Transcript 8.3.10 Kinsey CDA Planner

7/31/2019 Transcript 8.3.10 Kinsey CDA Planner

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AUTOMATED TRANSCRIPTION SERVICES 856-784-4276

2

I N D E X

August 3, 2010

WITNESS Direct Cross Redirect Recross

DAVID NORTH KINSEY

By Mr. Eisdorfer 3

EXHIBITS Ident. Evid.P-10C Wetlands document 50

P-25 43

P-30 37

P-31 Mr. Kinseys CV 5 6

P-32 Mr. Kinseys certification 9,10,11

P-33 Mr. Kinseys certification 9,10,11,14

P-34 Mr. Kinseys certificate 9,10,11

P-39A Map 53

P-58 July 20, 2010 letter from 9,10,11

Mr. Kinsey

P-63A 15,17,27

P-64 23

P-64A 15,17


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D A V I D N O R T H K I N S E Y, PLAINTIFFS1

WITNESS, SWORN:2

THE CLERK: Please state your name for the3

record.4

THE WITNESS: David North Kinsey.5

THE CLERK: Thank you.6

DIRECT EXAMINATION BY MR. EISDORFER:7

Q Mr. Kinsey, would you state your full name?8

A David North Kinsey, K-I-N-S-E-Y.9

Q And you have a professional office.10

A Yes.11

Q Where is that located?12

A 14 Aiken Avenue, Princeton, New Jersey 08540.13

Q What is your profession?14

A I'm a Planner.15

Q Do you hold any licenses?16

A Yes. I'm a prof, licensed professional planner17

in New Jersey.18

Q Would you provide us with, with your19

educational background?20

A Yes. I have a Bachelors of Arts Degree in21

Government and Architecture from Dartmouth College, a22

Master of Public Affairs and Urban Planning from23

Princeton University and a Ph.D. in Public and24

International Affairs from Princeton University.25


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Q Could you briefly out, outline for us your1

professional employment history?2

A After finishing on my doctorate, Your Honor, I3

began working in the New Jersey Department of4

Environmental Protection in 1975. I was the chief of5

the Office of Coastal Zone Management for several years6

from 1975 to 79. And then I was the director of the7

Division of Coastal Resources from 79 to 1982.8

Following that, I spent a year as the9

director of the Planning Group in DEP and then a six10

month assignment to the National Oceanic and11

Atmospheric Administration in Washington, D.C. where I12

served as a Coastal Resource Specialist. And then13

essentially since 1984 to the present I've been a14

partner in the small firm of Kinsey & Hand as a15

Consulting Planner.16

Since 1998, I served as a, or I have been17

appointed a visiting lecturer of Public and18

International Affairs at Princeton University. And19

since 2008, I've been a principal of Realty20

Innovations, LLC which is a New Jersey Focused Real21

Estate Investment Company.22

Q In your work at, at the Department of23

Environmental Protection, did, were mo, were24

evaluation of housing projects a part of your25


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responsibilities?1

A Yes, very much so. I was responsible for2

designing and implementing New Jerseys Coastal3

Management Program. It rests on three main laws.4

First, the Coastal Area Facility Review Act which5

applies to any residential development of 25 units or6

more in a land area equal to about 20 percent of the7

states land area.8

The second law is the Coastal Wetlands Act of9

1970 which regulates practically all development in10

delineated coastal wetlands. And third the 191411

Waterfront Development Law which outside of the CAFRA12

area, for example, along the Hudson River Waterfront13

regulates all development within at least 100 feet of14

the uplands from the main high water line and it can15

extend as far as 500 feet as far as --16

THE COURT: Do I have a CV in this package?17

MR. EISDORFER: Yes.18

THE COURT: That might help me.19

MR. EISDORFER: Sure. Its marked as P-31.20

THE COURT: Thank you.21

BY MR. EISDORFER:22

Q Dr. Kinsey, let me show you the document23

we've marked as P-31 and can you identify this for us?24

A Yes. P-31 is a one page biographical summary25


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followed by a six page CV followed by a one page1

summary listing of my various affordable housing2

planning assignments since 1985.3

Q Is, is this a document that you prepared?4

A It is.5

MR. EISDORFER: Your Honor, I would offer up6

P-31 into evidence.7

THE COURT: I assume there's no objection.8

DEFENDANTS COUNSEL: No objection, Your9

Honor.10

BY MR. EISDORFER:11

Q Dr. Kinsey, you were --12


BY MR. EISDORFER:14

Q You were describing the, the way in which15

your work with, at, at New Jersey Department16

Environmental Protection encompassed review of, of17

housing projects?18

A Yes. I administered these three laws under a19

delegation from the commissioner so that I was the, the20

ultimate decision maker and made permanent decisions on21

development applications subject to those three laws22

and that included numerous residential development23

proposals throughout the coastal zone.24

Q Now in particular did that include projects25


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that were inclusionary projects?1

A It did include, it did include inclusionary2

projects using the definition of 100 percent affordable3

projects. And it did include projects that ultimately4

did propose low and moderate income housing, yes, under5

Mount Laurel One.6

Q Now after you went into -- in, in, in7

connection with your work at DEP, did that involve8

your, did that involve your reviewing sites for9

compliance with the various environmental standards?10

A It involved that completely. Of course, I had a11

staff who prepared draft decision documents that I12

often conducted pre-applications conferences myself13

together with the staff and reviewed projects and14

application proposals throughout the course of a15

project particularly for the more significant ones.16

And ultimately when it came to the a, I often wrote,17

rewrote decisions documents and ultimately I made the18

decision as in the three year period when I served as19

director of the division.20

Q Now since entering private practice, have you21

served as a court appointed master in Mount Laurel22

cases?23

A Yes. Your Honor, I've had I believe its 12 or 1324

appointments as a special master in Mount Laurel25


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litigation since 1985. I served under Judge Pisansky1

and Springfield Township and Berkeley Heights in this2

county and I've had other assignments throughout the3

state, one that has continued for in 22 years.4

Q And in, in that capacity did you review5

proposed inclusionary sites?6

A Yes.7

Q Did you review sites that, that that were8

proposed for builders remedies?9

A Yes.10

Q In how many of tho, how many of those11

instances the, were you reviewing sites proposed for12

builders remedies?13

A In all but one of the cases where I served as14

special master, the plaintiff was a builder plaintiff15

so in all but one case. And some of the cases had16

multiple plaintiffs and interveners and hence multiple17

sites.18

Q Beyond your service as, as, as special19

master, what kind of clients do you have?20

A I have several types of clients, Your Honor. I,21

the bulk of my work is on affordable housing planning.22

I advise public interest plaintiffs. I advise private23

sector builder plaintiffs. I advise objectors and24

citizen groups and I advise municipalities. I've25


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assisted municipalities in obtaining COAH certification1

