December 11, 2024 Planning Board Special Meeting Transcript - WEHI

ility to this report because the3 data is flawed. The methodology is flawed. The study4 area is flawed. Ergo it is statistically invalid and5 therefore it has -- these numbers are meaningless.6 Why is the study area flawed?7 Q. Well, as I stated earlier, there are three 10,0008 A. square foot plots, that sounds very impression by the9 way. And if I wanted to know what 10,000 square foot10 looked like, it's good, but statistically it's 0.61,11 roughly, percent of the area of study. That is a12 statistically invalid tree study. Ergo the conclusions13 it draws must be statistically invalid.14 Your percent of the area of study is much, much15 Q. smaller, isn't it?16 No, my percent of the area of study that we did17 A. was approximately a little better than 2.2 to 3 percent18 approaching 4 using a running mean, which is acceptable19 in the industry as a statistically valid study.20 You get 2.2 percent only because you're measuring21 Q. against the area of disturbance. Whereas in this study22 they were measuring against the whole plot of the23 forest, isn't that correct?24 You're defining your study area as when you do a25 A. 40 forest survey --1 Mr. DeFeo, you have a constitutional problem2 Q. answering "yes" or "no" to any question?3 You defined --4 Mr. Afran.5 A. -- you define 2.2 percent of the area of6 Q. disturbance and their -- and then you're saying their7 percentage is based on the whole 100 acres of the8 forest, isn't that correct?9 Mr. AFran, I'm going to answer your question10 A. again, as I'm under oath and I have to speak to my best11 professional ability here. A "yes" or "no" answer may12 not be true. Ergo, yes, I have a constitutional problem13 giving you a "yes" or "no" answer if it's not true. Let14 me answer your question.15 No, let me repeat the question. You have said16 Q. that your study covers 2.2 percent --17 Approximately.18 A. -- approximately of the study area, correct?19 Q. Uh-huh.20 A. An you said --21 Q. Yes, I'm sorry.22 A. And you said their study covered 0.6 percent of23 Q. the area of study, correct?24 Correct.25 A.

11 of 38 sheets Page 41 to 44 of 100 01/08/2025 12:06:06 PM 41 And so you're saying you covered much more area1 Q. in your study than they did. Isn't that what you're2 saying?3 Yes, of our study area we covered a higher4 A. percent, correct?5 Correct.6 Q. Which is statistically valid.7 A. But when you say 2.2 percent you mean of only the8 Q. area of disturbance of the proposed development, is that9 correct?10 That is what we were asked to focus on, correct.11 A. Yes.12 And when you say, they have 0.6 percent of the13 Q. area of study, they're using the entire forest of14 approximately 120 acres, correct?15 This is a totally different site plan.16 A. Mr. DeFeo, answer my question.17 Q. I'm trying to.18 A. The 0.6 percent that they're studying was of the19 Q. whole site, correct?20 Of 113 acres, that's correct.21 A. Correct.22 Q. So when you say you have a higher percentage, you23 actually have a lower percentage of the whole forest24 study but a higher percentage of your own area of study25 42 that you focused on, is that correct?1 Yes. Mr. Afran, you seem to have a2 A. misunderstanding of the statistically methodology.3 I don't need you to worry about what I understand4 Q. and don't understand. Let me just ask my questions,5 please. All right.6 So I want to be clear for the record, they7 studied much more square footage or meters of the forest8 than you did, but your study area is a larger percentage9 of the area of disturbance, whereas their's was of the10 whole forest, correct?11 CHAIRMAN BAGOFF: Wait, wait, hold it. I12 think everyone's getting confused here. There's two13 studies. Both have extrapolated, based on their14 methodology, I'm not saying one is right or wrong, I'm15 just staying there was a methodology used, they16 extrapolated and neither one looked at every tree in the17 forest but each study extrapolated based on statistical18 averages that they used, whatever each group felt was19 reasonable in their hands based on their expertise, and20 extrapolated the whole forest and they said based on21 these areas, so one had three -- in the 2010 study with22 a different project was the three areas, they used a23 larger surface area and extrapolated the whole forest.24 Mr. DeFeo, with computer modeling, picked 22 areas in a25 43 geographically smaller are but still extrapolated the1 whole forest. Is that pretty much what we're all saying2 here?3 MR.

