November 10, 2025 Planning Board Special Meeting - WEHI Transcript

01/05/2026 03:19:18 PM Page 85 to 88 of 112 22 of 28 sheets 85 asked a question, we both got answers to our questions.1 MR. AFRAN: You asked about all the2 safeguards and I submit obviously not every single3 element of safeguard in every plan comes before a4 planning board.5 Would you agree, Mr. Kleinberg? That the6 Q. question whether a building can collapse or destabilize7 a slope if the displacement is improper is fundamental8 to the engineering?9 It's fundamental to the engineering to have the10 A. bearing capacity that the ground can handle including11 the effects of the slope and it's possible to do that,12 in my experience, for the building where it's located.13 In your experience for the building where this is14 Q. located?15 Yeah.16 A. You mean this building?17 Q. In this type of condition.18 A. In this type of condition?19 Q. Right.20 A. Is it considered fundamental to engineering of a21 Q. building in circumstances like this to know whether or22 not adequate displacement is in the plans, "yes" or23 "no"?24 Can you repeat the question.25 A. 86 MR. AFRAN: Would you, please.1 (The court reporter reads back the last question2 as requested.)3 I believe at this stage of design you can operate4 A. within an average area of building load as Langan did.5 My question was, my question was, is it6 Q. fundamental to engineering of a building in these7 circumstances to know in advance whether or not adequate8 displacement is built into the plans to avoid the risk9 of destabilization of the slope? Is that a fundamental10 engineering element.11 There are building codes that the designer12 A. eventually has to employ in order to get approval to13 build the building.14 Mr. Kleinberg, I am asking a very direct15 Q. question. In your opinion as a professional engineer is16 it a fundamental engineering question to know whether17 the plan will contain adequate displacement in18 circumstances where it is to be built on or near a slope19 that could cause destabilization. Is that a fundamental20 engineering element? That's my question.21 At this stage of design you don't need to know22 A. that.23 I am asking you a very simple question, it's a24 Q. yes or no question. Is it a fundamental engineering25 87 element to know in advance that the displacement1 necessary to avoid destabilization of the slope is built2 into the plan, "yes" or "no"? Is that a

or no question. Is it a fundamental engineering25 87 element to know in advance that the displacement1 necessary to avoid destabilization of the slope is built2 into the plan, "yes" or "no"? Is that a fundamental3 engineering element of a plan. That's my question.4 I'm not trying to avoid answering the question.5 A. I'm trying to figure out --6 Don't figure my question out. I am asking you a7 Q. question, I am cross-examining you, I have that right.8 Let me repeat it.9 I know that.10 A. I'm not trying to fight.11 Q. I am not trying to avoid anything.12 A. Let me rephrase it. Let me say it again directly13 Q. straight forward. Is it a fundamental engineering14 element of a plan to know there will be adequate15 displacement in circumstances where it is built on or16 near a slope that could be destabilized?17 At this stage of design you don't need to know18 A. every detail of the building. You need, I can tell you19 as an experienced engineer that it's doable in this20 case.21 Let me just ask it slightly different. Is22 Q. adequate displacement --23 What's displacement?24 A. I don't know what you see. You told me, don't25 Q. 88 worry about it. It's not like the trucks, because when1 they build it they're going to have all these2 foundations that will displace the weight. That's what3 you said.4 I was talking about people driving front-end --5 A. huge pieces of equipment back and forth willy-nilly6 across the slope and that should be avoided. I wasn't7 talking about the building.8 Yeah, I was and that's how we got into the9 Q. subject because you said, well, if you put this heavy10 earth moving machine that can destabilize the slope. So11 I said to you, very logically, if that could destabilize12 the slope can a very large structure of this nature, a13 very heavy structure also cause that destabilization.14 That's what I asked. And you said to me, no, because15 you have displacement.16 No, if it's properly designed, and it could be17 A. easily properly designed.18 Right. And we don't have that design in front of19 Q. us yet?20 No, because you would go through stages of21 A. design.22 Just answer yes for no, do we have the design in23 Q. front of, "yes" or "no"?24 MR. PLOCKER: Let him answer the question.25

