Transcript 9.28.10 Dipple Marsden

7/31/2019 Transcript 9.28.10 Dipple Marsden

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SUPERIOR COURT OF NEW JERSEYLAW DIVISIONCIVIL PARTUNION COUNTY, NEW JERSEYDOCKET NO.: UNN-L-140-08

A.D. NO.: ____________

CRANFORD DEVELOPMENT )ASSOCIATES )

)Plaintiff ) TRANSCRIPT

)vs. ) OF

)TOWNSHIP OF CRANFORD ) TRIAL

)Defendant )

Place: Union County CourthouseTwo Broad StreetElizabeth, New Jersey 07207

Date: September 28, 2010A.M. Session

BEFORE:

THE HONORABLE LISA F. CHRYSTAL, J.S.C.

TRANSCRIPT ORDERED BY:

CARL R. WOODWARD, ESQ.(Carella, Byrne, Bain,Gilfillan, Cecchi, Stewart & Olstein)

APPEARANCES:

STEPHEN M. EISDORFER, ESQ. (Hill, Wallack, LLP)Attorney for the Plaintiff

CARL R. WOODWARD, ESQ. (Carella, Byrne, Bain,Attorney for the Defendant Gilfillan, Cecchi,

Stewart & Olstein)

REGINA CALDWELL

UTOMATED TRANSCRIPTION SERVICESP.O. Box 1582

Laurel Springs, New Jersey 08081(856) 784-4276

SOUND RECORDEDOperator: Smishkewych


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2

I N D E X

September 28, 2010 - A.M. Session

DIRECT CROSS REDIRECT RECROSS

PLAINTIFFS WITNESS:

Mr. Dipple 3 24 30

DEFENSE WITNESS:

Mr. Marsden 32 50 66 67(Eisdorfer) (Eisdorfer)

63(McKenzie)

EXHIBITS IDENTIFIED EVIDENCE

D-159 Control Point Survey 18

D-162 3/31/10 Plans 14

D-180 Mr. Marsdens Report - 9/16/10 33

D-184 Mr. Dipples Letter - 9/2/10 15


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Mr. Dipple - Cross 3

THE COURT: Welcome back, everyone.1

MR. WOODWARD: Good morning, Your Honor.2

THE COURT: You can resume the stand and3

youre still under oath. Were on the record?4

COURT PERSONNEL: Yes, Your Honor.5

THE COURT: Okay.6

MR. WOODWARD: Thank you, Your Honor.7

MICHAEL DIPPLE, PLAINTIFFS WITNESS, PREVIOUSLY SWORN8

CROSS-EXAMINATION BY MR. WOODWARD:9

Q. Mr. Dipple, Im going to show you P-63A,10

which is your site analysis dated July 30, 2010.11

Youve seen that before, correct?12

A. I have, yes.13

Q. All right. I just want to revisit the issue14

of fire trucks for a minute. If a fire truck, during a15

flooded stay -- during a flood, has to come into this16

property, would it come in on the easterly side17

driveway and circle through? If Birchwood Avenue was18

flooded, based on your knowledge of Birchwood Avenue?19

A. Yes. I suppose if the flood was extreme enough to20

pass the -- at the same time there was a fire, the21

flood was high enough to surpass the western most22

driveway, then yeah, they would enter the eastern23

driveway.24

Q. Now, is there any ability for a fire truck,25


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assuming you couldnt get out the westerly driveway, if1

it came in the easterly driveway, to turn around, based2

on this plan?3

A. No, I dont think it could -- well, it may be able4

to back up underneath Building A, potentially. But,5

again, the floodwaters are only for a period of hours.6

So, in some cases the extreme floods may only be there7

for a period of hours, so.8

Q. So, a fire truck could be stuck there for a9

period of hours?10

A. If --11

Q. Without being able to get out or turn around?12

A. If a fire coincided with a hundred year flood13

event, I suppose that he would have to wait a couple14

hours to turn his truck around.15

Q. Well, one other thing. I mean if a fire16

truck had to come on to this site during a major flood17

event, and came in on the easterly sideline and is up18

here in the -- fighting a fire in Building A or19

Building B, and Birchwood Avenue is flooded, how would20

the other people, the residents, get out? Could the21

people from Building A get out?22

A. Well, Im --23

Q. Drive their cars out, I mean.24

A. From Building A?25


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Q. Yeah.1

A. If the fire truck was blocking the exit, would2

they remove their cars, I dont know. I dont know3

where the truck would be. The road is 24 feet wide and4

thats passable by two vehicles in either direction.5

So, if the truck was on the access road, yes, they6

could drive right past it. A standard truck is nine,7

ten feet wide and I believe we have minimum, per8

Cranford standards, of 24 feet wide aisles, so.9

Q. Now, with respect to the photo you were shown10

yesterday, D-172, --11

A. Yes.12

Q. -- which is a photograph of the parking lot13

taken by Mr. Marsden.14

A. Yes.15

Q. Do you recall that?16

A. I do.17

Q. Okay. Now, what was the height above the18

parking lot that that photograph was taken?19

A. What was the height above the parking --20

Q. Yeah. I mean it was taken at eyelevel,21

correct?22

A. Okay, yeah. Yeah. Sorry.23

Q. About five feet?24

A. I would say, yeah, about five feet, Id say.25


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Q. Yes. And the distance to the back of the1

parking lot is about four or 500 feet, isnt it?2

A. Potentially, yeah.3

Q. So, we have a very shallow angle trying to4

determine whether theres any water in the back?5

A. Yeah. It looks like theres not. Thats what Im6

saying.7

Q. But you really cant tell, can you, from that8

angle?9

A. Thats the -- the summary we made, from looking at10

that photograph, was that theres flooding in the front11

and not in the back.12

Q. You werent there at the site when this13

photograph was taken, were you, sir?14

A. No.15

Q. In fact, youve never been on the site with a16

major -- with a significant rainfall like this, have17

you?18

A. I dont know how significant that rainfall is, but19

I have been on the site on rainfall events, yes.20

Q. Well, where this parking lot was this21

flooded?22

A. Mr. Woodward, the pipe was clogged --23

Q. Can you answer my question, sir? Yes or no?24

A. I dont know. I asked -- I answered your25


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question.1

Q. Now, you testified yesterday, as I recollect,2

that the storm water system design that you were coming3

up with -- Im showing you P-91 for identification.4

A. Yes.5

Q. Now, this kind of storm water design and the6

analysis that went into that was typical of what you do7

for clients during your due diligence, correct?8

A. Yes, something like that.9

Q. Well, did you say that or didnt you?10

A. I did say that. That is what we -- this kind of11

analysis is what we do for due diligence. In fact, Im12

doing it right now on another project.13

Q. All right. You did your due diligence in14

this -- on this project back in 2008, didnt you?15

A. The original site investigation report was done in16

2008, yes.17

Q. Well, that was -- there was a design put18

together at that point, wasnt there?19

A. No. There was a sketch, there was a site sketch20

by Lasar (phonetic), the architect. But the due21

diligence report doesnt typically include a storm22

water management design.23

Q. So, what you did was not due diligence back24

in 2008?25


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A. You can call it -- I dont know what term youre1

using. Its called site investigation report and its2

-- it -- the scope of the site investigation report was3

given to my client and he signed off on it. And whats4

included in the report is what he asked me to do.5

Q. But you used the term yesterday due6

diligence. Did you consider that to be due diligence7

by a poten -- by a prospective buyer of a piece of8

property?9

A. It is a form of due diligence, I would agree. You10

know, I dont have the Websters definition of due11

diligence in front of me, but its a -- the report -- I12

may have said that, but the report is site13

investigation report. That is what we prepared.14

Q. So, what you did in 2008 wasnt due15

diligence?16

A. Sir, I dont agree with that, no. I dont agree17

with that assessment. We use the term due diligence as18

a means of investigation into issues and we highlight19

them. If you want to call it due diligence, you can.20

If you dont, if you want to show me that I have the21

definition wrong, please do so.22

Q. Well, you, in that site investigation report,23

didnt do any flood hazard analysis, did you?24

A. No, we did not.25


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Q. You didnt do any storm water analysis, did1

