June 23, 2025 Planning Board Special Meeting Transcript - WEHI

this is going to consume2 Q. about one third of the site, isn't it?3 That's correct.4 A. And in fact it's going to, in consuming that one5 Q. third, it's actually going to clearcut that entire6 third, isn't it?7 Yes.8 A. Well, how is clearcutting one third of a forest9 Q. minimal land disturbance?10 It's preserving -- it's preserving in the public11 A. realm, 90 acres of connected vegetative land, which may12 not have otherwise been realized with a different type13 of design scheme, such as a residential subdivision.14 Correct. Well, there was a residential15 Q. subdivision provided by the developer here in 2006 which16 was rejected by the board.17 Yes.18 A. MR. PLOCKER: And which the applicant19 prevailed in a Prerogative Writ in the Superior Court.20 Just for the record.21 MR. AFRAN: It wasn't built, was it?22 So what we have now is a plan that consumes one23 Q. third of the forest, isn't that correct?24 It does.25 A. 20 Now, did you hear the testimony of any of the1 Q. objectors witnesses?2 Yes.3 A. Now, they testified -- Mr. DeVito testified for4 Q. example, that the actual effect of this project is going5 to create edge which is going to consume virtually all6 of those two side forests that are being -- that you say7 will be preserved. Do you remember that testimony?8 Yes.9 A. And he says that what's going to be left is tiny10 Q. slivers of actual core forest on each side, and we might11 have it here, but there's a diagram that shows two very12 small residual fractions of forest that will be left as13 core forest. Now, if what he says is true and virtually14 all of the core forest on the site is gone, except maybe15 seven percent or nine percent, whatever he said it was,16 would you still say that's minimal land disturbance?17 In my mind, yes. Again, in consideration of what18 A. could otherwise be realized on a different type of19 development scheme.20 Well, how could you possibly do more disturbance21 Q. than losing 91 percent of the forest?22 Again, we are --23 A. MR. PLOCKER: Objection to the term, losing24 90 percent of the forest.25

07/19/2025 07:03:47 AM Page 21 to 24 of 52 6 of 21 sheets 21 MR. AFRAN: Well, why don't we do this, I1 can go to that seat Mr. Plocker and Mr. Plocker can come2 here and he can cross examine the witness as he wishes.3 But it's my cross examination.4 MR. PLOCKER: And he's also not an5 ecologist. Mr. DeVito testified, we dealt with it. I6 asked him a couple questions on cross. If he's going to7 ask ecological questions about core forest, let's ask8 him. Voir dire, is he qualified to answer questions on9 the effect of the loss of core forest, as Mr. DeVito put10 it. Or as Mr. Afran is putting it now. I didn't ask11 the question, he can't answer the question.12 First of all, it is not I who introduced the13 Q. subject. It is Mr. McDonough who introduced the subject14 multiple times in direct testimony. It is not I who15 raised the issue that this project only causes minimal16 disturbance. It is the gentleman who's a witness who17 id. So number one -- number one, that is directly18 within the scope of direct examination.19 And number two, because he's describing no20 environmental harm of any major consequence, my21 questions are relevant for that purpose as well.22 MR. PLOCKER: He's asking about -- he's23 giving him data and asking about questions through24 testimony that Mr. DeVito gave and Mr. DeVito had25 22 different credentials than Mr. McDonough.1 MR. AFRAN: I must note that several times2 in Mr. McDonough's testimony he said we have3 controverted -- uncontroverted, uncontroverted expert4 testimony that says there will be no major environmental5 consequence from this project. So clearly Mr. McDonough6 reserved for himself the right to say our witnesses, the7 applicant's, have all said in a uncontroverted manner8 there'll be no harm here. Now, when I have a witness9 who comes on and says, no, no, no, we're going to lose10 91 percent of the forest, virtually nothing left.11 Somehow that's outside of the scope of the witnesses12 testimony, as Mr. Plocker would put it. I would suggest13 Mr. Chairman, this is directly within the scope of the14 type of case they brought to you.15 CHAIRMAN BAGOFF: Go ahead. Ask direct16 questions. If he can he'll answer the question, if he17 can't answer the question we'll bring another expert to18 answer the question.19 MR. PLOCKER: I renew my objection if this20 is going to be the subject matter. Mr. McDonough is a21 planner,

