Applicant Response letter to Diana McGovern Esq dated 3 30 26

LAW OFFICES HUTT SHIMANOWITZ & PLOCKER A PROFESSIONAL CORPORATION STEWARE M. HUTT (1929-2013) RONALD L, SHIMANOWITZ ¢ 459 AMBOY AVENUE DAVID M. HUTT + P.O, BOX 648 BRYAN D. PLOCKER¢ WOODBRIDGE, NEW JERSEY 07095 JANICE K: SCHERER» THOMAS]. PERRY ¢ DAVIDT, FERRARA KEVIN M, KILLMURRAY<0 CHRISTOPHER M. WALL» TEL: (732) 634-6400 FAX: (732) 684-0718 + ALSO ADMITTED NY BAR + ALSO ADMITTED FL BAR © OF COUNSEL March 30, 2026 VIA EMAIL AND FEDERAL EXPRESS Diana McGovern, Esq. Gaccione Pomaco, P.C. One Boland Drive, Suite 102 West Orange, NJ 07052 Re: West Orange Planning Board Application No, PB-24-01 - West Essex Highlands, Inc. Block 179, Lot 32 (the “Subject Property”) Dear Ms. McGovern: This firm represents the applicant, West Essex Highlands, Inc. (“Applicant”), in connection with the above referenced application for preliminary and final site plan approval pending before the West Orange Planning Board (the “Board”). After the close of testimony, public comment, and counsel summations, during the Board’s deliberations at the public hearing held on March 4, 2026, the Board asked the Applicant to review certain items regarding the proposed development. Please accept this correspondence as Applicant’s response. Sewer As supported by the Board record, including the site plan (sheets SP-18 through SP-24, SP-46, SP-48, and SP-49), the on-site sewer system is designed to convey sewage from the buildings to a pump station located south of Road D. The pump station will pump the sewage through a force main which will connect to a manhole in Bakley Terrace and the public sewer system through an existing utility easement. The Township of West Orange (“West Orange” or the “Township”) has the obligation to reasonably cooperate with the Applicant to provide sewer service to the Subject Property, as provided for in paragraph 2.3 of the April 2020 Settlement of Litigation Agreement between the Applicant and West Orange (the “Settlement Agreement”). This obligation to cooperate includes, but is not limited to, the endorsement of all required third-party applications for sewer service. As the Board is aware, Applicant will need to make application to the New Jersey Department of Environmental Protection (““NJDEP”) for a Treatment Works Approval (“TWA”), which requires endorsement by the Township Engineer. That application process is outside the jurisdiction of

y Department of Environmental Protection (““NJDEP”) for a Treatment Works Approval (“TWA”), which requires endorsement by the Township Engineer. That application process is outside the jurisdiction of the

LAW OFFICES HUTT SHIMANOWITZ & PLOCKER A PROFESSIONAL CORPORATION Board and the procurement of a TWA is a standard condition of approval. Applicant remains committed to work with the Township professionals in good faith with respect to the TWA application. Location of Sanitary Sewer Pipe As the Board is aware, a section of on-site sewer pipe was proposed to run through near a detention basin. As provided for in the record, Applicant has agreed to relocate the pipe to outside of the stormwater system and under the sidewalk as a condition of approval. The Township’s engineers will be required to review and approve the relocated pipe along with the plan revisions and detail normally associated with the resolution compliance process. Stormwater Management System The Board asked the Applicant to review its stormwater management system, which has already been approved by the NJDEP, to determine if additional stormwater could be funneled to the upper part of the wetlands located on the western portion of the Subject Property without the need to seek amended NJDEP approval. In short, any such modification, if practicable or needed, would require amended NJDEP approval. As the Board is aware, under the Freshwater Wetlands Protection Act (“FWPA”), the Board and the Township are preempted from regulating freshwater wetlands in any way, such as requesting a Letter of Interpretation (“LOY”) or regulating the impacts of stormwater runoff on wetlands. N.L.S.A, 13:9B-30. The jurisdiction to regulate wetlands rests solely with the NJDEP. Id. Here, the NJDEP extended the LOI and granted Genera] Permits for the Subject Property on November 15, 2024, which approvals considered the proposed development and stormwater management system identified on the site plan. On November 15, 2024, the NJDEP issued Permit No. 0722-04-0001.1 LUP230001, approving the proposed freshwater wetlands disturbances and included a review and approval of the stormwater management system. The LOI and NJDEP Permits are part of the Board record. In granting the foregoing approvals, the NJDEP applied the regulations promulgated under the FWPA, N.J.A.C. 7:7A-1.1, et seq., which regulate freshwater wetlands, transition areas, and State open waters. Specifically, N.J.A.C. 7:7A-2.2 provides, in pertinent part: (a) The following activities are regulated under this chapter when performed in a

water wetlands, transition areas, and State open waters. Specifically, N.J.A.C. 7:7A-2.2 provides, in pertinent part: (a) The following activities are regulated under this chapter when performed in a freshwater wetland unless excluded under (c) below: aR 2. The drainage or disturbance of the water level or water table so as to alter the existing elevation of groundwater or 2

