September 17, 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 25 111 appropriate. I think we already committed to it. That was a year ago. MR. MacNEILL: Okay. Great. That's all I have. MR. PLOCKER: Mr. Chairman. CHAIRMAN BAGOFF: Mr. Plocker. MR. PLOCKER: Yeah, I happened to be looking through my handy dandy litigation bag and I happened to have the easement agreement that allows, not everything that we've been talking about, but that allows my client to utilize the roads within the condominium for this particular site in addition to any portion of Oval Road which may be owned by the condominium association. I do have multiple copies and I would like like to mark it, I guess as Exhibit A-6, if I'm correct and I do have a copy for Mr. Afran and the entire board. MR. AFRAN: Can I see it first before we mark it. MR. PLOCKER: Absolutely. MS. MCGOVERN: Which easement? I think we are getting a few of them. MR. PLOCKER: It's one document. I will let Mr. Afran look at it and then I'll -- (Whereupon, a short recess is taken.) MR. AFRAN: A-6.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 112 CHAIRMAN BAGOFF: You want to describe what this is, Mr. Plocker? MR. PLOCKER: I will. I will try to be brief. This is an easement agreement made the 14th day of February, Happy Valentines Day, 1989. It was between West Essex Highlands, INC., and West Essex Highlands, INC. I will note for the record that there is -- it's between the Party of the First Part and the Party of the Second Part. And Mr. Afran can correct me if I'm wrong but I'm going to paraphrase to save us some time, that West Essex Highlands, Inc. owned both property that now comprises the West Essex Highlands Condominium in addition to the property that this application is about here today. I'm going to skip the, the Whereas clauses recognize the ownership interest of West Essex Highlands and both properties. It says, the two properties are adjacent to each other. It advises that the party of what is now the condominium, which is to develop its property into a condominium known as West Essex Highlands, a condominium consisting of 300 units, recreation facilities and a detention/retention facility. Whereas, the party of the Second Part propose to develop its property in the future. Whereas, this Agreement shall set forth 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 25 113 respective easements granted by the parties to each other in order to assist each party with the development of its respective property. And I'm not going to read every paragraph because we are talking right now just about the road access through the condominium property. Paragraph 1 says, The party of the First Part, meaning the current condominium, grants the Party of the Second Part, its successors, and assigns, the perpetual right to connect into and use, in connection with others, without any restrictions and conditions except as may be agreed upon by the parties, their respective successor and assigns, all the roadways, public or private, which are located on the property of the Party of the First Part. Meaning the property that is currently the West Essex Highlands Condominium. CHAIRMAN BAGOFF: Thank you, Mr. Plocker. MR. PLOCKER: Oh, and I should state for the record, that even though there's a handwritten note that appear that it's recorded March 3, 1983, I think that was somebody's error. If you turn it upside down and look at the clerk stamp towards the bottom of the first page of the document, it does look like March 3, 1989, which would make sense since this was signed on February 14, 1989. MR. AFRAN: Could I just ask Mr. Plocker 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 25 114 clarifying question. CHAIRMAN BAGOFF: Mr. Afran, go ahead. MR. AFRAN: The Party of the First Part is, I think you answered this, but I want to be sure. I realize you're not a witness but you may know. MR. PLOCKER: I was just referencing a public recorded document. MR. AFRAN: No, I understand. MR. PLOCKER: Which I should state for the record is recorded at the Essex County Clerks Office. It's Book 5067, Page 773. MR. AFRAN: And the West Essex Highlands plural is known as the Party of the First Part. West Essex Highland, singular, Inc., singular, is known as the Party of the Second Part. Now, the West Essex Highland, Inc. singular, is the entity that's seeking to make this application that's before the board today, is that correct? MR. PLOCKER: Yes. MR. AFRAN: Okay. So that company, the Second part is the actual applicant here today? MR. PLOCKER: Bruce, if you're saying there's an S missing, there could be a typo. MR. AFRAN: No, I asked that -- MR. PLOCKER: I don't know. I don't know

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 115 the answer. MR. AFRAN: I don't know. MR. PLOCKER: I don't the answer to that question. My understanding was the that same entity both -- MR. AFRAN: Oh, okay. MR. PLOCKER: -- owned both properties at the time that this -- MR. AFRAN: I wasn't -- MR. PLOCKER: -- agreement was made. MR. AFRAN: No, I wasn't suggesting that. I actually thought they were intentionally written differently. Two separate corporations. MR. PLOCKER: I don't believe so. MR. AFRAN: Thinking it's the same corporation giving itself an easement over part of one property? MR. PLOCKER: Yeah, 100 percent. It was common ownership. MR. AFRAN: Okay. I just wanted to clarify that. Thank you. MR. PLOCKER: Thank you. MR. AFRAN: Our position is it says what it says. What legal meaning it has, whether it's still enforceable, it's subverted by any later documents is

