June 30, 2025, Planning Board Special Meeting Transcript - WEHI

23 of 70 sheets Page 89 to 92 of 175 08/07/2025 02:56:42 PM 89 is that the person who questions the objector witness is1 to be their attorney. I don't think it means that's the2 only way an objector can present evidence.3 MS. McGOVERN: Well, I'm going to say, I4 will just reiterate what Dr. Bagoff said, what is the5 difference between public comment, like what you're6 proposing right now, versus, you had represented earlier7 that you had witnesses that you wanted to put forth as8 representatives of We Care to provide factual testimony.9 And --10 MR. AFRAN: That is correct, in part. Yes.11 MS. McGOVERN: Okay. So there's -- we're12 back and forth here. I don't know, I'm going to leave13 it to the Chairman to decide how the meeting is going to14 go forward, but that is a concern.15 MR. AFRAN: I think that -- well, I don't16 know why it's that much of a concern. Nobody's ever17 been poisoned by hearing words. If it's objectionable18 well then the chair will make a ruling. I mean, I don't19 see why it's that necessary to raise it right now before20 he said one word. I would say that I don't think21 there's any rule that says an objector representative of22 an organized objector, an organization or objector, has23 to be questioned only line by line rather than stating24 the position of the objector organization. I'm not25 90 aware of any rule or case that even says that. And what1 you cited with respect doesn't -- it's not exclusive.2 CHAIRMAN BAGOFF: We're getting into3 legalese, so in order to pull ourselves up and to make4 it clear, we're going to ask -- the Chair asks Mr. Afran5 to ask a question of Mr. Tractenberg, Mr. Tractenberg6 can answer the question and we'll go slowly. If we find7 that he is testifying -- he is not testifying and8 providing I know, I saw, I want, let me show you, that9 is factual, that is more public comment. We'll rule on10 it in that fashion and Mr. Plocker has the opportunity11 of providing his comment along the way.12 MR. AFRAN: I have to disagree that there's13 somehow a distinction between public comment and a14 commentary by an objector witness during the objector15 case. Public comment is for people who are not16 objectors and have an interest in the case. That17 doesn't mean an objector representative can't give their18 own narrative of the position of the objector group. I19 think you're establishing a false

objectors and have an interest in the case. That17 doesn't mean an objector representative can't give their18 own narrative of the position of the objector group. I19 think you're establishing a false distinction.20 CHAIRMAN BAGOFF: Well, the objector group21 has been heard from and in many ways by your experts.22 MR. AFRAN: That's correct, but not23 entirely.24 CHAIRMAN BAGOFF: Is there information that25 91 you say that Mr. Tractenberg has that has not been1 brought forth by any of the experts that would impact2 the boards decision?3 MR. AFRAN: I am sure he has information4 that could impact the boards decision. But also Ms.5 McGovern just got through telling us that the board6 should consider the motivation of an objector. Now7 you're telling me when the objector representative8 explains the reasons why the objector group is here9 somehow that's public comment. Now, it can't be both10 ways. Can't take a position that the board can inquire11 into the motivation of an objector and then say the12 objector representative can't explain his motivation.13 CHAIRMAN BAGOFF: Motivation is, whatever14 his motivation we'll find that out shortly, but we have15 to be careful not to have public comment, because then16 public comment becomes testimony, and we do not --17 MR. AFRAN: Public comment is testimony,18 that is the whole point. At this phase the public is19 questioning witnesses, as you've made a point repeatedly20 on and the public, later in public comment, gives its21 own information or viewpoints. So public comment is a22 form of testimony as opposed to the questions that are23 being posed to witnesses now which is in the nature of24 cross examination by the public. You have made the25 92 point and made the distinction.1 CHAIRMAN BAGOFF: Well, the distinction is2 public comment is at the end of all these meetings and3 testimony is during the proceedings, usually by experts.4 So --5 MR. AFRAN: No, that is -- no, there is no6 law or rule that says commentary during the proceeding7 is only by experts. There have been many instances when8 objectors speak factually or speak of their reasons and9 concerns and they are not limited to being members of10 the public. In fact the opposite applies. My officers11 can't speak during public comment. Now, you can't have12 it both ways. You can't say the officers of We Care13 have a motivation and it should be reviewed by the

