Planning Board - Regular Meeting

All right, wing spam. Let's go. There we go. We're on. I already did it. Too slow.

Sugar, man. Okay. All right. Ready? I do. David, we're recording. Yeah. Yep. We're good. All right. You are excellent. You are. Okay. Good evening everyone. Welcome to the Hillsboro Township Planning Board meeting of December 4th, 2025. Please join me in salute to the flag to the flag of the United States of America and to the republic for which it stands. One nation under God, indivisible, with liberty and justice for all. Amen. [snorts]

Please be [clears throat] advised this meeting has been duly advertised according to section 5 of the open public meetings act chapter 231 public law 1975 otherwise known as sunshine law. Notice of the 2025 annual meeting schedule has been provided to the officially designated newspapers. township clerk post on the township's website available here at the Hillsbor Township Municipal Complex. In addition, application documents have been made available on the township civic clerk website at least 10 days prior to this evening's meeting. Complete application files are available in the planning and zoning department for inspection in accordance with the public meeting notice. And with that, may I have a roll call of board members and also board and township professionals, please? [clears throat] Mr. Flag, Mr. Deb, and Mr. Smith are absent. Mr. Wagner

here. Mr. Radawitz here. Mr. Vitali here. Miss Smith here. Money present. Mayor Cherelli here. Vice Chair Pee present. Shar Sarra here. Mr. Swiss present. Bernstein here. Mr. Mayhew here. Mr. B here. And myself and the videographer are here.

Also, Christopher B on behalf of the carrier is here this evening and he's on the list. So, Welcome. [snorts] Okay. Okay. We [clears throat] do not have any meeting minutes for consideration nor resolutions. There's no planning board business and no consideration of ordinances. So, I will move to business from the floor for matters not on this evening's agenda. So, if anyone from the public would like to provide any comments to the board on any [clears throat] matters that are not on this evening's agenda, please come up. and state your name and address for the record, please. Right there. [snorts] [clears throat] Good evening. Maria Janusk, 720 East Frick Avenue, Manville, New Jersey. I'm also a Hillsboro Township property owner, block 86, lot 3, 215 Camplane Road. Um, you mentioned, chairman, that there are no meeting minutes. When was the last time that there were any meeting minutes for the planning board provided?

Last meeting, right? Last meeting. At the last meeting. Yeah, there there were some on the last meeting. At the next meeting that there should be almost it should almost get us up to date for this calendar year. So, um, at the last meeting you had meeting minutes from what meeting? I don't have the exact, Mr. Chairman. I don't know if you wanted me to look it up, but No, we had them. I mean, they're available online. You could see

Well, because looking um um at the uh uh planning board uh um information there are there there's quite a few minutes, I think, that are that are that that are not available yet. Um is there a reason why those minutes aren't available? I believe a number of them were done at the last meeting that got us through the summer and up to September. There may be I can answer that question exactly. July 24th, September 4th and September 11th meetings are on the last agenda. Thank you.

Yes. And and all of the minutes uh for meetings prior to that are all available. All regular. Yes. all the regular meetings from the beginning of the year all the way up to that point. Yes. All the way up to September. Yes. Was it believe it's just the October? Yes. October and November. That will most likely be on next week's agenda.

Okay. Um All right. So, next week's agenda there will be additional minutes. Yes, that's our that's our goal is to get it as up to date as possible so that we don't have to go very far into 2026 where the board is still approving 2025.

Okay. Another issue is uh quite a few applications that come before this board um don't give information as far as any kind of um um environmental um I don't know what the word would be. Um if if if if a property has wetlands or if it's in a in in in um flood zone, it doesn't have any that any information on that line. Shouldn't that be provided on the application? If that's on the application as one of the questions, shouldn't that information be provided on the application? Mr. Chairman, did you want me to answer that?

You can answer that. Okay. uh through the application process there will be depending on the application but there could be the LOIs letter of interpretations that are showing the wetlands and things like that that information needs to be also represented on on the plans again depending on the application it would generally be shown on on the site plan or a page if there's a specific application you're inquiring about we could work with you offline and provide you that info

I'm talking about the the application itself that says the name, the the the number of the application, who the applicant is, who the attorney is on that one specific page. That's the application. On that one line that's that that asks for environmental issues. Quite a few applications do not provide the information. As you're saying, later on, there's a letter of interpretation or something on um on a record somewhere else, but that but that page does not show that information. And if that's a question that's on the application, then that information should be provided, I think. Oh, thank you. You're referring to the actual application page, correct? Yes. Okay.

So, is there a reason why that's not I think I had asked that once before at one of the applications. I said I it was it was known that it it had wetlands and some other issue and yet that wasn't that wasn't recorded on that page. Um, is there a reason why that's not provided?

It's difficult to work through hypotheticals, but what I can say is as we look through that uh through the um looking to see if we're going to deem an application complete or not, that's something we look at. If an applicant didn't provide that information, then it could it could be deemed incomplete. And when they re resubmit, then that's when they would provide that information because you're not asking for you're you're not identifying a specific application. It's very difficult for me to say which one. But generally speaking, if they don't provide that information, it could deem the application incomplete.

Okay. Um I think I think the campus application initially didn't have that information. Um there a few other recent ones didn't have that information. um at the next meeting I can uh look those up and uh provide information. Thank you. You anyone else? Okay, seeing none, [clears throat] are we looking to go to executive session first? No. No.

Uh Mr. Chairman, what we're proposing is that you hear Mr. Fmore regarding campus assoc Mr. Kesler regarding campus associates. We then hear the public relative to Harvard Way and then we go into executive session with Mr. B regarding the [snorts] parameters before the governing before the board comes out to deliberate. Okay, fair enough. So, and I will have something to add regarding the public portion when uh we get to that.

