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

06/20/2025 06:55:03 AM Page 61 to 64 of 101 16 of 41 sheets 61 doesn't just say for review in the abstract. It says,1 for review by the Township environmental consultant.2 MR. ALPER: All right. That was it for my3 questions.4 CHAIRMAN BAGOFF: Mr. Cardoza, do you have5 any questions of the witness?6 MR. CARDOZA: No questions.7 MR. AFRAN: Probably got more than you8 bargained for by way of colloquy.9 MR. CARDOZA: No questions.10 CHAIRMAN BAGOFF: Mr. Haizel.11 MR. HAIZEL: Someone asked this question a12 little differently. In your experience have you ever13 come across a situation where there has been any sort of14 an error, if you will, meaning any of the DEP findings15 that has been -- have you ever come across a situation16 where that occurred and how was that dealt with?17 THE WITNESS: Yes, and we just did a review18 of a project in Mercer County that the state ended up19 overturning or suspending their permit. Same process.20 MR. HAIZEL: Okay.21 CHAIRMAN BAGOFF: The state, when you say22 the state, what portion?23 THE WITNESS: New Jersey DEP and specifically24 with the Flood Hazard Area Control Act issue.25 62 CHAIRMAN BAGOFF: DEP looked at an1 application again and came up with a different decision?2 THE WITNESS: That's correct.3 CHAIRMAN BAGOFF: Okay. So that's within4 the body of the DEP?5 THE WITNESS: Correct.6 CHAIRMAN BAGOFF: Okay.7 Mr. MacNeill, do you have any questions?8 MR. MacNEILL: Kind of going back to my last9 question. Do you have any recommendation for this10 development to lessen the impacts to the northern11 portion of the wetlands area from an ecological12 perspective?13 THE WITNESS: And, again, I would say that14 right now it's all based on a better understanding of15 the soils and in the absence of that it makes it16 difficult to make a recommendation. If the soils are17 what the soil survey says they are, their seasonal high18 water table is high. It can be a major constraint on19 how to manage the stormwater on the site. So in an20 ideal world, to me there are often ways you can do21 things better, but you still need a fundamental22 understanding of what the constraints are before you can23 kind of take that journey.24 MR. MacNEILL: So is it a volume, like the25 63 volume has to match an existing proposed condition for1 the wetland impacts to be minimal? Essentially like2 runoff volume has to match the existing condition for3 there

is it a volume, like the25 63 volume has to match an existing proposed condition for1 the wetland impacts to be minimal? Essentially like2 runoff volume has to match the existing condition for3 there to be no ecological impacts to the wetland area?4 THE WITNESS: And look, we know that's never5 possible, especially in a headwater site like this.6 They are very sensitive to change. It doesn't take a7 lot to change, to modify surface and groundwater flow8 paths. A little bit of excess volume you're going to9 have these streams erode, so there will be impacts. But10 really your question focussed on stormwater management.11 Again, it's really understanding the constraints that12 the site has relative to how you manage stormwater.13 That's the first step and that's the step we think they14 missed. Because that fragipan is typical on all those15 sites and for some of the borings to find seasonal high,16 eight to ten feet, it just defies logic, at least as far17 as we are concerned.18 MR. MacNEILL: That's all I have. Thank19 you.20 CHAIRMAN BAGOFF: Okay.21 We are going to take a five-minute break and22 come -- I'm sorry. One second.23 Mr. Plocker.24 MR. PLOCKER: I have just at few questions25 64 for Mr. Gallagher.1 First, I would like to reiterate my2 objection that if the objector and Mr. Gallagher take3 any issue with what the DEP didn't do, any methodology4 or procedure that they disagree with that is currently5 at the Appellate Division or the Superior Court of New6 Jersey, it is not in the purview of this Board, the7 jurisdiction of this Board. That being said, I have a8 few questions.9 Are you aware that the site currently has an10 LOI?11 THE WITNESS: I am.12 MR. PLOCKER: Have you reviewed the LOI?13 THE WITNESS: I've reviewed the LOI. I14 didn't see the submitted documentation.15 MR. PLOCKER: Okay.16 Did you testify today that you take any17 issue with the delineations as set forth in the LOI18 which was issued this past November?19 THE WITNESS: That was an extension that was20 issued.21 MR. PLOCKER: Correct.22 THE WITNESS: I did not take issue.23 MR. PLOCKER: Okay.24 And what is the process or procedure when25

