January 14, 2026, Planning Board Special Meeting - WEHI Transcript

1 of 53 sheets Page 1 to 4 of 122 02/03/2026 04:49:05 PM 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, JANUARY 14, 2026 6:30 P.M. RE; PB-24-01 WEST ESSEX HIGHLANDS, INC. BOARD MEMBERS: ROBERT BAGOFF, Chairman JERRY GUARINO, Vice Chairman SUSAN McCARTNEY, Mayor WILLIAM B. WILKES KEN ALPER JOHN CARDOZA LORI KAPFERER SUSAN SCARPA, Councilwoman JORDAN RIZZO, Engineer MALVIKA APTE, Planner JAMILET BAQUERIZO VITE, Board Secretary GENIECE GARY-ADAMS, Zoning Official 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 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 .2 B Y B R Y A N D . P L O C K E R , E S Q . B p l o c k e r @ h u t t s h i m . c o m3 4 5 9 A M B O Y A V E N U E W O O D B R I D G E , N E W J E R S E Y 0 7 0 9 54 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 t 5 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 .6 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 0 5 27 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 8 B R U C E I . A F R A N , E S Q .9 1 0 B R A E B R U 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 4 010 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 .11 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 S 2 E X H I B I T D E S C R I P T I O N 3 0 - 3 9 E S S E X C O U N T Y E N V I R O N M E N T A L C O M M I S S I O N J U N E 2 , 2 0 2 5 R E S O L U T I O N4 O - 4 0 E S S E X C O U N T Y B O A R D O F C O M M I S S I O N E R S5 O C T O B E R 8 , 2 0 2 5 R E S O L U T I O N 6 O - 4 1 V E R O N A R E S O L U T I O N - S E P T E M B E R 2 5 , 1 9 8 0 7 O - 4 2 R E S O L U T I O N - J U L Y 8 , 1 9 8 3 8 O - 4 3 W E I S L E D E R S L I D E S 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 : P B - 2 4 - 0 1 W e s t E s s e x1 H i g h l a n d s , I n c . , B l o c k : 1 7 9 L o t 3 2 Z o n e I H - 1 , W a r n e r2 R o a d . T h e a p p l i c a n t i s p r o p o s i n g t o d e v e l o p a 4 9 63 i n c l u s i o n a r y m u l t i f a m i l y r e s i d e n t i a l d e v e l o p m e n t o n a4 v a c a n t 1 2 0

r2 R o a d . T h e a p p l i c a n t i s p r o p o s i n g t o d e v e l o p a 4 9 63 i n c l u s i o n a r y m u l t i f a m i l y r e s i d e n t i a l d e v e l o p m e n t o n a4 v a c a n t 1 2 0 a c r e p r o p e r t y i n t h e n o r t h w e s t c o r n e r o f t h e5 T o w n s h i p o f W e s t O r a n g e .6 M r . A f r a n f o r t h e o b j e c t o r s a n d M r . P l o c k e r f o r7 t h e a p p l i c a n t .8 M S . M c G O V E R N : C o u n s e l f o r W e C a r e h a s9 h a n d e d u s s o m e d o c u m e n t s t h a t r e p r e s e n t e - m a i l s p r o d u c e d10 b y M r . K l e i n b e r g t h a t m a y o r m a y n o t b e i n t r o d u c e d l a t e r11 o n a s e v i d e n c e , b u t t h e y w e r e g o i n g t o b e t h e b a s i s o f12 c r o s s - e x a m i n a t i o n b y M r . A f r a n , a n d i f s o m e t h i n g b e c o m e s13 w o r t h y o f b e i n g i n t r o d u c e d a s e v i d e n c e t o t h e14 a p p l i c a t i o n t h e C h a i r m a n w i l l t a k e t h a t , w e ' l l h a v e i t15 m a r k e d f o r i d e n t i f i c a t i o n , b u t f o r n o w t h e s e d o c u m e n t s16 a r e j u s t - - w e a r e g o i n g t o m a r k t h e m f o r i d e n t i f i c a t i o n17 b u t n o t n e c e s s a r i l y t o b e c o m e p a r t o f t h e a g e n d a r e c o r d .18 M R . A F R A N : W h y d o n ' t w e c a l l t h e m O b j e c t o r19 I D - 1 .20 M S . M c G O V E R N : O k a y .21 S o J a m i l e t , I a m g o i n g t o m a r k t h i s c o p y a s22 O b j e c t o r I D - 1 a n d i f i t t u r n s o u t t o b e a d o c u m e n t23 t h a t ' s g o i n g t o b e m a r k e d a s a n e x h i b i t w e ' l l c h a n g e i t24 t o t h e n e x t e x h i b i t n u m b e r . I h a v e i t , b u t I d o n ' t n e e d25