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 116 something we'll discuss later. CHAIRMAN BAGOFF: Good. Okay. Thank you. MR. AFRAN: So I'll have some questions for Mr. Pehnke. I'll have some questions for Mr. Pehnke. CHAIRMAN BAGOFF: Mr. Afran. MR. AFRAN: Thank you. Mr. Pehnke, you mentioned that the emergency access roads could be opened "in an extreme event" and you used the word extreme. What did you mean by, "extreme event?" THE WITNESS: I don't know. We could all create various scenarios. I've heard a lot of them through 40 years, but let's say for some reason Oval Road collapsed, like Route 80 did between Bongart and Rappleye and couldn't be opened to traffic. That would be an extreme event. MR. AFRAN: If what happened? THE WITNESS: If the road collapsed. MR. AFRAN: Oh, the road collapsed. THE WITNESS: It wasn't traversable. MR. AFRAN: Well, the road doesn't normally collapse. MR. KLEIN: A car crash. THE WITNESS: A car crash is more, you know, short-term potentially, depending upon the severity.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 117 MR. KLEIN: That's true. THE WITNESS: An extreme event is something that closed it for a longer period of time. Shorter period of time like a car crash, you know, may or may not close the road completely. You might be able to alternate traffic. It really depends. There's a lot of different scenarios. MR. AFRAN: So you don't know at this point to what extent the emergency services in the municipality would regard an incident as extreme so as to mandate opening these access roads, do you? CHAIRMAN BAGOFF: I think two things, before we go demographical. Two things here. First of all, that's up to emergency services department of West Orange and Essex Fells. You're looking for definition, those people can probably provide the definition. Secondly, I think we need to have the documentation in our hands first to see at what level access is allowed. Once you have that then you can ask the second question and then we go to the emergency access people for a better definition. Because we're looking to definitions. MR. AFRAN: Well, certainly that's fair, Mr. Chairman. I assume Mr. Pehnke can return if we need to following that documentation.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 118 CHAIRMAN BAGOFF: Sorry? MR. AFRAN: I assume Mr. Pehnke can return if we need to following that documentation. CHAIRMAN BAGOFF: That's a legal matter, not a matter of the RSIS okay with it. If it's a legal matter, if everybody finds that there is another interpretation that's needed, yes, we'll ask the applicant. However, at this time Mr. Plocker said he's going to provide all that documentation, so let's see what the documentation says and then we can go from there. MR. AFRAN: Fair enough. I have no problem with that. CHAIRMAN BAGOFF: Good. Thank you. MR. AFRAN: I have one clarifier. We talked a lot about the access roads and I'm not sure anyone has actually put together the actual circulation through and out. So I just want to ask you a question. Now, if you're in Building D, and I don't know if you want the circulation plan or not, you can probably do this by heart. If you're in Building D and you want to get in your car from that underground lot and go out, what would you do? What road would you use to get out. THE WITNESS: You would basically go down Building D to the roundabout and come down Warner Road.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 119 MR. AFRAN: Okay. So you'd go to the roundabout. You wouldn't go to Kuzik, you'd go down to the roundabout down to Warner Road directly? THE WITNESS: The most direct route would be down Warner Road directly. MR. AFRAN: Okay. Now, if you were in Building D or A for example, and wanted to do the same thing, you could do that or you could go the other way down Kuzik down to Warner? THE WITNESS: Depends on the decision of this board. We suggested to the board in accordance with the settlement agreement with the Highlands that we concur that it can be emergency gated, which means that everybody would be directed to Warner Road and we're fine with that. If it was open to traffic and certainly if you are in A, B or C you would make your choice in the morning as to which way you go and we all make choices in the morning, different routes. My wife and I basically go in the same direction every morning and we both take two different ways to get there and I'm sure that's probably true, so sometimes you're sight seeing, sometimes you want to make a right instead of making a left, but that's really immaterial. If the boards makes

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 120 the decision to do the emergency access then everybody's going out Warner. MR. AFRAN: Okay. If Kuzik is an emergency than everyone goes out Warner no matter want building you're in and if Kuzik was open and you go through Kuzik it still feeds on to Warner ultimately? THE WITNESS: Ultimately, that's right. MR. AFRAN: And than ultimately the only way out from this complex is, from that point, is Warner making a left turn onto Oval and out to Laurel? THE WITNESS: Correct. MR. AFRAN: Okay. I just want to clarify this. There's one way in and one way out in the ordinary day to day activity? THE WITNESS: For the day to day activity, correct. MR. AFRAN: Okay. Just one second. Now, let's just clarify, so it's one place in the record. Assuming this project were approved, assuming this project were built, what would be the emergency access roads as anticipated right now in the plan?