you?2

A. No, I believe we commented on storm water, though.3

There is some -- I would say no. I dont have the4

report in front of me. Could I be provided with that5

report?6

Q. Well, what do you remember?7

A. I would like to see the report, if I can answer8

questions in an exhibit correct.9

Q. Well, okay. Well take a minute and get your10

report. Hold on.11

A. Okay.12

Q. Im going to show you whats been marked for13

identification as a report dated D -- or document D-43,14

Site Investigation Report, dated May 21, 2008. Im15

going to show it to you. Have you ever seen that16

before?17

A. I have, yes.18

Q. Is this the report you prepared?19

A. Yes.20

Q. Okay. You said you wanted to review it.21

Please take your time and review it.22

A. Yes, theres a section, Section 6, called Storm23

Water Management, where we discuss the storm water24

management rule and how it would apply to this project,25


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and we provide a summary of that and some1

recommendations.2

Q. And your recommendation at this point was3

just to limit it to the impervious surface to that4

which currently exists, correct?5

A. Thats correct.6

Q. So, you didnt take into account the parking7

lot behind the building at 215 Birchwood, did you?8

A. No. I dont believe we had a survey of the9

parking lot at this point. So, I dont think I10

couldve done that.11

Q. Now, you said yesterday, as I recollect, that12

your August 19th report -- withdraw the question. Now,13

I think you have up there P-87, which is your report of14

August 19. Here we go, P-87.15

A. Yes.16

Q. Now, I think you said that this is what17

constituted the type of due diligence you do nowadays,18

correct?19

A. I -- its a conceptual storm water management20

analysis. If I used the term due diligence, then so be21

it. I -- this is what it is. Its a conceptual storm22

water analysis.23

Q. But you were told by Mr. Marsden about the24

storm drainage issue with respect to that parking lot25


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back in 2009, werent you? When you met with him?1

A. Mr. Marsden pointed out depressions throughout the2

site, which we incorporated into the design. The3

conceptual storm water management analysis, I should4

say, not the design. And he pointed out the valves and5

rendered an opinion on the valves at that point, yes.6

Q. And the valves were part of a storm water7

detention system that involved that parking lot, isnt8

that what he told you?9

A. Thats what he told me.10

Q. So, in 2009, I think you said July of 2009,11

you knew at least that the township engineer was12

telling you this was an area that needed to be studied.13

But you didnt study that until August of 2010, did14

you?15

A. I was not asked to study it, no.16

Q. Now, Mr. Creelman submitted a report, back in17

October of 2009, in which he told you that there was a18

flood hazard problem on this site, didnt he?19

MR. EISDORFER: Your Honor, this question has20

been asked and answered previously.21

THE COURT: Its cross-examination, so Ill22

allow it.23

CONTINUED BY MR. WOODWARD:24

Q. Did you hear the question, sir?25


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A. Can you just repeat it? Im sorry, I --1

Q. Sure. Mr. Creelman submitted a report, in2

October of 2009, in which he said that there was a3

flood hazard area problem on this site, correct?4

A. I dont have the report in front of me, but the5

issue is what methodology needs to be used in order to6

determine the flood hazard area elevation. Where we7

held the position that number -- that method three8

could be used, he told us that method six needed to be9

used. In the end it was method six, by the DEP10

criteria, that was needed to determine the flood hazard11

area elevation. So, it was a question of methodology.12

Q. Well, didnt you, in your October 29, 200913

report, P-37, state, and I quote, Therefore, it is our14

professional opinion that a flood hazard area permit15

does not apply to the proposed development?16

A. Yes.17

Q. That was your statement on October --18

A. Yes.19

Q. -- 29, 2009, correct?20

A. Thats correct. Because I was using method three21

and if you can use method three, you do not need a22

flood hazard area permit. Thats what I thought at the23

time.24

Q. And you were mistaken, werent you?25


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A. I was mistaken and method six was the correct1

method.2

Q. In fact, in February of 2010, you wrote a3

letter concurring with Mr. Creelmans analysis that4

method six had to be used, correct?5

A. I believe I testified to this. Yes, Mr. -- weve6

agreed that, in written form and in testimony, that Mr.7

Creelmans assessment of method six being the correct8

method is correct, yes.9

Q. And in that you also said however, that10

wouldnt change the site design, isnt that correct?11

A. Wouldnt change the site design?12

Q. Yeah.13

A. I dont know. Is that in my report? I dont have14

the report in front of me. Did I say it wouldnt15

change the site design, I dont recall that.16

Q. In March 31, 2010, March 31, you submitted a17

new plan, correct?18

A. Yes, there was new plans prepared by Lasar Group,19

you know, with our input, thats correct.20

Q. And that plan recognized that there was a21

major change in the site design, correct?22

A. The Building A was reoriented to stay out of the23

floodway, thats correct.24

Q. And showing you whats been marked as D-16225


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for identification -- here, you can take a look at it1