02/03/2026 04:49:05 PM Page 5 to 8 of 122 2 of 53 sheets 5 to divvy it out right this second. Okay.1 MR. AFRAN: Yeah. One of the other issues,2 Mr. Chairman, would be that some of this contains3 information that the applicants engineer, Langan,4 provided of a factual nature but they haven't testified5 to it and it's not under oath, so that's why I am not6 necessarily offering it into evidence at this point,7 because it wouldn't really be proper, but I am going to8 cross-examine him to some degree on this document, which9 is Objectors ID-1.10 CHAIRMAN BAGOFF: Great. Go right ahead,11 Mr. Afran.12 MR. AFRAN: Thank you.13 Good evening, Mr. Kleinberg.14 Q. Good evening.15 A. And as I mentioned earlier to you on the side16 Q. during the executive session, I am sorry we had to bring17 you back, but the additional e-mails that were exchanged18 between your company and Langan provoked some additional19 questions and rather than leaving open doors I'd rather20 just close them, to the extent we can. So thank you21 very much for coming back.22 Understood.23 A. There were -- you provided a set of e-mails to24 Q. the board clerk or -- well, Ms. McGovern, the board25 6 attorney, and that was in response largely to the1 request I made in the last meeting in which you2 indicated there had been e-mail exchanges between CME3 and Langan with respect to geotechnical issues that you4 were retained to do an independent evaluation.5 Now, you indicated there were certain numbers,6 you didn't know all of them at the time we last met, and7 during the holiday break you would seek them out and8 provide them. Did you provide everything that would9 relate, in your understanding, to the geotechnical10 discussions between yourself and the Langan staff?11 I did.12 A. And so this closes up the gap, so to speak, in13 Q. terms of what else may have been missing?14 MS. McGOVERN: I'm going to object to15 something being missing in terms of --16 MR. AFRAN: No, I'm sorry. I'll rephrase17 it.18 In terms of things that were exchanged -- strike19 Q. that.20 Are you aware of anything else that reflects21 communication between CME and Langan concerning your22 independent evaluation besides what's been produced?23 I am not.24 A. Thank you.25 Q. 7 Now, in what's marked -- what you have in front1 of you is marked Objectors Exhibit for identification2 number 1. And it's -- the top document is an

s been produced?23 I am not.24 A. Thank you.25 Q. 7 Now, in what's marked -- what you have in front1 of you is marked Objectors Exhibit for identification2 number 1. And it's -- the top document is an e-mail3 from Mark Seel to yourself and others stating Wehi,4 W-E-H-I, dated December 9, 2025 at 4:52 PM referencing5 Miao, M-I-A-O, I maybe pronouncing the professors name6 incorrectly, and referencing Stevens. Do you see the7 top part of the document?8 You mean item number one?9 A. No. I will point to it.10 Q. Yes.11 A. And you see at the top where it's addressed and12 Q. identified with the date and subject, roughly what I13 just read out loud, is that correct?14 That's correct.15 A. Okay. Good. I want to make sure we're working16 Q. from the same document.17 Now, that's the last series of e-mails in this18 document and they go back earlier to an e-mail that was19 attached at the very back dated November 13 referencing20 a conference call for the next day. We talked about21 that at one of the last meetings, that particular22 document?23 We did.24 A. Yes.25 Q. 8 Now, if you scroll forward from that last page1 you will eventually come to an e-mail dated November 26,2 2025 from Alejandra Mazier to Mr. Seel and that's Mark3 Seel, S-E-E-L, of Langan. And that's just stating, Good4 morning, Mark. Thank you for sending the ala graphs.5 Could you please, I'm paraphrasing, could you also6 please send the input an output tiles that detail any7 soil parameters and slope conditions assumed for all8 cases. And that's the e-mail at the bottom of that page9 dated November 26.10 Now, on top of that is a reply later that same11 day from Mr. Seel to Alejandra stating, he is not quite12 sure what she is asking for. Could you give me a call.13 And then if you turn to the next page there is a14 follow-up e-mail on the same day, this time at 2:04 from15 Alejandra to Mr. Seel, stating, Hi, Mark. We want16 prints of actual input data that you used to generate17 the slopes. Is that clearer? And you see those18 e-mails, that chain, that's background of what I am19 going to ask you about.20 Then on the 26th, Alejandra writes, Thank you for21 the info, Mark. And then if we go to the next page22 there's an e-mail dated November 26 at 4:54, and that's23 from Alejandra and she says to Mark, Understood. Thank24 you, Mark. Sam will get in touch with you on Monday in25

