February 25, 2026 Planning Board Special Meeting - WEHI Transcript

ur engineer16 who analyzed it or by the applicants very qualified17 engineers or their planner or their attorney to show how18 RSIS is not being violated. The only argument they have19 is well, if you theoretically open Kuzak you got two20 roads, but you don't, as we all know. RSIS is being21 violated.22 Now, there is one other area I want to23 address very briefly on. It's a discrete issue but it's24 important. Do you have feasibility of utility25 83 connections shown on this plan? Well, we don't. Take1 the sewer issue for example. There's a conduit built in2 somewhere. Doesn't go anywhere. Doesn't connect3 anywhere on these plans to any sewer line, and doesn't4 do that for very -- and you heard Bill Greene's5 testimony very clearly stating, did you hear any witness6 explain that it does connect up with a sewer line? Did7 you get any witness to testify as to the feasibility of8 adding this rather large amount of waste into the9 existing sewer lines and conduits. You heard no10 evidence of that. What was the answer? The answer was,11 we'll go to the authorities and get permission. Can't12 do that. And you can't do it for a very good reason.13 The law says you can't. There's a case, and it's been14 upheld repeatedly by the Appellate Division, known as15 Field v. Franklin. Franklin Township. It's actually16 Jack Field, give him credit, versus the Mayor and17 Council of The Township of Franklin. And in this18 decision the Appellate Division states reported decision19 at 190 New Jersey Super 326, and it's a 1983 Appellate20 Division decision. It has been repeatedly cited as21 recently as, I think, 2013 by the Appellate Division and22 it is good law in the state, and it says very simply, "A23 municipality cannot guide the use and development of24 lands in this state if fundamental elements of the25 84 development plan are left unresolved before preliminary1 approval, leaving them instead for an unspecified later2 day." And the court cites some cases and I'll go on3 with the text of the decision. "Certain elements, for4 example, drainage, sewage disposal and water supply, may5 have such a pervasive impact on the public health and6 welfare in the community that they must be resolved at7 least as to feasibility of specific proposals or8 solutions before preliminary approval is granted. If9 the Applicant fails to provide sufficient information on10 the fundamental

must be resolved at7 least as to feasibility of specific proposals or8 solutions before preliminary approval is granted. If9 the Applicant fails to provide sufficient information on10 the fundamental elements of this plan, preliminary11 approval should be denied." It doesn't say, the12 applicant should be allowed to come back later and give13 you a certificate that such and such sewage authority14 granted them connectivity. It says, "Preliminary15 approval must be denied." Meaning they cannot do it16 later. This is preliminary approval. Field v. Franklin17 is the binding law of the state. It's been recognized18 repeatedly in other cases. We don't have any evidence19 of feasibility of utilities. We don't even have pumping20 stations in the plans to show how the waters going to21 get up there. You heard Bill Greene testify we don't22 even have a water tower that's necessary in order to23 supply water for firefighting purposes. Where is it24 going to go? Can the water get up the ridge? There's25

03/20/2026 06:14:03 AM Page 85 to 88 of 154 22 of 68 sheets 85 no evidence of that. No one testified to it. We have1 no evidence of sewage feasibility. No one testified to2 it. We don't even know if water actually can go in3 here, and where the pumping stations going to go.4 There's no land left. We can't stick them on the5 wetlands, we can't stick them next to the wetlands6 because the buffer zones are there. All of these7 things, as Bill Greene testified and it was almost8 entirely unrefuted, are not shown. And the court is9 very clear. "Feasibility must be resolved prior to10 preliminary approval." And you can't say, we'll leave11 it for a condition of approval. The law doesn't allow12 it. We've given you a multiplicity of reasons why this13 plan should be denied. Those reasons will stand up in14 court.15 In the end, and there's a lot more we could16 talk about, but frankly I've spoken long enough, and I17 think you get the idea of this case. In the end you've18 got to decide, are you satisfied that the adequate proof19 as to all of these very necessary questions are shown.20 If adequate proof is not shown to satisfy you public21 health, safety, welfare, and in many cases the law, are22 satisfied, you have to say, no. And I can tell you23 based on this evidence, no court in this state is going24 to overturn that decision. And we'll be right there25 86 defending it. If you're not satisfied you must vote no,1 it's not an option.2 I want to thank you for listening, I was a3 little longer than I thought, I apologize. Thank you4 for these 28 meetings, a year and a half of time here.5 Ms. McGovern and I were talking, you know, what do we do6 on these Wednesday's, Dr. Bagoff I know doesn't know7 what to do one way or the other. So thank you very much8 and I'm open for questions.9 I thank our supporters.10 CHAIRMAN BAGOFF: Thank you very much, Mr.11 Afran.12 We're going to take a five-minute break.13 (Whereupon, a short recess is taken.)14 CHAIRMAN BAGOFF: Thank you.15 Welcome back, ladies and gentlemen here and16 on zoom.17 Mr. Plocker for the applicant, closing18 remarks, sir.19 MR. PLOCKER: All right. Thank you very20 much and I'm going to do my very best. I'm trying to21 decide whether I'm going to wear my readers or not, and22 it's probably going to make me look awkward at times,23 but I guess I'm old and I have to come to that24 realization, so we'll figure

