December 11, 2024 Planning Board Special Meeting Transcript - WEHI

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 using25 79 satellite imagery where we can identify trees of a1 certain size that maybe we could save within that2 disturbed area because they have some unique3 characteristic and that might be a condition. That4 would help to reduce that number further.5 COMMISSIONER KLEIN: And then my other6 question is, in your opinion what is the impact of7 removing mature trees or trees in general within 1008 feet of a ridge line?9 MR. AFRAN: I'm sorry, I was distracted by10 my clients. I didn't hear your question.11 COMMISSIONER KLEIN: It was for him.12 MR. AFRAN: I didn't hear it.13 COMMISSIONER KLEIN: My question is, in your14 opinion Mr. DeFeo, what's the impact, I guess, on the15 ridge or on the slope of the ridge if you remove trees16 within 100 feet of a ridge line?17 THE WITNESS: To generalize things like that18 are very dangerous, because it depends on the ridge line19 and depends on the theology, it depends where the tree20 is, it depends how it's growing.21 COMMISSIONER KLEIN: Can you give a range?22 THE WITNESS: Generally you wouldn't want to23 do a -- generally try to avoid removal if you can, but24 if you can't then you just want to be sure that you have25 80 some sign of a stable system. One of the elements that1 -- well, this drawing is useless. One of the elements2 of trying to use deer fencing the way we designed it was3 to minimize the impact on that ridge line because4 everything to the east of that ridge line will5 regenerate faster within the deer fencing and mitigate6 any impact. Normally I would see a ridge line and the7 concern is runoff, so we're trying to increase plant8 growth in the direction of runoff that's native there9 and also the understanding, as I understand site plans,10 and I'm not the site engineer, the design as it was11 explained, as I heard it, the storm water on that ridge12 line in the impacted area will be directed away from the13 ridge going west and I believe that's south, right.14 South and west.15 COMMISSIONER KLEIN: Right. Correct.16 THE WITNESS: That's as I understood the17 engineer. So my thinking and my working in negotiating18 with this of course is let's increase the understory19 growth, more plants, more water

ht. Correct.16 THE WITNESS: That's as I understood the17 engineer. So my thinking and my working in negotiating18 with this of course is let's increase the understory19 growth, more plants, more water absorption, so even20 though this, you have this ridge here and anything21 falling here goes this way and anything falling there22 goes that way, I'm worried about what's going that way.23 COMMISSIONER KLEIN: And that's the deer24 fence side?25

21 of 38 sheets Page 81 to 84 of 100 01/08/2025 12:06:06 PM 81 THE WITNESS: That's the deer fence side.1 COMMISSIONER KLEIN: And growth absorbs more2 water and runoff and things.3 MR. AFRAN: Could I add something to some of4 the questions you have. First of all, under the current5 ordinance and maybe under the earlier one as well, under6 the current ordinance it's a 1 for 1 tree replacement.7 COMMISSIONER KLEIN: The diameter or --8 MR. AFRAN: I'll read it. "If you remove a9 tree 4 to 6 inches --"10 CHAIRMAN BAGOFF: Hold on. Hold off on11 reading the ordinance because we don't know if that's12 operative right now.13 MR. AFRAN: All right. I won't go into the14 details. I'll say this, there are different categories15 of radiant -- of diameter. But it is 1 for 116 replacement with a tree, generally 2.5 inches in17 diameter for each of the size classes. A tree must be 618 feet high. So it's not that it's a little seedling,19 it's a 6-foot high tree that has to be replaced.20 COMMISSIONER KLEIN: Right. I think we're21 talking different things. Seedlings are inside the22 fenced in deer area, so that they will grow because they23 don't want the deer to eat it. The seedlings on the24 outside got to be a little more mature so if the deer,25 82 they do start eating them they will still grow.1 MR. AFRAN: Correct. I just wanted to2 clarify, I wasn't sure what Mr. DeFeo meant but the3 current law says must be 6-foot high minimum and it's a4 1 for 1 replacement. So in order to do -- now let's5 assume there's 15,000 to be lost, assuming that theory6 is right, that means the developments got to put in7 another 8,500 trees. That's an enormous cost and so8 that's our point.9 CHAIRMAN BAGOFF: That's a long10 hypothetical, so let's stop right there. It's a11 hypothetical.12 MR. AFRAN: The other thing I'll just add in13 is the actual current law doesn't require that exact14 tree plan, the specific location each tree to be removed15 and it's species. So the new law is much more rigid,16 the current law I'll say is much more rigid than Mr.17 DeFeo seems to be working with. So that's the18 distinction.19 MR. PLOCKER: And this is an affordable20 housing inclusionary development that is entitled to21 certain deference, to certain elimination of cost22 generative items. Look at the affordable housing23 regulations, you want to site the law for a future court24 or wherever you want to