ct the opposite applies. My officers11 can't speak during public comment. Now, you can't have12 it both ways. You can't say the officers of We Care13 have a motivation and it should be reviewed by the board14 but can't explain their motivation in the narrative and15 you can't say at the same time they can't speak during16 your public comment and at the same time say they can't17 speak during the case.18 CHAIRMAN BAGOFF: Hold on a second, Mr.19 Afran.20 Okay. Let's hear Mr. Tractenberg --21 MS. McGOVERN: I just --22 CHAIRMAN BAGOFF: I'm sorry.23 Ms. McGovern, on the record.24 MS. McGOVERN: I'm going to cite the statute25

08/07/2025 02:56:42 PM Page 93 to 96 of 175 24 of 70 sheets 93 N.J.S.A. 40:55D-10. Hearings. Section D. "The1 testimony of all witnesses relating to an application2 for development shall be taken under oath or affirmation3 by the presiding officer, and the right of4 cross-examination shall be permitted to all interested5 parties through their attorneys, if represented, or6 directly, if not represented, subject to the discretion7 of the presiding officer and to reasonable limitations8 as to time and number of witnesses."9 All right. So --10 MR. AFRAN: I don't have that in front of11 me. May I see a copy for a moment.12 MS. McGOVERN: The statute?13 MR. AFRAN: Yeah.14 MS. McGOVERN: This the Cox Book but it's15 the statute at the back, NJA-40:55D-10, Hearings. And16 Section D.17 CHAIRMAN BAGOFF: We're going to take18 minutes for Mr. Afran to take a look at this.19 MR. AFRAN: I am not sure I understand. It20 says, The testimony of all witness relating to --"21 CHAIRMAN BAGOFF: Mr. Afran, please speak22 into the microphone.23 MR. AFRAN: It says, Subsection D,24 40:55-10D, as in David. "The testimony of all witnesses25 94 relating to an application for development shall be1 taken under oath or affirmation by the presiding2 officer. And the right of cross examination shall be3 permitted to all interested parties through their4 attorneys, if represented, or directly if not5 represented, subject to the discretion of the presiding6 officer." It doesn't say that an objector7 representative can only testify through questions from8 counsel. What it says in that respect is that9 cross-examination of witnesses will take place by their10 attorneys, if represented, or directly by the cross11 examiner if there's no attorney. Nowhere does it say12 the attorney has to question the objector witness.13 MS. McGOVERN: I'm going to disagree.14 MR. AFRAN: I'm reading the exact words.15 MS. McGOVERN: I don't have it in front of16 me.17 MR. AFRAN: Now you do.18 MS. McGOVERN: The officer -- there's a19 variety of sections that talk about the way a hearing20 proceeds.21 MR. AFRAN: Well, you were citing D and I'm22 reading D.23 MS. McGOVERN: Right above it, "The officer24 presiding at the hearing or such person as he may25 95 designate shall have power to administer oaths and issue1 subpoenas to compel the attendance of witnesses and the2 production of relevant evidence."3 It is the board

