January 29, 2025 Planning Board Special Meeting Transcript - WEHI

23 of 57 sheets Page 89 to 92 of 143 02/13/2025 11:25:53 AM 89 The zone, again, is specifically aimed at1 providing affordable housing as part of your fair share2 plan. The planning board has taken all the proper steps3 procedurally in implementing this plan. Most4 importantly finding that the fair share element or the5 housing element of the plan is substantially consistent6 with your Master Plan as well. So there is a whole7 series of layers of connectivity here from a public8 policy standpoint that links together in the9 implementation of this particular plan.10 My role as the planner is relatively limited.11 The focus and the board has a similar responsibility12 here to focus on the applications conforming with the13 zoning regulations that are before you. There's very14 strict case law, very solid case law that comes from the15 Supreme Court in the Pizzo Mantin case that says the16 essence of good planning is rooted in your zoning17 ordinance. If an application complies with your18 ordinance it should be approved. We got a project here19 that is substantially in compliance with the zoning20 regulations that are before you.21 All of the highest gears of your IH-1 district22 are met. Particularly your use controls in terms of23 providing for multifamily residential and open space.24 And then of course your most important bulk controls are25 90 met here as well. Project density, conforms. Project1 height, conforms. The number of stories, conforms. The2 coverage, building coverage, lot coverage, conforms.3 Setbacks on all sides, front, side, rear, other side,4 all conform. The parking, fully conforms. The buffers5 on all sides, fully conform. The landscaping details,6 fully conform. The lighting, signage, the unit sizes,7 unit affordability, all conform with your zoning8 ordinance. The project is also in full conformance with9 outside agency requirements as well, what we call the10 UHAC rules, or the Uniform Housing Affordability11 Controls.12 As you heard through Mr. Appel's testimony, the13 architect, this project has been designed in accordance14 with UHAC rules and affordability controls.15 DEP, you heard extensive environmental testimony,16 you heard Mr. Anderson speak about the strict adherence17 to the DEP regulations with respect to wetlands and18 buffers and the like.19 And then finally of course ADA and our EV20 standards, the state wide standards

nderson speak about the strict adherence17 to the DEP regulations with respect to wetlands and18 buffers and the like.19 And then finally of course ADA and our EV20 standards, the state wide standards as well, are all met21 here.22 The project requires very, very minimal relief23 and that will bring me to the fourth part of my24 analysis, which will be relatively short, because again,25 91 the relief the applicant is asking the board to move on1 is relatively limited as well.2 There's one C variance here. You heard through3 Mr. Appel's testimony back in August when those4 air-conditioners were blasting on a hot day, quite the5 contrast from today, where you saw many visuals as to6 the relief that the applicant is seeking, which pertains7 to a grading control that is built to this AH-18 inclusionary housing zone district. Not to the building9 per se, but to the grading around the building. It's in10 the grading section of your ordinance.11 You heard testimony through Mr. Anderson, through12 Mr. Appel as well, that the applicant is asking the13 board to move on having greater than 50 percent exposure14 of the building foundations based on the grading, again,15 in the interest of minimizing disturbance on the16 property and we've heard this over and over again, it17 goes back to the settlement agreement as well, to18 minimize disturbance on the property, to provide for a19 cluster development as opposed to a sprawling20 development over the entire land and maintaining21 significant green space on the property.22 Mitigative measures with respect to that wall23 exposure, and just for the record, again citing Mr.24 Appel's testimony, you got four buildings here, Building25 92 A exposes 76.5 percent, Building B, 76.4 percent,1 Building C, 69.1 percent and Building D, 54.8 percent,2 whereby 50 percent would be the maximum that's allowed.3 Again, all in response to the sloping terrain, the4 highly irregular terrain that we're dealing with on this5 rugged piece of property and mitigated by substantial6 vegetation.7 You heard a lot about that green wall, this is8 not going to be a plastic green wall, this is going to9 be a living green wall, actual plantings. Foundation10 plantings and trees as well to mitigate exposure, which11 is really internal to the development not external to12 the development and certainly remote from those homes13 that are around it. Mitigating

plantings and trees as well to mitigate exposure, which11 is really internal to the development not external to12 the development and certainly remote from those homes13 that are around it. Mitigating and obscured --14 mitigated and obscured by the trees and the buffering15 that will remain between the subject and the neighboring16 properties.17 Again, we're looking at mitigative measures and18 all being done in the interest of minimizing land19 disturbance.20 In consideration of the C relief that the21 applicant is seeking and, again, it's just that one22 variance which really has an aesthetic component more so23 than a functional or a life safety component to it. We24 look at what we call the Flexible C Balancing Test, and25