of housing elements and fair share plans. I've advised2

participants in both the COAH process, to petitions for3

subsequent certification as well as court proceedings4

under the Mount Laurel doctrine.5

Q Do you have any professional affiliations?6

A Yes. I have been a certified planner, a member of7

the American Institute of Certified Planner for at8

least 25 years and in 2006, I was honored to be elected9

a Fellow of the College of Fellows of the American10

Institute of Certified Planners.11

Q How many Fellows are there in New Jersey?12

A There are I believe four currently active planners13

who are Fellows.14

MR. EISDORFER: Your Honor, I offer this15

witness as, as an expert witness in planning and16

affordable housing.17

MR. WOODARD: No objection.18

THE COURT: So he will be admitted as an19

expert in this court.20

BY MR. EISDORFER:21

Q Now Dr. Kinsey, have you prepared any, any22

reports in, in this case?23

A Yes, I prepared three certifications and one24

letter report.25


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(Pause)1

THE COURT: 32, 3, 33 and 34?2

MR. EISDORFER: And 58.3

THE COURT: Okay.4

(Off the record; on the record)5

BY MR. EISDORFER:6

Q Dr. Kinsey, I'm gonna show you the documents7

that we marked for identification as P-32, P-33, P-348

and P-58. Now have you had a chance to examine those9

documents?10

A Yes.11

Q And can you tell us what they are?12

A They are in sequence my initial certification on13

the issue of whether the Township of Cranford was in14

compliance with its constitutional housing obligations15

under the Mount Laurel Doctrine. The second16

certification is on --17

MR. WOODWARD: May we know the date of that,18

Your Honor, just so we can follow along?19

THE WITNESS: The footer is dated January,20

2009 and the signature is January 29, 2009.21

MR. WOODWARD: Thank you.22

THE WITNESS: Thats P-32. P-33 is my23

certification on site suitability. It is dated July24

31, 2009.25


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THE COURT: July certification, 30, P-34?1

THE WITNESS: P-33, I'm sorry.2

THE COURT: Oh. Okay, 33 is -- I'm sorry.3

What was that?4

THE WITNESS: P-33 is my certification.5

THE COURT: On site suitability.6

THE WITNESS: On site suitability. The7

footer date is July, 2009. The signature date is July8

31, 2009.9


THE WITNESS: P-34 is my certification on11

rebuttal on aspects of site suitability. The footer12

date is October, 2009 and the signature date is October13

26, 2009.14

F-58 (sic) is a letter report dated July 20,15

2010.16

DEFENDANT'S ATTORNEY: P.17

THE WITNESS: I'm sorry, P-58.18

MR. WOODWARD: I have something dated July19

19, 2010. I dont have anything dated July 20th. May20

I see it, counsel?21

(The attorneys talk amongst themselves.)22

BY MR. EISDORFER:23

Q Now do these, youve now looked at, at P-,24

P-32, P-33, P-34 and P-58. Do these accurately25


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represent your opinions?1

A Yes.2

MR. EISDORFER: Your Honor, I would,3

consistent with The Court, the way The Court has been4

handling these, I would move these into evidence as, as5

the witness reports.6

MR. WOODWARD: I, I know were pretty7

flexible in this particular area here, Your Honor, but8

just to say well, this is my report and it expresses my9

opinion and therefore its admissible in evidence, I10

dont think that's enough foundation. Thank you.11

Objection.12

THE COURT: Are you -- yeah.13

MR. EISDORFER: I'm gonna --14

THE COURT: Are you gonna testify about that?15

MR. EISDORFER: I'm gonna have him testify to16

everything.17

THE COURT: So why dont we do that first?18

MR. EISDORFER: Okay, okay.19

THE COURT: And then maybe Mr. Woodward will20

not have an objection at that time.21

MR. EISDORFER: Your Honor, I'm, I'm happy to22

handle this anyway The Court want, wants to handle it.23

THE COURT: Why dont we do it that way then24

maybe Mr. Woodward will not object.25


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(Tape 184-10 ends; tape 185-10 begins.)1

BY MR. EISDORFER:2

Q Mr. Kinsey, Dr. Kinsey in, in your work3

evaluating affordable housing projects, do you have an4

opinion as to what the appropriate criteria for5

evaluating the site suitability and affordable housing6

project is?7

A Yes.8

Q And, and how have you, how have you come to,9

to formulate such an opinion?10

A By first reading Mount Laurel Two in January,11

1983, second, serving as a Special Master in Montgomery12

Township and simultaneously or shortly thereafter13

beginning serving as a Master in Denville Township in14

the summer, I guess beginning in January, 1985 when as,15

in my first two assignments as Master a key issue is16

site suitability. And a number of Masters were working17

to develop appropriate site suitability criteria18

derived from a starting point of the standards the19

Supreme Court spelled out in Mount Laurel Two. Then as20

the Fair Housing Act was enacted in the summer of 8521

and then the counsel on affordable housing began its22

work, it eventually adopted a standard that cites for23

first the term was inclusionary development and then in24

more recent rules it said inclusionary development and25


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affordable housing developments must be approvable,1

developable, suitable and available and COAH rules2

defined each of those four terms. And what I had begun3

doing in 1985 and continued to refine to the present4

day is a check list of various site suitability5

criteria based on the COAH standards of approvable,6

developable, suitable and available plus an additional7

standard COAH adopted which is that such projects and8

sites should be consistent with the New Jersey State9

Development and Redevelopment Plan.10

Q And, and have you written those, tho, those11

criteria down?12

A Yes.13

Q And are, are they, are they shown in, in P-3314

in your site suitability report?15

A Yes, they are in exhibit, Exhibit F to my July,16

2009 certification.17

MR. EISDORFER: Your Honor, for everybodys18

convenience we, we have blown up Exhibit F so we can19

all follow along.20

BY MR. EISDORFER:21

Q Dr. Kinsey, I just put up a board. Is that22

identical to, to Exhibit F?23

A It is.24

Q Now in developing criteria, what's the25


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relationship between the criteria that youve developed1

and what we, what, what criteria might be used by a2

planning board?3

A They are very different. A planning board is4

evaluating fundamentally whether they, an application5

complies with the appropriate municipal land use6

ordinances, whether it complies with the zoning7

ordinance, site plan ordinance and typically a sub-8

division ordinance all as applicable to a particular9

development proposal. These are criteria that10

articulate, in my opinion in some specificity, a11

standard the Supreme Court established in 1983 for the12

review of projects proposed by builder plaintiffs and a13

municipality challenged such a site and project.14

Q Now in, are these the criteria that you have15

used in evaluating the concept plan that we've marked16

as P-63A?17

A Yes.18

Q What, what information are, are you relying19

on?20

A I have first relied upon the concept plan itself21

but the site plan has lost the sections. I've also22

reviewed I guess many of the documents that I've heard23

introduced in, in, into evidence by the, by the24

plaintiffs and through the plaintiffs engineer. For25


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example, I reviewed his site investigation report. I1

reviewed his sewer report. I reviewed his flood hazard2

area studies and, and maps. I also reviewed3

municipally prepared information, various housing4

elements and fair share plans, areas I guess master5

plans. I revisit draft of the land use element, other6

such documents prepared by the Township of Cranford or,7

and its planning consultants.8

Q In, in, in expressing your opinion today, is9

your opinion also informed by the testimony youve10

heard over the past two days?11

A Yes.12

Q Now what do you understand, based on your13

review, to be the proposed, the use of this site?14

A The proposal is to develop an inclusionary15

development, one that includes market rate housing and16

housing affordable to low and moderate income17

households and indeed housing restricted to low and18

moderate income houses for a total of I believe its19

419 units together with associated at-grade surface20

parking plus two parking structures, one as a podium21

for Building A, a second as a freestanding parking deck22

structure plus whatever else is necessary for the23

improvement of the site in terms of on-site utilities,24

drainage facilities, re-grading flood storage, all that25


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turns out to be kind of necessary and appropriate as1

