February 25, 2026 Planning Board Special Meeting - WEHI Transcript

1 of 68 sheets Page 1 to 4 of 154 03/20/2026 06:14:03 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, FEBRUARY 25, 2026 6:30 P.M. FINAL SUMMATIONS RE; PB-24-01 WEST ESSEX HIGHLANDS, INC. BOARD MEMBERS: ROBERT BAGOFF, Chairman JERRY GUARINO, Vice Chairman SUSAN McCARTNEY, Mayor KEN ALPER JOHN CARDOZA LORI KAPFERER SUSAN SCARPA, Councilwoman RYAN MacNEILL, Engineer JAMILET BAQUERIZO VITE, Board Secretary GENIECE GARY-ADAMS, Zoning Official JOHN FAGAN 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 .6 B Y D I A N A P . M c G O V E R N , E S Q . O N E B O L A N D D R I V E , S U I T E 1 0 27 W E S T O R A N G E , N E W J E R S E Y 0 7 0 5 2 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 d8 9 B R U C E I . A F R A N , E S Q . 1 0 B R A E B R U N D R I V E10 P R I N C E T O N , N E W J E R S E Y 0 8 5 4 0 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 ,11 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 N P A G E3 4 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 : W e l c o m e b a c k , l a d i e s a n d1 g e n t l e m a n , b o t h h e r e a n d o n z o o m .2 W e n o w h a v e a n a p p l i c a t i o n b e f o r e y o u , P B - 2 4 - 0 13 W e s t E s s e x 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 e4 I H - 1 , W a r n e r 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 o5 d e v e l o p a 4 9 6 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 l6 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 n t h e7 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 W e s t O r a n g e .8 T h i s e v e n i n g , l a d i e s a n d g e n t l e m e n , w e w i l l h e a r9 t h e f i n a l s u m m a t i

h e7 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 W e s t O r a n g e .8 T h i s e v e n i n g , l a d i e s a n d g e n t l e m e n , w e w i l l h e a r9 t h e f i n a l s u m m a t i o n o f t h e a t t o r n e y f o r t h e a p p l i c a n t ,10 M r . P l o c k e r , a n d t h e a t t o r n e y f o r t h e o b j e c t o r , M r .11 A f r a n .12 M r . A f r a n h a s t h e f l o o r f i r s t , s i r .13 M R . A F R A N : T h a n k y o u . J u s t g i v e m e o n e14 m o m e n t , M r . C h a i r m a n , p l e a s e .15 C H A I R M A N B A G O F F : S u r e .16 M R . A F R A N : J u s t g i v e m e o n e m o m e n t , M r .17 C h a i r m a n .18 C H A I R M A N B A G O F F : S u r e .19 M R . A F R A N : T h i s p i l e i s n o t a s f e a r s o m e a s20 i t l o o k s .21 G o o d e v e n i n g . W e a r e a t t h e p e n u l t i m a t e p h a s e o f22 o u r c a s e . A n d , y o u k n o w , w e w e r e t a l k i n g b e f o r e , i t ' s23 a l m o s t a s i f , t r i a l s a r e f u n n y t h i n g s . T h i s i s a t r a i l .24 Y o u k n o w , e v e n a d v e r s a r i e s b e c o m e f a m i l y a f t e r a w h i l e .25

03/20/2026 06:14:03 AM Page 5 to 8 of 154 2 of 68 sheets 5 So, you know, you're together to long that, you know,1 you're -- what you start out with is not exactly what2 you end up with, in terms of who you know and your3 experiences, and so I feel that as well.4 We are not in an ordinary land use case. I5 think we're in the 28th session today, I'm not exactly6 certain. Some of the sessions didn't have a lot of the7 necessary testimony, but this has been a very8 substantive case and you have all been sitting through,9 as has the community and those watching, an unusual10 situation in which, you know, there have been two sets11 of witnesses fairly equally matching each other in12 general, in experience, in credentials and in knowledge13 and in what they have had to say. And the reason for14 all that is that what's at stake here is actually15 extremely important. We're not talking about an16 ordinary project. We're not talking about an ordinary17 supermarket in a mall or in a strip mall. We're not18 talking about an ordinary office building along side a19 well developed corridor. We're talking about a very20 rare thing, that is an old growth forest in the center21 of New Jersey.22 Now, you've heard Dr. DeVito speak about the age23 of these trees, and that's not what we're speaking of,24 we're speaking of other aspects of the plan. But to25 6 begin with, we're speaking of that. We're speaking of1 really something that almost never exists anywhere in2 this state, except in some small corners perhaps.3 Somehow this 120 acres, it's actually 140 when you add4 in the pieces in the corner that are not part of this5 lot. The lots 120 acres. I think Dr. DeVito pointed6 out that the total size of the forest is 140 or so.7 It's all contiguous of course. As Dr. DeVito said, the8 trees on this site alone are generally, on average,9 about 100 years old. That in itself is rare, a10 collection of trees on a large property of that acreage.11 One of the reasons that there is a relatively small12 understory, of course we have deer browse, as Mr. DeFeo13 said. We have that everywhere.14 Another reason, and that comes right from Dr.15 DeVito's testimony, actually Mr. Appel alluded to it16 indirectly, though being an architect he didn't realize17 his reference referred to the environmental issues.18 You may recall way back, Mr. Appel, the architect19 who was here July, I think, of

