June 23, 2025 Planning Board Special Meeting Transcript - WEHI

07/19/2025 07:03:47 AM Page 37 to 40 of 52 10 of 21 sheets 37 impression is left from that testimony based on things1 that really weren't in the witnesses purview and that's2 why cross examination is necessary.3 CHAIRMAN BAGOFF: The board has an4 understanding what's been going on and the board5 understands there was a settlement agreement and we are6 not a participant in it. The outcome of the settlement7 agreement is what we're working with.8 MR. AFRAN: Well, I don't know if you know9 what everyone on the board is thinking, of course, but10 my only point was to test what the witness meant by11 saying the neighbors had settled. Because if that12 implication is left with the board, it's a false one.13 CHAIRMAN BAGOFF: Okay.14 Mr. McDonough, do you know the term15 neighbors, what that referenced?16 THE WITNESS: I don't know. I don't know17 the details of the settlement agreement.18 Okay. Thank you.19 Q. You mentioned that, "Unless the RSIS de minimus20 waiver is granted there will be an undue hardship21 because of peculiar conditions pertaining to the22 development in question." I am quoting that. What23 undue hardship and what peculiar conditions were you24 referring to?25 38 I have to remember the context of what I said.1 A. But, again, I was relying upon the testimony of our2 expert traffic consultant that the design with the loop,3 less than the one thousand ADT due to the closure of4 Kusic would not violate the intent of the RSIS and that5 language is in there.6 All right. But I'm asking -- well no, if the7 Q. language is in there then there has to be a showing of8 evidence to support those conditions. So I am asking,9 what is the undue hardship and what are the peculiar10 conditions, if you know? And you used those phrases, so11 I'm asking what was meant or you know about that.12 I will fall back on the settlement agreement,13 A. that the particular or peculiar circumstances are that14 there was an agreement in place and that would cause an15 undue hardship to break that agreement.16 And if I could probe further. There would be an17 Q. undue -- are you saying that to -- strike that.18 I'll move on. Thank you. You answered my19 question.20 MR. AFRAN: I just need a minute to review21 my notes. They were partially written while on the22 highway, so it's taking me an extra minute.23 CHAIRMAN BAGOFF: Okay.24 You referred to this plan as satisfying the25

just need a minute to review21 my notes. They were partially written while on the22 highway, so it's taking me an extra minute.23 CHAIRMAN BAGOFF: Okay.24 You referred to this plan as satisfying the25 Q. 39 standards of the complete streets concept in the town.1 Do you recall that testimony?2 I do.3 A. Now, you also testified that -- let me get to the4 Q. exact reference. You also said you did not know the5 distance that one would walk from the development to the6 nearest public transport. Do you remember saying that7 in response to a member of the publics question?8 I do, yes.9 A. Give me one moment.10 Q. You also said, you were asked, "Are you aware11 that this property is locked in by other properties in12 order to get of any sort of mass transit" and the13 question went on and you said, you don't know. Do you14 recall that?15 I know the property is central to the development16 A. around it so, yes. To get to, I don't know if there's17 any transit on the edge, but my assumption is you would18 have to go beyond the property borders to get to19 transit.20 Well, doesn't complete streets -- what does21 Q. complete streets mean, to your understanding?22 It's to sure pedestrian -- positive pedestrian23 A. circulations, bicycle circulation and amenities and24 vehicular.25 40 So if one -- if you don't know how far one has to1 Q. walk to the nearest mass transit and if there's no2 sidewalk connecting the development to facilities3 outside of it, do you really feel this is complete4 streets?5 In my view this is a pedestrian friendly, bicycle6 A. friendly and vehicular safe plan.7 You base that on say Mr. Pehnke's testimony and8 Q. others?9 Pretty much all the witnesses before me. Mr.10 A. Anderson and Mr. Pehnke, yes.11 Okay.12 Q. So based on what you heard from them you feel13 that it includes those safety issues?14 I do.15 A. Do you know if a -- strike that. I will move on.16 Q. You said that the planner when he or she does17 their work looks comprehensively at the application?18 Yes.19 A. Yet you also said, I think it was in response to20 Q. Mayor Davis's question, that you had not examined the21 impact of stormwater on Essex Fells that would arise22 from this plan, do you remember that?23 I have not personally done a drainage analysis,24 A. no. I know there is a pretty thick engineering25