17 of 41 sheets Page 65 to 68 of 101 06/20/2025 06:55:03 AM 65 the DEP issues a wetland LOI or in this case an1 extension? Do they inspect the wetland delineations.2 THE WITNESS: They probably did it the first3 time. I am not sure if they did it or didn't do it the4 second time.5 MR. PLOCKER: So even the first time do they6 inspect soils?7 THE WITNESS: They did.8 MR. PLOCKER: Do they inspect hydrology?9 THE WITNESS: Yes.10 MR. PLOCKER: Do they inspect vegetation?11 THE WITNESS: Yes.12 MR. PLOCKER: Okay. Thank you.13 I have nothing further.14 CHAIRMAN BAGOFF: Thank you.15 We're going to take a five-minute break.16 (Whereupon, a short recess is taken.)17 CHAIRMAN BAGOFF: Mr. Afran, do you have18 questions or are you going to --19 MR. AFRAN: I don't have any more questions,20 but just a clarification.21 Ms. McGovern asked earlier, this goes back22 to the colloquy's about whether or not the matter on23 appeal means that the reconsideration, so to speak,24 presently under the DEP is no longer jurisdictionally25 66 possible. I want to clarify that the application with1 the DEP is an application to suspend the permits, and2 that's a separate administrative proceeding from the3 challenge to its approval. So all while there is a4 relationship, obviously one is not barred by the other.5 This is a suspension always a separate administrative6 application.7 CHAIRMAN BAGOFF: Okay.8 MR. AFRAN: I wanted to clarify that.9 CHAIRMAN BAGOFF: And nothings been10 adjudicated yet?11 MR. AFRAN: Correct.12 CHAIRMAN BAGOFF: Mr. Plocker.13 MR. PLOCKER: I just have a couple more14 question for Mr. Gallagher.15 CHAIRMAN GALLAGHER: Go right ahead.16 MR. PLOCKER: I want to know, were you or17 anyone at you firm aware that my client's DEP18 application was open for about 20 months?19 THE WITNESS: Yes.20 MR. PLOCKER: And during that time period21 did you or anyone in your firm have a chance to submit22 any comments or objections to any of my client's23 submissions?24 THE WITNESS: We were not retained at that25 67 point.1 MR. PLOCKER: Let me rephrase my question.2 At any time during the 20 month period within the3 application remained open, did your firm comment, submit4 comments or objections to the DEP during that time5 period about the application?6 THE WITNESS: We did not.7 MR. PLOCKER: Your firm never sent in any8 applications or none that you're aware of?9 THE WITNESS: I believe all

s to the DEP during that time5 period about the application?6 THE WITNESS: We did not.7 MR. PLOCKER: Your firm never sent in any8 applications or none that you're aware of?9 THE WITNESS: I believe all our comments10 were directed to the town at that point.11 MR. PLOCKER: Okay.12 Do you know that for sure?13 THE WITNESS: No, I wasn't involved at that14 point.15 MR. PLOCKER: Okay. I wanted to make that16 clear, and at the end it's your understanding all17 permits were granted and the LOI was extended, correct?18 THE WITNESS: That's correct.19 MR. PLOCKER: Okay. Thank you.20 MR. AFRAN: I am not sure when the 20 month21 -- I'm sorry. I am not sure when the 20 month period22 began and ended Mr. Plocker refer's to or what it means,23 so to the extent I think the witness said he doesn't24 know anyway, but I don't think there is a clear time25 68 period offered.1 I have no further questions of the witness.2 CHAIRMAN BAGOFF: Okay. Thank you.3 At this time I would ask members of the4 public to come up one at a time and ask Mr. Gallagher5 questions based on his testimony. So we're going to6 hone in on his testimony. The questions, just like7 members of the Board did, if, when, why, what, where,8 how, how does this apply and if you start testifying I'm9 going to ask you politely to stop testifying. We're10 going to focus in on questions. So please come up,11 state your name for the record and please use the12 microphone and go ahead, sir.13 THE PUBLIC: My name is Richard Mayer. I14 live at the Grand in West Orange.15 Based on what information you just gave us,16 I live in the community that's right below where this17 would be built. In anticipation of say heavy rains,18 would that being built there, would that affect our19 community in terms of flooding? Could that possibly20 affect my community?21 MR. PLOCKER: I'm just going to object to22 the question. I don't know Mr. Gallagher covered that23 testimony. He covered the conditions regarding on site24 wetlands.25