Okay. Okay. So, we will then go to public hearing. campus associates. Come on up for your [clears throat and snorts] semianual visit here. There we go. Hi everybody. Uh good evening uh to everybody. Steve Steven M. Kesler on behalf of uh Fernmore Homes. Uh here to provide my uh every six-month update on where things stand over at the uh Campus Drive um residential project. Um, I can begin with a general overview if that's okay, where we are and where we plan to be in the in the coming months and then uh accept what other questions the uh members of the board might have um or uh members of the public. Uh so at this point uh happy to report that uh site work um is complete on on the property. Uh the curbs are in um we are partially paved uh at least as as much as we can at this point. Um, we are installing at this point our electrical uh conduits. Um, once that's finished, we'll put down a base coat of uh of asphalt. Um, the clubhouse has been built. That is up at this point to uh rough mechanicals and the roof. Uh, it's not wrapped or enclosed yet, but it's uh it it's up and if you drive by, you can see it. Um we will uh as soon as we're able to uh go vertical on the first uh two uh buildings by installing foundations, then we'll start our our groundup construction and we'll continue to work through uh the winter months to get that done. Uh the only thing we might not be able to accomplish in the winter depending on timing and temperatures, the asphalt uh is tough to do in the cold temperatures. The uh the plant uh will shut down at a certain point if it hasn't already. Um, but other than that, uh, we can work everything else, uh, through the winter months. Uh, we've been working, um, really well with the, uh, uh, planning

department, with the building department. Um, I will say that the town, uh, is is very well represented by its building department. Um, very well represented. You, uh, as David put it at one point in the past, your your building department is the Harvard University of, uh, building departments, and I I think that is absolutely 100% correct. So, the citizens of the town are very well represented by the building department. Of course, it makes our our job more difficult as a builder and it makes things a little more a little slower than we would like to see it, but at the end of the day, uh your your job's to represent your your residents. So, we fully understand that and uh look forward to finishing the project. Our hope is that um by the time uh I'm back in June, we will have buildings up. Um hopefully uh the first two will be uh completed wrapped through Rough Mechanical. Uh the the uh second two buildings uh should be going up by that point. if not if not up completely. We move very quickly once we go into vertical construction. Things will go a lot uh quicker at that point. Um so that's my uh general overview and update and uh open it up to whatever questions you all might have or or members of the public.

Okay. Thank you. Uh thank you Mr. Kler. [clears throat] Question. When you said site work is done, does that include all storm water facilities and uh could you just elaborate on that a little bit?

Yes. Um everything below ground at this point uh with again with the exception of the electrical conduits is complete uh and operational. Um we uh uh so what that includes in the definition of site work uh that would include that as well. Yes. I know you don't have a crystal ball but what do you anticipate start to to look for tenants and advertise for tenants? Um so so so usually um what what will happen is the the uh first two buildings will obviously be completed first. As we start getting toward the toward the uh toward completion or toward a temporary co we'll we'll seek a temporary certificate of occupancy from the township once we get close enough. Um we'll probably start reaching out to tenants uh a little bit in advance of that. Usually we can kind of time that out. Um, so at this point, I mean, I I I can't say for sure, but based on where we are and based on how our projects uh generally tend to move, I would say probably sometime in the summer um to give you a good estimate, but but again, I we're moving as we're moving basically as quickly as the the building department will allow us to move. So, I can't say for sure, but if I had to take a like a a stab in the dark, probably sometime in the summer, we'll start looking for tenants. And just to clarify, all your affordables are mixed in with all the regular tenants. So, it'll be all general plus the affordable units at the same time.

Correct. And it it's typical that the affordable uh units will be rented uh first. Typically, that's how it works. There there's a long waiting list um in in most towns uh most uh jurisdictions. So, usually we we uh lease up all the affordables first. Okay. Thank you. Yep.

Any other board members? David uh just as related to that question that was brought up there just a point of information for the board. There is a uh phasing plan that the developer is following and something that the building department is responsible for in terms of which buildings are allowed to be coed because of the the percentage of market rate and the percentage of affordable units. there's a very specific uh phasing schedule that has to be followed. So just as a point of information for the board and uh my department's responsible for making sure that that that that happens. Um just a question are you as the developer can can you just remind us is the developer are are you are you using the township's administrative agent or

Yeah. Okay. Yeah, we will be using we we almost always do in the town. It's just easier that way. Okay. And you've been in communication with our administrative agent. She she'll be ready to go. Yeah. Um I think as we get a little closer, we'll we'll ramp up our communication, but we had initial talks with them. And that's t typically how we like to do it is is go through the town's administrative agent. Just a lot easier. When you get a little bit closer, just make sure that you're copying the municipal housing leison on for the township. Sure. And if you need to reach out to me to find out who that's going to be in 2026, just let me know. I'll do that. Thank you. Thank you. Uh that's it, Mr. Chairman. Okay. Thank you. Okay. [clears throat] Do I have to do a motion to make public? So moved. Second. All in favor? I

I.

Okay. If there's anyone from the public that would like uh to question regarding the update on campus associates, please feel free to come up and state your name and address for the record again, please. Maria Janu 6 720 East Freck Avenue Manville. Um so uh you mentioned that site work is complete. What is included uh in in the site work? So generally speaking, site work uh involves the clearing of the site, the grading the the grading of the site, uh the installation of storm water, the installation of utilities, um and then uh uh in preparation for the placement of foundations.

Uh did did this property have u wetlands? So, so we're we're building this first of all, if there are wetlands on a on a property, obviously we we can't build in the wetland areas in the delineation areas. Um, I don't want to speak to any specific engineering uh aspect of the uh project. I I can defer to the township's uh uh professionals. Um, I can tell you that we are building the project in conformity with uh the approved plans. So, you wouldn't know if um I

I believe there are wetlands. I mean, that the site is basically on a creek. So, I mean, I believe there are wetlands. Mark uh Mayhew can can is more familiar with the site from an engineering standpoint, but I'm fairly certain that there are, you know, on the back of the site wetlands. And so, if there are wetlands, uh they need to uh get approval from the New Jersey Department of Environmental Protection. So, we received any and all required approvals um prior to construction. Uh that would include any township approvals, state approvals, uh anything required by any state agency, uh local agencies and and any other regulatory agency with jurisdiction over the site.

But you don't you don't know specifically uh you haven't seen any of that. You wouldn't know if whether they have it already or not. those those those permits the the township um I would not allow us to move forward with uh the project um nor would we be able to do anything uh with the project in terms of financing or anything else without all permits and approvals being in place.