02/13/2025 11:25:53 AM Page 93 to 96 of 143 24 of 57 sheets 93 we consider the application as a whole, we have good1 case law on that as well that says, look at the entire2 package and the good that it does. We counter balance3 that with the relief that the applicant is seeking,4 given that adherence to the zone, the higher zone5 controls and this relatively modest design relief that6 the applicant is asking the board to move on. Again,7 remember the little blue slivers that Mr. Appel showed8 in his Exhibit A-3 back in August, I think clearly the9 board can find that relief can be granted without any10 substantially adverse visual impacts by having that11 exposed building foundation and the relief that's being12 sought.13 On the positive side, we consider the benefits of14 the application as a whole. Paramount to this15 application is the public interest, the court mandated16 provision for affordable housing. These are the words17 of the New Jersey Supreme Court going all the way back18 to the Mount Laurel number 1. These are not John19 McDonough's words, these are the New Jersey Supreme20 Court which form the whole impetus why we have21 affordable housing here in New Jersey and this was22 brought on, again, by that 1975 case NAACP v. The23 Township of Mount Laurel where courts found that there24 was exclusionary zoning in Mount Laurel and open the25 94 doors, if you will, for the provision of affordable1 housing and obligation all towns. This is what the2 court said, "There is not the slightest doubt that New3 Jersey has been and continues to be faced with a4 desperate need for housing, especially of decent living5 accommodations economically suitable for low and6 moderate income families. This situation is7 characterized as a crisis." That's the pre-ample to the8 Mount Laurel Doctrine which has now been reaffirmed9 since 1975 for Mount Laurel 2, Mount Laurel 3 and here10 we sit with Mount Laurel 4 again. So what's happening11 here in West Orange is happening throughout New Jersey12 as well, and again, I compliment the community and the13 leadership for responding to the law. This is not the14 town per se driving this, but the law that's driving15 this and what our courts are mandating.16 The project not only provides affordable housing,17 which we just said is a paramount of public interest.18 We have new housing stock, we have attractive new19 buildings,

t our courts are mandating.16 The project not only provides affordable housing,17 which we just said is a paramount of public interest.18 We have new housing stock, we have attractive new19 buildings, we've got abundant robust landscaping. This20 project has been well designed, it has been well laid21 out. You have testimony, unwavering testimony that this22 project will flow, will function, will operate safely,23 conveniently and comfortable for the people that live24 here and will integrate with the land that is around it.25 95 The project will promote compact development,1 efficient land use and economic scale, which is what we2 see in multifamily developments, clustered development3 as opposed to sprawling single family development.4 The project promotes a variety of land uses in5 appropriate locations. Again, with what is a fully6 permitted use in this zone.7 The project promotes environmental preservation8 by preserving over 90 acres of woodlands. We always9 have to take this back to our land use law N.J.S.A.10 40:55D-2, which is what gives this community the right11 to create zone districts and essentially create this12 board and your zoning board as well and govern what13 happens from a land use perspective within the proper of14 your community.15 Fundamental purposes in the land use law, there16 about 18 or so of them. It's an obligation of the17 applicant to prove that one are met. I actually see18 multiple here based on the benefits that I just quoted,19 including purpose A, the promotion of the general20 welfare. Purpose G, again, the planning goal for21 variety. Purpose I, for promotion of a desirable visual22 environment and purpose N, efficient use of land.23 Counter balancing that with the negative24 criteria. Based on all the testimony and the credible25 96 evidence, relief can be granted without substantial1 adverse impacts. You have good, solid testimony from2 Mr. Anderson and also 60, 70 pages of detailed site3 plans that demonstrate this is a well thought out plan4 designed in accordance with sound site planning5 principles. Likewise you have a set of plans and6 testimony from Mr. Appel that this has been designed in7 accordance with all applicable building codes, UHAC and8 other life safety codes as well.9 You have testimony through your own environmental10 expert that there will not be any substantial11 environmental impacts. Testimony