3 of 53 sheets Page 9 to 12 of 122 02/03/2026 04:49:05 PM 9 case it requires additional information. Above that1 then is an e-mail from you dated December 1, and that2 e-mail contains a statement of your evaluation of3 certain issues. And four lines from the bottom of the4 main paragraph in that e-mail a sentence that reads as5 follows: "While the groundwater level has not been6 established, severe rainfall developed a purged water7 condition over the bedrock with seepage parallel to the8 slope. The output indicates that the infinite slope9 cases for Sections A and B are above the assumed seepage10 level and do not address our recommendations."11 Now, following that e-mail, and I am only reading12 this background so we get to where the relevant e-mails13 are. If you turn to the next page going forward, two14 pages actually, there's an e-mail dated December 2, 202515 from Mark Seel to yourself and others. And that says,16 "Sam, a couple observations and thoughts." You see that17 section?18 I am looking at it now.19 A. Great. If you turn to the next page there are20 Q. three paragraphs and in paragraph number three I would21 like to direct your attention.22 MS. McGOVERN: This is the Tuesday,23 December, 2 e-mail at 1:24 PM?24 MR. AFRAN: Bear with me, please. Yes.25 10 MS. McGOVERN: Okay. Paragraph 2, "Our1 cases are accounted for."2 MR. AFRAN: I am directing actually Mr.3 Kleinberg to Paragraph 3.4 MS. McGOVERN: Oh, I'm sorry. The strength5 values, that one? I just want to make sure, because6 they keep running and I want to make sure.7 MR. AFRAN: Yeah. No, that's correct. Yes.8 Yes. For the record, this is one of the documents that9 Mr. Kleinberg forwarded to the board and it's a chain of10 several e-mails, there were other documents that had11 some of these other e-mails, this one happens to be a12 complete set, as far as I can see, so I am using this13 one rather than having repetition.14 Now, if you look at Paragraph 3, Mr. Kleinberg,15 Q. there is a discussion that contains Mr. Seels -- rather16 Mr. Seel has a discussion of certain issues, do you see17 that?18 Yes, I do.19 A. Now, at the bottom of Paragraph 3 there is a20 Q. phrase, CME Response. Here it's in bold, I think it's21 in red in the original. Do you see that phrase and22 response?23 Yes, I do.24 A. Okay.25 Q. 11 Now, before we go further let me ask you a few1 basic questions. In dealing with the

bold, I think it's21 in red in the original. Do you see that phrase and22 response?23 Yes, I do.24 A. Okay.25 Q. 11 Now, before we go further let me ask you a few1 basic questions. In dealing with the issue of slope2 stability, there are several factors to consider. This3 one is the tendency of course grains to adhere or not4 adhere in certain circumstances and that would refer to5 angle of friction that you testified to earlier, is that6 correct?7 Correct.8 A. And obviously every type of soil particle,9 Q. whether it's sand or clay or gravel particles or topsoil10 has a different angle of friction, is that correct?11 Yes.12 A. And that relates to the fact that when these13 Q. particles are at angles above their natural angle of14 friction they will have less stability, is that fair to15 say?16 That's fair to say.17 A. Now, in this paragraph Mr. Seel makes a statement18 Q. that --19 MR. AFRAN: Now I want to point out to the20 board, Mr. Chairman, if I may. I am addressing what's21 said here because it's said.22 MS. McGOVERN: Yeah, I understand that.23 MR. AFRAN: But --24 MS. McGOVERN: But it was marked as O-38 at25 12 the last hearing. It was what you had provided to me.1 MR. AFRAN: Well, yes. But there was no2 witness to testify to the factual basis here. It was3 provided to us but it's not my exhibit. I didn't offer4 it.5 MS. McGOVERN: You cross-examined -- yes,6 it's Objector 38, you presented it and you7 cross-examined him on it.8 MR. AFRAN: That's fair enough. I am not9 suggesting that what is says here by Langan Engineering10 is factually correct.11 MS. McGOVERN: We're not accepting -- we're12 not suggesting -- my point is that you cross-examined13 him on documents that I thought were newly provided to14 you.15 MR. AFRAN: They were newly provided16 documents in the series and I have to go through this to17 get to the rest.18 MS. McGOVERN: Okay. All right. Well,19 understand that the board has already --20 MR. AFRAN: No, no, I understand that.21 Now, the second area of slope stability that's22 Q. very typically looked at is something called, root23 cohesion, is that correct?24 That's what his paragraph refers to.25 A.

