February 25, 2026 Planning Board Special Meeting - WEHI Transcript

th 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 the18 off-site public sewer systems are performed. This is19 consistent with the requirement of the affordable20 housing regulations that municipalities shall cooperate21 with developers expeditiously by endorsing applications22 to other governmental agencies that require review and23 approval of that agency. That's NJAC 5:97-10.3c.24 Now, this board could normally require an25 123 applicant to pay it's pro rata share for any required1 off-tract improvements under the Land Use Law. However,2 pursuant to the settlement agreement the township agreed3 that the only off-tract improvement that the developer4 would be responsible for is the traffic light at the5 intersection of Eagle Rock and Oval Road. So that's6 specifically carved out in the settlement agreement.7 The bottom line is that the plan fully shows8 how on-site sewage will be conveyed to the township9 sewer system. Fortunately a connection to the sewer10 system exists adjacent to the site in the Bakley Terrace11 manhole. My client will continue to work in good faith12 with the town in seeing to it that the township engineer13 will sign off on the TWA application, that is a14 customary condition of approval and should be one here.15 This was confirmed by the boards engineer on July 30,16 2025 on Pages 75 to 78 of the transcript.17 He also surmised that the plans contained18 adequate water and sewer design.19 Now, Mr. Afran brought up the Field v.20 Franklin Township case. It presented a very different21 situation, Mr. Afran didn't tell you the facts of the22 case, but I'm going to go there. There the Appellate23 Division needed to determine whether the Planning Board24 record was sufficient to determine whether, "The25 124 physical design of the various proposed sanitary1 facility is adequate or feasible." The applicant in2 that case and, you know, sometimes, Ms. McGovern may3 know, sometimes Appellate Divisions don't do, panels4 don't do a great job of giving all the facts, they tend5 to rely on some, they ignore others. But in that case,6 it can be gleaned from that case, and please take a look7 at it, the applicant actually had suggested three8 potential options for sewers. One was a connection to

hey ignore others. But in that case,6 it can be gleaned from that case, and please take a look7 at it, the applicant actually had suggested three8 potential options for sewers. One was a connection to a9 neighboring town, South Brunswick's sanitary sewer10 system. The other was having an on-site package plant11 and the third was a spray irrigation system. However,12 the applicant in Field they didn't even have an13 agreement with the neighboring township and they14 conceded they hadn't even commenced negotiations with15 that township, which obviously had no independent16 obligation to provide service. The applicant also17 didn't provide enough information on the record18 regarding the other two options. That is not the case19 here. We plainly show the on-site sewer infrastructure20 and how we connect to the town sewer system. As an21 aside, and I believe he was mentioned by Mr. Afran, the22 objector called a witness, William Green, an engineer23 from Mr. Litwornia's office, to testify on July 30,24 2025. He claimed to have reviewed the plans and25

03/20/2026 06:14:03 AM Page 125 to 128 of 154 32 of 68 sheets 125 testified that he did not see any sewer infrastructure1 on the plans, including the manhole in Bakley Terrace.2 It is just demonstrative the lack of credibility on this3 issue by the objector.4 Water. Water is serviced by New Jersey5 American Water. As testified to by Mr. Anderson, we're6 proposing to create a loop water system tying into the7 waterlines coming from the condominium under Warner Road8 and Kuzak Drive. If you look closely at the utility9 plan sheets I previously referenced, you'll see that the10 waterlines on the site plan are marked with a W, for11 water. Those lines end at the property boundary at12 Warner Road and Kuzak Drive. As we advised the board,13 an easement agreement exists pursuant to which the14 applicant has the full right to connect in all the15 condominium utility systems, including water. The16 connection to water requires an agreement with New17 Jersey American Water. They're obviously not going to18 allow us to hook up to the water system if sufficient19 capacity doesn't exist for potable water, fire hydrants20 and the sprinkler systems in the buildings. So they21 obviously need to review the plans, issue a Will Serve22 letter and require an agreement and an escrow with the23 applicant for the required improvements. Like off-site24 sewer and other utilities, the ability to obtain water25 126 from the sewer company, or the water company, is a1 typical condition of approval, which my client would2 need to satisfy. It is not a reason to withhold an3 approval.4 However, I am happy to report that New5 Jersey American has in fact issued a Will Serve letter6 and has agreed to provide water service to the7 development. New Jersey American and my client signed8 an agreement on February 13, 2026 for the installation9 of the waterline extensions from Warner Road and Kuzak10 Drive. This agreement was recently provided to your11 engineering and planning departments, so we would've12 already satisfied that condition of approval if the13 board was to vote favorably on this application. Again,14 there is a water plan and any allegation to the contrary15 is just disingenuous.16 Another required third-party approval is17 approval of our soil erosion and sediment control plan.18 Again, I'm happy to report that the Essex-Hudson,19 Passaic Soil Conservation granted that approval,