whole forest.24 Mr. DeFeo, with computer modeling, picked 22 areas in a25 43 geographically smaller are but still extrapolated the1 whole forest. Is that pretty much what we're all saying2 here?3 MR. AFRAN: That is one interpretation,4 that's correct. Mr. DeFeo extrapolated the whole forest5 by taking sites only in the area of disturbance.6 Whereas this average from 2010 extrapolates the whole7 forest by taking three areas in different parts of the8 forest. Mr. DeFeo limited it to the present area of9 disturbance.10 Now, my question to Mr. DeFeo --11 CHAIRMAN BAGOFF: Those also, but truth be12 told, it's also different areas in the forest. The13 first study in 2010 took three areas.14 MR. AFRAN: Obviously, correct.15 CHAIRMAN BAGOFF: Three different areas.16 Mr. DeFeo also took three different areas in a smaller17 geography but there's multiple different areas. Can we18 agree on that?19 MR. AFRAN: No, we can't. Because Mr.20 DeFeo's --21 CHAIRMAN BAGOFF: I want the board to, this22 is important that the board understand.23 MR. AFRAN: Mr. DeFeo took areas from the24 area of disturbance.25 44 CHAIRMAN BAGOFF: Yes.1 MR. AFRAN: That's where trees were going to2 be removed, so that's what he studied.3 CHAIRMAN BAGOFF: The area of disturbance --4 MR. AFRAN: Of this current application.5 CHAIRMAN BAGOFF: The area of disturbance in6 2010 was the area that you saw on those blocks.7 Different areas of disturbance.8 MR. AFRAN: Well, in 2010 they were building9 a subdivision throughout much of the forest.10 CHAIRMAN BAGOFF: But if you look at the11 houses, because I was on that board, the area where you12 see the, if you can pull that up again. These are13 housing units. So the disturbance, those plots were14 also, based on what I see here and my understanding of15 what you're all saying, the area of disturbance was16 different. So this plots three areas, larger areas, but17 they were still disturbed areas. We're using18 terminology, disturbance, that areas disturbed, that19 areas disturbed and that areas disturbed. Is that20 something we can agree on?21 MR. AFRAN: No, we can't. I don't know22 you're correct.23 CHAIRMAN BAGOFF: You're saying that there24 is no disturbance in these three areas?25

01/08/2025 12:06:06 PM Page 45 to 48 of 100 12 of 38 sheets 45 MR. AFRAN: No, I'm not saying that at all.1 CHAIRMAN BAGOFF: I'm trying to understand.2 MR. AFRAN: What we have on the screen is3 the 2010 study for a subdivision of, let's call it 1504 houses for sake of argument. Obviously the disturbance5 goes throughout the site. What we have here in the6 current development plan is an area of disturbance of7 roughly in the center of the forest.8 CHAIRMAN BAGOFF: Lower concentration.9 MR. AFRAN: Correct.10 So there's a different area of disturbance on the11 current plan versus the one from 2010.12 CHAIRMAN BAGOFF: Agreed.13 MR. AFRAN: However, our purpose is not to14 compare the two developments. Our purpose is to show15 that there's another study that this developer did that16 shows three times more trees on this site than Mr. DeFeo17 identified.18 CHAIRMAN BAGOFF: I understand.19 MR. AFRAN: That's where we're going.20 CHAIRMAN BAGOFF: I understand that. But we21 have to agree that these are in areas of disturbance for22 that plan?23 MR. AFRAN: They're not disturbed areas,24 they were forest then and they're forest now. That's25 46 the difference in terminology. They would've been1 disturbed on that plan.2 CHAIRMAN BAGOFF: Yes.3 MR. AFRAN: Correct. Just like the areas of4 disturbance here will be disturbed if it's ever done.5 CHAIRMAN BAGOFF: So both would have been6 disturbed because neither one is disturbed at this time7 but both, if done, would have been disturbed?8 MR. AFRAN: Correct. But that's not really9 relevant to counting trees.10 CHAIRMAN BAGOFF: That's okay. I'm trying11 to understand where we're going.12 MR. AFRAN: Yeah.13 COUNCIL PRESIDENT RUTHERFORD: Mr. Chair, I14 have a question.15 CHAIRMAN BAGOFF: Yes, sir. Council16 President Rutherford.17 COUNCIL PRESIDENT RUTHERFORD: Mr. DeFeo,18 you said that there needs to be a 4 to 5 percent area of19 study in order for the study to be valid, at least20 that's my recollection of your earlier testimony?21 THE WITNESS: That's correct. Unless22 there's a running mean methodology utilized, which this23 study did.24 COUNCIL PRESIDENT RUTHERFORD: When you25 47 testified about that, it seemed too me like once you1 came back to your actual calculation of 2.2 percent,2 which would be less than the 4 to 5 percent you claimed3 would be necessary for the study to be valid?4 THE WITNESS: But as I also stated

