February 25, 2026 Planning Board Special Meeting - WEHI Transcript

03/20/2026 06:14:03 AM Page 109 to 112 of 154 28 of 68 sheets 109 Moreover, the township agreed that the1 applicant would be entitled to such minor relief as may2 be necessary to develop the subject property, that's at3 the settlement agreement Pages 11 and 12, Paragraph 3.1.4 In addition to bulk variance standards set5 forth in the land use law, testified to by our planner,6 John McDonough, on January 28, 2025, the applicable7 regulations require a towns cooperation with granting8 variance relief. Specifically, "Municipalities shall9 cooperate with developers of affordable housing10 developments in granting reasonable variances and11 waivers necessary to construct the affordable housing12 development. That's NJAC 597-10.3b.13 Again, this condition is aesthetic in nature14 and the applicant is committed to installing the15 appropriate screening.16 There's no substantial detriment resulting17 from this variance condition and it allows us to limit18 the disturbance and clearance of the property.19 The minimum buffer is 100 feet. We comply.20 The east face of the Watchung Mountain shall remain21 undisturbed from the peak of the ridge line, except that22 utility construction shall be permitted east of the23 ridge line. I'm not going to use any demonstrative24 exhibits, but I think I have an explanation that25 110 explains it quite carefully. I will give the board an1 opportunity to go back in the next week and review the2 site plan.3 First, the building layout for all4 buildings, including Building D, is substantially5 consistent with the location of the buildings shown on6 the concept plan attached to the settlement agreement,7 which is what was required. Obviously, the plan as I8 said was not fully engineered at the time of the concept9 plan, that's the definition. Concept plans are not10 fully engineered. The settlement agreement recognized11 that, so the precise layout, orientation, shape of the12 buildings have changed. That is not unusual for those13 differences to happen between concept phase and a fully14 engineered site plan. They're all in the same area of15 disturbance contemplated by the site plan and neither16 the board nor the boards professionals during the past17 two years since the application was filed, have called18 the building placement into question.19 With respect to Building D. As required by20 the ordinance it's not located on the

ls during the past17 two years since the application was filed, have called18 the building placement into question.19 With respect to Building D. As required by20 the ordinance it's not located on the eastern slope and21 the application complies with the ordinance. Again,22 neither the board nor it's professionals throughout this23 entire public process questioned whether the building24 placement violated the requirement that we stay west of25 111 the Lenny Line. Mr. Kleinberg confirmed numerous times1 in his testimony that the building is not proposed to be2 on the slope. He was clear. The concept plan attached3 to the settlement agreement and the site plan both show4 that line, the Lenny Line, that we need to stay west of.5 The line is shown on the overall grading plan, which is6 sheet SP-11. It's not hard to find and follow. It's a7 hashed line, it's a bit darker than the topographic8 lines that it traverses. It starts along the northern9 property boundary to the north of the roundabout by10 Building D, and just west of the emergency access to11 Howell Drive. It initially travels in an east-southeast12 direction north of the building, after which it turns to13 the south and generally follows the eastern face of the14 building before heading in a southerly direction where15 it ends at our property line just to the north of the16 Bakley Terrace cul-de-sac. To see a blown up image of17 that line as it runs along Building D, which I encourage18 you to do, look at Sheet SP-17 for the northern portion19 of the building and Sheet SP-16 for the southern20 portion. The blowups are important, they more clearly21 show Building D in fact complies with the ordinance22 requirement by staying west of the line, but they do23 something else. They show the flatter ground to the24 east of the line but prior to the actual slope, which25 112 you could see further to the east where the topographic1 lines all kind of start to crowd together. They get2 extremely close indicating the steep slope over to the3 east. By taking a close look it's not -- it is obvious4 that this was not some arbitrary line. It meanders from5 north to south and you can see that it basically follows6 the midpoint of this generally flat area, so that there7 is relatively flat ground to the east, which we're not8 permitted to build on. The equivalent of a buffer9 between the Lenny Line and the actual

