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

the19 applicant be simply adding addition that stormwater20 discharge upstream to ensure the ecological impacts are21 avoided?22 THE WITNESS: I think the bigger issue here23 is to relook at the soils to determine where the24 seasonal high water table is.25

13 of 41 sheets Page 49 to 52 of 101 06/20/2025 06:55:03 AM 49 MR. MacNEILL: Okay. That's all I have for1 now.2 CHAIRMAN BAGOFF: Okay.3 Mayor McCartney.4 MAYOR McCARTNEY: I want to go back now,5 looking through my notes. I was listening to Sean6 Walsh's testimony back in February, looks like that was7 the question that I asked. The question I asked was,8 Mr. Walsh, you recommended additional basins to be added9 either deeper or wider, that's what I meant by having a10 overlay and it wasn't just this basin it was a whole11 stormwater management.12 MR. AFRAN: I'm sorry. I thought you meant13 overlay map. My apologies.14 MAYOR McCARTNEY: I meant the whole plan,15 not just Basin 1.16 THE WITNESS: My general view on the site17 like this is that these are difficult sites to develop.18 They tend to have high water tables. So even making the19 basin bigger isn't necessarily going to solve the20 problem. And I know I've pointed out some other issues21 that, if I remember right, I identified some problems22 with their calculations that under estimated the volume23 of water. So all those issues together make this a24 complicated site to design. And, again, key issue here,25 50 and Sean Walsh brought this up as well, is that getting1 the soil testing and description down accurately and2 that's why I pointed out it makes no sense the seasonal3 high water table can be below than the elevation of a4 wetland. It has to be higher. There's no mention of a5 fragipan in any of the soil borings. And in every soil6 series it described the fragipan and having those soils7 have a fragipan actually makes sense with the hydrology8 of the wetlands. Follows the surface groundwater flow9 paths, flows towards the wetlands stream line to have10 soil, estimated seasonal high water below the wetland to11 me indicates they missed that defining layer and the New12 Jersey DEP BMP manual requires that you identify that13 would be restrictive horizons in your soil testing.14 MAYOR McCARTNEY: So Chairman, again, going15 back to my notes here. That was one of the points that16 I actually have a condition here that more test pits be17 run and to recalculate.18 CHAIRMAN BAGOFF: So I got another question19 based on what you just said. The DEP requires it and it20 wasn't provided, wouldn't they ask for it before they21 made a conclusion?22 THE WITNESS: Soil descriptions were23 provided for the basins.

19 based on what you just said. The DEP requires it and it20 wasn't provided, wouldn't they ask for it before they21 made a conclusion?22 THE WITNESS: Soil descriptions were23 provided for the basins. What I showed the Board24 tonight is how they fit in with the rest of the25 51 landscaping of the site. DEP tends to believe the1 applicant that those borings are correct. But in this2 case, just looking at that flow path from upland to a3 wetland it seems that their test pit investigation just4 doesn't make sense relative to where the wetlands are on5 this site. There should be gradient from the top of the6 ridge towards the wetland groundwater, surface water7 both flowing toward them. And that fragipan is the key8 element for anyone doing a test pit to identify.9 CHAIRMAN BAGOFF: Okay.10 MR. GUARINO: Mr. Guarino, do you have any11 questions of the witness?12 MR. GUARINO: Thank you, Chairman.13 Thank you for your presentation. I want to14 get a clarification. I know you were talking about15 chemical reactions, would those chemical reactions have16 any impact on the water flow percolation or result in17 any environmental impact?18 THE WITNESS: No. They're usually -- why19 wetlands, at least in part, they're important in20 transforming our receiving bodies like streams and21 basins. And they -- and it can convert it from a form22 that becomes like a gas. So there's anaerobic condition23 for value. A healthy functioning wetland is important24 for just reducing the amount downstream.25 52 MR. GUARINO: Okay. Thank you, sir.1 Thank you, Mr. Chairman.2 CHAIRMAN BAGOFF: Mr. Naborine, do you have3 any questions for the witness?4 MR. NABORINE: Not at this time, Chairman.5 CHAIRMAN BAGOFF: Mr. Alper, do you have any6 questions for the witness?7 MR. ALPER: I do. Thank you.8 Couple. First I want to make sure I have9 the phrasing right. You said the seasonal high water10 table was below the wetlands elevation?11 THE WITNESS: For those two basins.12 MR. ALPER: Right.13 And you also said the basin bottom is at a14 lower elevation?15 THE WITNESS: Correct.16 MR. ALPER: So when you were first saying17 that, I maybe misunderstood. I thought you basically18 were saying that, that was a design problem, that they19 designed the basin bottom to be lower but from what20 you're more recently presenting, I think I misunderstood21 and maybe you're saying it's a math issue and

t, that was a design problem, that they19 designed the basin bottom to be lower but from what20 you're more recently presenting, I think I misunderstood21 and maybe you're saying it's a math issue and they22 miscalculated the water. Is that -- is my understanding23 that to be right?24 THE WITNESS: I think that you're right on25

