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

01/14/2026 10:36:25 AM Page 21 to 24 of 144 6 of 55 sheets 21 cubicles or anything.1 Okay.2 Q. Now, on December 2 you received an e-mail from3 Mark Seel at Langan, correct?4 Correct.5 A. And Mark Seel -- excuse me. Was the engineer who6 Q. spoke to structural engineering issues on behalf of the7 applicant, is that correct?8 Yes.9 A. Now, what prompted him to send that particular10 Q. e-mail?11 Do you need a copy of it?12 Yup.13 A. I can show you my copy.14 Q. Yeah, let me see the e-mail.15 A. MR. PLOCKER: Is this what was marked --16 MR. AFRAN: O-36.17 MR. PLOCKER: Thank you.18 I will need it back, but just take a look.19 Q. CHAIRMAN BAGOFF: Can you identify exactly20 what that is?21 MR. AFRAN: It's O-36.22 CHAIRMAN BAGOFF: Okay. Thank you.23 Yes.24 A. Thank you.25 Q. 22 Now, this is an e-mail dated December 2, 2025,1 from Mr. Seel to yourself as well as Anderson, Mr.2 Anderson, and as well as to Mr. Hernandez at your3 company. And Mr. MacNeill, Mr. Rizzo and Alejandra4 Mazier at your company. Now, do you know what prompted5 this particular e-mail to be sent to you?6 We were approached by Langan Engineering to7 A. discuss our report and so there was a series of voice8 discussions, which are all summarized in the material I9 gave you at the last meeting, and it was subsequent10 discussion over, since the last meeting regarding the11 technical issues that we had brought up to be addressed.12 Give me one second, please.13 Q. And actually Mr. Seel was responding to your14 e-mail of December 1, which is attached to Exhibit O-36.15 Now, aside from these two e-mails and your e-mail of16 December 2 just acknowledging Mr. Seel's reply, were17 these discussions memorialized in other e-mails or were18 they phone calls or zoom discussions or personal19 meetings?20 I'm sorry, if I could drop back. There were a21 A. couple of items that we indicated, this is before the22 end of November, that we had indicated were needed for23 us to complete our evaluation. And those items regarded24 the analysis of high groundwater conditions that was not25 23 included in the report. So the discussions with Langan1 began with the discussion of the items that we had2 requested in order to complete the evaluation. And so3 there was a series of discussions, I think they're all4 summarized in the papers I gave last week, and there was5 a discussion this week and, you know, I have

order to complete the evaluation. And so3 there was a series of discussions, I think they're all4 summarized in the papers I gave last week, and there was5 a discussion this week and, you know, I have further6 summary if you need it.7 Well, we'll get to this weeks in a moment. That8 Q. was after the last meeting?9 After the last meeting.10 A. Okay. Hold that, we'll get to it.11 Q. Now, O-36, I mean you say it's a summary but12 really it's a one paragraph statement by you indicating13 certain points and to which Mr. Seel then responded to14 several points. Now, were there other e-mails that15 comprised records of these discussions going back and16 forth or is the only set, O-36?17 I think that's the chain of e-mails.18 A. Yes, it's a set of e-mails from December 1 to19 Q. December 2 from you to Mark -- from Mark to you. Now my20 question is different and I don't know why you don't21 answer it straight. Were there other e-mails between22 you and the Anderson people memorializing your23 discussions after your site inspection?24 Besides those pages there were.25 A. 24 Well, where are they?1 Q. I thought, I thought what I had attached was, was2 A. information that goes back to November -- to mid3 November.4 Do you have those e-mails with you?5 Q. Yes.6 A. May I see them?7 Q. MR. PLOCKER: Can we all see them, please.8 CHAIRMAN BAGOFF: Hang on. Mr. Afran, can9 you bring it up here.10 THE WITNESS: There's another copy you want11 too?12 MR. AFRAN: Let me take a look for one13 second.14 Mr. Kleinberg, these are in chronological order,15 Q. right?16 I believe they are.17 A. Okay.18 Q. MR. AFRAN: Okay. They're a set of19 chronological e-mails going back roughly to November, I20 think.21 THE WITNESS: They're after the first22 meeting.23 After the first meeting here that you testified24 Q. at?25