up close -- thats the March 31 plan that was2

submitted, correct?3

A. Thats correct.4

THE COURT: D, what is it?5

MR. WOODWARD: D-162, Your Honor.6

THE COURT: Thank you.7


Q. And in July 30, its been marked as P-63A,9

still another plan was submitted, correct?10

A. I believe another -- I guess another plan was11

submitted. I think it was a correction to the parking.12

I dont recall, but that looks the same. But perhaps I13

could see the two together and I could --14

Q. Well, I mean the driveways were changed,15

werent they?16

A. Yes, some of the parking. As I just mentioned, it17

was the parking that was changed. This doesnt include18

parking under Building A, this one does. So, when you19

take the parking out you need less surface stalls. I20

believe this one was in error and this one is correct.21

Q. So, the one, P-1 -- D-162, the March 31,22

2010, was in error, correct?23

A. Yes. I believe the Lasar Group forgot to add the24

parking under the podium -- the podium parking, excuse25


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me, in Building A.1

Q. And by the way, the reason that Building A2

was moved, in your March 31 plan, was because after you3

had done the flood hazard study using method six, you4

found out that almost the entire building was in the5

floodway, correct?6

A. Thats correct, yes.7

Q. Im going to show you what was marked as D-8

25C in evidence, ask you if youve seen this picture9

before?10

A. I have, yes. I believe so, yes.11

Q. And that picture is of Birchwood Avenue in a12

flooded condition, correct?13

A. Thats correct, yes.14

Q. Look at the right-hand side, isnt there a15

fire truck in the parking lot of the building across16

the street?17

A. Yes, there is.18

Q. And you dont see the fire truck driving down19

the center of Birchwood when its flooded, do you?20

A. No.21

Q. Thank you. Im going to show you whats been22

marked as D-184 for identification. Its a letter23

dated September 2, 2010.24

A. Yes.25


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THE COURT: I dont have it.1

MR. WOODWARD: I think you should.2

THE COURT: D-184?3

MR. WOODWARD: Yeah. Its September 2, 2010.4

If you want, Ill give you this extra copy.5

THE COURT: Okay, maybe I dont. Did you6

hand it to me?7

MR. WOODWARD: I think I --8

THE COURT: Because its not in the binder.9

UNIDENTIFIED SPEAKER: Yeah, it was handed10

out yesterday, Your Honor.11

MR. WOODWARD: I think I handed them out12

yesterday.13

THE COURT: Oh.14

MR. WOODWARD: It was late. Its that late15

report.16

THE COURT: Okay.17


Q. Now, this is a documentation or a letter that19

you wrote on September 2nd, 2010 to Mr. Eisdorfer,20

correct?21

A. Yes.22

Q. And this was provided in response to a letter23

from me, dated August 26th, with -- regarding24

supporting data for your report of August 19th,25


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correct?1

A. Yes.2

Q. Okay. Now, lets just take a look at the3

items that youve listed there. Item number one, you4

made certain assumptions about drainage areas, existing5

drainage area three and drainage area two, correct?6

A. Yes.7

Q. And you did that because you didnt have8

sufficient time to work it all out, correct?9

A. Yeah. I think, you know, wed probably break that10

area up as I testified yesterday and yeah, the time11

constraint, and I also think its pointless, but yes.12

Q. Now, next, on item three, you say youve not13

prepared a full comparison of time versus flow for14

storm water runoff from the property. Do you see that?15

A. Yes, I do.16

Q. And you didnt think that was appropriate at17

this time so that we would know what the time versus18

flow analysis would be?19

A. Yeah, I think theres a lot more that goes into it20

than a conceptual design to make that determination.21

Theres real pipes, theres real grades, theres real22

channels, potentially, and yeah, thats a pretty big23

analysis. And I -- right, I didnt -- I showed the24

reductions and I felt that was sufficient.25


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Q. You felt that was sufficient, but if1

someones going to analyze it, they dont have the2

ability to analyze it thoroughly the way if -- as if it3

would be if it had been properly prepared, correct?4

A. In order to prepare that analysis you would need5

full site plan design and that -- theres no time for6

that.7

Q. Now, item four, pipe invert and size8

information for the predevelopment conditions were9

taken from the survey by Control Point. Just so I want10

to make sure that we have everything tied together, the11

survey by Control Point is this document, D-159,12

correct?13

A. Yes.14

Q. Thats the survey that you based this15

analysis on?16

A. That is.17

Q. And then you also took some documentation18

prepared by Mr. Marsden of certain elevations and19

compared them and certain sizes and compared them to20

what was on that survey, correct?21

A. Thats correct, yeah.22

Q. And if there was a dispute, if there was a23

disagreement in the numbers, you accepted Mr. Marsdens24

numbers, correct?25


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A. I believe so, yes. Yes. Yeah, and I go on to say1

we confirmed it.2

Q. Now, you also say, in item five, you talk3

about pond reports, but at the very end you include a4

statement, the storm sewer system shown in the5

information provided is conceptual. Therefore, no6

storm sewer calculations were made. Correct?7

A. Yes, yes.8

Q. So, we dont know whether numerically these9

-- the system works properly, do we?10

A. The storm sewer system?11

Q. Yeah.12

A. No, I wasnt asked to do a storm sewer design. I13

mean its -- it was a detention basin conceptual -- a14

detention basin analysis. The storm sewers just showed15

the direction which they would discharge toward the16

ditch. There was no --17

Q. Okay. Now -- oh, that reminds me. One other18

thing, with respect to your comments regarding the plan19

of July 30, 2010, I think you were testifying about20

this. This is P-63A. You were talking about how --21

maybe this is the wrong one. Excuse me. Withdrawn.22

P-90.23

A. Yes.24

Q. P-90 you testified about yesterday as showing25


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the proposed existing -- excuse me, proposed drainage1

area map, correct?2

A. Yes. Yes, correct.3

Q. All right. And you were asked about, by Mr.4

Eisdorfer, about the areas that are within these5

indentations in Building B. Do you see that?6

A. Yeah, I do.7

Q. Okay. Now, you said that a way of getting8

this water out of here --9

A. Yes.10

Q. -- would be to pipe it under the road,11

correct?12

A. If it were to be designed that way. That wasnt13

part of the detention system, yes. But this is a14

conceptual --15

Q. And -- but if you were to do that, those16

pipes would have to run underneath the road and out17

into the wetlands area, correct?18

A. Yeah, they would probably discharge at the base of19

the wall, yes.20

Q. Yeah. And youd need a DEP permit for that?21

A. For a discharge to the wetlands, I think within22

the transition area you may, yeah.23

Q. Oh. The -- this is -- Im showing you P-9124

again, the storm detention system.25


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A. Yes.1

Q. What is the size of them again?2

A. I believe, --3

Q. I think you said --4

A. -- if my memory serves me right, its 35,000 cubic5

feet in total. So, divide that roughly by three, so6

theyre maybe 12,000 each. I think one of thems shown7

a little smaller, but, you know, roughly.8

Q. And dimension wise the -- theyre pretty9

shallow, like maybe 30 inches high I think you said?10

A. I think so. Just thats what we used as an11

initial conceptual takeout, it was, you know, 3012

inches.13

Q. Two and a half feet?14

A. Yes.15

Q. All right, and their dimension?16

A. Oh. I think I said 140, maybe, by 40 on one of17

them. The one on the right I think was the one I gave18

the dimensions. I mean I have a scale here, I could19

check, but --20

Q. What would be the elevation at which would be21

the bottom of these tanks?22

A. Id have to look at my analysis. One second.23

Q. Could I know what youre looking at?24

A. Im looking at P-88, which is the --25


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Q. Got it.1

A. -- conceptual hydrologic and hydraulic analysis.2

Q. Thank you.3

A. And I have them at 75.85, 75.85.4

Q. The bottom would be -- the elevation would be5

75.8 --6

A. 75.85, yeah. Thats what my analysis shows.7

THE COURT: What page are we on?8

THE WITNESS: Im sorry. I -- that same --9

about ten pages in, that same pond report. And it10

looks like that.11

MR. WOODWARD: So I can see.12

THE WITNESS: Keep going. I think its13

coming up. Its -- heres 75.85.14

MR. WOODWARD: This is what I think --15

THE WITNESS: Well, its -- I think its --16

its this one. Oh, no, Im sorry. Im looking at the17

wrong page. I apologize, theres no page numbers. My18

output doesnt give me page numbers. Im going to19

amend that. Its 76. Its not that much different.20

And Im looking at this page. The elevations 76.21

THE COURT: Which page?22

THE WITNESS: Now it looks like that. Its23

kind of a -- Im going to say its not quite halfway24

through the report.25


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THE COURT: The pond report?1