entitled to21 certain deference, to certain elimination of cost22 generative items. Look at the affordable housing23 regulations, you want to site the law for a future court24 or wherever you want to go, that's fine Bruce, but25 83 there's a reason those regulations exist and the town1 recognized that in the settlement, which was approved by2 the court, the settlement had this zoning ordinance3 attached to it which was approved by the court at a4 fairness hearing which was adopted by the governing body5 of this town and was not objected to.6 MR. AFRAN: I would respond and say, it can7 be looked at completely differently. That this8 developer is getting the privilege to build 396 market9 rate units on a site where you could only build 13610 houses. And at the price for the developer getting that11 privilege --12 CHAIRMAN BAGOFF: You're testifying.13 MR. AFRAN: Hang on. Mr. Plocker testified14 too. I just want to respond to what Mr. Plocker said.15 It is not a matter that because you were given16 affordable housing you're given special breaks. The17 affordable housing is the price the developer pays for18 the privilege to put 396 luxury units on a site that19 would carry only 136 single family homes.20 MR. PLOCKER: Which would have disturbed a21 lot more of that property.22 CHAIRMAN BAGOFF: Gentlemen.23 MR. AFRAN: We're done.24 CHAIRMAN BAGOFF: Thank you.25 84 MR. AFRAN: We have concluded our1 presentation, unless anyone has any questions that2 require me to weigh in.3 CHAIRMAN BAGOFF: Thank you. Okay. We're4 going take a five-minute break.5 I'm sorry. Council President, go right a6 head.7 COUNCIL PRESIDENT RUTHERFORD: So I don't8 know if this for you Mr. DeFeo or you Mr. Afran. I just9 have a couple questions as I was listing to the10 testimony.11 The 2010 study had 182 trees per acre of 612 inch diameter or greater. I do recall earlier in your13 presentation Mr. DeFeo, you had broken out the size of14 the trees per acre. Can you help me understand where15 you are with 6 inches or greater, the number per acre,16 if you have that?17 THE WITNESS: I have to find -- I don't have18 it in front of me. Hang on. I have to find the study.19 MR. AFRAN: If you have the actual study20 when we break can I take a look at it, please. I never21 seen it.22 THE WITNESS: The PowerPoint has a23 histogram, as I recall.24 MR. AFRAN: You want my copy.25