7 of 55 sheets Page 25 to 28 of 144 01/14/2026 10:36:25 AM 25 Right.1 A. Okay.2 Q. Looks to me like the first e-mail is dated3 November 13, would that make sense to you?4 Something like that.5 A. Okay.6 Q. MR. AFRAN: Mr. Chairman, here's a copy of7 what I was just given.8 MS. McGOVERN: E-mail starting November 13,9 2025 and they end when?10 MR. AFRAN: There's an attachment also of a11 technical nature and the first one appears to be12 November 13 and they end Tuesday, December 9.13 MS. McGOVERN: And this is between?14 Mr. Kleinberg, they're between you on your end15 Q. and the Anderson people on the other end?16 Right. It was primarily an e-mail conversation17 A. between myself and Mark Seel of Langan and Mr. Anderson18 just copied on it. I didn't have any conversations with19 Mr. Anderson.20 MS. McGOVERN: So we're going to mark this21 as our next exhibit which is O-38. Okay. It's O-38 --22 no, it's more than that. It's the first e-mail too, the23 other ones, it's just piled on top. It's called e-mail24 from November 13, 2025 to December 9, 2025 between Mr.25 26 Kleinberg and Mark Seel at Langan. 17 pages.1 CHAIRMAN BAGOFF: She's going to do that2 now, Mr. Afran. So we'll have it shortly.3 MS. McGOVERN: Do you want to wait for that?4 MR. AFRAN: I think we should, to keep the5 record without jumping around.6 CHAIRMAN BAGOFF: We're going to take a7 five-minute break.8 (Whereupon, a short recess is taken.)9 CHAIRMAN BAGOFF: Back on the record.10 Mr. Afran, you have the floor, sir.11 We are now introducing O-38 -- document12 O-38, you want to describe what it is, please, or have13 the expert describe what it is?14 Do you have copy in front of you?15 Q. Yes.16 A. O-38, right? Why don't you -- I will let you do17 Q. that and then I will ask you some questions. Would you18 just describe what this -- you produced it upon my19 request a few minutes ago, so would you describe for the20 board what this document is, as generally as you can?21 What the document is, is an e-mail, it's pretty22 A. much a continuous e-mail chain beginning when we, after23 the very first meeting that I attended and was24 approached by Langan to get more detail on the request25 27 we had made for additional information. So it pretty1 much follows the conversation between myself and Mr.2 Seel and over the period since the first meeting that I3 attended and today and yesterday, I believe it

for additional information. So it pretty1 much follows the conversation between myself and Mr.2 Seel and over the period since the first meeting that I3 attended and today and yesterday, I believe it was.4 And, and in it he had submitted a series -- attached to5 it he had submitted his calculations addressing the6 issues that we had raised about infinite slope stability7 that -- we asked him to do additional calculations above8 what he had already submitted and so he -- so those9 calculations he submitted are attached at the back as a10 series of calculations and a reference that contains the11 equation that was used to perform the calculations. So12 it's pretty much every -- details of the discussions I13 had with him since I was on vacation around the 19th or14 20th and so I think there's a representative, Alejandra15 Mazier's names in there, she had been forwarding stuff16 back and forth to Langan in my absence.17 Now, you testified, if I am correct, and the18 Q. board Chair can correct me, on November 10, I believe,19 is that correct?20 On November, I believe that's when it was, yes.21 A. And these e-mails began two days after the22 Q. testimony, is that correct? On November 13.23 Yes.24 A. And after you testified you left here somewhat25 Q. 28 late in the evening, did you have any phone calls, zoom1 meetings or other verbal contact with Anderson2 Engineering, with anybody at Anderson or at Langan after3 you testified until you received the e-mail of November4 13?5 I think I had one conversation that included Mr.6 A. Anderson and Mr. Seel soon, around the 13th, which was7 to discuss the issues, you know, to discuss whatever8 questions they would have.9 Well, let me go back.10 Q. Before you got the e-mail from Paul Anderson on11 the 13th, before that, were there any discussions with12 you and anyone at Anderson or Langan after the day you13 testified?14 I am not sure.15 A. Do you keep a log of phone meetings, a record of16 Q. some sort, a diary of some sort at work?17 I usually, if a conversations important, I18 A. memorialize it.19 I assume you don't memorialize by e-mail, but by20 Q. some note in the file of some sort, is that correct?21 No, I just keep the e-mail record.22 A. Well, you e-mail yourself when you're23 Q. memorializing a phone call you had?24 No, I usually, I e-mail my supervisor at the25 A.