THE WITNESS: Yeah, but thats not the right2

one. Just keep going a little bit further.3

THE COURT: Maybe we should take a break and4

number the pages.5

THE WITNESS: Thats it. Thats it. And if6

you look right here, I have elevation on the bottom,7

76, under state storage takeout.8

THE COURT: Thank you.9


Q. Now, you designed that so that it was11

slightly above the invert elevation of the discharge12

pipe at the ditch, correct?13

A. Thats correct.14

Q. So, if theres a flood and theres no flood15

restriction, tail water can back up into that, correct?16

A. Thats correct, yeah. On -- in that analysis,17

right, yeah.18

Q. Wouldnt you -- wouldnt it be better to --19

withdraw the question. So, your design does not take20

into account the impact of tail water?21

A. No. I testified to that. Nor does it take it22

into consideration on existing conditions, so.23

MR. WOODWARD: No further questions, Your24

Honor.25


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Mr. Dipple - Redirect 24

THE COURT: Any redirect?1

MR. EISDORFER: Just --2

REDIRECT EXAMINATION BY MR. EISDORFER:3

Q. Mr. Dipple, are you familiar with Residential4

Site Improvement Standards?5

A. I am.6

THE COURT: I didnt hear your question.7

MR. EISDORFER: Im sorry.8

CONTINUED BY MR. EISDORFER:9

Q. Mr. Dipple, are you familiar with Residential10

Site Improvement Standards?11

A. I am, yes.12

Q. Can you tell us what they are?13

A. It was standards, I believe --14

MR. WOODWARD: Objection, Your Honor. This15

goes beyond the scope of direct.16

MR. EISDORFER: No, it does not. You asked17

that driveway. So, Im going to ask some questions of18

that driveway.19

THE COURT: Okay.20

MR. WOODWARD: Excuse me, Your Honor.21

Driveways were asked in direct. Specifically, there22

was a discussion of driveways on direct. I cross-23

examined him on it.24

MR. EISDORFER: Yes, and Im going to follow25


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up that cross-examination.1

THE COURT: Let me just hear where this is2

going, okay?3

MR. WOODWARD: All right.4


Q. Can you tell us what the Residential Site6

Improvement Standards are?7

A. In brief, they govern -- I believe its a document8

that is -- was prepared and is governed -- or is part9

of the Department of Community Affairs, which regulates10

residential construction throughout the State of New11

Jersey. I believe it was an attempt to standardize12

residential construction, you know, throughout the13

state.14

Q. And does that have standards governing15

driveways, in terms of circulation?16

A. Yes, it does.17

Q. And do those standards reflect safety18

considerations?19

A. Yes, I believe they do.20

Q. Is this compliant with the RSIS standards?21

MR. WOODWARD: Your Honor, Im going to22

object because there was no testimony on direct about23

whether this complies with RSIS or not.24

MR. EISDORFER: Your Honor, the -- he was25


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questioned on whether the driveway is adequate for fire1

equipment. RSIS is a uniform state standard that2

reflects all those and the testimonys going to be if3

this was compliant with the RSIS.4

THE COURT: I mean, you know, I assume it5

complies. Thats not the point. I mean -- to that6

extent Im going to allow it.7

BY THE WITNESS:8

A. I believe that -- I believe the width of the9

driveway complies with the RSIS standards. Again, this10

is not a developed site plan, a designed site plan.11

So, yeah, there may have to be some engineering that12

goes into this for full compliance, yes.13

Q. Now, you were asked questions about different14

soil characteristics.15

A. Yes.16

Q. Do you recall that?17

A. Yes.18

Q. Now, can -- and you indicated that some of19

the soils were Class C --20

A. Yes.21

Q. -- and Class D.22

A. Thats correct.23

Q. Can you come and point out to us --24

A. Yes.25


27/69


Q. -- where the Class C and Class D soils are?1

A. Yes.2

Q. Im asking you to point it out in connection3

with your existing drainage area maps, which is P-89, I4

guess.5

A. Right. I -- okay. So, the soil on this side of6

the site is the Haledon type and the soil thats over7

here on this side of the site is the Passaic type. And8

based upon the soil map that was provided as part of9

Exhibit D-184, Im just going to trace with my finger10

about where the soil line is. Its right about here11

and then it goes this way. And then it looks like it12

comes out this way and then makes its way down to13

Wildhorse Terrace. It kind of bows out right in here14

somewhere.15

Q. Now, which is Class C and which is Class --16

A. This is C on this side and that is hydrologic soil17

group D. Its -- thats the official term, hydrologic18

soil group.19

Q. So, now in drainage area -- where would the20

-- well, for which of these drainage areas would the21

soil type have an impact on your analysis?22

A. Drainage area three, proposed -- are you speaking23

of proposed?24

Q. Yeah. No, --25


28/69


A. Youre looking at the proposed drainage area. No,1

Im sorry, youre looking at existing.2

Q. Existing. Existing.3

A. I apologize. Existing drainage area three.4

Q. Okay. And based on what youve just shown us5

is drainage area three entirely in Class C?6

A. No. No, theres a significant part of drainage7

area three that is Class -- or hydrologic soil group C8

and theres a significant area in hydrologic soil group9

D.10

Q. In practical terms, would it have made any11

practical difference in the outcome if you had treated12

that as partially in C and partially in D?13

A. No. Basically, youre going to get a little more14

runoff in the Class D soil. So, if you take half of15

that, lets say its half. I dont know what the split16

is. Say half of its C, half of its D. Its just17

going to bump up incrementally. So, your existing18

conditions runoff rate is going to go up a little bit19

and your proposed conditions runoff rate is going to20

go up a little bit. So, were only comparising --21

comparing the difference between the two. So, its22

kind of a sliding scale. If they go up a little bit,23

were only looking at the difference. And we actually24

ran all of drainage area three with D and it made no25


29/69


difference in the change between the two flow rates.1

MR. WOODWARD: Objection, Your Honor.2

Theres nothing in his testimony which he just gave in3

any of his reports.4

MR. EISDORFER: Your Honor, the door was5

opened. He was cross-examined on this.6

THE COURT: Do you have anything else on7

this?8

MR. EISDORFER: No, I dont.9

THE COURT: Okay, then move on.10


Q. You were shown a New Jersey Department of12

Transit manual.13

A. Department of Transportation, yes.14

Q. Department of Transportation, sorry, --15

A. Yes.16

Q. -- manual concerning the calculation of storm17

water and you testified that that was not the18

appropriate manual. Do you know what the appropriate19

manual is?20

A. Yes. Its the Best Management Practices manual,21

which is referenced in the storm water management rule.22

The storm water management rule references back and23

puts some of the engineering standards into the Best24

Management Practices manual.25


30/69


Q. Does that have the same standard for1

sheeploads as the DOT manual?2

A. No, it doesnt. Its different than the DOT3

manual.4

Q. And what is that standard? What is the5

standard in the DEP manual?6

A. The standard in the DEP manual, the Best7

Management Practices manual, its actually called the8

New Jersey Storm Water Best Management Practices9

manual. Its in chapter five and it states the maximum10

sheepload length recommended by the NRCS is 150 feet.11

According to the NRCS, longer lengths may be used only12

in special cases, such as smooth, uniformly graded13

parking lots.14

MR. EISDORFER: I have no further questions.15

THE COURT: Anything else, Mr. Woodward?16

RECROSS-EXAMINATION BY MR. WOODWARD:17

Q. Mr. Dipple, when you did -- when you were18

just asked those questions by Mr. Eisdorfer, you were19

referring to a -- you said you could use it for a20

parking lot, but the proposal here is not to build a21

parking lot, is it? Its to build a building with22

driveways, correct?23

A. But Im analyzing the existing -- the common24

concentration issue revolves around existing conditions25


31/69

Mr. Dipple - Recross 31

of drainage area one and that is a parking lot.1

Q. Now, with respect to the Passaic soils that2

you mentioned, at least half the site is that class3

type D soils, correct?4

A. Im going to say yes, about half.5

Q. And isnt there a procedure under the TR-556

that you have to use a worksheet and put the numbers7

down, do an analysis, do an averaging? Did you do8

that?9

A. Its a weighted average.10

Q. Did you do that?11

A. I didnt include the type D, no. I was12

simplifying the analysis.13

MR. WOODWARD: Okay. No further questions,14

Your Honor.15

THE COURT: Anything else?16

MR. EISDORFER: Not from me. I dont know --17

THE COURT: Okay, you can step down. Thank18

you. Oh, wait a minute. Ms. McKenzie?19

MR. EISDORFER: I dont know if Ms. McKenzie20

has questions.21

MS. MC KENZIE: I dont think I have any22

questions.23

THE COURT: No?24

MS. MC KENZIE: No, Your Honor. Thank you.25


32/69

Mr. Marsden - Direct 32

THE COURT: Okay, you could step down.1

THE WITNESS: Thank you.2

THE COURT: Mr. Eisdorfer, anything further?3

MR. EISDORFER: I have no further witnesses.4

THE COURT: Okay. So, the Plaintiff rests5

subject to the admission of the evidence.6

MR. EISDORFER: Thats correct.7

THE COURT: Okay. So, why dont we take ten8

minutes and your witness?9

(Off record. Back on record.)10

THE COURT: All right. Mr. Woodward?11

MR. WOODWARD: Thank you, Your Honor. Id12

call Richard Marsden to the stand.13

RICHARD A. MARSDEN, JR., DEFENSE WITNESS, SWORN14

COURT PERSONNEL: Please state your name for15

the record.16

THE WITNESS: Richard Arnold Marsden, Jr.17

MR. WOODWARD: Thank you.18

DIRECT EXAMINATION BY MR. WOODWARD:19

Q. Mr. Marsden, youre the township engineer for20

Cranford?21

A. Yes.22

Q. And you previously testified in this case,23

correct?24

A. Correct.25


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Q. Subsequent to your testimony there were a1