LAW OFFICES HUTT SHIMANOWITZ & PLOCKER APROFESSIONAL CORPORATION surface water, regardless of the duration of such alteration, by: i. Adding or impounding a sufficient quantity of stormwater or other water to modify the existing vegetation, values or functions of the wetland; or ii. Draining, ditching or otherwise causing the depletion of the existing groundwater or surface water so as to modify the existing vegetation, values or functions of the wetland; 5. The placing of obstructions, including depositing, constructing, installing or otherwise situating any obstacle which will affect the values or functions of a freshwater wetland; N.LA.C. 7:7A-2.2(a)(2) and (5). Applicants must demonstrate compliance with the specific regulations under their requested General Permits (N.J.A.C. 7:7A-5 and -7), Transition Area Waivers (N.J.A.C. 7:7A-8), and/or Individual Permit (N.J.A.C. 7:7A-9 and -10). The NJDEP also regulates stormwater management for projects that result in one acre of disturbance (N.J.A.C. 7:8- 4,2) and/or a net increase of 0.25-acre of motor vehicle surfaces (N.J.A.C. 7:8-5.5). Here, as supported by the record, the NJDEP conducted a detailed review before issuing its approvals. During that review, the NJDEP received several comment letters from Princeton Hydro, which included a concern about the potential to drain the wetlands. If the NJDEP had determined that this allegation was valid, it would have required the project to make modifications to address this specific issue. The applicant addressed all NJDEP comments and the NJDEP ultimately issued Freshwater Wetlands General Permits and a Flood Hazard Area Individual Permit. As Princeton Hydro acknowledged during testimony, the NJDEP had the benefit of Princeton Hydro’s comments during the permit review process. Moreover, the objector made application to the NJDEP seeking a suspension and/or stay of Applicant’s permits. In a written Order Denying Permit Suspension Pending Appeal dated January 16, 2026, a copy of which is attached hereto as Exhibit A, the NJDEP specifically noted on p. 5: The consultant [Princeton Hydro] also noted that a change in stormwater runoff could result in damage to existing wetlands. The Department reviewed this change and concluded that the applicant demonstrated compliance with the requirements for stormwater runoff quantity, stormwater runoff quality, and

to existing wetlands. The Department reviewed this change and concluded that the applicant demonstrated compliance with the requirements for stormwater runoff quantity, stormwater runoff quality, and groundwater recharge. The stormwater quantity analysis specifically included standards to control the impacts of the change in flow, volume, and timing of runoff as a result of a major development. The project was

‘LAW OFFICES HUTT SHIMANOWITZ & PLOCKER A PROFESSIONAL CORPORATION subsequently reviewed by Department staff for compliance with the Freshwater Wetlands Rules and staff determined that the application met rule requirements. As set forth herein, the Board does not have jurisdiction over the regulation of wetlands, and the public body which has jurisdiction, the NJDEP, considered and rejected the arguments of Princeton Hydro. The NJDEP has issued the requisite permits, which are contained in the record. Primary Site Access The record is clear that the only regular access to Eagle Rock Avenue is provided via Oval Road. Moreover, the TH-{ Zoning Ordinance, which was attached to the Settlement Agreement, recognizes that “unrestricted site access (ingress and egress) shall be permitted from Warner Road and Kuzik Drive.” (§ 25-19(e)(5)). When West Orange agreed to include the Subject Property as a third-round affordable housing compliance mechanism, the Township was fully aware that the only regular access to Eagle Rock Avenue from the Subject Property would be via Warner Road and Oval Road. Moreover, the Housing Element & Fair Share Plan unanimously adopted by the Planning Board on November 17, 2020, the relevant portions of which are attached hereto as Exhibit B, specifically noted that the Subject Property is suitable for the proposed development because “it is surrounded by residential uses and has Warner Road as the primary access.” (Housing Element, p. 9). Also, the West Essex Highlands Condominium Association, Inc. (the “Condominium Association”) was a party to the Settlement Agreement, acknowledging and agreeing to the proposed road configuration. With respect to compliance with New Jersey’s Residential Site Improvement Standards (“RSIS”), the Township was advised by its Township Engineer and consulting traffic engineer from CME during the four-year mediation process which culminated in the Court-approved Settlement Agreement. West Orange agrees that having Warner Road and Kuzik Drive open to regular traffic “complies with RSIS regarding traffic circulation.” (Settlement Agreement, paragraph 2.5.3, p. 8). The Board’s own engineering expert agrees. See CME Memorandum dated October 29, 2025. Specifically, CME concluded that the proposed roadway system constitutes “minor collector roadways with total traffic volume that should not exceed 3,500 trips.”