licable building codes, UHAC and8 other life safety codes as well.9 You have testimony through your own environmental10 expert that there will not be any substantial11 environmental impacts. Testimony from Mr. Pehnke that12 there will not be any substantially adverse traffic13 impacts. And, again, you have testimony through an14 expert who's your technical that there will not be any15 substantial, geotechnical, impacts associated with this16 development. Again, this is uncontroverted expert17 opinion. That, as I stand now, I think strongly goes18 towards the resolution of the negative criteria and the19 applicant has certainly met it's burden through20 continued probing, which I think is certainly21 appropriate, very, very detailed, good questions and22 responsive applicant in the form of its professionals23 here. So the process has been interactive, which,24 again, is exactly what Pizzo Mantin says the process25

25 of 57 sheets Page 97 to 100 of 143 02/13/2025 11:25:53 AM 97 should be. It should be done in a public forum with the1 public and questions are posed, questions are answered.2 Where we landed now after I will say eight3 hearings, testimony on the record is clear that this4 project will not have any substantially adverse impacts.5 And lastly of course, I'm going to take you back6 to that Pizzo Mantin case which I can tell you I7 actually lived that case. It's up in Randolph, it8 involved a 90 acre virgin piece of land of woodland9 where the applicant was proposing a residential10 development. We went through multiple hearings, many,11 many hearings, public, very similar process to what has12 happened here. At the end of the day the board actually13 denied the application on the grounds that it did not14 constitute "good planning." It went through the courts15 and it landed with the Supreme Court that, again, taking16 us back to what I said at the outset, ruled that the17 essence of good planning "is rooted in your zoning18 ordinance." Where an application complies it is19 consistent with good planning and in that regard should20 be approved. It is not up to the discretion of the21 board or the public to say what does or doesn't22 constitute good planning. You have evidence here, you23 have conformance with the zone ordinance, which is24 particularly set up to safe guard public interest.25 98 So, again, we have two cases here that are1 fundamental tenants to the application before you. The2 Mount Laurel Doctrine and the Pizzo Mantin case as well3 which will give the board, I think, good legal framework4 to guide your decision making here. I'm not a lawyer,5 I'm a planner, we have to operate in a legal frame work6 and so I give those -- I certainly take those cases into7 consideration and I give it to the board as well.8 On balancing, I think clearly lands on the9 positive substantially outweighs any detriments10 associated with those slivers of raw wall exposure and11 clearly a better zoning alternative. It sounds like it12 is potentially feasible to eliminate that relief, but13 then you would get retaining walls, you'd get more land14 disturbance, more tree removal. The board's supposed to15 consider whether it represents a better zoning16 alternative, and for all those reasons I believe that17 the evidence proves that this is a better

urbance, more tree removal. The board's supposed to15 consider whether it represents a better zoning16 alternative, and for all those reasons I believe that17 the evidence proves that this is a better zoning18 alternative.19 Now, you did hear testimony outside of the20 variance relief, there are two de minimus exceptions21 which come from, again, the state regulation, the22 Residential Site Improvement Standards, and I'll call23 them RSIS for the purposes of my testimony. Really24 falling back on Mr. Pehnke's testimony to a certain25 99 extent, Mr. Anderson as well, we have here relief1 related to the fact that the loop road with the closing2 off of Kuzik, which comes as part of that settlement3 agreement with the neighbors there, would create a loop4 that has a greater than 1,000 average daily traffic5 rate. Greater than 1,000 average daily traffic. I6 think through the testimony it was 1,784 trips above7 that threshold. Mr. Pehnke, again, I'm not a traffic8 engineer, has addressed that through his testimony as9 the predicate for my planning conclusion that the site10 has adequate carrying capacity and can function safely11 and efficiently without any substantial adverse12 degradation of traffic or unsafe conditions to have13 Kuzik Road closed off as part of the court settlement in14 the interest of protecting the privacy of the neighbors15 but for emergency access.16 Likewise there was testimony that came on during17 the course of the hearing about having a sidewalk only18 on one side from the interior circle working your way19 back down to Warner, it's only a piece of the overall20 development. And, again, I think the board can find21 that, that relief is also justifiable in meeting the22 intent and purpose of the RSIS.23 Whenever we look at relief related to RSIS there24 are certain words that we need to speak to. First, the25 100 literal enforcement of one or more provisions of the1 standard is impracticable or will exact undue hardship2 because of peculiar conditions pertaining to the3 development in question. Again, given all the testimony4 on the record, strict or literal enforcement is5 impracticable and serves no practical planning purpose.6 In terms of the access, adequate access is7 provided and relief response to the neighbors request to8 close off Kuzik. Relief relates to a hardship created9 by the land and the surrounding road network already

