March 4, 2026, Planning Board Regular Meeting - WEHI Transcript

1 of 54 sheets Page 1 to 4 of 136 03/11/2026 06:15:33 AM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 TOWNSHIP OF WEST ORANGE DEPARTMENT OF PLANNING AND DEVELOPMENT WEDNESDAY, MARCH 4, 2026 6:30 P.M. RE; PB-24-01 WEST ESSEX HIGHLANDS, INC. BOARD MEMBERS: ROBERT BAGOFF, Chairman JERRY GUARINO, Vice Chairman SUSAN McCARTNEY, Mayor KEN ALPER JOHN CARDOZA LORI KAPFERER SUSAN SCARPA, Councilwoman RYAN MacNEILL, Engineer JAMILET BAQUERIZO VITE, Board Secretary GENIECE GARY-ADAMS, Zoning Official JOHN FAGAN FISHMAN COURT REPORTING AGENCY 89 HEADQUARTERS PLAZA NORTH 4 SPEEDWELL AVENUE, SUITE 1440 MORRISTOWN, NEW JERSEY 07960 (973) 285-5331 - FAX - (732) 605-9391 2 A P P E A R A N C E S :1 2 H U T T , S H I M A N O W I T Z & P L O C K E R , E S Q S .3 B Y B R Y A N D . P L O C K E R , E S Q . B p l o c k e r @ h u t t s h i m . c o m4 4 5 9 A M B O Y A V E N U E W O O D B R I D G E , N E W J E R S E Y 0 7 0 9 55 A p p e a r i n g o n b e h a l f o f t h e A p p l i c a n t 6 G A C C I O N E & P O M A C O , E S Q S .7 B Y D I A N A P . M c G O V E R N , E S Q . O N E B O L A N D D R I V E , S U I T E 1 0 28 W E S T O R A N G E , N E W J E R S E Y 0 7 0 5 2 A p p e a r i n g o n b e h a l f o f t h e B o a r d9 10 B R U C E I . A F R A N , E S Q . 1 0 B R A E B R U N D R I V E11 P R I N C E T O N , N E W J E R S E Y 0 8 5 4 0 A p p e a r i n g o n b e h a l f o f t h e O b j e c t o r ,12 W e C a r e N J C o r p . 13 14 15 16 17 18 19 20 21 22 23 24 25 3 I N D E X1 W I T N E S S D I R E C T C R O S S R E D I R E C T R E C R O S S2 3 4 I N D E X O F E X H I B I T S 5 E X H I B I T D E S C R I P T I O N P A G E 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 C H A I R M A N B A G O F F : P B - 2 4 - 0 1 W e s t E s s e x1 H i g h l a n d s , I n c . , B l o c k : 1 7 9 L o t 3 2 Z o n e I H - 1 , W a r n e r2 R o a d . T h e a p p l i c a n t i s p r o p o s i n g t o d e v e l o p a 4 9 6 u n i t3 I n c l u s i o n a r y m u l t i f a m i l y r e s i d e n t i a l d e v e l o p m e n t o n a4 V a c a n t 1 2 0 a c r e p r o p e r t y i n t h e n o r t h w e s t c o r n e r o f t h e5 T o w n s h i p o f W e s t O r a n g e .6 A t t h i s m o m e n t o n l y t h e P l a n n i n g B o a r d w i l l7 d i s c u s s w i t h o u r a t t o r n e y a n d o u r e x p e r t s t h e8 a p p l i c a t i o n t h a t w e h a v e h a d s i n c e A u g u

m e n t o n l y t h e P l a n n i n g B o a r d w i l l7 d i s c u s s w i t h o u r a t t o r n e y a n d o u r e x p e r t s t h e8 a p p l i c a t i o n t h a t w e h a v e h a d s i n c e A u g u s t o f 2 0 2 4 .9 T h e r e w i l l b e n o p u b l i c c o m m e n t . W e w i l l n o t t a k e a n y10 i n f o r m a t i o n f r o m t h e a t t o r n e y s .11 S o a t t h i s t i m e I o p e n t h e f l o o r t o d i s c u s s i o n o f12 t h e a p p l i c a t i o n a n d e v e r y t h i n g t h a t w e ' v e h a d . D o e s13 a n y b o d y w a n t t o s t a r t w i t h q u e s t i o n s o r , I ' m s o r r y , M s .14 M c G o v e r n . I ' m s o r r y . M y f a u l t . A l i t t l e a h e a d o f15 m y s e l f . M s . M c G o v e r n i s g o i n g t o g u i d e u s i n t h e l a w ,16 t h e o r d i n a n c e a n d h o w w e s h a l l p r o c e e d .17 M S . M c G O V E R N : O k a y .18 A n d I ' l l w i l l t r y n o t t o b e t o l o n g b u t t h i s19 w a s a l o n g p r o c e s s .20 N o w , i t ' s t h e b o a r d s j o b t o r e v i e w t h e21 e v i d e n c e , t h a t i n c l u d e s t h e e x h i b i t s , t h e r e p o r t s , t h e22 p l a n s a n d t h e o t h e r s u b m i s s i o n s t h a t a r e f o u n d o n t h e23 a g e n d a a l o n g w i t h t h e t e s t i m o n y o f w i t n e s s e s a n d I w a n t24 t o g o o v e r t h e l e g a l a s p e c t s o f w h a t y o u s h o u l d a n d25

