PB 24 01 West Essex Highlands Inc Draft Resolution

68. Mr. Gallagher admitted that while he was aware that the DEP had issued an LOI to the Applicant, and he had read the LOI, he did not review all the supporting documents that were provided to the DEP that formed the basis for the decision by the DEP to issue the LOI. Mr. Gallagher admitted that before issuing an LOI, the DEP inspects the soils of a site, reviews hydrology and vegetation. Gallagher also admitted that during the 20 months that the matter was pending before DEP, no one from his firm had submitted any comments related to the application for this site. 69. The Mayor of neighboring Essex Fells testified that Essex Fells owns 17 acres of land known as the Essex Fells Country Club. Located in close proximity to border of the property in question and along the Canoe Brook River. Essex Fells owns a water treatment plant that the Borough of Essex Fells is investing 2.7 million dollars to process clean drinking water. The Mayor offered concern, but no proof by way of expert testimony, that the flooding in the area that occurs several times a year will be made worse if the project is built. While the Mayor offered concern that additional flooding may harm future drinking water, he offered no proof by way of expert opinion, test results or engineering design criticism. 70. In response to the Mayor of Essex Fells testimony, the Board Engineer pointed out that the flooding problem being experienced in Essex Fells may be due to blockages downhill from the area in question which are located in Essex Fells and not due to stormwater flowing from West Orange. 71. Gregory Mascera, Esq., attorney for Verona Township, advised the board that there is a resolution from the Verona Planning Board that limits development on Howell Drive to single family homes. He requested that if the application is approved that the

Applicant should be required to appear before the Verona Planning Board due to the proposed emergency access for first responders on Howell Drive. Though requested, the Township of Verona never supplied any resolution or contract that evidenced that the lots on the West Orange side of Howell Drive were subject to the limitations set forth by the Verona Planning Board regarding the Verona property. 72. Geoffrey Goll, P.E. President of Princeton Hydro testified as a geotechnical expert on behalf of We Care (objectors). He questioned the sufficiency of the geological testing done by the Applicant, specifically as related to Building D and the ridge line. Mr. Goll offered questions as to whether the ground had sufficient stability to support Building D, but he could not provide any degree of engineering certainty that there would be a ground failure or collapse if Building D is constructed as planned by Applicant. 73. In response to the testimony of Geoffrey Goll, P.E., Applicant offered testimony of Mark Seel, P.E. of Langan Engineering. Mr. Seel pointed to the report of Mr. Goll as proof that that the rock strength in the area of Building D would support the building and that the slope to the west of the ridgeline would remain stable. Mr. Seel testified that Langan Engineering did not recommend blasting for the construction, but rather excavators and chemical expanders would be the preferred method of construction. Should blasting become necessary, a controlled blasting would entail precise sequencing that would minimize removal of rock beyond the blast site. Mr. Seel also noted that the report of Princeton Hydro and the testimony of Mr. Goll did not make any findings that Langan’s analysis were in error. 74. Objectors to the project introduced testimony from William H. Green, III, P.E. that suggested that the Applicant’s plans did not show required evidence of a water supply

to the project. He also testified that these details are necessary to establish that there can be fire suppression supplied, that there would be sufficient water for the peak hours of use of the site. Green suggested that either a well or a water tower would be needed. 75. Objector engineering expert Green also testified that he did not see any evidence of a sewer system on the Applicant’s plans. He opined that the Applicant would need to install pumping stations for the sewer system and none are provided on the plans. 76. The Board engineer, Ryan MacNeil testified that water and sewer connections are not provided in detail at the Planning Board site plan review but are a requirement of a post approval condition which is the usual and customary method of detail required to establish sufficient sewer and water connections. In a report to the Township Engineer dated December 8, 2025, Michael Dziubeck, P.E. of CME, reviewed the sanitary sewer plans submitted by the Applicant and provided conditions that must be satisfied by the Applicant. 77. The sewer plan is depicted on Site Plan pages SP-18, and SP-19 to SP-24 depict enlarged details of specific sewer construction with the proposed pump station depicted in SP-23. 78. With respect to water supply to the site, the Applicant provided evidence that water would be supplied by New Jersey Water (a signed agreement with New Jersey Water was provided by the Applicant to the Board’s professionals) and the utility plans (SP 18 Overall Utility Plan, SP19-24 representing enlarged views of sections) depict the water lines (shown marked with a “W”) which demonstrate the feasibility of the proposed water source.