23 of 28 sheets Page 89 to 92 of 112 01/05/2026 03:19:18 PM 89 Okay. If that's the simple question, the final1 A. design is not in front of us now.2 And here's another simple question. Is it a3 Q. fundamental engineering element of a plan to know that4 it will have adequate displacement to avoid5 destabilizing the slope, "yes" or "no"? Is that, is6 that a fundamental engineering element of a plan.7 I am not trying to avoid answering the question.8 A. I don't know.9 Q. Your question is kind of cockamamie.10 A. You think so?11 Q. So I don't quite know how to answer that12 A. question.13 Is it a fundamental engineering element to know14 Q. there's adequate displacement of the structure to avoid15 destabilizing a slope?16 Yes.17 A. Thank you.18 Q. MR. KLEIN: Can I ask a follow up.19 CHAIRMAN BAGOFF: Mr. Klein.20 MR. KLEIN: When do you need no fundamental21 engineering to know the bearing capacity and the weight22 of the building for the final design of the footings?23 THE WITNESS: For the final design. When it24 goes to final design.25 90 MR. KLEIN: Right. And if you had to, you1 may have to drive piles, you may have to -- you could2 always design a footing that will bear the weight of a3 building?4 THE WITNESS: There's stages of design and5 this is very preliminary where you run on average area6 building loads, as Langan had done in this case, and it7 is in my opinion suitable to do that.8 MR. KLEIN: So a thousand pounds per square9 foot is a little bit conservatively high or is it --10 THE WITNESS: No, it's not conservatively11 high, but it's in the range.12 MR. KLEIN: Okay.13 Do you have any idea what they plan on, other14 Q. than that model that they spoke to?15 What model?16 A. Withdraw the question.17 Q. Well, I'm not going to pursue that subject18 anymore, we've exhausted it. Our view is it is a legal19 question, the question of what the board needs to have20 and when and I don't know that the engineer himself is21 the one to decide that issue. We believe it's a legal22 question, that the board has a duty under the MLUL to23 ascertain for itself all material elements of safety and24 public interest in the plan. And in this particular25 91 instance it is our position that because it is to be1 both on and near a slope that could destabilize based on2 a design or other issues that that is a fundamental3 issue that must be known by the board, even though

our position that because it is to be1 both on and near a slope that could destabilize based on2 a design or other issues that that is a fundamental3 issue that must be known by the board, even though other4 issues may not be of such material moment that the board5 needs to know all of them. Where the question arises6 that a building if not properly displaced could7 destabilize a slope, in our view legally that is what8 the MLUL says is information that must be heard by the9 board. So it's our position that that cannot be10 submitted legally later as a condition of approval or11 leave it for the construction office. This board must12 know that the public is protected by the nature of the13 design, that's why we are here. If we didn't need to do14 that but leave it to the construction official virtually15 all the issues we talk about wouldn't be necessary. So16 it's our legal position, and we can discuss this later17 in the case, that it is not adequate to say well, it can18 be supplied later after approval. Our position is the19 Municipal Land Use Law requires as a matter of law all20 information relating to the public safety to be known by21 the board if it's of a material nature and certainly22 where a building could destabilize a slope if it's not23 adequately displaced that is not preliminary, that is24 your responsibility to know in advance. That is our25 92 legal position. That's why I've asked you these1 questions and I understand the engineer has his view,2 legally we say you must have this information. We can3 discuss this when it is appropriate in the case, perhaps4 closing arguments.5 CHAIRMAN BAGOFF: Thank you. As the hour6 grows late, Mr. Afran.7 MR. AFRAN: Well, I could leave it for now,8 obviously.9 CHAIRMAN BAGOFF: The public also has10 questions.11 MR. PLOCKER: Chairman Bagoff.12 CHAIRMAN BAGOFF: Mr. Plocker.13 MR. PLOCKER: It's nine minutes left, I just14 have two or three questions, kind of while the iron is15 hot. Would that be okay?16 MR. AFRAN: Of course.17 MR. PLOCKER: Oh, thank you.18 MR. AFRAN: Mr. Plocker identifies himself19 as the board, I have no objection.20 CHAIRMAN BAGOFF: Thank you. Mr. Plocker.21 Okay.22 Q. Thank you, Mr. Kleinberg. I will be very brief.23 I believe the additional model, with a D, testing at the24 surface that you represented you said they didn't. I do25