nce you1 came back to your actual calculation of 2.2 percent,2 which would be less than the 4 to 5 percent you claimed3 would be necessary for the study to be valid?4 THE WITNESS: But as I also stated then,5 however, it's a however, you would do that unless you're6 running a mean calculation that specifies I don't need7 to do more study because nothings changing8 statistically. So a running a mean says you don't have9 to get to that number.10 COUNCIL PRESIDENT RUTHERFORD: Okay. By11 running mean you mean as you analyze you have one then12 analyze the second and third and as you get that mean it13 stays within a certain number of variance you don't need14 to go further?15 THE WITNESS: Correct. And you look at it16 statistically and if it has a high level of confidence17 you don't need to keep going and doing that work.18 COUNCIL PRESIDENT RUTHERFORD: Okay.19 Now, the follow-up question would be to you,20 Mr. Afran. Do you have the methodology that was used21 for this 2010 study?22 MR. AFRAN: I do not have that. And my23 purpose is simply to show there's two studies with24 vastly different numbers of trees.25 48 CHAIRMAN BAGOFF: So that's the reason of1 diversion. We want to hear somehow there's one site2 that shows X amount of trees and one site shows more3 than X amount of trees?4 MR. AFRAN: That's correct. That's our5 purpose. That's our purpose.6 CHAIRMAN BAGOFF: Thank you.7 MR. AFRAN: And we'll have our own experts8 later in the case, but our purpose right now is to show,9 since Mr. DeFeo is here, I don't want to make him keep10 coming back unless he plans to be here.11 CHAIRMAN BAGOFF: Okay.12 Now Mr. DeFeo, in terms of the 22 study areas on13 Q. your study, how many of those study areas did you14 actually count and include in your final results?15 I'm sorry, how many --16 A. You said there was about 22 study areas you17 Q. studied, 10 by 10 plots.18 Yeah.19 A. How many of those study areas did you actually20 Q. include in your final calculation and results?21 The 22 is what was used in the final calculations22 A. and results. There were 50 plots actually put on the23 site by the computer, but 22 were actually physically24 surveyed.25

13 of 38 sheets Page 49 to 52 of 100 01/08/2025 12:06:06 PM 49 I thought you answered, in terms of Council1 Q. President Rutherford's question, I thought you just said2 once you see everything's looking the same you stop3 counting. That would imply you stopped using some of4 the site and only used a few?5 No, we stopped at 22 because to do the 5 percent6 A. we would have to do the 55, but after doing 22 we run it7 by the mean, we don't have to keep going to 55.8 That's what I wanted to clarify.9 Q. I wasn't clear -- I probably wasn't clear on10 A. that.11 Okay.12 Q. So you did 22?13 Yes.14 A. Good.15 Q. So the 212 figure is based on the calculation for16 22?17 Correct. That's correct.18 A. Great. Thank you.19 Q. Now, the calculations, if we -- well, I think we20 have the number, but the calculations would be 84,02721 trees on the site from the 2010 study and your study22 indicated 25,440 trees. Now, obviously one differential23 on the two studies is they were including trees between24 2 and 4 inches and you started at 4 inches, correct?25 50 Because trees -- a plant under 4 inches is not a1 A. tree.2 You did not include trees between 2 and 4 inches,3 Q. is that correct?4 Because anything under 4 inches is not a tree. I5 A. did not include plants under 4 inches because that's6 statistically invalid.7 Now, I understand you say it's statistically8 Q. invalid and that's fine. Now, this survey from 2010 was9 actually done by the developer who's here today on this10 application, correct?11 I don't know who did the survey.12 A. It's presented by the same developer in 2010 as13 Q. is here today, correct?14 I believe so. It's my understanding.15 A. Now, a developer, without any criticism of16 Q. developers, obviously in presenting a major plan has17 some incentive, if possible, to downplay the number of18 trees being lost?19 CHAIRMAN BAGOFF: Let the record show Mr.20 Cardoza joined the board and that Council President21 Rutherford joined earlier.22 COMMISSIONER CARDOZA: I've been listening23 the entire evening.24 MS. McGOVERN: Listening in the car?25 51 MR. CARDOZA: Yes.1 CHAIRMAN BAGOFF: Okay. Thank you.2 I will withdraw the other questions. I'll move3 Q. onto other questions. I'll use it later.4 What I'd like to ask you is this, aside from your5 criticism of this study in 2010, and due to the fact you6 don't have any actual documentation from it, are you7 able to