03/11/2026 06:15:33 AM Page 5 to 8 of 136 2 of 54 sheets 5 should not consider.1 Number one, review the ordinance that2 applies to this site. It is detailed, you are not3 deciding if the ordinance was enacted correctly, if4 there was a good reason to enact the ordinance, or if5 you agree or disagree with the ordinance.6 2. Review the exhibits, including the7 experts reports that are found on the agenda. The8 boards expert provided a lot of detailed information, by9 my count there are 13 reports from the board experts10 including, engineering, regarding stormwater, sewer,11 slope stability, traffic planning and environmental12 issues.13 Review the testimony of the witnesses. You14 have an advantage here that we don't usually have in15 that we have full transcripts of the witness testimony16 available for your review, not just summaries. We had17 29 scheduled meetings, two of them ended early for18 technical or other reasons. At the beginning of the19 transcript there's a list of witnesses who provided20 testimony and at the index in the rear you can look up21 specific terms so you can go back and refresh your22 memories. If you are text savvy you can even do a word23 search on the transcripts.24 Rely upon your training and experience as25 6 board members and as members of this community. You are1 also here to judge the credibility of the witnesses.2 5. The board was not a party to the settlement3 agreement. While that settlement agreement may be4 informative as to why the ordinance was created as it5 was, it is your responsibility to look at the ordinance,6 review the site plan as proposed and grant or deny7 preliminary site plan approval, final site plan8 approval, a variance for the foundation exposure of9 greater than 50 percent and two RSIS de minimus10 exceptions for the loop road created if Kuzak Road is11 closed and an exception as to the sidewalk being located12 on one side of the road in a section of the development.13 Now let's talk in more detail about the14 standards set forth in the MLUL that you must follow.15 N.J.S.A.40:55D-7, definition of Site Plan. Site plan16 means a development plan of one or more lots on which is17 shown;18 1. The existing and proposed condition of19 the lots, including but not necessarily limited to20 topography, vegetation, drainage, floodplains, marshes21 and waterways.22 2. The location of all existing and23 proposed

nd proposed condition of19 the lots, including but not necessarily limited to20 topography, vegetation, drainage, floodplains, marshes21 and waterways.22 2. The location of all existing and23 proposed buildings, drives, parking spaces, walkways,24 means of ingress and egress, drainage facilities,25 7 utility services, landscaping, structures and signs,1 lighting, screening devises.2 3. Any other information that may3 reasonably be required in order to make an informed4 determination pursuant to an ordinance requiring review5 and approval of site plans by the Planning Board.6 What are the standards for preliminary and7 final site plan approval. This is set forth in8 N.J.S.A.40:55D-46. These are the procedures for9 preliminary site plan approval. The statute says;10 A. An ordinance requires site plan review11 and approval. Shall require that a development submit12 to the administrative officer a site plan and such other13 information as is reasonably necessary to make an14 informed decision as to whether the requirements15 necessary for a preliminary site plan approval have been16 met.17 The site plan and any engineering documents18 to be submitted shall be required in tentative form for19 discussion purposes for preliminary approval. If any20 architectural plans are required to be submitted for21 site plan approval, the preliminary plans and elevations22 shall be sufficient.23 B. If the Planning Board required any24 substantial amendment in the layout of improvements25 8 proposed by the developer that have been the subject of1 a hearing, an amended application for development shall2 be submitted and proceeded upon as in the case of the3 original application for development.4 The Planning Board shall, if the proposed5 development complies with the ordinance and this act,6 grant preliminary site plan approval. Note that7 N.J.S.A.40:50D-46b provides that the board shall grant8 preliminary and final site plan approval if the proposed9 development complies with all of the provisions of the10 applicable ordinance.11 Okay. Now, if an application does not12 comply with all the ordinance provisions the board must13 deny approval. However, there are two exceptions. The14 first exception is, where an application does not comply15 with all the ordinance provisions but the board grants16 relief in the terms of variances or exceptions. In that17 case the board must review

first exception is, where an application does not comply15 with all the ordinance provisions but the board grants16 relief in the terms of variances or exceptions. In that17 case the board must review the application against all18 the remaining ordinance provisions and grant approval if19 the application complies with all such remaining20 provisions. The second exception is whether the21 application does not comply with all the ordinance22 provisions but a condition can be imposed requiring a23 revision to the plans or change to the application that24 will satisfy the ordinance at issue. In that case the25