it16 indirectly, though being an architect he didn't realize17 his reference referred to the environmental issues.18 You may recall way back, Mr. Appel, the architect19 who was here July, I think, of 2024 was asked by20 someone, may have been a member of the public, I'm not21 sure, why the balloon test was not done. And that22 balloon test, for those who don't know, is the test23 where you send a balloon up at the height of the24 building so that from a certain point one can see25 7 whether the height will be visible, what will be visible1 of the building. It wasn't done, and I think it was Mr.2 Appel, it could have been Mr. Anderson, forgive me if3 I'm incorrect Mr. Anderson, but I believe Mr. Appel4 said, we didn't do it because we couldn't do it. And5 the reason we couldn't do it is because the balloons6 can't penetrate the canopy. The canopy of this forest7 is so dense that they could not do the balloon test.8 Now, we didn't complain about that because we9 understood the reason. Sometimes you have an agreement10 and it says you'll do a balloon test or other test, you11 may not be able to do it, but that is a very telling12 point.13 Now, Mr. Appel being an architect, I think it was14 him, didn't really necessarily perceive the point we15 would derive from it. But the canopy is so dense in16 this forest you can't even send the balloon up. One of17 the reasons the understory is relatively minimal, and18 this comes through Mr. DeFeo, and I think Ms. Lafar19 also, is the canopy is so dense. In a mature forest20 very little sunlight reaches the fall. So of course we21 have deer browse, deer do get to some of the understory22 that grows. But as it was made clear in some of the23 professional testimony from Dr. DeVito, when you have a24 very dense canopy and little sunlight reaching the floor25 8 of the forest, very little grows on the floor of the1 forest. That's not a sign, as Mr. DeFeo tried to2 suggest, that this is not a healthy forest. That's a3 sign of a mature forest from old growth trees. I don't4 know if anyone has ever heard this before, but when you5 study the history of the eastern seaboard, Europeans6 first came, I won't say to settle, I'd probably say to7 invade, the eastern areas, the reports were that they8 often ride a horse through woods, and that's because the9 woodlands were so developed and so mature that there was10 relatively little

ly say to7 invade, the eastern areas, the reports were that they8 often ride a horse through woods, and that's because the9 woodlands were so developed and so mature that there was10 relatively little understory. And this is a point we11 need to understand. That this is not a forest that is12 unhealthy, this is not a degrading forest, it is not a13 degenerative forest. This forest is like the way it is,14 is because it is so rare an entity. It is an old growth15 forest in the center of one of the most dense suburban16 areas in the world.17 Now, we'll see the images from the exhibits in a18 few minutes and you can see how this 120 acres, and I19 think you all know this, is surrounded by an enormous20 settled area, and there are very few other areas like it21 nearby. Off to the right of the image you'll see22 there's a park, which is a little bigger than this area.23 And then to the left is a smaller triangular piece of24 green, and some scattered pieces here and there. But in25