n, if he17 can't answer the question we'll bring another expert to18 answer the question.19 MR. PLOCKER: I renew my objection if this20 is going to be the subject matter. Mr. McDonough is a21 planner, he's here to look at the ordinance, look at the22 Master Plan. That's what he testified to. I'll -- but23 I guess we'll give Mr. Afran some leeway, but do we24 comply with the ordinance. Do we comply with the Master25 23 Plan. That was Mr. McDonough's domain. If he wants to1 ask him other questions regarding these areas, if you2 can answer it, let's have a blast.3 MR. AFRAN: I didn't introduce on the4 applicant's case repeated statements of no major5 environmental consequence.6 CHAIRMAN BAGOFF: Okay. Go right ahead.7 MR. AFRAN: This is not a matter of giving8 Mr. Afran leeway. It is Mr. Afran's right.9 CHAIRMAN BAGOFF: Go ahead.10 So would you call losing 91 percent -- forest is11 Q. virtually 100 percent of the site, isn't it?12 Correct. Yes, it is.13 A. Now, would you call a project that leaves over14 Q. only 9 percent of the forest, minimal disturbance?15 Again, this is a project that conforms with the16 A. zoning ordinance that is intended to protect the17 environment and has also pass muster through the18 stewards of environmental protection which would be the19 DEP. So I would say, yes, it does advance environmental20 protection.21 Well, I didn't ask you whether in your view it22 Q. advanced environmental protection. I asked you a simple23 question. If leaving -- if losing almost the entire24 forest and leaving only 9 percent is the effect --25 24 MR. PLOCKER: I'm going to object.1 MR. AFRAN: -- would that be minimal2 disturbance?3 MR. PLOCKER: We're disturbing 27 and half4 acres out of about 120 and a half. That's what the plan5 is.6 MR. AFRAN: I think this constant7 interruption by Mr. Plocker --8 MR. PLOCKER: It's distorting the record.9 MR. AFRAN: No, the record from Mr. DeVito10 and his testimony has as much weight before this board11 as any of the applicant's experts, is that of the core12 forest virtually nothing will be left. And he testified13 very specifically and the witness said he heard that14 testimony.15 MR. PLOCKER: In an area that's not governed16 by the ordinance.17 MR. AFRAN: It's got nothing to do with that18 particular question, whether Mr. Plocker is right or19 wrong and I would dispute it. But the witness himself20 introduced

t governed16 by the ordinance.17 MR. AFRAN: It's got nothing to do with that18 particular question, whether Mr. Plocker is right or19 wrong and I would dispute it. But the witness himself20 introduced repeatedly the testimony that there will be21 no environmental harm. There will be minimal22 disturbance. He said it over and over in his direct23 testimony. This was the core of the case that the24 applicant brought through Mr. McDonough and I don't know25