06/20/2025 06:55:03 AM Page 69 to 72 of 101 18 of 41 sheets 69 THE PUBLIC: Could the water affect my1 community?2 CHAIRMAN BAGOFF: If you can answer you can3 answer.4 MR. AFRAN: I would say this, he did speak5 to flooding on terms of building on Mr. Walsh's6 testimony when he spoke about the water table being7 different from how the applicant measured. He didn't8 speak of flooding directly but he talked about the9 problems because of the water table.10 CHAIRMAN BAGOFF: Didn't speak to flooding11 on the contiguous properties.12 THE PUBLIC: Based on what you -- I'll try13 and rephrase it. Based on what you told us today what14 would be the effects of the heavy rains in my15 neighborhood?16 MR. PLOCKER: Same objection.17 CHAIRMAN BAGOFF: He didn't look at your18 neighborhood, sir.19 THE PUBLIC: In the adjacent neighborhood to20 where this is being built?21 MR. PLOCKER: Same objection.22 CHAIRMAN BAGOFF: Did you talk about runoff?23 THE WITNESS: So are you in the neighborhood24 right down here?25 70 THE PUBLIC: Yes.1 THE WITNESS: So my firms concern about this2 whole project is their stormwater management plan is3 flawed based on what we still believe that being4 inaccurate soil information. With that said, it's going5 to -- understanding where the seasonal high water table6 accurately is, si important to make sure all the7 stormwater BMP's proposed function in accordance with8 the NJ BMP manual. If they're incorrect with any aspect9 of the existing features it's going to impact how they10 function. And then, yes, you will have an increase in11 water going down the hill towards your development.12 THE PUBLIC: Thank you.13 CHAIRMAN BAGOFF: Thank you.14 Please state you name.15 THE PUBLIC: Jessica Pearson, Verona.16 Okay. You just, and a couple of times17 before, you had testified that the seasonal high water18 table is higher than the bottom or the base of the pits.19 Okay. That being said, so obviously what are the20 ramifications of a retention basin that cannot retain21 the water?22 THE WITNESS: It is a compliance problem.23 And the New Jersey BMP manual has very strict guidelines24 on how to design a basin and what the constrains are.25 71 And normally you need two feet of separation between the1 bottom of a basin and the seasonal high water table. If2 the seasonal high water table is actually found to be3 above the elevation of the basin that's an

you need two feet of separation between the1 bottom of a basin and the seasonal high water table. If2 the seasonal high water table is actually found to be3 above the elevation of the basin that's an inherent4 problem within the design.5 THE PUBLIC: So going a little further on6 that, you had mentioned something about water quality,7 N.J.A.C. 7.8. You talked about it not being in8 compliance with water quality standards and infiltration9 standards recharge. And this is a wholly natural10 property, so recharge would apply on this particular11 site, would that be correct?12 THE WITNESS: Yes.13 THE PUBLIC: So, okay.14 So the recharge standard can't actually15 occur if the water level is higher, than the water has16 nowhere to go. It's not going to infiltrate into the17 ground. So they would not be in compliance with the18 recharge standard and the water quality standard would19 also necessitate some kind of infiltration or flow20 through some kind of grasses or some kind of vegetation,21 but how would that actually be conducted if none of22 these pits are working?23 THE WITNESS: Again, that goes back to our24 fundamental concern with the design and what I tried to25 72 show with the seasonal high water table and fragipan as1 it relates to wetlands, is that the environment should2 make sense. That water is not moving uphill to get to3 the wetland. Their seasonal high water table elevation4 being below the wetland makes no sense. Every other5 wetland in every other landscape in New Jersey is,6 unless it's in an Arcasian City. The water moves7 downhill towards the lowest landscape position and if it8 is a wetland it is a wetland and a stream. And that's9 what we believe occur's here. So any indication that a10 seasonal high water table is below the elevation of an11 adjacent wetland the basis for our position is that it12 just makes no sense.13 THE PUBLIC: Speaking back -- going back to14 the fragipan. Have you ever seen a situation in which15 the change of flow, the pattern of flow being changed16 with the arrow diagram that was up earlier, could that17 change of flow have an impact on the topsoils before you18 hit the fragipan so as to erode them more quickly,19 whether that lead to intense storms, to redirection, the20 removal of trees and upsetting the root systems, so that21 the fragipan actually now is closer to the surface than22 it was long before and,

whether that lead to intense storms, to redirection, the20 removal of trees and upsetting the root systems, so that21 the fragipan actually now is closer to the surface than22 it was long before and, again, that would, would that or23 could that disrupt the infiltration process, the natural24 recharge process that had once occurred on that site?25

