September 3, 2025 Planning Board Regular 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 41 no excuse. There's no sight triangle, there's no pollution, there's no indication where the waters going to come from. There's no letter that says that water is available. There's no applicant agreeing with their accesses. The access points that are random access points to a degree because there's no -- the developer doesn't control any of access points and in places he does control some of the access the neighboring towns or neighboring -- or owners have restricted it and have not allowed it. And it does say in the RSIS that if in fact an application does not, does not, does not have everything you need it shouldn't be deemed complete. But the more important thing is the Residential Site Improvement take away the we'll do it later on at the final or preliminary approval. We'll do it under the preliminary approval. We'll do it as a condition of preliminary. Those things are not there now. You have to go in for a preliminary if you want to get an application approved and you don't want to follow RSIS, then you're going to have to go and, go to Trenton and make an application, and it's not under a de minimis exception. All these things are not de minimis exceptions. There's so many problems that I mentioned more than a dozen and there's more than a dozen I have left. I have pages of things that are still open items.

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 42 And the entire road system has to be redesigned. It's going to lead to flooding the way it is now and it's going to flood across and down through the existing roads and the adjoining development because there's no indication that anybody's changing the site -- the grades. Maybe you can go to the slides now. MR. AFRAN: Can I just have one moment, please. CHAIRMAN BAGOFF: Sure. (Whereupon, a short recess is taken.) CHAIRMAN BAGOFF: Back on the record. Thank you. Mr. Afran. MR. AFRAN: Thank you. There is, part of the report is a PDF slideshow. However, as it turns out Mr. Litwornia gave his verbal report first, which he was using and following along his written report. The PDF was illustrative, and going through it at your request Mr. Chairman, I realized we really didn't need to use it specifically. They're useful exhibits they highlight the different parts, we don't need go into now. Q. So let me just ask Mr. Litwornia, there's a PDF presentation presented along with your report, is that correct?

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 43 A. Yes. MR. FAGAN: You have to talk into the microphone. THE WITNESS: Yes. Q. And did you and your firm create that PDF presentation? A. Yes. Q. And is that PDF presentation illustrative of the elements of your written report that you discussed in your testimony? A. Yes, it does. Q. Okay. Thank you. MR. AFRAN: All Right Mr. Chairman, so we will be offering -- CHAIRMAN BAGOFF: Wait. Wait. MS. McGOVERN: So you want the slide show to be labeled the next exhibit? MR. AFRAN: No, I think it should be the last of this series. MS. McGOVERN: Okay. All right. MR. AFRAN: So I think we should go into that right now before any other questions or cross. So we just identified the report. So Mr. Litwornia -- I'm sorry. MS. McGOVERN: Let me just say something for

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 44 the record. We did mark Mr. Weisleder's letter as O-27. So our next exhibit marking will be O-28. And tell us what you would like it to be? MR. AFRAN: Okay. So O-28 I'm thinking we should have O-28A, B, C, D, etc., Just for clarity. Now, if you want it a different way that's fine. What I see here is a main report dated August 22, 2025. And that consists of a total of 31 pages. MS. McGOVERN: Okay. Q. Now, Mr. Litwornia, is that your initial document? I'll show you what I have. This is the main report, is that correct? This document. A. Correct. Q. Okay. MR. FAGAN: He has to speak into the microphone. MR. AFRAN: He said correct. I'd like to offer -- I'm good. I'd like to offer the initial report of 31 pages, that's one document, as Exhibit O-28. Now, I want to be certain, there is a slide show and I think that should be O-28B. MS. McGOVERN: O-28B. MR. AFRAN: I'm sorry, A. A. MS. McGOVERN: Okay.

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 45 MR. AFRAN: And so that would go into evidence as O-28A as in apple. Now, yeah. No, I think I did send one to you in error. The document we just marked O-28 does not say draft. CHAIRMAN BAGOFF: Let's be sure. Take a look at the report, see what you want to be posted, what's not to be posted so we get everything right. Okay. Thank you very much everybody for your indulgence here at this meeting and on zoom. We had some administrative things to clear up and at this time we're going to ask Mr. Litwornia some questions. Mr. Plocker. MR. PLOCKER: Okay. CROSS-EXAMINATION BY MR. PLOCKER: Q. Thank you Mr. Litwornia for coming. I know it's a long night and I know you don't live close, so I'm going to be pretty brief. I just have just a couple of clarifications/objections. One, a lot was made about, very much unknown about the traffic signal at the corner of Eagle Rock and Oval Road. You know, we've stated very clearly for the record, it's in the settlement agreement between the Township and my client. My client is 100 percent committed and obligated and this approval -- any

