February 25, 2026 Planning Board Special Meeting - WEHI Transcript

9 of 68 sheets Page 33 to 36 of 154 03/20/2026 06:14:03 AM 33 road, and I might as well address this issue right now1 since we have the map up, and you'll see up here, this2 represents on the plot itself a small part of an access3 drive. Lots 8 and 9 in the neighboring R-3 district,4 where my laser is pointing -- that's perfect. Has the5 extension of that access drive that the applicant6 proposes. Now, they own those two lots so they can7 build if they ever get approval.8 Now, the interesting problem is that there's no9 ordinance that authorizes that access drive in the R-310 through Lots 8 and 9. It's an important issue, it's not11 a major issue, but important legally. That is a12 residential single family home district, it allows13 driveways as an accessory use, the driveways going to a14 house. It does not provide for uses in driveways or15 access ways or roads to a multifamily complex in another16 district. And the law is very clear on this as well,17 that in order to add -- did I do something. In order to18 add that piece of road, that emergency access drive in19 Lots 8 and 9 in the R-3, a use variance has to be20 obtained. No use variance is sought as part of this21 application. No notice to the residents of the R-3 that22 a use variance would be sought has been served and the23 application is not actually legally complete. Now, you24 may wonder, well, why didn't the developer, who's25 34 obviously spent an enormous amount of money, I don't1 criticize that, it's expensive to do this work, I'm2 proposing this. Why didn't the developer seek a use3 variance? Go to the Zoning Board and seek a use4 variance. Well, it's pretty obvious why. That's a5 single family home residential district and will be6 subject to an emergency access way serving a complex of7 about 2000 people, potentially hundreds of families.8 Hundreds of vehicles. And so the ability to prove the9 negative criteria, to prove out the negative criteria,10 almost certainly doesn't exist. And that's why the11 applicant hasn't gone to the Zoning Board for that use12 variance, because the community, number one, would have13 to be given notice in that zoning district, and two, the14 Zoning Board would have a great deal of problems15 overcoming the negative criteria. They're involved with16 allowing hundreds, even more vehicles to leave that site17 through a residential neighborhood into a tiny

ould have a great deal of problems15 overcoming the negative criteria. They're involved with16 allowing hundreds, even more vehicles to leave that site17 through a residential neighborhood into a tiny local18 street. The negative criteria that are required for a19 use variance almost certainly would never be achieved.20 That is why it has not been done. But it renders this21 application legally incomplete, and that in and of22 itself is a variance approval, and it can't be a23 condition of approval when you go get a use variance.24 You got to have the use in order to provide the project.25 35 You can't gain approval without a use. And if you don't1 have it, you got to go to the Zoning Board first. They2 didn't do that and they didn't do it for very good3 reason. They would never get through. And this plan4 can't actually be approved because of that. Because of5 that problem right there.6 Now, I want you to bear in mind that issue, it's7 a legal issue. I didn't call a planner because I felt8 we were given very good guidance on the point, but I9 felt as a legal issue I could address it in this way.10 Now, it's a pure question of law. Can a use11 variance -- can a project requiring a different use in a12 neighboring zone, this zoning district, be approved by13 this board without a use variance? It can't. And it14 hasn't been done, and you have not heard the applicant15 offer a single legal authority, not one that allows a16 project to go forward that would require a use variance17 in the adjoining zoning district. And they didn't offer18 that authority because none exists. That alone is a19 reason why it must be denied.20 I'd like to move forward. We're back to the21 other map where I was pointing to. Okay. Just bear in22 mind to the locations of the wetlands, the gray shaded23 areas. This is another view of the development. Now,24 it shows not only the buildings but it highlights in25 36 essentially brown color, a lot of the parking areas,1 roadways and turnabouts and other areas of disturbance.2 So you can see this entirety of the disturbed area, it3 essentially goes, I'm sorry I keep -- my apologies. I4 keep meaning to hit the laser. It essentially means5 that this entire area is an area of disturbance, minus6 the wetlands right here.7 Now we can go further. You may recall this8 exhibit. You can't see it here and I'm not going to9 pretend we can see it. This

his entire area is an area of disturbance, minus6 the wetlands right here.7 Now we can go further. You may recall this8 exhibit. You can't see it here and I'm not going to9 pretend we can see it. This was the tree survey10 document from the 2006 proposal the West Essex Highlands11 Corporation offered when they were trying to develop 13612 single family homes, and you recall the testimony and13 the evidence was really very clear. Here they proposed14 that the tree population per acre was something on the15 order of about 550 trees per acre. Now they claim it's16 212 trees. Now, where'd the other trees go? You heard17 testimony -- where did they go. They just up and left.18 I mean, as you recall Lord of the Rings there's a whole19 population of intelligent species that were trees, they20 could actually walk around. Well, these trees can't do21 that. They're still there. And we know they're there22 because the canopies unchanged. Mr. DeFeo conceded the23 point, Dr. DeVito made the point. The tree cover is24 exactly the same, though a little older and probably25