February 25, 2026 Planning Board Special Meeting - WEHI Transcript

eloper 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, "The Fair Housing Act incorporates the need12 to eliminate unnecessary cost generating features from13 Municipal Land Use ordinances as a requirement of14 substantive certification" or in this case, Court15 approval. "In order to receive and approval of its plan16 municipalities shall eliminate development standards and17 requirements that are not essential to protect the18 public welfare and shall design municipal ordinances to19 expedite municipal decisions on affordable housing20 development applications." That is NJAC5:97-10.1.21 Some cost generative items specifically22 identified in the regulations are, "building setbacks,23 height and/or stories, spacing between buildings,24 impervious surface standards, excessive open space,25

25 of 68 sheets Page 97 to 100 of 154 03/20/2026 06:14:03 AM 97 recreation, landscape, buffering, tree replacement and1 reforestation requirements and excessive road width,2 pavement specifications and parking requirements."3 That's NJAC5:97-10.2a.4 Moreover, the regulations go one step5 further. They actually provide, "Failure to remove6 unnecessary cost generative requirements on an7 affordable housing development application, shall be8 considered a reason for dismissal from COAH, or in this9 case, the Courts jurisdiction or revocation of10 substantive certification." That's 5:97-10.2d.11 It is important to note that in providing12 relief from the tree ordinance, the steep slope13 ordinance, the towns environmental regulations, the14 township necessarily considered the impact on public15 welfare as the regulations required. After vetting the16 site with a team of professionals during four plus years17 and in light of the limitations on development set forth18 in the settlement agreement, the town was well aware19 that public welfare could have been a reason to not20 provide such relief in the ordinance or not to include21 the site, or as much of the site in its housing plan.22 They could have advocated for that. But after such a23 lengthy period of review and negotiation, the town24 adopted the ordinance, they inherently determined that25 98 those ordinance requirements were not essential to1 protect the public welfare under these particular2 circumstances.3 All though the board is bound by the zoning4 ordinance, I've referenced these regulations to place5 things in improper context and explain why the township6 agreed to certain items in the settlement and the zoning7 ordinance. This board on October 7, 2020, voted 7-0 in8 favor of recommending the adoption of the ordinance. On9 November 17, 2020, after the councils adoption of the10 ordinance, this board adopted the housing element and11 fair share plan, which I alluded to before, which12 included this development by a vote of 8-0. This was13 all part of the public process.14 At this juncture the third round regulations15 are clear, NJAC:97-10.3a provides "Affordable housing16 developments that are included in housing elements and17 fair share plan have proceeded through a public process.18 Therefore the focus of municipal development application19 review shall not be whether the sites are

t are included in housing elements and17 fair share plan have proceeded through a public process.18 Therefore the focus of municipal development application19 review shall not be whether the sites are properly20 zoned. The focus shall be whether the design of the21 affordable housing development is consistent with the22 municipal zoning subdivision and site plan ordinances."23 So with that being said, let's look at the24 particulars of the IH-1 zone and ordinance.25 99 The purpose. Purpose of the district is to1 provide for inclusionary development that contributes to2 the regions fair share of affordable housing, in3 accordance with a Court settlement agreement which4 outlines the provisions for same. It cannot be disputed5 that the application before you fulfills that purpose.6 All though the Planning Board is not a party to the7 settlement party settlement agreement, and in no way has8 it ever been the applicants position that the board is9 obligated to vote one way or the other, the ordinance10 acknowledges and the board should acknowledge that the11 intent and purpose of the ordinance was the product of a12 negotiated settlement and that my client and the13 township have certain obligations and duties under that14 agreement, such as the general layout of the buildings.15 My clients obligation to install the anticipated traffic16 signal. The townships obligation to cooperate with us17 regarding off-tract utility issues and its overall18 obligation to support and defend the application from19 any challenges. Even before these hearings began the20 Planning Board implicitly acknowledged the settlement21 agreement by deciding to hold special meetings, which22 we're very thankful for, which were provided for in the23 agreement. In his opening statement Chairman Bagoff24 recognized this, specifically noting that the board25 100 would consider the settlement agreement, which is part1 of the application materials.2 General Provision C-5. Development of the3 tract shall be exempt from all bulk design and4 environmental regulations of the West Orange Land Use5 Regulations ordinance, unless otherwise indicated herein6 and further provided that nothing herein shall7 circumvent or contravene the procedural requirements of8 the MLUL, nor the regulatory requirements of outside9 agencies, including but not limited to, the New Jersey10 Department of Environmental

all7 circumvent or contravene the procedural requirements of8 the MLUL, nor the regulatory requirements of outside9 agencies, including but not limited to, the New Jersey10 Department of Environmental Protection and the11 Hudson-Essex Passaic Soil Conservation District.12 The town, including the input of its various13 engineering and planning professionals, determined that14 it could exempt this inclusionary development from many15 of the provisions of the townships land use code,16 including the steep slope ordinance. By adopting the17 ordinance for this property, which is part of the18 townships police power, the township essentially made19 the determination that such code provisions, in this20 instance, in connection with a proposed development21 reviewed over a four-year period, were not essential to22 protect the public welfare. Again, this property, this23 applicant was no stranger to the town and my client just24 didn't come in off the street and appear out of nowhere.25