7 of 21 sheets Page 25 to 28 of 52 07/19/2025 07:03:47 AM 25 why I'm getting constantly interrupted.1 MS. McGOVERN: I am just -- this is cross2 examination, I thought, based upon the direct testimony3 which was given back in January. So now you're throwing4 in a witness who was after that period of time.5 MR. AFRAN: Got nothing to do with it. This6 witness repeatedly --7 MS. McGOVERN: You're asking him to draw8 conclusions from your expert, Mr. DeVito's, testimony9 regarding what's left in the forest. So have you laid a10 foundation that this witness agrees with that testimony.11 Because --12 MR. AFRAN: I don't need to ask if he agrees13 with another witnesses testimony.14 MS. McGOVERN: But he has to review it.15 You're asking him -- you're asking -- it's different16 than normal cross examination because you're going past17 what was asked on direct.18 MR. AFRAN: He said -- well, that's the,19 this board chose to allow the witness to go forward when20 I couldn't be here. I couldn't help that. We don't21 ignore what since happened.22 MS. McGOVERN: I am suggesting, I can't tell23 you what to do obviously, but without that foundation24 these questions are unfair.25 26 MR. AFRAN: The witness testified he heard1 Mr. DeVito's testimony. Watched it, correct?2 THE WITNESS: Heard it, yes.3 MR. AFRAN: He saw as much as any of us did.4 MS. McGOVERN: It should be noted that this5 is not cross examination from his January testimony.6 You are now taking it a step further. So this is where7 the objections are coming from.8 MR. AFRAN: I don't think that matters. I9 am entitled to ask this witness whether or not losing 9110 percent of forest and leaving over 9 percent is minimal11 disturbance in his opinion. He said this is minimal12 disturbance, I now asked him a simple question. Is13 this, in his opinion, still minimal disturbance?14 MR. PLOCKER: And that's a distortion of15 what's the application proposal.16 MR. AFRAN: This is not appropriate language17 --18 MR. PLOCKER: It's the only language or his19 expert's language.20 If there's only 9 percent of core forest is that21 Q. minimal disturbance of this property in your opinion as22 a planner?23 Yes, it's still minimal.24 A. Based on your status as a planner and not any25 Q. 27 significant ecological training?1 Yes. And my review of the zoning controls that2 A. establish limits of disturbance, establish limits of3 coverage

ased on your status as a planner and not any25 Q. 27 significant ecological training?1 Yes. And my review of the zoning controls that2 A. establish limits of disturbance, establish limits of3 coverage in an application that complies.4 If 9 percent of the forest is left as a core5 Q. forest and all of it is either clearcut or turned into6 edge forest, would you say that is the absence of7 significant environmental harm?8 Good site design --9 A. CHAIRMAN BAGOFF: Mr. Afran, there's a10 difference between asking questions that are set record11 to help out of the Planning Board and the information12 that the Planning Board -- information that the Planning13 Board will use to make their decision. We've heard Mr.14 DeVito's testimony, we heard his testimony. You're15 asking him questions --16 MR. AFRAN: I can move on. I'll move on.17 CHAIRMAN BAGOFF: Thank you.18 MR. AFRAN: The point was made anyway. I'll19 move on.20 CHAIRMAN BAGOFF: Thank you.21 You testified that the plan "will incorporate22 Q. abundant, robust landscape." That was your actual23 quote. Do you recall saying that?24 Yes.25 A. 28 Well, what do you mean by that? Where in these1 Q. plans that we have seen there's abundant, robust2 landscape.3 There are landscape plans that were included as4 A. part of the development application. There are many,5 there are many plantings throughout. I don't have the6 number in front of me, but there was a significant7 landscape plan.8 Other than what you've just said when you were9 Q. answering my question, anything further or does that10 conclude your answer?11 Yes.12 A. So you believe that the existing landscape plan13 Q. is abundant and robust?14 Yes.15 A. You also said this plan, I'm just paraphrasing16 Q. here, but I'm sure you'll agree with my general17 reference, is one that will flow comfortably for people.18 Do you recall saying something along those lines?19 Yes.20 A. Well, when you said, flow comfortably for people,21 Q. what did you mean by that? You didn't explain that, you22 just gave us a conclusion. So what does it mean, to23 flow comfortably for people?24 I think what I said was the project has been25 A.