CME Memorandum dated October 29, 2025. Specifically, CME concluded that the proposed roadway system constitutes “minor collector roadways with total traffic volume that should not exceed 3,500 trips.” Id. at p.3. Accordingly, the Average Daily Traffic (“ADT”) of 2,728 trips anticipated for the proposed development complies with RSIS. The Applicant appreciates the Board’s concern regarding off-site traffic impact, including the number of cars on Oval Road. However, as the Board is aware, the Subject Property is zoned to permit a multi-family inclusionary development having a density of 496 units. Accordingly, the Board “is without the authority to deny site plan approval because of off-site traffic conditions” because “the authority to prohibit or limit uses generating traffic into already congested streets or streets with a high rate of accidents is an exercise of the zoning power vested in the municipal governing body.” Dunkin Donuts of New Jersey. Inc. v. Twp. of N. Brunswick Planning Bd. 193 N.J. Super. 513, 515 (App. Div. 1984). When the Township Council adopted the IH-1 Zoning

LAW OFFICES HUTT SHIMANOWITZ & PLOCKER A PROFESSIONAL CORPORATION Ordinance, it exercised its zoning power to sanction the traffic generated by the development of the Subject Property. While it is understandable to focus on ADT, there is nothing in the Board record to suggest that the regular use of Warner Road and Oval Road is unsafe under existing conditions or would pose a safety issue after the proposed development is constructed. Both Warner Road and Oval Road have 40-foot wide cartways and were designed to accommodate vehicular traffic. As supported by the record and set forth in further detail below, Applicant’s traffic engineer analyzed the post-development Levels of Service (“LOS”) for Warner Road and Oval Road and found that they have an acceptable LOS. There has been zero evidence offered to support the idea that either of the roadways is unsafe or does not have the capacity to accommodate the anticipated traffic volumes. With respect to the ingress and egress at the intersection of Oval Road and Eagle Rock Avenue, the installation of the required traffic signal will serve as a significant improvement to public safety. A detailed LOS analysis was provided as part of Appendix F (pp. 15-27) to the Traffic Impact Study prepared by Langan Engineering and Environmental Services, LLC (“Langan”) dated June 19, 2024. As set forth therein, the overall LOS for all portions of Eagle Rock Avenue will remain the same under as-built conditions as they are under existing no-build conditions, despite the added traffic.! Importantly, the LOS for the Oval Road-Eagle Rock Avenue intersection under signalized conditions represents a marked improvement compared to the current unsignalized no-build conditions. See Appendix F to Langan report, pp. 16, 18 & 20). There is no question that the intersection will be safer post-construction with the traffic signal than the unsignalized intersection which exists today. Finally, virtually all approaches/movements along Oval Road and all Condominium Roads under as-built conditions will have a LOS of “A” (38 out of 44). The remaining approaches/movements will have a LOS of “B”. See Appendix F to Langan report, pp. 20-26. Notwithstanding the foregoing, the Board requested that the Applicant explore a potential secondary primary access. The only other physically possible connection would require the opening of Oval Road

Notwithstanding the foregoing, the Board requested that the Applicant explore a potential secondary primary access. The only other physically possible connection would require the opening of Oval Road into Essex Fells, which access is currently gated and may only be used for emergency access at the discretion of the West Orange Police Department pursuant to a written agreement (the “Oval Road Agreement”). In past discussions between my client and the Mayor | Alternative as-built conditions were analyzed assuming unit counts of 350, 550, and 683 for the Subject Property, Applicant proposes the development of 496 units, as required by the TH-1 Zoning Ordinance. ? The Board’s record includes a Declaration of Easement and Right of Way Agreement dated January 19, 1988 between Allied Signal, Inc., Essex Fells Country Club, and West Essex Highlands, Inc., recorded with the Essex County Clerk on January 28, 1988 in Deed Book 5012, Page 571. That recorded document contains the Oval Road Agreement, a 1987 Agreement between the Township of West Orange, the Township of Essex Fells, and West Essex Developers, Inc., the predecessor in interest to West Essex Highlands, Inc. The Oval Road Agreement governs the 5