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7/31/2019 Transcript 9.29.10 Creelman
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SUPERIOR COURT OF NEW JERSEYLAW DIVISION - CIVIL PARTUNION COUNTY, NEW JERSEYDOCKET NO.: UNN-L-0140-08
LEHIGH ACQUISITION CORP.,) )
Plaintiffs, ) TRANSCRIPT)
vs. ) OF)
TOWNSHIP OF CRANFORD, ) TRIALet al, )
)Defendants. )
Place: Union County CourthouseTwo Broad StreetElizabeth, New Jersey 07207
Date: September 29, 2010BEFORE:
THE HONORABLE LISA F. CHRYSTAL, J.S.C.
TRANSCRIPT ORDERED BY:
CARL R. WOODWARD, III, ESQ. (Carella, Byrne,
Cecchi, Olstein, Brody & Agnello, P.C.)
APPEARANCES:
STEPHEN M. EISDORFER, ESQ. (Hill Wallack, LLP)DOUGLAS M. COHEN, ESQ. (The S. Hekemian Group,LLC)Attorneys for the Plaintiff
CARL R. WOODWARD, III, ESQ. (Carella, Byrne,Cecchi, Olstein, Brody & Agnello, P.C.)VINCENZO MOGAVERO, ESQ.
BRIAN FENLON, ESQ.Attorneys for the Defendants
ELIZABETH C. MCKENZIE, SPECIAL MASTER
PAMELA A. SCHMID
UTOMATED TRANSCRIPTION SERVICES
P.O. Box 1582
Laurel Springs, New Jersey(856) 784-4276
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2
I N D E X
September 29, 2010
BY THEWITNESSES: DIRECT CROSS REDIRECT COURT
For the Defense:
Thomas Creelman 12(Woo) 22(Eis)
Elizabeth McKenzie 80(Woo) 126(Eis) 149(Woo) 44,151EXHIBITS: IDENT. EVID.
D-113 Mr. Creelmans report 5 5
D-94 Mr. Creelmans first report 6 6
D-159 July 16, 2010 report 6 6
D-179 August 23, 2010 report 6 6
D-181 September 22, 2010 report 7 7
D-149 Branch 10-24 flood hazard area 7 7and floodway exhibit
P-39A Same as D-149 7 7
D-150 March 31, 2010 concept plan 7 8
P-8 Same as D-150 7 8
D-151 March 31, 2010 cross section 8 8
P-9 Same as D-151 8 8
D-157 Boundary survey 8 8
D-43 Site plan investigation 9 9
D-25 Photographs 9 9
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3
Index: (Continued) IDENT. EVID.
D-178 Same as P-2, letter from Peter 10 10
Hekemian
D-162 Plans with scan and overlap 10 10
D-25N Photograph 11 11
D-1 Minutes of meeting of 38 38January 13, 1970
D-12 Resolution dated July 25, 2000 39 39
D-21 Ordinance 2006-3 39 39
D-44 Township Committee meeting 39 39minutes, August 2008
D-46 Resolution of Township Committee 39 392008-280, March 18,2010
D-47 Meeting minutes, September 9, 40 402008
D-51 Meeting minutes, September 23, 40 40
2008
D-53 Meeting minutes, dated October 6, 41 412008
D-54 Meeting minutes, October 7, 2008 41 41
D-56 Meeting minutes, October 20,2008 41 41
D-57 Meeting minutes, October 21, 2008 41 41
D-62 Meeting minutes, November 11, 2008 41 41
D-65 Letter dated November 18/2007 by 41 41Robert Puhak, Mayor
D-69 Resolution 2008-356, dated 42 42December 23, 2008
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4
Index: (Continued)IDENT. EVID.
D-70 Resolution 2008-359, dated 42 42December 23, 2008
D-79 Resolution Memorialization by 42 42the Board of Adjustment,Application C26-08
D-91 Plaintiffs response to 42 42Defendants interrogatories
D-186 Parking generation 43 43
D-108 Elizabeth McKenzies report, 164 164dated January 4, 2010
D-135 Elizabeth McKenzies letter, 167 167dated March 30, 2010
D-152 Elizabeth McKenzies letter, 167 167dated June 22, 2010
D-160 Elizabeth McKenzies letter, 167 167dated July 19, 2010
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Colloquy 5
(The following was heard in open court at1
10:00 a.m.)2
THE COURT: Good morning all. Welcome back.3
MR. WOODWARD: Good morning, Your Honor.4
MR. EISDORFER: Good morning, Your Honor.5
THE COURT: Are you ready to proceed?6
MR. WOODWARD: Yes, Your Honor. Before Mr.7
Eisdorfer commences, however, a couple of things.8
One is, I realized over the evening there9
were two questions that I did not ask Mr. Creelman.10
Since cross hasnt started, I thought maybe I could put11
him on to do that.12
And, secondly, we also have his reports, all13
of his reports that we wanted to move into evidence. I14
think we moved in D-94 yesterday. Im not sure about15
D-113. I think we did that.16
THE COURT: Hang on, let me just -- D-113,17
and theres D-113H, D-113 C, D, E, F and G.18
MR. WOODWARD: D-113. Yeah, thats all part19
of that report, yes.20
THE COURT: Okay. Any objection to D-113?21
MR. EISDORFER: No, Your Honor.22
THE COURT: Hang on one second.23
MR. WOODWARD: Okay.24
THE COURT: Okay. D-113 in evidence, okay?25
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Colloquy 6
MR. WOODWARD: Im not sure about D-94, which1
was his first report. I think we moved that in, but2
the copy that I --3
THE COURT: I do not have it marked as in4
evidence.5
MR. WOODWARD: All right. Well, then were6
moving that one also, Your Honor.7
THE COURT: Any objections?8
MR. EISDORFER: Limited to showing this is9
his opinion, no objection.10
MR. WOODWARD: And then we have --11
THE COURT: D-94 in evidence.12
MR. WOODWARD: And we have D-159, which is13
the July 16, 2010 report.14
THE COURT: D-1 -- D-159, any objections?15
MR. EISDORFER: On the same limitation, no16
objection.17
THE COURT: Okay.18
MR. WOODWARD: And we have two more. D-179,19
which is dated August 23, 2010.20
THE COURT: Hang on one second. D-179, any21
objection?22
MR. EISDORFER: Limited to the showing what23
his opinion is, no objection.24
THE COURT: Okay.25
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Colloquy 7
MR. WOODWARD: And D-181, which is dated1
September 22, 2010, which is also his final report.2
MR. EISDORFER: Limited to showing what his3
opinion is, no objection.4
THE COURT: Okay.5
MR. WOODWARD: And then -- then finally, Your6
Honor, yesterday, there was some discussion about7
different exhibits, and I -- I thought there was a8
little confusion. We marked them down. We marked them9
down. I think Id like to move these into evidence as10
well.11
These are from Mr. Dipple, and we have them12
separately marked as D-149, which is Branch 10-24 Flood13
Hazard Area and Floodway exhibit.14
THE COURT: And P -- P-39A is the same.15
MR. WOODWARD: Right.16
THE COURT: Any objection?17
MR. EISDORFER: No objection.18
MR. WOODWARD: And then --19
THE COURT: So D-149, P-39A both in evidence.20
MR. WOODWARD: And D-150 is the March 31,21
2010 concept plan.22
THE COURT: The same as P-8 I believe?23
MR. WOODWARD: I think so, yes, but those are24
not in evidence.25
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Colloquy 8
THE COURT: No objection to P-8 and D-150 in1
evidence.2
MR. WOODWARD: And then the last one is the3
cross section, which is D-151, also dated March 31 --4
THE COURT: And thats P-9.5
MR. EISDORFER: No objection, Your Honor.6
THE COURT: Okay.7
MR. WOODWARD: Thank you.8
THE COURT: So I have some others that were9
not marked, and so Id just like to go through them. I10
have D-157, the boundary survey. Was that in evidence?11
MR. WOODWARD: I think it is, Your Honor, but12
if not, well move it in.13
MR. EISDORFER: I dont believe its actually14
been moved into evidence.15
MR. WOODWARD: Okay. Well, then well move16
that in, Your Honor.17
THE COURT: Okay, D-157? Then theres --18
MR. EISDORFER: Let me ask, does this have19
additional information?20
MR. WOODWARD: No.21
MR. EISDORFER: No, okay.22
THE COURT: Okay. So thats D --23
MR. WOODWARD: This is D-157.24
THE COURT: 157 in evidence. D-43, a site25
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Colloquy 9
investigation?1
MR. WOODWARD: Yes, Your Honor. This -- this2
is also the report of Mr. Dipple dated March 21, 2008,3
and we would move that in.4
THE COURT: Do I have an investigation, May5
of 2008, right?6
MR. WOODWARD: Im -- what did I say? May7
21, 2008.8
THE COURT: Okay. Okay. Thats -- okay, D-9
43, any objection?10
MR. EISDORFER: No objection, Your Honor.11
THE COURT: Okay. May -- what was it, May12
21?13
MR. WOODWARD: Correct.14
THE COURT: Then I have D-25, which was the15
-- were photographs used. Were they previously marked?16
MR. WOODWARD: They were marked. They're all17
in evidence, Your Honor.18
THE COURT: And then P-38 and P-39, those19
were in evidence previously?20
MR. EISDORFER: P-38 and P-39, I believe, are21
in evidence.22
MR. WOODWARD: Yes, those are in evidence.23
THE COURT: Okay. And --24
MR. WOODWARD: Okay. Your Honor, there is25
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Colloquy 10
one photograph that was not actually -- its been1
testified about, but it wasnt actually moved in. So I2
want --3
THE COURT: All right. I also have D-178 and4
D-150, 151, and P-8 and P -- oh, those were just5
entered, right?6
MR. WOODWARD: Yes, Your Honor.7
THE COURT: Okay. 178 -- oh, D-178, was that8
entered?9
MR. WOODWARD: What was D-178?10
MR. EISDORFER: I dont have any -- yes,11
thats the same as P-2. Thats a letter from Peter12
Hekemian. And that was -- that was actually moved in.13
MR. WOODWARD: Yes.14
THE COURT: Okay. One -- D-162. Those were15
the plans with the scan and overlap. Has that been16
entered into evidence?17
MR. WOODWARD: Thank you, yes. You're18
catching up to me. This is D-162. Yes, wed offer19
this into evidence. This was the -- this is the20
overlay that was done by Mr. Creelman.21
THE COURT: Counsel, I hope someones keeping22
a list for me, because at the -- I mean, Im trying to23
--24
MR. WOODWARD: You're doing a great job.25
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Colloquy 11
THE COURT: Okay. Then theres -- it looks1
like P-80, 82, 83, and 86, have those been entered into2
evidence? P-80, 82, 83 and 86. These are all flood --3
flood plain calculations. Flood storage volume, flood4
way and flood plain calculations; 80, 82, 83, 86. 865
is a drainage map, 87.6
MR. EISDORFER: Im sorry. These are P7
exhibits?8
THE COURT: Yes.9
MR. EISDORFER: Yes.10
THE COURT: 82, 83, 86 and 87.11
MR. EISDORFER: I moved those all in?12
THE COURT: You did?13
