February 25, 2026 Planning Board Special Meeting - WEHI Transcript

3 of 68 sheets Page 9 to 12 of 154 03/20/2026 06:14:03 AM 9 general this is a fully developed suburban urban area.1 As is much of the areas beyond the photos we have. In2 fact all of them. It is a rarity of this forest that3 prompts a lot of this case.4 Now, the settlement agreement in 2020, which is5 really primarily between the township and the developer,6 and I think the association was a part of it for certain7 purposes, was essentially settling a would be builders8 remedy case. Now, you all know what a builders remedy9 case is. It's when a builder says a towns not meeting10 its affordable housing duties, we will do that for you.11 We'll pick up the burden, give us permission to build12 500 unites and you'll get 100 affordable out of it. And13 that litigation is what led to the settlement agreement.14 It's in a sense sort of a gun is held to the township,15 I'm not criticizing fellow lawyers, that is what16 litigation involves, and it said, that gun says, look,17 if you don't do a deal with us we will sue you. And the18 town doesn't want to be sued. I'm not giving away any19 secrets, West Orange isn't rolling in litigation dollars20 it wants to spend, I assume Mayor, that's correct. And21 so the town is concerned, What do we do. So a22 settlement arises. And that settlement requires23 approval by the Planning Board, this body, of this plan.24 Doesn't mandate approval. It requires approval. And25 10 those two things are very different obviously. You are1 an independent body, you're independent of the township.2 A very good example of that is Mr. McGovern who cannot3 serve as township counsel. She is absolutely barred by4 law from serving as township counsel, because this body5 must be independent by law of counsel. Of course6 they're members on the Planning Board who are also on7 the Governing Body, you wear two hats, but both hats8 have to fend separately. There's a duty on council and9 there's a truly separate duty here. Councils a10 political body, it's a legislature. As you know, this11 is a court. This is a quasi judicial body and your duty12 is truly to be independent. You are not governed, we13 had a lot colloquy about this, Dr. Bagoff sometimes14 jumped in on the discussion also. You are not bound by15 this settlement agreement. The settlement agreement16 does not bind this body. It can not legally. And so17 when it says, there must be approval of

ed in on the discussion also. You are not bound by15 this settlement agreement. The settlement agreement16 does not bind this body. It can not legally. And so17 when it says, there must be approval of the site plan by18 the board, it doesn't mean the board will approve it.19 It means the applicant must go through approval and20 prove it's case and it must prove to the satisfaction of21 this board that this plan not only meets the bare rule22 of the ordinance, but protects the public health, safety23 and welfare. That's the fundamental duty of the24 Planning Board. That's why we're here. If it were only25 11 a matter of checking things off on the ordinance, we1 wouldn't have to go through this whole evidentiary2 process. Excuse me. I'm sorry3 Now, in the settlement agreement, something4 very unusual happened. The ordinance purports to5 eliminate practically all environmental regulations that6 otherwise apply to site plan applications in this town7 and in most other towns. We know what those are, in8 general, an environmental impact statement has to be9 produced, and various other considerations. There's a10 tree ordinance that needs to be followed, that was set11 aside in the settlement agreement. And there is a ban12 on certain construction at steep slopes, that was set13 aside in the settlement agreement. And it proposed in14 the settlement agreement an ordinance that took those15 things out, and I'll have to acknowledge that the16 ordinance purports to do just that. It removes the17 environmental protection. Mr. Plocker and I had some18 good back and forth at times and also with some19 witnesses as to what the ordinance and settlement20 agreement provided.21 Now, there is one provision, certainly, it22 required Mr. DeFeo be hired. That was Wayne DeFeo who23 sat here for a couple of days, and I think he's a very24 nice person, he was very gracious in cross-examination.25 12 He was hired by the direction of the settlement1 agreement and the ordinance, essentially to give a2 report on the value and manner in which deer fencing can3 be placed on those two side portions and what value that4 would have. And the idea is obvious, that if you put a5 deer fence surrounding a forest, or at least separating6 a forest in certain areas, you will get less deer and7 hopefully less deer browse and hopefully over a period8 of years, more regeneration of the understory. And

ding a forest, or at least separating6 a forest in certain areas, you will get less deer and7 hopefully less deer browse and hopefully over a period8 of years, more regeneration of the understory. And if9 you can achieve that that's a perfectly good thing to10 achieve. That's what Mr. DeFeo was hired to talk about.11 Now, who is Mr. DeFeo. He's a decent guy, I12 like him. We had great talks in the hall, but he is not13 an expert on forestry, and he doesn't have true14 credentials. He did say that he has, I think it was an15 environmental science master's degree. I think he went16 to Montclair. That's fine. And he said he had a class17 or part of a class on forestry. Well, he didn't really18 know and offer very much on the subject outside of the19 idea that if you fence out deer you may get more growing20 inside. Well, you don't need a master's from Montclair21 to say that. To some degree it's an obvious point. If22 you fence out deer you won't get as many deer inside and23 you'll get less browse and over three or four years you24 may get more growth. In reality you won't get that much25