February 25, 2026 Planning Board Special Meeting - WEHI Transcript

03/20/2026 06:14:03 AM Page 29 to 32 of 154 8 of 68 sheets 29 case. It also is 85 slides, but we're only using a few.1 Some of them are larger because some of the resolutions2 are attached to the 89 pages.3 All right. This is just the front page and4 let me get to my summary.5 Now, I want to start with this excerpt from6 one of the leading Mount Laurel decisions, actually the7 leading decision.8 Now, a lot of people have an understanding9 that affordable housing means other things go down the10 drain. They get dropped off our radar screen. They11 don't. This decision from South Burlington County NAACP12 v. Mount Laurel, 92N.J.158(1983) makes the following13 statement. And this is the Supreme Court of New Jersey.14 "We reassure all concerned that Mount Laurel is not15 designed to sweep away all land use restrictions or16 leave our open spaces and natural resources prey to17 speculators. Municipalities consisting largely of18 conservation, agricultural, or environmentally sensitive19 areas will not be required to grow because of Mount20 Laurel." And here's the final line that's of great21 significance as well. "No forests or small towns need22 be paved over and covered with high-rise apartments as a23 result of today's decision." No forests need be paved24 over and covered with high-rise apartments as a result25 30 of todays decision. This is the governing law of the1 state and it remains the governing law of the state.2 And anyone who says that inclusionary housing or3 affordable housing comes at the expense of the4 environment, is wrong. Quite frankly, council should5 never had made this deal it made. It made it, it's6 there. It need never pass this ordinance because a7 proper understanding of Mount Laurel would have told the8 town that no speculator can force it to destroy a forest9 to build affordable housing. This decision could not be10 clearer. It is the governing law of the state. And the11 notion of destroying this forest or large parts of it12 and degrading the rest that's left, is absolutely13 antithetical and contrary to Mount Laurel Doctrine. I14 don't know why council didn't know about this when it15 made this deal, I wasn't involved, but this deal need16 never have been made. And you have no obligation to17 approve this site plan simply to create affordable18 housing. Not if it comes at the expense of the other19 aspects of your

, but this deal need16 never have been made. And you have no obligation to17 approve this site plan simply to create affordable18 housing. Not if it comes at the expense of the other19 aspects of your jurisdiction.20 Now, we know that among the purposes of the21 Municipal Land Use Law are protection of the22 environment, Section 40:55D-2. Two -- well, multiple23 provisions, J in particular, states, "Among the purposes24 are to promote the conservation of historic sites and25 31 districts, open space, energy resources and valuable1 natural resources in the state and to prevent urban2 sprawl and degradation of the environment through3 improper use of land." To prevent urban sprawl and4 degradation of the environment through proper use of the5 land. Nothing more carefully and closely matches that6 band than this project, and we'll talk about that next.7 And the remainder of the Municipal Land Use Law contains8 similar provisions governing the nature of how projects9 can be approved.10 If you're still reading I'll leave it up,11 But may I proceed? We can go back to it.12 That's the site. The plot. The gray area in the13 center obviously is the plot we're dealing with. That's14 the 120 acres. I hope I do this correctly. I don't15 normally use these.16 Over here, you don't see it on this map, but17 that's part of the forest. Over here there's additional18 forest and there's some strips of it here and you'll see19 that on the later exhibits. That's why Dr. DeVito came20 up with about 140 acres for the total forest. The21 square or rectangle rather, represents only about 120.22 So the actual lot that this will be built on is 12023 acres. The actual total forest is about 140. We will24 see the exact figures shortly. And you can see just on25 32 this tax map it's surrounded by a completely developed1 area. So if we move further, that is what you're used2 to seeing. And this is the general -- this is one of3 the various engineering drawings, I think, that's the4 overall site plan.5 Now, we see Building D here obviously, and we see6 wetland here. I'd like you to bear in mind where the7 wetlands are because this is going to become important.8 To the right of the project, to the western side is a9 wetland, in the center there's a wetland and to the left10 is a wetland. To the far left, you see this line here,11 that's one of the deer fences that Mr. DeFeo proposes.12 And

the western side is a9 wetland, in the center there's a wetland and to the left10 is a wetland. To the far left, you see this line here,11 that's one of the deer fences that Mr. DeFeo proposes.12 And the other deer fence is here, around that area.13 If Mr. Fagan can pull it back a little. Thank14 you.15 You can see here the deer fence area on the16 western side. The deer fence proposed on the eastern17 side. All the rest of it, besides the wetlands and18 buffers, will be developed areas of disturbance.19 Now, bear that in mind. Bear in mind where the20 wetlands are in relation to where proposed buildings21 are. And of course you see Building D here, and the22 entire area behind it is impermeable, so to speak, from23 rescue vehicles.24 Now, there's going to be an emergency access25