02/03/2026 04:49:05 PM Page 13 to 16 of 122 4 of 53 sheets 13 He is referring mostly to the root cohesion.1 Q. And what he's saying, if I interpret it correctly2 is, well, to get, you know, absolute stability here with3 topsoil you need an angle of friction of at least 454 degrees and he says, "Which is not realistic in the5 upper few feet." What he really means is that you don't6 achieve that in nature with those types of particles.7 Is that fair to say?8 Right.9 A. Can I clarify something or add something?10 Yeah.11 Q. In his discussion we are talking about a12 A. particular case where the groundwater level has risen to13 the surface and that it's flowing downhill parallel to14 the surface and it's supplying additional -- it's15 providing a buoyant uplift, which reduces the frictional16 resistance. And this is a case that wasn't evaluated17 either by the opposer engineer or the applicants18 engineer and it's a case that we recommended that they19 address.20 Now, I fully understand that, you alluded to that21 Q. at the last meeting. So I appreciate that.22 Okay. I wasn't sure that you did.23 A. I do understand that. Thank you.24 Q. Now, in terms of root cohesion he's saying well,25 14 since we don't have 45 degrees angle of friction, in our1 view the slopes stable, so something else is accounting2 for the stability. And he infers that must be root3 cohesion, is that fair?4 Right. But, and if I can just describe a little5 A. furthermore. He's describing what would have to happen6 if a condition of flow parallel to the slope had7 occurred, but we don't know that that has ever occurred.8 Well, I understand entirely. And, again, you9 Q. alluded to that previously.10 He says that in their view the slope is stable11 and therefore since it can't be stable only because of12 the angle of friction, which you can't reach here,13 something else accounts for that and that's root14 cohesion?15 It could be stable if that condition didn't16 A. exist.17 We are dealing with the potential for that18 Q. condition?19 But if it ever did occur then it would rely on20 A. root cohesion.21 Yes.22 Q. And since he is inferring that since there's no23 A. evidence on the slope that it ever occurred in either24 right the root cohesion -- if the groundwater condition25 15 had occurred the root cohesion resisted it.1 Right. He's saying that assuming it's stable,2 Q. and this hasn't

it ever occurred in either24 right the root cohesion -- if the groundwater condition25 15 had occurred the root cohesion resisted it.1 Right. He's saying that assuming it's stable,2 Q. and this hasn't happened, it's most likely because3 there's enough root cohesion to make up for the reduced4 angle of friction, is that fair to say?5 It seems fair to say.6 A. Thank you.7 Q. Now, he then says that -- he goes into the8 analysis, I don't need to address it in detail as to why9 he feels, it's a short analysis, two or three lines, why10 he feels root cohesion is adequate and he refers to11 various researchers who have found root cohesion values12 ranging from 200 pounds per foot for clear cuts and13 natural wooded forested lands 500 pounds per square14 foot. He says, "The site is predominately wooded.15 However, if C equals 100 pounds per square foot root16 cohesion is used, FS values would be well over 1.5, i.e.17 1.7 is acceptable." And the slope, "for the slopes in18 question." So he's saying that, assuming we use a 10019 PSF root cohesion, the FS value would be above 1.5 and20 therefore he endorses his 1.5 usage. That's roughly21 what he is saying, right?22 Yes.23 A. Okay.24 Q. Now, at the end of all that, you then say, CMEs25 16 response, "We recommend that Langan provide a formal1 response to the Planning Board on the basis described2 herein to address this issue." Now, what do you mean3 by, formal response?4 It would be in a letter, a technical letter5 A. signed and sealed by the engineer indicating what his6 analysis of the condition was rather than just an7 e-mail.8 In other words, something that's submitted under9 Q. signature of an engineer or potentially under oath?10 Correct.11 A. He could testify and introduce his report, but12 Q. not just an e-mail that's unaccountable essentially?13 That's what I meant.14 A. Good.15 Q. Now, did you see that submitted as of today?16 No.17 A. Okay.18 Q. Now, looking at Paragraph 3, are you in a19 position -- strike that.20 You haven't issued any opinion on his use of the21 100 pounds per square foot root cohesion figure, have22 you?23 I will have to testify that I am not an expert on24 A. developing the value for root cohesion. I would have to25