MR. EISDORFER: Yes.14
THE COURT: Okay. All right. And youll15
give me a list as well, I assume, right?16
MR. EISDORFER: Yes.17
THE COURT: Okay.18
MR. WOODWARD: Your Honor, the photograph19
that I mentioned, D-25N, was -- has been marked in20
evidence by the clerk, but in fact, it was never21
actually moved in. We just want to make sure --22
THE COURT: D-25N?23
MR. WOODWARD: Yes.24
THE COURT: Do I have a copy?25
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Creelman - Direct 12
MR. WOODWARD: You have a copy; yes, you do.1
THE COURT: Okay.2
MR. WOODWARD: But we want to make sure that3
the record is clear that D-25N is in evidence.4
THE COURT: Okay.5
MR. WOODWARD: Ill show that to Mr. --6
(Pause)7
MR. EISDORFER: I dont have an objection.8
MR. WOODWARD: Okay. I know Mr. Raymond9
testified about that --10
THE COURT: Okay.11
MR. WOODWARD: -- file. Okay. I think weve12
got everything we need.13
(Pause)14
MR. WOODWARD: Okay. I think for now, thats15
-- with respect to what has transpired, that covers16
what we -- what we wanted. And Id like to call Mr.17
Creelman back to the stand. Mr. Creelman?18
THE COURT: Yeah, hes already sworn. Mr.19
Creel -- Creelman, you remain under oath.20
THE WITNESS: Okay. Thank you.21
(Pause)22
T H O M A S C R E E L M A N, DEFENDANTS WITNESS,23
PREVIOUSLY SWORN24
DIRECT EXAMINATION BY MR. WOODWARD:25
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Creelman - Direct 13
Q Now, Mr. Creelman, Im showing you what has1
been marked as P-39A in evidence. When you test -- you2
testified about that yesterday, do you recall that?3
A Yes, I do.4
Q Okay. What I wanted to ask you about was the5
limit of the flood fringe area, the dotted red lines on6
the drawing, and could you tell us whether they have7
any effect -- the flood fringe area line has any effect8
on the -- on the proposed drive -- on the driveways as9
they exist on the property, at this time? In other10
words, is there any regulatory impact on those11
driveways as they exist now?12
A On the driveways as they exist today? Yes, the --13
well -- based upon the applying of the flood hazard14
line, this driveway here to exit to get back onto15
Birchwood Avenue, one would have to pass in to the16
flood hazard area, for the fringe area, and then back17
out of it to continue west on -- east on Birchwood18
Avenue, the northeast portion of the site.19
Q And the other driveway?20
A The other driveway would be even in a worse21
condition when the flood fringe, it would basically be22
in the same position, but the water actually be deeper23
over here, as you're heading towards the west, toward24
the creek itself.25
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Creelman - Direct 14
Q Now, Im showing you whats been marked as D-1
162 in evidence, at this point. This is the proposed2
concept plan, dated March 31, 2010. Could you compare3
the driveway locations and the impact of this flood4
fringe area on the driveways as proposed?5
A The situation would be the same as it was -- I6
dont think any either of these drawings shows the7
overlap, but there is one drawing that shows, I8
believe, the proposed driveway is actually more -- a9
little bit more to the west, which would actually make10
the situation worse.11
Youd be more into the flat hazard area or12
the flood fringe area, in order to exit the site onto13
Bridgewater Avenue.14
Q Thank you. Now, showing you whats been15
marked as D-157 in evidence, this is the survey map,16
correct?17
A The survey done by a control point, yeah.18
Q Did you -- youve read testimony in this19
case, and youve analyzed documents that the -- that20
the limit of the flood fringe area is at elevation21
78.6, at the northerly portion of the -- of Birchwood22
Avenue and 78.4 at the southerly --23
A Correct.24
Q -- portion of the property, correct?25
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Creelman - Direct 15
A Yes.1
Q Could you take -- go up to this drawing and2
point out for the Court what the elevations are, if3
there are any, on the properties to the south of this4
property?5
A From the ALTA survey that was prepared and6
boundary survey and -- thats provided along the north7
end of Wadsworth, from the north side of the8
residential houses here, there are a series of --9
elevations and -- contours. Im just going to randomly10
show you some of them and pick it out.11
At the north side of Block 286, Lot 6, the12
elevation is 75.4. At Block 286, Lot 8, the elevation13
is 77.6. For the next of lot, east of that, an14
elevation of 77.5. The next lot over to that, which is15
Block 286, Lot 10, and 77.28, and then out in the16
middle of the road, there is a -- in the middle of17
Wadsworth Terrace, theres a sanitary sewer man hole18
with a rim of 78.44.19
What that indicates to me is that the --20
MR. EISDORFER: Your Honor, Im going to21
object to this, because its all outside the scope of22
the expert reports.23
MR. WOODWARD: Clearly, its not the24
elevations, Your Honor, are on a drawing that has been25
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Creelman - Direct 16
relied on by all parties here. Frankly, hes giving1
the numbers that exist. The elevations are on the2
drawing. Im having him explain exactly what that3
means.4
MR. EISDORFER: Hes allowed to draw5
inferences from that? Thats within the opinion thats6
not in any of the reports, that weve had no opinions7
about -- about anything other than whats on the8
property.9
THE COURT: Whats the relevance in this?10
MR. WOODWARD: The fact that this shows that11
this area to the south is in many areas, actually lower12
than the flood fringe elevation, and is very delicate13
in terms of any and all impact from any construction on14
the site itself. Its not like stuff goes off-site and15
it just goes through a pipe.16
MR. EISDORFER: Your Honor, now Mr. Woodward17
is --18
MR. WOODWARD: Well, the Judge asked me what19
the relevance is.20
THE COURT: Theres no -- theres not even --21
the buildings not anywhere near those. Were talking22
-- hes giving us the elevations for Wadsworth, right?23
MR. WOODWARD: Thats correct, Your Honor.24
THE COURT: Okay. So whats the relevance of25
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Creelman - Direct 17
the -- of the elevations on Wadsworth?1
MR. WOODWARD: The relevance of the2
elevations on Wadsworth are the impact that any3
development on the subject property will have upon the4
properties in Wadsworth. The elevations are low to5
begin with.6
THE COURT: Well, you know, if that -- if7
that wasnt included in his report, and its a new8
opinion that hasnt been rendered before, I mean, Mr.9
Eisdorfer probably is correct about that. He hasnt10
had the opportunity to review that with his expert.11
When new opinions came into this case, I gave12
a month long adjournment so that you could discuss it13
with your expert. You could depose on the new report.14
If its not in there -- if it is in there, you can show15
me where. If its not in there, and hes going into a16
new opinion, I think its probably true.17
MR. WOODWARD: One moment, Your Honor.18
(Pause)19
MR. WOODWARD: In his report --20
THE COURT: Which -- what are you looking at?21
MR. WOODWARD: His report dated October 14,22
2009, Exhibit 94.23
THE COURT: All right. Hang on. Let me find24
it.25
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Creelman - Direct 18
(Pause)1
THE COURT: What --2
MR. WOODWARD: 94, page seven.3
THE COURT: Well, this is one of the reports4
that was given to me yesterday?5
MR. WOODWARD: Yes, Your Honor. D-94. Its6
actually in your book, Your Honor. We gave that7
originally.8
(Pause)9
THE COURT: Someone removed it. So let me10
find it.11
MR. WOODWARD: Here, Your Honor, Ill hand12
you my copy.13
(Pause)14
MR. WOODWARD: Under stormwater management.15
THE COURT: Thank you.16
MR. WOODWARD: I think its at the bottom of17
the first paragraph there. It talks about his18
observations of the terrain in the vicinity, and south19
of the property, talking about how Casino Brook closed,20
the flooding in the streets south of the property.21
MR. EISDORFER: It just says it goes through22
a highly developed single-family residential23
neighborhood.24
MR. WOODWARD: Well, read the next sentence,25
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Creelman - Direct 19
please.1
MR. EISDORFER: It says, Based on the2
discussion with Mr. Marsden --3
MR. WOODWARD: Go ahead.4
MR. EISDORFER: -- the numerous sections of5
Casino Brook become overburdened with stormwater.6
MR. WOODWARD: He doesnt have any -- he7
doesnt draw any inferences from that. He says -- says8
what Mr. Marsden told him.9
(Pause)10
THE COURT: Yeah, I mean, Ill let him11
testify consistent with that paragraph there, but not12
beyond it.13
MR. WOODWARD: Thank you, Your Honor.14
THE COURT: So to the extent that its15
consistent with whats there in D-94, you can continue.16
MR. WOODWARD: Thank you, Your Honor.17
BY MR. WOODWARD:18
Q Mr. Creelman, I think you started to say19
before the objection what that means to you. Could you20
tell us what it means to you?21
A Can we make reference to another exhibit as well?22
Q Please.23
A Exhibit D-39A, can I hold them both up, so were24
all same pages here? What I was -- what I was trying25
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Creelman - Direct 20
to get at was, if you look how the floodway lane comes1
down, it doesnt just stop at the -- the property line.2
As it goes -- continues to the north, its a modeling3
of Casino Brook. So as does the flood hazard line. It4
doesnt just stop at the property line, it continues5
down.6
And we know that on the southerly -- on the7
