June 4, 2025, Planning Board Regular Meeting Transcript - WEHI

1 of 41 sheets Page 1 to 4 of 101 06/20/2025 06:55:03 AM 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, JUNE 4, 2025 6:30 P.M. RE; PB-24-01 WEST ESSEX HIGHLANDS, INC. BOARD MEMBERS: ROBERT BAGOFF, Chairman SUSAN McCARTNEY, Mayor JERRY GUARINO, Vice Chairman KEN ALPER FRANK NOBORINE JOHN CARDOZA RYAN MacNEILL, Engineer GERARD HAIZEL, Planner JAMILET BAQUERIZO VITE, Board Secretary GENIECE GARY-ADAMS, Zoning Official JOSEPH FAGAN, Zoom Moderator WITNESS: MARK GALLAGHER 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 10 B R U C E I . A F R A N , E S Q . 1 0 B R A E B R U N D R I V E11 P R I N C E T O N , N E W J E R S E Y 0 8 5 4 0 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 J12 C o r p . 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 I N D E X O F E X H I B I T S 2 E X H I B I T D E S C R I P T I O N 3 O - 1 4 S L I D E P R E S E N T A T I O N 4 5 6 7 8 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 : A p p l i c a t i o n P B - 2 4 - 0 1 , W e s t1 E s s e x 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 .2 W a r n e r R o a d . T h e a p p l i c a n t i s p r o p o s i n g t o d e v e l o p a3 4 9 6 u n i t i n c l u 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 l4 d e v e l o p m e n t o n a 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 e5 n o r t h w e s t c o r n e r o f t h e T o w n s h i p .6 M r . P l o c k e r , f o r t h e a p p l i c a n t .7 M R . P L O C K E R : G o o d e v e n i n g e v e r y b o d y . G o o d8 t o s e e y o u a g a i n .9 B r i a n P l o c k e r w i t h t h e f i r m H u t t ,10 S h i

, f o r t h e a p p l i c a n t .7 M R . P L O C K E R : G o o d e v e n i n g e v e r y b o d y . G o o d8 t o s e e y o u a g a i n .9 B r i a n P l o c k e r w i t h t h e f i r m H u t t ,10 S h i m a n o w i t z a n d P l o c k e r , o n b e h a l f o f t h e a p p l i c a n t .11 C H A I R M A N B A G O F F : O k a y .12 M r . A f r a n , y o u h a v e t h e f l o o r , s i r .13 M R . A F R A N : T h a n k y o u .14 G o o d e v e n i n g e v e r y o n e . B r u c e A f r a n f o r t h e15 o b j e c t o r , W e C a r e N J . G o o d t o s e e e v e r y o n e a g a i n .16 W e h a v e o n e w i t n e s s t o n i g h t , i t ' s p o s s i b l e17 t h e r e m a y b e a s e c o n d w i t n e s s , I ' m n o t s u r e y e t . T h a t18 w i t n e s s i s M a r k G a l l a g h e r f r o m P r i n c e t o n H y d r o w h o i s19 t e s t i f y i n g a s t o w e t l a n d s , e c o l o g y a n d h y d r o l o g y .20 B e f o r e w e d o t h a t , I w a n t t o r a i s e o n e21 h o u s e k e e p i n g i s s u e . I d o n ' t m e a n t h i s a t a l l b y22 c r i t i c i s m o f t h e a p p l i c a n t , I w a s j u s t w o n d e r i n g i f w e23 r o u g h l y k n o w w h e n t h e s u p p l e m e n t a l g e o t e c h n i c a l r e p o r t24 i s c o m i n g i n b e c a u s e t h a t a f f e c t s s o m e o f o u r p l a n n i n g25