he midpoint of this generally flat area, so that there7 is relatively flat ground to the east, which we're not8 permitted to build on. The equivalent of a buffer9 between the Lenny Line and the actual slope. Even where10 the pinch point, which has been referred to several11 times is located, where it's about 7 feet from the line,12 it is not 7 feet from the slope. There is still13 approximately 20 to 30 feet where the ground actually14 ascends a bit before the topo lines get very close15 together and the slope starts. This was also recognized16 by Mr. Kleinberg during his testimony. Whether it was17 intentional or not, there was a clear misconception by18 many people who attended these hearings by claiming we19 were building only 7 feet from the slope. That is20 clearly not the case. The line was a negotiated line,21 the requirement was that we needed to stay west of it,22 which we do. And there's no development or disturbance23 proposed on the eastern slope. We comply with that24 ordinance requirement.25

29 of 68 sheets Page 113 to 116 of 154 03/20/2026 06:14:03 AM 113 Parking regulations is controlled by RSIS.1 RSIS requires 966 spaces, 1070 are proposed. Plus for2 the buildings, plus another 102 other spaces that we3 have on the site plan.4 Tree removal and replacement. Nobody is5 trying to hide the fact that trees need to be removed.6 We are disturbing 27.7 acres of a forest, which the7 ordinance permits. This was fully contemplated by the8 township. As I stated earlier, the township is more9 than familiar with the site and had a team of10 professionals advise it in connection with the11 settlement agreement and the ordinance. It's also no12 secret that my client agreed in the settlement13 agreement, and the ordinance requires, the applicant14 forever deed restrict the remaining 92 plus acres as15 open space.16 As part of the settlement, as seen in the17 ordinance, the township agreed to give us credit for18 each acre of trees removed in exchange for each acre of19 undisturbed property with fencing and deer fencing. The20 212 trees per acre was estimated by the town and the21 boards own expert, Mr. DeFeo, and the team of arborists22 and foresters. I believe he said they were Amy Greene23 and Davey Tree Service. He employed them. Mr. DeFeo24 was not our expert, the town asked him to independently25 114 assess the quality of the forest and get an estimated1 tree count and he did deem the quality of the forest2 poor because of excessive deer browse. The township3 understood that it had an obligation to act in good4 faith and eliminate cost generative items such as,5 excessive tree replacement and reforestation6 requirements. Mr. DeFeo and his team did the estimated7 count, not my client. Mr. Afran wants to rely on a more8 than 15 year old document which states a higher number9 of trees, but that document doesn't reveal the10 methodology behind that number or whether there was even11 a methodology. Whether it represented an estimate, a12 guess, an actual count. Mr. DeFeo in his testimony on13 December 11, 2024 called the 2010 tree plan,14 statistically invalid. Statistically flawed. And he15 discounted it completely. That is generally located on16 Page 8 to 11 of the transcript. He said, "I discount17 every bit of data in there." On Page 37, "The report is18 statistically invalid and therefore, are you familiar19 with GIGO, garbage in garbage out. There is

of the transcript. He said, "I discount17 every bit of data in there." On Page 37, "The report is18 statistically invalid and therefore, are you familiar19 with GIGO, garbage in garbage out. There is garbage20 data in and garbage data out. I do not give any21 credibility to this report, because the data is flawed.22 The methodology is flawed. The study area is flawed.23 Ergo, it is statistically invalid and the numbers are24 meaningless." That's on Page 38, Line 25 to Page 39,25 115 Line 6.1 A your counsel advised at the December 11,2 2024 meeting, "Case law says the Planning Board has no3 jurisdiction to override the ordinance." She also4 advised, "So they have to take the ordinance, enforce5 the ordinance, and see if the application that's6 submitted is in keeping and matches up to the7 ordinance." There's no DEP rule or regulation which8 renders the tree removal and replacement section in the9 ordinance invalid or which requires certain provisions10 in the tree ordinance.11 The current tree ordinance, which was12 adopted after the settlement and rezoning of this13 property is not applicable. The settlement advises that14 ordinance requirements for this property, this third15 round inclusionary housing site, may not be changed16 without the consent of Lehigh. The township intended17 the new tree ordinance to apply, it would have been a18 breach of the settlement agreement. The IH-1 zoning19 ordinance specifically addresses tree removal and20 replacement. It was not challenged, it wasn't21 subsequently modified, and it's the ordinance under22 which this board must evaluate the application.23 Mr. DeFeo also made clear that he and his24 professionals did their own study in 2019 at the25 116 townships direction. He and his team arrived at an1 estimate of 212 trees per acre. After being retained by2 the Planning Board in connection with this application,3 Mr. DeFeo advised -- revisited the site and observed no4 change in condition. The methodology and the ordinance5 that one acre of deer fencing satisfies the obligation6 to replace one acre of tree removal. Again, the public7 may not like that the township adopted the ordinance it8 did, but by adopting it the town determined that in this9 particular situation, application of the towns tree10 ordinance was not essential to protect the public11 welfare where the remaining 92 undisturbed acres would12 be forever