northern portion of the property, the elevation of the8
flood hazard line is 78.6, and at the southern portion,9
the elevation of the flood hazard line is 78.4. Its10
-- all I was trying to point out was that as these11
lines -- Im not saying where they go, but the line12
cannot just automatically go back to the brook.13
If its at 78.4 here, it remains -- because14
of the existing topography, it remains out here15
somewhere. Because these two lines at the property16
line dont just go all the way back to the brook and17
then stay on the brook. Thats what -- that is to, I18
believe in this interpretation, when we were looking at19
the FEMA maps up to the north, because they stopped at20
the municipal bounty line, because the municipal -- the21
municipalities to the north requested that in doing an22
analysis of this brook, Cranford did not -- and23
therefore these lines were not plotted on the FEMA24
maps.25
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Creelman - Direct 21
So, its the same analogy, that just because1
we did it for this property, they dont just end at the2
northerly property line, and terminate at the southerly3
property line. They do continue. And I dont believe4
its unreasonable to say that the elevation of 78.45
continued -- continues out in this direction.6
I wont say -- does it continue straight like7
this or straight over here? No. But given the8
elevations at the back of these properties, as shown on9
the -- D-157, and the spot elevation in Wadsworth, it10
is out here somewhere.11
Im not trying to say that I can tell where12
the spot is, similar to when I did my example in my13
January report that there is a flooding issue here.14
Well, if you look at the -- I dont think -- I also15
stopped, because we were focusing on the property, but16
it does continue. It continues north of the property,17
and it also continues south on the property.18
And there is an impact of that around these19
buildings and beyond, not just these buildings, and the20
road and beyond.21
MR. EISDORFER: Your Honor, everything here22
is beyond the scope of the report.23
THE COURT: I think the Court can make that24
determination. Okay? Your next question.25
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Creelman - Cross 22
MR. WOODWARD: No further questions, Your1
Honor.2
THE COURT: All right. Cross-examine?3
CROSS-EXAMINATION BY MR. EISDORFER:4
Q Mr. Creelman, when -- when you review5
documents concerning the flood hazard area of --6
A Im sorry. When I reviewed documents concerning7
the flood hazard area --8
Q Flood hazard area planning.9
A Okay. Sorry.10
Q Did you understand that you were reviewing11
documents -- that you were reviewing the equivalent of12
an application to the NJDEP for a flood hazard area13
permit?14
A It wasnt -- it wasnt made clear to me either15
way.16
Q Is that what the documents appear to you to17
be?18
A No.19
Q No.20
A No. I wasnt -- but I wasnt asked either way. I21
was just asked to review the documents, not for22
anything specific, just for --23
Q Well, you --24
A -- constraints on the site.25
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Creelman - Cross 23
Q You have concluded that those documents would1
be insufficient to -- to be -- in their present form,2
to be approved by the DEP for a permit, isnt that3
right?4
A Thats correct.5
Q So did you understand that those documents6
were, in fact, the equivalent of an application for a7
permit?8
A That was not made clear to me, no.9
Q Do they appear to you be -- to be an10
application for a permit?11
A If they are, then they're incomplete.12
Q Do they -- do they appear to you to be?13
A I havent seen the -- the actual application. I14
dont know if those documents -- if they are, then all15
of the documents that need to go to the DEP werent16
provided to me. Let me put it that way.17
Q So that didnt appear to you to be an18
application --19
A I cant answer. I dont know.20
Q Well, what --21
A What I was given was not a complete application22
period.23
Q Okay. It was not an application. Okay,24
good. Lets -- thats a start. How about -- how about25
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Creelman - Cross 25
could be approved by the DEP?1
A Based upon what I saw, what was provided to me, I2
know if that was submitted to the DEP, they would not3
approve it.4
Q Okay. So now in -- in analyzing the flood5
hazard area materials, did you model -- did you model6
about the existing flood storage?7
A Based upon the documents we got from -- yes.8
Q And you did -- you did a computer model --9
A Yes, we did.10
Q -- is that right?11
A Yes.12
Q And you did your own calculation --13
A To calculate the volume of storage proposed within14
the flood fringe area, yes.15
Q Okay. And you did a calculation of -- you16
also did a calculation of -- of the flood storage and17
the proposed grading plan?18
A That would be the proposed flood storage?19
Q Yes.20
A Yes.21
Q The flood storage based on the grading plan22
thats -- thats P-82?23
A Yes.24
Q And did you calculate the difference between25
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the -- the flood storage and the proposed grading plan1
and flood storage in the existing -- the existing flood2
storage?3
A Based upon the models that we ran?4
Q Yes.5
A Yes.6
Q And did you -- what was that number?7
A I dont recall the exact number off the top of my8
head. If you want me to give you an order of9
magnitude, I can do that.10
Q About 30,000 gallons -- 30,000 cubic square11
feet -- cubic feet?12
A I was going to say closer to probably 25,000 cubic13
feet.14
Q Okay.15
A Again, I dont remember the exact numbers.16
Q Okay. So you -- but you did your own -- and17
that involved -- that involved, you know, comparing the18
-- the proposed topography grading with the -- with the19
level of the flood hazard elevation?20
A Correct.21
Q And the various compensation that would be22
provided?23
A The -- we modeled the existing topography against24
the top of 78.6, which is the flood hazard elevation,25
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and then we modeled the proposed grading against the1
same line between the -- as shown on -- on -- I dont2
know -- whats that exhibit -- this one right here.3
Q Yes. I believe thats P-82.4
A Okay. I just didnt know. In looking at P-82,5
that was the volume between the southerly property --6
between the southerly property line there to there.7
The floodway line, the northerly property line, and the8
proposed flood hazard line, which is the red line,9
dash, the red line indicated here.10
We calculated the volume between the solid11
red line and the blue line for existing conditions, and12
the solid red line and the dash line for proposed13
conditions and calculated the volumes.14
Q And you found that -- that -- that the15
proposed -- the flood storage that was proposed would16
exceed the existing storage by about 25,000 cubic feet,17
is that right?18
A Thats correct.19
Q Now -- and did -- and you drew a conclusion,20
as to the adequacy of that -- of that flood line?21
A That there would be -- under that proposed concept22
plan with the concept grading, that there would be23
adequate storage provided.24
Q To meet the DEP standards?25
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A To meet the requirements of the flood -- flood1
hazard, yes.2
Q Now, in -- in analyzing stormwater3
management, did you -- did you also model the -- the4
existing conditions?5
A We did a -- yes, we did.6
Q So you -- you did your own model of existing7
conditions?8
A Yes.9
Q And did you do a model of -- of the proposed10
stormwater management plan?11
A Yes.12
Q And so you -- you quantified all -- all that13
data?14
A We reviewed it and concluded that the underground15
retention would have issues, based upon the flood16
hazard area.17
Q Did you quantify all -- all that data?18
A Im not sure I understand. When you say -- did we19
confirm it all?20
Q Yeah.21
A No, we didnt confirm -- we didnt confirm all of22
it, no.23
Q You didnt -- you did your own independent?24
A No. We didnt redesign it, no. We looked at what25
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we were provided.1
Q Okay. So looking at -- you testified that in2
your view, certain -- certain soils should have been3
treated differently, that some should be treated as4
Class D rather than Class C, is that correct?5
A We -- I believe I testified that certain areas,6
drainage areas, had a different soil type, and because7
they had a different soil type, they should have been8
evaluated differently as --9
Q Did -- did you quantify what difference that10
would make?11
A I wasnt asked to do that. I was only asked to12
look at it and see if it met the regulations, and13
obviously, it did not meet the regulations.14
Q Did -- did you quantify what difference it15
would make?16
A No, I did not. Again, I said that that was not17
what I was asked to do.18
Q I understand.19
A Okay.20
Q And Im going to on the assumption of what21
you did.22
A Okay.23
Q Okay. So you cant -- you cant offer us any24
opinion on how big a difference that would make?25
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A How big a difference?1
Q Yes.2
A No.3
Q No.4
A But will it make a difference? Yes.5
Q Now, you indicated that -- that you thought6
that the rainfall should have been Type 3 rather than7
Type 2? Yes, Type 3 rather than Type 2, is that8
correct?9
A Yes.10
Q Okay. Did you quantify what difference that11
would make?12
A No. Again, I wasnt -- I wasnt asked to do that.13
Q Okay. So you cant offer us any opinion --14
A My opinion is that it would make -- it will make a15
