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

alf 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 gentlemen20 here in the public and on zoom, res judicata means,21 correct me if I'm wrong, that --22 MR. AFRAN: The thing has been decided.23 CHAIRMAN BAGOFF: -- it has been decided and24 is a matter of judgement. So the question is, are there25 103 common elements to this application and the application1 that was presented to the Planning Board some 17, 182 years ago and how the decision was made then does it3 impact on the decision now.4 Ms. McGovern, I know my feelings on it but I5 am going to ask --6 MS. McGOVERN: So the elements required to7 establish a res judicata applies are that in order for8 the doctrine or res judicata to be applicable it must be9 shown that the second applications is substantially10 similar to the first. The same parties or their privies11 are involved. There must be no substantial change to12 the application itself or conditions surrounding the13 property. There must have been an adjudication on the14 merits in the first case. Both applications must15 involve the same cause of action.16 MR. AFRAN: You're reading a judicial res17 judicata.18 MS. McGOVERN: Yes, and that's applicable to19 land use and it goes into -- the case law on land use20 applications are, you've gone before a board, for21 example looking to build a building that's to close to22 the property line, you're looking for a variance for23 that and the board denies you. And you come back with24 the same type of application but instead of it being25 104 three stories tall, it's two stories tall, but it's1 still close to the property line. That's not2 substantially different. The board isn't going to hear3 it. They've already denied it. So I don't know the4 circumstances, I wasn't around back when that was going5 on, but I will leave it to whatever proffers are going6 to be made as to why this is a substantially similar7 application for res judicata to apply. I don't think8 that's what you're saying, I don't think it was similar,9 from what I understand, but if it was, that would be10 relevant.11 MR. AFRAN: Well, there are elements that12 are similar. I don't know if any members of the board13 were here on the board then, I don't think so. There14 are elements that are

t would be10 relevant.11 MR. AFRAN: Well, there are elements that12 are similar. I don't know if any members of the board13 were here on the board then, I don't think so. There14 are elements that are similar -- I'm sorry. There are15 elements that were similar and the plan is different in16 that it is a multifamily set of buildings rather than17 single family buildings and it is three and half times18 more units. So to the extent there were safety issues19 by the common elements such as roadways, access roads20 that are very similar to the current plan, the fact that21 it is different only means it's even more dense, but22 those safety issues would still be common questions.23 And if the board ruled against the plan when it was24 smaller because the access roads and roadways weren't25

27 of 70 sheets Page 105 to 108 of 175 08/07/2025 02:56:42 PM 105 sufficient, that is a res judicata question, even though1 the plan now has three and half times more units. It's2 worse now than it was then in that respect. So res3 judicata does not, is not eliminated here simply because4 they made it more dense. If the underlying arteries,5 access roads, emergency points are the same, and they6 were ruled on by the board, just because you added three7 and a half times more people doesn't mean it is not res8 judicata on those issues.9 CHAIRMAN BAGOFF: There are a number of10 issues that we spoke about in the original plan. So the11 things that are the same, the applicant is the same, the12 units are different, there's now a different zone plan,13 entirely different zone plan for this property. The --14 there are other elements that preserve many more trees15 than were going to be removed in the first plan and16 there was also an issue of a waterway in the first plan.17 There was issues with --18 MR. AFRAN: Could you repeat that last part,19 I'm sorry. I couldn't hear the last part.20 CHAIRMAN BAGOFF: There was issues with the21 waterway, there was issues with the dividing roadway.22 So there were many issues that are not similar in this23 plan. So the only issue that is similar is the issue of24 the roadway. One roadway, not all. So the amount of25 106 things that are different are greater than the amount of1 things that are the same. The issue that caused the2 board to make a decision that it did at the time were3 there a number of issues that were not able to be4 resolved to the boards satisfaction. So to that end,5 unless the Mayor, who also sat on the board with me, has6 any other comment, I would --7 MR. AFRAN: I could respond on this point8 though.9 CHAIRMAN BAGOFF: Almost done.10 MR. AFRAN: The board has issued -- I'm11 sorry.12 CHAIRMAN BAGOFF: So to that end in the law13 there are enough things in my mind that is different in14 this application that, I would say that all things15 relative to that application should not be heard here.16 We have heard issues of forestry, we've heard issues of17 animal husbandry. We've heard issues of ornithology and18 all those things make sense. However, going back over19 something that was not approved 15 years ago doesn't20 enlighten the board and issues that were presented at21 that time have been brought out over