n determined that in this9 particular situation, application of the towns tree10 ordinance was not essential to protect the public11 welfare where the remaining 92 undisturbed acres would12 be forever preserved. The ordinance speaks for itself.13 We're disturbing between 27 and 28 acres and we're14 fencing in over 30 acres of undisturbed property with15 deer fencing. We comply with the ordinance and this16 board does not have the power or jurisdiction to17 disregard the ordinance which applies to this18 application.19 So that's pretty much the zoning ordinance20 and I am actually making some pretty good progress. I21 was slower when I was going through this earlier today,22 but I'm going to shift a little bit and I'm going to get23 to the site plan detail and the utilities, which you24 heard Mr. Afran speak about.25

03/20/2026 06:14:03 AM Page 117 to 120 of 154 30 of 68 sheets 117 The overall utility plan for the development1 is on Sheet SP-18 of the site plan, and that's the plan2 that is revised 10/28/2024. And then individual3 sections of the site are broken down and blown up on4 Sheets 19 through 24. Please look at them carefully.5 Zoom in on them on your computers, put on a great pair6 of reading glasses, everything on-site is shown in7 detail. Stormwater, sewer, water.8 We'll start with stormwater.9 We've repeatedly heard comments, the10 development will worsen stormwater runoff and flooding11 in the surrounding areas. The comments generally state,12 we have issues now, putting the buildings on site will13 make things worse. Those comments did not take into14 consideration the detailed stormwater management plan15 shown on the site plan and testified to by Mr. Anderson16 on July 30 on Pages 33 to 35. As the board is aware,17 the stormwater management plan was fully approved by the18 DEP in November of 2024. Those permits and the19 extension of the wetlands Letter of Interpretation,20 they're all part of this record.21 Now, those regulations are very technical22 and I'm not going to get into them, but when it comes to23 stormwater and runoff, those regulations have an24 overarching requirement, that when comparing the25 118 no-build condition to the fully developed project, there1 must be a net negative runoff for the site. Meaning the2 overall runoff from the site is lessened after the3 product is built than today under no-build conditions.4 The DEP has already determined that we meet that5 standard and your own engineer addressed the objectors6 comment and confirmed that the system meets DEP7 requirements. There is an August 15, 2025 memo, I8 believe from Mr. Hasse, and Mr. Rizzo testified on9 October 22, 2025 beginning on Page 14, in which he10 defers to the DEP approvals in response to Princeton11 Hydro's comments.12 Mr. Anderson's stormwater report, revised13 October 28, 2024, the same report was reviewed and14 considered by the DEP and it's also part of these15 application materials, shows on Page 7, 11 and 12 the16 significant reduction in runoff and recharge under17 as-built conditions compared to what exists today.18 With respect to the eastern slope. As per19 the ordinance there is no building or disturbance east20 of the peak of the ridge line. Whatever