difference. The magnitude of the difference, no,16
because I didnt run the calculation.17
Q You cant tell us what the magnitude of the18
difference would be?19
A It would make a difference.20
Q But not -- you cant --21
A The magnitude of the difference, no.22
Q You havent quantified it?23
A No, I have not.24
Q Okay. You -- you testified that -- that for25
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a determining time of concentration, in your view, the1
-- the sheet flow should have been 200 feet rather than2
-- 150 feet rather than 200 feet, is that correct?3
A Yes.4
Q Did -- did -- did -- you quantify what5
difference that would make?6
A No, I did not.7
Q Okay. So you cant tell us anything about8
the magnitude of the difference?9
A Not the magnitude, except that it will have an10
effect on the discharge.11
Q But you cant tell us anything about the12
magnitude of the discharge. You didnt do those13
calculations?14
A No.15
Q Now, did you -- did you model -- did you16
model the parking lot?17
A As far as what, the storage capacity of the18
parking lot?19
Q Thats right. As far as the storage20
capacity?21
A No.22
Q No. So did you model the impact of -- of the23
-- maintaining -- treating the valve as open rather24
than as partially closed? Let me ask a question. Did25
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you add -- did you modeled the impact of the keeping1
the valve partially closed rather than open?2
A I -- I didnt need to. Just logic dictates that3
if you make the valve smaller, youll hold more water4
back. If you make the valve larger, or open it up5
more, more water comes out.6
Q In stormwater management, magnitude is7
everything. Did you -- did you determine what the8
magnitude of that effect would be?9
A The magnitude of closing the valve more?10
Q Thats right.11
A It would have an effect that -- if you close the12
valve down more, more water would be retained in the13
parking lot. The end result of that would be under the14
proposed conditions, you would have to increase your15
underground detention basin.16
Q How much?17
A I dont know, that wasnt my charge.18
Q Okay. I understand.19
A Okay.20
Q But you cant tell us how much?21
A No.22
(Pause)23
Q About -- you testified about -- about the24
ditch here, and -- and the need to determine the25
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drainage area of that ditch?1
A You mean an actual channelized water course --2
Q Thats right.3
A -- at the south end of the parking lot on Lot 215?4
Yes.5
Q Okay. How would one go about determining6
that drainage area?7
A You would look at topographic maps of the area, in8
addition to that, and they would have to be detailed9
enough that you could see all the subtleties of the10
topography, and the drainage areas and the drainage11
patterns.12
In addition, you would have to pick up all13
these storm drainage related utilities in the area --14
Q Okay. And --15
A -- to determine where the above ground and below16
grade water discharge or directions would be.17
Q And if one did that, one could thereby18
determine the -- determine the -- the size of the19
basin? The size of the drainage area?20
A To a given point, yes.21
Q I dont understand to a given point.22
A Well, its -- everything is to a given point. In23
this case, it would be to the terminus point that they24
analyzed, and I believe, L-2A in their -- I dont25
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remember the exhibit number. Hold on. In the1
stormwater map that they provided -- I dont remember2
which package it was in anymore unfortunately. But3
they -- in the map that they provided, I believe to4
this point, which is an issue because this water goes5
down to a natural channel as swale down here, and goes6
to an 18 inch pipe, which then is discharged to the7
Casino Brook over here.8
So technically, this area and an additional9
area up here could also be included in that drainage10
area. But, again, I wasnt asked to say do I -- do you11
want me to go back and analyze the whole thing? No.12
What I was provided with, I could not make that13
conclusion.14
Q Okay. But -- but youve told us how the15
conclusion would -- would be done.16
A Thats how you would get to the conclusion, yes.17
Q That the -- is in every direction. You would18
look at where -- where -- where the topography shows19
would run down in that direction.20
A Correct.21
Q And -- but you would have to modify that by22
looking at -- at existing stormwater facilities, which23
might change -- which might change the --24
A You wouldnt modify it, you would include it.25
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Q -- you might include or exclude areas, based1
upon the existing stormwater facilities?2
A Correct.3
Q Okay. Do you know if Mr. Dipple did that?4
A Based upon -- Ive got to -- I dont remember the5
exit -- exhibit number, but based upon the map that we6
had shown, I couldnt tell. I could not tell the7
drainage area.8
Q Okay.9
A I dont know how he did, unless he used something10
different.11
Q Now, do you have an opinion as to whether it12
is feasible to do a -- to do a -- for this project to13
obtain flood hazard area permits based upon this14
general concept, shown in P -- P-82?15
A Could you repeat the question for me?16
Q Do you have an opinion whether -- let me17
change the question. Do you have an opinion as to18
whether its feasible to -- yeah, okay. Do you have an19
opinion whether its feasible to -- to abstain -- to20
comply with DEP regulations concerning flood hazard21
area permitting for a project designed along this --22
along the lines of the concept shown on P -- P-82?23
A Based upon what Ive seen, are you -- are you24
asking me, based upon what Ive seen, do you think --25
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do I think the DEP would grant a permit?1
Q No. Im asking whether its feasible to2
design it so the DEP would grant a permit?3
A I dont know. I havent tried to design it.4
Q Okay. Do you have -- do you have an opinion5
whether its feasible to design a stormwater management6
plan or for the -- along the concept shown on P-82,7
that would comply with DEP regulations?8
A Given enough time and money, sure. Practically9
though -- from a practical standpoint, I couldnt10
venture -- I would want to venture a guess.11
MR. EISDORFER: I have no further question of12
this witness.13
MR. WOODWARD: No -- no further questions,14
Your Honor.15
THE COURT: Ms. McKenzie?16
MS. MCKENZIE: I -- I dont believe I have17
any further questions either.18
THE COURT: Okay. You can step down. Thank19
you.20
THE WITNESS: Thank you.21
THE COURT: Mr. Woodward?22
MR. WOODWARD: That concludes all of our23
witnesses, Your Honor. I have some additional exhibits24
that we wanted to offer into evidence. They're25
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official records of the town and things like that. I1
dont know whether you want to hear Ms. McKenzie first2
or have us move those in.3
I think -- do we have that list ready?4
UNIDENTIFIED SPEAKER: Yeah.5
MR. WOODWARD: I dont know what your --6
THE COURT: Have you discussed those with Mr.7
Eisdorfer? Is there any objection to those?8
MR. EISDORFER: I dont know what -- what9
they offered.10
MR. WOODWARD: Maybe I should confer with Mr.11
Eisdorfer --12
MR. EISDORFER: Why dont we confer --13
MR. WOODWARD: -- and we can do that during a14
break after Ms. McKenzie --15
THE COURT: Why dont we take a break, you16
can confer, and then well hear from Ms. McKenzie.17
MR. WOODWARD: Okay, fine. Thanks.18
(Court recess)19
MR. WOODWARD: Mr. Eisdorfer and I have20
conferred over the break, and I just want to go through21
them.22
Theres -- theres a substantial number, but23
they're virtually all minutes of meetings, resolutions,24
and you know, municipal records. So I dont know how25
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you want to handle it, but Im just going to read1
through them.2
THE COURT: Thank you.3
MR. WOODWARD: Okay. So the first is exhibit4
D-1, which is minutes of the meeting of January 13,5
1970.6
THE COURT: 1970?7
MR. WOODWARD: 1970.8
THE COURT: I thought I didnt hear you.9
MR. WOODWARD: You did. The next is --10
youll hear from me why -- the next is D-12, which is a11
resolution dated July 25, 2000.12
THE COURT: Moving ahead -- moving ahead in13
time 30 years, right?14
MR. WOODWARD: Yeah. Ordinance 2000-28.15
Next is D-21. Its Ordinance 2006-3, dated -- it16
doesnt have a date on it. Its in 2006.17
Next is 40 -- D-44. Minutes of a meeting18
dated -- of the Township Committee meeting, August of19
2008.20
Next is D-46, the resolution of the Township21
Committee, 2008-280, March 18, 2010.22
COURTROOM CLERK: What number was that? D --23
MR. WOODWARD: 46.24
COURTROOM CLERK: D-46.25
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MR. WOODWARD: Yeah.1
COURTROOM CLERK: And that was -- Im sorry?2
MR. WOODWARD: Its Resolution 2008-280,3
dated March 18, 2010.4
MR. EISDORFER: 2008.5
MR. WOODWARD: 2008, Im sorry. Im looking6
-- Im looking at the certification date. The7
resolutions date is September 9, 2008.8
THE COURT: Wait, wait, wait, D-46? You said9
before --10
MR. WOODWARD: D-46 is Resolution 2008-280,11
and I gave you an incorrect date, Your Honor. Its12
September 9, 2008. I was reading the date of the13
certification by the clerk, so --14
THE COURT: September 9, 2008?15
MR. WOODWARD: Correct. Next is minutes of16
meeting, dated September 9 --17
THE COURT: What -- what exhibit number?18
MR. WOODWARD: Im sorry, D-47. Im getting19
ahead of myself.20
THE COURT: Okay. And its21
MR. WOODWARD: D-47 minute -- minute meeting22
-- meeting minutes of September 9, 2008.23