uestions. I'll use it later.4 What I'd like to ask you is this, aside from your5 criticism of this study in 2010, and due to the fact you6 don't have any actual documentation from it, are you7 able to offer any other explanation as to why they have8 60,000 more trees than you have?9 It's statistically error flawed, so I can't tell10 A. you that.11 Well --12 Q. I haven't seen the calculation.13 A. COUNCIL PRESIDENT RUTHERFORD: They don't14 have 60,000 more trees. So it's 2 inches and greater15 and then 6 inches and greater. So the 2 inches and16 greater include the 20,000 number.17 MR. AFRAN: I don't think so. I think it's18 two categories, separated into 6 and 6 and higher.19 MR. ALPER: It's 2 to 6.20 COUNCIL PRESIDENT RUTHERFORD: It's 40,00021 more trees.22 MR. AFRAN: I noticed that, but when I read23 it, it looks like they created two categories.24 Minimally there's 40,000 more trees, fair to say?25 52 COUNCIL PRESIDENT RUTHERFORD: Yes, sir.1 Now, if they're right and it's 40,000 more or2 Q. 60,000 more on average, based on the average, that means3 that your calculation of 6,390 trees to be removed would4 be wrong, right?5 You're asking me a hypothetical. If somebody's6 A. right, somebody's wrong. I can't argue a hypothetical.7 Well, let's assume for example that there are8 Q. 40,000 more trees or 60,000 more trees, we know at least9 40,000 from this study on this chart. If they're right10 that means the figure that you relied on, 6,390 trees to11 be removed is wrong.12 Again, you're asking -- sorry. You're asking a13 A. hypothetical and hypothetically if one is right, one is14 wrong. Their's is right, mine is wrong. Mine is right,15 their's is wrong.16 Now, you would agree that a developer, I'm not17 Q. criticizing developers, but generally they have an18 interest in downplaying the number of trees destroyed,19 is that fair to say?20 I can't speak for what a developer would or21 A. wouldn't do.22 Well, it's good public relations if a developer23 Q. destroys fewer trees than more, that's agreed?24 It's a fair argument.25 A.

01/08/2025 12:06:06 PM Page 53 to 56 of 100 14 of 38 sheets 53 So if a developer presented this study in 20101 Q. showing vastly larger number of trees than you found,2 shouldn't we at least give some credence to that as3 having some reliability since it really works against a4 developer?5 CHAIRMAN BAGOFF: I'm sorry, I think we're6 going down a realm where we don't want to be. Ask him7 about the trees in his study. You're asking8 hypotheticals about who said what in 2010. Let's not go9 there.10 Well, let me ask it this way. Mr. DeFeo, you11 Q. said you worked on forestry, on tree matters and tree12 plans before, right?13 Yes.14 A. Generally would a developer present a study that15 Q. they didn't have confidence in, in your experience?16 Again, it's the same question with different --17 A. You worked with other developers, right? Haven't18 Q. you.19 I haven't worked with developers. I usually work20 A. for towns or environmental commissions, not with -- not21 for developers per se, on clearing trees, no.22 Okay. Then I'll move on.23 Q. I have not.24 A. Thank you. I'll move on.25 Q. 54 Now, if it turns out this study is correct and1 yours is wrong, that means that the entire premises of2 this application with respect to trees is vastly3 understated, isn't that fair to say?4 MR. PLOCKER: Now I'm going to object to5 that question, because the tree count and tree removal6 and replacement process that the site plan application7 adheres to is set forth in the ordinance. So I don't8 think that is a proper question for Mr. DeFeo.9 MR. AFRAN: Well, he's here to speak in part10 to the idea of compensating for certain number of trees11 by putting a deer fence in.12 MR. PLOCKER: We're going to comply with the13 ordinance, Mr. Afran.14 MR. AFRAN: The actual tree loss is much15 more. That also pulls into doubt a lot of the premises16 on which Mr. DeFeo's reporting.17 MS. McGOVERN: Case law says the planning18 board has no jurisdiction to override the ordinance.19 MR. AFRAN: I'm well aware of that.20 MS. McGOVERN: So they have to take the21 ordinance, enforce the ordinance and see if the22 application that's submitted is in keeping and matches23 up to the ordinance. What it sounds like, and I may be24 incorrect, but it sounds like what you're trying to do25 55 is to prove that the ordinance should never have been1 passed. And that's not for this board to --2 MR. AFRAN: That

