December 10, 2025, Planning Board Special Meeting - WEHI Transcript

1 of 55 sheets Page 1 to 4 of 144 01/14/2026 10:36:25 AM 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 1 TOWNSHIP OF WEST ORANGE DEPARTMENT OF PLANNING AND DEVELOPMENT WEDNESDAY, DECEMBER 10, 2025 6:30 P.M. RE; PB-24-01 WEST ESSEX HIGHLANDS, INC. BOARD MEMBERS: ROBERT BAGOFF, Chairman JERRY GUARINO, Vice Chairman SUSAN McCARTNEY, Mayor LORI KAPFERER WILLIAM B. WILKES KEN ALPER JOHN CARDOZA SUSAN SCARPA, Councilwoman WITNESS: SAMUEL N. KLEINBERG, Engineer FISHMAN COURT REPORTING AGENCY 89 HEADQUARTERS PLAZA NORTH 4 SPEEDWELL AVENUE, SUITE 1440 MORRISTOWN, NEW JERSEY 07960 (973) 285-5331 - FAX - (732) 605-9391 2 A P P E A R A N C E S :1 2 H U T T , S H I M A N O W I T Z & P L O C K E R , E S Q S . B Y B R Y A N D . P L O C K E R , E S Q .3 B p l o c k e r @ h u t t s h i m . c o m 4 5 9 A M B O Y A V E N U E4 W O O D B R I D G E , N E W J E R S E Y 0 7 0 9 5 A p p e a r i n g o n b e h a l f o f t h e A p p l i c a n t5 6 G A C C I O N E & P O M A C O , E S Q S . B Y D I A N A P . M c G O V E R N , E S Q .7 O N E B O L A N D D R I V E , S U I T E 1 0 2 W E S T O R A N G E , N E W J E R S E Y 0 7 9 5 28 A p p e a r i n g o n b e h a l f o f t h e B o a r d 9 B R U C E I . A F R A N , E S Q .10 1 0 B R E A B U R N D R I V E P R I N C E T O N , N E W J E R S E Y 0 8 5 4 011 A p p e a r i n g o n b e h a l f o f t h e O b j e c t o r , W e C a r e N J C o r p .12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 I N D E X O F E X H I B I T S2 E X H I B I T D E S C R I P T I O N3 O - 3 8 E - M A I L N O V E M B E R 1 3 , 2 0 2 5 - D E C E M B E R 9 , 2 0 2 54 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 C H A I R M A N B A G O F F : T h e a p p l i c a n t i s p r o p o s i n g1 t o d e v e l o p a 4 9 6 u n i t i n c l u s i o n a r y m u l t i f a m i l y2 r e s i d e n t i a l d e v e l o p m e n t o n a v a c a n t 1 2 0 - a c r e p r o p e r t y i n3 t h e n o r t h w e s t c o r n e r o f t h e T o w n s h i p o f N e w J e r s e y .4 W e a r e i n t h e m i d d l e o f t e s t i m o n y b y M r . K l e i n b e r g .5 M r . K l e i n b e r g , y o u r e a l i z e y o u a r e s t i l l u n d e r6 o a t h , s i r ?7 T H E W I T N E S S : I u n d e r s t a n d .8 C H A I R M A N B A G O F F : G o o d . T h a n k y o u .9 M S . M c G O V E R N : M r . A f r a n , I d o n ' t k n o w10 w h e t h e r y o u w e r e d o n e o r i f w e a r

I u n d e r s t a n d .8 C H A I R M A N B A G O F F : G o o d . T h a n k y o u .9 M S . M c G O V E R N : M r . A f r a n , I d o n ' t k n o w10 w h e t h e r y o u w e r e d o n e o r i f w e a r e r e a d y f o r p u b l i c11 q u e s t i o n s ?12 M R . A F R A N : N o , w e s t i l l h a v e a l i t t l e m o r e13 t o d o .14 C H A I R M A N B A G O F F : M r . A f r a n .15 M R . A F R A N : T h a n k y o u .16 G o o d e v e n i n g .17 C H A I R M A N B A G O F F : G o o d e v e n i n g .18 M r . K l e i n b e r g , g o o d e v e n i n g . W e a r e c o n t i n u i n g .19 Q. G o o d e v e n i n g , M r . A f r a n .20 A. T h a n k y o u .21 Q. I f y o u r e c a l l w e l e f t o f f t a l k i n g a b o u t S e c t i o n22 8 - 1 3 o f t h e A r m y M a n u a l . Y o u i n d i c a t e d y o u w a n t e d t o23 i d e n t i f y a t l e a s t t h e c a t e g o r y d e s c r i p t i o n o f t h a t p a r t24 o f t h e m a n u a l . D i d y o u h a v e a c h a n c e t o d o a n y f u r t h e r25

