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

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