9 of 68 sheets Page 33 to 36 of 154 03/20/2026 06:14:03 AM 33 road, and I might as well address this issue right now1 since we have the map up, and you'll see up here, this2 represents on the plot itself a small part of an access3 drive. Lots 8 and 9 in the neighboring R-3 district,4 where my laser is pointing -- that's perfect. Has the5 extension of that access drive that the applicant6 proposes. Now, they own those two lots so they can7 build if they ever get approval.8 Now, the interesting problem is that there's no9 ordinance that authorizes that access drive in the R-310 through Lots 8 and 9. It's an important issue, it's not11 a major issue, but important legally. That is a12 residential single family home district, it allows13 driveways as an accessory use, the driveways going to a14 house. It does not provide for uses in driveways or15 access ways or roads to a multifamily complex in another16 district. And the law is very clear on this as well,17 that in order to add -- did I do something. In order to18 add that piece of road, that emergency access drive in19 Lots 8 and 9 in the R-3, a use variance has to be20 obtained. No use variance is sought as part of this21 application. No notice to the residents of the R-3 that22 a use variance would be sought has been served and the23 application is not actually legally complete. Now, you24 may wonder, well, why didn't the developer, who's25 34 obviously spent an enormous amount of money, I don't1 criticize that, it's expensive to do this work, I'm2 proposing this. Why didn't the developer seek a use3 variance? Go to the Zoning Board and seek a use4 variance. Well, it's pretty obvious why. That's a5 single family home residential district and will be6 subject to an emergency access way serving a complex of7 about 2000 people, potentially hundreds of families.8 Hundreds of vehicles. And so the ability to prove the9 negative criteria, to prove out the negative criteria,10 almost certainly doesn't exist. And that's why the11 applicant hasn't gone to the Zoning Board for that use12 variance, because the community, number one, would have13 to be given notice in that zoning district, and two, the14 Zoning Board would have a great deal of problems15 overcoming the negative criteria. They're involved with16 allowing hundreds, even more vehicles to leave that site17 through a residential neighborhood into a tiny

ould have a great deal of problems15 overcoming the negative criteria. They're involved with16 allowing hundreds, even more vehicles to leave that site17 through a residential neighborhood into a tiny local18 street. The negative criteria that are required for a19 use variance almost certainly would never be achieved.20 That is why it has not been done. But it renders this21 application legally incomplete, and that in and of22 itself is a variance approval, and it can't be a23 condition of approval when you go get a use variance.24 You got to have the use in order to provide the project.25 35 You can't gain approval without a use. And if you don't1 have it, you got to go to the Zoning Board first. They2 didn't do that and they didn't do it for very good3 reason. They would never get through. And this plan4 can't actually be approved because of that. Because of5 that problem right there.6 Now, I want you to bear in mind that issue, it's7 a legal issue. I didn't call a planner because I felt8 we were given very good guidance on the point, but I9 felt as a legal issue I could address it in this way.10 Now, it's a pure question of law. Can a use11 variance -- can a project requiring a different use in a12 neighboring zone, this zoning district, be approved by13 this board without a use variance? It can't. And it14 hasn't been done, and you have not heard the applicant15 offer a single legal authority, not one that allows a16 project to go forward that would require a use variance17 in the adjoining zoning district. And they didn't offer18 that authority because none exists. That alone is a19 reason why it must be denied.20 I'd like to move forward. We're back to the21 other map where I was pointing to. Okay. Just bear in22 mind to the locations of the wetlands, the gray shaded23 areas. This is another view of the development. Now,24 it shows not only the buildings but it highlights in25 36 essentially brown color, a lot of the parking areas,1 roadways and turnabouts and other areas of disturbance.2 So you can see this entirety of the disturbed area, it3 essentially goes, I'm sorry I keep -- my apologies. I4 keep meaning to hit the laser. It essentially means5 that this entire area is an area of disturbance, minus6 the wetlands right here.7 Now we can go further. You may recall this8 exhibit. You can't see it here and I'm not going to9 pretend we can see it. This