couple reports produced by Mr. Dipple and Im going to2

show them to you. One is dated August 19th, 2010, and3

bears exhibit number P-87D, and with it is a conceptual4

hydrologic and hydraulic analysis of P-88, plus a5

series of drawings, including one thats labeled P-92,6

P-89, P-86, P-91 and P-90. And Im going to ask you if7

youve ever seen those documents before?8

A. I have.9

Q. And in addition, there was a document dated10

September 2, 2010, which has been marked for11

identification as D-184. And have you ever seen that12

before?13

A. Yes.14

Q. Have you reviewed those documents?15

A. I have.16

Q. And as a result of your review, did you17

prepare a report?18

A. Yes, I did.19

Q. And Im going to show you whats been marked20

as D-180 for identification. And its dated September21

16, 2010. Take a moment to look at it, D-180. Is this22

a copy of your report?23

A. Yes, it is.24

Q. Now, could you tell us what documents you25


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reviewed in preparing this report?1

A. Well, as it states in the report, I reviewed the2

L2A letter, dated September 2nd; the August report,3

dated August 19th; the conceptual hydraulic and4

hydrologic analyses, dated August 19th; their maps5

entitled Proposed Drainage Area Map, dated August6

19th; the existing drainage area map, dated August 19th;7

the parking lot, storage exhibit map, dated August8

19th, and the conceptual basin location plan, dated9

August 19th.10

Q. Now, based upon your review of those11

documents and your analysis as a professional engineer,12

could you tell us whether you reached any conclusions13

regarding the content of the report and the letter and14

the various documents you reviewed?15

A. Yes, I did.16

Q. Could you tell us what your -- in summary,17

what your conclusions were?18

A. Well, in summary, my conclusions were that there19

were two assumptions that were made that were not20

correct. One is that the gate valves were assumed21

completely open and the second one is the assumption22

that the proposed design that regulated the outflow23

elevation would be higher than the flood elevation.24

Q. All right. Well, lets talk about the first25


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one, gate valves assumed to be completely open in the1

