what you're discussing?1 MR. AFRAN: I mean, Mr. DeFeo made a2 reference to what's in his tree report, yet he's never3 testified to it before. It's never been produced as an4 exhibit. I have no idea what