February 25, 2026 Planning Board Special Meeting - WEHI Transcript

as a non hazard zone based on the calculations and12 the appearance of the site.13 And finally when pushed by Mr. Afran, Mr.14 Kleinberg stated, "This this is not an extremely heavy15 building." When pushed further he confirmed that in New16 Jersey, "We are building buildings on the ridge lines.17 Mr. Kleinberg even testified that if someone had asked18 him to design Building D in that location he would19 design it. He noted that building on ridge lines is not20 an exception in New Jersey.21 Mr. Kleinberg's ultimate conclusions were22 crystal clear. The building not being on the steep23 slope, it's proposed in the location permitted by the24 ordinance and may be built safely in that location.25

35 of 68 sheets Page 137 to 140 of 154 03/20/2026 06:14:03 AM 137 Regarding fire. Actually, pull up that1 document. One, it should be noted, as Mr. Appel2 testified to, our architect, the buildings are fully3 sprinklered. Sprinklered.4 Mr. Afran referenced a bullet point about5 there -- give me one second. Regarding access to the6 rear of the building. Mr. Afran read to you the first7 bullet point where it does say having rear access is8 ideal. However, our traditional attack tactics include9 entry through the front door.10 But the second bullet point he reaffirms,11 "Again, we traditionally enter structures from the front12 door. If hoses are to be deployed to a different13 location, we carry sufficient lengths on each apparatus14 to accommodate such situation. We have the ability to15 create a water supply with large diameter hose to16 stretch further than we traditionally would."17 And the final thing I just want to note,18 this job complies with the fire code and it complies19 with RSIS. So I'll just state that for the record.20 Just to address some of the other witnesses21 offered by the objector that Mr. Afran referenced this22 evening. Mr. DeVito testified on April 30, 2025 about23 forestry and forest ecology. Mr. DeVito offered no24 testimony regarding items which are regulated. His25 138 analysis regarding core forest and edge forest concerned1 items which are not regulated by the state outside of2 the Highlands and the Pinelands possibly. And they're3 not regulated by this town.4 When asked by Dr. Bagoff, What would you do?5 Meaning what's the solution for this site. Mr. DeVito6 responded that he would, "Find the money and save it."7 This fits in with the true intent of many people here8 who don't want to see a single thing built, but we have9 zoning and there is no legal justification to preserve10 100 percent of the property. The township was fully11 aware of the acreage of disturbance and the general12 areas of disturbance, which was vetted by its own13 professionals. The ordinance permits us to proceed with14 this development and nothing testified to by Mr. DeVito15 changes that.16 Mr. DeVito also confirmed on Pages 18 and 2017 of his testimony, that there are no threatening or18 endangered species present at the site.19 Luke Butler, the avian zoologist and20 biologist, he testified on April 30, 2025. Mr. Afran21 incorrectly takes the position

hat there are no threatening or18 endangered species present at the site.19 Luke Butler, the avian zoologist and20 biologist, he testified on April 30, 2025. Mr. Afran21 incorrectly takes the position that an ecological study22 was required for this application. The ordinance23 explicitly exempts this application from all24 environmental regulations of the townships land use25 139 code, including the obligation to provide an EIS. As1 previously stated, the township and my client had an2 extended period of time during discussions, and the3 township agreed to zone the property in a particular4 way. The settlement agreement provides that my client5 quote, and Mr. Afran read the same provision, "Shall6 submit all plans to DeFeo and Associates, the Townships7 environmental consultant, for review and comment." The8 proposed ordinance, which was adopted word for word9 after the recommendation of the Planning Board, was10 attached to that settlement agreement. There is no11 reading of the ordinance or the settlement agreement12 which required the submission of an EIS and the board13 followed that ordinance and never required it of us.14 Not withstanding, Mr. Butler testified about birds which15 may or may not be present on the property. In response16 to a direct question by the boards engineer on Page 10317 of that transcript, Mr. Butler confirmed that none of18 the species he observed were listed as endangered or19 threatened. Mr. Butler did not testify to any matters20 regulated by the ordinance or otherwise prohibited by21 the state.22 Mark Gallagher, the wetlands scientist, the23 ecologist, he testified on June 4, 2025. The24 regulations of wetlands is within the exclusive25 140 jurisdiction of the DEP, not the municipality. The DEP1 issued a valid LOI, which was extended during the2 pendency of this application, along with the DEP3 issuance of the required stormwater permits approving4 the proposed stormwater design. The objector disagreed,5 they filed an appeal in the Appellate Division, they6 told you many times that's for that farm. They even7 filed a request to suspend the permits, and that request8 was denied.9 The board's engineer on Page 56 of the10 transcript, confirmed that wetlands are regulated by the11 DEP and that it is not something the board can comment12 on. On Page 57 he confirmed, "It would just be a13 condition of approval that the applicant

ipt, confirmed that wetlands are regulated by the11 DEP and that it is not something the board can comment12 on. On Page 57 he confirmed, "It would just be a13 condition of approval that the applicant would have to14 obtain the necessary LOI as well as any development15 permits, general permits related to freshwater16 wetlands."17 Also there were allegations by the public18 that the property -- strike that.19 And it's important, by the DEP granting the20 LOI, that allows us to develop the buildings where they21 are proposed on the site and this board should not22 overlook that.23 Mr. Hasse, who Mr. Afran also referred to.24 He testified on August 25, 2025, the geology professor25