the design process continues and engineer drawing are2

prepared.3

Q Now did the, is, is the use for which you,4

you evaluated the site, is that the same use that's5

shown in P-63A and P-64A?6

A Yes.7

Q And have you reviewed prior iterations of8

these plans as well?9

A Yes.10

Q Now Dr. Kinsey what I'm gonna do is I'm gonna11

essentially what I'm gonna do is, is take you down to12

your criteria and ask you to, to explain what, what13

your analysis of this site is under each, each of these14

criteria.15

The first criteria is control of the site.16

Is that correct?17

A Yes.18

Q And, and --19

THE COURT: You're talking about Exhibit F20

now?21

MR. EISDORFER: I'm looking at Exhibit F.22

Were gonna, were gonna walk our way down Exhibit F.23

THE COURT: Okay.24

MR. EISDORFER: I'm gonna ask him the next25


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question.1

BY MR. EISDORFER:2

Q Dr. Kinsey, can you explain to us what you,3

what, what, what first criteria means?4

A The first criteria is more than simple control of5

a site. Its cl, a site has clear title and is free6

of any encumbrances that would preclude the development7

of affordable housing so that its free of any deed8

restrictions or some other factor that might preclude9

such housing. And to satisfy myself that this criteria10

is met, I consulted with my client hence, particularly11

its general counsel who was aware of title searches12

and deeds and of that type of research having done the13

transaction and I was advised that a site, that type --14

COUNSEL: Objection, hearsay.15

THE COURT: Okay, yeah.16

MR. EISDORFER: Your Honor, is -- I'm sorry.17

BY MR. EISDORFER:18

Q Dr. Kinsey, is this the type of, of19

information that planners typically use in, in, in20

making these type of evaluations?21

A Yes.22

Q So what was the, what was the, what was the23

source of, of your information?24

A The general counsel of the S. Keenan (phonetic)25


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Group.1

Q So do you have an opinion as to, based on2

that information, as to whether the, the site satisfies3

that criteria?4

A Yes. I believe it does satisfy that criteria.5

Q What's the second criteria?6

A The second criteria, Your Honor, is whether the7

site is adjacent to compatible land uses.8

Q Now in, in your report you have the, you have9

Exhibit B. Can you tell us what Exhibit B is?10

A Exhibit B is an aerial image of this site which I11

took from Google Earth. It shows the site and the12

surrounding area extends to the Garden State Parkway13

and the southeast.14

Q Now can, can you walk us around Exhibit B and15

explain what, what the adjacent uses are?16

A Yes. Immediately across Birchwood Avenue to the17

north is the parking lot and then the office building18

occupied by Ver, by Verizon.19

Q Hold on just a moment.20

MR. EISDORFER: Judge, do, do you have this?21

THE COURT: What, yeah, where is Exhibit B?22

I'm looking at Exhibit E which are the criteria -- oh,23

okay.24

MR. EISDORFER: P, P, P-33, Exhibit B, the25


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next page.1

THE COURT: Okay.2

MR. EISDORFER: The next page.3

THE COURT: Thank you. Thank you.4

THE WITNESS: The site is outlined in white5

with a black dotted line and the north is to the top of6

the page.7

BY MR. EISDORFER:8

Q Okay. So would you first, first of all,9

point out the, the existing uses on, on, on the site?10

A The existing uses are the two office buildings;11

one to the, on the eastern side with a large parking12

lot that's visible and then a smaller one more to the13

north of west corner.14

Q Now if you, if you while using this as an15

aid, can you walk us around and describe the, the, the16

adjacent uses?17

A Yes. Your Honor, to the north is the parking lot18

and Verizon office building. To the west or left is a19

small office building. I believe a contractor occupies20

that small building. To the, further to the west and21

southwest, one sees the, a row of single family22

detached houses along Wadsworth Terrace. To the23

southeast or right of the site is the Cranford Extended24

Care Facility which I believe is a subacute care25


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extended care and assisted living facility. And then1

finally to the northeast across Birchwood Avenue is the2

townships composting recycling facility.3

Q Now in, in, in evaluating, in evaluating the4

compatibility, what did you look at?5

A Well, first I defined the term compatibility and I6

find that to be very important. COAH rules do not7

define the term compatible uses but the Department of8

Environmental Protection does have a rule that defines9

compatible, compatibility of uses which is defined as10

the ability for uses to exist together without11

aesthetic or functional conflicts. So then my inquiry12

is to examine whether there are any aesthetic or13

functional conflicts between this proposed residential14

use and the existing diverse collection of land uses15

that surround the site.16

Q You know, so, so what, what, what potential17

conflicts did, did you identify?18

A Well, first lets take the, the, the functional19

conflicts. I first considered well, how will this20

residential complex function? Residents will come to21

this complex by automobile, shuttle bus if provided by22

the developer as proposed, some by bicycle and probably23

some as pedestrians. Theyll be using Birchwood24

Avenue. Theyll be using its sidewalk. There are25


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likely to be some trucks making deliveries and pick1

ups. They will use the driveways to Birchwood Avenue.2

And then I examined and considered that these movements3

of people and vehicles are not likely to conflict with4

the existing mix of uses, the nursing home, office5

building, composting facility that also use the same6

Birchwood Avenue and sidewalk.7

In addition to these movements, therell be8

sounds but the sounds from the proposed new residential9

complex are not likely to be intense or, or adverse in10

my opinion and will not adversely affect the adjacent11

land uses. Sometimes often planners consider other12

possible impacts of, of a development upon areas off13

site that might be traffic, wastewater and, and14

flooding that might affect adversely adjacent uses and15

those are considered under other criteria on Exhibit F.16

And I ultimately concluded in terms of functioning that17

this residential complex, Your Honor, will not18

adversely affect the functioning of the adjacent uses19

and, and vice versa. And they will be able to continue20

to function in an unimpaired manner by the replacement21

of the existing office uses with a residential land use22

at this site. And then my next inquiry is the23

aesthetic question.24

What is proposed here are four and five story25


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residential buildings and in my opinion, they will not1

create any aesthetic conflict with the adjacent,2

existing adjacent land uses. And I base that opinion3

on an analysis of the section drawing which is one of4

the exhibits. I'm not sure what exhibit number that5

is.6

Q P-64A.7

A P-64A. That helps me to understand first the8

height of the trees that are along the eastern edge of9

the property and I can compare those trees to the10

heights of the proposed buildings and I'm aware, having11

walked along the site and taking photographs along that12

eastern edge, of the height and scale and mass of the13

Extended Care Facility to the east and it is lower,14

most of its one story, a portion of its two story, but15

it is essentially well screened by the tall, mature16

trees. Yes, they are deciduous but they are certainly17

green and leafy for much of the year and indeed there18

are trees that are of different heights along that,19

that edge. And so that provides a helpful buffer along20

that eastern edge.21

And then much of the property itself to the22

south is wooded and that provides a area of perhaps23

about 150 feet of buffer between what will be the24

developed portions of the site and the existing houses25


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on Wadsworth Terrace so there is another important1