those things make sense. However, going back over19 something that was not approved 15 years ago doesn't20 enlighten the board and issues that were presented at21 that time have been brought out over time through this22 application.23 Mr. Afran, you want to respond.24 MR. AFRAN: Yes. In addition to res25 107 judicata, there's another doctrine closely related and1 that's issue preclusion. And so even though there are2 different elements, obviously there are some, there are3 issues that are in common. And so those issues that are4 the same, if having been adjudicated by this board in5 the smaller plan, if they remain the same today, even6 though it's a larger plan, issue preclusion would still7 be a relevant question for the board. So even though8 there are elements of this plan that are obviously9 different, it's got multifamily buildings and three and10 a half times more people. If there's issues then that11 are still here today, such as access roads for example,12 those issues, if decided against the applicant, then are13 subject to issue preclusion today. Therefore it's a14 relevant question. What the board decides to do15 ultimately is another issue, but the testimony is16 relevant.17 CHAIRMAN BAGOFF: The issues were brought up18 during testimony by the experts. So pulling out pieces19 of a previous application not before this board at large20 here, in my mind, could only color the boards decision.21 Mr. Afran, the application we have here, the zone plan22 and the experts from both sides that have presented and23 members of the public, so to that end the -- there's one24 issue that is similar, again similar, from the first25 108 application, other than that --1 MR. AFRAN: I think that's what he meant.2 CHAIRMAN BAGOFF: I understand that. And3 that can be brought out and it has been, but to bring4 out pieces of why or why not and the thought process of5 the previous board, all members of the previous board6 are not here to bring out their thought process, so I7 think that would color a board and the public. So we8 should hear this application legally on it's own merits9 and I'm going to ask Mr. Plocker.10 MR. PLOCKER: Yeah, thank you very much, Mr.11 Chairman. And I agree with everything you said. I12 think especially because this is a very different zoning13 ordinance that applies to the property, a different14 Master Plan, but most importantly, the

irman. And I agree with everything you said. I12 think especially because this is a very different zoning13 ordinance that applies to the property, a different14 Master Plan, but most importantly, the objector group15 would like to argue certain issues in the way this board16 treated them 15, 18 years ago, whatever it was, my17 partner handled that application, my now partner, I did18 not, but then it's just as important to tell the board19 and inform them all about the Prerogative Writ Act20 decided in my clients favor after that denial. I don't21 want to go there, I don't think that's this boards job.22 CHAIRMAN BAGOFF: I think the objector can23 bring up issues without identifying what was or was not24 brought out in that previous application and it has been25