03/20/2026 06:14:03 AM Page 141 to 144 of 154 36 of 68 sheets 141 and the mapping expert. Testimony had to do with smart1 growth planning and mapping, as Mr. Afran showed you.2 It had nothing to do with the ordinance, it had nothing3 to do with the site plan. If anything, one of his maps4 showed that the single family homes on Howell Drive were5 built on steep slopes.6 Finally, the applicant called Ms. Michele7 Byers on August 25 of last year. She is the retired8 executive director of the New Jersey Conservation9 Foundation. Her testimony had nothing to do with the10 ordinance or the site plan. She testified about land11 preservation and the value of land. The board attorney,12 on Page 87, rightfully questioned that this seemed to13 relate to a challenge of the ordinance. Ms. McGovern14 correctly noted, "The board can't void out this15 ordinance because environmentally they think it has a16 better idea what should have been there or what should17 have been done." So -- I'm going to wrap up shortly.18 You've heard the facts, you're familiar with the law.19 There's no question that, except for the bulk variance20 regarding building foundation exposure, the application21 fully complies with the IH-1 zoning ordinance. That one22 bulk variance, as I alluded to, should be granted23 pursuant to Section 70C of the Land Use Law and the DCA24 regulations requiring municipalities to cooperate with25 142 affordable housing developers in granting reasonable1 variances.2 The boards obligation under the law is3 clear, it doesn't have the power or jurisdiction to4 disregard the zoning ordinance in place since October of5 2020, only the Governing Body has the power to adopt,6 amend or repeal zoning ordinances. The MLUL defines the7 term, Governing Body, as "The chief legislative body of8 the municipality." And the laws clear that it's the9 Governing Body which may adopt or amend the zoning10 ordinance, not the board.11 Here the town council adopted the zoning12 ordinance and it was the Planning Board adopted the13 Third Round Fair Share plan which included this property14 as a compliance mechanism.15 And two, recommended the adoption of the16 zoning ordinance to the council.17 Importantly, ordinances enacted pursuant to18 the -- enacted pursuant to the police power are19 presumptively valid. That's New Jersey Shore Buildings20 Association v. Township of Jackson, 1990 NJ 38

Importantly, ordinances enacted pursuant to18 the -- enacted pursuant to the police power are19 presumptively valid. That's New Jersey Shore Buildings20 Association v. Township of Jackson, 1990 NJ 38 Supreme21 Court case 2009.22 It's black letter law that a planning board23 must apply the ordinances that in are effect at the time24 the application is submitted under the Time Of The25 143 Application Rule. That's Section 10.5 of the Land Use1 Law.2 The applicant fully recognizes that the rule3 provides an exception for those subsequently adopted4 ordinances regarding public health and safety. However,5 there have been no subsequent changes to the IH-1 zone6 ordinance which provides that all other provisions of7 the Land Use code are inapplicable. It specifically8 states, "Any other regulation pursuant -- pertaining to9 tree removal and replacement in the township code, shall10 not apply to the property." Regardless, as already11 addressed, all the evidence presented supports that the12 that property condition has not changed between the 202013 rezoning of the property and the present. The township14 was well aware of the physical characteristics of the15 property when it entered into the settlement agreement16 and adopted the ordinance. The Governing Body17 inherently considered any potential effect on public18 welfare in providing that relief. It determined that in19 this case for a property the township vetted for more20 than four years, where disturbance was being limited to21 only one fourth of the property, and the remaining 9222 acres would be forever preserved, the ordinance23 provisions which don't apply were not essential to24 protect the public welfare. So even if there was a25 144 subsequently adopted ordinance for this property, which1 there is not, the public health and safety exception2 would not apply.3 The MLUL is clear. Section 46B states, "The4 Planning Board shall, if the proposed development5 complies with the ordinance and the MLUL, grant6 preliminary site plan approval." Likewise Section 50A7 plainly states, "The Planning Board shall grant final8 approval if detailed drawings, specifications and9 estimates of the application for final approval conform10 to the standards established by the ordinance." The11 word 'shall' "included in these statutes show that12 approval with a fully conforming application is not a13 discretionary

inal approval conform10 to the standards established by the ordinance." The11 word 'shall' "included in these statutes show that12 approval with a fully conforming application is not a13 discretionary decision." This is supported by the New14 Jersey Supreme Court decision in Pizzo Manton Group v.15 Township of Randolph, 137 NJ216 1994. All though that16 case concerned a subdivision application, as I just17 pointed out, the MLUL has corresponding "shall" grant18 language for site plan approval. The Pizzo court held19 that approval must be granted if the application20 complies with the ordinance. Noting that it's the21 Governing Body that's, the entity, which devises public22 health or safety standards. The zoning ordinance23 combined with the MLUL, shall grant provision, is what24 provides the framework within which planning boards must25