Next, D-51, meeting minutes, September 23,24
2008.25
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Next is D-53, meeting minutes, dated October1
6, 2008.2
THE COURT: October --3
MR. WOODWARD: Sixth, 2008. Your Honor, I4
think we may have --5
THE COURT: A list?6
MR. WOODWARD: -- we may have given you a7
list.8
MR. EISDORFER: Its a revised list, Your9
Honor.10
MR. WOODWARD: In which --11
MR. EISDORFER: The highlights -- the12
highlights show the exhibits that hes running through.13
THE COURT: Can I have this one?14
MR. WOODWARD: Yeah.15
(Pause)16
MR. WOODWARD: Okay. D-53, meeting minutes17
October 6th, 2008.18
D-54, meeting minutes, October 7, 2008.19
D-56, meeting minutes, October 20, 2008.20
D-57, meeting minutes, October 21, 2008.21
D-62, meeting minutes, November 11, 2008.22
Next is D-65, which is a letter dated23
November 18, 2008 by Robert Puhak, P-U-H-A-K, Mayor.24
And this letter is the letter referring the Hekemian25
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application to the planning board. It was previously1
part of the summary judgment motion papers. So its in2
the record.3
THE COURT: D-65?4
MR. WOODWARD: Yes, Your Honor.5
MR. EISDORFER: Your Honor, the way -- we6
objected to this. So the way we resolved the objection7
is we agreed the parties will stipulate into the8
record, all of the summary judgment papers.9
THE COURT: So its in evidence?10
MR. EISDORFER: Thats right.11
MR. WOODWARD: We just want to make sure the12
record is complete.13
Next is D-69, Your Honor, which is Resolution14
2008-356, dated December 23, 2008.15
Next is D-70, Resolution 2008-359, dated16
December 23, 2008.17
Next is D-79 -- D-79.18
THE COURT: What about 70? Just that --19
MR. WOODWARD: Didnt I -- Im sorry. 70 is20
Resolution 2008-359, dated December 23, 2008.21
Next is D-79, which is a Resolution of22
Memorialization by the Board of Adjustment, Application23
C26-08.24
Next is D-91, plaintiffs response to25
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defendants interrogatories.1
And theres one final judgment, which is new,2
which we discussed with counsel. Its called parking3
generation. There was testimony about this and there4
was a small -- a part of it was offered by the5
plaintiffs. And this is D-186. We want to complete6
the record under the Rules of Evidence, and submit7
additional pages that I had dealt with.8
THE COURT: Its not on this list, right?9
MR. WOODWARD: Its -- no. Its new, its D-10
186, and its a portion of the parking generation.11
THE COURT: Any objection to this?12
MR. EISDORFER: No objection. No objection.13
THE COURT: Were there specific pages you14
want to refer to or --15
MR. WOODWARD: I refer to the pages16
specifically -- I didnt tell you -- its generally17
page one, page two, three, and I think -- well, Ill18
give you more, but those are the -- those are the three19
specific pages, pages one, two, and three, and if we20
have more, well reference them.21
And I think that Mr. -- Mr. Eisdorfer has22
indicated he has no objection to all of the exhibits23
that I just listed.24
MR. EISDORFER: I guess I misunderstood. I25
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thought you were going to put in the whole thing.1
MR. WOODWARD: You want the whole thing in?2
MR. EISDORFER: Well, this is -- everything3
thats here.4
MR. WOODWARD: Yeah, yeah, yeah. The whole5
thing. Were putting in the whole thing.6
THE COURT: Okay. Now --7
MR. WOODWARD: The judge just wanted8
reference just to --9
MR. EISDORFER: Sure. I understand.10
THE COURT: On this list that you gave me,11
some are highlighted that you didnt mention.12
MR. WOODWARD: Where theyve already been put13
in.14
THE COURT: Theyve already been put in?15
Okay.16
MR. WOODWARD: Yeah.17
THE COURT: Okay. So you can give me a18
comprehensive list at the end of whats in and19
whats --20
MR. WOODWARD: We will do that, and we will21
give you a binder that has all the exhibits that are22
here.23
THE COURT: Thank you.24
(Pause)25
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McKenzie - By The Court 44
MR. WOODWARD: Thank you, Your Honor.1
(Tape change)2
E L I Z A B E T H C. M C K E N Z I E, DEFENDANTS3
WITNESS, SWORN4
COURTROOM CLERK: Would you state and spell5
your name for the record, please?6
THE WITNESS: Elizabeth, middle initial C,7
McKenzie, M-C, capital K-E-N-Z-I-E.8
COURTROOM CLERK: Thank you. Please have a9
seat and keep your voice up.10
THE WITNESS: Keeping my voice up is usually11
not something I usually have to be asked to do.12
EXAMINATION BY THE COURT:13
Q Ms. McKenzie, rather than me, you know, query14
you, I have your report of January 4th, 2010.15
A Yes, Your Honor.16
Q Your letter opinions of March -- of February17
11, 2009, your March 30th, 2010, and I think thats all18
of your opinion thats been submitted to the Court so19
far, is that correct?20
A Yes, Your Honor, I believe that is the case.21
Q Okay.22
A And just for the record, my report is marked, at23
least as D-108 in the defendants exhibit.24
Q D-108 is the 1/4/10 report?25
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A Yes.1
Q Okay.2
A Which is the primary report that addresses the3
issue of whether a builders remedy should be awarded4
to this site. It also covers the Lehigh site, but the5
Lehigh -- Lehigh has reached a settlement with the6
Township of Cranford, and that hadnt had a fairness7
hearing yet, but it has been executed by both parties,8
is my understanding. I got confirmation about it from9
Lehigh in a letter last night.10
Q Okay. So if you wrote it, why dont you11
first, summarize the -- your primary report of January12
4th, 2010, and --13
A Certainly.14
Q And then provide the Court with an oral15
update, after youve heard the testimony, which will,16
as I understand it, be memorialized in writing --17
A Yes.18
Q -- ultimately.19
A What I would propose to do is submit to the Court20
a letter report amending and expanding upon the21
previous report with respect just to the CDA site.22
Q Okay.23
A The report covers -- was prepared for the purpose24
of addressing the two builders remedy lawsuits, since25
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dealing with the builders remedy law suit is something1
that comes before you can evaluate the rest of a2
municipalities affordable housing plan and fair share3
plan.4
But, of course, Ive touched on at least5
addressing the -- where Cranford was with it,6
affordable housing compliance, what their -- what their7
numbers had been determined by COAH to be what they had8
done in the past with respect to affordable housing9
compliance.10
And I also went through some potential11
credits to which the township either was eligible, or12
could be demonstrated to be eligible with some13
additional documentation, and talked about potential14
adjustment that the township might also be eligible15
for.16
And then went into a discussion of first the17
Lehigh site, and then the Cranford development site, in18
terms of the qualifications for a builders remedy.19
And my conclusion, with respect to the Cranford20
Development Associates site was that accept for a few21
caveats, it was my conclusion that based on the22
information that had been presented prior to January --23
to me, prior to January for 2010 when the report was24
submitted, that there -- I did not see anything that25
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rose to the level of disqualifying the site, A) from1
sort of builders remedy, and B) from the 419 units2
that had been proposed by Cranford Development3
Associates.4
And I essentially recommended that builders5
remedy with a few caveats. One was that I was6
dissatisfied with the parking count. There were issues7
also with respect to some potential off-track8
improvements, such as determining that the sewer lines9
could, in fact, handle the capacity. And -- and also10
dealing with storm -- stormwater management and11
drainage issues, I had recommended that there be a12
cooperative effort with the township.13
And, at the time, the township had asserted14
that there was flooding on the site, but there was no15
documentation that had been submitted prior to that16
time that actually confirmed that the site -- there17
were no maps that had been given to me that confirmed18
that the site was or was not in a flood plain, although19
it certainly sounded like it was, and it was just a20
question of delineating that flood plain.21
And I had specifically recommended that that22
was a DEP issue, and that -- that would have to be23
something that was dealt with by DEP, and the24
methodology approved by DEP would have to be used.25
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Since the preparation of the January 4th1
report, a lot more information came to light from the2
township, and also from Mr. Dipple, on behalf of the3
plaintiff concerning flooding and -- and also drainage4
and stormwater management on the CBA site.5
And I think that I took -- I took that6
information extremely seriously, because most of Union7
County has a flooding issue, and Cranford Township is8
no exception. Flooding is a very serious problem in9
Cranford Township.10
So I, you know, was paying close attention,11
and had told the parties that I would pay close12
attention to the information to be presented at the13
hearing regarding flooding and the ability to handle14
that, and also regarding stormwater management, because15
it became evident to me that another characteristic of16
this site, besides the fact that it had some flood17
plain on it was that the site, itself, seemed to act as18
a -- a detention basin, even the developed portions of19