buffer; its woods and wetlands that provide the buffer.2

Q Do you know how wide that buffer is?3

A Its about, maybe its about 150 to 200 feet, 2504

feet in depth so it, its significant.5

There's also the, the small office building6

to the west across the, the small creek and it too will7

be located probably, maybe its 200 feet from the8

proposed Building A, its probably more than 200 feet9

from the proposed Building A so again there too10

there's, there's a buffer. And in terms of the Verizon11

building across the street I see no conflict, no12

aesthetic conflict there. Its, its far across the13

street and similarly where the townships property14

which has woods directly across the site and then the15

entrance to the composting recycling facility, I see no16

aesthetic conflict of, from that vantage point either.17

So in my opinion, I, I include, I conclude that there's18

no aesthetic conflict between the low rise and the19

nursing home and the proposed adjacent mid-rise20

apartment building or from any of the other adjacent21

existing land uses.22

Q Now you indicated in your testimony that you,23

that you took some photographs as part of your24

evaluation.25


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A Yes. They're included in as Exhibits H and I of1

my certification of July, 2009. And then Exhibit J,2

Your Honor, is a copy of the site survey of the3

existing conditions of the site on which I've drawn in4

green the view shed that what, in other words, what one5

sees when one stands at the apex of that V shape as one6

looks at the sites. So Exhibit H is the view from7

standing at the entrance to the existing driveway8

looking essentially to the southeast. One sees the9

mature vegetation on the left and a full run of that10

vegetation down to the woods to the, what is called the11

back of the site.12

And then Exhibit I is taken from standing in13

the southeastern corner of the existing parking lot and14

looking back towards the office building and the15

driveway where the first photograph was taken. Here16

too one can see the mature vegetation that this, the17

engineer surveyed as rising to up to 79 feet. As you18

can see, the vegetation is still in. Its not just a19

tall canopy. There are deciduous trees of different20

heights and dimensions providing a leafy border much of21

the full run of, of this eastern edge of the property.22

Q Now are the Exhibits H and I, are those23

photographs that you took?24

A Yes. They taken as indicated on the exhibits on25


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July 15, 2009.1

Q And do these photographs accurately represent2

what you saw at, at, at that time?3

A Yes.4

Q And does, does, does Exhibit J actually por,5

accurately portray where you stood when, on the site6

where, when you took those photographs?7

A Yes.8

Q And, and the Vs that open out, that shows the9

direction in which you faced?10

A It shows the direction and my best approximation,11

Your Honor, of the extent of what one can see in the12

photograph.13

Q Now what was your third criteria?14

A The third criterion is access to appropriate15

streets.16

Q And what, what, what is, what, what do you17

mean by that?18

A This is the language verbatim I believe from the19

COAH rule and I interpret this to mean that the site20

physically adjoins an appropriate street or there can21

be an easement through whatever property necessary of22

the appropriate width to provide direct physical access23

to appropriate streets.24

In this case, the site has about 825 feet of25


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frontage on Birchwood Avenue which is a fairly wide1

street. I believe its 36 feet wide and that's wide2

enough, Your Honor, for two lanes of travel plus two,3

plus parking on both sides. This site is located about4

halfway between two intersections with Birchwood5

Avenue. One is Orange Avenue which is something6

planners or traffic engineers would classify as a minor7

arterial and that's to the northwest. And then there's8

Cranford Avenue to the local street which is to the9

southeast.10

Q Now can you, can you show us on, on P-30, P-,11

P-63A, can you step down and point out to us where the12

ingress/digress on to Birchwood Avenue is?13

A Your Honor, the concept plan proposes14

ingress/digress in two locations. One, between15

Buildings A and B at the center of the sites, 325 foot16

frontage and the second is along, very close to the17

eastern edge of the property, close to the Extended18

Care Facility site.19

Q Thank you. Now in, in connection with your,20

in, in connection with making your evaluation, did you21

do a traffic study?22

A I did not do a detailed traffic study. I did23

visit the site and considered the traffic that, that I24

observed.25


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Q Why not do a traffic study at this point?1

A I'm, first I'm not a traffic engineer and2

secondly, Your Honor, this is something that is3

typically done in my experience before a planning board4

where there's a site plan application and a developer5

will often do a, a traffic impact study particularly if6

there's an intersection nearby as is the case here with7

the Orange Avenue intersection. And the traffic study8

will analyze how well that intersection functions in9

terms of traffic standards and if its found to be10

needing improvements, those improvements are typically11

then proposed and then under the Municipal Land Use12

Law, the developer is required as a condition of13

approval to make its pro rata share to, to pay for its14

pro rata share of the cost of improvements as necessary15

to that intersection.16

Q Typically are, are, are, do planning boards17

turn down projects because of, because of off-site18

traffic?19

MR. WOODWARD: Objection, leading.20

BY MR. EISDORFER:21

Q To what extent can or do pl, planning boards22

turn, turn down projects because of off-site traffic23

condition?24

A I'm not aware of many cases where a planning board25


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has rejected an application solely because of off-site1

traffic considerations.2

Q So do you have an opinion as to whether this,3

this project has, has adequate road access?4

A Yes. Your Honor, I, I conclude that this site5

complies with the COAH criterion on access to6

appropriate streets.7

Q What was your, what, what is your fourth8

criteria?9

A The fourth criterion is access, is adequate sewer10

capacity. That is to say that there's adequate waste11

water, conveyance and treatment capacity available to12

the site to connect to whatever the appropriate system13

is. And in this case there is a township owned14

conveyance system and a regional treatment system and15

here I've heard and rely upon the, Mr. Dipple, the, the16

plaintiffs engineers analysis, modeling and17

determinations that the existing sewers will function18

properly with the anticipated peak, waste water flow19

and that furthermore that treatment capacity is more20

than available at the Rahway Valley Surge Authority21

Treatment Facility. So therefore its, I conclude that22

this project, this site complies with the COAH23

criterion on sewer capacity.24

Q What is your, what is your fifth criteria?25


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A The fifth criterion, Your Honor, is adequate water1

capacity again to assure that there's adequate protable2

water available to the site from appropriate sources.3

And here too I've had the benefit of the engineers4

research and analysis. There is a utility, New Jersey5

American Water Company which owns and operates a water6

main in Birchwood Avenue. The site has proximity to an7

adequate supply. I understand from the engineers8

report that a hydrant flow test may be appropriate and9

that typically again takes place at the site plan stage10

to establish whether the flow rate is adequate and11

there's adequate pressure and if not, the engineer12

advised that there could be a booster pump provided13

inside the residential development and, and that's14

normal and something again typically happens in the15

site plan application process. And so I conclude that16

the site can comply with a COAH criterion on adequate17

water capacity.18

Q What is your next criteria?19

A The next criterion is again this is the COAH20

language that the project is and site are developable21

under the residential site improvement standards often22

referred to as RSIS or R-S-I-S which are the, as23

determined indicates the site improvement standard24

established on a uniform basis statewide by state law25


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with rules adopted by the Department of Community1

