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

1 of 33 sheets Page 1 to 4 of 130 09/16/2025 06:29:53 AM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 TOWNSHIP OF WEST ORANGE DEPARTMENT OF PLANNING AND DEVELOPMENT WEDNESDAY, JULY 30, 2025 6:30 P.M. RE; PB-24-01 WEST ESSEX HIGHLANDS, INC. BOARD MEMBERS: ROBERT BAGOFF, Chairman JERRY GUARINO, Vice Chairman KEN ALPER LORI KAPFERER JOHN CARDOZA WILLIAM WILKES SUSAN SCARPA, Council Person RYAN MacNEILL, Engineer GERARD HAIZEL, Planner JAMILET BAQUERIZO VITE, Board Secretary GENIECE GARY-ADAMS, Zoning Official JOSEPH FAGAN, Zoom Moderator WITNESSES: GREGORY MASCERA, ESQ. WILLIAM GREEN, Engineer JESSICA PEARSON FISHMAN COURT REPORTING AGENCY 89 HEADQUARTERS PLAZA NORTH 4 SPEEDWELL AVENUE, SUITE 1440 MORRISTOWN, NEW JERSEY 07960 (973) 285-5331 - FAX - (732) 605-9391 2 A P P E A R A N C E S :1 H U T T , S H I M A N O W I T Z & P L O C K E R , E S Q S .2 B Y B R Y A N D . P L O C K E R , E S Q . B p l o c k e r @ h u t t s h i m . c o m3 4 5 9 A M B O Y A V E N U E W O O D B R I D G E , N E W J E R S E Y 0 7 0 9 54 A p p e a r i n g o n b e h a l f o f t h e A p p l i c a n t 5 G A C C I O N E & P O M A C O , E S Q S .6 B Y D I A N A P . M c G O V E R N , E S Q . O N E B O L A N D D R I V E , S U I T E 1 0 27 W E S T O R A N G E , N E W J E R S E Y 0 7 0 5 2 A p p e a r i n g o n b e h a l f o f t h e B o a r d8 9 B R U C E I . A F R A N , E S Q .10 1 0 B R A E B R U N D R I V E P R I N C E T O N , N E W J E R S E Y 0 8 5 4 011 A p p e a r i n g o n b e h a l f o f t h e O b j e c t o r , W e C a r e N J C o r p .12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 I N D E X O F E X H I B I T S2 3 E X H I B I T D E S C R I P T I O N4 O - 1 V E R O N A E N V I R O N M E N T A L C O M M I S S I O N5 R E S O L U T I O N6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 V I C E C H A I R M A N G U A R I N O : P B - 2 4 - 0 1 W e s t E s s e x1 H i g h l a n d s , I n c o r p o r a t e d . B l o c k 1 7 9 L o t 3 2 Z o n e I H - 1 ,2 W a r n e r R o a d . T h e a p p l i c a n t i s p r o p o s i n g t o d e v e l o p a3 4 9 6 u n i t i n c l u s i o n a r y m u l t i f a m i l y r e s i d e n t i a l4 d e v e l o p m e n t o n a v a c a n t 1 2 0 a c r e p r o p e r t y i n t h e5 n o r t h w e s t c o r n e r o f t h e T o w n s h i p .6 F o r t h e a p p l i c a n t , M r . P l o c k e r .7 M R . P L O C K E R : G o o d e v e n i n g e v e r y b