06/20/2025 06:55:03 AM Page 53 to 56 of 101 14 of 41 sheets 53 both accounts. This, for example what I was saying,1 this Basin 1 interrupts that groundwater flow as well.2 And then it's at 532 and the wetlands are at 45 -- 540.3 So you change that gradient from groundwater moving4 towards the wetland to now groundwater or water in the5 wetland moving towards the basin. But not only is that6 an impact on the wetlands, but it is going to compromise7 the design of the basin because there's water that was8 never anticipated in the design.9 MR. ALPER: Okay.10 And then can, if you could go back to the11 arrow page with the blue arrows. Yeah, that's good.12 So if I understood you correctly, you're13 saying that the impact here of the pink arrows is14 there's going to be less water to the northern part of15 the wetlands? They're going to dry out.16 THE WITNESS: To an extent, yes. There's17 just less water getting to them.18 MR. ALPER: Is that what you might call19 destruction of wetlands or not to that extent or is20 that --21 THE WITNESS: It does definitely have an22 impact.23 MR. ALPER: Also, DEP doesn't have24 jurisdiction on that or they do but they didn't look at25 54 it or they looked at it and decided it was okay?1 THE WITNESS: There you go. Their footprint2 of jurisdiction is the wetlands and the wetland3 transition area.4 MR. ALPER: So who does have that5 jurisdiction or who does it go to if the wetlands are6 disturbed?7 THE WITNESS: Normally DEP does it. Many8 times Townships, even though they can't supercede9 ordinances, but they could have stream buffers or stream10 impact requirements and that would feed into that. So11 it's often part of a municipal EIS.12 MR. ALPER: Are these your arrows or --13 THE WITNESS: They are.14 MR. ALPER: Has the DEP seen these arrows?15 THE WITNESS: They have now.16 MR. ALPER: This is in the letter that you17 sent, they just haven't responded?18 THE WITNESS: That's correct.19 MR. ALPER: I guess my remaining questions20 are for Mr. Bagoff.21 Do we have some power if the DEP is not22 weighing in on specific actions as opposed to DEP? If23 you say X and DEP says no, X is fine. I assume maybe we24 don't have an issue. If you say X and DEP never25 55 responds on X, does the Planning Board have some1 jurisdiction in that regard?2 MS. McGOVERN: Well, I think under N.J.S.A.3 13:9B-30, pretty clear that the DEP has the

If you say X and DEP never25 55 responds on X, does the Planning Board have some1 jurisdiction in that regard?2 MS. McGOVERN: Well, I think under N.J.S.A.3 13:9B-30, pretty clear that the DEP has the exclusive4 right for regulations, number one.5 Number two, and what this Board has to6 review is if this application complies with its7 ordinance, with the towns ordinance. And the town8 ordinance specifically state's under General Provisions,9 which is Section C5. "The development of the tract10 shall be exempt from all bulk design and environmental11 regulations of West Orange Land Use regulation12 ordinances unless otherwise indicated herein." And13 there are no other environmental regulations set forth14 in this ordinance. So if the Board finds that they15 complied with ordinance as it applies to this zoning16 district, that's what the Board is supposed to be17 looking at. If the Board disagree with the DEP, the18 Board has no power to disagree with the DEP. It is a19 higher level. The Appellate Division has to make that20 decision.21 MR. ALPER: Even if the DEP maybe didn't22 look at it as we say they should?23 MS. McGOVERN: Well, we know there was a big24 submission, so we didn't look at that. I don't know25 56 whether the witness did look at everything that was1 submitted to the DEP by the applicant because it is on2 file.3 THE WITNESS: Yes. Well, I am not sure we4 looked at every page but we looked at a lot.5 MS. McGOVERN: Also I would defer to our6 expert, perhaps if something was egregious or something7 really like, I don't know, whether these are minor8 consistencies or this is something totally unusual.9 MR. MacNEILL: So when we develop a site10 regarding freshwater wetlands any impacts of that11 development are regulated by NJ DEP. So NJ DEP doesn't12 have N.J.S.A. 7A, it is not a regulation that as a Board13 we could point back to. It's not in our code. It's not14 in the freshwater protection rules. There is -- it's15 nothing that I have identified that had showed any16 noncompliance with those freshwater wetland rules based17 on my review of them. Typically as a Board it's always18 a condition of any potential approval that you need to19 obtain your outside agency approvals. One of them in20 this case, as the Board engineer, we identified those21 required approvals and it's up to the applicant to22 obtain them and provide them for us to review and

utside agency approvals. One of them in20 this case, as the Board engineer, we identified those21 required approvals and it's up to the applicant to22 obtain them and provide them for us to review and verify23 that it is consistent with what we're reviewing. The24 revision that was approved we have also reviewed and25