08/07/2025 02:56:42 PM Page 109 to 112 of 175 28 of 70 sheets 109 done. As opposed to pointing to something in the past.1 Mr. Klein, you want to say something.2 MR. KLEIN: How do you know they're three3 times as many people?4 MR. AFRAN: Because there are 500 units as5 opposed to 136.6 MR. KLEIN: How many bedrooms were in 1367 and how many bedrooms total now?8 MR. AFRAN: Obviously it's not an exact9 figure.10 MR. KLEIN: Well, then how could you give us11 these facts?12 MR. AFRAN: I didn't say he was giving you13 the facts.14 MR. KLEIN: No, no. I mean --15 MR. AFRAN: I was simply stating as a16 proposition we have a larger plan -- well, if it's the17 same number of people physically then it's very close18 actually to the actual plan.19 MR. KLEIN: Well, that's what I'm saying. I20 don't know if it's the same number of people. We heard21 from their traffic engineer level of service were fine,22 it operates fine.23 MR. AFRAN: I was just saying as a general24 proposition when you're 500 units versus 136 you're25 110 obviously getting many more people.1 MR. KLEIN: 136 single family homes with2 maybe four bedrooms versus 2 -- 1 and 2 bedroom units.3 MR. AFRAN: Still getting more people.4 MR. KLEIN: More but not three times as5 many.6 MR. AFRAN: I wasn't stating it as a7 mathematical --8 MR. KLEIN: You said it like three times.9 Three times as many people. I would like to know where10 you came up with the number, that's all.11 MR. AFRAN: It's just a general proposition.12 You got 500 living units, you have 136, you're going to13 get more people and I was simply saying because we have14 three times more we're probably getting three times more15 people. That's all.16 CHAIRMAN BAGOFF: Okay.17 MR. AFRAN: I wasn't really -- I was meaning18 it as a point of legal argument that just because it's19 bigger doesn't mean the issues weren't the same in part.20 That's all I meant. I wasn't trying to testify about21 the numbers. I was simply pointing out just because22 it's bigger it doesn't mean we don't have issues in23 common.24 CHAIRMAN BAGOFF: Okay. We're going to move25 111 on. We're not going to refer to the previous1 application in its entirety or in specific pieces2 because if there are things in this application that the3 objectors have issue with they can bring them up. Let's4 move on.5 Mr. Tractenberg, you have the floor, sir.6 THE PUBLIC: Appreciate the opportunity

e if there are things in this application that the3 objectors have issue with they can bring them up. Let's4 move on.5 Mr. Tractenberg, you have the floor, sir.6 THE PUBLIC: Appreciate the opportunity to7 testify, all though it's been truncated, I think.8 Nonetheless, I want to speak to two things that I think9 are germane. One is the history of this process, this10 development process, this development effort, not11 necessarily in terms of what the board did previously12 but how it evolved and how it continues to be strongly13 contested. And I do think that is germane.14 I moved into West Orange in 1998. I do not15 have an expert map, I don't know whether Mr. Fagan can16 put it up there. I have copies for you, but it's the17 best I could do and it tries to suggest both where I18 live and the relationship between Warner Road and Kuzik19 Drive.20 CHAIRMAN BAGOFF: Mr. Fagan, you have Mr.21 Tractenberg's --22 MR. FAGAN: I'm getting it up.23 MR. PLOCKER: Bruce, can we confirm that24 this was not previously filed with the board?25 112 MR. AFRAN: Oh, yeah, yeah.1 CHAIRMAN BAGOFF: All right.2 Mr. Tractenberg.3 MS. McGOVERN: It's going to be number O-15.4 THE PUBLIC: Okay.5 CHAIRMAN BAGOFF: Could you identify what6 this is?7 THE PUBLIC: The lines at the very top8 differentiates Block 179 Lot 32.9 CHAIRMAN BAGOFF: 32.10 THE PUBLIC: So 11 Luff Lane is where I11 lived for 18 years. It's directly, it is directly12 adjacent to Block 179 Lot 32. Warner Road intersects13 with that property and runs down until it connects, it14 connects to Warner Road which eventually connects to15 Eagle Rock Avenue. Eagle Rocks the first public road.16 I'm familiar with this having lived there all those17 years. This is Kuzik Drive, which is not proposed for18 general access but is a possible fallback and from19 having lived in that neighborhood I just want to point20 out that Kuzik runs for far less than a half a mile. It21 lines up a tenth of a mile down Warner Road from where22 Warner Road intersects with Block 179 Lot 32. So to the23 extent one would consider opening up Kuzik, all it does24 is run by some residential buildings and connect about a25