nder17 as-built conditions compared to what exists today.18 With respect to the eastern slope. As per19 the ordinance there is no building or disturbance east20 of the peak of the ridge line. Whatever stormwater21 falls there today it will have the same condition after22 the project is built.23 Building D is being developed to the west of24 the peak and remember the peak goes up a bit to the25 119 east, after Building D, before it flattens out and1 ultimately slopes to the east.2 The stormwater management system approved by3 the DEP is designed to direct any stormwater around4 Building D to the west. The presence of Building D will5 not affect the stormwater runoff on the eastern slope.6 Mr. Anderson testified to this on July 30 at our very7 first hearing.8 The approved stormwater management system,9 which will control runoff for the rest of the site is10 comprised of four surface basins and a porous pavement11 system to which water from the building roof will be12 directed. This results in a reduction in flow from the13 site, which the DEP approved.14 Importantly, the DEP had the objectors15 comments and the comments of the objectors expert, it16 was Mr. Walsh from Princeton Hydro. Mr. -- he confirmed17 this in his own testimony on October 22, 2025 at Pages18 37 to 39. Those comments were considered by the DEP and19 they were rejected. The permits have been issued and20 the boards own expert deferred to the DEP.21 At the June 30, 2025 hearing, Mr. MacNeill22 testified at Pages 140 to 144, that the application23 meets the DEP requirements for runoff quantity, quality,24 groundwater recharge and drain infrastructure. He25 120 addressed Princeton Hydro's comments and discounted1 their arguments. Essentially your own expert deferred2 to the DEP, which has granted all permits required for3 this project. Mr. Walsh of Princeton Hydro conceded4 that he wrote the DEP on several occasions during the5 lengthy application process and that the DEP had6 Princeton Hydro's comments and objections, which were7 obviously discounted because the DEP granted the8 permits.9 Finally, this was brought up during the10 hearings. The newer stormwater standards are not an11 issue to be dealt with. We are proceeded as determined12 by the DEP under the previous stormwater rules pursuant13 to their own regulations. I'm not going to go into14 detail, but the regulation is NJAC 7:8-1.6B4i.

alt with. We are proceeded as determined12 by the DEP under the previous stormwater rules pursuant13 to their own regulations. I'm not going to go into14 detail, but the regulation is NJAC 7:8-1.6B4i. The DEP15 evaluated the application under the prior regulations16 and the board engineer, your board engineer, agrees.17 Sewer. Again, we've heard comments that we18 don't have a sewer plan. Nothing could be further from19 the truth. As testified to by Mr. Anderson and as shown20 in detail on the site plan, there will be a gravity flow21 system which flows from Building A, B, and C in the22 middle of the site, down past the road circle to a low23 point to the west of Building D. Building D also flows24 to that point, at which if you'll look, there is a small25

31 of 68 sheets Page 121 to 124 of 154 03/20/2026 06:14:03 AM 121 sewer pump station which is colored in orange just to1 the south of the road leading to Building D. All of the2 on-site sewer lines consist of solid lines, occasionally3 broken up by a letter S designation for sewer. They're4 all over the map. Lines lead from the building to the S5 lines, which you can trace all the way to the pump6 station. You can see these lines by zooming in on7 SP-18, which is the overall utility plan, or by looking8 at any of the other sheets, SP-19 to SP-24, which show9 blown up portions for the smaller sections of the site.10 The blown up portions of the pump station is located on11 Utility Plan E, which is SP-23 of the site plan. From12 the pump station heading to the southeast, you'll see it13 right on the plan, is a line with the designation FM14 through the hash line. Out of the pump station is a15 force main, which will travel through a sanitary sewer16 easement to a manhole in Bakley Terrace to the south of17 the site. This connects the on-site sewer18 infrastructure to the West Orange sanitary sewer system,19 which will transport the sewage from Bakley Terrace into20 the system. Any alligation that there is no sewer plan21 is simply disingenuous. Not supported by the site plan.22 It's standard that all third-party approvals, including23 sewer, are applied for and obtained as a condition of24 approval.25 122 So, what needs to be done for sewer. The1 ultimate requirement is that the applicant will be2 required to submit a Treatment Works Approval. A TWA3 application to the DEP. Something that is customarily4 done post Planning Board resolution as a condition of5 approval. The TWA process is not something handled by6 the Planning Board, but it's done administratively by7 working with the township engineers, and applications8 made to the DEP after site plan approval is obtained.9 In this case the township and the settlement agreement10 has agreed to cooperate with my client in connection11 with obtaining all required third-party approvals as set12 forth in Section 2.2 of the agreement. Also the town13 specifically agreed to cooperate with my client in14 connection with providing all utilities, including15 sewer, water, electric, and gas. That's in Section 2.316 of the settlement agreement. So the township must see17 to it that any and all required improvements to