So then the place to check as far as permits would be the township. So, um, if you were, I'm sure, to do a, uh, um, a, uh, Freedom of Information Act or Sunshine Act request to the township for copies of the, uh, files, the file would show all permits that we have in place for the project. Yes. A lot of it's also, uh, available online. Um, I know that the township has a very nice uh, um, user-friendly uh, online system when it comes to looking things like this up. Thank you. Sure. Um can you give me some information on the uh phasing plan?

So, so this is being built in a couple of phases. Again, that's all available. Um I believe it's two buildings and two buildings and then within um you know, it's four buildings total that the clubhouse being its own phase. That's why the clubhouse went up first and then there will be two buildings uh that'll be put up first. Once those are underway, um the second phase uh will be built which will be the other two buildings. So it's basically being built in two phases. Um the the third kind of quasi phase being the clubhouse which is built at this point. So the other two buildings what what are they are those residential or or

so so all all of the uh buildings that we're building there are residential uh rental units. Uh interspersed with those are um some of the afford or the affordable units for whatever affordable units have been required uh for this project. So this project is strictly residential. There's no no commercial. No commercial uh in our in our site. No, not at all.

Okay. Um and it was mentioned that uh you would be using the administrative agent of the township. What is the purpose of that? So, so anytime there are affordable units as part of a uh residential uh project, which uh many residential projects uh in the state of New Jersey have, and there's a COA requirement that we're fulfilling, uh we have to work with an administrative agent who helps to administer the um um affordable housing uh rental process because it's a little different than just going out and you know, renting to you or to anybody else. You have to there there are regulations that have to be followed uh very strictly. the administ each township has an administrative agent that's responsible uh for the township's compliance. They also work with um uh developers and owners of property um in making sure that they're compliant as well. So, we'll be utilizing the same company for that. We um find that it just works out a lot easier.

So, how many uh residential units are there total? I don't have all the counts in front of me at this point. I apologize for that, but that's all available online in the application. Okay. So, uh you don't know how many are are affordable and how many are regular. Again, there's typically right now Miss Chan, you let me reant. This has already been this is an approved project. As [clears throat] as as a Hillsboro I just ask

questions relevant to [clears throat] the comments and the update that he provided. 90. There are 96 residential units. 23 of them are affordable. Okay, that's that was it. I I I don't know why it had to become a big production. All right. Thank you. Thank you. Thank you. Any other members public? Okay. [clears throat] We'll see you in six months. We'll see you in June. Thank you. Thank you, sir. All right. Have a good night. Happy holiday. Have a good holiday. Happy holidays to you as well. Now

Mr. Chairman uh we are now going to enter into the evening the other part of the evenings festivities and that is the ongo the remand from judge men and on Harvard Way JMJ4 LLC um as board members who are eligible and just for the purposes of the record before Mr. Grodnik enters his appearance. The board members who are eligible to hear this application are Miss Smith, Mr. Wagner, Committeeman Leani, yourself, and Vice Chairman Pson. Um anyone else who chooses to remain on the [clears throat] uh deis is not eligible to participate will not be eligible to participate in deliberations or in the executive session that's going to come at some point in this evening. Um I think at this point Mr. O'Rnik should put his appearance as well as Mr. Afronin and then I will discuss what Judge um Menon stated in his last case management order.

Okay. I'm just just I'm just going to put into the record this is [clears throat] Harvard Way JMJ4 LLC file number 21-PB J-09- MSPV and as Mr. Bernstein said we'll call it the remand. So uh sir Grodnick good evening uh members [snorts] of the board. Mike Orodnik from Savo Shaw Law Firm in Somerville, New Jersey on behalf of the applicant Harvard W JMJ4 LLC. Good evening. Bruce A on behalf of the objectors and I am here to the same. Okay. Thank you. [snorts]

Um for the purpose of the record, Mr. Chairman, at the last board meeting, Mr. O'Rnik was here introducing three permits that his client received from D. Mr. Flynn from his office was also here discussing what they believe were information that somehow addressed an issue involving section 188 of the township code in regard to the issue of what I would euphemise what I would euphemistically refer to as spec warehousing. Um there [clears throat] was a discussion Mr. Afron had been retained to represent some of the neighborhood. There were ongoing discussions. The matter was continued. Ultimately, Mr. Afron submitted a motion to intervene. Mr. O'Rnik's client opposed. The township, I don't believe, took a position one way or the other. his honor. Let me read into the record his honor's decision of October 17, 2025 relative to both Mr. Afron's intervention motion and a subsequent case management order that came with it. Whereas proposed interveners, Grill Green Hills Community and Nonprofit Corporation Scott Armstrong and Christine Copppin filed a motion seeking leave to intervene in the subject matter under rule 4331 or 4332 of the New Jersey rules of court. And whereas the court considered the moving papers in opposition to the motion having heard oral argument of council. Now, therefore, it is on the 17th day of October, 2025 ordered that the application of Green Hills Community, a nonprofit corporation, Scott Armstrong and Christine Coppen, to intervene in the subject matter is denied without prejudice for the reasons set forth on the record in open court on [snorts]

October 17, 2025 at the conclusion of oral argument. His honor then entertained discussion relative to the proceedings this evening and entered the following case management order. The remaining remanded proceedings before the township of Hillsborough planning board shall be conducted in accordance with the court's February 4th, 2025 remand order. It is the court's hope and expectation that such proceedings will conclude prior to December 31st, 2025, but it was not mandatory. Two, it was represented in court that the plaintiff has availed itself of the opportunity to supplement the record before the board limited the presentation of certain NJD stamp letters of approval and the presentation of proposed conditions of approval to address I'd also note that Mr. Flynn Matthew Flynn is here from Mr. O' Grodnik's office and the presentation of proposed conditions of approval to address the board's concerns related to Hillsboro Township Ordinance Section 188-31E in so far as the plaintiff has supplemented the record. Those areas of supplementation are appropriate for public comment, including comment by any attorney retained to represent said members of the public before the board renders any decision. Those aspects of the court's remand which are limited to the record previously aduced shall not trigger the right to public comment but shall only instead involve board deliberation based upon the record previously aduced. Nothing hearing shall preclude the defendant planning board from seeking the advice of his professional staff example engineer or planner with regard to any of area of the record the plaintiff has chosen to supplement. There was then a case management conference set down for next week and service of the order. Therefore, the limited public comment is related to all that was introduced

at last at last meeting relative to the DP and to section 18831E of the code from the public. No other aspect of the application is open for public comment. The board may either in executive session or during deliberations seek guidance from either Mr. Mayu, Mr. Flynn, Mr. Twice, Mr. B or myself or applicable relative before it comes out to deliberate. Okay.