ing to21 decide whether I'm going to wear my readers or not, and22 it's probably going to make me look awkward at times,23 but I guess I'm old and I have to come to that24 realization, so we'll figure that part out.25 87 Thank you, Chairman Bagoff, Vice Chairman1 Guarino, Mayor McCartney, Council President Scarpa and2 the rest of the board members.3 My client and I recognize that the4 conducting of so many special meetings required5 additional time away from lives and your families and it6 was obvious that all of you put in the commitment7 required to not only be here but take these proceedings8 seriously. Even taking the time to review the9 transcripts or listen to the audio from meetings you10 couldn't attend.11 Now, not once was I notified that we had to12 cancel the meeting at the last minute because we didn't13 have a quorum, and that's commendable for so many14 meetings over a year and half. I can tell you from15 experience it does not always happen that way in other16 towns. Even for regular meetings, so it really is17 extraordinary. It really shouldn't go unnoticed because18 this board does play an important role as set forth in19 the Municipal Land Use Law. The law. That may be a20 dirty word to some people in this room, but planning21 boards are a creation of and bound by the law.22 Including established judicial precedent. You're23 required to public hearings on-site plan applications,24 you review evidence, you hear the facts, you hear25 88 testimony from the applicants witnesses, from the1 objectors witnesses, and in this case the board took the2 additional step of asking its own professionals to weigh3 in and offer testimony after it heard from both sides.4 That is also not something that happens every day.5 There is no doubt that this board took extraordinary and6 meaningful efforts to understand all aspects of my7 clients application so it could comprehend the facts8 within the context of its legal duties, the law and the9 facts. There is a famous quote by Carl Sandberg, which10 has been somewhat prevalent in the news lately. "If the11 facts are against you, argue the law. If the laws12 against you, argue the facts. If the law and facts are13 against you, pound on the table and yell like hell."14 During public comment we heard a lot of, Do the right15 thing. Save the forest. The town should buy the16 property. Yelling about how the

s are13 against you, pound on the table and yell like hell."14 During public comment we heard a lot of, Do the right15 thing. Save the forest. The town should buy the16 property. Yelling about how the application before you17 is so incomplete that it should have never even had a18 hearing in the first place. They screamed, there's no19 sewer plan. There's no water plan. Mr. Afran just said20 there's no sewer plan, no water plan. I'm going to show21 how very wrong he is. It wasn't a mischaracterization,22 it's just wrong. Those assertions are not based in law23 or in fact.24 During the last two meetings the board heard25

