December 11, 2024 Planning Board Special Meeting Transcript - WEHI

ed. 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 already2 entered.3 MS. McGOVERN: Yeah, identify it so we know.4 You're holding onto something.5 MR. AFRAN: Yeah, I will in a second. I'm6 sorry, it is very hard to work on this station. I need7 a moment to get the right page.8 MS. McGOVERN: Sure.9 Mr. DeFeo, I'm showing you what we'll mark as10 Q. O-4. And its headed, as I said, West Essex Highlands11 Affordable Housing Development 2023 Presentation.12 Public information presented by William DeFeo, Lead AP13 Environmental Compliance Officer, West Orange. Do you14 recall that?15 Yes.16 A. Okay.17 Q. (West Essex Highlands Affordable Housing18 Development 2023 Presentation is marked as Exhibit 0-419 for identification.)20 MS. McGOVERN: Counsel, we need a21 description better. You went really fast.22 MR. AFRAN: I apologize.23 MS. McGOVERN: You need to give a copy to24 Jamilet so we have it for the record.25 60 MR. AFRAN: The documents headed, West Essex1 Highlands Affordable Housing Development 2023. And it2 has some other text, but then towards the bottom it3 says, Public Information Session, May 10, 2023.4 Presented by Wayne DeFeo, Environmental Compliance5 Officer, West Orange.6 MS. McGOVERN: Okay.7 MR. AFRAN: Sorry I spoke to quickly.8 MS. McGOVERN: Thank you.9 Mr. DeFeo --10 Q. MS. McGOVERN: Do you have an extra copy?11 MR. AFRAN: I think we do. I can give you12 this one.13 MR. PLOCKER: Is this part of the document14 posted? It is not. Okay. I was just wondering.15 MS. McGOVERN: To be fair Mr. Afran, before16 you give to it Jamilet, would you give it to the17 applicants attorney to take a look so he can see what18 you're cross examining.19 Was -- Mr. Plocker had a good point, let me just20 Q. identify it.21 Was this presentation the one you made at the22 hotel?23 It appears to be. I don't have it in front of me24 A. but that would be roughly the date I recall.25

01/08/2025 12:06:06 PM Page 61 to 64 of 100 16 of 38 sheets 61 MS. McGOVERN: The PowerPoint?1 MR. AFRAN: Looks like a PowerPoint. Most2 things are PowerPoint's nowadays. It looks like it.3 THE WITNESS: It's a PowerPoint if I did it.4 MR. AFRAN: I have only one page I want to5 show the witness.6 MR. PLOCKER: What's the date on this? Is7 it just 2023 --8 MR. AFRAN: No, it says May 10, 2023.9 THE WITNESS: I'd like to help. I think the10 Mayor asked for public presentation.11 MR. AFRAN: That's exactly what it says.12 MS. McGOVERN: You only have one page?13 MR. AFRAN: I'm just going to ask a question14 on one page.15 MS. McGOVERN: So what are we marking as16 O-4? The page or the whole PowerPoint?17 MR. AFRAN: Let's mark the cover and page18 I'm directing him to.19 MS. McGOVERN: Okay. Identify that?20 MR. AFRAN: Which is the cover. I read21 that, I'll do it one more time.22 MS. McGOVERN: Oh, okay. I see. That was23 West Essex Highlands Affordable Housing 2023, Public24 Information Session, May 10, 2023 was the page that you25 62 were looking at?1 MR. AFRAN: It's the cover of the document.2 MS. McGOVERN: Oh, that's the cover. And3 what's the page you're referencing?4 MR. AFRAN: The page I'm referencing --5 MS. McGOVERN: Hopefully it's numbered.6 MR. AFRAN: The page I'm referencing in the7 upper left corner it says, A Site Plan History Spanning8 20 Years. Efforts to Protect the Forest. Under that it9 says, year 2007 plan = single family homes. Site fully10 developed. That's a description.11 MS. McGOVERN: 2007 plan?12 MR. AFRAN: Yes.13 MS. McGOVERN: Okay.14 MR. AFRAN: And I'm just showing this15 witness one page.16 MR. PLOCKER: Just for the record, Mr.17 Bagoff -- Chairman Bagoff. Mr. Afran can provide18 whatever he's marking as the exhibit, which is the cover19 page and the particular page he's referring to. If he20 could just disseminate that after the hearings over at21 some point via e-mail so we all have the exhibit.22 MR. AFRAN: Of course.23 CHAIRMAN BAGOFF: Okay. Thank you, Mr.24 Afran. Thank you, Mr. Plocker.25 63 So I don't mean to crowd you. I'm standing next1 Q. to the witness. This is a 2007 development plan for2 this project, for this property, correct?3 Yes.4 A. That was in your May 10, 2023 report which you5 Q. gave in terms of the general discussions?6 Yes.7 A. Okay. Thank you.8 Q. So at the time you prepared your tree report in9 this case, you were