r e p r o p e r t y i n t h e5 n o r t h w e s t c o r n e r o f t h e T o w n s h i p .6 F o r t h e a p p l i c a n t , M r . P l o c k e r .7 M R . P L O C K E R : G o o d e v e n i n g e v e r y b o d y . B r y a n8 P l o c k e r , H u t t , S h i m a n o w i t z & P l o c k e r o n b e h a l f o f t h e9 a p p l i c a n t , W e s t E s s e x H i g h l a n d s , I n c .10 M S . M c G O V E R N : I b e l i e v e t h a t w e w e r e11 c o n t i n u i n g w i t h M r . A f r a n . I k n o w t h a t t h e r e i s a n o t h e r12 a t t o r n e y w h o w a n t e d t o m a k e a s t a t e m e n t , I d o n ' t k n o w i f13 y o u w a n t t o m o v e t o h i m .14 M R . G U A R I N O : M r . A f r a n , g o o d e v e n i n g , s i r .15 M R . A F R A N : G o o d e v e n i n g e v e r y o n e .16 W e h a v e , u n f o r t u n a t e l y , I l e t M s . M c G o v e r n17 k n o w , o u r t r a f f i c - -18 M S . M c G O V E R N : L e t t h e r e c o r d r e f l e c t D r .19 B a g o f f i s h e r e .20 C H A I R M A N B A G O F F : W e l c o m e l a d i e s a n d21 g e n t l e m a n a n d t h o s e o n z o o m . W e ' r e b a c k o n t h e r e c o r d .22 L e t t h e r e c o r d s h o w C o u n c i l P e r s o n S c a r p a i s23 w a t c h i n g a n d s p e a k i n g o n z o o m .24 M R . A F R A N : M r . C h a i r m a n , w e c o u l d n o t h e a r25

09/16/2025 06:29:53 AM Page 5 to 8 of 130 2 of 33 sheets 5 what you said.1 CHAIRMAN BAGOFF: Welcome ladies and2 gentleman. Thank you for the couple of moments.3 Council Person Scarpa is with us on zoom.4 Mr. Afran.5 MS. McGOVERN: Counselwoman Scarpa is6 visible on the screen and she's available by phone when7 she speaks. We will be holding the phone up to the8 microphone. If you can't hear raise your hand and I'll9 ask her to speak up.10 MR. AFRAN: But if we assume that the others11 on zoom still can't hear, is that correct?12 MS. McGOVERN: Yeah. But we can go forward13 because our notice clearly said we're going forward14 regardless whether zoom is working or not, after our15 last problem.16 CHAIRMAN BAGOFF: Mr. Afran, you have the17 floor.18 MR. AFRAN: Thank you.19 Good evening again. Glad we have voiced for20 council member.21 If anyone can't hear me, please let me know,22 I am trying to speak as loud as possible without23 shouting.24 We lost our traffic engineer temporarily25 6 tonight, Mr. Litwornia had an accident and is in the1 hospital, so I'm sorry to hear that. I hope he'll be2 available shortly.3 THE PUBLIC: Couldn't hear that.4 I said, good evening. And while we had our5 traffic engineer scheduled for tonight, unfortunately he6 had an accident and he's in the hospital. He will be7 out of the hospital soon, but I don't know what day he8 will be available, but he certainly can't be here today.9 In the interim however, we do have one expert10 witness, Bill Green from Litwornia Associates, to speak11 on utility issues and completeness in that respect.12 However, I do know there are two independent witnesses13 tonight, I'll just, as a curtesy, introduce them.14 I know Greg Mascera, who is the township15 counsel for Verona is here and Jessica Pearson16 independently is here for Verona Environmental17 Commission. So if I may just call up Greg Mascera,18 who's not one of my clients witnesses but is here.19 CHAIRMAN BAGOFF: Welcome, Mr. Mascera.20 MR. MASCERA: Thank you, Dr. Bagoff.21 Chairman and members of the board, my name is Gregory22 Mascera, I'm with Bannon, Rawding, McDonald & Mascera in23 Verona. I'm here tonight to represent the Township of24 Verona. And it's the Township of Verona's request that25 7 this board not allow this application as it has been1 presented. The application should not be approved and2 the basis of that goes way back. It's