5 of 53 sheets Page 17 to 20 of 122 02/03/2026 04:49:05 PM 17 start doing research through the literature to develop1 that.2 I assumed that. Thank you.3 Q. Now, in addition he refers at a later e-mail to a4 study by Victoria Stevens from Simon Fraser University5 in British Columbia in which she references certain root6 cohesion figures for Obra Forest v. Clearcut Forest7 recovering from clearcut. And if you look at the front8 of the document, the December 9 e-mail, and in paragraph9 1 he has a response in red italic font.10 MR. AFRAN: Now, that doesn't come out, Ms.11 McGovern, the copy you have as well but it's in a12 lighter gray italic font. So the lighter gray is the13 red that's in the original.14 Now, in that lighter gray area he refers to the15 Q. Stevens study indicating that one can use 156 pounds per16 square foot apparent root cohesion in certain17 circumstances. And he also refers to reference in the18 Miao study indicating -- I'm sorry, that's the Miao.19 Study. And then in the Stevens study he references to20 an indication that 522 pounds per square foot can be21 inferred in root cohesion in natural forests. Do you22 see those references on Page 1 of the exhibit?23 Yes, I do.24 A. Okay.25 Q. 18 Now, I assume you have not read the Stevens1 report, is that fair to say?2 That's fair to say.3 A. And the same with the Miao report?4 Q. Same.5 A. And the reason you haven't it's not your area of6 Q. expertise and you wouldn't feel qualified to comment on7 those references, is that fair to say?8 That's fair to say.9 A. Okay.10 Q. It's also true that in the December 9 e-mail, and11 this is one that I don't believe we had earlier, that's12 why I was going through the background.13 MS. McGOVERN: This December 9 on, Tuesday,14 December 9 at 4:52?15 MR. AFRAN: Yes.16 MS. McGOVERN: It's the first page of O-38.17 MR. AFRAN: Yeah, I didn't notice it but we18 looked at the whole file. We didn't have these. We19 didn't have the studies, so we didn't have the full20 record, that's why I'm going through it now.21 MS. McGOVERN: Yeah, we did.22 MR. AFRAN: I didn't see the study. We were23 not given the studies at the last meeting.24 MS. McGOVERN: Okay. Somebody gave it to25 19 me.1 MR. AFRAN: No, you got the study from Mr.2 Kleinberg.3 MS. McGOVERN: I see what you're saying.4 MR. AFRAN: We didn't have the back up for5 these exhibits, that's why we're going through it

o25 19 me.1 MR. AFRAN: No, you got the study from Mr.2 Kleinberg.3 MS. McGOVERN: I see what you're saying.4 MR. AFRAN: We didn't have the back up for5 these exhibits, that's why we're going through it now.6 I can't see that far.7 MS. McGOVERN: Slope stability, there is8 some kind of diagram.9 MR. AFRAN: There are two academic articles.10 MS. McGOVERN: Okay. I'm sorry.11 MR. AFRAN: I will clarify.12 The Stevens article and the Miao article are two,13 Q. I'll call them, academic articles --14 MS. McGOVERN: Attachment to the --15 MR. AFRAN: Yeah. We didn't have those. I16 don't know that those are peer review articles but17 they're written by academics.18 Now, in paragraph 1 of the first page of exhibit19 Q. for identification 1, it refers to natural forests20 having a presumed or inferred PSF capacity of 522. Do21 you see that reference? It's the fourth line from the22 bottom of Paragraph 1.23 Stevens et al, 2006 indicates?24 A. Yes. Right over there. He's saying that using a25 Q. 20 natural forest, that's his language, Mr. Seels, Stevens1 suggests we can infer a carrying capacity or weight2 bearing capacity, resistance capacity, of 25 KPA or 5223 FPS. Do you see that reference?4 Yes, I do.5 A. Okay.6 Q. Now, do you have any knowledge as an expert as to7 when such a PSF is inferred in terms of what type of8 forest exits on the site?9 No, I don't.10 A. So you wouldn't be able to comment on whether11 Q. he's accurately interpreting the Stevens study in that12 regard?13 That's correct.14 A. And if you read the Stevens study you wouldn't be15 Q. able to comment whether Professor Stevens is commenting16 accurately?17 I mean, if I studied it I might be able. I can't18 A. say until I did it.19 Okay.20 Q. He also says in Paragraph 1, "The site has a very21 mature older growth woodland setting." That's a quote22 from the third line bottom of the paragraph.23 Now, it seems on the basis of this he's24 suggesting that's why he's using the Stevens figure of25