Summary for Planning Board re:
PB-24-01 West Essex Highlands, Inc.
For the reasons summarized below, the West Orange Planning Board should reject the current application by West Essex Highlands, Inc. for 496 multifamily residential development proposed for a 120 acre forested lot located in the Northwest corner of West Orange Township, bordering neighboring towns of Verona and Essex Fells (the “Proposed Development”). The Proposed development likely includes removal and destruction of more than 6500 trees. Valued at $500 each, that means the developers are avoiding at least $3.2 million in costs they should be incurring. You can see the location of the Proposed Development on Google Maps, here.
Development on the site was originally proposed in the early 2000’s as a neighborhood of single family homes and was rejected, in part because the proposed development depended on one road going in and out of the proposed development, which created a safety risk for residents. After several years, the developer evolved their proposal to resemble the current proposal, with almost 500 units as part of a multi-family development. In 2020, as part of litigation regarding West Orange's affordable housing obligation, the Township and the developer negotiated a settlement that was extremely favorable to the developer. Incredibly, the town (i) waived rights to impose costs on the project, including cost to replace trees to be removed as part of the proposed development, (ii) promised to revise and disregard zoning laws, and (iii) promised to essentially exempt the developer from tree protections that were then in effect. In return, the Township received assurance that the development would include 100 units that would help the Township satisfy its affordable housing obligations, helping the Township delay and eventually avoid future litigation regarding affordable housing in West Orange.
In 2023, the developer filed the project with the NJ Department of Environmental Protection (DEP), but then withdrew the application just before receipt of a ruling from the agency. Now, the developer has refiled its amended project with the DEP and has requested Planning Board approval for the project. The DEP consideration is pending, with no discernable timeline, and the Planning Board consideration is currently scheduled for July 30 and 31 - next week.
The Planning Board should not proceed with consideration of the Proposed Development at this time for the following reasons:
The Proposed Development and the developer sponsoring the project have a pending application before the DEP. The DEP and its experts are reviewing, among other things, whether the Proposed Development creates flooding issues, or adversely impact the watershed and wetlands involved with the project, and whether it complies with applicable state environmental regulation.
The application before the DEP was being considered last fall, but the sponsoring developer rescinded the application one day before it was to be ruled upon, suggesting to me that the DEP may have had an unfavorable view of the application.
The West Orange Planning Board should not consider the application without the benefit of DEP review and reporting. Failure to receive such expert review would mean that the Planning Board essentially is substituting its views of the Proposed Development in lieu of expert opinion pending from the NJ DEP.
For this reason alone, the Planning Board should defer consideration of the application at least until it includes a final disposition of the sponsoring developer’s NJ DEP application.
After deferring its consideration, because of how bad the 2020 settlement agreement is, the Planning Board should obtain independent legal opinions on at least the following issues:
Whether the April 2020 settlement agreement (or any portion thereof) that is included in the current application was improperly or illegally made. That agreement can be found here - it’s a doozy. Focus on paragraphs 2.5.3 (no fees allowed to be imposed by the Township), 2.5.4 (tree replacement fees are the kinds of things that are not allowed), and 2.5.5 (zoning laws don’t apply, either). Specifically, the Planning Board should seek legal opinion whether the parties to that agreement could:
Definitively determine that the Proposed Development is an “inclusionary development.”
Exclude all “cost-generative requirements” being imposed as a result of it being an inclusionary development.
Conclude that costs related to the removal of trees could be considered “cost-generative requirements” and must be eliminated despite then-existing regulations in the Township Code.
Agree to waive restrictions and amend Township Zoning requirements.
Agree to waive all steep slope building restrictions despite dangers that flooding and water runoff that will incur because of removal of trees near or on steep slopes.
The Planning Board should also seek to update understanding of changing and future risks associated with the removal of whole forests and increased extreme weather events and associated flooding and water runoff patterns.
The Planning Board should not consider the Proposed Development without seeking independent legal opinion regarding the April 2020 Settlement Agreement.
Such independent legal opinion should not originate from any party to the agreement, but should be fully independent to ensure that the Township could exempt the developer of the Proposed Development from regulatory requirements in the way that it did.
The document is internally inconsistent in that despite the citation to the Township’s February 3, 2020 Tree Study, which described the forest located in the Proposed Development as “weak,” the Settlement Agreement agrees to offset and credit the developer’s proposed destruction of portions of the forest provided the developer includes a fence around the remaining weak forest. There is no explanation how such measure serves to replace the destroyed forest as required by the Township’s tree protection ordinance. The Planning Board should understand how such measures will be sufficient to replace the environmental impact caused by removal of approximately 6,500 trees from the site.
The Planning Board must understand how the Proposed Development will impact watershed that flows into West Orange as well as neighboring communities.
Such understanding should come from analysis conducted by a disinterested third party specializing in environmental issues.
It may be that these issues are being considered by the DEP, in which case, the Planning Board should wait for DEP reporting and then seek to independently fill in gaps left by DEP expert analysis.
The Planning Board should consult with other impacted towns to understand how their decision will impact our neighbors.
The Planning Board must understand how such a large development will specifically impact the budget moving forward and how the Township will provide additional fire, police, and other emergency services, as well as how the Proposed Development will impact school budgets and our school-age population.
Is West Orange currently in a deficit position on emergency service staffing? What is the plan to replace/hire additional emergency service resources required to support such development?
Failure to answer and address these issues will cause our town to struggle further. We need principled leadership that will help safeguard the resources that we have left in West Orange.
For all of these reasons, the Planning Board should reject the developer’s Proposed Development, or should at least refuse to consider the Proposed Development until the application is complete and the Planning Board is able to consider materials described above.
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