01/14/2026 10:36:25 AM Page 29 to 32 of 144 8 of 55 sheets 29 office to describe the conversation.1 Okay.2 Q. Now, so you don't recall after the night after3 you testified to the day you received this e-mail4 November 13, if there were any conversations, if there5 were -- there would be an e-mail to your supervisor6 about them?7 Correct.8 A. Who would that supervisor be?9 Q. Nelson -- well, in the municipal it would be Ryan10 A. MacNeill. And Nelson Hernandez is my direct department11 supervisor.12 Thank you.13 Q. Now, turning to Exhibit 38, the document toward14 the back, the first e-mail that's dated November 13,15 it's from Mr. Anderson and it's addressed to Sam and16 Mark. Presumably Mark Seel at Langan.17 That's correct.18 A. Now, it says, "Are each of you available for a19 Q. conference call tomorrow? We would like to discuss the20 three open issues before you go on vacation Sam. I can21 do between 8:00 and 9:30 and after 2:00 PM." Signed22 Paul. Then it says, Paul W. Anderson of Anderson23 Consulting. Now, Mr. Anderson initiated this contact,24 is that correct?25 30 Correct.1 A. Okay.2 Q. Now, you e-mailed back six minutes later and said3 -- strike that. Mr. Seel e-mailed back six minutes4 later and said, "I am available after 2:00 PM." Four5 minutes later Mr. Anderson e-mailed back, "Okay. We all6 agree to 2:30." Now, I don't see an e-mail from you7 agreeing to the conversation, why is that?8 We did have a phone conversation based on that9 A. arrangement for an appointment.10 Yeah, but nothing in here indicates you said you11 Q. were available for the call. So how did you do the call12 if you never told anyone you were available for it?13 I made the call or they called me, whichever. We14 A. did have a phone conversation.15 And that would have been the next day, November16 Q. 14?17 I guess so. If it was in the time frame they18 A. were talking about.19 Well, November 13 Mr. Anderson said, "We'll call20 Q. tomorrow." And Mark said, "Yes." And you got the call21 or made the call, presumably that was the next day,22 correct?23 Correct.24 A. Okay.25 Q. 31 Now, there's no e-mail here to your supervisor,1 as far as I can see?2 No, there is not. That's the one, I can't3 A. produce that tonight, but I can produce it if you need4 it.5 Well, there's one dated November 14, which you6 Q. wrote to Mr. Anderson and Mr. Seel and copied Mr.7 Hernandez and Alejandra

, I can't3 A. produce that tonight, but I can produce it if you need4 it.5 Well, there's one dated November 14, which you6 Q. wrote to Mr. Anderson and Mr. Seel and copied Mr.7 Hernandez and Alejandra Mazier?8 Yes.9 A. Ms. Mazier. But that wouldn't be your internal10 Q. e-mail summarizing the conversation?11 No, I believe there's -- I have to go and check12 A. to see that there is. That I did make a memo of the13 conversation.14 So there is a record of your conversation with15 Q. Mr. Anderson and Mr. Seel of November 14, but no one16 that, no one has it, is that fair to say?17 That's fair to say.18 A. Don't you think we should have it?19 Q. I can't produce it tonight.20 A. I understand. Why didn't you think that would be21 Q. relevant for us to know about here?22 It was only general detail. The specifics of the23 A. result of the conversation was included in those24 e-mails.25 32 Okay. I would like to see that document, please.1 Q. I would like to ask you to produce all the, of the2 conversations, e-mails in which you memorialized your3 discussion with the Anderson people and the Langan4 people to your supervisors. I don't know what dates5 they are, but we may find out more dates as we go along.6 Now, when you received the e-mail from Mr.7 Anderson on November 13, you would agree that you never8 called Mr. Goll, isn't that correct?9 No, I've never spoken with Mr. Goll.10 A. And you didn't e-mail him either to say, I got11 Q. this request from Mr. Anderson, did you?12 No, I did not.13 A. What time, in your, here's an independent analyst14 Q. working for the public good evaluating two sets of15 reputable engineers, why are you accepting e-mails from16 one side, agreeing to conversations with that side and17 not telling the other side? It doesn't even look like18 you told the Planning Board. Why did you do that?19 I, I did request guidance from the Planning Board20 A. attorney as to whether I should be having those21 conversations.22 You spoke with Ms. McGovern about this issue?23 Q. Yes.24 A. By phone, by e-mail, text, how did you do that?25 Q.

