The proposal to build an apartment complex within West Orange’s largest unpreserved forest is entering its third day of hearings before the Planning Board tomorrow.
These proceedings have given rise to an important debate about the role a prior legal settlement will play in the final vote and whether it can compel the Planning Board, despite significant concerns about public safety, to approve this application.
For those unfamiliar with this plan, the same Short Hills-based developer West Essex Highlands, Inc. attempted to build 136 one-family homes on this plot of land in 2006. But the Planning Board denied it largely due to safety concerns. Now they are back with a proposal to build a 500-unit complex.
The reason West Essex Highlands, Inc. is allowed another chance is because the courts began managing the state’s affordable housing obligations. This created a mechanism for developers to help alleviate a township’s housing deficit through litigation sometimes called a builder’s remedy lawsuit or a Mount Laurel fairness hearing. The township of West Orange settled its lawsuit with West Essex Highland, Inc. in 2020.
However, Bruce Afran, a lawyer for We Care NJ – a group that has been battling this development for the past two decades – seemed concerned about a remark the board’s chair Robert Bagoff made at the last hearing. It came during an exchange Bagoff had with a resident whose home borders the forest.
Deborah Butensky questioned why 34 acres of deer fencing should be built around sections of the forest and whether the applicant had up-to-date research to support the environmental need for the enclosure.
“The deer fence was part of a settlement agreement,” Bagoff said. “So it is agreed by all the parties that it will be done.”
Afran seized on the words “it will be done,” which seemed to suggest the matter had already been decided in Bagoff’s mind. “There has been constant discussion that the settlement says this, the settlement says that – our position legally is that it is not binding,” Afran said.
Throughout these hearings – and even in the months before – township officials have expressed the position that the development is all-but inevitable. Residents, such as Butensky, who have raised questions about the development in community meetings have often been directed to the settlement for justification. However, Bagoff’s assurance that the project “will be done” so early in the proceedings – before all the witnesses have testified and the public has had a chance to offer criticism – has raised concerns about whether the chairman’s approval is a foregone conclusion.
“Whatever may have been decided in a Mount Laurel fairness hearing does not extend to this application, it does not govern this board,” Afren said. “The Mount Laurel jurisdiction in a court is extremely limited to solely questions of fairness and affordable housing, it does not presume a project will be built.”
At the initial hearing, the developer’s lawyer Brian Plocker argued that the Planning Board’s role in these hearings is slightly different when dealing with a builder’s remedy lawsuit – that the board should “focus on whether the development complies generally with the zoning ordinance,” referring to an ordinance passed in 2020 that set the standards for this proposed apartment complex.
“We understand there are many people in this room tonight who disagree that the zoning ordinance was adopted or that the town settled its affordable housing case on certain terms,” Plocker said. “What we are here to say is that the board just needs to look at the plan and look at the zoning ordinance requirements that do exist.”
Joe Krakoviak, who served as councilman when this lawsuit was making its way through the courts, believes the settlement “puts a gun to a township’s head,” giving the developer an upper hand in the hearings. Though, he still holds out hope that “maybe the Planning Board – or even additional litigation – will eventually direct us in a more appropriate, certainly more environmentally friendly, direction,” he told the Four Oranges.
However, Jennifer Sharret, a We Care board member, believes that the Planning Board has another vital role in these hearings that should override any other consideration. “The Planning Board has to decide if this development is safe,” she said.
The proposed construction site is complicated. The developer plans to build four apartment buildings at the center of wetlands forest – the sewer line alone will be an immense obstacle in We Care’s view. One of the buildings, which will be built into the side of the rockface standing only seven feet from the ridgeline, violates the township’s updated steep slope ordinance, Sharret said.
Yet, the project’s civil engineer Paul Anderson told the board that the current steep slope ordinance “doesn’t apply to this application.” “We haven’t studied steep slopes because it’s not part of this zoning ordinance,” Anderson said.
Meanwhile, the public is still awaiting assessments from a state department that could alter the landscape of these hearings. One is a permit from the state Department of Environmental Protection to build within a certain distance of wetlands. The township’s Environmental Commission recently issued a statement asking the Planning Board to postpone the hearings until this permit has been issued.
This particular plot of land has a long history of township officials thwarting WeCare’s effort to preserve the land as open space. In 2006, after the Planning Board denied the application, the town council, under the direction of the late Planning Director Susan Borg, had the entire forest appraised with the purpose of buying and conserving it. However, township attorney Richard Trenk refused to release the appraisal to the public, forcing the group’s founder Paul Tractenberg to file a lawsuit. After winning that court battle, the group needed only then-Mayor John McKeon – now a state senator – to issue a statement of support. But he refused to do so.
Still, We Care has vowed to use every avenue at their disposal to preserve the forest, including an appeal. “I think we would have success on appeal because it’s a court and it’s solely based on statutes and which ones are being violated,” Sharret said.
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