3 of 68 sheets Page 9 to 12 of 154 03/20/2026 06:14:03 AM 9 general this is a fully developed suburban urban area.1 As is much of the areas beyond the photos we have. In2 fact all of them. It is a rarity of this forest that3 prompts a lot of this case.4 Now, the settlement agreement in 2020, which is5 really primarily between the township and the developer,6 and I think the association was a part of it for certain7 purposes, was essentially settling a would be builders8 remedy case. Now, you all know what a builders remedy9 case is. It's when a builder says a towns not meeting10 its affordable housing duties, we will do that for you.11 We'll pick up the burden, give us permission to build12 500 unites and you'll get 100 affordable out of it. And13 that litigation is what led to the settlement agreement.14 It's in a sense sort of a gun is held to the township,15 I'm not criticizing fellow lawyers, that is what16 litigation involves, and it said, that gun says, look,17 if you don't do a deal with us we will sue you. And the18 town doesn't want to be sued. I'm not giving away any19 secrets, West Orange isn't rolling in litigation dollars20 it wants to spend, I assume Mayor, that's correct. And21 so the town is concerned, What do we do. So a22 settlement arises. And that settlement requires23 approval by the Planning Board, this body, of this plan.24 Doesn't mandate approval. It requires approval. And25 10 those two things are very different obviously. You are1 an independent body, you're independent of the township.2 A very good example of that is Mr. McGovern who cannot3 serve as township counsel. She is absolutely barred by4 law from serving as township counsel, because this body5 must be independent by law of counsel. Of course6 they're members on the Planning Board who are also on7 the Governing Body, you wear two hats, but both hats8 have to fend separately. There's a duty on council and9 there's a truly separate duty here. Councils a10 political body, it's a legislature. As you know, this11 is a court. This is a quasi judicial body and your duty12 is truly to be independent. You are not governed, we13 had a lot colloquy about this, Dr. Bagoff sometimes14 jumped in on the discussion also. You are not bound by15 this settlement agreement. The settlement agreement16 does not bind this body. It can not legally. And so17 when it says, there must be approval of

ed in on the discussion also. You are not bound by15 this settlement agreement. The settlement agreement16 does not bind this body. It can not legally. And so17 when it says, there must be approval of the site plan by18 the board, it doesn't mean the board will approve it.19 It means the applicant must go through approval and20 prove it's case and it must prove to the satisfaction of21 this board that this plan not only meets the bare rule22 of the ordinance, but protects the public health, safety23 and welfare. That's the fundamental duty of the24 Planning Board. That's why we're here. If it were only25 11 a matter of checking things off on the ordinance, we1 wouldn't have to go through this whole evidentiary2 process. Excuse me. I'm sorry3 Now, in the settlement agreement, something4 very unusual happened. The ordinance purports to5 eliminate practically all environmental regulations that6 otherwise apply to site plan applications in this town7 and in most other towns. We know what those are, in8 general, an environmental impact statement has to be9 produced, and various other considerations. There's a10 tree ordinance that needs to be followed, that was set11 aside in the settlement agreement. And there is a ban12 on certain construction at steep slopes, that was set13 aside in the settlement agreement. And it proposed in14 the settlement agreement an ordinance that took those15 things out, and I'll have to acknowledge that the16 ordinance purports to do just that. It removes the17 environmental protection. Mr. Plocker and I had some18 good back and forth at times and also with some19 witnesses as to what the ordinance and settlement20 agreement provided.21 Now, there is one provision, certainly, it22 required Mr. DeFeo be hired. That was Wayne DeFeo who23 sat here for a couple of days, and I think he's a very24 nice person, he was very gracious in cross-examination.25 12 He was hired by the direction of the settlement1 agreement and the ordinance, essentially to give a2 report on the value and manner in which deer fencing can3 be placed on those two side portions and what value that4 would have. And the idea is obvious, that if you put a5 deer fence surrounding a forest, or at least separating6 a forest in certain areas, you will get less deer and7 hopefully less deer browse and hopefully over a period8 of years, more regeneration of the understory. And

ding a forest, or at least separating6 a forest in certain areas, you will get less deer and7 hopefully less deer browse and hopefully over a period8 of years, more regeneration of the understory. And if9 you can achieve that that's a perfectly good thing to10 achieve. That's what Mr. DeFeo was hired to talk about.11 Now, who is Mr. DeFeo. He's a decent guy, I12 like him. We had great talks in the hall, but he is not13 an expert on forestry, and he doesn't have true14 credentials. He did say that he has, I think it was an15 environmental science master's degree. I think he went16 to Montclair. That's fine. And he said he had a class17 or part of a class on forestry. Well, he didn't really18 know and offer very much on the subject outside of the19 idea that if you fence out deer you may get more growing20 inside. Well, you don't need a master's from Montclair21 to say that. To some degree it's an obvious point. If22 you fence out deer you won't get as many deer inside and23 you'll get less browse and over three or four years you24 may get more growth. In reality you won't get that much25