79. Objectors also introduced testimony from Geof Goll of Princeton Hydro. Mr. Goll opined that using “factors of safety” the slope on the property has a naturally low safety factor. The suggestion of Mr. Goll was disputed by the Applicant’s geotechnical engineer, Mark Seel, who testified that the calculations shown in the Goll report confirmed that the slope was stable and could sustain the weight and mass of building D (the building closest to the ridge line.) Mr. Goll also admitted that the Applicant was not proposing any disturbance east of the ridge line. 80. The Board’s engineering consultant, Samuel A. Kleinberg, of CME provided an opinion as to whether Building D position on the site and proximity to the slope was a potential danger to any of its occupants or surrounding properties. Mr. Kleinberg reviewed the reports and information provided by both Applicant’s engineering expert (Seel) and Objector’s expert (Goll) and issued a report dated October 28, 2025. Mr. Kleinberg testified that he was not provided with the conservative ground water analysis from Langan. Mr. Kleinberg recommended that Langan provide the output study; however, Mr. Kleinberg confirmed that it was unlikely that there would be any slope failure at the site. 81. Mr. Kleinberg testified that both Langan and Princeton Hydro both came out with safety factors of greater than 1.5 which means that both studies indicate that the slope is not unstable. Mr. Kleinberg opined that the 1.5 safety factor was sufficient for this project and the proposed location for Building D did not have any significant impact on slope stability. 82. Mr. Kleinberg considered many scenarios that were highly unlikely but ultimately concluded that the location of Building D was to the west of the slope as required by

the Ordinance and the construction of Building D would not extend into the slope or present any probable safety concerns. 83. The Township Fire Chief reviewed the plans and issued findings in a memorandum dated August 1, 2024, in which he opined that there would be no significant obstacles, both as to access to the complex and all buildings for any firefighting needs that may arise. 84. The Application requires the following variance relief from the Board: SECTION/REQUIREMENT PERMITTED/REQUIRED PROPOSED 25.19.e.10- Maximum exposure of perimeter walls for basements, cellars, or building foundations 50% 54.8% as to Building D 69.1% as to Building C 67.4% as to Building B 76.5% as to Building A 85. John McDonough, P.P. a licensed professional planner, testified on behalf of the Applicant that the Application is an inclusionary housing development that was designed in accordance with a Fair Share Housing Plan and Settlement so that 100 affordable housing units could be built while preserving over 90 acres of wooded and undeveloped land. 86. The project is located in the IH1 zone which was created for the purpose of providing housing for all income levels and is in keeping with the goals of the Township Master Plan, Fair Share Housing Element which references this development and this location. 87. The proposed Application is directed at satisfying the third-round obligations of the Township’s affordable housing needs and is consistent with the goals of the Master Plan.

88. Mr. McDonough testified that the Application meets all the ADA and Electric Vehicle standards and conforms with the applicable DEP regulations. The project meets all the bulk standards for the zone with the exception of one minor bulk variance for exposure of building foundation walls and two RSIS exceptions. 89. With respect to the c variance relief regarding the foundation exposure, Mr. McDonough testified that they requested more than 50% exposure of the foundation so as to minimize disturbance on the property. The need for the variance is due to the terrain of the property and thus satisfies the c1 criteria. The foundation exposure is mitigated by landscaping with foundation plants and live plant screens. 90. The Applicant’s expert planner also testified that the variance for the foundation exposure may also be granted on the basis of c2 criteria because the benefits of providing affordable housing and the public need for economically suitable housing outweighs the relatively modest design exception. Additionally, the design as proposed will promote more efficient use of land and economy of scale while also preserving 90% of the woodlands adjacent to the buildings. 91. Mr. McDonough made note of the applicability of the case Pizzo Mantin Group v. Township of Randolph, 137 N.J. 26 (1994) which states that when an application for sub division or site plan meets all requirements of the subdivision or site plan and zoning ordinances, the Applicant is generally entitled to approval and a denial must be based on specific failures to meet the stated ordinance standards. 92. The requested variance for the foundation exposure could be avoided if the Applicant did more extensive excavation but as suggested by Mr. McDonough, the Board finds

that the benefits of leaving a slightly larger area of foundation exposure with mitigating landscaping is a much better alternative. 93. There are two di minimus exceptions requested from RSIS: (1) The loop road closing of Kusik Drive when there is an expected greater than 1,000 average daily trips (as per the traffic expert Penke) can function safely and efficiently by limiting Kusik Drive access for emergency access only. (2). That there is sidewalk on one side of the road in a small part of the development. Inclusion of a sidewalk on both sides is impractical and serves no planning purpose as the overall project is bicycle and pedestrian friendly with well-marked and lighted crosswalks. 94. N.J.S.A. 40:55D-46a. and b. and N.J.S.A. 40:55D-50a. govern the Board’s review of the preliminary and final site plan application. N.J.S.A. 40:55D-46a provides that an “ordinance requiring site plan review and approval shall require the developer submit to the administrative officer a site plan and such other information as is reasonably necessary to make an informed decision as to whether the requirements necessary for preliminary site plan approval have been met.” N.J.S.A. 40:55D-46a further provides that “The site plan and any engineering documents to be submitted shall be required in tentative form for discussion purposes for preliminary approval. If any architectural plans are required to be submitted for site plan approval, the preliminary plans and elevations shall be sufficient.” N.J.S.A. 50:55D-46b provides that “if the planning board required any substantial amendment in the layout of improvements proposed by the developer that have been the subject of a hearing, an amended application for development shall be submitted and proceeded upon, as in the case of the original application for development” and “the planning board shall, if the proposed