23 of 68 sheets Page 89 to 92 of 154 03/20/2026 06:14:03 AM 89 some yelling and figurative pounding through the pleas1 of passion fueled by a desire of many whose goal it is2 to not see a single thing built on this property. Look,3 and the public should be commended. You have a very4 engaged citizenry, which you're all a part of. They're5 your neighbors and that doesn't go unnoticed or not6 appreciated. However, just as it's your job at the end7 of the day to weigh the credibility of witnesses8 testimony, it's your job to weigh the credibility of the9 statements and testimony of the public, and Mr. Afran,10 in light of the facts and the law, are the comments11 supported by the record. While the public should12 certainly be recognized for their passion and13 commitment, such zeal and enthusiasm have no bearing on14 this boards duty to evaluate the applicants proposed15 development.16 To the contrary standing before you this17 evening, I'm proud to state that I will not be pounding,18 I will not be yelling, because both the law and the19 facts unequivocally mandate the approval of this20 application. Except for one bulk variance the21 application fully complies with the standards set forth22 in the IH-1 zoning ordinance. An ordinance adopted more23 than five years ago by the council which was fully aware24 of the characteristics of this property and the proposed25 90 development, including its physical features that up to1 30 acres would be disturbed, while the remaining 902 acres would be forever preserved. The permitted density3 allowing 496 units, the area of disturbance. The fact4 that the property contains a forest, the slopes, the5 access via Eagle Rock Avenue, Oval Road and Warner Road.6 The proposed road connecting Kuzak Drive to the7 development. The emergency access easement that would8 be permitted through two single family lots on Howell9 Drive. Knowing that a traffic signal would be required10 at the intersection of Eagle Rock and Oval, and that my11 client had agreed to install that traffic signal. All12 of these things were known when the town zoned the13 property. The township was no stranger to this14 property. It was the culmination of a four year15 mediation process, during which it was advised by a team16 of professionals. The township engineer, consulting17 site and traffic engineers. The township planner. An18 affordable housing planner

ear15 mediation process, during which it was advised by a team16 of professionals. The township engineer, consulting17 site and traffic engineers. The township planner. An18 affordable housing planner and legal counsel. By19 adopting the ordinance it did, which does include many20 exemptions from the typical zoning and environmental21 code requirements, it did so because it felt that the22 long negotiated development could be built in a safe,23 appropriate manner that did not have a detrimental24 effect on the public welfare, even in the absence of the25 91 applicability of those regulations.1 The township voluntarily included the2 property as a significant compliance mechanism in it's3 third round affordable housing plan. The required4 Master Plan amendment was adopted by this board and the5 zoning ordinance was also endorsed by this board before6 it was adopted.7 So let's look at the governing zoning8 ordinance. I could easily stand here for a few minutes,9 go over the ordinance provisions and say, we comply10 except for the one variance we're seeking. Thank you11 very much. The board should grant the application.12 Good night. But it's apparent that the objector group13 and the public, they don't like or they have a hard time14 comprehending or accepting the zoning ordinance, and15 that's okay. And they also just don't understand why it16 provides certain relief from the towns land use code.17 While that's not relevant to these proceedings, as this18 board is not a legislative body, I think it is important19 to the Planning Board to understand the relevancy of the20 circumstances under which the ordinance was adopted and21 the time and the effort that went into its adoption. I22 can't stress enough that my client wasn't just some fly23 by developer who walked in off the street and24 willy-nilly convinced the town to rezone this property25 92 sight unseen and to exempt the site from many ordinance1 provisions that typically govern site plan applications.2 To be clear, the Affordable Housing settlement was3 resolved by litigation filed by the township, not by my4 client, not by any other developer, but which West5 Orange sought voluntary compliance with it's Third Round6 Mount Laurel obligations.7 Mr. Afran, I must correct you, this was not8 a builders remedy lawsuit. There was no gun to the9 townships head. The town had historically sought10 compliance in

hird Round6 Mount Laurel obligations.7 Mr. Afran, I must correct you, this was not8 a builders remedy lawsuit. There was no gun to the9 townships head. The town had historically sought10 compliance in the past, we all know that didn't really11 happen with the Fourth Round, but this was the towns12 only Declaratory Judgment lawsuit. But it was a13 settlement of their Third Round Declaratory Judgement14 action which led to this ordinance and the ordinance15 incorporated into the settlement agreement between West16 Orange and the applicant and as a result of that17 litigation the town received a great benefit. The court18 granted the town a Final Judgement of Compliance and19 Repose. Meaning that West Orange had complete20 protection from builders remedy lawsuits through July21 2025. In connection with that settlement, this board22 had a hearing on November 17, 2020, at which the23 townships then Affordable Housing planner, Shirley24 Bishop, presented the plan and the board unanimously25