03/20/2026 06:14:03 AM Page 13 to 16 of 154 4 of 68 sheets 13 because of the very dense canopy in this mature forest,1 but the goal was, you'll get some. As far as it goes2 that's fine. So what is the bargain that you're being3 asked to approve. You're being asked to approve a4 project that will decimate most of the forest. The5 entire central portion of that forest will be clearcut.6 And we know that the fragmentary parts around the7 development will also be severely impaired. In exchange8 for a bargain, that bargain is that the developer will9 pay a relatively heavy cost of a couple hundred thousand10 dollars for deer fencing. Deer fencing to go on the two11 side pieces that will be left over. The town can't12 really afford deer fencing, the developers not going to13 do it on their own, unless they're getting something in14 return, so to avoid deer browse there's a compromise15 offer. That's the essence of that settlement agreement.16 Let us build a 500 unit development in a place no one17 ever built before, in a place that's never had18 construction of almost any kind, in an old growth forest19 that's almost unheard of in central New Jersey, and in20 an urban area. And in return we'll put up a couple21 hundred thousand dollars on this project in which will22 take hundreds of millions of revenue so we can maybe23 stop some additional deer browse on the two fragmentary24 pieces that are left. And they call that an25 14 environmentally sound project. Well, it's not. And we1 know it's not because of the testimony we offered2 through Mr. Farr and primarily Dr. DeVito, as well as3 Sean Walsh and Mark Gallagher.4 Now, they were experts in ecology and hydrology.5 Dr. DeVito is a PhD in ecology from University of6 Wisconsin. He worked in the field of forestry his whole7 entire life. He is the lead ecologist and forester for8 the New Jersey Conservation Fund, which is the body that9 has been most responsible for preserving forests in New10 Jersey.11 You may remember the Great Swamp where an airport12 was proposed on the Great Swamp. Figured it was a13 swamp, it was a waste of a place. It was the14 Conservation Fund that historically fought that, and15 Newark Airport was built where it is today because of16 the successful fight to protect the Great Swamp, which17 is today one of the great ecological resources in the18 state, and that's why we are here now. Those

t was built where it is today because of16 the successful fight to protect the Great Swamp, which17 is today one of the great ecological resources in the18 state, and that's why we are here now. Those battles19 occur in rooms like this, and they occur through a lot20 of commitment of time and money and human resources and21 a lot of your time. And the only way those battles are22 won is to go through this process. So Dr. DeVito is the23 chief ecologist and forester for the entity that is most24 responsible in New Jersey for preservation of forests.25 15 His credentials vastly outweigh, and I mean no criticism1 of Mr. DeFeo, and I can't quite see if he's here today,2 but I mean no criticism of him personally. His3 credentials vastly outweigh Mr. DeFeo's. Mr. DeFeo4 acknowledged, and he is in fact the towns recycling5 supervisor, his company does the recycling and the6 transfer of trash in the town. That's fine, it's an7 important field, but it's not expertise in ecology or8 forestry. Dr. DeVito has that. Mr. Farr has that.9 Sean Walsh and Mark Gallagher have that. Mr. DeFeo's10 knowledge went very -- to a very limited extent. Namely11 what will happen if you fence off a forest and reduce12 deer browse. And frankly, again, I mean no disrespect,13 you don't need any level of expertise to know that if14 you fence in woods deer can't get in. And if deer can't15 get in they can't eat what may grow. That is not proof16 of the absence of massive environmental harm on this17 property.18 Now, we'll go through the evidence and we'll19 see what would happen once this project is built. And20 environmental issues are only one dimension of the21 problem. I am not going to propose to go through the22 technical evidence in any detail, for good reason.23 Number one, it's just beyond the scope of doing a24 summary, a summation. And two, it may not get us25 16 anywhere, because experts can always disagree with each1 other. You'll have to go through the transcripts and2 see for yourself whether certain questions are answered3 to your minds or not.4 Before I get to the forest issues, I do want5 to address that in one general way. We had a lot of6 testimony on the geostructural issues, primarily7 concerning Building D, which is just at or near the8 ridge, and it comes up to a point of about seven feet to9 the top and it goes back a little bit. Now, we offered10 Geof Goll, who said