07/19/2025 07:03:47 AM Page 29 to 32 of 52 8 of 21 sheets 29 designed to flow, function and operate safely,1 efficiently and comfortably. And there are multiple2 parts to that. Flow generally refers to the flow of3 traffic through the site. Parking capacity, the overall4 functionality of the site being designed in accordance5 with sound planning principles, most importantly the6 ordinance.7 So when you said flow, there was a lot more to8 Q. follow that word. So let me ask you just what flow9 means. Does it mean the movement of people, vehicles,10 seamless movement? What are you referring to when you11 say flow.12 I think it means all of the above. Of vehicular13 A. circulation, pedestrian circulation, movements14 throughout the site and through the buildings. The15 buildings are designed and in a sound manner. There16 will be a comfortable, nice place to live.17 Does it flow comfortably for pedestrians if you18 Q. can't walk on the sidewalk to leave the development?19 Again, I think there's good connectivity between20 A. where the vehicles would park between the units and the21 overall site.22 Is it good connectivity for people to walk out of23 Q. this development and go into the rest of the community?24 You mean to the south or to the north, outside of25 A. 30 the bounds of this?1 Well, assume the north is undeveloped you're not2 Q. going to walk across what's left of the forest. I mean3 south, because there's an association down there, 1004 houses, there's other things. Now, if people want to5 walk out of this development does this flow comfortably6 for the pedestrians when there are no sidewalks?7 Yes, I don't see, again, based on the testimony8 A. on the record, I don't see any substantial consequence9 with the way the pedestrian circulation system has been10 designed.11 MR. PLOCKER: I am going to object to the12 comment there are no sidewalks. We are seeking an13 exception from RSIS in one location for sidewalks on14 both sides of the street. But to make the statement15 that there are no sidewalks proposed is misleading.16 MR. AFRAN: I meant, and I think it was17 quite clear from the context, leaving the development18 there's no sidewalks. That's quite clear what I said.19 MR. PLOCKER: I don't know what leaving the20 development means.21 Can you walk out of this development and stay on22 Q. a sidewalk and go to the neighborhood below?23 MR. PLOCKER:

clear what I said.19 MR. PLOCKER: I don't know what leaving the20 development means.21 Can you walk out of this development and stay on22 Q. a sidewalk and go to the neighborhood below?23 MR. PLOCKER: Where?24 MR. AFRAN: To the neighborhood below.25 31 MR. PLOCKER: And where? Referencing1 sidewalks or lack of sidewalks.2 MR. AFRAN: I'll tell you what, if the3 witness has doubts about my question, it's meaning, the4 witness can ask. I'm now in the process of examining5 Mr. Plocker. I think we should stop and let me continue6 with the witness because there were some reasons why we7 wanted to be expeditious.8 May I continue?9 CHAIRMAN BAGOFF: Go right ahead.10 MR. AFRAN: Thank you.11 Now --12 Q. CHAIRMAN BAGOFF: Mr. McDonough, if you13 don't understand a question or can't answer, the14 answers, I don't know.15 THE WITNESS: Understood, Mr. Chairman.16 MR. AFRAN: Yes. Mr. Plocker should not be17 saying he doesn't know before he says it.18 CHAIRMAN BAGOFF: Agreed.19 You said "The community has the right to create20 Q. zoning districts." That was actually a quote I took21 from the transcript.22 Yes.23 A. Now, by that you mean of course the community24 Q. under our state law has a right to zone and create25 32 zoning within the community?1 Yes.2 A. Now, the normal process, you would agree, would3 Q. be that someone proposes a zoning amendment, goes to the4 Planning Board for --5 CHAIRMAN BAGOFF: Mr. Afran, the zone plan6 -- move on. The zone plans in place, so move on. His7 understanding how it works is not relevant to the8 Planning Board.9 MR. AFRAN: Well, he did testify that the10 community has the right to create zoning districts. He11 was saying that this is was -- well, I'll go further.12 You would agree this is an unusual situation13 Q. where a lawsuit was filed by the developer and this14 zoning district was the product of a settlement in that15 case, isn't that correct?16 I would not agree with the phrase that this was17 A. unusual. This happens throughout New Jersey.18 That's not exactly the same as the council in19 Q. creating zoning, but rather here it did it under the20 threat of continued litigation?21 MR. PLOCKER: Objection.22 CHAIRMAN BAGOFF: I got that. I don't know23 what happened. The Superior Court was the mediator,24 which is outside the purview of the Planning Board and25