the site that appeared to be outside of the flood20
plain, seemed to act as a kind of detention basin, and21
I was concerned about that.22
And I will -- I had spoken to both parties,23
and was, you know, letting them know about the24
information that I needed, and I had been quite25
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honestly not completely satisfied from the initial1
presentation by the plaintiff that they were really2
addressing stormwater management issues. I would3
become -- I had become satisfied about the flood plain4
delineation, because in fact, neither party has5
disagreed about where the floodway and the flood hazard6
area fall on the part -- on the property.7
Now, obviously, thats ultimately a DEP8
determination, and if DEP finds out something9
different, well all have to live with it, because its10
-- DEP isnt a party to this, and they havent offered11
anything yet, and theres no application before the DEP12
for the permits that would be needed.13
But the engineers for the two sides have,14
basically, concurred as to the -- the elevation of the15
flood hazard area.16
But the -- the stormwater detention issue was17
of concern to me, because of the history of flooding in18
Cranford, and the contribution that a site that might19
be developed without regard to prior stormwater20
management issues, and its existing hydraulic21
condition, the impact that that could have on22
downstream properties.23
And -- so I did indicate to the plaintiffs24
that I had not been satisfied with how the testimony25
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had gone in so far, and they submitted additional1
information and additional testimony.2
I want to say that I did -- I did not3
actually request that, I simply said I wasnt happy4
with what had been submitted so far. So Id like to5
clear that up for the record. But it was submitted,6
and it was allowed in -- in as part of the quest for7
the truth in this case, which I think is frankly8
important.9
And it may have taken us a while to get10
there, but I think we have a much better picture of11
this site and how it functions now, and how it might be12
required to function in the future when DEP takes a13
look at permit applications for the development of the14
site.15
Having said that, there were a number -- a16
lot of testimony. We had 14 days of testimony on this17
particular case. There was extensive testimony, not18
just from the engineers for both the plaintiff and the19
township, and the township had two engineers, but also20
from the planners for both sides, both of whom are well21
qualified and excellent planners, as are the engineers.22
I think the expert testimony that was23
presented has given us a pretty good picture of what --24
of what were dealing with on this site, and what the25
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issues are.1
And I want to -- I want to first preface my2
remarks, because I will -- Ill start off -- Ill take3
the suspense away. Im not recommending 419 units on4
this site. Im recommending something less than that.5
And I am modifying that, based upon the response to the6
testimony that has been offered, as well as a concern7
for some of my initial recommendations, as far as8
parking and things of that nature.9
So I am recommending a reduction in that 41910
units, probably not to a level as low as -- as Cranford11
Township would like to see it, but probably a level12
lower than the developer would like to see it, but I13
think its appropriate.14
And I want to point out before I get into the15
-- how I got to it, and -- and what the number is. I16
want to -- I want to point out that the concept of17
sound planning, which was talked about in Mr.18
Slachetkas report quite extensively, is not a19
scientific concept. It is -- it is also content20
sensitive.21
And context sensitive means it is responsive22
both to the neighborhood within where a property lives,23
and the amenities that are available, but it is also24
responsive to constitutional mandates that dictate how25
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a municipality can plan and zone.1
And I think that we need to bear in mind that2
this is Mount Laurel lawsuit. This is a builders3
remedy case, and we need to bear in mind that -- that4
ultimately what is being sought is, in fact, a remedy.5
It is -- it is remedial in nature, which means that it6
may have to go beyond what one might normally plan for7
if you were starting from scratch and building a8
municipality, all the while thinking of how you are9
going to take care of the housing needs of all the10
people that needed to live there. This is, in fact,11
backfilling, if you were, or retrofitting to try to12
accommodate those constitutional obligations, in a13
context by-in-large, has already evolved and -- and14
developed.15
I think that was the intention of the Supreme16
Court in Mount Laurel II, because it had been clear to17
the Supreme Court in Mount Laurel II, that the mandate18
from Mount Laurel I and subsequent cases to provide a19
variety and choice of housing or lease cost housing was20
not working, and there needed to be specific remedies21
assigned in specific cases.22
I would also point out, and this is something23
that I didnt make up, although actually I commented on24
it in the case, but it was something that Judge25
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Humphreys said in a decision on remand in the Sartoga1
versus West Patterson case. There -- which involves a2
site that was heavily constrained. It was a former3
quarry. It sat up at the top of a cliff that4
overlooked the City of Clifton.5
It was accessed only by a small local road,6
which wasnt able to be widened, and there were a7
number of problems with the site. And it was a site8
that was in West Patterson plan, but was being9
challenged by neighbors in the City of Clifton, and by10
the City of Clifton, itself.11
Judge Humphreys said that there are no12
perfect sites. There are not even near perfect sites13
left. If we -- if we waited for perfect or near14
perfect sites for the development of affordable15
housing, we would not have affordable housing.16
And I think its certain axiomatic, and the17
state is intensively developed as New Jersey is, that18
you have -- that -- the perfect and near perfect sites19
were already developed along time ago with other uses.20
So we are dealing all the time, when we deal with these21
Mount Laurel cases with sites that, you know, probably22
dont qualify as perfect sites, but they qualify as23
suitable sites under very specific criteria that are24
set forth, that have been set forth in prior Court25
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decisions, based on the testimony of court-appointed1
masters in those decisions, and that correspond to2
standards that are set forth in COAHs rule.3
And I would say, by the way, Mr. Kinseys --4
Dr. Kinseys testimony talked in quite extensive detail5
about those specific criteria and they were addressed6
in his certifications, and I commented on them in my7
January 4th, 2010 report, which is Exhibit D-108.8
Having said that, I think that there are9
still planning issues that warrant -- warrant10
consideration in taking a harder look at this site11
during the trial. I had indicated that I had been12
concerned about the parking in my initial report, and I13
had recommended that the parking could perhaps be a14
little bit less than the residential site improvement15
standards would require, but not much.16
I recommended a standard of 1.85 parking17
spaces per dwelling unit on site, and -- and the basis18
for that recommendation was the concern that you could19
very well have adults -- two adults living in an20
apartment and they could very well own two cars,21
because this is not a site that is close to available22
public transit, certainly not close to the rail23
station. Eventually, you may be able to get some bus24
service here, because when you have a concentration of25
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people, sometimes transit companies rearrange their1
line.2
So its not -- its not a -- thats not dead3
issue, but you're not going to get a train station at4
this site. And I felt that there would be a likelihood5
that even if people chose to take advantage of a jitney6
service and didnt drive their cars all the time, that7
they might still own them in this context, and I was8
concerned about that.9
One issue that -- the plaintiff -- the10
plaintiffs offered the possibility of constructing11
additional spaces on top of the deck later on. It came12
out through questioning that -- from the -- from the13
townships attorneys that -- that to do that would14
probably disable the full use of the parking deck for a15
period of up, I think it was 15 or 16 days. Thats a16
long time in this context.17
I had also noted in my report that one thing,18
that, you know, was somewhat mitigating on this site,19
is the fact that you have in Birchwood Avenue, the20
ability to park quite a number of cars along the side21
of the road.22
However, based upon the additional23
information that came in about the extent of the24
floodway and flood fringe, I dont believe that25
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parking, and you plan for that parking in your1
stormwater management, in your landscaping, in your2
layout, but perhaps you graph it over, and not actually3
build those spaces if they're not needed, so you can4
retain more green space on the site.5
And thats -- I think that that, you know,6
would be acceptable for some of the at-grade parking,7