01/08/2025 12:06:06 PM Page 85 to 88 of 100 22 of 38 sheets 85 THE WITNESS: If you have a current copy.1 Is that all right Counselor, if I use his copy?2 MS. McGOVERN: Sure.3 THE WITNESS: We used a 4 to 8 inch range.4 So it's, I'm comparing kind of -- I'm not comparing5 apples to apples with that. But the 4 to 8 inch range6 we would have come up with, it's about 70 trees. That7 size range.8 COUNCIL PRESIDENT RUTHERFORD: 4 to 8, 709 trees per acre?10 THE WITNESS: 4 to 8, yeah.11 COUNCIL PRESIDENT RUTHERFORD: What about --12 THE WITNESS: It's tough to compare 6, you13 know, it's a big range.14 COUNCIL PRESIDENT RUTHERFORD: Do you have15 anything above 8 inches?16 THE WITNESS: Yes, we have trees in the 8 to17 12 range and we went 12 to 16, 16 to 20 and the numbers18 drop pretty -- these are numbers of trees we found in19 the areas. So we went from 70 in 4 to 8. 8 to 12 we20 dropped to 30. Then we dropped, 12 to 16 we dropped to21 10, below 10. When we get above 16 to 20 you're going22 to get into 1, 2, 3, 4. That's a little better for me23 to see. So you just see as they get bigger and bigger,24 which is not unusual by the way, that is get really big25 86 trees, 36 inch diameter trees, that's a big tree. So1 you see fewer and fewer of that kind of tree anywhere.2 COUNCIL PRESIDENT RUTHERFORD: If you were3 to add up all the trees 4 inches or greater, can we get4 a number for that so we can compare it to 6 inches or5 greater that was in the earlier study?6 THE WITNESS: I'll look and see. Again,7 because we're doing different ranges, because they use8 the 2 to 6, which is an inaccurate range to work with in9 the first place, it's not an accurate study. In that10 regards when you say 2 to 6, I got to eliminate11 everything up between 2 and 3.9.12 COUNCIL PRESIDENT RUTHERFORD: I'd be fine13 with 4.14 THE WITNESS: I can try. I couldn't do it15 off the top of my head.16 COUNCIL PRESIDENT RUTHERFORD: So I would17 like to know what your study showed the total number of18 trees per, or average number of trees per acre 4 inches19 or greater.20 THE WITNESS: You want to compare what was21 the, what was theoretically the exhibit that was a prior22 study against these findings to see if there's any23 difference. Am I understanding you correctly?24 COUNCIL PRESIDENT RUTHERFORD: Correct.25 87 MR. AFRAN: Where the difference is.1 THE WITNESS: Either or.2 COUNCIL PRESIDENT

ings to see if there's any23 difference. Am I understanding you correctly?24 COUNCIL PRESIDENT RUTHERFORD: Correct.25 87 MR. AFRAN: Where the difference is.1 THE WITNESS: Either or.2 COUNCIL PRESIDENT RUTHERFORD: If you have3 it by 6 inches that would be great, if not I'm happy to4 kind of adjust the math.5 THE WITNESS: I can try and -- I can try. I6 can't promise what I come up with, but I can try,7 certainly.8 COUNCIL PRESIDENT RUTHERFORD: Thank you. I9 mean, should be a way to do it. You were able to put it10 on the histogram.11 THE WITNESS: Yeah, I'm just not sure of12 it's accuracy, that's all I can tell you right now. I13 just don't know.14 MR. AFRAN: When that's done we appreciate a15 copy at the time it's posted and sent to the Mayor.16 COUNCIL PRESIDENT RUTHERFORD: Second17 question I have is, I'm a little unclear about the18 forest, the characterization of the forest. Is it a19 stagnant forest or a stable forest or not?20 THE WITNESS: Well, I suppose it depends who21 you talk to. My professional opinion this is what I22 call a stagnant, non-regenerating forest. That means as23 time continues, using that histogram as an example24 regarding those other numbers.25 88 COUNCIL PRESIDENT RUTHERFORD: Right.1 You're going to have a few smaller.2 THE WITNESS: The problem is your smaller3 trees, when they get above that -- when they get to that4 4 inch category and above they're going to be okay. The5 problem is, forget the 2 inches and below, the seedling6 loss, the rate of the seedling lost is so substantial7 and then virtually, if you had a chance to look at the8 number of supplemental, I know you have nothing else to9 do with your time ever, but if you ever get a chance to10 read all that stuff, you will see there are a number of11 studies that show forests like this, and the reason they12 call it stagnant is because you don't get the13 replacement of the older dying trees with the seedlings.14 Whatever's in that range is what you got. And when I15 say the forest is stagnant and unhealthy, understand,16 you and I may not be on this earth by the time this17 forest regenerates to some level. We're talking about a18 forest, I'm talking 100 year window, not 5-year window.19 So I'm looking at a long-term health for the forest over20 long periods. So to answer your question, what will21 happen is if you don't get that seedling growth, if that22 continues to