01/14/2026 10:36:25 AM Page 5 to 8 of 144 2 of 55 sheets 5 examination?1 I did. The name of the manual is, which is, I2 A. think, the question I couldn't recall when we were3 discussing it, is Rock Foundations. And, and so it's,4 in reading a little bit further in preparation for the5 meeting I maintain my opinion that the manual doesn't6 apply for the particular case that we are discussing7 here.8 And you're referring to the section of the manual9 Q. headed, Rock Foundations, which also includes the10 Chapter 7 references to a 1.5 safety factor and the 2.011 factor in Section 8-13A, which I directed you to and12 also began that "rock foundation" section?13 It is. I have them in front of me.14 A. Great. Thank you.15 Q. Now, there doesn't seem to be a definition, to my16 reading in the manual, as to what would be a rock slope17 versus a soil slope. So in your mind any way is there a18 definition you're relying on to categorize this one way19 or the other?20 Well, I think in comparison a rock slope, and I21 A. think it's described in the ordinance, it would be a22 cliff face and you don't have a cliff face here.23 There's another situation in West Orange that I am aware24 of where there is a cliff face, might be 40-feet of rock25 6 and there was recently a failure in that slope.1 Well, you're relying on what you think is a2 Q. definition in the ordinance of a rock slope?3 No, but that was, I was trying to give an example4 A. of, description of the difference. We don't -- this5 slope is soil with some minor protuberances of rock at6 the top of the slope.7 Well, underneath all that soil is rock, correct?8 Q. Right. But the actual slope that you see on the9 A. surface is, is an earth slope.10 Well, most places you'll see some level of earth11 Q. above bedrock, correct?12 In most places, yes. But it's a soil slope13 A. because it's, the stability issues indicate that the14 material controlling the stability is soil and not the15 rock.16 You yourself refer repeatedly in your report to17 Q. the need to be able to evaluate the disturbance of the18 slope, correct?19 Correct.20 A. And you don't categorize that as referring to a21 Q. soil slope in particular, do you, in your report?22 I don't think I categorize it as soil. The slope23 A. as it's shown on the plans.24 And in fact your report, almost all of it, deals25 Q. 7 with analyzing the strength of the basalt rock

our report?22 I don't think I categorize it as soil. The slope23 A. as it's shown on the plans.24 And in fact your report, almost all of it, deals25 Q. 7 with analyzing the strength of the basalt rock and the1 fractures of the rock, is that correct?2 No, that's not correct.3 A. Well, substantial parts of your report deal with4 Q. that?5 And the reason I did that is because that was6 A. the, the substantial part of the debate between the7 applicants and the opposers engineer.8 Because they were debating the strengths and9 Q. merits to the rock slopes, isn't that correct?10 Correct.11 A. Now, in your report do you anywhere say this is a12 Q. soil slope and not a rock slope?13 I am not, I am not sure that I could find that,14 A. but I did not make a distinction in the report from soil15 and rock soil.16 Thank you very much.17 Q. Now, in looking at the Army Manual, you don't see18 a definition of rock slope versus soil slope, do you?19 I don't know that has a specific definition but20 A. it's pretty, it would be pretty clear in my mind when I21 am dealing with rock or soil.22 Well, your mind, I don't mean to be23 Q. disrespectfully, doesn't set the standard of caring of24 professional engineering, but rather the various25 8 treatises and manuals that address these issues. So I'm1 asking you, were the treatises and manuals that you2 relied on in your profession is there this distinction3 between the so-called soil slope and the rock slope, are4 you able to show me that?5 No, I can't show it to you here and now, and I6 A. don't know that, that exits either.7 Okay. Thank you.8 Q. Now, I would like to, we're going to return to9 that but I have some other questions to ask you.10 I think I recall you saying, and I admit we are11 on the third time doing this, so if I am repeating, I12 apologize. If anything you don't recall and you need me13 to repeat it, please let me know as well.14 I think I recall you testifying you did a site15 inspection of some sort, is that correct?16 I did a site visual.17 A. Yes.18 Q. I did not do anything that would qualify as a19 A. detailed investigation.20 Okay. I didn't mean a test, I meant you went to21 Q. observe the site in some way?22 I went to become familiar with conditions, to23 A. look at it to see if there's any obvious symptoms of24 slope instability on the slope which I didn't see. And25