nother required third-party approval is17 approval of our soil erosion and sediment control plan.18 Again, I'm happy to report that the Essex-Hudson,19 Passaic Soil Conservation granted that approval, which20 we also recently provided to the township engineering21 and planning departments. As with water service, we're22 already able to satisfy that customary third-party23 approval condition.24 Traffic. If you recall Mr. Pehnke testified25 127 twice, once was on September 11, 2024, and then on1 September 17, 2025, in response to Mr. Litwornia's2 report and testimony. As the board is aware it may not3 consider or base a denial on off-site traffic impact, if4 the proposed use is permitted by the zoning ordinance.5 That case is the infamous Dunkin Donuts of New Jersey,6 Inc., v. North Brunswick Township Planning Board, 193 NJ7 Super 513, Appellate Division 1984. In that case, the8 applicant was a retail bakery shop seeking site plan9 approval at the busy intersection of State Highways 110 and l30. The use was permitted by the zoning ordinance.11 In denying the application for site plan approval the12 North Brunswick Planning Board relied, "Solely upon the13 anticipated detrimental impact of the proposed use on14 traffic congestion and safety." The resolution of15 denial noted that the intersection was a traffic circle16 having a high accident rate, which was apparently the17 fourth most dangerous intersection in the state.18 Patrons would be prone to making illegal turns or19 dangerous maneuvers and that it was difficult to police,20 and that the Dunkin peak business hours coincided with21 the peak morning traffic. The Appellate Division was22 clear in holding, that where a proposed use is permitted23 by a zoning ordinance, a planning board, "Is without24 authority to deny such site plan approval because25 128 off-site traffic conditions." All though the court1 confirmed that "A planning board should consider2 off-site traffic flow and safety in reviewing proposals3 for vehicular ingress to and egress from the site and4 that a planning board could condition the site plan5 approval upon necessary off-site contributions, the6 Appellate Division was clear, "The authority to prohibit7 or limit uses generating traffic into already congested8 streets or streets with a high rate of accidents, is an9 exercise of the zoning power vested in the municipal10 governing

uthority to prohibit7 or limit uses generating traffic into already congested8 streets or streets with a high rate of accidents, is an9 exercise of the zoning power vested in the municipal10 governing body." Here we know that the proposed use and11 density is fully permitted by the zoning ordinance as12 adopt by the council. Accordingly the board cannot13 consider off site traffic impact in it's decision.14 Regarding safe ingress and egress.15 Installation of the traffic light at the intersection of16 Oval Road and Eagle Rock Avenue, which is under stop17 sign control today, will provide a fairly substantial18 safety and operational movement as testified to by Mr.19 Pehnke on September 11. It will operate at an overall A20 level of service. This sites proposed internal roadways21 are minor collector roads under RSIS, which would22 require a 20-foot cartway. That standard is met.23 Finally, Oval Road and Warner Road have 4024 foot wide cartways and provide safe ingress and egress.25