-year window.19 So I'm looking at a long-term health for the forest over20 long periods. So to answer your question, what will21 happen is if you don't get that seedling growth, if that22 continues to occur as it's been doing when you're23 getting deer eating it and other animals, then you're24 going to have a number of negative environmental25

23 of 38 sheets Page 89 to 92 of 100 01/08/2025 12:06:06 PM 89 impacts. Not just trees, we keep focusing on trees, but1 what happens in a forest like that you're small game2 species decrease. Your bird species decrease, because3 not all birds live in the top of trees. A lot of birds4 live in the lower ends of the shrubs. There are no5 shrubs to speak of that birds like. There are shrubs6 there but not healthy. So you start to destroy the7 ecological diversity of the entire forest over time,8 which is why I call it stagnant and unhealthy. Stable9 to me would mean I have a regeneration rate that's10 comparable to the death rate and therefore I have a11 forest that continues -- continuing to evolve and be12 healthy with young trees replacing old trees.13 COMMISSIONER RUTHERFORD: Now, going back to14 this rolling mean methodology that you spoke about15 earlier. Is there a certain minimum percentage of16 sample size that needs to be considered before you can17 make a conclusion?18 THE WITNESS: Generally it's what we use19 here two-and-a-half to three percent.20 COUNCIL PRESIDENT RUTHERFORD: Well, what I21 mean by that is, you have 55 or 50 plus sites.22 THE WITNESS: Oh, I follow what you're23 saying.24 COUNCIL PRESIDENT RUTHERFORD: So do you25 90 have to use half the sample size, do you use a quarter,1 a third?2 THE WITNESS: We generally go to about half.3 We went to 22 out of 55. At that point you run the4 rolling mean and then you say --5 COUNCIL PRESIDENT RUTHERFORD: So about 406 percent?7 THE WITNESS: About 40 to 50 percent yeah, in8 that range. You start running the numbers and as the9 numbers just continuously don't change you say, okay,10 what point does it become an exercise of let's just go11 out and spend more time in the forest, which as far as12 I'm concerned is a wonderful way to spend my time, but13 it's not necessarily the most efficient way to get good14 data.15 COUNCIL PRESIDENT RUTHERFORD: Understood.16 I just want to get what that number -- what that17 percentage of sample size is.18 THE WITNESS: And can I ask you to go back,19 because I don't want to forget what you want. You want20 me to compare the histograms, if you will, or the number21 of breakdown because there's not a histogram, I realize22 that, but compare our numbers against the older numbers23 and see what we come up against?24 COUNCIL PRESIDENT RUTHERFORD: Correct.25 91 What I