es.4 A. That was in your May 10, 2023 report which you5 Q. gave in terms of the general discussions?6 Yes.7 A. Okay. Thank you.8 Q. So at the time you prepared your tree report in9 this case, you were well aware that the developer had10 actually produced plans for a single family home project11 in 2007, is that fair to say?12 Yes.13 A. And in spite of that when you did your tree14 Q. report you did not bother to ask the developer for15 copies of the reports they did on the tree survey at16 that time?17 Number one, I did not see the entire application,18 A. so, no, I wouldn't have asked for those plans because I19 was advised those plans were no longer valid. So20 therefore to refer to them was meaningless. I did look21 at the one drawing just to show the differential between22 high density housing and that type of plan.23 Well, you knew that in any development plan24 Q. there'd have to be a tree removal plan proposed, right?25 64 There had to be something proposed, but I don't1 A. know how far along that whole set went. I never saw the2 entire set of drawings.3 So even though you were aware of a 20074 Q. submission you did not ask for a tree study that was5 produced by the developer at that time, is that correct?6 No, because I wouldn't have taken anything7 A. provided by the developer at all. I was asked to do an8 independent study. So I wouldn't want to see prior9 because it would have been prejudiced.10 Wouldn't want to be prejudiced by other11 Q. information?12 Correct.13 A. MR. AFRAN: We're getting close to the end.14 You would agree that under the ordinance, tree15 Q. ordinance in effect today in West Orange, there actually16 has to be a tree plan identifying each tree and it's17 species within the exact location that is to be18 destroyed?19 I'm not certain what ordinance is currently in20 A. effect in West Orange. I know there was a discussion of21 a new tree ordinance some year -- a year ago, I believe.22 Within the last year. I don't know what ordinance is23 currently the effect in West Orange.24 You haven't read the latest ordinance, is that25 Q.

17 of 38 sheets Page 65 to 68 of 100 01/08/2025 12:06:06 PM 65 fair to say?1 No, as it currently -- I don't know if it's been2 A. adopted. I read some earlier drafts but that's all I3 looked at.4 Well, in those earlier drafts didn't you inquire5 Q. that a detailed tree removal plan identifying each tree6 and species and the location?7 I really don't recall the details of those old8 A. drafts. I don't recall.9 Okay.10 Q. So sitting here today you don't recall what was11 adopted into law in the current tree ordinance?12 That's correct.13 A. MR. PLOCKER: How is the current tree14 ordinance relevant? I'm sorry to object, obviously it15 doesn't apply to us. We have our own tree removal16 replacement provisions in this zoning ordinance.17 MR. AFRAN: I'm glad Mr. Plocker raised the18 question, because it does get to the point we're going19 to face. The tree ordinance is a mandate of DEP, which20 acts under it's authorizing statute. Enactments in21 state are a product of statute as opposed to ordinance22 following the time of decision rule, not the time of23 application rule. And therefore since the tree24 ordinance is mandated for each community by DEP and25 66 DEP's acting under the statutory powers, a fair argument1 lies in the fact that the application is governed by2 this new ordinance because it follows the time of3 decision rule. In addition any ordinance that is a4 public, health, safety and welfare measure under MLUL5 45:55D-10.5 is in fact -- sorry, 50-10.5, is in fact6 time of decision not time of application. And so if the7 tree ordinance, which is in effect one, flows from the8 statutory power of DEP then it follows the time of9 decision rule and it is binding on this application.10 Alternately if it is a public, health, safety and11 welfare measure, as was said in its text, then it also12 binds this application because such case follows the13 time of decision rule and this is an issue we will be14 raising as we go further in the case.15 MS. McGOVERN: What's the statue, 55 --16 MR. AFRAN: I believe it's MLUL 40:55D, and17 I believe it's 10.5.18 MS. McGOVERN: 10.5. Okay.19 MR. AFRAN: I may have cited it wrong but I20 believe that's correct. And so our position is that the21 new tree ordinance governs and binds this application.22 Now, I will ask one or two more questions.23 Q. Mr. DeFeo, if you don't recall the contents of24 the ordinance just tell me