06/20/2025 06:55:03 AM Page 5 to 8 of 101 2 of 41 sheets 5 of our witnesses. If we don't, that's fine, we'll talk1 later on.2 Mr. Plocker gestured, I think, we don't know3 yet.4 MR. PLOCKER: I didn't make any gesture.5 MR. AFRAN: I'm sorry.6 MR. PLOCKER: We'll have to get back to you.7 I know the test was done and, you know, but you and me,8 we're all busy, we'll have to check.9 MR. AFRAN: Fine. Okay.10 So in terms of planning witnesses, to some11 degree ours depend on that but we'll work through it the12 best wet can.13 So we have one witness tonight. I'll call14 Mark Gallagher.15 MS. McGOVERN: Please put your full name on16 the record and spell your last name.17 THE WITNESS: Mark Gallagher,18 G-A-L-L-A-G-H-E-R.19 MS. McGOVERN: Please raise your right-hand.20 Do you swear or affirm the testimony you are about to21 give will be the truth the whole truth nothing but the22 truth.23 THE WITNESS: I do.24 Ms. McGOVERN: Thank you.25 6 M A R K G A L L A G H E R, having been duly1 sworn under oath testifies as follows:2 I don't know if the people could hear me in the3 Q. back. I know there's, the air-conditioning is necessary4 but is it okay -- can you hear? I'll ask Mr. Gallagher5 to begin, I'll ask if he would speak up just because6 there is air-conditioning.7 Let me just qualify the witness.8 Mr. Gallagher has been sworn.9 Mr. Gallagher, who are you employed by presently?10 I am the president of Princeton Hydro.11 A. I think you may have to speak louder. You can12 Q. actually use this ultimately when I'm done.13 And what is your area or focus presently at14 Princeton Hydro?15 It's primarily regulatory compliance. Geological16 A. restoration.17 Geological restoration?18 Q. Correct.19 A. What is your degree in? What degrees do you20 Q. hold?21 I have a bachelor's degree in biology from22 A. Moravian College and a master's degree from Rutgers23 University.24 Now, I understand you also teach a course at25 Q. 7 Drexler or Temple?1 Temple University.2 A. And what course is that?3 Q. Wetlands Ecology.4 A. And how long have you taught that course for?5 Q. Eight years.6 A. MR. AFRAN: Without going further, I believe7 this would qualify the witness in his field of wetlands,8 ecology and hydrology. I could do more but I don't9 think it's necessary.10 CHAIRMAN BAGOFF: Everybody okay? Any Board11 members have a question.12 Let me ask you a question before we get

f wetlands,8 ecology and hydrology. I could do more but I don't9 think it's necessary.10 CHAIRMAN BAGOFF: Everybody okay? Any Board11 members have a question.12 Let me ask you a question before we get started.13 What area of the ordinance would his testimony apply to14 that the Panning Board can use to make their decision?15 Is this the body that should be hearing this16 information.17 MR. AFRAN: Well, it relates really in the18 same way to the prior witnesses who testified as to19 forest ecology, stormwater management and ornithology.20 And the principle is very simply, the Board has an21 expert, Mr. DeFeo, who was contracted to provide an22 environmental appraisal. The applicant signed a23 settlement agreement agreeing to submit it's site plan24 application to DeFeo for comment for -- as for25 8 environmental appraisal, and Mr. DeFeo testified1 pursuant to that. The settlement agreement is a2 mandatory part of this proceeding and therefore this is3 relevant to environmental evidence Mr. DeFeo gave. Now,4 he didn't cover a full range of these subjects as our5 witnesses are, and that's the point. He limited his6 discussion largely to deer fencing and the impact on7 regenerating the understory in the woods with deer8 fencing, but that's not all there is to an environmental9 appraisal. And since the applicant's required to10 undergo an environmental consultation with Mr. DeFeo,11 our point is there is substantial environmental harm and12 evidence to show that from the project and all that's13 relevant in the way that I described.14 CHAIRMAN BAGOFF: I am going to ask Mr.15 MacNeill, our board engineer, who is paid -- our board16 engineer is paid for by the Planning Board. He is an17 independent person that looks at all sides, he is not18 involved with the applicant or the objectors. He is19 charged with looking at information that we present to20 him and coming back and saying this is your purview or21 it's the purview of another regulatory body. If it is22 not in the purview of the Planning Board to use that23 information in their decisions then it should be24 somewhere else. If, on the other hand, it is pertinent25