a. And it's the Township of Verona's request that25 7 this board not allow this application as it has been1 presented. The application should not be approved and2 the basis of that goes way back. It's a historic basis.3 On September 25, 1980 the predecessor to the property4 owner or the applicant applied to Verona Planning Board5 for preliminary site plan approval. Was granted that6 preliminary site plan approval and subsequently got7 final site plan approval on July 28, 1983. And at that8 time the developer agreed to place deed restrictions on9 the property that is partially part of the property that10 is the subject of this development. And the developer11 agreed to do that as a condition of the approval of the12 Verona Planning Board. I had provided Jamilet earlier13 today with copies of the 19 -- September 25, 198014 resolution and the July, 28, 1983 resolution. And I15 just want to --16 CHAIRMAN BAGOFF: I'm going to interrupt for17 a second. Was the Township of West Orange, the West18 Orange Planning Board a signatory or involved in this19 agreement?20 MR. MASCERA: Yes. Congenitally absolutely.21 Because they were incorporated by reference that the22 applicant needed final site plan approval from the23 Township of West Orange.24 CHAIRMAN BAGOFF: Was the Township of West25 8 Orange and the Planning Board of West Orange involved in1 this specific agreement where we participated, a working2 participant, in the methodology used to create that3 agreement?4 MR. PLOCKER: It's a resolution. I'm sorry5 for interrupting.6 MR. MASCERA: No, but it is my understanding7 that they presented the same plan and had those8 conditions because it is referenced in the 19839 resolution. In fact it's more complex than that.10 CHAIRMAN BAGOFF: Whose resolution?11 MR. MASCERA: It's Verona's resolution.12 CHAIRMAN BAGOFF: Verona's resolution.13 MR. MASCERA: But it was subject to -- there14 was also litigation and there was also a --15 CHAIRMAN BAGOFF: So was the Township of16 West Orange and the Planning Board of West Orange17 obligated in any way, except through resolution between18 the Township of Verona and the applicant --19 MR. MASCERA: Well, they're obligated to20 provide sewer through this resolution, yes. There's a,21 like I said, it's more complex than, that what,22 respectfully, you're suggesting. Part of the23 application was that Verona was to supply sewer to

ide sewer through this resolution, yes. There's a,21 like I said, it's more complex than, that what,22 respectfully, you're suggesting. Part of the23 application was that Verona was to supply sewer to --24 sewer services to the lots that were in West Orange and25

3 of 33 sheets Page 9 to 12 of 130 09/16/2025 06:29:53 AM 9 this subdivision, which includes part of this applicants1 property.2 CHAIRMAN BAGOFF: Just For the record,3 you're speaking about the High Tor subdivision?4 MR. AFRAN: Mr. Chairman, you have to speak5 up. We can't hear you.6 CHAIRMAN BAGOFF: I'm sorry.7 Were you talking about the High Tor8 subdivision?9 MR. MASCERA: The High Tor Estates which10 include Howell Drive and Slayback Terrace.11 CHAIRMAN BAGOFF: I want to be clear because12 I think we're going a little left of center here. So13 the High Tor is a, is a project that was completed that14 has, that was approved in part by Verona, in part by15 West Orange. As I recall from the previous application,16 there was no access to the High Tor from West Essex17 Highlands into Verona.18 MR. MASCERA: Correct.19 CHAIRMAN BAGOFF: Correct. So this is a20 different application --21 MR. MASCERA: Correct.22 CHAIRMAN BAGOFF: -- And is this application23 in any way noted in that resolution?24 MR. MASCERA: Did this application start?25 10 CHAIRMAN BAGOFF: No, in that resolution.1 MR. AFRAN: Well, that resolutions from2 1980, so.3 MR. PLOCKER: Does he represent him or not?4 MR. MASCERA: No, but --5 MR. AFRAN: No, but -- excuse. But I am6 entitled to raise, as objectors counsel, an objection to7 the nature of the question, even though I don't8 represent Mr. Mascera.9 MR. PLOCKER: I have a lot of objections,10 Mr. Afran, but I'm staying quiet for right now.11 MR. AFRAN: Well, that may be, but I don't12 necessarily follow that philosophy.13 MR. PLOCKER: Apparently not.14 CHAIRMAN BAGOFF: The goal is that the board15 -- the goal is that the board understands what our16 obligation is. If A, under this resolution of the17 Township of Verona, because I imagine that's why Mr.18 Mascera is speaking to us. So Mr. Mascera --19 MR. MASCERA: Thank you, Doctor.20 Doctor, one of -- Paragraph 5 of the 198321 resolution provides that the Township of Verona supply22 water to the proposed development and sewage connections23 to it's present sewage facilities to those homes24 constructed within the West Orange part of the25 11 development as contemplated in the contract entered into1 between the Township of Verona dated December 20, 19822 and the resolution of the Township of West Orange dated3 December 21, 1982. Respectfully, I think it would be4 disingenuous to say West Orange can