3 of 55 sheets Page 9 to 12 of 144 01/14/2026 10:36:25 AM 9 that was the purpose. It could be necessary to write1 our report to at least visit the site.2 Well, the issues you write in the report are3 Q. things you couldn't see on the surface. And both4 engineers speak of fracturing and internal fracturing,5 so no matter what you wouldn't see that on the surface,6 would you?7 Correct.8 A. Now, what part of the site did you actually do9 Q. this visual, I will use the word inspection, for lack of10 better word, but I understand how you described it?11 Walked along across the ridge in the area of the12 A. building. There were representatives of Anderson13 Consulting firm with us and so I walked across the ridge14 adjacent to the proposed Building D and about halfway15 down the slope and looked at the rock outcrops that are16 at the top of the slope.17 And you went down the slope part way yourself you18 Q. said?19 Just 100-feet, maybe.20 A. Well, that's a distance. I'm asking, so you went21 Q. down about 100-feet on the slope?22 On the slope, yeah.23 A. Below the ridge, so to speak. 100-feet on the24 Q. hypothesis?25 10 Right.1 A. Now, how did it come about that you were with the2 Q. Anderson people?3 We called the town engineer and asked if a4 A. meeting, if we could get permission to access the site5 and we were directed to Mr. Anderson to arrange for the6 visit to the site and he was there with a couple of his7 associates.8 I see. And you didn't speak with Mr. Goll in9 Q. that connection, did you?10 No.11 A. You didn't speak --12 Q. I don't know Mr. Goll and I did not speak -- I do13 A. not know who he is.14 Well, he's the gentleman who wrote the report you15 Q. were evaluating from Princeton Hydro, isn't he?16 Right. Okay. No, he was not present.17 A. And you didn't call him to say, I am going with18 Q. the Anderson people and would you want to come?19 No, I did not.20 A. Why not?21 Q. I didn't, I didn't think of it.22 A. You were retained, as Dr. Bagoff said, to produce23 Q. an independent -- "independent" evaluation between the24 two sets of engineers reports, isn't that correct?25 11 Correct.1 A. And were you in fact told or does your contract2 Q. say you have to do an "independent" evaluation?3 I'm sorry, could you repeat that.4 A. At what time were you told by the board that you5 Q. had to do and the independent evaluation?6 I didn't receive any specific

to do an "independent" evaluation?3 I'm sorry, could you repeat that.4 A. At what time were you told by the board that you5 Q. had to do and the independent evaluation?6 I didn't receive any specific instructions from7 A. the board.8 Now, do you understand that your -- strike that.9 Q. Do you have an understanding that your evaluation10 was to be as an "independent expert?"11 I believe that's the way I performed it.12 A. By only consulting with the applicants engineers13 Q. and not --14 MR. PLOCKER: I am going to object. I don't15 believe he testified he consulted with them. I believe16 he testified he asked for permission to visit the site17 and that he was directed to Mr. Anderson because Mr.18 Anderson is familiar with the walkable egress and19 ingress of the site. Otherwise Mr. Afran can ask him20 what he wants, but I don't think that's what Mr.21 Kleinberg testified to, respectfully.22 MR. AFRAN: Well, I think walking the site23 with the applicants engineering staff does constitute24 consulting with them during the inspection might be a25 12 reasonable standard. Mr. Plocker just indicated they1 had a discussion about being directed to various parts2 of the site. I think the question is valid.3 MR. PLOCKER: If I need to use the restroom,4 do I consult over to the restroom?5 MR. AFRAN: If you're talking to your6 engineer in the restroom, yes.7 MR. PLOCKER: I don't understand.8 MR. AFRAN: I think the engineer here on the9 stand is quite experienced and can take care of himself,10 if he feels he can't answer the question.11 CHAIRMAN BAGOFF: I think he answered the12 question if had he consulted, he said, no, he didn't.13 He's the expert.14 You were doing an independent evaluation as you15 Q. said, correct?16 Correct.17 A. Why did you think it's appropriate in doing an18 Q. independent evaluation to only have the applicants19 engineers present and not the objectors engineer?20 I didn't think that broadly. I just wanted to21 A. see the site and get -- and then do the technical22 evaluation.23 What did the applicants engineer do in connection24 Q. with your visit when you were there?25