if the developer chose to do that. I also think its a8
site plan issue. Its not something that we have to9
decide today. Its something that can be looked at in10
more detail when its time to present the site plan,11
but I think that option is available.12
So -- but I think the 1.85 parking spaces per13
dwelling unit, which is a little less than the14
residential site improvement standards, should be built15
in in the beginning.16
And the other thing I think is that17
compliance with the RSIS, or close to the RSIS, and in18
this case, I did recommend a slight modification given19
the nature of the development. But -- but compliance20
with the RSIS is, in my opinion, a threshold21
approvability issue, because thats one of the agencies22
with whom compliance is required in order to23
demonstrate suit -- the suitability of a site.24
Now, the RSIS does allow for alternate25
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parking standards in certain situations. So Ive taken1
that into consideration, which is why Im recommending2
that it be 1.85 spaces per unit on average.3
But I -- but I am -- Im not comfortable4
deferring construction of the parking deck spaces until5
later. I think they should be done at the outset.6
Thats issue number one. That issue was discussed at7
length during the hearing, and -- and really just8
reinforced my initial conclusions with respect to that.9
In terms of traffic, there was a lot of10
discussion about the amount of traffic that would be11
generated by this use. Traffic is -- its an issue and12
a non-issue in this context. Obviously, theres going13
to be more traffic generated by this development, and14
sometimes a lot of traffic generated by this15
development.16
I can understand that people who live in the17
surrounding area may not believe that they would like18
that much traffic on the street, but the street is an19
appropriate street that can accommodate traffic, and20
the testimony of Elizabeth Dolan, I think was on point21
about this. It can accommodate the traffic. There are22
going to be some times where theyll be a short backup23
related to the activity at the school, but in general,24
I -- it sounded, from the testimony to me, as if there25
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was not going to be a major infrastructural issue as1
far as addressing the traffic generated from this site.2
Now, obviously, during a situation where the3
road is impassible during flooding, people are going to4
have to leave this site, and go to the east, rather5
than the west, because that road does flood under6
existing circumstances. Thats a problem for everybody7
that feeds to that end of Birchwood. Its a problem8
for the people in the office buildings located at that9
end of Birchwood, and it is a concern. But because10
there is a way to pass through what is really the upper11
end of the flood fringe area, and go out the other12
side, I felt that this was not a site where you would13
be completely blocking people in.14
The sustainability issue that was raised by15
Stan Slachetka, and he testified quite eloquent on the16
whole notion of sustainability. And I agree thats an17
important planning concept that is really emerging as18
-- as a way to plan and design communities. And it is19
an important planning issue, but its not a site20
suitability criterion. However, its an issue for the21
town in its future planning to address the fact that22
this site is recommended to have a builders remedy.23
They may, in fact, want to work with local24
transit companies to make sure that theres a bus stop25
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created near here, thats something that is worth1
considering. And also there may be a desirability of2
creating some additional retail opportunities in the3
area, not just for the residents of this site, but for4
residents of other sites and for people who work in the5
office buildings.6
Im not sure that all of those office7
buildings are going to remain actively used for the8
extended future, and they may, in and of themselves,9
create opportunities for other kinds of mixed use or10
small retain development. That is up to the township.11
Im not telling them what they have to do. Im simply12
suggesting that sustainability is revolutionary, and13
you can create a more sustainable environment for a14
development by other land use planning decisions that15
accompany it. So Im not discounting it at all.16
There is also the issue of sustainability in17
terms of the internal development itself, and18
certainly, it would make sense as a site plan19
consideration to look at techniques designed to reduce20
energy consumption, make the buildings more efficient21
to live in, and -- and -- and you know, work with22
sustainability in terms of the types of materials used23
in construction and things of that nature.24
All of that, I think, would be welcomed by25
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Cranford. I cant speak for them, but I know that1
they're a town that is moving in that direction of2
being conscious of that kind of thing, and I certainly3
think its appropriate, and I support it.4
In terms of flooding, the flooding issue, I5
ended up becoming satisfied through the testimony that,6
first of all, we now have a pretty good idea. At least7
theres no disagreement among the professionals that8
testified, as to where the flood hazard area falls, and9
where the floodway falls on the site.10
And the developer did, in fact, when they11
realized that there -- there was a flood plain on this12
site, and it had to be delineated in a certain way, and13
they went forward and did that, even though it was late14
in the game, it -- they did redesign the site so that15
they could accommodate development within the flood16
fringe area. You cant develop in the floodway. And17
the flood storage that would be required to create a18
zero net-fill -- attain a zero net-fill standard, which19
is the standard to be achieved, if you're going to20
develop within a floodway.21
Now, whatever this Court does, DEP is still22
going to have to review permit applications. And it is23
conceivable that DEP may require additional measures.24
They may require changes to the plan.25
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So my feeling is that my recommendation to1
the Court, and probably whatever the Court ends up2
deciding, will still have to be subject to whatever DEP3
does with permits and standards for development. And4
that if that modifies -- the number modifies the5
develop -- the feasibility of a particular number,6
thats too bad. Thats the way it breaks.7
I think that the plaintiff has known all8
along that they -- he would have to deal with DEP in9
the development of this site, and -- and I think that10
that is certainly appropriate.11
But it -- it is clear to me that the amount12
of flood storage that would be required to deal with13
the development that is proposed within the flood14
hazard area, that that flood storage could be provided15
within the context of this development. And I dont16
think that was a huge dispute about that.17
What I think was disputed by the experts for18
the township, who were extremely eloquent and also very19
helpful in what they pointed out, and in the pressure20
that they brought to bear on the plaintiff to produce21
more evidence, I think that what was clear is that22
right now, theres -- theres nothing that even23
remotely looks like a permit application, or even a24
site plan application, that could go to DEP and be25
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approved.1
But thats not the standard that needs to be2
met for obtaining a builders remedy. Thats a3
standard that would have to be met before you can build4
a builders remedy. And what is important here is the5
likelihood that the site can obtain the approvals and6
permits that it would need in order to develop.7
And, again, its the likelihood that that8
site can obtain them whether this particular9
configuration ends up getting those permits, I cant10
say. And I wouldnt -- I would expect that there would11
be changes in order to accommodate the DEP regulation.12
In terms of detention, I had believed in the13
beginning that this site certainly had a drainage14
function, and what presented a potential opportunity to15
-- to -- to have the township and the developer work16
cooperatively to try to achieve some better stormwater17
management, which might then have a -- a remedial18
impact on some of the flooding downstream, or at least,19
not make it worse, which is really the standard that20
has to be met.21
Id, obviously, prefer if we could somehow22
make it better, but at least the do no harm, and not23
make it worse standard, is the one that -- that needs24
to be met. DEP will be reviewing the stormwater25
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management plan for this site, but the -- initially,1
the developer had not provided enough information for2
me to be satisfied that with this detention function,3
that the site seems to produce, and this was something4
that Mr. Marsden really brought to the ford, not only5
with the photographs that were shown by the township as6
exhibits, but also in his testimony, that there --7
there is a kind of detention function that goes on on8
this site.9
And as a result, the plaintiff had to step up10
to the plate and do calculations, which would11
demonstrate that, in fact, you could accommodate12
stormwater detention on this site, initially, the13
premise had been that there would not be any stormwater14
detention required, because they werent increasing15