3 of 54 sheets Page 9 to 12 of 136 03/11/2026 06:15:33 AM 9 board can either grant approval on the condition that1 the site plans be revised or the application changed2 prior to signing the site plan to comply with the3 ordinance provisions. Or the board can adjourn the4 hearing to permit the applicant the opportunity to5 revise the plans or change the application to comply6 with the ordinance provisions at issue prior to the7 board granting approval.8 Fundamental elements of a development plan9 must be feasible for preliminary approval. While10 N.J.S.A.40:55D-46a allows site plan engineering,11 architectural plans required to be submitted for12 preliminary approval to be in tentative form for13 discussion purposes. The board cannot grant preliminary14 approval subject to the latter submission of additional15 information which is fundamental to an essential element16 of a development plan. The reason is, because of the17 time of preliminary review the board is under an18 obligation to deal with matters vital to the public19 health and welfare and the four fundamental and20 essential elements of a development plan which may be21 found to be feasible prior to the grant of preliminary22 approval are; stormwater management and drainage, sewage23 disposal, water supply and traffic circulation. And24 that is cited in the case of D'Anna v. Washington25 10 Township Planning Board, 256 NJ Super 78. Appellate1 Division 1992. Certification denied l30 NJ18-1992,2 which cited Field v. Franklin Township 190 NJ Super 326.3 Field was subsequently cited with approval by another4 case Ten Stary Dom v. Mauro 216 NJ16. If information5 and or plans related to the fundamental and essential6 elements of the development plan have not been submitted7 to the board in sufficient detail for the board to find8 them feasible as part of the preliminary site plan9 review period process, approval must be denied.10 Final approval. The board cannot grant11 final approval subject to later submission of the12 required detailed drawings and specifications because13 they are required to be submitted ahead of time pursuant14 to N.J.S.A.40:55D-50a, see also N.J.S.A.40:55D-4, which15 defines final approval.16 As the action of the board taken after all17 conditions, engineering plans and other requirements18 have been completed or fulfilled, if the board is19 comfortable with delegating review and

proval.16 As the action of the board taken after all17 conditions, engineering plans and other requirements18 have been completed or fulfilled, if the board is19 comfortable with delegating review and approval20 authority over revisions to plans to it's engineering21 expert, the board can grant final approval subject to22 the conditions requiring provisions of the plans to be23 reviewed and approved by the board engineering expert.24 Provided however delegation of authority for review and25 11 approval is not a grant of unbridle power to the expert1 to approve or deny an approval. And that's cited in2 Lionel Appliance Center v. Citta 156 NJ Super 257, which3 is a law division case.4 Also as held by the court in Shakoor Markets5 v. Old Bridge Planning Board 420 NJ Super 193, "The MLUL6 contemplates that a land use board will retain7 professional consultants to assist in reviewing and8 evaluating development applications. And using such9 professional consultants to review and evaluate revised10 plans was well within the scope of service anticipated11 by the applicable statutes. Significantly it must be12 the board and not any consultant that exercise the13 authority to approve the application.14 Findings and conclusions as to the essential15 elements of the proposed plan.16 As noted in case law that I already cited17 there are four specific areas in the case law that have18 been cited as areas that you have to review and be19 satisfied that the plans submitted are feasible. I'm20 going to add a fifth category because there was21 questions about the geotechnical situation here, which22 is unique to this piece of property.23 So first, the board has to look at24 stormwater management and the drainage. In addition to25 12 the plans submitted and the expert reports that have1 been submitted, there was also testimony from the2 applicants engineer, Paul Anderson, on July 30, 2024.3 With respect to the objector, they submitted an4 engineering expert report and they had testimony from5 their expert, Sean Walsh, on February 26, 2025. And6 then the boards engineer, John Rizzo -- oh, Jordan Rizzo7 of CME gave testimony on October 22, 2025. I only point8 out these dates in the transcripts because it's a lot of9 dates. We had a lot of meetings, just to help the board10 if you want to go back and look at a transcript if this11 helps you to locate something that you want to

he transcripts because it's a lot of9 dates. We had a lot of meetings, just to help the board10 if you want to go back and look at a transcript if this11 helps you to locate something that you want to take a12 look at.13 Sewage disposal. The applicant provided14 testimony from Paul Anderson on July 30, 2024. The15 objectors provided expert testimony from Sean Walsh on16 February 26, 2026 and William Green, PE, on July 30,17 2025. Board engineer, Ryan MacNeill of CME provided18 testimony on October 22, 2025.19 Water supply. Applicants expert Paul20 Anderson, provided testimony, and this is all in21 addition to the plans that were submitted in the expert22 reports, on July 30, 2024. The objectors engineer,23 William Green, provided testimony on July 30, 2025.24 Traffic circulation and safety. Applicants25