analysis. Could you tell me, or tell us what the2

significance of that is?3

A. Well, the assumption that the gate valves were4

completely open also assumes that, quite fra -- leads5

to the question of why are they there in the first6

place. If the gate valves were there, they would have7

a function. Trying to analyze what the functions would8

be, I can only come to the conclusion that it was a9

regulated outflow function, meaning that the gate valve10

was closed at some point to regulate the storm water11

system for detention on that parking lot.12

Q. Can you tell us what are the factors that13

lead to your conclusion that the parking lot was14

designed as a storm water detention facility?15

A. Well, the initial overriding factor, before any of16

these reports came into play, were when we looked at17

the parking lot and we saw the outflow chamber that led18

to the outflow of the storm water piping system through19

a gate valve. There are pipes that were entering this20

chamber that were larger than the pipe that left the21

chamber. And in that pipe that left the chamber there22

were gate valves. I tried to assume that well, what23

would those gate valves have as a function. Its not24

used for maintenance for backwater. Because if there25


36/69


was a backwater effect at the time of a large storm1

event, there would be no real velocities, thered be no2

real sediment depositing back into the piping system3

that would be a concern because everything would fall4

out. Because youre having a very large floodplain and5

the perimeter, the outer limits of the floodplain the6

velocities drop tremendously and in this ditch, thats7

the furthest point. So, I wasnt concerned, as a8

Public Works Director, that something like that would9

deal -- would be a backup. It just didnt make sense.10

Because it also leads to the first chamber, which also11

adds to a wider opening and would, in turn, reduce the12

velocities. Now, when I heard testimony that the pipes13

were clear, I -- it just confirms that the piping14

system flushes itself out for whatever little debris15

may have backed up into it, because those gate valves16

have been opened fully. So, it wasnt that. The only17

conclusion I can come to is that these gate valves were18

there to regulate the outflow. Why would an engineer19

spend the money, or recommend spending the money, to20

put a gate valve when you had a twelve inch pipe that21

wouldve done the same thing.22

Q. So, the function of a gate valve is to do23

what?24

A. The function of a gate valve --25


37/69


Q. In your view.1

A. -- is to regulate the outflow. It would reduce2

the outflow to some degree that would be comparable to3

what the preexisting conditions were on that site. The4

-- in reducing the gate valve opening, it would have5

water backup, as has been testified from Mr. Dipple,6

that would fill the parking lot. In looking at the map7

of the parking lot, as it regulated its flow depth, it8

almost looked uniform, meaning that the parking lot was9

pretty much flat. If you --10

Q. Now -- go ahead. Im sorry.11

A. If you didnt need it there for storm water12

detention, you wouldnt have graded it such a way,13

because the terrain itself, on either end of that14

portion of the site, goes from elevation 81 at one15

point to 82. And at the drops where you can obviously16

see the fill, which was testified by, it goes to 77,17

78. So, theres a natural slope that was there. A18

design engineer, if he wasnt being required to do19

anything other than put a parking lot in, would pretty20

much do what Site 235 did, just put it down close to21

grade and pitch it so it drains towards the river.22

Q. Now, you say Site 235, and Im -- right now23

Im looking at --24

A. Building number. I guess its --25


38/69


Q. 235 is --1

A. Yeah.2

Q. -- on the far western side of the property?3

A. Thats correct.4

Q. And that parking lot, can you describe that5

parking lot?6

A. Well, that parking lot basically drains close to7

the grades. It appeared to be built close to the8

grades that are flat along the river, Casino Brook that9

is. And it drains from the parking lot down to the10

back and then out the back. There are no real inlet11

connections there that accommodate that. I think there12

may be two, but theres not a series of storm water13

detention systems and gate valves.14

Q. Now, take a look at whats been marked as P-15

92, which was an attachment to Mr. Dipples August 19th16

report. Could you tell us what this document is?17

A. Well, the --18

Q. Or what you understand it to be, I guess.19

A. Well, this document is -- it shows the storage of20

runoff at different elevations. The one in the upper21

left-hand corner has an elevation height, maximum22

storage height of 90 -- 79.2, and as you go clockwise,23

it goes 79.4, 79. -- oh, excuse me -- .6 and 79.8. It24

shows almost uniformly, through the blue filled in25


39/69


areas, that it fills up equally, like a bathtub not1

flushed or regularly. So, it was built, in my opinion,2

to act as a storm water detaining facility.3

Q. Now, I think when you testified earlier in4

this trial, Mr. Marsden, you testified as having5

designed systems somewhat like this during the 1970s?6

A. I mean -- that is correct. We did parking lot7

storage then. It was a cheap efficient way to detain8

water without going through, you know, additional9

costs, doing underground piping systems.10

Q. And do you know when this -- approximately11

when this building was constructed and that parking12

lot?13

A. Well, we believe it started around, I guess it was14

maybe completely constructed around 1976 or 74. I15

dont know specifically. I dont have that -- I dont16

know if I had a map showing it after that. I know it17

was after 1973.18

Q. Now, if there was a reduction in the flow19

through a gate valve, what impact, if any, would that20

have on the detention ability of that parking lot?21

A. Well, what would happen is, if there is -- if the22

gate flow was set at a certain reduction, more water23

would be stored in the parking lot. As you go from --24

referring back to Exhibit, was that P-92D -- FD? Im25


40/69


sorry.1

Q. I think its --2

A. I cant read that.3

Q. P-92 for identification.4

A. Oh, sorry. P-92, it shows that when they got to5

elevation 79.8 it really hadnt gone up to a large part6

of the curb. So, as it fills up the area becomes7

greater. Therefore, the volume becomes a lot larger8

per change in height. So, thered be a lot more9

storage capability in that parking lot. And in10

previous testimony, and in these reports, it showed11

that the weir or the spillway elevations were very12

close, within a half an inch of all three that were13

mentioned. It was, was it 81.13? No, 80.13 and 80.0714

and another one like that, which its quite a15

coincidence that they were all set close to the same16

for spillover.17

Q. Now, in terms of calculating what the flow18

from this should -- by the way, what is the purpose of19

detaining water on a site, such as this, through20

structures, such as you have described here?21

A. Well, the purpose is that engineers, the State22

Department of Environmental Protection, weve, for a23

long time, weve tried to regulate outflows from24

developed sites. Because when we put impervious cover,25


41/69


parking lots, buildings, on a site, it increases the1

rate of flow off the site and that rate of flow then2

enters your bodies of water quicker, sooner. So, at3

some point downstream theres now more water than there4

used to be. So, we try to regulate the outflow from5

the sites to what the existing or precondition was.6

One way of doing that is to provide detention7

structures, parking lot or in the ground structures,8

that hold that water out and regulate the outflow that9

would mimic the precondition.10

Q. Now, in this particular situation you11

indicated in your report that in order to determine how12

much the gate valve should function, you had to look at13

what the original site conditions were before14

development.15

A. Thats correct. And there is -- theres no16

information out there showing us what the gate valve17

regulation was. The only way you can do that is to18

back-step into it, meaning that you come back with the19

original concept of what the design criteria was, which20

was a wooded, or an undeveloped site, to a developed21

site with this impervious cover. Determine what the22

undeveloped site outflow was, pretty much what they did23

here except for they used the parking lot as the24

control assuming the gate valve was fully open. You25


42/69


43/69


you disagree with. Could you go into that, talking1

about outflow elevation?2

A. Oh.3

Q. And --4

A. The other --5

Q. -- the storage facility.6

A. What that led to is, in reviewing the reports7

prepared by Mr. Dipple, one of the things you try to do8

is not to create a -- and I call it backwater for9

simple terms, but its tail water, or headwater effect.10

Tail water effect? Gosh, Im losing it. Anyway, its11

-- it is the backing up of the water that tries to get12

out of the system that cant get out because theres13

already water in the downstream portion of the system14

that it has to displace. The only way it is displaced15

is the increase in height of the water in the upstream16

system creating a head, which gives more weight to that17

water, which, by gravity, pushes it down and is able to18

push it out. That effect, if there is water already in19

the downstream system, will reduce the outflow of that20

pipe. It has the downstream ponding. Using the fact21

that in order to design it properly, which we do and I22

think Mr. Dipple stated, was that we have to build the23

outflow pretty much at what the flood elevation would24

be so there would be no backwater due to the -- upon25


44/69


that youre at maximum flood of the Casino Brook. In1

doing that youd have to raise that elevation to the2

height of the storm event elevation, which I believe3

was 78.6. Using that as just a very conceptual4

starting point, and not assuming any slopes and any5

pipes upstream, not assuming slopes to get the water to6

the inlets that would have to collect this water for7

the detention basin, we utilized what information was8

in the report. The report stated that theres 309

inches, the conceptual detention basin, or detention10

structure, that would have a height of 30 inches, which11

is two and a half feet, which is actually very good.12

Its one of the more common ways we do it because its13

more efficient. If you start going higher and deeper,14

you get more troubles. Narrower and wider it becomes a15

maintenance issue. So -- and its an acceptable16

practice and I agree there. But when you add up what17

elevations, 78.6, plus two and a half feet, that gives18

you 80.1 -- 81. Let me look at my report. My math19

skills as I get older.20

Q. Please, go ahead.21

A. 80 -- 78 outflow structure. Yeah, it gives you22

elevation 81, you know, 81.1. On top of that, when you23

put -- you have to have cover or thickness of your24

detention structure. And again, typically youre going25


45/69


to try to stay pretty deep, because the structure1

itself will have some type of limited integrity due to2

depth under the ground. A minimum would be twelve3

inches. So, wed assume twelve inches, another foot.4

So that brings the top of your detention structure to5

about elevation 72.1. Again, thats not assuming --6

Q. Excuse me. 72.1?7

A. 72.1. It was 71 --8

Q. Or 82.1?9

A. 82.1. 82.1. That would bring -- not even10

counting the slope to get the water to that point,11

which would even be higher. That would then tell me12

that the minimum height that you have to have on the13

site is 82.1. Going back through their profile14

reports, which we have here, for example, its Exhibit15

P-83, it shows conceptual elevations of those16

buildings. Building B was at 80. Building A was at17

79.6. That tells me at this point, in order to have a18

system similar to what was in the report done, the19

whole site pretty much has to be raised more than two20

feet, which then now impacts the relative height of the21

property with the surrounding area.22

Q. And as a result of that do you have a23

conclusion as to whether or not there is sufficient24

data to make a determination as to whether or not this25


46/69


design would be approved by the DEP?1

A. Well, what this shows is that theres not enough2

data to accurately determine to say well, this is what3

the height of the buildings going to be, or this is4

what -- where the detention structure is going to be.5

My feeling is DEP is going to look at this and if they6

present it this way, theyre going to question what is7

the outflow based upon the existing parking lot8

condition, meaning the detention and the restricted9

outflow. Because there is no real fact, other than my10

opinion, going back to what the precondition design was11

and theyre probably going to request that. Can it get12

approved? I dont think it can get approved without13

going through that analysis.14

Q. Do you have an opinion as to whether or not15

the -- by the way, attached to your report is an aerial16

photograph. Do you see that?17

A. Yes.18

Q. Could you tell us what that is?19

A. This is an aerial photograph. It came to my20

attention -- it was in the construction departments21

plat files. It wasnt in mine. Theyre plates that22

were developed and taken by -- excuse me -- Aerial23

Photographic Survey, on February 25th, 1973. And going24

through them I found this plate. Its actually25


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somewhere written in white above -- even in that plate,1