01/14/2026 10:36:25 AM Page 13 to 16 of 144 4 of 55 sheets 13 At that point they showed, they showed me, I was1 A. with one of my colleagues. Showed us the mark outs of2 the area of the building, the locations of some of the3 explorations, which were on the surface. They just4 walked along and I, I didn't feel influenced at all one5 way or the other.6 Well, whether you felt influenced or not is one7 Q. thing, but the facts were you were there with only one8 side, is that correct?9 That's correct.10 A. Do you normally do independent evaluations only11 Q. in the presence of one team of experts and not those12 from the other party?13 I'm basically a drawing board engineer. I don't14 A. do a lot of these investigations.15 What do you mean, a drawing board engineer?16 Q. I'm a designer and an analyst.17 A. What are you a designer of?18 Q. Foundations, earth slopes, dams, bridge19 A. foundations, retaining walls, pipe line installations20 and I do evaluations of slope stability too.21 In connection with that type of municipal civic22 Q. work?23 In connection --24 A. I'll repeat the question. Usually that's public25 Q. 14 works you just described, right?1 For the last 20 years it's been mostly public2 A. works.3 Now, have you ever done an independent evaluation4 Q. before?5 Well, I -- yes. I feel I have been independent.6 A. I don't usually get sued one way or another by anybody.7 Well, let me ask you this, if you're only in the8 Q. presence of the experts from one side and not the other9 and you're having a conversation with those experts as10 you go along, how do you know you're not being11 influenced in some way that would be countered if the12 other side were also present?13 I don't know. I lived a long time, I can tell14 A. when I'm being pushed one way or another. I wasn't15 pushed.16 Well, I have been doing this 40 years and usually17 Q. a witness says, well, I lived a along time and says, I18 don't think I was pushed one any or another. The point19 is, you didn't give yourself a chance to be exposed to20 the other side?21 MR. PLOCKER: Objection.22 MR. AFRAN: Why?23 MR. PLOCKER: What he said was he was walked24 around the site.25 15 MR. AFRAN: Come on.1 MR. PLOCKER: Look, I don't want to get into2 it, but clearly he's trying to insinuate that Mr.3 Kleinberg's evaluation was influenced or not4 independent. I believe he said it was. Let him ask him5 again, he

CKER: Look, I don't want to get into2 it, but clearly he's trying to insinuate that Mr.3 Kleinberg's evaluation was influenced or not4 independent. I believe he said it was. Let him ask him5 again, he needed to have him on-site with someone who6 knew the site. Mr. Anderson is the consulting engineer7 to the applicant who knows the site. I was not present,8 a client representative was not present, he walked the9 site. So far we haven't heard one thing that was10 allegedly said or consulted with Mr. Kleinberg. So11 either there was stuff that was said or there wasn't.12 He can be asked that.13 MR. AFRAN: With great respect, repeatedly14 Mr. Kleinberg has stepped back and walked back in stages15 in his report when I challenged him on that and that's16 why I'm asking these questions.17 MR. PLOCKER: I disagree with the18 characterization.19 MR. AFRAN: That's really lovely, we're an20 adversary system, I'm sure Mr. Plocker would disagree21 with many things.22 CHAIRMAN BAGOFF: And the board will it take23 under advisement from both sides. Move on, please.24 MR. AFRAN: Thank you.25 16 What conversations did you have with the1 Q. applicants engineer, beyond what you testified to? I'm2 asking you to think that through.3 I, I have been, I gave a minute -- I gave a4 A. summary of an e-mail conversation with Langan5 Engineering about the issues that were discussed here at6 the meeting.7 MR. PLOCKER: Mr. Afran, are you talking8 about the site at the site visit?9 Mr. AFRAN: Yeah, I understand your point.10 MR. PLOCKER: I just want to make sure we11 have a clear record.12 MR. AFRAN: I think Mr. Kleinberg may have13 misunderstood the question.14 I was referring to the site visit?15 Q. There were really no conversations, just here's16 A. the building, here's that. I -- there was no discussion17 that, wherein we discussed the details of the site. Of18 the issue.19 You feel it's proper practice to have both sides20 Q. present if you are doing an independent inspection?21 I only viewed this -- do I feel -- if I had, you22 A. know, thought ahead to this moment, I might have done it23 differently, but I am not directing anything in this24 thing. I'm on the staff with the municipal engineer25