01/05/2026 03:19:18 PM Page 93 to 96 of 112 24 of 28 sheets 93 believe it's referenced in the Langan report from June1 18, which was a revision to their original report in2 January. I don't know if you have that report in front3 of you.4 MR. AFRAN: Would you cite a page number?5 It was in the June 18 report.6 A. Okay. Yeah, I just wanted to confirm it and Mr.7 Q. Kleinberg can certainly go back and Mr. Afran can8 definitely check. I'm looking at Page 8 of 13 of the9 memo entitled, and my contacts are going a little10 bonkers at this late hour, so you will excuse me. It's11 the memo, the Re line is the, Global Slope Stability12 Study For Building D. It was attached to that June13 Langan report and on Page 8 of 13 under, there's a14 groundwater section. The last sentence says,15 "Therefore, our primary analysis which includes16 groundwater and our secondary analysis assumes a high17 groundwater level to be at the top of the decomposed18 rock/very dense granular soil there." So that is the19 additional model that you were referring to?20 No.21 A. No?22 Q. He says at the top of the decomposed rock.23 A. And soil layer. Maybe it's not written very24 Q. artfully, but it says the soil level as well.25 94 I think that they -- what they show is the top of1 A. the decomposed rock about two feet over the rock2 surface. It's not at the ground surface.3 Correct. But then it also does say, and very4 Q. dense granular soil layer?5 Right. But -- okay, yes. That's what it says.6 A. MR. AFRAN: Brian, are you saying that's7 information still to be provided but is in that report?8 MR. PLOCKER: I'm just saying that, you9 know, Mr. Afran, you were questioning whether this was10 something that was recently done or done back then. And11 I'm saying this report says it was modeled back then.12 MR. AFRAN: That's my question. That's13 relating to what we were discussing earlier.14 MR. PLOCKER: Yes. Yes. And I believe the15 only thing Mr. Kleinberg was asking for was out for16 compliance.17 MR. AFRAN: Right. We'll check that. I18 appreciate that. Thank you.19 CHAIRMAN BAGOFF: Mr. Plocker, I'd like Mr.20 Kleinberg to get everything he needs to evaluate for the21 next meeting.22 You get that, when you come back for the23 next meeting, Mr. Kleinberg.24 THE WITNESS: I was planning going on25 95 vacation.1 MR. PLOCKER: Where are we --2 CHAIRMAN BAGOFF: So our attorney is going3 to give Mr.

t, when you come back for the23 next meeting, Mr. Kleinberg.24 THE WITNESS: I was planning going on25 95 vacation.1 MR. PLOCKER: Where are we --2 CHAIRMAN BAGOFF: So our attorney is going3 to give Mr. Plocker a list of the things for you to4 review and you will come back the next meeting and you5 will answer all the questions that are open ended.6 MS. McGOVERN: I think that you already gave7 a list in your testimony. I will chat with you after8 the fact to make sure I have it correct.9 Are you really going away?10 THE WITNESS: I was planning to.11 MS. MCGOVERN: So --12 MR. AFRAN: Should we know Mr. Kleinberg's13 vacation first.14 MR. PLOCKER: When is his vacation?15 CHAIRMAN BAGOFF: December 3. Are you16 available December 3, sir?17 THE WITNESS: Certainly I will be.18 MS. McGOVERN: December 3, but there's a19 caveat. The board is thinking of a special meeting20 beginning at 1:00 PM on Wednesday, December 3 ending at21 5:00 and then resuming at 6:30. I don't know what the22 Chairman wants to do, we have a regular meeting at 6:0023 o'clock because we do have agenda items, an application24 that was on our last meeting that the notice wasn't25 96 right and they wanted to be carried and we do have to go1 into executive session to discuss the litigant matter on2 a proposal. So it would be the afternoon of December 33 about 1:00 o'clock. Some board members can't make it4 for the afternoon session but we do have a quorum and I5 sent out feelers. The thought being, finish that6 testimony at 5:00, if that's the last witness, then7 begin public comment and continue public comment into8 the evening when we finish.9 MR. AFRAN: How many hours are we supposed10 to work that day?11 MS. McGOVERN: I am going to say this, when12 I sent out, after discussing this with the Chairman, I13 sent feelers to see what board members would be14 available, these wonderful board members who all have15 jobs, we have more than, I think we have six people here16 who, six or seven who are able and willing to give up17 their paying jobs in the day and volunteer their time.18 So, yeah, that's a lot of hours and --19 MR. AFRAN: I only meant it in terms of all20 our mutual effectiveness over that long a period of21 time.22 MS. McGOVERN: But we would take a break in23 between the two sessions. I understand and hear you, we24 are all dying right now.25