Affairs and the concern and requirement is that these2

rules be met as applicable and essentially they apply3

to five major site improvement aspects of residential4

developments.5

First streets, second water supply, third,6

sanitary sewers, fourth, storm water management and7

fifth, parking.8

Q Before you, before you proceed to finalize9

each of those, let me ask you that, that are you, are10

you familiar with, with the, the RSIS standards?11

A Yes.12

Q And how are they formulated?13

A They are formulated using a starting point of a14

research project performed for the State Department of15

Community Affairs by the Rutgers University Center for16

Urban Policy Research which spent a number of years17

with the assistance of practicing engineers, planners,18

I believe municipal attorneys and planning board19

attorneys in developing what would be considered the20

best practices and most appropriate practices for New21

Jersey residential development. That research report22

then became the starting point for the rule making once23

the municipal land use law was amended by the adoption24

of the, the statute that authorized and required the25


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residential site improvement standards.1

Q Now is your understanding these standards2

apply uniformly throughout the state?3

A Yes.4

Q Now are, are municipalities permitted to5

impose more, stricter standards, higher standards?6

A No.7

Q Can they accept something less, less than the8

RS system, RSIS standards?9

A Yes, Your Honor. There are, there are waiver10

provisions and special area standard provisions and11

other provisions recognizing that local conditions may12

make some modification from the standard to be13

appropriate in a specific site.14

Q At this point, is it possi, possible to do a15

full evaluation of compliance of this project with the16

RSIS?17

A No, because the, the site has not been engineered.18

Q Where, where, where would that evaluation19

typically take place?20

A Again, its something that's reviewed at the site21

plan or subdivision plan stage before the municipal22

planning board.23

Q What kind of evaluation can you do at this24

point?25


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A I can address each of the five criteria in1

different levels of detail.2

Q Will you be able to formulate opinions as to,3

as to, as whether, whether its feasible to meet the4

RSIS?5

A Yes, consistent with practice under COAH rules in6

evaluating the compliance of sites and projects with7

this COAH rule.8

Q The, the first item you listed was streets.9

How, how do you evaluate, how do you evaluate the site10

in terms of RSIS criteria concerning streets?11

A The simple answer, it doesnt apply because here12

the developer is not proposing any streets only13

driveways so the RSIS does not apply.14

Q Does, does the RSIS govern usage of Birchwood15

Avenue?16

A No.17

Q Your second, your second, your second item18

was sanitary sewers.19

A Yes.20

Q How did, how do you analyze the, the site on21

the sanitary sewer service to the site under the RSIS?22

A Here, Your Honor, RSIS basically has engineering23

design standards and that is something that will happen24

later on in the process. The engineer will be25


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responsible that and I'm confident that he will design1

the sewers and on-site sewers to comply with these2

standards. Also as I explained earlier, the site has3

adequate sewer capacity so that's an important part of4

the RSIS standard that is met.5

Q The third item was water supply.6

A And, Your Honor, water supply is a similar7

analysis and, and opinion. Here too its the engineer8

who will be designing the, the pipes and whatever is9

necessary in terms of pumps for, for, for water flow10

and pressure but that has not happened yet. Thatll11

happen in the normal course of events at the site plan12

stage. As I've testified, there's adequate water13

capacity at this site and so in my opinion it complies14

with this RSIS criteria as well.15

Q Your fourth, your fourth system you indicated16

was, was governed by RSIS was storm water management.17

A Yes. And, and here too the detail storm water18

management plan for this site has not yet been19

engineered but it will be at the appropriate time. And20

I heard Mr. Dipples testimony on this point in the21

various approaches that he is contemplating to address22

the standards which are a combination of the RSIS23

standards which then embody the applicable standards24

from NJDET. So here too its my opinion that the site25


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can comply with RAS (sic), RSIS as to storm water1

management.2

Q The last system you, you, you had on your3

list was parking. Now how, how do you, how do you4

determine compliance with, with RSIS for parking?5

A The first step, Your Honor, is to calculate the6

requirements.7

(The Judge sneezes.)8

DEFENDANT'S ATTORNEY: Bless you.9

THE COURT: Excuse me.10

THE WITNESS: RSIS specifies different11

parking standard for different bedroom types and12

housing types. And so one must first classify the13

proposed residential development and then calculate the14

number of parking spaces required based on the bedroom15

mix. That I have done in a chart that's in my16

certification which was based on of the concept plan at17

some point before July of 2009.18

I have also prepared a handwritten chart19

based on the concept plan that's before The Court and20

the answer is the same that under RSIS, the bottom line21

is the same. RSIS would require a total of 811 parking22

spaces for the configuration of 419 units that are23

proposed in the July 30, 2010 concept plan. And I'm24

aware of the number of parking spaces that are provided25


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in this plan which I believe is 673 and that's a1

deficit of 138 spaces from the RSIS standard.2

BY MR. EISDORFER:3

Q Now the, in general what, what are, what are4

the R, RSIS -- well, in general, if one did the5

calculation, what ratio would the, would RSIS require6

of parking spaces to dwelling units in this project?7

A Your Honor, it would require a 1.9 parking spaces8

per dwelling unit. That's because its not a round9

number of two because for a one-bedroom unit RS (sic) a10

one-bedroom unit in a mid-rise structure which is how11

this project is classified, RSIS would require 1.812

spaces per unit. And then for a two-bedroom unit it13

would require two spaces per unit. And in a three-14

bedroom unit it would require 2.1 spaces. And these15

ratios include both residents as well as their16

visitors.17

THE COURT: Is there a chart for me to see18

what you're looking at?19

MR. EISDORFER: Yes.20

THE WITNESS: Yeah, I, I have a chart.21

MR. EISDORFER: Your Honor, there, there is a22

chart in the report at paragraph 26.23

THE WITNESS: Page nine of the July, 200924

certification.25


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THE WITNESS: And this, Your Honor, is the2

chart that has the same bottom line of 811 required3

parking spaces, spaces provided and surplus or in this4

case deficit although the, the three lines above are5

slightly different because the number of one-bedroom,6

two-bedroom and three-bedroom units is slightly7

different in their current concept plan.8

BY MR. EISDORFER:9

Q Now that 1.9 ratio, is there, is, is there an10

actual data as to parking usage, parking utilization in11

(inaudible) structures?12

A Yes.13

Q And well, what is the source of that be?14

A Well, the Institute of Traffic, excuse me, the15

Institute of Transportation Engineers publishes such16

data on, on parking demand and has done at least I17

believe two additi, three additions of it that the18

tone is entitled Parking Generation.19

MR. EISDORFER: Your Honor, I'd like to mark20

this as P-30, P-30.21

BY MR. EISDORFER:22

Q Let me show you the document that we have23

marked as P-30 and ask you if you can identify that.24

A Yes. This is the --25


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MR. WOODWARD: Your Honor, I'm gonna object1

to that document. I dont know this has ever been2

produced before. If it has, I stand corrected.3

THE COURT: I'm sorry. If it --4

MR. WOODWARD: I dont think this document5

has ever been produced before.6

MR. EISDORFER: Your Honor, the, the, its,7

its P-30 and --8

MR. WOODWARD: I, I understand what --9

MR. EISDORFER: And its, and its made, and10

reference was made to it in his report and, and it was11

provided in response to your request for, for, for12

documents in connection with his deposition.13

MR. WOODWARD: If, if we got it, then I stand14

corrected. I just dont remember ever seeing it before15

and well have to check it and I will continue my16

objection if --17

THE COURT: I, I dont even think he offered18

it in evidence. He just showed it to the --19

MR. WOODWARD: Well, he's gonna have the20

witness testify from it and if we haven't seen it21

before then I think its inappropriate.22

THE COURT: Well, he says its in his report.23

MR. EISDORFER: Its --24

THE COURT: You want to just refer to where25


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it is in the report so that we can clear this up now?1

