February 25, 2026 Planning Board Special Meeting - WEHI Transcript

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