3 of 41 sheets Page 9 to 12 of 101 06/20/2025 06:55:03 AM 9 and we can use it in our discussion making process then1 we should hear it. So I am going to defer and, I am2 sorry, I want to qualify you and your expertise. You3 have any expertise in stormwater management or exactly4 what, hydrology?5 MR. MacNEILL: Yes, exactly. So I am a6 licensed professional engineer in the State of New7 Jersey. I have over ten years of experience. In that8 time I have reviewed or designed over 100 stormwater9 management designs as well as obtained NJ DEP land use10 approvals, including freshwater wetlands, as well as11 flood hazard areas.12 CHAIRMAN BAGOFF: You read the description,13 the testimony provided before us, is this in the purview14 of the Planning Board and can we use it or is there15 another regulatory body that should be hearing this?16 MR. AFRAN: Before the answer comes forward,17 I raise an objection to the question and the reason for18 that is, I mean no disrespect to you or the engineer.19 The reason for that is the engineer doesn't decide what20 evidence and testimony is heard by the Planning Board.21 Number one. That's for the Planning Board to decide if22 it wishes to rule in or out evidences or not allow a23 witness to be heard, but the engineer doesn't have any24 special role here in telling the Board what it should25 10 hear or not hear. Nor is the engineer a lawyer, even1 Ms. McGovern doesn't have the power to make such2 decisions. So the engineer, not being a lawyer, is not3 in a position to say what this Board should hear4 jurisdictionally. It should not -- that's outside the5 purview of the engineer.6 CHAIRMAN BAGOFF: I asked the engineers7 opinion based on his expertise. The Board will then8 talk amongst ourselves in the public view and decide9 based on what's provided -- the information provided and10 I understand what you're saying, we are not asking him11 to say yes or no for us, we are asking him in his12 opinion can the Board use this information to make a13 decision or should it be viewed by another governing14 body to make a decision.15 MR. AFRAN: And the basis of my objection is16 very simple. That I don't know what the engineer will17 say, but it's my job to object to something I don't18 like. I don't hear something and say wait, I object.19 The point is that the engineer is not a lawyer. The20 engineer doe not have expertise in the

ay, but it's my job to object to something I don't18 like. I don't hear something and say wait, I object.19 The point is that the engineer is not a lawyer. The20 engineer doe not have expertise in the jurisdiction of21 different body's. Now, if I ask Mr. Gallagher to speak22 to an engineering question, he would not have the basis23 to give an opinion nor would the Board be justified in24 hearing it. In the same way a jurisdictional question25 11 as to what type of evidence goes before what body is not1 within the professional training of an engineer and he2 doesn't have that authority. So you are asking his3 opinion, you are asking the opinion of an expert, I4 would say not an expert in that field. And so therefore5 he doesn't have the right and the Board should not be6 consulting him on a jurisdictional question. So I do7 raise the objection.8 CHAIRMAN BAGOFF: We are asking him to give9 us an opinion as to information you provided relevant to10 making our decision.11 MR. AFRAN: It's exactly the same point.12 How can the engineer decide an issue of relevance as to13 an objectors position. It's not in the engineer's14 purview to make rulings on whether evidence is proper or15 improper. The only one that can make that ruling is16 you, Mr. Bagoff, because that's your job as Chair17 ultimately. But certainly the engineer has no purview18 to say whether evidence is relevant in a site plan19 application. It's outside -- I never heard of such a20 request.21 CHAIRMAN BAGOFF: Well, stick around.22 MR. AFRAN: Also evidence hasn't been heard23 yet.24 CHAIRMAN BAGOFF: Right. So.25 12 Ms. McGOVERN: The Board Chair is not1 suggesting that Mr. MacNeill is going to make a2 decision. He is asking him to give the Board3 information so that the Board can make that4 determination as to whether this is useful or not. Just5 going to flesh out what types of information are helpful6 or relevant to this application.7 MR. AFRAN: My clients are not bound by an8 engineers opinion about what's helpful to the Board and9 understanding the objectors position or the applicant's10 case. So even though it's been put to the engineer in11 the context of well, we want your opinion to guide us,12 it would be like Mr. Gallagher, a wetland scientist, to13 give expertise on whether or not a building can sit on a14 ridge without collapsing. The engineer is not a lawyer15 and is not someone with

12 it would be like Mr. Gallagher, a wetland scientist, to13 give expertise on whether or not a building can sit on a14 ridge without collapsing. The engineer is not a lawyer15 and is not someone with expertise in relevance. This is16 evidentiary questions and we are a quasi judicial body17 here and Mr. Bagoff ultimately makes these decisions.18 But asking the engineer to give his view of what is19 relevant is simply another way of asking the engineer to20 make a legal judgment. It's simply outside his purview.21 I've never heard of a board requesting an engineer to22 give such an opinion.23 CHAIRMAN BAGOFF: That's why we asked the24 engineer for an opinion and we'll listen to the opinion25