So, at this point, your honor, it's Mr. Chairman, it's a motion to open to the public. Okay. [clears throat] Is there a motion to open to public? So moved. Second. All in favor? I [snorts] Huh? Only the five. Only the five. [clears throat] The rest just keep eating some chocolate.

So [clears throat] it's open to anyone from the public that would like to provide commentary [clears throat] on what was introduced or as outlined by Mr. Bernstein uh from the last from our last public hearing. I think we got a few Mr. Afron. I would I would move the microphone closer. You got to turn it on too. Oh, I'm sorry. It's a bright green.

Mr. Chairman, I will make some comments on behalf of the objectors. Um, in particular, I've seen the uh memo of Penoni and we think that that represents a proper statement of analysis as to the hydrarology issues and the it's an interesting point that's often overlooked and I I compliment the engineer because there's a constant trend of thought in these types of hearings that if D enters a permit somehow the board is bound to that and that's not true. The municipal land use law actually creates and imposes on the board a separate duty to satisfy itself that issues related to hydraologies, wetlands, etc. are satisfied because this board has a different jurisdiction and as the engineer points out those are minimums that D looks at. It's not looking at the totality of the environmental laws of the state and this board has a duty to satisfy itself that in this town those rules are satisfied in a broader way and that's precisely what the engineer has done. So we endorse that report and we believe it represents something that should be incorporated into the findings. It is based solely on the evidence that has been in the record already as supplemented and it's critiquing the permits from D and saying that doesn't rise to the level of the law that governs this board. And so we think those represent very appropriate forms of analysis that should be incorporated into your resolution. Uh I I do want to make a point about the evidence about the specifications of operation of the proposed warehouse. I'm not aware that any witness has testified to those specifications and they can't simply be introduced by representation with great respect to my colleague of counsel. This is new

information that could only find its way into your resolution if number one you approve of that information and find that it meets the ordinance and number two and most importantly if someone testifies to it so it can be cross-examined and tested. Right now we don't have any evidence as to satisfying the specifications aspect of the ordinance. And so I would say that on behalf of the objectors I don't think the board can accept that evidence uh in satisfaction of the ordinance because there's no evidence. I mean no disrespect to Mr. Grodnik but that's not his statements are not evidence and even a written affidavit is not evidence in the planning board. Someone has to be here and testify to those facts so they can be tested. We have no idea whether they're credible, whether they're seeming to be reliable, whether the person who profers them can defend them, and the public can't question that individual either. So, I would say that that aspect is not satisfied, excuse me, [clears throat] by the applicant, and it would be improper, as a matter of basic procedure and due process to incorporate that into any sort of positive finding on the board's part. there is no evidence to support the ordinance with respect to the specification question of operation and therefore I think the board needs to make that type of finding. Um I think that with respect to one issue and I haven't seen the draft resolution of course with respect to one issue the court did ask the board to identify why it accepted the objector's expert over that of the board and that of the applicant. So I would say that that does have to be in in some form in the final resolution. And I think what Pinoni has done is actually outlined a lot of the same issues. So I I think it's important to note that in the resolution that the objector's expert has been found by Pinoni to to be credible in these areas that were addressed and these are reasons why the board accepts it. But I

do think it's important to stress why you accept the objector's expert. Otherwise, you might not be meeting the standard of the remand. So, I think that concludes what I had to say. I thank you very much. Thank you. [snorts] Come on up and [clears throat] state your name and address for the record. The mic's over there.

David Brookke, Seven Winding Way. Is that mic working? Yes. Yeah,

I I'm not sure. I know this is public comment and I'm not sure whether I am in a position to ask a question or make a statement, but I guess I'll try it and see where we go. Um, there were these documents that were submitted. The LOI November 4th, 2024, freshwater wetland general permit 6, November 29th, 2024. some sort of recording of them, a modification and transition area waiver for wetlands 122 2024 and then the recording of the freshwater wetlands general permit. Um, and I guess um these are documents that are in the form of a permit of some kind from DP and I just wanted to get confirmation of that but I guess I'll confirm it myself. Um, my my other question I I'm not sure if I'm allowed to ask, but there's no professional that I could see from the applicant that has testified to why DP issued this permit. And I would like to ask Mr. O'Rnik, but I'm not sure if I'm allowed to. So, I can ask. Right. There's no applicant did not bring anybody from D to discuss the permit. Is that correct? That's correct.

Okay. Um, and I guess my question is, um, what if the information that served as the basis for the D permit was incorrect or inaccurate, uh, and it's been presented to you to presumably rely upon? And I guess my question again is how can the planning board members or the township engineer now question it to get some clarity if there's nobody from the applicant or DP to verify how they made that decision? It's it's an outside agency approval. It's independent of the board.

Okay. But there's nobody that can question it at this point. Is that correct? There's an administrative hearing procedure that you could have participated in on file with the board as all the D applications supporting documents and uh yeah there is an appeal period and administrative period uh which is expired.

Okay. Um when I read through the judge's order and I think Mr. Bernstein mentioned it, I just wanted to read one part. Um, the applicant was given the opportunity by the judge in this matter to supplement the record with any proofs that its storm water management plan could be made feasible and compliant with applicable regulations without a reclassification of the site soils from hydraulic soil group classification C to soil group D. Is that correct statement? Okay. I took it from the judge's order. Um, as far as I can tell, the applicant has chosen to only present paper documents to support this position. Is that correct? I I get no answer, but I I guess the answer is correct.

The answer is what they're were permitted to do is submit the paper documents. Okay, that's what his honor agreed to allow to be provided to the board at the request of the applicant. Correct me if I'm wrong, Mr. O'Gradic. That's correct. We actually did file a motion to supplement the record prior to the trial which was denied. Um but after the court after we had the trial and the court issued a ruling on remand, the court permitted um the board ultimately to consider the approvals from D that do address the stormwater management compliance.