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 46 approval would be contingent upon my client obtaining approval from Essex County, because it is a county intersection that's governed by Essex County, and my client is obligated to fund that full improvement as an off track improvement. So I just wanted to state that for the record, unless somebody's going to disagree with me I think that's been pretty clearly established. Two, I just want to ask Mr. Litwornia, he talked about a lot of having the rights, you know, to access and come off the site. Mr. Litwornia, do you know who owns the emergency access lots up on Howell Drive? I forget the block but I know they're Lots 8 and 9. It's actually Block 179.17, Lots 8 and 9. Do you know who owns those lots? A. I believe the applicant has control over the lots but there is no way for people to drive off the lots because there were restrictions that were never recorded in the survey. Q. Okay. What restrictions are you referring to? A. That people from this lot would be able to use that lot. Q. Did you review the IH-1 zoning ordinance in West Orange? A. It was -- Q. I think he's testifying.

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 47 A. I looked at the plan and looked at the ordinance requirement. Q. Okay. My question was, did you review the IH-1 zoning ordinance in West Orange? A. I did not use it myself. I talked to somebody who did. Q. Okay. Who did you talk to? A. Joe Philapano and the planner. Q. Who, Joe Philapano? Are you talking about Joe Pannullo? A. Yes. MR. AFRAN: He also said, and the planner. I think he referred in his answer to two separate people. MR. PLOCKER: Okay. Please let -- CHAIRMAN BAGOFF: Let him testify. Q. Okay. What did Mr. Pannullo tell you? A. That the lots were owned by the property owner of this lot, but that there was no access to the other roads because there were restrictions in the original approval of the lots. Q. Did you ask him -- sorry. A. That there were restrictions on the use of the

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 48 lot for people leaving these lots to go to the other ones. Q. And did Mr. Pannullo provide you with those alleged restrictions? A. I did not receive a copy of them. Q. Did you ask Mr. Pannullo for those restrictions? A. No. Q. Okay. For the record, Section 25-19E.6 of the IH-1 zoning ordinance states, and I quote, "Emergency access ingress and egress shall be permitted to Block 179.17, Lots 8 and 9 to the north and Bayowski Road to the south." Have you ever seen that ordinance provision before? A. No. Q. Okay. Are your aware that my client has an easement through the West Essex Highlands Condominium to access the subject property via Oval Road? MR. AFRAN: I object to the phrase easement. It's not clear whether this is something that the developer gave himself on those other roads -- Oval Road. I strike that. Q. Are you aware of any legal right that my client may have to traverse the West Essex Highlands

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 49 Condominium from Oval Road to access the subject property? A. I'm not aware that they're completely unconstrained but that would show up in a survey map which shows the ownership and the crossation and that was not provided. Q. Did you do any kind of title search? A. That's supposed to be done as part of the application. Q. Okay. Well, this board does not decide ownership issues off-site. I understand that the objector group may very well argue that we don't have the right to access our own property, but that would definitely be for a different forum and I'll also state for the record, my client has the legal right to traverse Oval Road to get to Warner Road to get to this site. But you've never seen any documents that indicate that? A. No, I have not seen any. Q. Okay. MR. AFRAN: Well, Mr. Plocker can make that representation -- CHAIRMAN BAGOFF: Wait. Wait. Hang on. MR. AFRAN: Mr. Plocker can make that representation and at some point that ought to be proffered 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 50 MR. PLOCKER: It's, with all due respect Mr. Chairman, this board does not adjudicate ownership issues. MR. AFRAN: No, it does not adjudicate ownership but it can't approve applications unless there's evidence that there's a proprietary interest in the lands that must be traversed. The board can't act on an application unless the applicant shows it has a right to do so. CHAIRMAN BAGOFF: The applicant -- who directed the applicant sole rights to those lots? MR. PLOCKER: We would be more than happy to do so. CHAIRMAN BAGOFF: Okay. Thank you. MR. AFRAN: I just want to clarify the issue. CHAIRMAN BAGOFF: Absolutely. MR. PLOCKER: No ones going to sit here for 19 meetings and spend the time and resources to prosecute this application if we didn't have the rights. CHAIRMAN BAGOFF: I ask that you provide that, please. MR. PLOCKER: We can do that. CHAIRMAN BAGOFF: Thank you. Q. On September 11 of last year, Karl Pehnke, our