ition is that the21 new tree ordinance governs and binds this application.22 Now, I will ask one or two more questions.23 Q. Mr. DeFeo, if you don't recall the contents of24 the ordinance just tell me and I'll move on.25 67 Now, you recall under the present tree ordinance1 in effect that no development project may destroy trees2 closer than 100 feet to a ridge line?3 I really can't answer any questions on this4 A. ordinance, I have not read the detailed new ordinance.5 I don't know.6 Then I will hold those questions for another7 Q. opportunity with another witness.8 MR. AFRAN: Mr. Chairman, if I may have a9 moment to check my notes.10 (Whereupon, a short recess is taken.)11 Mr. DeFeo, if I was to ask you any specific12 Q. questions about requirements in the current tree13 ordinance would your answer be the same, that you're not14 familiar with it's contents at this point?15 Correct, I am not familiar with it.16 A. Okay.17 Q. MR. AFRAN: Mr. Chairman, I will hold the18 remainder of those questions on that point because the19 witness says he's not competently familiar with its20 contents, so there's no purpose in my going forward on21 those questions.22 MS. McGOVERN: Contents of the tree23 ordinance?24 MR. AFRAN: Yes.25 68 MS. McGOVERN: You want him to come back?1 MR. AFRAN: No, I don't think that's2 necessary at this point. I would have liked him to3 answer, but if he's not familiar with it at this point.4 MS. McGOVERN: Okay, hold on. I just want5 to make sure we're not requesting that he return another6 day.7 MR. AFRAN: Well, let me put it this way.8 We will use our own experts for those purposes and it's9 possible Mr. DeFeo on his own or through the boards10 desire may want him to come back.11 MS. McGOVERN: Understood.12 MR. AFRAN: But I don't think we need to13 bring him back for that. The ordinance speaks for14 itself. If it applies it speaks for itself. I don't15 need for Mr. DeFeo to come back.16 Hang on. Just need two or three minutes to17 make sure I'm done.18 (Whereupon, a short recess is taken.)19 Yeah, I do have one more question for Mr. DeFeo.20 Q. You're presently the Township Environmental Compliance21 Officer?22 That's the title where I submit my proposal, yes.23 A. This particular proposal?24 Q. No.25 A.

01/08/2025 12:06:06 PM Page 69 to 72 of 100 18 of 38 sheets 69 So what do you mean, I'm sorry?1 Q. The environmental compliance officer proposal2 A. works on ensuring compliance at the environment center3 where the composting and recycling is collected. My job4 is to, my contract there is to inspect it and ensure it5 meets compliance with state regulations.6 So when you say you're the Environmental7 Q. Compliance Officer, as you did on O-4, you mean only8 with respect to that limited function?9 Well, I get called in under that title to do10 A. other items as necessary that deal with environmental11 issues. If there's an environmental question that12 pertains to an area that the Township believes I can be13 helpful, I'm called in for that, yes.14 I'm not trying to make light of anything and15 Q. please note I'm not trying to be sarcastic. Trees are a16 fundamental part of the environment, we would agree,17 correct?18 I would say trees are a fundamental part of the19 A. environment. I agree with you, yes.20 We reached a point of agreement.21 Q. Now, one would think as the environmental22 compliance officer noting that trees are a large part of23 that general subject area, that you should have read the24 town tree ordinance?25 70 I read the drafts of the towns tree ordinance1 A. when asked to read them for very specific comment. But2 not, I'm not the town forester and I do not deal with3 the tree ordinance. I have not been called to deal with4 it, so I haven't had a to reason look at it.5 Did it occur to you that the current tree6 Q. ordinance might be relevant to this application?7 Not to me because this ordinance was adopted8 A. prior. I was working under the prior -- I was working9 under the negotiated settlement system.10 Well, did someone say to you that the new11 Q. ordinance does not apply, the old ordinance does?12 My work was completed prior to the new ordinance,13 A. so it wouldn't have been anything to come up in14 discussion.15 But you knew there was a new ordinance because16 Q. you read the drafts, is that correct?17 I knew there was one being considered. I didn't18 A. know what was ultimately going to be adopted, I wasn't19 part of that process.20 And before you issued your report here and your21 Q. testimony you didn't think it necessary to look at that22 ordinance?23 My reports were issued prior to my reading even24 A. the draft of the new