11 of 21 sheets Page 41 to 44 of 52 07/19/2025 07:03:47 AM 41 documents out there.1 Yet, if the MLUL says in Subsection, I believe it2 Q. was D, that the board and the ordinances of course must3 consider the effect on neighboring municipalities, and4 you as a planner have not done that analysis, how could5 you say you have done this comprehensively?6 Well, again, I am reliant upon an engineering7 A. study that has been signed and sealed by a professional8 engineer who's qualified to perform that study. Coupled9 with sworn testimony under oath by that same expert.10 But in your comprehensive analysis you did not do11 Q. that review yourself?12 I don't know how to do drainage calculations.13 A. Well, I didn't ask about the calculations but I14 Q. did ask about the effect on neighboring communities.15 Did you do any analysis like that at all?16 My analysis focuses on what the engineer says.17 A. Would it be good planning for a site plan18 Q. application to come before a board and not have any19 sewer plan?20 Stormwater plan or sanitary sewer?21 A. No, real sewers.22 Q. No. Again, a network could be -- final design of23 A. the network, the size can all be part, in my mind, of an24 outside agency condition of approval, such as MUA.25 42 Is it sound planning for an applicant to ask a1 Q. Planning Board to approve a major development of this2 nature with no sewer plan. Yes or no question. Is that3 sound planning?4 Yes. It is not atypical for a certain aspect of5 A. a plan to be conditions of approval through an outside6 agency. A shovel doesn't get in the ground until those7 details are worked out and designed.8 My question wasn't about certain aspects in the9 Q. abstract, it was a simple question. Is it sound10 planning for an application to go before a Planning11 Board of this size and scope with no sewer plan?12 MR. PLOCKER: I am going to object to the13 extent the question insinuates there's no sewer plan.14 That's part of a site plan.15 MR. AFRAN: I haven't seen a sewer plan.16 The engineer hasn't seen a sewer plan for the town. It17 was made very clear that that's an issue here. If there18 is a sewer plan, I would like Mr. Plocker to present it.19 MR. PLOCKER: I think there's confusion20 between a sewer plan for the site and what may be21 happening off-site, which was discussed with Mr.22 Anderson and the township engineer during testimony.23 MR. AFRAN: Was

I think there's confusion20 between a sewer plan for the site and what may be21 happening off-site, which was discussed with Mr.22 Anderson and the township engineer during testimony.23 MR. AFRAN: Was there any plan to move24 sewage off the site at present before this board? The25 43 answer is, no.1 MR. PLOCKER: I object to that2 characterization.3 Is there such a plan?4 Q. I don't know.5 A. If there's no such plan would you say that6 Q. reflects sound planning?7 I would say that is not out of the ordinary for a8 A. project of this magnitude to defer that to a future9 phase.10 And your view is that would be sound planning to11 Q. have that absence?12 Yes, I believe that's cooked into the MLUL13 A. process.14 Okay.15 Q. If a development is going to introduce 1,70016 daily car trips, or more than 1,700 to a community where17 there's only one way out and one way in and that will be18 going through an existing neighborhood, the association,19 would you still say that that plan does not reflect20 undue sprawl?21 Yes, I would still say that.22 A. Cars are part of sprawl, correct?23 Q. Certainly are.24 A. Right. And the more cars we put in our25 Q. 44 environment and the more traffic we impose on the1 community by more and more development, that's all part2 of sprawl, isn't it?3 It's a subset of sprawl, yes.4 A. It's part of sprawl, right?5 Q. It's a part of sprawl.6 A. Okay.7 Q. And you would say the addition of almost 2,0008 daily car trips into this one way access and ingress9 through this existing neighborhood is not adding10 significant sprawl to our community?11 All things considered I would not say that the12 A. traffic alone would rate this project as a sprawl13 project.14 Well, I didn't ask alone about the traffic. I15 Q. think one can say that when you add all this extra16 traffic and we add destruction of this vast forest and17 add the 1,200 people who now live here and the multiple18 buildings spreading out through this forest, would you19 still say there's no significant sprawl?20 I would, again, I rely upon a licensed traffic21 A. expert who looks at the carrying capacity of the road22 network and the transportation infrastructure that's23 presently in place and that there is adequate capacity24 to accommodate that type of volume.25