it says 2/25-73, shows when it was flown. Next to it2

is the actual series number they use when they do their3

aerial flights. Its 068-73, its on the right-hand4

top side. It looks like one and then 08. I pulled5

this plate out because it shows our site, what it6

looked like in 1973.7

Q. Well, can you direct the court to where8

Birchwood Avenue is, if you want to hold it up to show9

the Judge?10

A. Okay. Actually, if you look at it, as its been11

stapled together, youll see a fan like structure12

there, a fan like structure there. Thats the nursing13

facility.14

THE COURT: Cranford Conva --15

BY THE WITNESS:16

A. Cranford Con -- yeah. And just going up slightly17

to the left is, you can almost see a tree line there,18

darker objects that are going across there. That19

represents trees that are along the edge of that20

property. Above that is all open area, with a little21

dark diagonal slot, which was probably an old tree row,22

that farmers typically use when theyre cleaning their23

fields and theyre putting rocks aside and -- you know,24

so they can be able to farm it. That is approximately25


48/69


in the middle of this proposed site thats housing 235.1

Q. 215?2

A. 215. Im sorry. Now, above that you see a double3

line, very faint. Thats the parking lot to the other4

building. Thats the entranceway to the other5

building. So, you can gauge that just downward of that6

double line and above the fan building, that thats the7

site that we are talking about.8

Q. Was it developed at that point?9

A. No, it wasnt.10

Q. That is the 215 Birchwood site.11

A. Thats correct.12

Q. And this was in 1973?13

A. That was 1973.14

Q. February. Now -- by the way, with respect to15

the proposed detention system that was in P-81, are any16

of those located in the driveway?17

A. The potential location of the underground storm18

water storage systems, two of them. One is fully19

located under a driveway. The one thats furthest20

north is partially, a little less than half of it21

appears to be located under a driveway. The third one22

appears to be located in more of a court area.23

Q. Now, with respect to the ones in the24

driveway, is there any particular structural25


49/69


requirements so that vehicles and trucks and so on can1

drive over them without problem?2

A. Of course thered have to be -- theyd have to3

have structures that would be able to support the loads4

of those vehicles. I mean our typical storm water5

inlets are designed to do that. There are systems out6

there, like the arch, I think Mr. Dipple is alluding7

to. A certain criteria has arch, corrugated arch8

systems or concrete thatll also have the structural9

integrity to support loads under a parking lot or a10

driveway.11

Q. Do you have a conclusion as to whether, based12

on what youve seen from these reports, the impact that13

it would have or whether it would create increased --14

strike that. Do you have an opinion as to whether or15

not the site, with this additional requirement, vis--16

vis the drainage system, or the detention system, is17

suitable for the size of the development as proposed?18

A. Well, based on their reports and the fact that19

they show theres detention going up to the elevation,20

it was, I believe, going up to elevation 79.8 on those21

maps, with the gate fully open, my opinion is I know22

the gate wouldnt be there if it was fully open. So,23

the gate had to be closed to some degree. Therefore,24

there would be more storage in that parking lot. In25


50/69

Mr. Marsden - Cross 50

addition, showing the calculations that were showing1

outflow rates, there would be less existing outflow,2

because the gates were partially closed. So, yes, it3

would bring water into the system sooner if this cri --4

if this concept, the design was held and it would5

negatively impact downstream of us.6


Honor.8

THE COURT: Cross-examine.9

CROSS-EXAMINATION BY MR. EISDORFER:10

Q. Mr. Marsden, have you inspected the valve11

youve been describing?12

A. No.13

Q. No. So, do you know what its current state14

is?15

A. Well, its current state is nonoperational.16

Q. In what way is it nonoperational?17

A. Through, I believe, probably snowplowing, it was18

bent or knocked over. Both gates -- both gate shafts19

were bent.20

Q. How long have you been municipal engineer at21

Cranford?22

A. A little over six years.23

Q. Has the gate ever been operational during the24

period when youve been municipal engineer?25


51/69


A. I couldnt tell you that. I wasnt there1

initially in my first couple years.2

Q. Im sorry, I dont un --3

A. I was not at the site until later on. So, --4

Q. When was the first time you were at the site?5

A. When we had flooding. 2007.6

Q. And was the gate operational then?7

A. It appeared not to be.8

Q. Have you actually seen the gate anything9

other than fully open?10

A. Well, you cant tell whether the gates fully open11

or not, because you dont know what the height of the12

steering wheel or the shaft was, regulations.13

Q. Do you have any municipal records that14

indicate that --15

A. No, I dont.16

Q. -- that it was anything other than fully17

open?18

A. No.19

Q. So, any -- theres no actual evidence of it20

being full -- of being anything other than fully open?21

A. Well, theres no evidence in knowing how much or22

how little it was open.23

Q. But is there any evidence of it being -- do24

you have any evidence of it being less than fully open?25


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A. No.1

Q. Now, have -- does the -- did the resolution2

approving this project specify the existence of this3

gate valve?4

A. I dont know.5

Q. Did it specify that it had to be maintained6

at being less than fully open?7

A. I dont know.8

Q. At the time when this project was -- you9

indicated that the project was constructed sometime in10

the 1970s, after 1973, but you thought maybe by 1978,11

is that right?12

A. It could, yeah, it could be by then, later. 76,13

its tough to --14

Q. At that point there was no state regulation15

of storm water, was there?16

A. 76. 78, yes, we were doing storm water17

regulation.18

Q. But was it --19

A. Flood hazard regulation.20

Q. Yeah. The first state regulations didnt21

come in until 1983, didnt -- did they?22

A. No, I believe we were doing flood hazard23

regulations. I know locally we were doing detention24

basins and facilities.25


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Q. When you say locally, you dont mean in --1

A. I mean in Union County.2

Q. You dont mean in Cranford?3

A. And -- well, part of Cranford did through Union4

County. The Lenape Park detention basin, I think. We5

have the Carpenter Street detention basin. We were all6

aware of the increase in impervious cover issues.7

Q. At -- well, was there state regulation at8

that point, in the 19 -- at the time this was built?9

A. I couldnt say directly --10

Q. You dont know?11

A. -- without looking it up.12

Q. You dont know?13

A. Not right now.14

Q. Cranford didnt have an ordinance until 1983,15

did it?16

A. No.17

Q. So, there was no local regulation?18

A. There was no local regulation.19

Q. So, you dont know what standards were20

applied when this project was approved, do you?21

A. That is correct.22

Q. Any -- and it is merely inference on your23

part that the standards were reproducing existing24

conditions, isnt that right?25


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A. Its -- say -- can you try that again?1

Q. I asked you if it is merely inference on your2

part that the standards that would have been applied at3

that point were reproducing existing conditions, is4

that right?5

A. Based upon -- yes. Base -- yes.6

Q. In fact, its not inference, its7

speculation, because you dont really know. You dont8

have --9

MR. WOODWARD: Objection, argumentative.10


Q. You havent seen the resolution, have you?12

A. No.13

Q. There was no ordinance.14

A. Thats correct.15

Q. There was no state regulation.16

A. Dont know.17

Q. So, you dont have any actual knowledge of18

what standard was applied then.19

A. Direct knowledge, no.20

Q. Youre merely speculating as to what you21

think might -- would, could or shouldve been applied.22

A. My speculation is what we have applied in the mid-23

70s, yes.24

Q. Now, have you modeled, have you done the25


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calculations as to what the affect of partially closing1

the valve would be?2

A. No. Thats -- well, my task was to review the3

report. We have consultants, you know, who will look4

into that if it ever came up to be a request.5

Q. So, you cant tell us how much additional6

flood -- how much additional water storage there would7

be if it were fully closed, can you?8

A. Well, could I now?9

Q. Now.10

A. No.11

Q. No.12

A. I couldnt --13

Q. You havent done the calculations?14

A. Well, --15

MR. WOODWARD: Objection, Your Honor. Hes16

interrupting the witness. The witness hadnt finished17

his answer.18

THE COURT: Lets let him finish his answer.19

MR. EISDORFER: Okay.20

BY THE WITNESS:21

A. What I do know is, through my experience of these22

type structure designs, by reducing the outflow you23

will increase storage. You will reduce rate of24

outflow.25


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Q. But you cant tell us how much?1

