August 25, 2025, Planning Board Special Meeting Transcript - WEHI

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 81 surface run off, containing sediment, chemicals, and microplastics, into this drinking water source, and Such run off can lead to turbidity spikes, harmful algal blooms, and higher pathogen levels in this drinking water source, and The roughly 19,000 residents of South Orange receive their drinking water from the Canoe Brook; and Residential neighborhoods surrounding and adjacent to this core forest are flood prone, experience repeated flood events, and exist in the 0.2% annual chance (500-year) FEMA floodplain; and Open space properties and parklands downstream from this property contain floodways, and or exist in the 1% annual chance (100-year) FEMA floodplain, and experience repeated flood events; and Urban flooding can occur in places that are well outside of mapped floodplains and can be caused by rain falling on increased amounts of impervious surfaces overwhelming the capacity of drainage systems; and This forest contains tens of thousands of trees, providing green infrastructure for stormwater management as well as providing for the absorption of carbon dioxide, the production of oxygen and relief from heat island effect and essential ecological Habitat, and The proposed removal of untold numbers of

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 82 trees will exacerbate flooding, degrade the core forest and displace hundreds of native species; and The applicant is not adhering to the most current stormwater rules and as such are not planning onsite stormwater management that would act to better protect all surrounding properties. Given all this, the South Orange Environmental Commission echoes its formal call to the Township of West Orange to reject the proposed 496 unit development on said lands and to preserve the 120 acres of forested land in perpetuity. We will send a copy of this letter to the Township of West Orange Mayor McCartney, the West Orange Council, an the West Orange Planning Board. Sincerely, The South Orange Environmental Commissioners." CHAIRMAN BAGOFF: Thank you. MR. AFRAN: May I note for the record that this letter lists the members of the Commission and is signed by Kathleen Grant, the Chair, and signed by Olivia Lewis-Chang, the South Orange Village Council Member who is the liaison to the Commission. CHAIRMAN BAGOFF: Thank you. THE WITNESS: And one of the environmental

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 83 commissioners is also on the South Orange Planning Board. So they're aware of the Planning Board matters. MR. AFRAN: Thank you very much Ms. Garreffa. We appreciate it. We call Ms. Michele Byers. Her thumb drive I think is with Mr. Fagan. MR. FAGAN: She can come right up here. MR. AFRAN: By way of introduction, Ms. Byers is the prior executive director of the New Jersey Conservation Foundation. That's the same organization that currently employs Dr. DeVito, who testified on forestry matters and she will be testifying as to the preservation value of this particular site. Not in terms of asking this council, which she doesn't have the authority to do -- to designate preservation, but to speak of the preservation value because that relates to the need to avoid ecological harm under the MLUL and under the ordinance as reviewed. Ms. Byers, I will -- well, you need to be sworn in. MS. MCGOVERN: Ms. Byers, please rise your right-hand. Do you swear or affirm to tell the truth the whole truth and nothing but the truth. THE WITNESS: Yes.

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 84 MS. MCGOVERN: Would you please state your name and spell you last name. THE WITNESS: Sure. Michele Simone, B-Y-E-R-S. M I C H E L E S I M O N E B Y E R S, having been duly sworn under oath testifies as follows: MR. AFRAN: Ms. Byers, I understand you had been the executive director of the New Jersey -- I need to qualify you. I understand you have been the New Jersey executive director of the New Jersey Conservation Foundation, is that correct? THE WITNESS: Yes. MR. AFRAN: How many years did you hold that position? THE WITNESS: 20. MR. AFRAN: When did you retire? THE WITNESS: 2021. MR. AFRAN: 2021. And I also understand you had served term or terms on the State Planning Commission? THE WITNESS: Yes. For 20 years I was vice chair of the New Jersey State Planning Commission under Governor Whitman and Governor Florio. MR. AFRAN: In your professional work, what role did the preservation of land play in the work you

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 85 did at the conservation foundation? THE WITNESS: Well, the conservation foundation handles land resources throughout New Jersey for the benefit of all and I was in charge of a staff of 37 professionals who worked to preserve land. Throughout my tenure we preserved over 60,000 acres. MR. AFRAN: And what role did you play in the preservation of that land in your capacity? THE WITNESS: Really guiding the staff into providing a vision for what our land acquisition program should be. Where we should acquire land, for what purposes and how it should be managed with the public. So pretty much laid out the vision and I encouraged and empowered the staff to effectuate the program. MR. AFRAN: We offer Ms. Byers as a witness in the field of preservation value of land. Again, we are asking this board to designate the land or value it numerically. She's speaking in terms of the ecological value that we -- our position is that must be avoided through the site plan application. CHAIRMAN BAGOFF: This has nothing to do with the zone plan and as you stand, where you are going, has nothing to do with the zone plan. And though it is in the MLUL and it's -- MR. AFRAN: Can you speak up.