ring or such person as he may25 95 designate shall have power to administer oaths and issue1 subpoenas to compel the attendance of witnesses and the2 production of relevant evidence."3 It is the board Chairman's discretion as to4 the method of the meeting and the order of the meeting.5 And if the board Chair wants public comment at the6 conclusion that's when it's going to be. And that's7 what we're trying to determine here. You're8 representing a group, you already introduced individuals9 to give testimony on your case, therefore in a court, in10 this hearing, which is quasi judicial, this is typically11 the way the procedure that, I've been doing this for12 over 20 years and I'm sure you've been doing this just13 as long if not longer. That is the standard procedure.14 MR. AFRAN: All it says is that the15 presiding officer controls the meeting. That doesn't16 mean that power can be used to stop a witness.17 CHAIRMAN BAGOFF: Mr. Afran.18 MS. McGOVERN: We're not stopping him.19 MR. AFRAN: Well, doesn't mean the power --20 MS. McGOVERN: Just keeping the order of the21 proceeding.22 MR. AFRAN: There's nothing that prevents an23 objector representative from giving the objector24 organizations viewpoint as to why it's here. If you25 96 want to block that, block it. I'm saying he has the1 right to do it.2 MS. McGOVERN: That's not what I'm saying.3 CHAIRMAN BAGOFF: Mr. Afran, we're going to4 let him testify. We'll make sure to the best of our5 ability that this is testimony and not public comment.6 MR. AFRAN: And I would submit there's no7 distinction but I understand your concern.8 CHAIRMAN BAGOFF: Mr. Plocker.9 MR. PLOCKER: Just for the record, we have10 no prolem with Mr. Afran calling Mr. Tractenberg.11 Obviously he's an officer of We Care organization and I12 believe before the public hearings even started last13 July, coming upon a year, Mr. Tractenberg, while he was14 identified as an officer along with other individuals,15 those people have not, and I respect that they have not16 asked questions to the witnesses. We do not dispute17 that Mr. Tractenberg as an officer of We Care, even if18 he was not an officer, that he has the right to be19 called, but it is within the board -- the Chairman's20 discretion to hear, you know, what type of testimony he21 is offering and I believe that it's reasonable to let22 him begin whatever he's going to say. I would

is within the board -- the Chairman's20 discretion to hear, you know, what type of testimony he21 is offering and I believe that it's reasonable to let22 him begin whatever he's going to say. I would argue23 that if he has factual observations regarding the site,24 the area, conditions, things relevant to what this board25

25 of 70 sheets Page 97 to 100 of 175 08/07/2025 02:56:42 PM 97 is tasked with, that's perfectly fine. If it goes1 outside of there or matters outside the scope of this2 board, I may object.3 CHAIRMAN BAGOFF: Okay.4 MR. AFRAN: I think we're in agreement that5 he should go forward and I point out also he is a lawyer6 and officer of the court and a retired law professor of7 Rutgers, he does understand the procedure.8 CHAIRMAN BAGOFF: Mr. Tractenberg's9 well-known to the Planning Board.10 MR. AFRAN: I have a feeling there will be11 areas Mr. Plocker will raise objections to, I am not12 denying that.13 CHAIRMAN BAGOFF: I know Mr. Tractenberg14 knows how to do this.15 MR. AFRAN: I didn't mean that16 sarcastically. We talked and I believe there will be17 areas he objects to.18 MS. McGOVERN: Okay.19 MR. AFRAN: We call the now infamous Paul20 Tractenberg.21 CHAIRMAN BAGOFF: Thank you.22 MS. McGOVERN: Would you please raise your23 right-hand.24 Do you swear or affirm to tell the truth the25 98 whole truth nothing but the truth.1 THE WITNESS: I do.2 MS. McGOVERN: Will you please state your3 full name and spell you last name.4 THE WITNESS: Paul Tractenberg,5 T-R-A-C-T-E-N-B-E-R-G. I live currently at 96 Sullivan6 Drive in West Orange. Previously, as I will explain, I7 lived for 18 years at 11 Meadows Bluff Lane in West8 Orange, a condominium property that's directly adjacent9 to the subject property. The property that's the10 subject of the application before the board.11 P A U L T R A C T E N B E R G, having been12 duly sworn testifies as follows:13 THE PUBLIC: I want to thank Chairman Bagoff14 and members of the Planning Board, I appreciate the15 opportunity to present this testimony.16 As I have indicated, I am a long time, 2717 plus years, resident of West Orange. I have been18 immediately adjacent to or in close proximity to the19 subject property for those years. I believe actually20 that I am the first witness who is from the affected21 community not an expert retained by the applicant or the22 objector and I have to say a word about that. That has23 enabled me to observe, evaluate firsthand the impact the24 development you are considering would have on your25 99 neighbors who live nearby as well as on the broader West1 Orange community and neighboring communities. In that2 connection I cannot imagine many applications this board3 has considered over the years