33 of 68 sheets Page 129 to 132 of 154 03/20/2026 06:14:03 AM 129 This becomes even safer with the installation of the1 traffic signal.2 As previously stated the site proposes3 regular vehicular access via Warner Road and Kuzak4 Drive. This job does not present a cul-de-sac, as the5 ultimate goal is getting to Oval and Eagle Rock to get6 out. Oval and 100 percent. But Mr. Afran is right, you7 need to look at RSIS. And under RSIS these are looped8 minor collector roads, not a multifamily cul-de-sac,9 like Mr. Pehnke testified to and which your engineer10 agreed with.11 As loop minor collector roads, like the12 application proposes, the total traffic volume conveyed13 on the loop should not exceed 3500 ADT. That's NJAC14 5:21-4.1 and Table 4.2. Accordingly, the 2728 trips per15 day falls well within what's permitted by RSIS. The16 board's engineer in the CME memo dated October 29, 2025,17 agreed. This is not a cul-de-sac under RSIS. Trips18 generated by the condominium are not to be counted. The19 DCA RSIS, clarification number 3, plainly states that,20 "The ADT should be limited solely to the proposed21 development. Not the ADT generated for both the22 proposed development and an adjacent existing23 development built prior to the adoption of RSIS, which24 happened to be June 3, 1997, like the comment made.25 130 As the board is aware the road connecting to1 Kuzak Drive is proposed and will be built regardless2 whether the board grants our request for a de minimis3 exception to have Kuzak gated and serve as emergency4 access only. As Mr. Pehnke explained his opinion and5 RSIS exception is not even required to close Kuzak to6 regular access, because the road will exist and will7 still provide its access to emergency vehicles.8 However, we filed the site plan with Kuzak open and9 requested the de minimis exception because we agreed to10 do so in the settlement agreement in response to a11 request made by our neighbors at the condominium12 association. We feel that there is substantial evidence13 in the record to satisfy the RSIS criteria for the14 exception by allowing Kuzak to serve as a emergency15 access only. The intent of RSIS is still met. It's16 reasonably limited and not unduly burdensome. It meets17 the needs of the public health and safety, because one,18 it will eliminate the traffic on Kuzak and the19 condominium to address any hardship to the

ably limited and not unduly burdensome. It meets17 the needs of the public health and safety, because one,18 it will eliminate the traffic on Kuzak and the19 condominium to address any hardship to the residents who20 live in that area of the condo. And two, Kuzak will21 remain open to emergency access.22 Finally, the exception request takes into23 account the existing infrastructure and the adjacent24 condominium development. However, if the board doesn't25 131 feel comfortable granting the exception, that's okay,1 Kuzak will remain open to regular traffic. It would2 have no effect on the development.3 As Mr. Pehnke went over, we are also seeking4 a de minimis exception from the RSIS standard regarding5 sidewalks on both sides of the high intensity minor6 collector streets with off street parking. That7 requirement is contained in NJAC5:21-4.2, Table 4.3.8 The plan proposes two sidewalks everywhere,9 except for the eastern side of Warner Road from the10 property boundary by the condominium up to the traffic11 circle and then on one side of Road D, which is the road12 that goes from the circle to access Building D. The13 condominium doesn't have sidewalks at all, so even the14 one sidewalk on Warner Road would be a sidewalk to15 nowhere, so to speak. That one sidewalk is located on16 the side of Warner Road that pedestrians would want to17 use because it's on the side of the clubhouse.18 Also the plan proposes a more direct walking19 boardwalk from Building D to the clubhouse and other20 amenities located in the center of the site. You can21 see that on sheet SP-4, the overall site plan. And of22 course there are compliant crosswalks provided in two23 locations where a single sidewalk ends in order to24 access the sidewalk on the other side of the street.25 132 This allowed us to avoid the practical difficulty1 regarding environmental limits from wetlands and2 floodplain crossings. It'll also further limit the3 overall disturbance of the site.4 Mr. Pehnke testified in detail that the5 sidewalk system/boardwalk from Building D to the6 clubhouse and robust walking paths will properly and7 safely serve the residents of the community.8 Finally, Mr. Pehnke in his testimony on9 September 17, 2025, validly and completely refuted Mr.10 Litwornia's conclusion that the road system constitutes11 a cul-de-sac. That testimony is on Pages 74 through 8912 of the transcript

timony on9 September 17, 2025, validly and completely refuted Mr.10 Litwornia's conclusion that the road system constitutes11 a cul-de-sac. That testimony is on Pages 74 through 8912 of the transcript and it's supported by the law. Mr.13 Litwornia's conclusions regarding the road14 characterization as a cul-de-sac, the counting of ADT,15 the slopes of the roads, 10 percent maximum is16 permitted, and the ADA guidelines, were simply wrong and17 not supported by the governing regulations. Even his18 comments about the proposed signal at Oval Road and19 Eagle Rock, like the alleged lack of a left-turn lane on20 Eagle Rock Avenue and the widening of the road that21 would be required. It was quite a apparent from Mr.22 Litwornia's testimony he simply didn't carefully review23 the documents submitted by the applicant. The boards24 own engineering expert had the chance to review Mr.25