20 And before you issued your report here and your21 Q. testimony you didn't think it necessary to look at that22 ordinance?23 My reports were issued prior to my reading even24 A. the draft of the new ordinance. I had no idea if it was25 71 even going to be adopted. My initial report --1 Well --2 Q. -- from a few years ago.3 A. Well, your report dated October 16.4 Q. Oh, I thought you meant the tree study. I'm5 A. sorry.6 Tree study?7 Q. Yeah, I'm sorry.8 A. Well, you came here to testify over the last9 Q. several weeks and that was after the May 2024 adoption10 of the current tree ordinance and you issued a report11 dated October 16, 2024 and that was also after the date12 of adoption. Now, didn't it occur to you to see what13 happened to those drafts that you read, to see whether14 they entered into law before you testified?15 No.16 A. Why not?17 Q. MR. PLOCKER: In all fairness, our zoning18 ordinance says this application, unless specifically19 stated in the IH zoning ordinance that are applicable20 here, that we are exempt from every regulation in the21 West Orange Land Use Ordinance. It says it in our22 ordinance.23 MS. McGOVERN: I understand that and the24 ordinance does say that and you also knew the tree25 72 ordinance was taken out of the Land Use Ordinance, so1 this board doesn't have any, it doesn't --2 CHAIRMAN BAGOFF: Not a Chapter 25 anymore.3 MS. McGOVERN: It's not a Chapter 254 anymore, so it's not part of Land Use.5 MR. AFRAN: As a general ordinance under the6 code.7 MS. McGOVERN: Right, not part of the Land8 Use Ordinance any longer.9 MR. AFRAN: Well, any application for10 development is governed by whatever tree ordinance is in11 force in the general ordinance.12 MS. McGOVERN: It's been removed from the13 land Use Ordinance.14 MR. AFRAN: I can tell you that it15 specifically states that no application for development16 will destroy trees closer than 100 feet from the ridge17 line.18 MS. McGOVERN: I will then tell you it's not19 in Chapter 25, which is the Land Use Law Ordinance which20 the board has to review to see whether it complied with21 or if there's an issue with.22 MR. AFRAN: I understand you point Ms.23 McGovern, but I would differ only in that if there is a24 general ordinance it still governs the developers25

19 of 38 sheets Page 73 to 76 of 100 01/08/2025 12:06:06 PM 73 actions.1 CHAIRMAN BAGOFF: But we're also saying2 there's a tree ordinance for this zone that proceeds the3 latest ordinance taking out Chapter 25.4 MR. AFRAN: Granted the latest ordinance is5 a product of statute or is a public health, safety,6 welfare issue. It binds this application.7 CHAIRMAN BAGOFF: You're arguing public8 safety, health and public welfare, which ordinance was9 never challenged in the IH-1 zone. So we're using that10 because it was never challenged. So you're challenging11 the ordinance?12 MR. AFRAN: It's not that I'm challenging13 the ordinance, there's a later ordinance that supercedes14 it. Council spoke and passed another tree ordinance and15 that tree ordinance governs everything in this town.16 That's the point.17 CHAIRMAN BAGOFF: Not the way the ordinance18 was written, but this is not -19 MR. AFRAN: It's a legal issue.20 CHAIRMAN BAGOFF: Exactly. This is not the21 venue to discuss that. Thank you for bringing that to22 the board's attention.23 MR. AFRAN: It'll come up again.24 CHAIRMAN BAGOFF: I'm sure it will.25 74 So Mr. DeFeo, I asked you a question, I'm not1 Q. sure if you answered it. Not sure you had a chance to2 answer with this colloquy, so just to be fair, why3 didn't you think it necessary to check to see what4 happened to the draft ordinance?5 I didn't think it was -- it's not relevant to6 A. the, as far as I understood it, it wasn't relevant to7 the work that I had done because it was after the fact.8 MR. AFRAN: Thank you.9 I'm corrected by the professor that it was10 adopted June 10, I believe it was adopted in May, but it11 was adopted at some point.12 We have no further questions. I thank Mr. DeFeo13 for his he patience --14 THE WITNESS: Thank you.15 MR. AFRAN: -- through these two days.16 Mr. Chairman, at this point we have nothing17 further at this stage. I know Mr. Plocker does not18 either.19 CHAIRMAN BAGOFF: Thank you.20 You want to ask a question?21 COMMISSIONER KLEIN: Yeah. I have a few22 questions.23 CHAIRMAN BAGOFF: You can ask your questions24 then Council President Rutherford.25 75 COMMISSIONER KLEIN: So you say it's1 between, either between roughly, I'm going to use round2 numbers, 6,000 trees that could possibly be disturbed3 and removed, as many as 15,000 trees removed or4 disturbed, somewhere in between. Are we going to5 actually count