MR. EISDORFER: Sure.2

THE COURT: And you're sure it was produced3

in connection with his deposition?4

MR. EISDORFER: He was, he was deposed on it.5

MR. WOODWARD: But by the way, I'll check. I6

could be wrong.7

THE COURT: Okay. Why dont you just, so we8

dont leave it hanging out there for the record, why9

dont you just, if you could, Mr. Eisdorfer, clear it10

up for us.11

MR. EISDORFER: Okay.12

BY MR. EISDORFER:13

Q The, the, this -- Dr. Kinsey, would you take14

us to paragraph, paragraph 33 of, of your report?15

A Yes. This is my July, 2009 certification at pages16

10 and 11, paragraph 33. I have a sentence that says,17

The most recent nationwide research published by the18

Institute of Transportation Engineers reports an19

average peak parking period demand for low/mid-rise20

apartments (maximum of four stories) of 1.2 vehicles21

per dwelling unit. Then I have a footnote which is,22

Far fewer than the plaintiffs proposal at Cranford.23

And my footnote is to the document identified as P-3024

which is a Parking Generation book, third edition,25


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published by the Institution of Transportation1

Engineers. I have one correction, in my footnote I2

indicated its Institute of Traffic Engineers. Instead3

of traffic, it should be Transportation.4

Q There's a footnote 14 in, in your report?5

A Thats right. Footnote 14 of my certification of6

July, 2009.7

THE COURT: Okay. I assume you're8

withdrawing your objection, Mr. Woodward.9

MR. WOODWARD: At this point, I would --10

excuse me, Your Honor. At this point, I would have to11

go back and actually look in my files to find out12

whether this was ever produced before. At this point,13

I'm gonna reserve my right to object to the testimony,14

moved that it stricken if it wasnt produced.15

THE COURT: Okay.16

MR. WOODWARD: But in the meantime, in the17

meantime, you know, just to allow it to go forward. He18

can ask the questions but I reserve my right on that19

subject to my checking it.20

THE COURT: Very well.21

MR. WOODWARD: Thank you.22


BY MR. EISDORFER:24

Q Dr. Kinsey, is, is, so is, is, is this25


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document you referred to for a source of information as1

to the national data on parking utilization in mid-rise2

apartments?3

A Yes.4

Q Is this, is this the type of, of, of5

information that planners and traffic engineers6

typically rely on for this purpose?7

A Yes.8

Q What's in, in, in the profession, what's the9

status of, of this document?10

A Highly revered and respected.11

Q Now what, what, what conclusions did you draw12

from this document?13

A Well, Your Honor, I find it interesting that this14

national data suggests that 1.2 vehicles per dwelling15

unit is the average peak parking demand presumably at 316

AM, 4 AM, 5 AM in the morning when everybody is at17

home. And that's far fewer than the 1.6 parking spaces18

per dwelling unit proposed by the plaintiff.19

Q Now are you familiar with the concept of cost20

increasing requirements and, and, under Mount Laurel?21

A Yes.22

Q Can you tell us what, what, what that term23

means?24

A Yes. Your Honor, one of the Supreme Courts25


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concerns in Mount Laurel Two was that it is important1

to satisfy municipal fair share housing obligations and2

particularly to make it realistically possible for the3

private sector to do that. Site improvement standards4

and other municipal requirements on development that5

had un-costs that are not necessary for public health6

and safety are viewed as cost generative and are7

prohibited under the Mount Laurel doctrine.8

Q Can, can, can park, excessive parking be, be9

a cost or increase in requirement?10

A Yes.11

Q Why is that?12

A Well, Your Honor, if one is required to build more13

parking than is reasonably likely to be used based on14

national standards and other credible studies, then15

that's a cost of X thousands of dollars per parking16

space that is not necessary and is therefore by17

definition cost generative and not related to public18

health and safety.19

Q Now in light of, of, of the national data, do20

you have any, do, is there any New Jersey data that21

corroborates in your opinion with the national data?22

A Yes, Your Honor. I became aware of my clients23

related projects in Englewood, New Jersey, the24

brownstones at Englewood South and the Sheffield at25


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Englewood South that I've heard testimony on in this1

court yesterday and today. These are both four story2

mid-rise structures. Neither has close convenient3

access to public transit. There is a bus line, New4

Jersey Transit line 166 that provides convenient5

service to New York City, just one hour to and from.6

Its on a bus stop that's a short distance, about a7

half mile east of these two complexes, half a mile east8

on Route 4 but its not an easy place to walk. And so9

its, its not pedestrian friendly.10

I asked my client for information on the11

number of parking spaces in these two complexes and12

particularly how many were used, what's the utilization13

rate for both the residents and, and visitors and14

found, and, and obtained that data and turned it into a15

table that's my Exhibit J to my July, 200916

certification, which I believe was previously17

introduced into evidence as a plaintiffs exhibit18

separately.19

Q Was that Exhibit J or Exhibit K?20

A Excuse me, exhibit K to my certification.21

MR. EISDORFER: Your Honor, Your Honor, this22

exhibit will be previously marked as P-25.23

BY MR. EISDORFER:24

Q And, and what conclusions do you draw from,25


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from the data on Exhibit K?1

A I was struck, Your Honor, that at the brownstones2

the occupied parking spaces amounted to 1.31 spaces per3

dwelling unit and at the Sheffield, the occupied spaces4

amounted to 1.37 spaces per unit which was a bit more5

than the national data reported by -- the average6

national data reported by the Institute of7

Transportation En, Engineers and still less than that8

proposed by the plaintiff at the Cranford site.9

Q Now based on, on the national data and the10

New Jersey data, were you able to form an opinion as to11

whether the 1.9 parking unit per, per, per dwelling is12

a cost increasing requirement for planning purposes?13

A Yes. And in my opinion, the 1.9 at this site14

given the bedroom mix and the likely clientele or15

residences would be a cost generative requirement.16

Q Now does the RSIS pro, pro, provide for17

alternative standards for parking?18

A Yes, it does explicitly.19

Q And what are the criteria for, for using20

alternative standards?21

A The term under RSIS is, Alternative parking22

standards and those may be sought if they, Better23

reflect local conditions and the RSIS enumerates four24

factors that may be evaluated.25


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The first is the household characteristics of1

the anticipated residents. In, in this case, the, the2

plaintiff anticipates that the market rate units will3

be admittedly luxury rental apartments that will be4

predominately rented to one or two person households5

most likely with very few children even with the 656

percent two-bedroom units.7

The plaintiff is proposing a greater8

percentage of one-bedroom units in Cranford compared to9

the experience in Englewood so the average household10

size maybe comparable or it might even be less. So the11

extent of motor vehicle ownership by these, these12

tenants particularly the market rate tenants is likely13

to be less than even the 1.6 parking spaces per unit.14

But I caution and this is just based on this one set of15

examples from Englewood, there's another extensive data16

base that planners typically use in New Jersey in17

examining these kind of demographic questions. Its18

called Who lives in New Jersey?19

It was commissioned by the New Jersey20

Department of Community Affairs and several other21

organizations. It too was prepared by Rutgers22

University Center for Urban Policy and Research. The23

principal author, the lead author is David Plisterkin24

(phonetic) but unfortunately this data does not analyze25


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persons per unit for three-bedroom units but rather1