07/19/2025 07:03:47 AM Page 45 to 48 of 52 12 of 21 sheets 45 MR. PLOCKER: And the town zoned it for this1 density.2 MR. AFRAN: I'm sorry. What?3 MR. PLOCKER: The town zoned this property4 for this density that's proposed.5 MR. AFRAN: I am simply asking the witness6 who went out of his way repeatedly to tell us there's no7 sprawl here, whether in lieu of all these factors he8 stands by the proposition that this project does not9 contribute to urban sprawl.10 I still standby that statement.11 A. You mentioned that the traffic engineer spoke of12 Q. the traffic, but the question of sprawl and blithe is13 within the planning profession, isn't that true?14 Yes.15 A. You can't really defer to what the traffic16 Q. engineer says on this question, you need to have your17 own substantiated viewpoint, isn't that correct?18 Again, I rely on the predicate of witnesses19 A. before me. Traffic generation is certainly considered,20 land disturbance is a consideration as well. All of21 that which is proposed here is within the confines of22 what the ordinance contemplates.23 Well, why did you bring up sprawl if the24 Q. ordinance contemplates this project, why did you bother25 46 to tell us there's no sprawl coming from this. It1 wouldn't matter, would it, as Mr. Plocker says. The2 ordinance says you can have this density, so why did you3 then tell us this doesn't create sprawl if the ordinance4 says we could have this. Why did you go to the trouble5 of trying to persuade the board that there is no sprawl?6 Because the purpose -- in my mind the purposes of7 A. the zoning ordinance are laudable as a deterrent to8 sprawl compact development and the efforts of the9 applicant are laudable for following the laudable goals10 of the ordinance.11 So basically you're saying because the ordinance12 Q. allows this there is no sprawl?13 I'm saying the purpose of the ordinance is14 A. laudable, again, as a deterrent to sprawl.15 Well, the only -- so you're saying this project16 Q. deters sprawl and that's laudable?17 Yes. We have a problem in New Jersey, we have a18 A. demand for housing for affordable housing that is19 imposed, that is mandated on communities. Communities20 have to pick their spots and this, again, this has been21 a well vetted process that landed us to here and an22 ordinance that went through all of the procedural23 requirements that it needed to and then an

o pick their spots and this, again, this has been21 a well vetted process that landed us to here and an22 ordinance that went through all of the procedural23 requirements that it needed to and then an applicant24 that has essentially followed that to a T.25 47 Well, you know perfectly well there was a1 Q. settlement agreement, you know, the affordable housing2 case, there's going to be an almost automatic approval3 of the zoning change?4 MR. PLOCKER: Objection.5 CHAIRMAN BAGOFF: I got it.6 Whatever the court does is above the pay7 rate of this Planning Board, so.8 MR. AFRAN: Then the witness shouldn't be9 speaking to the fact -- excuse me, every time I ask a10 question the witness goes back to the laudable11 objectives of the very well conceived plan that followed12 all procedural basis in creating the zoning ordinance.13 So he is constantly telling you, all of this is done in14 a perfectly normal, legitimate way and then Mr. Plocker15 arises and says, don't you dare cross examine him.16 CHAIRMAN BAGOFF: You can cross examine him.17 I know the board is picking up on things.18 MR. AFRAN: We can move on.19 MR. PLOCKER: Can I just clarify my20 statement. My objection is not that Mr. Afran can't21 cross examine Mr. McDonough, but he said that this board22 is basically bound by the automatic approval and I don't23 agree with that statement at all. So I think it was24 misstating what this board can or can't do in the25 48 duties, jurisdiction and obligations of the board. That1 was my objection.2 MR. AFRAN: Well, Mr. Plocker and I are in3 full agreement, the board does not have an automatic4 approval obligation. I am glad we agree on that.5 CHAIRMAN BAGOFF: I am going to agree with6 that too.7 MR. AFRAN: I'm glad. This is the point of8 doing this. We got to a point of agreement, it's good.9 CHAIRMAN BAGOFF: Let's get beyond sprawl.10 MR. AFRAN: I think we can avoid almanacs of11 sprawl.12 We're coming to the end.13 Can I have just one moment, please.14 (Whereupon, a short recess is taken.)15 MR. AFRAN: Mr. Chairman, that covers our16 cross examination. I thank Mr. McDonough. I hope he is17 able to get to his -- there may be more questions from18 the public, I don't know. But I hope he can get to his19 next meeting.20 CHAIRMAN BAGOFF: The board and public21 questioned from the previous discussion.22 We want to thank Mr. McDonough, unless Mr.23 Plocker has any