nds like, and I may be24 incorrect, but it sounds like what you're trying to do25 55 is to prove that the ordinance should never have been1 passed. And that's not for this board to --2 MR. AFRAN: That wasn't actually in my mind.3 MS. McGOVERN: Okay. Well, the point is4 that they have to take the ordinance the way it is.5 MR. AFRAN: Well, let me do it differently.6 Mr. DeFeo, the ordinance refers to the number of7 Q. trees to be lost on this proposal, doesn't it?8 I don't have the ordinance in front of me, but go9 A. ahead.10 Well, Mr. Plocker just said we're dealing with11 Q. the ordinance. There's a figure of lost trees in the12 ordinance, isn't that correct?13 I don't have the ordinance in front me. You're14 A. asking about the ordinance.15 Let me put it differently. That figure of lost16 Q. trees is based on your average of 212 trees per acre,17 isn't that correct?18 I don't have the ordinance in front me.19 A. I didn't ask you that. I just asked you another20 Q. question. I heard you.21 The tree study was provided to the Township as22 A. part of the negotiation, that's all I know. I can't23 speak to other -- the specifics of the ordinance is not24 in front of me, I can't speak to it.25 56 COMMISSIONER KLEIN: He asked a math1 question. Ask him again.2 Ask me again.3 A. Do you agree, and it's referenced in your own4 Q. papers, there will be 6,390 trees destroyed by the5 project, isn't that correct?6 I believe the initial removal, I believe that's7 A. correct. I don't have my slide in front me, but I8 believe that's correct.9 Now, that's based on an average figure of 21210 Q. trees per acre of disturbance, isn't that correct?11 Yes. I've testified that before, yes.12 A. Now, to the extent that's in the ordinance, for13 Q. example that figure is based on your 212 per acre14 calculation, correct?15 Correct, which is the highest number of the16 A. various ranges we had.17 But if your study is wrong and the 2010 study is18 Q. right, then an actual number of lost trees to be19 destroyed will be much higher, isn't that fair to say?20 If the math is different than the math is21 A. different, correct.22 Okay.23 Q. The math is the math. What variables you put in24 A. the formula determine the outcome.25

15 of 38 sheets Page 57 to 60 of 100 01/08/2025 12:06:06 PM 57 So if they have 2 or 3 times more trees on the1 Q. site calculated and they're right, that means the2 average lost trees will probably be closer to 15,0003 rather than 6,390?4 Seeing this is a statistically flawed study, I do5 A. not think they're right. But if their math is correct,6 obviously the math is the math. You put in a variable,7 the variable gives you a result. You change the8 variable the result changes.9 So if their study is right, that means you get a10 Q. lot more trees lost then you're using?11 If their math is correct then there would be a12 A. higher tree removal theoretically per acre of the13 survey, correct.14 I didn't ask if the math was correct. I simply15 Q. put of point to you. If their study is right then16 there's going to be a lot more lost trees, correct?17 But their study is predicated on math. So their18 A. math has to be correct. For their math to be correct19 their variables and inputs to do the calculations for20 total trees, the variables they enter, must be correct.21 If they're wrong then it's wrong.22 I'll move on. It's not my purpose in life to23 Q. beat the horse dead. I'll move on.24 Now, what's interesting to me is that you knew25 58 about the 2007 plan when you did your own tree report,1 isn't that correct?2 This document, 0-3?3 A. That's not what I asked you.4 Q. I'm asking you for clarification.5 A. I'm asking the questions. You knew about the6 Q. 2007 development proposal from the developer?7 Yes. I knew there were prior development8 A. proposals, yes.9 And you knew there was a 2007 proposal, correct?10 Q. I couldn't speak to the year, but I knew there11 A. was a prior one. I couldn't speak to the year.12 Well, it's actually, it says here, West Essex13 Q. Highlands Affordable Housing Development 202314 Presentation. You recall that, right?15 As I said, I knew there were prior plans. I just16 A. couldn't speak to the exact year off the top of my head.17 Okay.18 Q. And that document you refer and actually put on19 the site plan, 2007 Housing Development Plan, on this20 site, correct?21 If you show me the document, which one that22 A. occurred. I have done several presentations, I'm not23 sure which one you're talking about.24 CHAIRMAN BAGOFF: Mr. Afran, you entering25 59 that document into the record?1 MR. AFRAN: I think -- I think it's