But the word of the order says supplement the record with any proofs. Is that mean only paper or does that mean that you could bring a witness in? And I'm not sure who I asked that one of that. That's no longer an issue. It is what it is. The paperwork is submitted and the board will deal with it. Okay. But if I may make a a comment indirectly about Well, it will clarify something Mr. Brooks is asking about. Why not?

This is you're not here to clarify Mr. Afron. If you want to make a public comment relative to such and Mr. the chair allows for it, he can. But Mr. Brookke is here to ask a question and that's what we're here for. public yield my moment. No, we're not y this is in Congress either. Uh we're not we're not yielding time. I will save it till Mr. Brooks concludes and I'll if the chair wishes to allow you to make further comment. It's up to the chair. Mr. Brookke anything else?

So just one or two other if I may. Um, so apparently the applicant has also chosen to not bring a professional witness to testify to the accuracy or the applicability I think was the more important question as to the documents that that the applicant has submitted. Um, and I'll just say yes since I can answer for him. Um, there's no engineer here tonight. There's no uh professional here tonight from the applicant to testify as to what they're trying to present. And right the most important thing I think for the board to look at is that none of the permits that you have been provided with either list or mention anything that relates to soil group C or soil group D. that was the biggest contention for the application that was reviewed and you ultimately denied based upon those issues. And so I read through all of the permits. There is no mention of soil group C or soil group D. And so my thought is that without a professional to testify as to why these documents support the applicant's position that they're somehow suggesting that these D permits support the reclassification [snorts] um or a classification different than what the board's well excuse me different than the uh objector's engineer found and I believe may be confirmed now by your own engineer. Nothing mentions group soil group C or soil group D which was in the

court's order for the applicant to or the should say not applicant but the plaintiff. I'm object I'm objecting to that statement. You're mischaracterizing the record. That's not what it says at all, Mr. Brooks. Well, we can argue about that, but let me just finish and then I'll let you and we can go back and forth. There's nothing sum up.

I'm there. There's nothing that was provided that discusses soil group C or D. The D permits never mention anything associated with that. And I think the biggest challenge that I have and I presume maybe the board has is that as it goes to these submittals on behalf of Harvard Way, the critical part is being able to question the veracity. And I will simply say to you that you can't crossexamine a piece of paper to determine those factors. And I think that's where everything submitted by the applicant fails. Thanks for your time. And it's always nice to see everybody again.

Any other members of the public? Okay, I'm going to let you because [clears throat] I do not want to see the residents disenfranchised. So, please comment away. Thank you. I didn't mean to jump the gun. Mr. Brooks is right. Now, I just wanted to point out, Mr. Chairman, that although D is not here as a witness, so to speak, Mr. Mayhew [clears throat] is here and um he did issue a report which I addressed before and it does actually address many of the uh deficits that Mr. Brooks was concerned about. I just wanted to reemphasize that. Um that's the only point I wanted to make. Okay. Thank you.

Thank you. Okay. Yep. Last bite at the apple. Okay. Motion to close. Yep. Motion [clears throat] to close the public. Second. All in favor? I I.

Mr. Chairman, at this point, I would ask that the board go into executive session, consult with its council, and come back out and deliberate as per the instructions from Judge Menum. Therefore, I'm seeking a resolution to go into executive session pursuant to NJSA 104-12B7 attorney client privilege pending or anticipated litigation Harvard Way JMJ4 LLC versus the Township of Hillsboro planning board at AL. The board will return from its executive session and we'll start to deliberate.

Just one more item before you deliberate or before you go into exec. We would like to put on the record our objection to the report. We did receive it today late today. Uh but our objection is based upon that it's outside the scope of the remand and in that it's in that opinion. Okay. May I have a motion to go to executive? So move Mr. Chairman. Second. Roll call, please. Justified. [clears throat] Mr. Wagner. Yes. M. Smith. Yes. Command Leon. Yes. Vice Chair Peas. Yes. Yes. Saji. Yes. We'll go over to conference room A. We'll leave the public

There we go. That signal. Yeah, that signal's back. So, okay. What are you holding it for yourself now? I mean, he's taking that. You got you got you've taken control of the thing. Two things next to you. two things next to you of candy. Jesus Christ, guys. Move them. No, I don't care. Some of us may want. All right, Mr. Chairman, we need a motion to come back out of executive. Motion to come out of executive. Some second. Can I just do all in favor? All in favor? I I

let the record reflect that all members of the planning board present the commencement executive session are present to reccommence with the open session. Mr. Vitali was in the room did not participate and was not part of it. Also present was myself, Mr. B, Mr. Mayu and Mr. Kois. The executive session was governing was the planning board seeking legal advice from Mr. B and myself mostly Mr. relative to the obligations it has relative to Judge Menon's remand order and to for the board now to deliberate in accordance with that remand order to come to whatever decision it intends to come to. Okay. Thank you. Okay. [clears throat] Board members comments.

I guess I'll start only because I was the one that started it last time. Um, and I I'll just I think we should as a matter of just to keep the record clean, maybe take a topic that I'll bring up. Maybe the rest of board members can comment on it and then another board bring another topic just to keep it so we're all in this the record is cleaner. Um I mean obviously um time brings back things. Obviously we there was permits issued as stated. Um in my opinion um permit was just part of the argument that that the was part of an outside agency. And obviously when we were looking at this permitting was never really part of the the issue. It was really looking at the the site and some concerns that we had. And um the concern that I that sticks out to me that I obviously [clears throat] remember the most um was the testimony of Dr. Emerson um and the whitest stone report in in particular and the classification of soils which was a big part of how the storm water management was designed. Um, and I do recall um there was probably several nights of testimony on both sides of of that issue um by both engineers um and Dr. Clay, you rebuttal, etc. But what um seemed to be in my opinion and in my rec recollection of the testimony and and um and reading back through some of the notes and um some things that were reminded of us by by our engineer again was the inconsistencies of

the testing. the wells, um the drill pits, you know, whether they were being dug by hand in the bedrock, which seemed to be unrealistic. And as I I joked back then, um I've grown up in this town, I've had the pleasure of trying to dig in this town forever. And and the subs soil is very hard. Um and the perk testing that was related to that to classify a C and a D soil. Um I never felt that um testimony was provided adequately in my mind uh that would would justify a reclassification of the soil. Um the infield testing of uh versus a lab testing which they relied on to me was in inconclusive. Um so there was in my mind there was significant doubt to accept um that whole premise and that was that's the first topic I I feel that was a big part of the the concern and the and the testimony that when I was looking at this this whole thing that I felt was never really completely answered. I would I I would agree uh Sean with with what you said in reference to the to the testing part of it. Uh lab testing versus infield testing to me just knowing that area uh previous history of of that area and areas that that it is um you know lab testing to me just comes across as being a little bit on the sterile

side if I if I use that correctly versus actually what's out in the [clears throat] field when you're there. So I that was a question that that I had that we you know that we had discussed um as well. It just didn't in my mind it just didn't make sense given the uh the area in the testing results. I just wanted to mention that.