37 of 68 sheets Page 145 to 148 of 154 03/20/2026 06:14:03 AM 145 act.1 Any argument that the plans are incomplete2 is without merit. The application was filed more than3 two years ago. There hasn't been a single instance in4 which the Planning Boards professionals have alleged or5 even questioned the completeness of the plans. The6 plans clearly show the stormwater drainage system, which7 has been fully approved by the DEP, the sewer system and8 the waterlines. My client has an agreement with New9 Jersey American Water to service the property and10 approval from the Soil Conservation District, which11 would in any event be required as conditions of12 approval.13 We've actually made the board and the towns14 job a lot easier. We have them all. All of those items15 are customary and normal conditions of approval and we16 satisfied them, like I said. The only item remaining is17 the TWA application in connection with the sewer, which18 is a routine third-party condition of approval.19 This board doesn't grant or agree to sign20 TWA applications.21 My client has met with and will continue to22 meet with township engineers who have a good faith duty23 to cooperate with us so that the township engineer may24 sign off on that application.25 146 There is no doubt that the proposed1 development with the one bulk variance exception fully2 complies with the IH-1 zone and ordinance.3 Accordingly, the board should approve the4 application as is it's duty under the law.5 In the coming week before you deliberate and6 vote, look at the facts. Look at the details set forth7 in the application materials, including the site plan,8 specifically the pages that I referenced. Importantly9 look at your own experts opinions and reports regarding10 stormwater, traffic, sewer, water and geotech. All of11 which support the granting of the application.12 Finally, and Mr. Afran didn't mentioned it,13 but I will, because it was said a lot during these14 proceedings. There's been a reliance by many in the15 public on the boards April 5, 2006 denial of my clients16 subdivision application for the old application of 13617 single family homes. Obviously that was a completely18 different application at the time when the zoning19 ordinance permitted single family residential. So it20 should have no relevancy here. However, I need to clear21 up the record because this board was presented with

ation at the time when the zoning19 ordinance permitted single family residential. So it20 should have no relevancy here. However, I need to clear21 up the record because this board was presented with many22 inaccuracies or incomplete misrepresentations regarding23 the history of the site and the applications that came24 before this board.25 147 First, there were not multiple denials,1 there was one. There were two other subsequent2 applications filed, but they were never heard to3 conclusion.4 Second, this boards denial was overturned by5 the Superior Court. On April 10, 2008 Judge Goldman6 entered an order reversing the denial and remanding the7 application to this board. Again, that application and8 the boards original denial should have no relevancy9 here. So I won't go into details. However, in ordering10 the remand, Judge Goldman noted, "There should be no11 doubt that this development will be built. The possible12 hopes of some neighbors that the property will remain13 virgin forest forever will likely not come to pass. The14 board cannot use its discretion over subdivisions to15 stop construction of a project that conforms to all16 relevant zoning ordinances. The board has a duty to17 work with, cooperate with, and interact with WEHI to see18 to it that the property is developed in accordance with19 the zone plan, zoning ordinance and subdivision20 requirements."21 So, again, thank you for your time. Thank22 you for your dedication. I also look forward to many23 free Wednesday nights in the coming weeks and months,24 but as I will leave you, I will say one last time,25 148 follow the facts. Follow the law. If you do from a1 legal standpoint it's not a difficult decision. The2 board should grant preliminary and final site plan3 approval. Thank you very much.4 CHAIRMAN BAGOFF: Thank you, Mr. Plocker.5 MR. AFRAN: Can I just note an objection.6 CHAIRMAN BAGOFF: Wait. Whoa, whoa, whoa.7 Hold it. Hold it. Hold it.8 Tell me what you want to do? Because we're9 not looking for -- any objection now has to be done in10 writing. There's nothing else for the board to11 consider.12 MR. AFRAN: Let me say, in response to --13 well, there's two things. First of all, we've never14 seen this letter from the water company. My -- it was15 done in response to my own experts testimony, we should16 have been given a copy. I'd like to get a copy.17 CHAIRMAN BAGOFF: Was that,

e never14 seen this letter from the water company. My -- it was15 done in response to my own experts testimony, we should16 have been given a copy. I'd like to get a copy.17 CHAIRMAN BAGOFF: Was that, was that18 presented to the township from New Jersey American19 Water?20 MR. PLOCKER: The New Jersey Water agreement21 was entered into a week or two ago.22 MR. AFRAN: Yeah, I need a copy.23 MR. PLOCKER: I have no problem doing that.24 CHAIRMAN BAGOFF: Okay.25