neighbors who live nearby as well as on the broader West1 Orange community and neighboring communities. In that2 connection I cannot imagine many applications this board3 has considered over the years that have provoked the4 kind of broad interest this one has and the5 participation of a number of adjoining municipalities6 and a number of environmental commissions, including the7 one in this town, West Orange, and the one in our8 county, the Essex County Environmental Commission.9 Because the applicants effort to develop Block 179 Lot10 32 has been proceeding for so long, substantially more11 than 20 years, I believe testimony to the Planning Board12 that briefly puts the current deliberations in context13 could help you to make a reasoned decision and I know14 you're committed to exactly that result, a reasoned15 decision.16 Chairman Bagoff and Mayor McCartney, among17 others, have personal experiences for much, if not that18 entire time, but others have not.19 I also want to testify about my personal20 experiences as a long time resident of West Orange and21 of the West Orange West Essex Highlands condo community22 that are directly relevant to the issues before you.23 After all, to treat this just as a dispute among experts24 retained to testify before you tends, in my view, to25 100 minimize or even eliminate a crucial dimension how your1 decision will effect the daily lives and the health,2 safety and well-being of many residents of West Orange3 and adjoining communities. So with your forbearance I4 will proceed as a resident and fact witness not as an5 expert. I don't claim expertise in many of the areas6 before you.7 MR. AFRAN: Could I just have one second.8 Just checking on timing.9 MR. PLOCKER: Can I make a statement before10 Mr. Tractenberg begins.11 CHAIRMAN BAGOFF: Mr. Plocker.12 MR. PLOCKER: Based upon Mr. Tractenberg's13 introduction, it seems he intends to produce evidence14 regarding prior proceedings and he even alluded to that15 certain people on the board had personal experience. So16 to the extent that that's the case, I think this boards17 mission is to focus on the application, all of the18 application materials submitted. This is a particular19 application under a particular zoning ordinance and20 anything that happened before this board in the past is21 not relevant to this application or the boards decision.22 MR. AFRAN: Well, with

cular19 application under a particular zoning ordinance and20 anything that happened before this board in the past is21 not relevant to this application or the boards decision.22 MR. AFRAN: Well, with respect, number one,23 that's not true because board decisions that deny24 applications actually can have a res judicata effect.25

08/07/2025 02:56:42 PM Page 101 to 104 of 175 26 of 70 sheets 101 Meaning they bind the case for future incarnations of it1 that contain similar elements.2 MR. PLOCKER: I disagree.3 MR. AFRAN: You can disagree with the law if4 you want, but Planning Board decisions can have res5 judicata effects, therefore what happened in the prior6 application does have relevance, especially since7 there's some elements that are in common and therefore8 it is a relevant subject to go into. What weight the9 board gives, is the boards business, and what dispute10 the applicant takes to that and what rebuttal it gives11 is his business. But this is relevant and it is within12 the scope of what we would call the res judicata effect13 potentially of prior applications. So what happened14 there does have relevance. It depends of course on what15 the witness says, but things that were addressed,16 rejected, known to cause potential issues that are in17 common today or closely related today are relevant. We18 don't close our eyes and ears and minds and pretend19 something didn't happen before this very board. So it20 is relevant. I think we should let him speak and then21 objections or strikes could be made.22 MR. PLOCKER: Respectfully Chairman Bagoff,23 I believe that the doctrine of res judicata can apply to24 a land use hearing, but it is to prevent the25 102 re-litigation or rehearing in front of a board of1 identical, very similar applications. Here I don't2 think anybody in this room would dispute that any prior3 application regarding this block and lot was a very4 different proposal under a very different ordinance,5 under very different circumstances. So to the extent6 that certain decisions or rulings were made with respect7 to those therein different applications, they're highly8 irrelevant to these proceedings and highly prejudicial.9 MR. AFRAN: Well, first thing, you can't say10 somethings prejudicial until you've heard the testimony.11 Secondly, res judicata can apply to elements of two12 plans that are closely related. If the board denied the13 plan because of certain aspects of it and if those14 aspects are seen again here, even though this is now15 three and half times larger, those common elements could16 be subject to res judicata. So why don't we let the17 witness speak and then the board can decide how it wants18 to go.19 CHAIRMAN BAGOFF: So ladies and