n't know. But I hope he can get to his19 next meeting.20 CHAIRMAN BAGOFF: The board and public21 questioned from the previous discussion.22 We want to thank Mr. McDonough, unless Mr.23 Plocker has any questions.24 MR. PLOCKER: No. Thank you.25

13 of 21 sheets Page 49 to 52 of 52 07/19/2025 07:03:47 AM 49 CHAIRMAN BAGOFF: The public have any1 questions? Public and board had questions already.2 This is just Mr. Afran to ask questions.3 MR. AFRAN: I do have one quick question,4 housekeeping matter. It was brought to my attention5 that -- let me rephrase that.6 Our planner is expected next Monday,7 regardless of when our planner is coming do we know when8 the audio of this day will be published on the website,9 so our planner can hear it?10 MS. McGOVERN: The link --11 MR. AFRAN: When does this get put on audio?12 MS. McGOVERN: Again --13 MS. VITE: The audio is up the next day.14 MR. AFRAN: Thank you. I understand that.15 That's the answer. Jamilet stated that the16 audio will be published on the boards website.17 CHAIRMAN BAGOFF: Via a link.18 MR. AFRAN: Via a link, yes.19 That concludes what we have. Thank you.20 MS. McGOVERN: Do you have any witnesses for21 tonight?22 MR. AFRAN: No, we talked about that.23 MR. PLOCKER: Formally announce --24 CHAIRMAN BAGOFF: Ladies and gentlemen, we25 50 want to thank you very much. We want to state for the1 record that Council Person Scarpa was watching the2 meeting of the cross on zoom.3 The next Planning Board special meeting will4 be held June 30 at 6:30 PM in person in council chambers5 and visible on zoom. The regular Planning Board meeting6 will be held July 2 at 7:30 PM via zoom.7 (Hearing concludes at seven 7:35 PM.)8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 51 C E R T I F I C A T E1 I, ERIC S. FISHMAN, a Shorthand Reporter2 and Notary Public of the State of New Jersey do hereby3 certify that the foregoing is a true and accurate4 transcript of the testimony as taken stenographically by5 and before me at the time, place and on the date6 hereinbefore set forth, to the best of my ability.7 I DO FURTHER CERTIFY that I am neither a8 relative nor employee nor attorney nor counsel of any of9 the parties to the action; and that I am neither a10 relative nor employee of such attorney or counsel; and11 that I am not financially interested in the action.12 13 14 ---------------------15 ERIC S. FISHMAN, S.R.16 17 18 19 Dated:__________________20 21 22 23 24 25 52 SIGNATURE PAGE/ERRATA SHEET1 2 WITNESS: CASE REFERENCE:3 4 INSTRUCTIONS TO WITNESS5 After you have read your transcript, please note any errors in transcript6 on this page. Do not mark on the

24 25 52 SIGNATURE PAGE/ERRATA SHEET1 2 WITNESS: CASE REFERENCE:3 4 INSTRUCTIONS TO WITNESS5 After you have read your transcript, please note any errors in transcript6 on this page. Do not mark on the transcript itself. Please sign and date this sheet as indicated below. If additional lines are required for corrections, attach additional sheets.7 ---------------------------------------------------------------------------------------------- ERROR OR AMENDMENT/REASON FOR CHANGE8 ---------------------------------------------------------------------------------------------- Page Line9 ---------------------------------------------------------------------------------------------- 10 11 12 13 14 15 16 17 18 19 20 21 22 I have read my transcript and subscribed to its accuracy, to include the corrections or amendments noted above or hereto attached:23 24 ---------------------------------------------------------------------------------------------- Signature of Witness Date25

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