19 of 41 sheets Page 73 to 76 of 101 06/20/2025 06:55:03 AM 73 THE WITNESS: I don't know for sure.1 THE PUBLIC: Okay.2 THE WITNESS: But one of the things I can3 describe is you look at development patterns, something4 like this. So this is a pervious pavement site and5 there's buildings and there's roads. So what could6 happen and what often happens is when you put a road in7 this position where water is moving towards the wetland,8 you could get mounding on one side.9 THE PUBLIC: Can you just explain mounding?10 THE WITNESS: So let me go back to this one.11 So this is a normal flow path. Water is moving down12 gradient from high to low elevation. If I put a13 structure, this water would be blocked and it would tend14 to elevate and mound on the upgradient side because it15 has no where to go. So any time there's changes in16 development or just land use patterns on the site it17 changes hydrology. So if I build a road here I could18 make the water table higher upgradient and there's kind19 of a shadow effect where it's lower downgradient. So20 those are all the effects that happen with any kind of21 development as it relates to groundwater flow paths. So22 this is a complicated site, so it's hard to really23 estimate or describe what could happen but waters not24 disappearing, it's going somewhere.25 74 THE PUBLIC: Okay. It's going somewhere.1 So -- but it's not going to -- it's being drained away2 from your assessment of the site and gravity, etc., and3 the redirection of the stormwater patterns by the4 proposed stormwater management plan, that water is going5 away from the wetlands. Where is it going? It's going6 -- gravity right. It's going down the hill, to the7 gentleman's question that came up a few moments ago,8 it's going to flow the path of easiest resistance which9 is --10 CHAIRMAN BAGOFF: Let him testify. Ask him11 a question and let him testify.12 THE PUBLIC: Would it go down the hill?13 THE WITNESS: In this case, this is -- the14 blue was existing surface flow patterns and pretty much15 going to reflect what happens with the groundwater as16 well. So any time there's any new structure, that's17 going to change that path. So in this case even with18 the road, so even if this blue line surface water can be19 -- could be collected by the stormwater system,20 groundwater is going to be impacted because roads tend21 to be impacted or there's

n with18 the road, so even if this blue line surface water can be19 -- could be collected by the stormwater system,20 groundwater is going to be impacted because roads tend21 to be impacted or there's infrastructure in the road22 like storm sewer or sanitary sewer which end up either23 intercepting or blocking the groundwater flow pattern.24 So pretty much all these areas in the development are25 75 going to modify how water moves towards the wetland.1 And then cases like this, there's inherently increased2 volume of runoff on a development site and that's all3 being discharged to a point, one single point. So it's4 going to impact the stream downgradient. And to go back5 and look at the stream, it's in pretty nice shape. It's6 a pretty healthy stream typical of a natural area.7 There is not a lot of erosion, you know, the banks are8 low. Increased volumes going to cause that stream to9 either widen or to --10 THE PUBLIC: So that -- it's another11 question. If that stream is beginning to widen, and I12 am not sure if that's on a hill or if that's in a gully13 sort of area at the bottom of the hill, would that --14 could that form a new wetlands area?15 THE WITNESS: It could.16 THE PUBLIC: Okay. And so would that, if17 the development is not that far away from it how would18 the riparian zone then apply to a newly formed wetlands19 on a site due to the redirection of the water?20 THE WITNESS: One, the riparian zone is off21 of the stream channel, so that begins at the top of22 that, which would be here or there.23 THE PUBLIC: But what if the stream widens?24 THE WITNESS: It would shift at some point in25 76 the future where that riparian side begins. Now, they1 have a permit now, so that governs the riparian zone for2 now.3 THE PUBLIC: Okay.4 And it's only 50 feet right now?5 THE WITNESS: That's what I believe, yes.6 THE PUBLIC: Okay. Thank you.7 CHAIRMAN BAGOFF: Thank you.8 Any other members of the public have a9 question for Mr. Gallagher? Please come up and state10 your name.11 THE PUBLIC: Don Ershow. I live on Holmdel12 Lane in Roseland and I have a question specifically13 related to the flow of water in Canoe Brook.14 Could you go back to the map with the blue15 arrows. Is that dark gray the Canoe Brook on the left?16 THE WITNESS: That gray?17 THE PUBLIC: Yes.18 THE WITNESS: That's the headwater of the19 Canoe Brook.20 THE PUBLIC: That's the headwater of

ue15 arrows. Is that dark gray the Canoe Brook on the left?16 THE WITNESS: That gray?17 THE PUBLIC: Yes.18 THE WITNESS: That's the headwater of the19 Canoe Brook.20 THE PUBLIC: That's the headwater of Canoe21 Brook.22 MR. AFRAN: Let me just note for the record23 that's the stream to the far right of the drawing.24 CHAIRMAN BAGOFF: It's left.25