tween the Township of Verona dated December 20, 19822 and the resolution of the Township of West Orange dated3 December 21, 1982. Respectfully, I think it would be4 disingenuous to say West Orange can wash it's hands of5 the terms of this resolution.6 CHAIRMAN BAGOFF: I didn't say that. I'm7 trying to get information to see how this -- this8 resolution specifically, I don't have it yet, is for the9 High Tor --10 MR. MASCERA: And part of this application11 has -- proposes a cut through to the High Tor section.12 One of the lots is proposing a cut through was in this13 High Tor subdivision.14 And going now to the deed restriction aspect15 of it, the owner, Paragraph 9 of the preliminary site16 plan approval says, that a "Restrictive covenant be17 placed in a deed of each individual lot in the entire18 development against any use other than one family home."19 So a cut through -- a road is not a one family home.20 They would be violating the terms of the resolution. As21 a board member, they did not file the restriction, the22 deed restrictions, so they are in violation of the terms23 of these resolutions.24 Now, what you're alluding to I believe is25 12 that this Planning Board has no obligation to honor the1 terms of this resolution. That is the prevailing law,2 there is no obligation. However, in this circumstance3 where West Orange and Verona had a contract between them4 and two resolutions approving this development, that,5 even though there is no legal obligation, there is an6 obligation as a neighboring town to honor the commitment7 of a previous -- of a developer pursuant to the8 approval.9 CHAIRMAN BAGOFF: Mr. Mascera, you just said10 that West Orange and Verona had a contract between them?11 MR. MASCERA: Correct.12 CHAIRMAN BAGOFF: So the Township of West13 Orange council signed some contract with the Township of14 Verona, is that what you're saying?15 MR. MASCERA: That's what I just read,16 Paragraph 5 of the resolution. There was a contract17 resulting from this development.18 CHAIRMAN BAGOFF: Would you provide the19 contract.20 MR. MASCERA: I will try in the archives,21 but it's referenced in the resolution.22 MR. PLOCKER: The contract regards -- excuse23 me, may I Mr. Chairman.24 Paragraph 5 of the resolution, what Mr.25