Yeah, I guess I'll uh I guess chime in on that. Um, you know, besides the uh the the use of a spec warehouse, uh my mind always goes back to uh the concerns of the residents and uh the flooding concerns. And I still wasn't uh convinced that uh this would not increase or or exacerbate uh the amount of flooding that would occur. And it all had to do with the classification of the soils, whether it's a C or a D. Um, it seemed to lean towards a C in my mind. Um, you know, the D. Yeah, it's it kind of boiled down to that. You know, an alternative plan to to to have BMPPS and based on a on a sea soil. uh I didn't see um uh so yeah mine is is is uh my mind goes back to the soils. I feel the same way as as as the previous members have mentioned. Um I did not I did not feel a great deal of confidence in the testing that was done. I believe there should have been infield testing as well which is a better u indication of what type of soil there is to this the entire um you know working through working through how the water is going to do all the runoff they just based it all on D soils which is the state still says it's C soils and that has not changed and I think they could have looked into that more to assuage the valid concerns that the people who live downstream of them have as to the values of their property, their livelihoods and so on, their lives

I should say. Um I think there was several times we had requested to have that kind of testing done and it was not done.

Yep. [clears throat] So I think I concur with regards to some of the uh doubts that Mr. or Dr. Emerson raised with the test methodology doing lab versus in field. Um but [clears throat] you know in addition if we recall there were three pits and one infiltration test. [clears throat] I think one of the other concerns was the three test pits. Did I say pit tests? test pits [snorts] um was concentrated in one area [clears throat] where it should have been spread out. Um in addition with one infiltration test as I always like to say single data point doesn't make a trend and I do recall numerous times requesting for additional test pits infil infiltration testing and the applicant you know said no. [clears throat] So it wasn't like that wasn't an opportunity there that we denied them that opportunity um to determine [clears throat] you know the classifications you know of the soil. The other area [clears throat] because as we know with these application when they're doing design is to reduce the peak to basically spread out that additional volume. And one of the other things that we were looking for was some downstream testing [clears throat] because as we know the water from this area eventually goes into the raridin. And [clears throat] so what we needed and what we had requested and again the applicant said no to this was an analysis because where the peak not the peak but where the volume runs down and how long it's delayed we don't know how that's timed

with the raridin because as we know the raridin will back up but perhaps at a later time and this could just exasperate the [clears throat] flooding conditions that we have there. So, you know, along the line, I mean, these are things that are not considered, you know, when a D is doing their review for a permit. They're they're looking very myopically right at that site, not [clears throat] the broader impact. And and that's our obligation. And and I think that goes back to, you know, where we came to or arrived at our conclusion.

Yeah. I think, Mr. chairman to to that point. I mean, we know that certain sections of the Raritton River, having lived here in Hillsboro, you know, rains end and you know, we have it, you know, going out to to Dukes Parkway and that sort of stuff that the river doesn't crest when the rain stops and a lot of times it's multiple hours. Could be eight hours, 12 hours, 18 hours. And you know given the headarters of the rarity and how wide that is, it takes a long time for those waters to get to their point of their peak point and then slowly recede. So if you have a system that's built, okay, great. We're going to discharge this water 4 hours after the event, well that's great. But if the water that it's discharging into doesn't peak until 12 hours or 14 hours after, that's kind of creating an issue of dumping more water into something that's still still an issue. So I just wanted to kind of comment on your point as well.

Y and I think also, you know, we also did request even upstream because I believe there there is property upstream that also, you know, feeds in there. And again, I believe those areas or that part were done before there were really storm water regulation. So again, you know, there there's impacts from that. So again, um, you know, again, I'm just going to reiterate, we we provided the applicant numerous times or we asked numerous times requests, you know, to do this analysis and they flat out said no. So there was an opportunity Yeah, chairman. Um, the uh the off-site use of this storm detention from upstream from Dukes Parkway um and other areas without that go into the storm basin were never really completely identified. Um, so we really had no real definitive math as to this detention basin which was in various states of disrepair that had been ignored for decades. Um, and was not even functioning properly and has just within the last month been actually weeks I should say since this application ended over three years ago finally been addressed to bring the detention basin back to standards from 1988. And um so I'm happy that that's done for the residents. Um so I I promised I would get that done. It took three years, but the D was very slow in issuing permits. Whatever. We we'll move on. Um but um where the and um and maybe um Mark can explain the um there's three standards that that uh when you look at storm water and how how you justify it on peak runoffs. Um there are three different standards that that need to be met or one of the I guess

three standards need to be met. Um and how the 100 200 and storms affect flooding and peak flow which the the chairman has brought. Um um and the volume it they really never demonstrated other than how they were able to do the correct math or analysis that would not affect the surrounding areas. Um, you like I said, we've we I was there during post Ida with the governor standing at the base of river of uh Dukes Parkway East. Uh, and it was 2 days after the storm was over and the road was still flooded. So to say that this area is not impacted severely by the 100 even even a hard rainstorm now you don't even need the big storms. The 20-year storm we'll call it if you want to call that a minor storm is affected severely by this um this side of town due to a lot of reasons that are out above our control. you know, um the r the Ritton River is higher than it used to be because of the the median uh water level is now 10 ft higher than it was 15 years ago. So, it doesn't take long to flood. Um all the development that's been built upstream dumps into the Ritan River, which also they are downstream from that. So, the regional aspects of of this area is unfortunately affected by um the peak runoff and flow. um which the applicant that was here before the meeting is one of the people are putting into this basin. Now that was part of an affordable housing project that we approved because we had to but that is