03/11/2026 06:15:33 AM Page 13 to 16 of 136 4 of 54 sheets 13 testimony of Karl Pehnke was provided first on September1 11, 2024 and then again on September 17, 2025. The2 objectors retained Alexander Litwornia who provided3 testimony on September 3, 2025. And the board engineer,4 Ryan MacNeill, gave testimony as to traffic on October5 29, 2025.6 With respect to the geotechnical stability.7 Not cited in the case law but discussed in quite detail8 on this case, the applicants provided testimony through9 Mark Seel on -- I'm sorry, June 30, 2025 and September10 17, 2025. Geoffrey Goll of Princeton Hydro on behalf of11 the objectors gave testimony on July 16, 2025. Board12 engineer Sam Kleinberg was here on November 10, 2025,13 December 3, 2025 and December 25, 2025.14 Remember, the board is reviewing whether the15 plans submitted showed the feasibility of these items.16 I caution you to consider probabilities and not17 possibilities. You should be guided accordingly.18 Now, the board also has been asked to give19 two exceptions to RSIS. Residential standards are set20 forth in the New Jersey administrative codes. These are21 requirements that are like bulk standards but they apply22 to the entire state. So each town has their own23 specific ordinances but these are standards of design24 that the state has promulgated that they believe should25 14 be applied to every application, but then they recognize1 that there should always be an outlet for exceptions.2 Just like variances to ordinances, these are considered3 exceptions to these design standards. And that is found4 at N.J.A.C.5:21-3. Those are exceptions, and it's5 states, "The municipal approving authority may grant by6 resolution of the Planning Board or Zoning Board of7 Adjustment such de minimus exceptions from the8 requirements of the site improvements standards as maybe9 reasonable and within the general purpose and intent of10 the standards. If the literal enforcement of one or11 more provisions of the standards is impracticable or12 will exact undue hardship because of peculiar conditions13 pertaining to the development in question." And then it14 says, "An application for exception pursuant to this15 section shall be filed in writing with the municipal16 approval authority and shall include" and then it give17 some basic, you know, written instructions. But then it18 states, "Examples of de minimus

ection shall be filed in writing with the municipal16 approval authority and shall include" and then it give17 some basic, you know, written instructions. But then it18 states, "Examples of de minimus exceptions include but19 are not limited to the following, reducing the minimum20 size of parking stalls. Reducing the minimum geometrics21 of street designs such as curb radii, horizontal and22 vertical curbs, intersectional acts and angles,23 centerline radii and others. Reducing cartway width and24 any changes in standards necessary to implement traffic25 15 calming devices." And the next paragraph says, "The1 municipal approving authority granting a request for de2 minimus exception shall be based on the finding that the3 requested exception meets the following criteria." So4 this is your guide set in the administrative code as to5 what guides you into giving a de minimus exception.6 1. It is consistent with the intent of the7 Site Improvement Act.8 2. It is reasonable, limited and not unduly9 burdensome.10 3. It meets the needs of public, health and11 safety.12 4. It takes into account existing13 infrastructure and possible surrounding future14 development.15 There was also one variance requested which16 was a -- promulgated under both the C-1 and C-2 criteria17 and that was for the exposure of the foundation walls.18 I, through out the course of the hearings,19 took note of the various suggested and agreed upon20 conditions. I can read them to you now, they would only21 come into play if you granted the application. You may22 want to hear them at this point so that you -- it makes23 you think one way or another as to whether the24 conditions help satisfy you or not satisfy you in terms25 16 of a decision.1 CHAIRMAN BAGOFF: Ask the board if they have2 any questions about what you've said so far.3 MS. McGOVERN: Okay. I can stop there. At4 any point in time if you have a question please let me5 know and at any point in time in your deliberation if6 you want to check back with me with what the law is on a7 specific thing, I'm here and I'm happy to respond. If8 there's something you would like me to go over again, if9 there was something unclear at this point, I'm happy to10 do that. Otherwise, I can just go through the list of11 conditions, kind of at a fast pace perhaps now and then12 in more detail, if need be, later on. All right. I'm13 going to skip the