03/20/2026 06:14:03 AM Page 93 to 96 of 154 24 of 68 sheets 93 approved the plan by a vote of eight to nothing. The1 board subsequently memorialized its decision in2 resolution 20-08 adopted on December 20, 2020. On Page3 9 of the approved Fair Share Plan, the West Essex4 Highlands development is identified as the third5 compliance mechanism providing 100 affordable units6 pursuant to which the town also received 51 bonus7 credits for a total of 151 credits towards it's overall8 third round obligation. That fair share plan9 specifically states on Page 9 that the property shall10 contain 496 family rentals, including 100 affordable11 units. That there is an executed settlement agreement12 that contains a concept plan, zoning amendment, design13 terms and conditions and West Essex Highlands14 condominium terms and conditions. The numerous15 mediation sessions occurred with both WEHI, the Township16 and the Condominium Association. And that the17 settlement agreement is the result of those sessions.18 The plan also states that the site is available insofar19 that it's owned by my client. The site is approvable in20 that there's an executed settlement agreement that21 contains the proposed zoning. The site is developable,22 that it has access to public water by New Jersey23 American Water Company and sewer from West Orange.24 The site is suitable that it's surrounded by25 94 residential uses, has Warner Road as it's primary1 access.2 Now, many people here, I know, they've done3 it during the hearings, they've questioned why the site4 was chosen as a third round compliance mechanism, but5 it's not this boards role to question, revisit or6 relitigate the townships affordable housing obligation.7 There was a public process for that, which culminated8 five years ago due to the townships settlement efforts,9 including the rezoning of this property and the township10 should be commended. They fought hard, they bent over11 backwards to preserve as much of this property as12 possible.13 The township filed its litigation in July of14 2015, my client became involved at the end of '15. The15 settlement occurred in April of 2020, this was not a16 quick process. There was much thought, review and17 investigation by the township and its full team of18 professionals which resulted in a settlement reached and19 ultimate adoption of the zoning ordinance. The20 settlement which

thought, review and17 investigation by the township and its full team of18 professionals which resulted in a settlement reached and19 ultimate adoption of the zoning ordinance. The20 settlement which incorporated the zoning ordinance was21 mediated by a court appointed special master approved by22 the court at a publicly noticed variance hearing and by23 fulfilling its obligations under the court approved24 settlement, the town received its final judgment25 95 compliance and repose. So with that backdrop let's look1 at the IH zoning ordinance.2 Knowing that the entire property is 120 and3 a half acres, a review of the ordinance reveals that the4 township had two overarching goals in restricting5 development. One, limit the disturbance of the property6 to a maximum of 30 acres. And two, do not disturb the7 eastern slope at all. Stay west of a certain lot. To8 be clear, it is not a setback line. Just stay west of9 what we affectionately refer to as the Lenny Line, a10 line named for Mr. Lapore, the former township engineer11 who was part of the towns team at the time. The plan12 meets these requirements, while disturbing only 27.713 acres of the property. And what happens to remaining14 undisturbed 93 acres, it will be forever preserved and15 deed restricted as open space. Meaning nothing may be16 built on the remainder of the property in the future.17 Now, it's obvious that the objector and the18 public don't like the zoning ordinance. They don't like19 the settlement the township made, and that's okay. But20 those items went through a lawful public process that21 went unchallenged. This Planning Board is not the farm22 to object to the ordinance or to the settlement23 agreement or to the Court's 2020 judgment which approved24 the settlement and sanctioned the rezoning of the25 96 property. With the exception of a bulk provision1 regarding the percentage of foundation exposure, which2 requires a C variance, the application fully complies3 with the ordinance requirements. Again, many people4 don't like the ordinance, they don't agree with its5 requirements and question why it was adopted, or why the6 ordinance treats this property differently. However,7 has a developer ready, willing and able to develop8 inclusionary housing on the site, the town had an9 obligation to treat this property differently.10 The applicable affording housing regulations11 recognize,