f breakdown because there's not a histogram, I realize22 that, but compare our numbers against the older numbers23 and see what we come up against?24 COUNCIL PRESIDENT RUTHERFORD: Correct.25 91 What I would like to know is, you know, they presented 61 inches in greater than 182 trees per acre. I would like2 to know a comparable number from your study.3 THE WITNESS: Okay. No problem. I'll do4 what I can for you.5 COUNCIL PRESIDENT RUTHERFORD: This is6 really, this question is really for the board attorney.7 Does the DEP statute supercede the settlement agreement8 or governing ordinance?9 CHAIRMAN BAGOFF: I'm going to stop you10 right there. The DEP has nothing do with us. The DEP11 will weigh in on this application when they apply to the12 DEP. We have nothing to do with that. Outside the13 purview of the board.14 COUNCIL PRESIDENT RUTHERFORD: So my -- as I15 listened to the testimony, Mr. Afran made an assertion,16 he made that assertion in response to what Mr. DeFeo was17 testifying. My understanding of that is as a board18 member, even though the governing ordinance for this19 particular project allows the applicant to ignore the20 tree ordinance --21 CHAIRMAN BAGOFF: Doesn't ignore the22 ordinance. There is a tree ordinance in place, so it's23 not ignoring.24 COUNCIL PRESIDENT RUTHERFORD: Ignoring the25 92 current tree ordinance.1 CHAIRMAN BAGOFF: There's another tree2 ordinance and the tree ordinance for the zone. Let's be3 clear, so the attorneys will argue this out in a4 different venue.5 COUNCIL PRESIDENT RUTHERFORD: All right.6 So --7 MR. AFRAN: We'll argue here too.8 COUNCIL PRESIDENT RUTHERFORD: What I'm9 saying is the ordinance that they have in this10 settlement agreement that we got some clarity on, we11 call it the settlement agreement or zoning ordinance,12 whatever it is, that may not actually govern if there's13 something at state level that supercedes? That's all14 I'm trying to understand.15 CHAIRMAN BAGOFF: That's correct.16 COUNCIL PRESIDENT RUTHERFORD: So the DEP17 would supercede whatever it is. We can't violate what18 they would want.19 CHAIRMAN BAGOFF: That's correct. They20 would have to weigh in on it after we have decided.21 COUNCIL PRESIDENT RUTHERFORD: And is that22 your position, board attorney?23 MS. McGOVERN: Yeah. The DEP, their rules24 supercede anything that we all want to do or might have25

01/08/2025 12:06:06 PM Page 93 to 96 of 100 24 of 38 sheets 93 done, but they applied for DEP at the time that they did1 it. I know whatever the standards were required at the2 time that they applied are what applied. That's3 typically what happens and I believe that that's what --4 COUNCIL PRESIDENT RUTHERFORD: Well, that's5 a follow-up.6 MS. McGOVERN: We already got confirmation,7 I believe, you're not Mr. Hess, but Mr. Hess indicated8 and confirmed when he was here, our engineer, that the,9 that the DEP rules that were in place and the storm10 management were on the date of this application and11 that's the guideline that they have to follow.12 COUNCIL PRESIDENT RUTHERFORD: So that was a13 follow-up question, right. Because if they do govern,14 my understanding from Mr. Afran's questioning today, was15 that it's a time of decision not a time of --16 MS. McGOVERN: I understand that was Mr.17 Afran's assertion.18 COUNCIL PRESIDENT RUTHERFORD: But that may19 not be accurate?20 MS. McGOVERN: Well, I think the DEP has21 already issued something that Mr. Hess had reported to22 us and confirmed. That the DEP was taking the position23 that the storm water management rules that were in place24 at the time are in place for this application.25 94 COUNCIL PRESIDENT RUTHERFORD: That was1 storm water?2 MS. McGOVERN: Yes.3 COUNCIL PRESIDENT RUTHERFORD: What we're4 talking about right now --5 MS. McGOVERN: Trees.6 COUNCIL PRESIDENT RUTHERFORD: -- are trees.7 MS. McGOVERN: That's our personal ordinance8 that you're referring to and this location has it's own9 personal specific tree ordinance.10 COUNCIL PRESIDENT RUTHERFORD: Right. Now11 we're getting into circular arguments, because what --12 MS. McGOVERN: I see what you're saying.13 No, I do. And the DEP, I don't believe, weighed in on14 anything to do with the trees.15 COUNCIL PRESIDENT RUTHERFORD: And are they16 going to at some point?17 MS. McGOVERN: No, I don't think they have18 jurisdiction, because that's our specific local19 ordinance.20 MR. PLOCKER: I could state for the record,21 that any required DEP permits we applied for and22 granted.23 MS. McGOVERN: And you have the record, they24 have been granted?25 95 MR. PLOCKER: Yes. The storm water,1 extension of LOI, I believe they are filed in the town.2 MR. AFRAN: May I explain one moment. On3 the storm water issue and the question of which set of4 rules govern,