5 of 55 sheets Page 17 to 20 of 144 01/14/2026 10:36:25 AM 17 company and I went to see the site so I could prepare my1 report and I contacted, not Mr. Anderson directly, we2 contacted the Borough engineer and the Borough engineer3 declined to accompany us. And so that's what -- I don't4 believe I was compromised by anything that took place on5 the visit.6 Well, one of the problems, we only have your word7 Q. for that and your viewpoint. Had my representative been8 present I would have an observant noting what went on9 and what was discussed between all this.10 MS. McGOVERN: That's his testimony under11 oath.12 MR. AFRAN: I don't care whether his13 testimony is under oath.14 MS. McGOVERN: His testimony's under oath.15 MR. AFRAN: The point is, you have no16 business interfering that way, Ms. McGovern. It is17 obvious the witness is under oath.18 CHAIRMAN BAGOFF: Lower your voice. We're19 trying to -- Mr. Afran, we're are trying to get --20 MR. AFRAN: Now, just at moment.21 CHAIRMAN BAGOFF: We want to hear you.22 MR. AFRAN: Fine.23 CHAIRMAN BAGOFF: Please.24 MR. AFRAN: I will reduce my anger at that25 18 point.1 CHAIRMAN BAGOFF: Go right ahead.2 MR. AFRAN: Board counsel has no right to3 interfere at all, number one. Until advice is sought4 from the board.5 Number two, that interjection was6 inappropriate. We all know Mr. Kleinberg is under oath.7 People are under oath all the time and often have their8 own views of things that have to be challenged on9 cross-examination. Ms. McGovern's interjection suggests10 we don't need to challenge a witness because he's under11 oath, that's not the way it works and it's not the way12 it works. To have a witness say, I don't feel I was13 compromised when my representative was not there to14 observe whether in fact he could have been. This is the15 point of my questions.16 Dr. Bagoff, you made a point very vigorously17 saying this would be an independent evaluation and it18 wasn't.19 CHAIRMAN BAGOFF: I understand what you're20 saying.21 Mr. Plocker.22 MR. PLOCKER: Very briefly. I don't want to23 keep objecting but to the extent that the question keeps24 asking about your discussions with, I would object to25 19 that term in light of Mr. Kleinberg previously offering1 testimony.2 MR. AFRAN: Who's discussion? I'm sorry, I3 didn't hear your objection.4 MR. PLOCKER: You referenced his discussion5 with people at the site during

ght of Mr. Kleinberg previously offering1 testimony.2 MR. AFRAN: Who's discussion? I'm sorry, I3 didn't hear your objection.4 MR. PLOCKER: You referenced his discussion5 with people at the site during the visit and I believe6 he didn't say he did not have any discussions.7 MR. AFRAN: No, he did say he had discussed8 various places of interest in the applicants engineers9 viewpoint.10 MR. PLOCKER: My objection is stated for the11 record.12 CHAIRMAN BAGOFF: Thank you.13 Mr. Afran, go right ahead.14 MR. AFRAN: Thank you.15 The point is, Mr. Kleinberg, no one else was16 Q. present to evaluate your interaction with the applicants17 engineer, were they?18 Well, there was one staff member with me and two19 A. staff members of Mr. Anderson.20 So aside from your staff member from CME and21 Q. aside from the applicants engineering staff, there was22 no one else present to evaluate the nature of the23 interaction between you and the Anderson engineers, is24 that correct?25 20 That's correct.1 A. Now, your firm does commercial/residential real2 Q. estate development, doesn't it?3 I don't know that it does. I work in one4 A. department doing mostly structural engineering work.5 Aren't there people in your firm who are6 Q. structural engineers with respect to nonpublic works7 projects?8 Very few. On occasion the company does work on,9 A. for private clients, but it's just -- it's a very small10 percentage of the amount of work the company does.11 So most of your work is done through12 Q. municipalities?13 Municipalities, government agencies, sewage14 A. authority, water commissions, and counties primarily.15 How many objectors does your firm ever represent?16 Q. Sorry.17 A. How many objectors does your firm ever represent?18 Q. I don't know.19 A. Have you ever heard it representing objectors?20 Q. It's not in my, in my realm to hear that kind of21 A. a thing.22 Okay.23 Q. So you wouldn't know one way or the other?24 Yeah, I never had it discussed across the25 A.