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

09/16/2025 06:29:53 AM Page 77 to 80 of 130 20 of 33 sheets 77 distinction between conditions of approval for --1 conditions of approval that require approvals of other2 agencies and the failure to include the essential3 elements of the utility water, sewage, etc., in the4 development application. Even though one needs to get5 approval from those other agencies as a condition of6 this approval the law still requires this board must7 have before it the actual plan for those fundamental8 functions. And so there's a distinction in the law.9 Yes, you need to get approval from the sewage authority,10 DEP, whoever it may be, but the board can't approve an11 application if it does not have those actual plans laid12 out. And that's the distinction that comes from Field13 v. Franklin Township and a series of other cases, and14 we'll brief it, you know, if necessary, but we'll have15 more argument on it, but that's our position legally and16 it is the law.17 MR. MacNEILL: Mr. Chairman, if I can18 respond to that.19 CHAIRMAN BAGOFF: Mr. MacNeill.20 MR. MacNEILL: The plans -- the last21 revisions for the plans dated October 28, 2024, do in22 fact show sewer service lines as well as water service23 lines as well as a proposed pump station on the plans.24 They also call out an extension of the water main from25 78 Kuzic Drive. So I would, based on that information, I1 do believe they have adequate water and sewer design for2 a board approval decision or board decision I'll say.3 MR. AFRAN: Actually, I -- the engineer for4 the applicant made it clear in his testimony that those5 connections were not known at this time. And in6 addition it's not enough to do what the engineer just7 described. The case law requires the feasibility of8 these plans to be shown to this board. It's not enough9 to say well, we think we could do a connection up here,10 someday we'll write that on the plan. One has to show11 the feasibility of using that connection. For example,12 if there's no flow capacity left on other pipes you13 can't just say well, we think we can tie into that, that14 satisfies our duties. The case laws very clear, the15 applicant must show the actual feasibility of what he16 suggested. So with respect, I can't say that I have a17 photographic memory of the latest version the engineer18 referred to, but merely showing well, we may be able to19 hook up here and we may be able

ggested. So with respect, I can't say that I have a17 photographic memory of the latest version the engineer18 referred to, but merely showing well, we may be able to19 hook up here and we may be able to put something here,20 doesn't address the feasibility. The actual details of21 how these will work have to be presented and they22 haven't been. And that's the distinction that the23 Appellate Division has made, that it's not enough to say24 well, we think we can hook up here, maybe we'll do the25 79 association system if we have to. You have to show that1 you can use to those things. That there's sufficient2 capacity, that there's sufficient capacity in the water3 system. What source will give you those 73 gallons a --4 thousand gallons a day. You can just say well, we think5 we --6 CHAIRMAN BAGOFF: Okay. Get to your point.7 MR. AFRAN: So that's the point. The8 feasibility is the clear condition required there.9 CHAIRMAN BAGOFF: We understand.10 Mr. Plocker.11 MR. PLOCKER: Mr. Afran is conflating our12 engineers testimony with the testimony of the witness13 here today. There was testimony about what the town14 system looks like off-site, that is not part of this15 application. Do we absolutely need to figure that out16 and get somebody to sign off on our TWA and get approval17 from the DEP. 100 percent. But he is conflating with18 what is shown on the site plan with other issues that19 were testified to previously.20 MR. AFRAN: Actually, I'm not conflating.21 It's not enough to say we someday can hook up there we22 think.23 MR. PLOCKER: That's not what we're saying.24 MR. AFRAN: You actually have to show not25 80 that you think you can get approvals later, you have to1 show this board how it will work.2 CHAIRMAN BAGOFF: We're going to leave --3 MR. AFRAN: Feasibility's the test.4 CHAIRMAN BAGOFF: -- this to Mr. MacNeil,5 our engineer, to come back and let us know where on the6 scale of it is. If it's there or it's not there, where7 we are with that.8 MR. AFRAN: We're going to another time and9 we also will make --10 CHAIRMAN BAGOFF: Yes.11 MR. AFRAN: -- a legal argument when we need12 to.13 CHAIRMAN BAGOFF: Yes. Thank you.14 Public comment -- I'm sorry. Questions.15 MR. AFRAN: Could I just ask, I'm sorry.16 Could I just ask Mr. Fagan, I hooked up the witness with17 the portable mic, I just want to know if it's working.18 I don't normally hook people up with

ns.15 MR. AFRAN: Could I just ask, I'm sorry.16 Could I just ask Mr. Fagan, I hooked up the witness with17 the portable mic, I just want to know if it's working.18 I don't normally hook people up with mics.19 CHAIRMAN BAGOFF: Do any members of the20 public have any questions for Mr. Green on his21 testimony? Please come up and give your name and ask a22 question.23 Come up right up. Remember, questions are24 if, when, what, where, how and it's got to be focused on25