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 86 CHAIRMAN BAGOFF: It is in the MLUL, it is not directly related to our zone plan. So it is not directly related to the zone plan. It is very nice, we understand the things that you're going to say, it was proffered by many of the experts that have been here, but saying these things, does not add anything to the information by experts that the board will use to judge. MR. AFRAN: But it's not necessary that it relates directly to the zone plan, that is not this boards only responsibility. This board has the responsibility under the MLUL to recognize and evaluate and avoid undue ecological harm. In fact the expert for the planner in fact conceded that where a zoning ordinance eliminates or doesn't not even have provisions for ecological protection, the MLUL specifically requires that a board analyze site plan applications for said purposes. And so this boards focus is not limited solely to the zone plan. If that were the case a vast array of testimony that comes here would never come about. Traffic analysis for example. CHAIRMAN BAGOFF: The MLUL also recommends using experts, which we had, so not to say you're not credible. However, the MLUL also lets us use experts for those issues. And then we can use objective information and testing that's presented to the board.

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 87 So for, again, and I'm not saying that your information is not valuable, it is just that it's not expert testimony and it can be used as basic public comment. Somebody who worked in the area, I see this, I know that, I saw this, as opposed to these are the criteria that anybody could use to judge this, it is set by standard or by ordinance or by law, which is not what we're talking about here. This is somebody who looked at things, worked in the area, I understand that, but the board has to have expert information based on the zone plan and the state plan. So the state planning board has testified, doesn't tell us this is not an area or it is an area, that's why we're listening to all this information. So I am going to ask our counsel to weigh in on this. MS. MCGOVERN: Okay. So I have -- my biggest issue is this testimony sounds like it was testimony that should have been presented at the time when the ordinance was being developed, because it's a change to the ordinance itself. MR. AFRAN: That was not our purpose. The purpose here -- MS. MCGOVERN: Let me finish. Okay. So if you're trying to -- the board can't void out this ordinance because environmentally they think it has a

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 88 better idea what should have been there or what should be done, first of all Second of all, this is private property, this isn't up for -- this isn't conservation property. Its owned by an individual who wants to develop it and has the ordinance that establishes that he can develop it, they can develop it in accordance with that ordinance. So I think we're going back to the genesis of the ordinance and whether it was good planning or not and that's not what the board can do. The board is only listening to whether this application satisfies the ordinance and whether there are certain things about this application that just can't be done or which will facilitate this project under the case law. If something is being presented and there's no information whatsoever provided in the record that water came onto this site or that certain aspects of, that you couldn't get electricity out there. That it was to remote. That's not what we're dealing with this witness. I don't -- you have to give us a proffer as too why this is related to what the board is allowed to consider. MR. AFRAN: Let me respond then, I appreciate those comments. First of all, just because the developer owns land and just because the developer has the right to develop, does not mean the developer

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 89 has a free hand. The developer is constrained by an enormous range of rules, regulations and public policy requirements, some of which are specific in the MLUL. Now, just because an ordinance may have lifted most or even all of the ordinary environmental requirements in the township for developers, does not mean the board does not have a duty to analyze the risk of environmental harm and whether it's necessary to avoid it. The MLUL specifically requires that analysis. And if a town council should remove it, my view, foolishly, all of those requirements in the MLUL stands to as the required source of guidance and the board still must conduct the environmental analysis. And so when we have a land preservation professional, who has spent her career determining whether land is suited and necessary for preservation because of its qualities, that relates directly to the policy mandate the board must adhere to under the MLUL. Which is to look at a site plan application for avoidance of ecological harm or major ecological harm. So when a land professional says this is land that has certain preservation value that normally would be sought in the profession for protection, that informs the board of the value of the land in terms of the need to avoid environmental and ecological harm and so it is directly within the purview

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 90 of the boards analysis and duty. Just because she's not offering specific data points doesn't mean she doesn't have expertise that's within the boards need to hear and the right of the objectors to offer. MS. MCGOVERN: I still think it goes to the challenge genesis of the ordinance to begin with, but. MR. AFRAN: Well, with respect -- CHAIRMAN BAGOFF: We have also heard from people on stormwater management, on forestry, on birds, small animals, the environment, geologist, planners, so we have heard each one of the areas that the MLUL specifically prescribes. So saying now that the board should listen and take note that we may take away the right of the applicant to continue their application because we feel, the board feels that the state was wrong, the country was wrong and the township was wrong, you may challenge this in another venue, but the board is looking at, do the buildings fulfill the requirements or not. Does the area maintain or enhance stormwater management and the forest for it be salvageable and the buildings are to be useable. Is there enough roadway, is there enough safety and welfare to build in this area. So saying to us now we should now add on another layer, and this is my opinion, anybody on the board could chime in, that we should add another area to say