kind of lumps them together with two and three so it2

can't really tease out and be more precise as to the3

likely household size in, in this facility. So that's4

the first one; household characteristics.5

Second is the availability of mass transit6

but here this is really not applicable, Your Honor,7

because no public transit is available close to the8

site. The, there is frequent New Jersey rail service9

in Cranford but that's about one and a half miles away10

by the closest pattern of streets that one could take11

by car, walking or bicycle. The third factor under12

RSIS is urban versus suburban location. On the13

continuum, I would make a urban/suburban rural and14

exurban. This site has a suburban location. Its15

really automobile dependent.16

And the fourth factor is what's called17

available off-site parking. The resources on Birchwood18

Avenue does have the capacity for about 32 parallel19

parking stalls along just the sites frontage. It has20

capacity on the other side of the street so off-site21

parking could be available particularly during the day22

for visitors, people pulling up to, to meet with23

someone who lives in this complex. Those are the, the24

first four factors. And I testified earlier to what I25


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think is the most important factor which is nationwide1

data and research on parking demand.2

Q Now based on, on your analysis of the3

alternative parking standard factors, in your opinion4

would, would use of an alternative parking standard be5

appropriate and, as to this project?6

A Yes. In my opinion, Your Honor, that an approp,7

the appropriate parking standard for this project at8

this site and its configuration, its location, its9

likely demographics is an alternative parking standard10

that respects the, the national data for this housing11

type and the developers experience, real world12

experience with the Englewoods projects.13

Q And approximately what would that be?14

A It -- the 1.6 spaces per unit would be an15

appropriate approach.16

Q Now have you given any consideration to, to,17

to how the, how the project might, might deal with if18

this turns out to be too low a number?19

A Yes. A concerted approach, Your Honor, would be20

to say 1.6 is appropriate but lets make sure and one21

could evaluate the actual parking usage in this22

apartment, these apartment buildings once they are23

fully rented up perhaps six months or a year of full24

occupancy and find out with real facts how much parking25


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is necessary and whether the provided parking is1

sufficient. And if its not, then there's some steps2

that could be taken.3

First, as I said earlier, residents could be4

encouraged to use, excuse me, visitors could be5

encouraged to park on adjacent Birchwood Avenue.6

People park on streets when visiting peoples home all7

the time.8

Second, as Mr. Hakim (phonetic) testified9

today, the developer could provide a convenient van10

shuttle between the site and the Cranford train station11

and perhaps other appropriate points in Downtown12

Cranford on a regular basis particularly during the13

peak morning and evening commuting hours. And third,14

as was also testified to today, third could be another15

level of parking structure added to the building, be a16

parking deck with the appropriate number of spaces17

based on the design of the structure. If its one half18

of a, of a level, that's perhaps 50 spaces. If its19

the full two levels or two halves, that's perhaps 10020

spaces. And if 100 spaces were added, that would21

increase the parking ratio as I calculate it to 1.8522

spaces per unit. So these options provide additional23

flexibility and, in my opinion, provide more24

justification for my conclusion that this project25


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should properly be analyzed using the RSIS alternate1

parking standards.2

Q To your knowledge, is, is on-street parking3

currently permitted on, on Birchwood Avenue in front4

of, of this site?5

A I believe it is. Yes.6

Q If it weren't, would that be an appropriate7

change in the, in the local regulations?8

A Yes, it would be appropriate.9

Q You're the -- in light of, of your testimony,10

do you have an opinion as to whether the, the site11

complies with the, the proposed concept complies with12

RSIS standards based upon the kind of evaluation you13

have described?14

A Yes. Your Honor, its my opinion that this15

proposed development can and will be designed to be16

compliant with RSIS and will meet this COAH criteria.17

Q Well, your next, your next criterion is18

compliance with regional, regional planning standards?19

A Yes. This is one of the easiest ones to address20

today because this one is not applicable. Cranford is21

not in the Meadowlands district. Its not in the22

Pinelands area. Its not in the Highlands region and23

its not in the coastal area under CATHRA so this24

criterion does not apply.25


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Q Your next criterion is --1

(Mr. Eisdorfer and his client speak amongst2

themselves.)3

BY MR. EISDORFER:4

Q Okay. So were, were up to, to item eight5

in Exhibit F. Describe to us what that, what that6

criterion is?7

A Yes. Your Honor, the next criterion is compliance8

with the New Jersey Freshwater Wetlands Protection Act.9

In particular, compliance with any wetlands and10

wetlands transition area constraints.11

Q And how did you evaluate this site based12

under that criterion?13

A First, I reviewed the letter of interpretation14

from DEP that confirmed the delineation of wetlands and15

resource value of the wetlands as identified by the16

plaintiffs engineer and environment consultants and I17

reviewed the associated map which DEP approved. Its18

one of the exhibits in evidence with two tones of, of19

green. A darker green for the wetlands area itself and20

then in certain areas adjacent to the intermediate21

resource value wetlands, there's a 50-foot wide22

wetlands transition area.23

Q I'm gonna show you the document we have24

marked as P-10C. Is this the wetlands document you're25


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referring to?1

A Yes, it is.2

Q Please proceed.3

A Yes. So that the, the area where the darkish,4

khaki wetland area and the cross action are the5

designated intermediate resource value wetlands and6

then 50 feet beyond them, is an area of a, of a bright7

green. That's the wetlands transition area.8

Then to the southeast corner of the site or9

the right of the, of the panel is a narrow ditch of10

wetlands designated as ordinary resource value11

wetlands. And then finally, the stream itself to the12

west side of the site is classified by DEP as state13

open waters.14

Q And, and how, in light of this information15

how did you assess the, the compliance with the16

proposed concept with the wetland standard?17

A My approach is to take the concept plan and18

compare it to the wetlands constraints, both the19

wetlands constraints and the wetlands transition area20

constraints. Some of those lines are shown as well on21

the concept plan and since this site plan respects by22

avoiding the wetlands area that assures compliance with23

that part of the criterion. And then for the wetlands24

transition areas, as I believe Mr. Dipple testified,25


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DEP rules allows for modifications of the wetlands1

transition area so that one can have a narrower than 502

foot transition area in some places. That's called the3

reduction provided there's a compensation area, an4

increase to larger than 50 feet somewhere else on the5

site. And then DEP as part of that regulatory process6

of granting a transition, what's called a transition7

area averaging waiver, DEP requires that that8

transition area be the subject of a conservation9

easement so that its quite firmly protected to serve10

that purpose for a very long time. And so I've11

reviewed the concept plan and find that it is designed12

in a manner that will comply with the requirements of13

the Freshwater Wetlands Protection Act and this COAH14

criterion.15

Q In looking at this, did you see an actual16

transition area averaging plan on this, on this site?17

A No. One has not yet been prepared and, and18

that's, that's understandable given this stage of the19

design development for this project.20

Q At what point would that be prepared?21

A That would be prepared as, -- when the engineering22

starts for the plan because then one of the23

considerations is where's the most appropriate place24

from a logical perspective as well as overall25


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improvement of the site for the compensation area1