9 of 55 sheets Page 33 to 36 of 144 01/14/2026 10:36:25 AM 33 By phone.1 A. Did you memorialize that discussion in the way2 Q. you say you normally do?3 No.4 A. What did Ms. McGovern say to you?5 Q. MR. PLOCKER: I am going to object. Board6 professionals and applicants professionals correspond7 and talk about certain aspects of an application all the8 time. Was Mr. Kleinberg ever contacted by Mr. Goll?9 Did Mr. Afran ever ask Ms. McGovern or Mr. Kleinberg,10 can Mr. Goll go see the site. I don't know, but it's11 not unusual for applicants professionals, not attorneys,12 not the actual member of the applicant, but for13 professionals to discuss aspects of every application14 with one another. It's done in informal reviews, some15 towns do technical review committee meetings, so to16 insinuate that anything untowardly was going on here is17 absolutely preposterous.18 MR. AFRAN: May I continue?19 CHAIRMAN BAGOFF: Go ahead.20 You aren't speaking, Mr. Kleinberg, about21 Q. engineering matters and seeking technical guidance from22 her, were you?23 No, I was asking if I should be talking to the24 A. applicants engineer.25 34 And what made you think you should ask Ms.1 Q. McGovern for guidance on that? Why did you do that.2 Why did you think you should ask her for guidance on3 such a matter?4 Because she is our client. She is a5 A. representative of our client and so that's why I called6 her.7 Okay.8 Q. So you're an independent analyst and you spoke to9 the boards attorney to ask whether it's ethically okay10 for you to speak to one sides applicant and not the11 other. Is that what happened?12 No, I just asked if I should speak to the13 A. applicants engineers. I didn't say one side or the14 other. I didn't think about that.15 What did Ms. McGovern say to you?16 Q. We had requested -- she understood we requested17 A. information from them and the only way to get the18 information we need is to talk to them. That was my19 understanding.20 And my question was, what did Ms. McGovern say to21 Q. you?22 She said it's okay.23 A. Did you tell Ms. McGovern there was no plan to24 Q. involve the objectors engineer?25 35 No, I did not.1 A. So she didn't know this was going to be ex parte,2 Q. did she?3 I don't know what ex parte means.4 A. One sided without the other side being present.5 Q. Okay. Okay. I didn't, I didn't think of that.6 A. We requested the information from the

x parte,2 Q. did she?3 I don't know what ex parte means.4 A. One sided without the other side being present.5 Q. Okay. Okay. I didn't, I didn't think of that.6 A. We requested the information from the engineer and I was7 having a discussion to describe what we needed from him.8 So you proceeded to have the call the next day9 Q. with the Anderson and Langan people?10 Yes.11 A. Okay.12 Q. Now, I note there's an e-mail from you dated13 November 14 at 5:22 PM addressed to the same14 individuals, Mr. Anderson, Mr. Seel, Ms. Mazier, Mr.15 Hernandez and Mr. MacNeill. I don't think Mr. Rizzo was16 copied on this. I am not going to read the whole thing17 but it has a reference, to your understanding, as to18 what Langan will forward based on the discussion you had19 earlier that day. Is that correct?20 I believe so.21 A. Now, but it wasn't just confirming what they were22 Q. forwarding that you referenced in that e-mail, was it?23 No, we had technical discussions about what we24 A. would be looking for.25 36 But that's not all you said in the e-mail, was1 Q. it? You didn't just confirm what you were asking for in2 the November 14 response -- 15th response -- strike3 that.4 November 14 response -- strike that.5 When you wrote back from November 14, the6 Anderson Langan people, you were not just confirming7 what they would forward to you and what you needed, were8 you?9 You want me to -- I will try to find it and you10 A. want me to read it? I could read it.11 Read it to yourself and tell me whether or not --12 Q. well, I'll help you out, it would be easier.13 If you read it, it would be a lot easier.14 A. Do you have glasses today, by the way?15 Q. I have a better pair.16 A. It says here's that "we agree --" well, strike17 Q. that.18 In the sentence before it says, "As we discussed19 we are surprised that the analysis for seepage parallel20 to the slope would yield a FS," that's Frank/Sam, "on21 the order of 1.5. We agree that that would be an22 extreme event which may justify a lower Factor of Safety23 upon review of relevant standards." Now, you can look24 at your document I am quoting in the e-mail. So that25