15 of 41 sheets Page 57 to 60 of 101 06/20/2025 06:55:03 AM 57 approved or commented on, so generally speaking I1 understand maybe some of the points about the reduction2 in volume to the northern portion of the freshwater3 wetlands, but for the Board, this, in my opinion, is not4 something that we can comment on. It would just be a5 condition of potential approval that they would -- the6 applicant would have to obtain the necessarily LOI as7 well as any development permits, general permits related8 to freshwater wetlands.9 MR. AFRAN: If I could just respond briefly.10 I don't know if this is working so -- is this working?11 I think at this stage we disagree certainly to one12 extent regarding everything that's been said, namely the13 applicant itself agreed to submit to an environmental14 appraisal in the settlement agreement.15 In addition the applicant agreed to go16 through site plan review. In fact since the ordinance17 removes most constrains it could have been a curtesy18 review, but the applicant agreed to submit in the19 settlement agreement the site plan review for this20 project. And in that same agreement it agreed to submit21 the environmental appraisal. So even though there may22 be a question whether or not there are any DEP23 regulations that are violated directly by this24 structure, nevertheless the applicant agreed in exchange25 58 for being relieved of all environmental constraints1 otherwise, to submit to an environmental appraisal.2 And that means the Board must still take into account3 environmental harm from the project. So our position is4 still that, and we don't need to reach this issue yet,5 you heard the evidence, obviously this comes to the time6 of decision whether this enters into the Board's7 decision or not, but our position is still since the8 applicant submitted to the environmental appraisal and9 did not have to in the settlement agreement as a part of10 the site plan application that regardless of what the11 DEP rules particularly say, if this project is going to12 cause environmental harm in the form of wetland injury13 or otherwise, as you heard from other witnesses, it's14 still within the Board's jurisdiction. But the15 applicant is not free of it's own contractual commitment16 to submit an environmental appraisal for this property.17 Doesn't matter what the DEP says. Contractually the18 applicant agreed this Board

5 applicant is not free of it's own contractual commitment16 to submit an environmental appraisal for this property.17 Doesn't matter what the DEP says. Contractually the18 applicant agreed this Board must consider environmental19 injuries. That's why Mr. DeFeo was appointed, for20 example. Because of that contractual agreement the21 applicant made. This Board nor the DEP eliminate that.22 If it contracted for that as the price of getting this23 rather generous zoning ordinance, then it has to live24 with it and it's within the Board's jurisdiction.25 59 CHAIRMAN BAGOFF: Mr. Plocker.1 MR. PLOCKER: Yeah. Look, I take issue.2 First of all, we're using all types of terms. There's3 nothing in the settlement agreement about an4 environmental appraisal. There's nothing about5 environmental injuries. All it says is that Mr. DeFeo6 will review. That is part and parcel of the settlement7 agreement. And it's funny that Mr. Afran when he first8 came here back in July didn't want to acknowledge the9 settlement agreement at all. Then all of a sudden he10 acknowledges the settlement agreement and what that11 settlement agreement says, as Ms. McGovern pointed out,12 we're governed by the IH zoning ordinance. It exempts13 us from all other land use provisions unless it's14 specifically in the IH zone. One of the exemptions is15 the EIS. So as Mr. Afran, I don't know if he's a16 contract lawyer, but you read contracts as a whole. I17 believe the contract is clear and when read as a whole18 it was never -- there was never an intent of the19 Township of West Orange or my client to have to provide20 or have this Board consider any items out of the IH-121 zone. We can go back and forth, and I respect Mr. Afran22 speaking, but this clearly is a legal issue and I am23 sure there will be another arm, another time, another24 place, but the settlement agreement is clear, the intent25 60 of the parties is clear.1 MR. AFRAN: One thing I would say is that I2 never said the settlement agreement does not affect this3 case. All I said early on, and that's about a year ago,4 all I said early on was that the settlement agreement5 cannot bind this Board to approving this application. I6 simply said just because there was a settlement with the7 town and WEIH, does not mean that this Board loses its8 authority. That's what I said when I meant -- that's9 what I said when I spoke of the

simply said just because there was a settlement with the7 town and WEIH, does not mean that this Board loses its8 authority. That's what I said when I meant -- that's9 what I said when I spoke of the settlement agreement.10 In fact Mr. Plocker several times you told me, Mr.11 Afran, we're not talking about the settlement agreement.12 Doesn't apply here. I was the one urging its13 applicability. I was simply saying it doesn't free the14 Board of its duty. I was saying it doesn't bind this15 Board.16 CHAIRMAN BAGOFF: The Board understands we17 are free of our duty.18 MR. PLOCKER: And I agree with him.19 MR. AFRAN: In addition, we shall submit all20 plans to DeFeo Associates, the towns environmental21 consultant for review and comment. And he did comment22 and this evidence is all in response to his comment or23 lack thereof. So the agreement itself makes all of this24 relevant and it does say the environmental consultant,25