03/20/2026 06:14:03 AM Page 101 to 104 of 154 26 of 68 sheets 101 After vetting this site and a proposed development1 during negotiation period the Governing Body agreed to2 this provision, which also in good faith complied with3 the towns obligation to eliminate cost generative items,4 which is the regulation I was just referring to.5 This board does not have the authority to6 second guess the Governing Body about what was included7 and what was not included in the ordinance. Just like8 the Planning Board can't revisit the reasons why the9 property was included as an affordable housing site10 compliance mechanism. The board had a role back in that11 process back in 2020 and unanimously voted to include12 this site in the plan. However, the plain language of13 the ordinance is clear, unambiguous, speaks for itself14 and governs this application.15 The use regulations. The permitted16 principal uses, multifamily residential and open space.17 The application clearly complies.18 Permitted accessory uses. I'm not going to19 go through them all, but there are many amenity type20 uses that are listed that are permitted by the21 ordinance. But one that is included, it includes the22 rooftop amenity for Building D. Now, does that mean we23 can violate the townships nuisance laws, absolutely not.24 All though there was lot of yelling and proverbial25 102 pounding during public comment, I do want to make clear1 that doesn't apply to Mr. Weisleder. Throughout the2 hearings, as one of our physically closest neighbors,3 Mr. Weisleder attended regularly and asked thorough,4 rational questions of the witnesses. As someone who was5 one of the most involved and respectful members of the6 public to participate, I would have been fine if the7 board gave him 30 minutes to speak during public8 comment. That's not an invitation because I think he9 deserved that respect. His comments and concerns10 regarding residents of the development possibly being11 able to see him and his family from those northern12 terraces or the rooftop amenities, it did not go13 unnoticed and we do take them seriously. Please don't14 take this the wrong way Mr. Weisleder, but as much as15 you don't want any residents seeing you, we don't want16 them seeing you either. All though the sight lines are17 rather lengthy and there will be an undisturbed forest18 on the eastern slope, we will absolutely agree

y residents seeing you, we don't want16 them seeing you either. All though the sight lines are17 rather lengthy and there will be an undisturbed forest18 on the eastern slope, we will absolutely agree to a19 condition of approval that imposes an obligation which20 appropriately screens any areas which could create such21 an issue, and that doesn't extend through the Planning22 Board or a resolution compliance process, that extends23 in the future. We will agree to interact with Mr.24 Weisleder or any of our neighbors in good faith post25 103 construction should any issue arise.1 The bulk regulations. Total number of2 units, 496. We comply. 20 percent affordable housing3 set aside. We comply. No minimum lot size requirement.4 We comply. Development is limited to a maximum5 disturbance of 30 acres out the 120 and a half. The6 site plan proposes the disturbance of 27.7 acres and the7 remaining 92.2 acres, as I said before, will forever be8 deed restricted as open space. We comply. Unrestricted9 site access, ingress and egress shall be permitted from10 Warner Road and Kuzak Drive. We comply.11 Recall that as submitted the site plan12 proposes full regular access to and from the proposed13 development via Kuzak Drive. As the board is aware14 pursuant to my clients agreement with the condominium15 association as provided for in the settlement agreement,16 we are making a request for RSIS de minimis exception to17 have Kuzak gated to serve as a emergency access only,18 which would only be able to be accessed by and used and19 regulated at then discretion of the townships emergency20 professionals. I'm going to get into that request in a21 little more detail shortly where I address traffic22 generally, but I would like to stress something.23 Regardless of whether the exception is granted, the road24 connecting Kuzak Drive to the rest of the development25 104 will be constructed as provided for on the site plan1 which shows Kuzak as open. You will first need to vote2 on the granting of the exception, if granted, then the3 road will be built and granted for -- gated for4 emergency access only. If the exception is not granted,5 then the project would be approved with Kuzak open to6 regular traffic. In other words, the granting or denial7 of the de minimis exception has no effect on the project8 one way or another.9 Emergency access. Ingress and egress shall10 be

h Kuzak open to6 regular traffic. In other words, the granting or denial7 of the de minimis exception has no effect on the project8 one way or another.9 Emergency access. Ingress and egress shall10 be permitted to Block 179.17, Lots 8 and 9 to the north11 and Bayowski Road to the south. We comply. There is no12 access proposed to Bayowski Road, but as the board is13 aware, this site proposes emergency access only via the14 two single family lots on Howell Drive located in the15 R-3 zoning district. Those lots are owned by an entity16 having a common ownership interest with the applicant.17 Someday there will be single family homes built on those18 lots and nothing else. Any argument that emergency19 access is a use which requires a use variance and20 violates the zoning code, Verona's site plan approval,21 West Orange's site plan approval for those homes, is22 wholly unsupported by the facts of the law. Emergency23 access isn't even defined in West Orange's ordinances,24 so you won't find it as a permitted or prohibited use,25