06/20/2025 06:55:03 AM Page 13 to 16 of 101 4 of 41 sheets 13 and we'll make a decision based on the opinion. That's1 why they're experts.2 MR. AFRAN: If you're making a distinction3 of addressability and jurisdiction based on the opinion4 of the civil engineer, then you're asking to be guided5 with expertise from someone who doesn't have that6 expertise. An engineer doesn't have expertise on7 evidentiary evidence or jurisdiction, administrative8 jurisdiction.9 Well, I also make an additional point that10 someone just made now to me. That an engineer is not a11 wetlands scientist, an ecologist or active in any12 related field and therefore the relevance finding of the13 engineer really cannot guide the Board because the14 engineer is not an expert in the field. I spoke as to a15 consultant, I don't know if you heard what I said.16 CHAIRMAN BAGOFF: I heard.17 MR. AFRAN: Therefore he is not an expert in18 this field anyway.19 CHAIRMAN BAGOFF: We have to be able to take20 the information and make sure that we can use it based21 on our ordinance and the law. If we spend time22 listening to information that we can't use based on our23 ordinance and the law it was information that's on the24 record but it may or may not be relevant. So what I25 14 would do to meet in the middle is start, and I know1 there's a PowerPoint presentation, we'll listen and go2 from there. How's that?3 MR. AFRAN: Can I take one second, my mother4 has an issue.5 CHAIRMAN BAGOFF: Go ahead.6 MS. McGOVERN: While you're figuring that7 out. The PowerPoint presentation, will you send it over8 to Joe.9 MR. FAGAN: I have it.10 MS. McGOVERN: You're way ahead of me.11 What is that exhibit marked? 0-14. Okay.12 MR. AFRAN: Thank you, Mr. Chairman for13 hearing me out. I appreciate it.14 MR. PLOCKER: Mr. Chairman, may I.15 I think I know where the Board is trying to16 go, so I just want to state for my record that Mr.17 Gallagher, he's being qualified as a wetlands expert.18 The applicant would object subject to the Board's19 discretion to allow him to testify, but wetlands is a20 very specific area that's regulated by a very specific21 statute, the Freshwater Wetlands Act and the last22 section of that act, it's N.J.S.A. 13:9B-30 pretty much23 says that no town, no subdivision of a town such as a24 Planning Board can make any rules or regulations with25 15 respect to wetlands. So we would say that,

act, it's N.J.S.A. 13:9B-30 pretty much23 says that no town, no subdivision of a town such as a24 Planning Board can make any rules or regulations with25 15 respect to wetlands. So we would say that, that statute1 and the DEP, which is empowered by that statute, is the2 body that has exclusive jurisdiction over wetlands. So3 we would object to the testimony and the Board4 considering any testimony regarding wetlands, which is5 within the exclusive purview of the DEP.6 And I want to address one more comment that7 Mr. Afran had addressed and he's addressed it previously8 that Mr. DeFeo was retained by this Board. He's9 mentioned in the settlement agreement, and I just want10 to make it clear, there's a statement that, you know, he11 has to issue an environmental report and I am going to12 read from the settlement agreement, Section 20.5.1 under13 Completeness. It says, after it talks about the14 submission and where that's deemed complete, "In15 addition, the Applicant shall submit all the plans to16 DeFeo and Associates, the Townships environmental17 consultant, for review and comment." And that we shall18 meet with him in good faith regarding all trees. I am19 paraphrasing.20 The settlement agreement also specifically21 references that the applicant and this application was22 exempt from any kind of Environmental Impact Statement23 under the ordinance, and with all due respect to the24 witness that recently testified on behalf of the25 16 objector, such as Mr. Devito about trees and the birds,1 those are items that are typically required as part of2 an EIS. So the applicant's going to state for the3 record that it seems that the objector group is seeking4 this Board to consider information in connection with5 the application that the application was explicitly6 exempted from by the town council by way of the7 settlement -- by way of the court ruling in the8 settlement agreement.9 MR. AFRAN: I appreciate Mr. Plocker's10 comments, I assumed he'd address the issue in a similar11 way he did. I would just note, all though the ordinance12 does release, at least, and I don't have in it front of13 me, but let's assume just for the sake of argument, most14 environmental constraints are all released under the15 ordinance, nevertheless, this is a fundamental point,16 the applicant signed voluntarily a settlement agreement17 agreeing to submit to an environmental

mental constraints are all released under the15 ordinance, nevertheless, this is a fundamental point,16 the applicant signed voluntarily a settlement agreement17 agreeing to submit to an environmental appraisal in this18 site plan application. So regardless of what the19 ordinance does say, in the settlement agreement that the20 applicant voluntarily signed and agreed to does commit21 the applicant to an environmental -- the application to22 an environmental appraisal and that's the point. The23 applicant voluntarily did that in the settlement24 agreement.25