oughly, I'm going to use round2 numbers, 6,000 trees that could possibly be disturbed3 and removed, as many as 15,000 trees removed or4 disturbed, somewhere in between. Are we going to5 actually count the number of trees that are removed when6 they actually -- if they were to approve this and were7 to do construction, would they count the number of trees8 4 inches or greater or whatever the number is and9 quantify and say, ah, yeah, 6,100 trees?10 THE WITNESS: As a rule, no. The answer11 would be that, would depend on who ultimately does that12 work. The monitor that is used would primarily be13 concerned to make sure that tree removal does not exceed14 the area of disturbance.15 MR. KLINE: Okay.16 THE WITNESS: Not counting every tree17 internally, because it's -- that's just not feasible,18 you know they're going to be removed.19 MR. AFRAN: Actually, with respect, we have20 a different interpretation of the current ordinance. I21 know there's a dispute about whether they apply. If, if22 the current ordinance applies, it actually requires23 exactly what you asked. That each tree and species and24 it's locations be marked before construction. Now, that25 76 precedes the development plan to do precisely that. So1 the current ordinance does require exactly what you2 asked for.3 COMMISSIONER KLEIN: Right. So then if it's4 only 6,000, the way you say, then your replacement5 numbers will work. If it turns out that it's a higher6 number what would be the replacement or what would be7 the mitigation if it were indeed 3, 4, 5, 6,000 more8 trees than actually you estimate?9 THE WITNESS: I defer to legal for that kind10 of answer. I just don't know.11 COMMISSIONER KLEIN: It's more a technical12 question for you. You came up with a way, a certain13 amount of deer fence and that --14 THE WITNESS: Right. I follow what you're15 saying.16 COMMISSIONER KLEIN: What if it's double?17 What it's 12,000.18 CHAIRMAN BAGOFF: Well, he said before, you19 run the numbers.20 COMMISSIONER KLEIN: Right. And then how21 much -- is there enough area to make deer fence to be22 able to mitigate the extra 3, 4, 6,000?23 THE WITNESS: There really isn't much more24 room. I mean, theoretically more deer fencing could be25

01/08/2025 12:06:06 PM Page 77 to 80 of 100 20 of 38 sheets 77 put in. We had this discussion early on and the problem1 with putting more deer fencing fundamentally is the2 wetlands. So we get to a point where you start getting3 into disturbing wetlands, which is intimately worse than4 anything that's going to happen in the area of5 disturbance.6 MR. AFRAN: Well, we would also say that7 becomes a somewhat synthetic devise. You add more8 fencing to the development plan from the trees, so at9 some point you can't put fences up just to prevent10 development at the cost of not planting trees.11 COMMISSIONER KLEIN: Oh, right. It's a12 combination of deer fencing and planting new trees.13 THE WITNESS: They have to put in trees14 according to their plan. They have to use native15 species and then the idea of that, of course, is what16 that does over time is helps to populate, especially17 deer fenced area, with seedling.18 COMMISSIONER KLEIN: They could plant around19 the perimeter of their disturbance, right? On the edge20 of the, right.21 THE WITNESS: Yeah, I'm not sure what their22 final landscape plan is going to look like. Where the23 trees will go exactly.24 COMMISSIONER KLEIN: I'm saying they can25 78 always throw in a few more trees.1 THE WITNESS: The Chairman kind of asked this2 question, I believe, I don't know how many hearings ago,3 I lost track. Could the developer, and I believe I put4 it in the supplemental report, get seedlings from the5 state to help speed the process.6 COMMISSIONER KLEIN: Right.7 THE WITNESS: And my answer was, I believe8 it was last hearing or the one before, there were no9 trees available through the different commissions. The10 state didn't have them. The short answer is, yes, there11 is availability of seedlings from the state projected12 and they could do that.13 COMMISSIONER KLEIN: That would be inside14 the deer fence? I'm talking just --15 THE WITNESS: Outside area.16 COMMISSIONER KLEIN: Just on the edges of17 the disturbed. You try not to take down to many trees18 and now that there's a clear area and you try and build19 a building or a parking lot and the existing trees they20 can fill in some more if they had to?21 THE WITNESS: Yeah, you have to be careful22 when you're planting in the building site, but one of23 the elements you may recall in one of my reports is a24 recommendation that we do an EIS type study