27 of 68 sheets Page 105 to 108 of 154 03/20/2026 06:14:03 AM 105 accessory or otherwise, in the code book. Does that1 mean there is no emergency access in town? Of course2 not. The Governing Body may determine it needs3 emergency access anywhere in town and can take the4 necessary steps to make that happen, including the use5 of it's condemnation powers. Also the emergency access6 proposed here, it may never even be used. It is there7 for emergencies, and the use of the access will be8 determined by West Orange's emergency personnel, if9 necessary. It is simply not a use. There will of10 course need to be emergency access, even recorded for an11 potential purchasers of those two lots, but this issue12 is nothing but red herring that several people are13 trying to use to just say, you can't build anything on14 this site.15 To put things in perspective, let's assume16 you have a residential subdivision behind a commercially17 zoned property, and the relevant zoning ordinances and18 approved subdivision and site plans don't mention19 emergency access at all. Are you telling me that if the20 police or fire department needed access to the21 commercial property through one or more of those22 residential properties in an extreme emergency, is23 someone from the neighborhood going to run out in front24 of an emergency vehicle, shake their finger and say, no25 106 way. This property is only zoned for single family1 homes. Mr. Firefighter or Mr. Policeman, you're not2 allowed to cut through here to help the man having a3 heart attack in the convenience store behind my house.4 It just shows you how much of a nonissue this is.5 Furthermore the proposed Howell Drive6 emergency access will also benefit the residents of the7 condominium.8 Finally, there is one more important thing9 to note about the emergency access to Howell Drive. It10 is not required, as Mr. Pehnke testified, we think it's11 a great idea to have that access for an extreme12 emergency. It could only serve to benefit the general13 welfare of the residents, including those living in the14 condominium. However, neither RSIS, nor the zoning15 ordinance, nor any other regulation requires it. Mr.16 Pehnke made clear that the development complies with17 RSIS, because there is access via Warner Road and Kuzak18 Drive. If this board was to grant the de minimis19 exception and permit the closure of Kuzak Drive

clear that the development complies with17 RSIS, because there is access via Warner Road and Kuzak18 Drive. If this board was to grant the de minimis19 exception and permit the closure of Kuzak Drive to20 regular traffic and if it was determined in the future21 that the Howell Drive emergency access was not22 permitted, the development would still comply with RSIS.23 If that scenario occurred, we would want to retain the24 option of opening Kuzak to regular traffic in the25 107 future, so if this board were to act favorably on the1 application we will respectfully ask that that be2 recognized in the resolution.3 Next ordinance provision. The affordable4 units shall consist of moderate, low income, units in5 accordance with the requirements of the settlement6 agreement, which actually models the UHAC regulations in7 affect at the time, and establishes minimum size units8 for one-bedrooms at 650 square feet, two-bedrooms at9 875, and three-bedrooms at 1150 square feet. We comply.10 Maximum building height shall be 75 feet, subject to the11 specific standards in this particular ordinance. We12 come in at 47.5 feet. We comply. Maximum building13 height, four stories. Same thing, we comply. The14 maximum exposure of perimeter walls for basements,15 cellars or building foundations shall not exceed 5016 percent total surface area of such walls, which shall be17 based on the aggregate area of all perimeter walls.18 This is the one ordinance provision for which we are19 seeking the bulk variance. Our engineer, Paul Anderson,20 testified on July 30, 2024, on Pages 28 and 29 of the21 transcript that the proposed foundation exposure22 percentages are as follows, 76.5 for Building A. 76.423 for Building B. 69.1 for Building C, and 54.8 for24 Building D. As Mr. Anderson explained, because the25 108 property undulates he used the existing topography to1 build the buildings into the slope in order to minimize2 disturbance and to reduce the amount of clearing3 required around each building, which was of course4 consistent with the townships goal of limiting5 disturbance as much as possible. He confirmed that due6 to the distance from adjoining properties, our neighbors7 would be seeing the portions of the exposed foundations.8 Our architect, Larry Appel, added on July 31, 2024 on9 Page 132 and 202, that the increased foundation exposure10 eliminated the need to disturb more

e seeing the portions of the exposed foundations.8 Our architect, Larry Appel, added on July 31, 2024 on9 Page 132 and 202, that the increased foundation exposure10 eliminated the need to disturb more of the property, use11 additional retaining walls and add more mechanical12 ventilation, which would have also required grading of13 the property, he said, in an awkward manner. We agreed14 to screen those exposed portions with landscaping, green15 wall technology, and similar mechanisms. The record16 confirms that this was an aesthetics issue and that the17 granting of the Bulk C variance would be appropriate.18 The boards planner, Ms. Apte, in her testimony on19 October 29 of this year, noted that the settlement20 agreement recognizes at the time of settlement the21 project was not fully engineered and that it may become22 necessary to seek variance or other relief upon the full23 engineering of the site plan, except for use variances24 of course.25