his entire area is an area of disturbance, minus6 the wetlands right here.7 Now we can go further. You may recall this8 exhibit. You can't see it here and I'm not going to9 pretend we can see it. This was the tree survey10 document from the 2006 proposal the West Essex Highlands11 Corporation offered when they were trying to develop 13612 single family homes, and you recall the testimony and13 the evidence was really very clear. Here they proposed14 that the tree population per acre was something on the15 order of about 550 trees per acre. Now they claim it's16 212 trees. Now, where'd the other trees go? You heard17 testimony -- where did they go. They just up and left.18 I mean, as you recall Lord of the Rings there's a whole19 population of intelligent species that were trees, they20 could actually walk around. Well, these trees can't do21 that. They're still there. And we know they're there22 because the canopies unchanged. Mr. DeFeo conceded the23 point, Dr. DeVito made the point. The tree cover is24 exactly the same, though a little older and probably25

03/20/2026 06:14:03 AM Page 37 to 40 of 154 10 of 68 sheets 37 little taller today as it was in 2000 -- this is a 20101 document, I believe, as it was in 2010 when another2 proposal was made by the developer. Those trees still3 exist in the same census numbers that the applicant4 itself offered for another version of the development on5 this site. Now suddenly the tree population is in half,6 and that means that the number you've been given, I7 believe somewhere in the order of 7000 trees are to be8 lost, is vastly inaccurate. The real number is probably9 two-and-a-half to three times greater based on the10 mathematical calculation using that tree survey. Not11 the tree survey that's more than cut in half that's12 offered on this application. The applicant is bound by13 its own admissions. It has not offered a single shred14 of evidence as to why that tree count was wrong back at15 the time of this drawing. And so the actual tree loss16 is probably going to be three times higher. I think17 when you check the testimony we offered calculations of18 that on cross-examination. So to begin with, the bare19 figure you've been given of 7000 something trees to be20 lost, is wrong. It's actually two and a half to three21 times larger and many of those are serious trees.22 Elderly trees, old trees, trees that are valuable23 ecologically. Dr. DeVito said the trees are about 90 to24 100 years old, many of them have another 100 to 20025 38 years of life left. So bear that in mind. Trees that1 will be knocked down and not even acknowledged because2 of the extreme undercount on this current application3 are going to be lost. Trees of that vintage, which have4 another 100 or 200 years of life left. They're an5 extraordinarily rare entity.6 This is an example of one of the many7 letters and statements you've received. This is from8 Boswell Engineering on behalf of Verona. I'll just note9 very quickly, we have them throughout here, I don't want10 to go through the pages, it's very difficult to read11 anyway. They're in the record, you've heard testimony,12 often they were cited by representatives of the13 different towns. They're reports from the West Orange14 Planning Board, Verona Town, Verona Planning Board15 through it's engineer, Verona Environmental Commission,16 South Orange Environmental Commission, West Orange17 Environmental Commission, County of Essex