09/16/2025 06:29:53 AM Page 13 to 16 of 130 4 of 33 sheets 13 Mascera is referring to, is referencing a contract, it1 looks like to provide water and sewage to the single2 family homes. So I don't see how that, one it seems3 like it's a separate legal issue that may be better4 raised in another forum.5 But two, it has nothing to do with this6 specific application. I understand Mr. Mascera's7 argument. He is saying that the emergency access8 through two of the currently undeveloped single family9 lots is not permitted. We take a very different view.10 But, again, this Planning Board in West Orange is not11 the forum to litigate that.12 CHAIRMAN BAGOFF: Thank you.13 Mr. Mascera, I'm going to say this and Mr.14 Afran can object, but we understand what you're saying.15 I recommend that we get a copy of the agreement to Ms.16 McGovern so she could look at it, so we could see what17 the operative parts are, and one of the things is the18 Planning Board will take notice of it or the other thing19 is we may recommend you seek another judicial authority20 to take reference to it and we may have no standing.21 We're an innocent bystander so to speak, so until we22 have that information and can make a better decision,23 you can finish what you have to say.24 MR. MASCERA: Dr. Chairman, thank you.25 14 Going back, and I just wanted to highlight one other1 paragraph in the September 25, 1980 preliminary site2 plan approval. Paragraph 16 says --3 CHAIRMAN BAGOFF: Is this from Verona or4 West Orange?5 MR. MASCERA: This is from Verona.6 CHAIRMAN BAGOFF: This is from Verona.7 MR. MASCERA: That any change in the West8 Orange portion, West Orange portion of this tract with9 regard to lot arrangement, road layout, utility easement10 and storm drainage not specifically approved by this11 board will void this approval.12 CHAIRMAN BAGOFF: And that is something for13 higher legal authority to adjudicate, not us. I14 understand what you're saying and we take notice of it.15 So we would like to see the original resolution and16 understand and then Ms. McGovern will weigh in on it17 and, again, we'll make a decision how we take that18 information.19 MR. MASCERA: Okay. Dr. Chairman, thank20 you. We respectfully request that you do take that into21 account as a good neighbor. And then you keep in mind22 that this developer, the successor to the owner, is23 trying to take actions that

nk20 you. We respectfully request that you do take that into21 account as a good neighbor. And then you keep in mind22 that this developer, the successor to the owner, is23 trying to take actions that violate the approval24 conditions adopted by the Verona Planning Board and they25 15 are intentionally doing that and suggesting that they do1 not apply to this application and we take issue with2 that. Respectfully.3 CHAIRMAN BAGOFF: I have that and the Verona4 Planning Board always has stance, legal stance on their5 own. We will see where we sit with this.6 MR. MASCERA: And one further request would7 be --8 CHAIRMAN BAGOFF: Go right ahead, sir.9 MR. MASCERA: If the board chooses to10 approve this application, Verona respectfully requests11 that it be subject to appearing before the Verona12 Planning Board to review the conditions in the Verona13 Planning Board resolution.14 CHAIRMAN BAGOFF: I will also take that15 under advisement. We've never done that before and I16 don't know that we have the authority to do that. So we17 only want to do things that are in our ordinance and the18 prevailing law, but I thank you very much.19 MR. MASCERA: Thank you for hearing me20 tonight.21 CHAIRMAN BAGOFF: Thank you.22 MR. PLOCKER: May I, Mr. Chairman, for the23 record.24 CHAIRMAN BAGOFF: Mr. Plocker.25 16 MR. PLOCKER: It is the applicants position1 that if this board were to approve the application and2 grant emergency access through the proposed, the two3 single family lots as proposed, that it would not4 violate any prior approval from Verona or anywhere else.5 I just wanted to make that clear for the record.6 CHAIRMAN BAGOFF: Thank you, Mr. Plocker.7 Mr. Afran.8 MR. AFRAN: And it is the objectors position9 that on a separate aspect of that question that the10 access road in Lots 8 and 9, which is in a single family11 residential zoning district, is improper and illegal12 because it's an accessory use only to the single family13 residences, it could be built on Lots 8 and 9. It is14 not a valid accessory use to serve another zoning15 district such as this multifamily zoning district, and16 therefore the application is not complete because a use17 variance is first required to run a road through Lots 818 and 9, because it's not an accessory use to serve19 another zoning district. And therefore regardless of20 the resolution, I respect Mr. Mascera's testimony, there21 is

to run a road through Lots 818 and 9, because it's not an accessory use to serve19 another zoning district. And therefore regardless of20 the resolution, I respect Mr. Mascera's testimony, there21 is a completely separate question dealing with the same22 set of facts. That there is no use variance applied23 for. This board can't grant it and it is not a valid24 accessory use because it's an accessory use in another25