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

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