also adding into the same 42in pipe this development that uh is being done right now. So, um I I don't think that um it was really brought to in my opinion based on the testimony that they really considered that that release if it affected the area or prevented the air from being adversely affected. So I [clears throat] think the other area and I think Mr. piece and was touching upon this is with regards to um the [clears throat] um I don't know what I just have noted the Hillsboro section about spec [snorts] [clears throat] applications 31. I know at the time there was nothing provided as far as who were the residents and I know his honor allowed uh the applicant's attorneys to I guess submit proposed I don't we want to call it operations or uh [clears throat] or or uses or more importantly I think you know what it won't be But one of the concerns [clears throat] I have with that was submitted by the attorney and there was no testimony to it by the actual owner uh or operator. So not sure how relevant that is and even with what was provided it really doesn't say a lot in there.

If anyone else wants to appine I'll just briefly I'll agree. I mean we we asked numerous times about application use etc and there was none no testimony given um even though you know the application was deemed complete doesn't mean that we have to accept it uh based on the planning board because um that's why we're here. So, um, to come in and then all of a sudden have a windful of information as to what the use might be, um, I don't think is really, uh, helpful in any way because it's still speculative at best. Uh, we don't know who the applicant is, the hours, etc., the type of trucks. I mean, they can say what it is, but it really really wasn't there. But I, you know, in general, I don't I don't think that uh it really matters.

Well, I don't think the the attorneys are in position to speak on behalf, right,

of the of the owner operator. Plus, it doesn't even talk about content. We don't know you know e you know even if this was provided by the u the [clears throat] um the operator the uh owner um it doesn't get into contents of what would be in the building to begin with what type of value added operations may be going on in there so so you know even this statement as presented is still very speculative so I don't In my view, it doesn't [clears throat] meet the requirements of our ordinance.

I would agree because if you don't actually have a prospective tenant, it really is all an unknown at [snorts] this point. And as as we've been saying, it's speculative and that's that's not what we're looking for.

Yeah. I'm I'm not as concerned uh about that. um the correspondence from Mr. Flynn, you know, stated uh the conditions and the [clears throat] maximums. Um yeah, that that I I don't necessarily have a huge concern with though. And I'll also just add um you know the even though they did get a permit from the D um it's as stated it's it's a minimum standard. It doesn't take into effect. That's what the planning board does. The impact of the storm of the area in its its entirety, how it affects the health benefit, health, safety, and welfare wellfare of the entire site. That is our charge. Um so just because they have a permit that says that in this little bubble as the chairman stated that it appears to be a um plan that seems to be uh I'm using legal but wrong compliant is a better word. Um that is only part of the whole application. Um there's plenty more of that because if quite honestly if if that's all it needed we wouldn't need a board here. we wouldn't be the five of us who are left sitting here. It is our our job to take into account uh all the factors of the of the property. Um it's a its effects to the adjoining properties both in sound, light, water, traffic,

noise, noise. Um I sound but noise um so you know it's it's not a bubble based on a permit. So that's why again even the the submission of these D permits is is that's an outside agency is always subject to those depending on the the approval of the plan regardless. It is still subject to those as an accessory but is not pre uh pre precursive to why we can approve it or not.

Yes. I I'll add to that. Um, in Judge Menon's remand, uh, item three says, "Nothing herein shall preclude the defendant planning board from seeking advice of its professional staff, example, engineer, or planner with regard to any area of the record the plaintiff has chosen to supplement. And in item two, that supplement was in the form of a D permit. I'm not convinced that that D permit, you know, took into account what our concerns were originally, you know, in our prior decision. So, I don't know. Does anybody have anything? Is there something I'm missing?

No, I don't I don't think so. Uh, Rob, I mean, it it talks about, you know, the minimum standard. Well, you know, I don't have minim minimum coverage on my home and auto and that sort of stuff. I know it's a kind of a lame comparison, but you know to go by the minimum standards. I think we have a right to require or request a little bit more than minimum in my view. Yeah. I mean, it's not a right. It's an obligation. Yeah. That this board has. Say we have an obligation to the people of this town.

Sure. [snorts] All right. Next,

I'm just given some time as everyone's reviewing [clears throat] any of their notes. this will be our last opportunity to get something on the record as his [clears throat] honor expressed in his order that you know we would be finished with this by the end of the year and I do believe all parties are going back on December 9th.

I I would just point out for the record that the board's remand is not just the remand from the last order. It's the remand from the original order. So if there is anything else relative to that remand that if the board wishes to address in terms of why it came to certain conclusions or didn't come to others you are not just limited per se to supplementing the record. Well, on the original, I mean, I think I kind of started my testimony with that was the, you know, taking into effect. I think the biggest concerns that at least I had coming into the original application was the storm water and how it was being um designed, the storm water um plan um and the testimony as to what the way to mitigate any impact to the potential residents of the area were. um and the engineering that was provided by Mr. Ford and then also the rebuttal testimony from um Dr. Emerson and even uh some of our own questions there. There just seemed to be too many variables there that I did not feel comfortable that it was uh engineered that would prevent a exa exa exacerbation of storm damage downstream. Um I felt that the whitest stone company or the report had too many anomalies in it for me to take it completely serious. even though I do respect their their licenses, I felt it was a little sloppy at best. Um, and

then when uh questioned on it, um, there seemed to be a little push back. Um, and uh, which was their their right as a as an applicant. uh we asked them to do more tests and but that that was p predominantly the stepping stone of how can I take the rest of the engineering seriously if the whole report which designates how the storm water system could be actually done has some questions on it in my opinion I'm [clears throat] just rereading the uh judge's initial remain [clears throat] or decision.

While you're searching, I'll just read into the record here one of the stats for the runoff. The um the applicant's coefficient indicates the runoff volume for the 2-year storm will increase from currently 29,000 cubic feet to approximately 66,000 cubic feet under post development conditions more than doubling at a 2.3%. So that is the just in general the the amount of extra water being put through that pipe uh based on this application which obviously is substantial uh with no um real proof of how it would affect the downstream flooding and if the pipe could actually hold it and put that on the record. I think I'm done now.