development complies with the ordinance and this act, grant preliminary site plan approval.” N.J.S.A. 40:55D-50a. provides that final site plan approval “shall” be granted if the detailed drawings, specifications, and estimates of the application conform to the standards of all applicable ordinances and the conditions of preliminary approval. As such if the applicant meets the standards set forth in the ordinances, the planning board lacks the authority to deny approval of the site plan and subdivision. N.J.S.A. 40:55D-50a; PRB Enters., Inc. v. S. Brunswick Planning Bd., 105 N.J. 1, 7 (1987); Dunkin' Donuts of N.J., Inc. v. Twp. of N. Brunswick Planning Bd., 193 N.J. Super. 513, 515 (App. Div. 1984). Conversely, if the application does not comply with all ordinance requirements, the Board must deny approval. Cortesini v. Hamilton Planning Board, 417 N.J. Super. 201, 215 (App. Div. 2010). However, there are two exceptions: (1) The first exception is where an application does not comply with all ordinance requirements but the Board grants relief in terms of variances or exceptions. In that case, the Board then must review the application against all remaining ordinance requirements and grant approval if the application complies with all such remaining requirements. 95. A Board may also deny an application if an Applicant fails to provide sufficient information on fundamental elements of a plan that may have pervasive impact on the public health and welfare of the community. Field v. Mayor and Council of the Township of Franklin, 190 N.J. Super. 326, 332-333 (App. Div. 2021). 96. N.J.S.A. 40:55D-60 permits a planning board to grant variances from the bulk regulations of a zoning ordinance and other zoning deviations that do not require a “d” variance as part of site plan or subdivision review. The variance proofs are the same as

for “c” variances as set forth in N.J.S.A. 40:55D-70. A c(1) variance may be granted for reasons of exceptional topographical conditions or physical features uniquely affecting a specific piece of property such that the strict application of any regulation would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property. A c (2) variance may be granted when the purposes of zoning are advanced and the benefits of deviating from the ordinance requirements outweigh any detriments. The benefits derived from granting a “c (2)” variance must include benefits to the community as a whole, not just the applicant or property owner A “c” variance must address the “negative criteria,” and affirmatively demonstrate that the variance can be granted “without substantial detriment to the public good” and “without substantial impairment to the intent and purpose of the zone plan and zoning ordinance” of the municipality. 97. The criteria for an RSIS exception (set forth in N.J.A.C. 5:21-3.1) are: 1. Is the exception consistent with the intent, 2. Is the exception reasonable, limited and not unduly burdensome, 3. Does it meet the needs of public health and safety and 4. Does it take into account existing infrastructure and possible surrounding future development. 98. The Board considered applying almost 50 conditions to the application in the event that the Application was approved. NOW, THEREFORE, based upon the foregoing findings of fact, the Board reaches the following conclusions of law: 1. The use at the site is a permitted use.

2. The requested variance for exposure of the foundation wall satisfies the c (1) criteria as the exposed foundation wall is necessary due to the topography of the property and presents a better alternative than more extensive excavation to bring the foundation walls into compliance and also satisfies the c(2) criteria because the benefits of providing affordable housing and the public need for economically suitable housing outweighs the relatively modest design exception. 3. As to the requested RSIS waivers, the Board finds that the request for a removal of a sidewalk on a small section of the property is a di minimus exception that should be granted as the inclusion of a sidewalk on both sides is impractical and serves no planning purpose as the overall project is bicycle and pedestrian friendly with well- marked and lighted crosswalks on the site itself (but not as to the only road that leads into the development). 4. The request for closure of Kuzik Drive access is denied as the Board finds the closure does not satisfy the criteria to allow a di minimis exception. Closing access to Kuzik Drive, except for emergency vehicles, would result in Warner Road being classified as a multi-family cul-de-sac and there would be an excess of 1,000 average daily trips over recommended traffic counts. 5. A majority of the Board; however, did not find that the benefits of the project outweighed any negatives and further found that significant public health and welfare issues that would damage the community existed. Specifically, half of the voting board members found that there were significant public safety issues to the proposed project as they were concerned about internal traffic inside the complex because it has only one true ingress and egress point, even with the opening of Kuzik Drive, and as such