that's gonna have a deed restriction.2

Q Your next category was Category One Waters.3

A Yes. That's, category -- the, the criterion is4

compliance with Category One Water Body constraints.5

Q What is, what is a Category One Water?6

A Category One Waters, Your Honor, is a very high7

quality classification DEP has assigned to certain8

water bodies in this state. The site is not within the9

watershed of any such waters and therefore this10


Q Your next criterion is, is compliance with12

flood water hazard constraints?13

A Yes.14

Q How did you assess this, this site on the15

basis of that criterion?16

A Here its the same inquiry as the wetlands17

analysis which is to review, in this case, the floodway18

delineation and flood fringe area delineation prepared19

by Mr. Dipple and to compare that with the conceptual20

site plan and review the sections, the conceptual21

sections that show opportunities for flood, flood22

storage as part of the structures and listening to Mr.23

Dipples testimony as a professional engineer who has24

interacted with DEP on flood hazard area questions has,25


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has obtained such permits for projects with1

characteristics similar to this one. All of that body2

of information leads me to conclude that this site can3

comply with the COAH criterion on flood hazard areas.4

Q And when you, when you, when you refer to5

the, the map of flood hazard, the flood hazard map6

showing floodway and the flood fringe, I'm putting up7

the board marked P-39A. Is that the document you're8

referring to?9

A Yes, it is.10

Q Your next criterion is, its steep slope11

constraints. Can you, can you describe what that's12

about?13

A This is another criterion taken straight from the14

DEP rules. It refers to areas of a site as mapped on15

the U.S. Geological Survey Typographic Quadrangles16

which are a scale of one inch equals 2000 feet and if17

the slopes are 15 percent or more, then that's18

considered a steep slope. There are no such areas on19

this generally very, very flat site. And, and even20

the, the ditch on the western side of the site would21

not qualify as a steep slope under the DE (sic), under22

the COAH criterion because it doesnt show up on the23

USGS maps as steep slopes.24

Q The, the next criterion is providing buffers25


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to historic resources.1

A Yes. Here the DE, the, excuse me, the COAH2

criterion is that appropriate buffers be provided for3

both sites and districts that are listed on the state4

or national registers of historic places. There are no5

such properties either on the site or adjacent or even6

near, in close proximity to the site and therefore this7


Q Your next criterion is consistency with the9

state development and redevelopment plan. Is that10

correct?11

A Yes.12

Q First of all, can you tell us what state13

development and redevelopment plan is?14

A Yes. Your Honor, in nine (sic), 18, 1985 or15

perhaps with an effective date of January 1, 86, the16

State Planning Act was enacted. It was the second law17

that was really an offspring of the Mount Laurel Two18

decision. It created a state planning commission which19

was charged, composed, composed of members of the20

governors cabinet, some ex, designated exaficio,21

others designated by the governor plus various public22

members in the various categories appointed by the23

governor, confirmed by the state senate.24

Its principal mandate was to prepare the25


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first state development and redevelopment plan for the1

state. The mandate to classify areas of the state and2

prepare appropriate policies for the state but not just3

for state government both the process of preparing the4

plan and its implementation were to involve various5

levels of government, state, county and municipal. In6

a sense, working towards vertical integration of7

planning as well as horizontal integration across state8

agencies.9

It took the state planning commission a10

number of years to develop the first state plan. Its11

a large document that has a one map in particular12

that's referred to as the policy map. Its the one13

that classifies the land areas of the state into five14

principal categories. First -- and they're all called15

planning areas one through five.16

One is the Metropolitan Planning Area. Two17

is the Suburban Planning Area. Three is the Fringe18

Planning Area. Four is the Rural Planning Area and19

five is the Environmentally Sensitive Planning Area.20

There's some refinements on the last two as well. And21

then there are specific goals, strategies, policies,22

objectives and rationales for each of those policy23

areas. After several years of implementation and in24

response to the statutory mandate to re-examine and25


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update the state plan, a second state plan was1

ultimately adopted in 2001 and that is the current2

state development and redevelopment plan that is in3

effect with its policy map depicted in typically in two4

fashions.5

One, there's a map the size of the, the state6

highway map that the Department of Transportation7

prepares and hands out for free. That's a scale of 1008

to 250,000 but the officials maps are the scale of inch9

equals 2,000 feet and those are prepared on the same10

base and grids as the U.S. Geological Surveys11

Topographic Quadrangle maps and that's the official12

state plan policy map for an area.13

Q Now did, did you examine the state policy14

plan map that encompasses Cranford Township?15

A Yes.16

Q And, and can you tell us what, what planning17

area this site is located in?18

A This site -- all of Cranford Township is in19

planning area one, the Metropolitan Planning Area.20

Q And what is the, what, what is the policy21

significance of, of designating an area as being within22

the Metropolitan Planning Area?23

A Let me answer in, in two ways. First, to read a24

policy statement that's included in the state plan for25


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this policy area, excuse me, for this planning area.1

It is that state policy in this area to quote, Provide2

a full range of housing choices through redevelopment,3

new construction, rehabilitation, adaptive reuse of4

residential buildings and the introduction of new5

housing into appropriate non-residential settings.6

That's at page 191 of the current state plan. That's7

paragraph 30, excuse me, 43 from my July, 20098

certification. So that's the broad statement of9

policy. And then there are other provisions in state10

agency rules that build upon the state plan and its11

planning area designations.12

One in particular concerns storm water13

management and the DEP rule that has differentiated the14

standards that must be met based on whether a site is15

in a planning area one or not.16

Q Do you recall what the, what the, the17

substantive differences in the NJDEP equal?18

A I believe the difference is that storm water19

management need not include water quality measures if20

the site is in planning area one and that's in part21

because planning area one is, is heavily developed22

already.23

Q Does that also affect infiltration measures?24

A It may.25


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Q Now were you able to assess whether, whether1

the proposed concept is consistent with the state2

development, redevelopment plan?3

A Yes. It is consistent with the planning area4

location as well as this broad statement of state5

policy.6

Q Okay. What's, what's you're next criteria?7

THE COURT: But before we get into that,8

maybe its a good time to break for the day.9

MR. EISDORFER: That would be fine.10

THE COURT: Before we get into the next11

criteria. Okay? So I guess were are we off the12

record? Are we off?13

(Off the record; on the record)14

15

* * *16

(Whereupon, proceedings of 8-3-10 concluded)17

* * *18

19

20

21

22


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CERTIFICATION1

I, Lynn Cohen-Moore, the assigned2

transcriber, do hereby certify that the foregoing3

transcript of proceedings in the matter of LEHIGH vs.4

TOWNSHIP OF CRANFORD, heard in the Union County5

Superior Court, Law Division, on August 3, 2010, Tape6

Number 184-10, Index Number 5555 to end, and Tape7

Number 185-10, Index Number 001 to 4920, is prepared in8

full compliance with the current Transcript Format for9

Judicial Proceedings and is a true and accurate non-10

compressed transcript of the proceedings as recorded.11

AUTOMATED TRANSCRIPTION SERVICES12

BY: Lynn Cohen-Moore __________________13

Lynn Cohen-Moore A.O.C. #36814

Dated: August 15, 201015

Documents

Transcript 8.3.10 Kinsey CDA Planner