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

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