25 of 28 sheets Page 97 to 100 of 112 01/05/2026 03:19:18 PM 97 MR. AFRAN: So we might go 11 hours1 basically. Well, no, not with breaks.2 MS. McGOVERN: Not starting until 1:003 o'clock in the afternoon.4 MR. AFRAN: We end at 5:00, take a break and5 start at 6:30, is that the idea?6 CHAIRMAN BAGOFF: End at 5:00, 5:15 and7 start again at 6:00.8 MR. AFRAN: So the idea would be public9 comment would be begin in the evening most likely, is10 that the idea?11 CHAIRMAN BAGOFF: We're going to try.12 MR. AFRAN: Special session would be for13 this testimony?14 CHAIRMAN BAGOFF: We can get done with his15 testimony quickly, we can start public comment.16 MR. AFRAN: Okay.17 CHAIRMAN BAGOFF: Okay. Keep thinking. I'd18 like the Mayor of Essex Fells to come up, he has19 something to say. You keep thinking, I want to get him20 on the record, please.21 THE PUBLIC: Thank you, Mr. Chairman. As I22 mentioned on September 17, 2025 at the Planning Board on23 this application the board asked me to come back to24 discuss Oval Road. A question arose whether it was a25 98 private road or public road, so I have documents that I1 sent to the board secretary on October 29, Ms. McGovern2 has them, Mr. Plocker has them. I'd just like to3 introduce those exhibits for the record.4 MS. McGOVERN: So that would be -- how many5 were there, I forget?6 THE PUBLIC: Four documents with a cover7 e-mail from me.8 MS. McGOVERN: So that would be O-31, 32, 339 and 34. Can you hand them to Jamilet, she will mark10 them and then they'll go onto the agenda. They are all11 -- if you could just describe them.12 THE PUBLIC: You want me to describe them?13 Probably easier if I do it.14 MS. McGOVERN: Yeah. If you have a pen.15 What's the first one, O-31. What's your first one.16 Jamilet can mark them and you can just describe them.17 THE PUBLIC: The first one is a cover18 e-mail.19 MS. McGOVERN: So what is it?20 THE PUBLIC: First -- O-31 would be a letter21 from me to the board secretary, the board attorney and22 Mr. Plocker on behalf of the applicant, describing what23 I am introducing.24 MS. McGOVERN: Okay. All right. O-32.25 99 THE PUBLIC: Second document is a resolution1 adopted by the West Orange Planning Board on November 7,2 1984 approving the application of the West Essex3 Developers Inc., subject is, certain conditions4 including several relating to Oval Road.5 Third document is an agreement among

Board on November 7,2 1984 approving the application of the West Essex3 Developers Inc., subject is, certain conditions4 including several relating to Oval Road.5 Third document is an agreement among West6 Orange Essex Fells - West Essex Developers, which is the7 predecessor to the current applicant and the Essex Fells8 Country Club executed in March and April of 19879 relating to the vacating a portion of Oval Road by West10 Orange and Essex Fells.11 MS. MCGOVERN: And O-34.12 THE PUBLIC: Is an ordinance from the13 Borough of Essex Fells adopted August 18, 1987 pursuant14 to the agreement I just mentioned that the Essex Fells15 ordinance vacates the portion of Oval Road and Essex16 Fells from Oval Lane to Essex Fells to the Essex Fells17 West Orange border.18 MS. McGOVERN: Thank you.19 THE PUBLIC: And there's one more.20 MS. McGOVERN: O-35. Okay.21 THE PUBLIC: So the last document is a March22 9, 2006 letter from Essex Fells Borough administrator to23 the West Orange Township business administrator24 summarizing for West Orange in connection with a25 100 different development application by the same developer1 that these sections of Oval Road, specifically the2 western section of Oval Road going from West Orange and3 in Essex Fells will be closed to the public.4 MS. McGOVERN: Okay. Thank you.5 THE PUBLIC: Thank you.6 CHAIRMAN BAGOFF: Thank you, Mayor.7 MR. PLOCKER: Can I just get one8 clarification, Mayor Davis. The letter you referred to,9 is that the letter kind of imbedded, it was an e-mail or10 was there a separate letter sent to the board?11 MS. McGOVERN: It was a cover letter12 attachment.13 THE PUBLIC: The first document we produced14 was an e-mail from me.15 MS. McGOVERN: Okay.16 MR. PLOCKER: You said letter, I just wanted17 confirm that wasn't something I didn't have.18 CHAIRMAN BAGOFF: Mr. Afran.19 MR. AFRAN: On scheduling issues. I have no20 issue personally with working that schedule, but it may21 be very hard on members of the public to come question22 Mr. Kleinberg in that part of the meeting and then stay,23 come back immediately thereafter to do public comment.24 CHAIRMAN BAGOFF: Trying to be expeditious25