ing Board, Verona Town, Verona Planning Board15 through it's engineer, Verona Environmental Commission,16 South Orange Environmental Commission, West Orange17 Environmental Commission, County of Essex Environmental18 Commission, County of Essex Commissioners, and I believe19 there are others that were cited on the record, not just20 documents that were submitted. So bear in mind many of21 you neighboring municipal agencies and municipalities22 have objected. You heard Mayor Ed Davis speak and there23 are other political officials who spoke, officials who24 spoke in here. Remember all the public comment, we25 39 heard 27, 28 sessions, at almost every one of them there1 was public comment. Some of it had been vociferous.2 There was not a single person, not one person in a year3 and a half in 28 sessions, that spoke in favor of this4 project. There was not one government official who came5 in and spoke in favor. There was not one neighboring6 agency, neighboring municipality that spoke in favor,7 and not one individual came forward to endorse this8 project and support it. Now, I've never been in case9 like that. Every time I've been in a case where there's10 serious environmental issues, there's always somebody11 who endorses it. There's always somebody who agrees12 with the notion of building it. I've never seen a case13 where 28 meetings take place, Ms. McGovern, if I'm wrong14 it's 27 or 28, I'm not sure. I've never been in a case15 where there are 28 hearings, I'll us that number, and no16 one has ever spoken in favor of the application, except17 the applicant. That tells you something. And under the18 MLUL, one of the objectives is respecting the interests19 of neighboring governments and municipalities. You20 can't pass ordinances, you can't approve plans that will21 injure the interests as expressed by neighboring22 communities. And many have said, sewer capacity is at23 risk. There's no sufficient water capacity. We're24 worried about flooding from this project, we're already25 40 experiencing it and you heard testimony about that. So1 bear in mind that there's been an extraordinary deposit2 of documents from other agencies opposing this project3 and giving their reasons, and you never heard a single4 person endorse this project, other than of course the5 applicant.6 I'll just scroll through these. I'm sorry.7 Let me go back.8 The next document we have

g their reasons, and you never heard a single4 person endorse this project, other than of course the5 applicant.6 I'll just scroll through these. I'm sorry.7 Let me go back.8 The next document we have is the hydrology9 report from the engineering firm Princeton Hydro, which10 represented the objectors. Now, I'm not going to go11 through all of what he testified to, his reports12 available to you. His testimony, I think, was very13 clear. I frankly think he was both clear, concise, and14 kind of modest in his presentation. He said, this is15 our knowledge. This is what we have to offer, that was16 Sean Walsh. What I'd like to do is take you to his17 analysis of wetlands impacts.18 Now, Mr. Fagan, if you could just please19 enlarge that. Thank you. A little less if you can.20 Perfect. Thank you.21 Now, this is at Page 4 of his report, and it22 was a, an engineering drawing that he created using what23 you saw earlier. The parking areas, the other areas of24 disturbance, and the buildings themselves in the site25

11 of 68 sheets Page 41 to 44 of 154 03/20/2026 06:14:03 AM 41 plan. It doesn't include Building D, because Building D1 is not directly implicated by this particular issue.2 Now, you heard about recharge and you heard3 that DEP said recharge is okay on the site. We will4 achieve recharge. Now, what does recharge mean. I5 think you all know it, but just to summarize. It simply6 means stormwater runoff will be returned to the riverine7 system so it can serve in the drinking water supply.8 That's all it means. We're recharging the system with9 the natural stormwater runoff that has to be diverted10 and we're going to make sure it gets back into the11 rivers, because that's where we get our water from.12 Canoe Brook is one the places this community and13 neighboring communities get their water. And the runoff14 from this site goes into Canoe Brook, and we'll see that15 later in Professor Hasse's exhibit. You'll see that16 this forest is actually the headwater, the only17 headwater of the Canoe Brook, for good reason, it's a18 ridge.19 Now, on this chart Mr. Walsh has included20 blue arrows and red arrows, they may be purple arrows.21 Now, look at the purple arrows on the left22 side, they go to that long wetland that I pointed out23 earlier that's on the left side of the, western side of24 the site. And that -- the purple arrows show the25 42 natural stormwater movement under existing conditions as1 the forest exists today, and it's based frankly only on2 the contour lines and the presence of the wetlands.3 Now, why are the wetlands there. They're4 there for a very good reason. We have wetlands on the5 western side, we have wetlands in the center on the6 bottom, and we have wetlands right here on the eastern7 side. In the right-hand corner, eastern side here.8 Now, why are the wetlands there. They're there for one9 simple reason. Gravity puts the water there, because10 the contour lines are going down in altitude, and we're11 starting from a high point in the center, and you can12 the see lines narrow, and in each case the lines narrow13 in the direction where the wetlands are. That's why the14 wetlands are there. Because over thousands of years15 water has accumulated and gradually soils change,16 because of the presents of the water, and we get hydric17 soils. Clay develops, we get other types of conditions18 that lead to the creation of wetlands. A wetland