And I'm just I'm [clears throat] just reading because I think one of the things that that his honor has concerned is, you know, that [clears throat] we rejected two engineering experts and appear to have aligned with the single opposing view and I'm just reading what his honor had set out in there. Um now you you know one of the things um our expert and I'm sure there you know our engineer at the time and and the planes engineer um [clears throat] you know, there there was he made [clears throat] some uh a quote related to the peak flow rate and again, you know, that that wasn't necessarily where our concern was was more about again the overall volume and the release timing of that storm water and how it would interact with what was going down downstream and and uh the contribution from upstream, you know, and that's I think again where I I I don't know if I would say we had disagreement. I don't think that was ever fully addressed by you know, [clears throat] you know, the other engineers. I don't think we got into that debate necessarily and and I believe our board, you know, did not fully opine on that. So, so I think that's where and hopefully with what we're putting on the record tonight, it's really where the basis for we had is not necessarily the peak flow rate, but [clears throat] again the impact of that overall runoff or the addition of storm [clears throat] water

contributing, you know, to to the downstream issues, you know, where the neighborhood would be impacted. But again in relationship to the Raran River during a major storm event and again what's coming down from upstream. So

and the new development as well. Well, yeah, I I mean that will be a contributing factor, but I don't think at at the time there was any maybe data information available, but you know, it it uh you know, it certainly was there because I think we were hearing that application about the same time, too. But, [snorts] you know, and again, that that that's really, you know, why we we made these requests. And and again, I I think the applicant has to take full responsibility for denying or not dismissing, denying [clears throat] our concerns. And you know, you and depending on what the results will be, we may not even be here, but we won't know because [clears throat] for whatever reason, um they decided not to do it. And and again, I don't think we're unreasonable at that point. You know, we made multiple and and clearly throughout numerous hearings. You know, it was kind of no-brainer where we were heading. I I believe or the majority. I I can't speak for everybody that was on the board,

[snorts] uh whether here or at the time, but I I certainly know I I was not making my, you know, thoughts or concerns hidden as we went through that. So it was not like we put this request at the last minute or at the time they were doing closing arguments. So [snorts] So I I think you know again I think what we did was reasonable. I think it was actually um you know within our [clears throat] legal obligations. Um and again you know the plaintiff for whatever reason did not want to know those answers or provide those to us. So

I would agree. I mean obviously there was probably this was I don't know how many meetings this was was I think it was a good year plus and I think we spent probably 70% of it on storm water right um between the testimony of the of both sides experts and and the fact witnesses and there was plenty opportunity for questions and answers and for reports to be supplemented over time and and tests to be done that were requested. So this wasn't done in a a vacuum of a couple meetings. This this was a very long process of of uh of an application that um the public um the board and the applicants were it was a very um informative dialogue u on all on all parts um the public also to what they could provide. Um, and we were all just seeking um, information and as insurance is probably the best way to put it that this this project would not be detrimental to the to the area. Um, and and so I believe that uh, you know, the testimony and the record was is very thorough and and the ability to do the proofs that were required and in some ways uh, fell short. Any other last thoughts, comments be? [clears throat] So I believe at this I got a point. Yeah, you're all the all the way over there by yourself should have been over on here. Twist my head.

[clears throat] So, at this point, we I should be entertaining a motion to either we're both go kick it back to me. Okay.

The issue is at this point the board, I assume, is done deliberating above and beyond what it has already stated prior on the record. The issue is whether or not the board believes that it has further supplemented the record and either supports the decision of the board previously with the supplementation or whether the board wants to go in a different direction as to this application. So the motion would be to the previous decision or deny the application.

The motion would be to affirm the previous decision of the board in denying the application for the for the items previously placed on the record and supplemented by the record this evening.

Are you offering that motion, Mr. Leani? I made the original one. So yes, I would I would make a motion to affirm the previous decision um based on the previous testimony and the supplemental uh deliberation on today that this application would be denied uh as stated previously and tonight and tonight. I will second that motion. Okay. So just for clarification purposes as a yes

to yes is to affirm the previous decision to deny the application for the reasons stated previously as well as this evening based on the testimony in the record and I would if anyone wishes to comment on the motion they can do so before a vote before we take the vote. Okay. So, we have [clears throat] a motion and a second. We've defined what a yes vote would mean. Any members of the board? Any questions? Final comments?

Yeah, my final comment would be um the uh I guess additional information in the form of the D permit from 2024 was based upon uh the approved plans by Van Clee. Um, and I think that was where we had, you know, the issue with the, um, drainage and and, uh, storm water runoff uh, issues. So, using that information, that's, you know, I think where we had our our uh, we were at loggerheads with that. So, that additional information I don't think was enough to um, overturn, you know, our my original decision. So, I will uh therefore affirm uh yes to

affirm our You're not voting yet. Okay. Well, we know where you're going. I thought we had a motion in a second. Oh, no. I didn't ask for a roll call. Just general comments. Okay. That was my general [clears throat] comment. Thank you. Sorry. Okay. Anyone else? [clears throat] Okay. Yep. Okay. With that, may I have a roll call, please? [snorts] Mr. [clears throat] Wagner? Yes. Miss Smith? Yes. Command Leani. Yes. Vice Chair Pasen. Affirm. Yes. And Chair Saraji. Yes. Okay. The motion carries.

Um I will indicate to the board that we will produce a revised resolution in normal course. This is not necessarily the same time frame that would be established in accordance with the MLUL for providing a resolution. But we will provide it. We will circulate it to the board. We will circulate it to Mr. B. Um, and I would assume at some point in January or February of next year, [clears throat] you will um adopt. We are going before his honor next week. I actually may have to ask for paper dispensation to come in by Zoom because I'll be with Jacobson all morning with a couple of you. Um and therefore um I have to reach out to the court. But it is set forth the next conference for next Tuesday at 11:30 while we are while committeeman and I are going to be spending a glorious morning on affordable housing. So fun.

But I'm sure worst case, Mr. B will spare me, but we'll figure it out. Okay. Well, just a reminder, we do have a meeting next Thursday evening on the 11th, and we do have an applicant. So, with that, I'll entertain a motion of adjournment. So, move second. All in favor? I I We're journal.