29 of 70 sheets Page 113 to 116 of 175 08/07/2025 02:56:42 PM 113 tenth of a mile down Warner Road. The rest of Warner1 Road and Oval Road would be unchanged by opening up the2 second access. And by the way, an agreement in 2004,3 which was entered into between the original We Care4 organization and the developers assigned by Zygmunt Wilf5 --6 MR. PLOCKER: I'm going to object to any7 reference to any prior agreements, litigations, we're8 not denying that they do not exist, but this board is9 not the proper forum for them.10 MR. AFRAN: Well, it does relate to the11 question if the applicant had given away rights in land,12 then the applicants standing as a proprietary interest13 in the application is effected, and therefore it is14 relevant.15 CHAIRMAN BAGOFF: But Mr. Afran, we don't16 have a copy of that for the board to judge. So this is17 hearsay testimony. We don't know the extent or anything18 about that, so we're going to pass on that.19 MR. PLOCKER: And I'll just add for the20 record, whatever lawsuit you may file if there is an21 approval you can raise any and all of these arguments22 and we'll be more than prepared to address them. We23 believe any prior agreements do not apply to the current24 situation. But, again, that's not for this board.25 114 CHAIRMAN BAGOFF: Agreed.1 MR. AFRAN: May I just have one moment. I'm2 sorry.3 The point is -- well, if the Chair thinks4 it's hearsay at this point the agreements not before us,5 we'll address it later but we maintain its relevance.6 CHAIRMAN BAGOFF: Okay. We're not going to7 hear this right now.8 MR. AFRAN: Not right now.9 CHAIRMAN BAGOFF: Okay. Good.10 Mr. Tractenberg, you have the floor, sir.11 THE PUBLIC: Since I was one of the ones who12 complained about how hard it is to hear, I apologize to13 the board and to the public for not talking directly14 into the microphone.15 So back to my arrival in West Essex16 Highlands. Within a short time of my arrival I was told17 for the first time, I bought from the original owner18 that there would be shovels in the ground by the spring.19 That would have been the spring of 1999. At that point20 many of us in the community were very upset about the21 prospect of a major development adjoining us. We went22 to the West Essex Highlands condo board and requested23 its assistance in objecting to it. They claimed at that24 time, I think wrongly, but they claimed that

major development adjoining us. We went22 to the West Essex Highlands condo board and requested23 its assistance in objecting to it. They claimed at that24 time, I think wrongly, but they claimed that they were25 115 bound by their agreement with the developer from1 challenging any development proposal. But they pointed2 out that individual unit owners were free to object.3 That led several of us to create the organization which4 became We Care, which included a lot of individual unit5 owners of the Highlands, some residents of the Grand,6 residents of Howell and adjoining neighborhoods and we7 became the objectors before the board in the first go8 round and it resulted in a denial, I won't go into the9 details, I won't argue the relevance, but it resulted in10 a denial.11 There was an effort, which I think is12 germane in my case to this, between 2006 and 2008 to13 preserve this property as open space. It was then part14 of the Master Plan of the town and the open space plan15 that that was a high priority property to preserve as16 open space. The effort fell apart when the economy fell17 apart in 2008 and a lot of money was off the table for18 acquisition. Just as a matter of personal privilege,19 the township council did propose and agreed to pay for20 two appraisals of the property because there was some21 dispute about its value.22 MR. PLOCKER: I'm going to object to23 whatever actions that town council may have or may not24 have historically enacted or any studies that may have25 116 been conducted. We're here to deal with this1 application, this development, this zoning ordinance.2 CHAIRMAN BAGOFF: I'm going to let you do3 this, because it's a little history, so I have no4 problem with that.5 I'm sorry, go right ahead.6 THE PUBLIC: The township council in it's7 infinite wisdom chose not to make public the results of8 the appraisal after they were submitted. It led me to9 threaten and then bring in a lawsuit to seek those10 appraisals. We eventually won in the Appellate11 Division, I got the appraisals, the appraised value was12 much less than John McKeon, then the Mayor, was13 publically indicating would be the value of the property14 and that really jump started the preservation effort.15 It was aborted by the financial collapse in 200816 however. Mr. Plocker mentioned earlier that the17 developer was, during this time, also attempting to18 through

mp started the preservation effort.15 It was aborted by the financial collapse in 200816 however. Mr. Plocker mentioned earlier that the17 developer was, during this time, also attempting to18 through the courts to overturn the Planning Boards19 denial.20 CHAIRMAN BAGOFF: Let's move on from all21 denials and get to more facts about the case.22 THE PUBLIC: Okay.23 Fast forward to the period of 2015-'17 and24 on to 2020, which was, I think, the period where25