impervious coverage.16
But it was through the townships experts17
that it became very evidence that there are drainage18
structures on the site. The site still serves that19
function, because of the way it is designed. There is20
an existing hydraulic condition on this site. The DEP21
will have to -- will require the developer to take into22
account in designing the stormwater management system,23
and I think its quite important that the existing24
hydraulic character of the site, not be undermined in25
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the development of the site.1
And if that has to be a condition thats out2
there in the -- in whatever the Court approves, thats3
fine. I believe it will be something the DEP will look4
for.5
It -- it was clear from Mr. Dipples6
testimony that there were a few calculation errors and7
assumptions that were not correct, and that was brought8
out in the testimony of both sides, but I am convinced,9
based on, sort of order of magnitude, that you could10
add even more stormwater detention on this site,11
without changing the design or layout of the site, but12
simply by expanding the sizes and -- and how water gets13
into the chambers -- the detention chambers -- the14
underground detention chambers. And I believe this15
site can be designed to address existing hydraulic16
conditions and meet DEP requirements.17
I would also add that I think it would be18
important not to exceed existing impervious surface19
coverage. I had recommended that originally, and I20
would continue with the that recommendation, that the21
impervious surface coverage thats on this site now,22
should not be exceeded.23
I would point out that by removing the24
buildings and parking areas and driveways on 23525
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Birchwood that, in fact, you will be taking a big chunk1
of construction out of the floodway, which may also2
help to provide some flood mitigation, but that was,3
obviously, part of the calculation of existing4
impervious coverage. So its just really a question of5
relocating some of that impervious coverage over onto6
the vicinity of 215 Birchwood.7
Finally -- and the issue that -- that came --8
so, the bottom line on the detention and the flooding9
is that I have become comfortable that this site can be10
developed, perhaps even with as many as 419 units, and11
still accommodate the DEP requirements, although more12
work needs to be done, and DEP, ultimately, will have13
the say so.14
What is causing me to modify the15
recommendation and go below the 419 units has to do16
with the closer examination that was taken, and it was17
in part in response to Mr. Slachetkas testimony, but18
also in response to other exhibits and things that came19
out from all of the experts during the course of the20
hearing, that -- that there were some bulk issues that21
I felt ought to be considered in designing this22
building.23
It has -- these buildings, designing this24
site. It has the -- the applicant had, or the25
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plaintiff had adhered to an 18 foot front yard setback.1
I think thats too little. I think it should be pulled2
back -- I mean, it would be great if it could be pulled3
back, you know, 75 or 100 feet, but were not going to4
achieve a reasonable builders remedy in doing that.5
So that not -- thats not a standard that would --6
would normally be fair to apply in a builder remedys7
site.8
But I would say that a minimum 25 foot front9
yard setback, an average of 30 foot front yard setback10
would be reasonable, and would still allow significant11
development of this site, recognizing that the back12
part of it is pretty much constrained and much of the13
-- much of the site is constrained. Probably two-14
thirds of it is constrained from development.15
I also believe that -- and its difficult --16
in looking at different iterations of the plan, its17
difficult to tell exactly how much room is contemplated18
between the parking spaces along the eastern lot line,19
and that eastern lot line. But its my recommendation20
that you should have at least ten feet for additional21
planting on the plaintiff side, because even though22
there is vegetation on the nursing home property, some23
of that vegetation is deciduous.24
There are some evergreens, but the evergreens25
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have grown up, and there is space underneath them, and1
it seems to me this is a good time, if you're going to2
develop this site, to start some low evergreen3
plantings that can grow up over time. Make certain4
that the older evergreens die off, the -- there are5
younger ones coming along. And try to -- and they6
should not be white pines, which end up having about a,7
you know, 30 feet of clearance underneath when they're8
mature. They should be some other sort of evergreen9
that will actually achieve a good screening of at least10
parking lot lighting.11
You have room to do that to the south, but12
there is no room to do that right now on the east side.13
So I think that we need ten feet there as a minimum,14
obviously. Would it be ideal to have more? Yes. But15
in this context, in view of the -- the remedial nature16
of a builders remedy, I think ten feet is a reasonable17
standard to impose.18
I also think that as to the height of the two19
buildings, Building A should have a story knocked off20
it. The maximum height of Building A, as shown on the21
section, based on the latest plan, and I forget the22
exhibit number, somebody can supply that later, but is23
67 feet, six inches.24
The maximum height of Building B, as shown on25
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appropriate height. And I dont think it needs to go1
up there.2
So I would knock a floor off Building A. And3
Building B could be pretty much as it is designed,4
although I would say that a concern that I have is that5
when we start to squeeze Building B, and if I could6
just go to the map for a moment, Your Honor. Im just7
looking now for purposes of --8
MR. WOODWARD: P-82?9
THE WITNESS: This is P-82? Okay. Just --10
Im just looking just for -- not because its about11
this, but just to look at it.12
When you start to add ten feet along the13
eastern lot line, and you start to add some additional14
front yard setback, you're going to end up -- if you15
were to take this building and simply shift it, you're16
going to end up bumping up against some areas where I17
think you're not supposed to build.18
So my feeling is that theres a good19
probability that you will lose the back part of this20
building, and I estimated that there would be a loss of21
at least ten units per floor, or another 40 units,22
because there are four residential floors.23
So as a -- based upon that theres -- theres24
also, let me just say in working with this plan, and25
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And that as far as the front yard setback, we1
hold to a minimum of 25 feet with an average of 302
feet, which means that I think still the setback issue3
makes sense.4
So -- and then you adhere to the buffer on5
the -- on the side, the -- landscape planting area.6
And I would -- I would venture to say, Im not limiting7
planting recommendations just to that area, but thats8
a site plan issue. Im just saying there needs to be9
room for it, and thats going to affect the number of10
units, in my opinion.11
I think that the combination of all of these12
reduces as to about 360 units, which I think is a13
reasonable maximum. 360 units would yield 5414
affordable units. I think 54 affordable units, thats15
at a 15 percent set aside, is a substantial16
contribution, for the reasons that I articulated in my17
report.18
I would also point out that given the fact19
that this is really a -- a second-round litigation,20
although the third-round number is being addressed, the21
-- it -- COAH has a provision in its rules, in addition22
to what they have said in their October 30th, 200823
letter -- explanatory letter, they have -- they also24
have provisions in their rules, which would exempt all25
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of the market units, and all of the affordable units in1
this development from developing any additional growth2
share obligation.3
I dont think the township should be burdened4
by the fact that, I think that the 15 percent is a5
reasonable set aside in any increase in its third-6
round COAH obligation. That was the position I took7
with respect to Lehigh. Its the position Im taking8
with respect to CDA.9
The density that you end up with, and I have10
to say that my position about density is that its a11
question of function, and that if you can make a site12
work -- and by the way, I forgot -- I forgot one point.13
I do agree that I think some of the turning radii are14
likely to be tight, that its a site-planning issue,15
but I would expect that the applicant would make this16
easily navigable by emergency vehicles.17
Because emergency vehicles, during a flood18
situation, is going to have to come in from that19
eastern side, and come around the building, and they20
better be able to do that with ease, or well have a21
problem. And I think thats a reasonable concern on22
the part of the township, and one that, you know,23
should -- we should make sure during site plan24
approval, gets properly addressed.25
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I think that, going back to the density1
issue, this is a very high density. It works out --2
Ill get a quick calculation. It works out on a net3
basis, because you