9 of 21 sheets Page 33 to 36 of 52 07/19/2025 07:03:47 AM 33 in fact the resolution specifically states the Planning1 Board was not a participant. We can only discuss the2 zone plan and the Master Plan available to us now.3 MR. AFRAN: I was really following the4 direct testimony, but I'll move on.5 CHAIRMAN BAGOFF: Thank you.6 You said that there's the general welfare aspect7 Q. of zoning?8 Yes.9 A. Now, there's lots of things we can speak about,10 Q. public safety, public health, public welfare, what did11 you understand the term "welfare" to mean in that12 context?13 Sometimes we refer to Purpose A as the great14 A. catchall phrase because it encompasses many, many15 beneficial aspects of planning, but the general welfare,16 the public good, in there I included affordable housing17 as being one of the top tier goals of our zoning laws18 and the provision of affordable housing of being19 paramount public interest. It's everywhere. It's a20 requirement everywhere.21 You would agree affordable housing is not the22 Q. only thing that embraces the general welfare?23 Totally agree with you. And I probably said24 A. this, plannings all about balance. Striking that25 34 balance. There are tremendous forces on municipalities1 to provide for affordable housing. There are certainly2 environmental protection forces as well. It's about3 balance.4 Thank you. I just wanted to clarify. So the5 Q. general welfare embraces environmental protection and6 those other issues, correct?7 Yes. Agreed.8 A. Thank you very much. Appreciate that.9 Q. Now, you say in your testimony, I will quote from10 the transcript. "You," meaning you're referring to the11 board, "you have testimony through your own12 environmental expert that there will not be any13 substantial environmental impacts." You were referring14 to Mr. DeFeo when you referred to -- when you made that15 statement?16 Yes. And I believe that was the hearing before I17 A. actually testified, yes. It may have been that same18 night.19 So your view is that Mr. DeFeo affirmatively said20 Q. there will not be any substantial environmental impacts?21 That's correct. At the time of when I testified,22 A. yes.23 So that was your interpretation of what Mr. DeFeo24 Q. said?25 35 Yes.1 A. Okay. Thank you.2 Q. And when you said, "The board has uncontroverted3 expert testimony about the absence of environmental4 impacts." That was

interpretation of what Mr. DeFeo24 Q. said?25 35 Yes.1 A. Okay. Thank you.2 Q. And when you said, "The board has uncontroverted3 expert testimony about the absence of environmental4 impacts." That was obviously when the applicant was5 presenting it's case before any objector testimony?6 It was based on evidence before me at the time of7 A. my testimony.8 So uncontroverted might have been jumping the gun9 Q. a little bit, right?10 Again, at the time of my testimony, yes.11 A. Okay. Thank you.12 Q. You mentioned in your testimony that "The13 application here refers to the settlement agreement with14 the neighbors there." Now, when you refer to the15 neighbors, who are you referring to?16 I was probably talking about Kusic when I was17 A. referring to the RSIS exception.18 Yes, that's the section in the transcript I'm19 Q. quoting from. So when you refer to neighbors, who are20 you referring to?21 I don't remember the name of the organization22 A. offhand, but there was an agreement with the, I believe,23 the association to the south.24 Right. So the association signed an agreement25 Q. 36 but you don't know what individuals signed that, do you?1 I don't know the details.2 A. Do you know whether the association had legal3 Q. authority to make commitments on behalf of individual4 homeowners?5 CHAIRMAN BAGOFF: Mr. Afran, that's out of6 his purview. He's as a planner.7 MR. AFRAN: Excuse me, I know it's out of8 his purview, that's why I was surprised he said that in9 the first place. So I'm cross examining him to be10 certain what knowledge he had.11 MR. PLOCKER: And the settlement agreement12 speaks for itself.13 MR. AFRAN: Well, the witness here was14 speaking for it. He was saying this settlement15 agreement with the neighbors, meaning the people who own16 homes and live there. And I'm asking why he said that.17 I'm perfectly entitled to.18 CHAIRMAN BAGOFF: The Planning Board has a19 copy of the settlement agreement and understand who the20 parties were and let's go back to zoning.21 MR. AFRAN: I must point out that the22 applicant's witness offered many, many statements that23 fall in the exact category that Mr. Bagoff, you are24 suggesting is not really within your purview. Yet an25