The Two-Decade Battle to Save a Wetlands in West Orange from Development

10 Bayowski Road in the Highlands. Credit: Zillow.

In March, residents along Howell Drive got a letter in the mail that caused them to fear that the forest visible from their front door could be in danger of development. The letter was from an environmental consulting firm hired by West Essex Highlands, Inc., a developer who has been trying for the better part of two decades to build homes on wetlands.

“I assumed the project had died,” said Jennifer Sharret. “My first thought was, we have to corral people, so I started knocking on doors.”

The fight to save the 120-acre forest goes back to 1987, when West Essex Highlands, Inc. bought a 185-acre plot of forested land near the West Orange-Essex Fells border and began building a cluster of townhomes along the slopes of the Second Watchung Mountain. 

But their work ended abruptly when the state legislature passed a moratorium on wetlands development. This landmark bill was the work of environmental scientists who convinced lawmakers that it is far cheaper to save wetlands, which filter out pollution and mitigate floods, than to live with the consequence of destroying them. 

In the late 1990s, Paul Tractenberg moved with his wife into a condominium in the Highlands and had no idea that he would get embroiled in a quarter-century battle. The only hint that development might be coming someday was the curious way the main entryway into the complex, Warner Road, comes to a screeching halt at the foot of the remaining forest.

“The seller never mentioned anything about development,” Tractenberg said. “Within a short time of moving in, I was literally told shovels will be in the ground in the spring.”

Tractenberg, a law professor, joined forces with neighbors and created a group called WeCare, which had two missions — fend off development and to fundraise to try to purchase the forest. They nearly succeeded on both fronts. In 2005, the Planning Board held 11 hearings over the course of a year, ending with a denial of the application.

“To everyone’s amazement, we actually won,” Tractenberg said.

The next goal was to protect the forest from future development. In 2006, with the help of the township’s planning director, Susan Borg, the town council voted to have the land appraised with the eventual aim of buying the forest with Green Acres funds. But the legal department, helmed by Richard Trenk, who is still the township’s lead attorney, refused to show the appraisal to the public, even after Tractenberg filed an OPRA request. 

Tractenberg filed a lawsuit and won in appeals. But the mayor at the time, John McKeon, refused to issue a statement of support behind conserving the forest, which was required to preserve the land as open space, Tractenberg said. The opportunity to conserve a 120-acre forest was squandered. What’s more, the developer also sued the planning board and won, turning WeCare’s victory on its head.

What has complicated the battle to save the forest is that the land has become entangled in the township’s affordable housing obligation. In 2020, Shirley Bishop, the former executive director of the Council on Affordable Housing, revealed to the town council that West Orange has a court order to build 954 affordable units by 2025.

A committee, comprising former council members Susan McCartney — now the mayor — and Joe Krakoviak, came up with a plan that identified 421 units. Many of those units, like the Harvard Printing Apartments, have been built while others are in the development stage, including 87 units at Executive Drive.

This still leaves a remainder of 533 units, according to Bishop. In many ways the construction craze of late is an act of desperation to meet the affordable housing obligation. The township doesn’t have much developable land so there is pressure to build in places like Rock Spring and the forest near the Highlands.

In New Jersey, affordable housing is managed by the courts. Developers can sue the township in an effort to help the township meets its housing obligation, which happened in the case of the West Essex Highlands, Inc. “Once developers acquire land, they can use the court affordable housing mandate to force municipalities to allow building — or face even more ruinous penalties that include higher densities,” Krakoviak told the Four Oranges. “Municipalities and their residents have very little say. The process is stacked against us.”

In a community meeting in 2018, Krakoviak said that because affordable housing is a “constitutional issue” the courts stripped some of the power that planning boards have to strike down unwanted projects within their municipal borders.

“The judge basically says, under our Constitution, the Planning Board cannot apply onerous restrictions on the application,” Krakoviak said.

When you speak to homeowners who live along the borders of the forest, their concerns are the same as the environmentalists who fought to protect the wetlands — they fear flooding and poor water quality, especially in Essex Fells where their drinking water comes from the Canoe Brook that passes through the forest. Since the collapse of a rock wall on Northfield Avenue, Rachel Klein also worries about the cliffs inside the forest.

“There’s no way you can put a house up there and tell me it’s not going to affect me and my neighbors,” Klein said. “This land sits at the top of West Orange. So, all the people below will be affected directly or indirectly. How can the town be ok with that, especially when there was a rock slide on Northfield?”

In the last few years a number of site plans have been revealed, each with fewer and fewer units and less disturbance of the forest. In 2020, Wayne DeFeo, the township’s environmental compliance officer, revealed a site plan that promised to preserve 75 percent of forest, and tried to persuade the town council that developing the forest would actually be good for the forest. 

His argument, which seems counterintuitive on its face, was that the forest is currently unhealthy because of years of unchecked deer grazing and because of the illicit use of the park as a dirt bike course and as a “party site” for teenagers.

“Look at the openness — this is because the woodland you see there is being eaten by deer and trampled,” DeFeo said. “That open forest that you see, which slopes down the condominium development, means that water will run down the hill and not be heavily absorbed because there isn’t any young growth to absorb it.”

Defeo argued that the forest isn’t regenerating and needs deer fencing to restore it. The developer would finance the fence of a 30-acre area and “maintain it in perpetuity.” Even in that plan more than 6,300 trees would be cut down.

“That’s a lot of trees – there’s no argument about that,” DeFeo said.

McCartney appeared at the last town council meeting to allay fears about the letters received by residents. “Once the West Essex Highlands Garden application does come before the Planning Board, it will still follow the planning process,” McCartney said. “So I wanted everyone to know that there is still time for everyone to weigh in. It is not before us. It is still at the DEP.”

One glimmer of hope that Sharret, a lawyer, is holding onto is that the DEP, following the lead of the Environmental Protection Agency, is considering making the laws regarding wetlands even stricter.

“We’re basically saying slow down and if the rules are about to change, then look at the development under the new rules,” Sharret said.

A site plan of the proposed development. Credit: Anderson Consulting Services.


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