01/05/2026 03:19:18 PM Page 101 to 104 of 112 26 of 28 sheets 101 with the objectors and the applicant and the board1 members. The holidays are coming.2 MR. AFRAN: That's not the issue.3 CHAIRMAN BAGOFF: Of course it's the issue.4 We're trying to be reasonable with everybody.5 MR. AFRAN: I understand. I am concerned,6 people have been here for five years participating in7 this part of it, then leave out of necessity and then8 not be able to give public comment. Is there going to9 be another night for public comment? It is a bit much10 to expect people to stay from 1:00 o'clock to 9:00,11 10:00 o'clock to get to the right of public comment.12 MS. MCGOVERN: Well, there's two sessions,13 there's going to be at least an hour break in between14 and we have other business to do first thing starting at15 6:00 o'clock so that other business will be about an16 hour or hour and half. So the public wants to go home17 have dinner, do other things, there's that time. It is18 not straight through.19 MR. AFRAN: That's fine and so we're --20 that's not the issue. The issue is that the public has21 an absolute statutory right to comment. There's case22 law for example on objectors experts not being put very23 late at night. This is a sort of similar species of24 problem. The people could be here for five hours, four25 102 hours doing this phase of it, then they're expected, if1 they want to exercise their public comment rights, after2 they've been told for a year and half coming, they must3 now devote another five hours that same day. That's4 frankly not reasonable.5 CHAIRMAN BAGOFF: That may not be all in one6 night.7 MR. AFRAN: I am saying, we need to8 understand if there's another night for public comment,9 otherwise it's not going to work.10 CHAIRMAN BAGOFF: If there's enough public11 comment, of course there will be.12 MR. AFRAN: No, but if people have to leave13 after the first session and can't come back that night14 because their children or whatever, it may be, they're15 going to be deprived their right to public comment.16 They have been told for a year and a half it's coming17 and now they're told you get it only if you stay for a18 marathon session. That's not how the law works.19 MR. CARDOZA: He's saying at the end of that20 night it appears there's no more public comments someone21 that had already left would want to come for another22 night.23 MR. KLEIN: Let's

e law works.19 MR. CARDOZA: He's saying at the end of that20 night it appears there's no more public comments someone21 that had already left would want to come for another22 night.23 MR. KLEIN: Let's go ahead and plan for a24 second night.25 103 MR. ALPER: Do you think it will be long1 enough with Mr. Kleinberg?2 CHAIRMAN BAGOFF: I don't think Mr.3 Kleinberg is going to testify for four hours.4 MR. AFRAN: Here's the problem. The board5 members are public officials, if the board schedules a6 meeting at 1:00 o'clock and that means people give up7 time from work, that's the burden one assumes of the8 public official. However, the public normally comes at9 night when they're done with work, when they're done10 with feeding their kids and participate. That's the11 point of the citizen process. Now they're told well, if12 we finish in an hour at 1:00 to 2:00, public comments13 starts and by 5:00 o'clock if you didn't get to go and14 you have to and you can't be there in the middle of the15 afternoon, you lose your public comment. This is a16 problem.17 MS. McGOVERN: We never said it was going to18 end with the last person.19 MR. AFRAN: Let me be clear about this. If20 people are here -- if people cannot be here in the21 afternoon because they have childcare duties or work,22 your public officials may have no choice but to do that,23 but the public doesn't expect to give up their job to24 come here. That's not the way it works.25 104 CHAIRMAN BAGOFF: They come in the evening.1 MR. AFRAN: Just a moment. That's fine.2 However, if people are here in the afternoon and the3 only way to get their public comment is to go through4 this marathon session, that's equally unfair. I am5 saying we have to build in another night to make sure6 people aren't deprived. They've been told for a year7 and half they're getting public comment. We can't8 structure this part of a marathon session, many people9 may not be able to attend. It's very simple. We are10 going to need another night. That's all I am saying.11 CHAIRMAN BAGOFF: Why don't we see how much12 public comment there is in the evening.13 THE PUBLIC: Give us a date and a time14 certain for people to show up. That's all we're asking.15 I am near the microphone. We are asking that we be able16 to publish a date and time certain for public comment to17 begin when people come. They know when to come.18 CHAIRMAN BAGOFF: December