03/20/2026 06:14:03 AM Page 133 to 136 of 154 34 of 68 sheets 133 Pehnke's reports and testimony in addition to that of1 Mr. Litwornia, and CME agreed with Mr. Pehnke. In the2 October 29, 2025 memo they agreed the proposed roads for3 the development are not a cul-de-sac and we meet RSIS4 standards. CME agreed with Mr. Pehnke and disagreed5 with Mr. Litwornia on all these issues.6 Street characterization. Meeting the RSIS7 requirement for ADT, roadway width, roadway slopes, and8 the proposed configuration for the traffic signal at9 Oval and Warner.10 We also agreed to comply with all11 recommendations in CME's July 26, 2024 review letter and12 per Mr. Guarino's request, we will work in good faith to13 comply with complete streets, in addition to working14 with the townships engineers regarding the installation15 of additional handicapped ramps, which were discussed16 earlier on in these hearings.17 Okay. Geotechnical regarding Building D.18 So this is the point of the evening where it really gets19 exiting, where I conduct a four level course on20 geotechnical engineering. Just kidding. The board has21 it's own expert, Mr. Kleinberg for that. It became22 apparent that Mr. Kleinberg considered many different23 scenarios and conditions, some of which he, you know,24 threw in the report or conceded were highly unlikely or25 134 even impossible to occur. So I'm not going to delve1 into the technical detail. That testimony was more2 recent, he was here three nights, the board members were3 here, you can read the transcripts, you can read the4 reports. But for all the back and forth, and for all5 Princeton Hydro's instances that Building D should be6 held to a factor of safety standard required for the7 Hoover Dam, Mr. Kleinberg's ultimate conclusions were8 clear. Building D is not being going built on the steep9 slope. It's going to be built west of the Lenny Line,10 and Langan demonstrated that the influence of the11 structure will not extend on to the slope. The12 appropriate factor of safety for a slope not being13 developed is 1.5. And both Langan and Princeton Hydro14 calculated the factor of safety at 1.7, concluding that15 the results of both parties professionals indicate16 stability.17 Mr. Kleinberg opined that the 2.0 factor of18 safety proposed by the objector was not reasonable for19 this application.20 Mr. Kleinberg opined that the grading

s professionals indicate16 stability.17 Mr. Kleinberg opined that the 2.0 factor of18 safety proposed by the objector was not reasonable for19 this application.20 Mr. Kleinberg opined that the grading plan21 keeps water from flowing over the top of the slope. The22 actual slope to the east, as I alluded to before, he23 testified it starts to drop anywhere from 40 to 100 feet24 away from the building.25 135 He said that there is no rock fall hazard1 associated with this property.2 He advised that when excavating the3 applicant should dewater the excavation area, and if4 there's a fissure or crack, grout it. We agreed to this5 as a part of normal construction practice which happens6 all over the State of New Jersey.7 We agreed no excavation equipment would go8 east of the area of disturbance. On November 10 Mr.9 Kleinberg repeatedly confirmed that the building be10 properly designed and that the full building design and11 engineering plans were not warranted at this stage of12 design. We are subject to the building code, we need to13 demonstrate that the building and plans comply with that14 code and of course that is not a Planning Board15 function, especially where it's own geotechnical16 engineer and expert has repeatedly testified that the17 building can be designed safely in the proposed18 location.19 Mr. Kleinberg also confirmed that a blasting20 plan be done during construction and which takes place21 later in the development of this project. Absolutely22 agree to it. It is a requirement.23 He also opined that blasting can be done in24 a controlled manner in conjunction with other types of25 136 special rock splitting equipment. Neither the Langan1 nor Princeton Hydro's reports analysis indicated that2 there would be a slope failure he testified to. He also3 acknowledged he didn't know of a seepage problem through4 extreme rain events would even occur on-site. He also5 conceded that the infinite slope seepage condition is an6 unusual event and that he didn't see any evidence of7 that. He said the slope has been there for ions. It is8 a worse case evaluation that he's not sure will even9 occur on this site.10 Mr. Kleinberg refused to characterize the11 site 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