01/14/2026 10:36:25 AM Page 37 to 40 of 144 10 of 55 sheets 37 was your number one finding that you were conveying to1 them after your discussion and you expressed an2 emotional reaction, "we are surprised that the analysis3 for seepage parallel to the slope would yield an FS on4 the order of 1.5." So this was a qualitative discussion5 you sent on November 14 to the other side after your off6 the record ex parte phone meeting, isn't that correct?7 That's correct.8 A. And at any point between November 13 and the time9 Q. you sent the November 14 e-mail, did you call Mr. Goll?10 No, I never called Mr. Goll.11 A. Did you e-mail Mr. Goll?12 Q. No, I never had any correspondence or13 A. conversation with Mr. Goll.14 Did you e-mail me?15 Q. No.16 A. Did you call me?17 Q. MR. PLOCKER: Did you e-mail him first? Did18 Mr. Goll e-mail him? Did he contact him?19 MR. AFRAN: I didn't know they were having20 private off the record discussions that I need to probe,21 Mr. Plocker. Perhaps your client should've informed us22 of the fact this was undergoing.23 MR. PLOCKER: Mr. Afran --24 MR. AFRAN: Perhaps Mr. Plocker's client25 38 should've informed us about these ex parte discussions.1 MR. PLOCKER: Bruce, stop. Nothing that2 occurred here is unusual or illegal.3 MR. AFRAN: I --4 MR. PLOCKER: You have to let me finish,5 Bruce.6 MR. AFRAN: Go right ahead, Bryan. Continue7 losing your temper.8 MR. PLOCKER: Everybody thinks this is so9 funny, but --10 MR. AFRAN: I don't think it's funny,11 believe me. I don't think it's funny.12 CHAIRMAN BAGOFF: Okay. Gentlemen, the13 board will listen and the board will decide.14 MR. PLOCKER: Bruce, you know what, you've15 been doing job that we've been very pleased with, so I'm16 just going to let you continue.17 MR. AFRAN: All right, Bryan. Thank you.18 MR. PLOCKER: Thank you.19 CHAIRMAN BAGOFF: Go right ahead.20 You didn't call me or e-mail me either, did you?21 Q. No, I didn't know you.22 A. You had already testified, you were23 Q. cross-examined by me.24 Yeah, but I didn't even know your name.25 A. 39 It didn't even occur to you that there's a lawyer1 Q. on the other side who might want to know about these2 private discussions with the other sides experts?3 I understand the purpose of my service was to4 A. explain to the Planning Board what the two technical5 arguments were. I pointed out that neither engineer had6 addressed a heavy rain

sides experts?3 I understand the purpose of my service was to4 A. explain to the Planning Board what the two technical5 arguments were. I pointed out that neither engineer had6 addressed a heavy rain fall ground fall incident and7 then I pursued to have a technical discussion with the8 applicants engineer on, on that particular -- he didn't9 agree that they needed to be done. We hadn't received10 the set of drawings, that's why I said I was surprised,11 because you don't usually get numbers that high in that12 type of analysis. And, and when I did receive the13 drawings before the last, the previous meeting, I14 determined that the reason that the numbers were so sigh15 is that he didn't, he didn't raise the water level as16 high as we thought it should be set. And so we asked17 him to do additional calculations, which you have18 attached to that document.19 That came in a few weeks ago?20 Q. Came in --21 A. Ten days ago?22 Q. Friday.23 A. Friday?24 Q. Yeah.25 A. 40 Well actually until just now I didn't know there1 Q. were additional calculations that came in.2 No, because this was a discussion I thought I was3 A. required, because we had requested additional documents4 and so we were having discussions about the additional5 documents that we had requested.6 Now, you said you were surprised. Let me ask you7 Q. this. FS is Factor of Safety, correct?8 Correct.9 A. And you say here you, "were surprised that the10 Q. analysis for seepage parallel to the slope" we'll go11 into what that is in a moment, "would yield a Factor of12 Safety of 1.5." That's what you're say in here?13 Correct.14 A. You were surprised the Factor of Safety needed to15 Q. be that high, meaning up to 1.5?16 No. No.17 A. What are you saying?18 Q. I was surprised he would give a result that high.19 A. Okay.20 Q. So you were expressing your own engineering21 opinion about his result in this e-mail, correct?22 Correct.23 A. Okay.24 Q. Now, what do you mean by, "We agree --" what did25