of the access, adequate access is7 provided and relief response to the neighbors request to8 close off Kuzik. Relief relates to a hardship created9 by the land and the surrounding road network already in10 place. You heard that that sidewalk on the one side is11 going to provide for safe and adequate pedestrian12 circulation. There are no homes along that stretch of13 roadway, so the single walkway would nicely tie into14 what we see on the Warner side.15 Additionally, the RSIS purposes advanced here to16 eliminate unnecessary increases in cost of housing that17 are non-commensurate with the protection of public18 health and safety. To provide for residential projects19 that are based upon sound objectives, site improvement20 standards, rather than upon discretionary design21 standards. To provide the widest possible range of22 design freedom and promote diversity through performance23 oriented site improvement standards and then finally to24 separate the policy making aspects of the development25

02/13/2025 11:25:53 AM Page 101 to 104 of 143 26 of 57 sheets 101 review from the making of technical determinations.1 During the course of the hearings, again, we found that2 the applicant is advancing the laudable goals of, and3 policies of the community, to advance your complete4 street policy. This system, this circulation system is5 going to be bicycle friendly and pedestrian friendly and6 I think that goes towards the spirit of the RSIS and7 justifies those de minimus exceptions as well.8 All said, you have heard a lot of testimony, it's9 the predicate for my generally narrow conclusion here10 that this application is the culmination of a long court11 settlement. I have been involved with this property for12 many, many years and this is in accordance with the fair13 share plan. Most importantly for the board to consider14 the statutory criteria for the relief that the applicant15 is making or met, and approval is warranted here.16 That's all I have on direct, unless there's more17 direct.18 MR. PLOCKER: No, I don't have any redirect,19 so I would open, Chairman, open up to the board for20 questions.21 CHAIRMAN BAGOFF: Thank you.22 Mr. Cardoza, do you have any questions for23 Mr. McDonough on his testimony?24 MR. CARDOZA: No question questions, Mr.25 102 Chairman.1 CHAIRMAN BAGOFF: Mayor McCartney, do you2 have any questions for Mr. McDonough on his testimony?3 MAYOR MCcARTNEY: No questions.4 CHAIRMAN BAGOFF: Vice Chair Guarino, do you5 have any questions for Mr. McDonough on his testimony?6 VICE CHAIRMAN GUARINO: No questions at this7 time, Mr. Chairman.8 CHAIRMAN BAGOFF: Mr. Alper, do you have any9 questions for Mr. McDonough on his testimony?10 MR. ALPER: It's been a while since I've seen11 this and I don't know I need to see it, but it occurred12 to me if Kuzik is closed to vehicle traffic, only left13 for emergency access, would opening it, keeping it open14 for bicycles and pedestrians be feasible at all? If so,15 would that be something that's conditioned or agreed to?16 Again, it's been so long since I've seen it, I don't17 remember if it is feasible but it occurred to me to ask.18 THE WITNESS: Yes.19 MR. PLOCKER: The applicant will make the20 representation we believe that it is generally feasible21 and if it is we would be able to do that. Yes, Mr.22 Alper.23 MR. ALPER: Okay. Thank you.24 CHAIRMAN BAGOFF: Mr. Wilkes, do you have25 103 any