A. I could not tell you exactly how much.2

Q. So, you cant -- you cannot tell us what the3

significance, in quantitative terms, would be of4

closing the valve a little bit, a little more or a5

little more than that, can you?6

A. I can tell you that there is an increase in7

outflow, if they stay -- if theyre opened more. I can8

tell you that if they are closed it will be decreased9

in outflow rate. The actual ratio and significance I10

cant tell you. I did not do those calculations.11

Q. Now, the curb on the existing parking lot is12

six inches high, is that correct?13

A. I dont know exactly. It may be a little less14

because its been resurfaced or whatever. I dont -- I15

cant tell you.16

Q. Is that something you measured when you did17

your survey?18

A. They probably did. I didnt remember -- memorize19

all top of curb and bottom of curb elevations.20

Q. If the water gets above the curb what21

happens?22

A. Well, if it gets above the curb, it actually wont23

get above the curb --24

Q. Well, if it gets above the curb what happens?25


57/69


A. It cant get above the curb in all but one1

location.2

Q. Well, what happens when the water gets high3

enough to get above the curb?4

A. Well, it then spills over.5

Q. Spills over.6

A. Thats what your consultant, Mr. Dipples design7

showed that it would spill over the curb in the lower8

left-hand side of that map youre working with.9

Q. Now, that sets a limit on how much water can10

be detained.11

A. Thats correct.12

Q. It cant -- it can never hold more than the13

volume --14

A. That volume of water.15

Q. That volume of water.16

A. Thats right.17

Q. And so thats the maximum.18

A. That would be the maximum.19

Q. Now, so did you calculate what the effect of20

that maximum would be?21

A. As I said, I didnt do any calculations, in a22

large degree. I do know theres three weirs there.23

One -- the other two structures are the driveway24

entrances and exits to the parking lot. And that lower25


58/69


left-hand corner acts as a weir, as Mr. Dipple1

testified.2

Q. Now, if -- youve testified that this manual3

valve was set at some predetermined level. Do you know4

what the predetermined level was?5

A. No. I said that.6

Q. Under what circumstances would people change7

it, would someone go out there and change the level?8

A. Well, they would change the level -- they would9

open it up all the way to maintain it. Meaning that if10

its opened and sediment developed in that last11

chamber, its easy to flush a twelve inch pipe thats12

completely open without having a restriction in the13

middle of it than it is to have an orifice restriction.14

I can give you an example that DEP and I discussed in15

the 70s about restricted outflows. We have -- there16

was a regulation of DEP in the 70s that required a17

minimum orifice size of three inches. Through the18

state, the developers, we had issues about that minimum19

size because it was a maintenance problem. Outcomes of20

that were options to be able to open up your outflow21

structure with plates or possibly these type of gates.22

The plates Im talking about would be in the chamber23

itself before it leads out. It would be put in front24

of the twelve inch pipe that had a restricted burned25


59/69


out circle that would say thats your outflow. When1

its time to maintain it youd pull it out, youd flush2

your pipe system. Public works departments had3

equipment that would push water through it or sweep a4

pipe to get this type of thing clean. You have to5

maintain your outflow structures. That couldve been6

one way of having your restriction and then being able7

to open the valve up and then flush your pipe out8

without hitting that restriction.9

Q. So, do you imagine that that valve was only10

used for maintenance?11

A. I believe that valve was only used for12

maintenance, tied into detention.13

Q. So -- but the valve itself was just used for14

maintenance?15

A. The valve was set for detaining the water at a16

certain reduced opening. It was decided to use a valve17

possibly because of maintenance.18

Q. Is that how you would design a system now?19

A. Design a system now?20

Q. Would you use a -- would you design a system21

now with a manually operated valve?22

A. No, Id probably use a plate in front of it.23

Q. Would -- if -- as a municipal engineer, would24

you approve a system now designed with a manually25


60/69


operated --1

A. With a manually operating valve, no, because it2

adds to a maintenance headache. Another point where3

youd have to maintain the valve, where its a lot4

easier to maintain or remove a steel plate and replace5

it.6

Q. So, but your assumption is that the municipal7

engineer in 1970 had a different view than you do?8

A. Well, an engineer that was responsible for the9

site criteria, yes. I dont know whether it was a10

municipal engineer or a county engineer at that time.11

Q. But had a different opinion --12

A. Had a different opinion.13

Q. -- than you do.14

A. And it was fresh in our design criteria detention15

and the answer would be yes.16

Q. And -- but you dont know what that opinion17

was?18

A. I have no idea.19

MR. WOODWARD: Objection, Your Honor,20

interruption.21

MR. EISDORFER: Im sorry.22

BY THE WITNESS:23

A. I have no idea.24

Q. You have no idea what that opinion was?25


61/69


A. No, what that opinion was. I was not -- I dont1

even know who did the --2

Q. Now, based on your analysis, do you have an3

opinion whether its possible to design this site along4

the lines of the concept plans that have been proposed,5

that would comply with NJDEP regulations?6

A. Well, as I stated earlier, in order to properly7

determine the outflow you would have to use the pre-8

assumption that the site was undeveloped. If they use9

that criteria, I dont see how DEP would not approve.10

Q. Assuming thats not the case, assuming that11

the standard is the existing -- the comparison is the12

existing conditions. Do you have an opinion as to13

whether the -- that the site can -- that this can be14

presented to DEP and it would -- let me take it back.15

Assuming that we compare it to the existing conditions,16

which is the valve is fully open, do you have an17

opinion as to whether a storm water system can be18

designed that would comply with the DEP regulations?19

A. Im not sure I understand the question. With the20

valve completely open can a storm water system be21

designed --22

Q. Assuming that the existing conditions were23

comparing to that needed to be mimicked is the valve24

was fully open.25


62/69


A. Well, I guess maybe Im misunderstanding the1

question. Because I can turn around, as I stated a2

minute ago, a restrictive valve flow orifi -- a3

restrictive plate in that one chamber before it gets to4

the gate to make it comply.5

Q. Now, my question is, is it infeasible to6

comply with the DEP regulations on this site?7

MR. WOODWARD: Objection as to specificity.8


Q. Assuming the site plan that was presented in10

-- the July 30th site plan.11

A. Not counting storm water, assuming that they can12

do some form of detention that would make the site13

developable. I mean --14

Q. Well, thats my question. Is it impossible15

to design a storm water system that would comply with16

DEP regulations to that site?17

A. Talking to an engineer, no. I mean you can -- we18

can design whatever it takes, whatever the cost is, to19

make it work. Its a very tight site. Its not going20

to be an easy design. It would be more costly. It21

wouldnt be a simple aboveground structure, as your --22

Mr. Dipple testified. It would have to be some type of23

underground system.24

Q. But its your opinion that it could be25


63/69


designed?1

A. Oh, sure.2



Honor.5

THE COURT: Okay, you can step down. Oh,6

wait, wait, wait. Not yet. Sorry. Ms. McKenzie?7

MS. MC KENZIE: Yes, I just have a couple of8

quick questions.9

THE COURT: Good, good.10

THE WITNESS: Where is she?11

CROSS-EXAMINATION BY MS. MC KENZIE:12

Q. Not long. Ive got to find it. Okay, Mr.13

Marsden, in your experience, what does -- when the14

NJDEP looks at the existing hydraulic condition of the15

site, what is it that theyre looking at normally?16

When they -- if presented with a site such as this,17

what would they consider to be the existing hydraulic18

condition on the site?19

A. Well, theyd look at what features are out there20

presently; the existing structure, the existing21

terrain, the existing soils and its permeability22

aspects. The -- its vegetative state.23

Q. Okay. So, in your opinion, how would the DEP24

treat the drainage structures that are there, those25


64/69


existing drainage structures? Do you have an opinion1

as to how they would respond to those?2

A. Well, because they have the restricted ori -- have3

the orif -- the gate valves in there, because the4

parking lot is as flat as it is, and there is a5

question to whether the existing site had detention on6

it already. They would then, in my opinion, consider7

-- make the request that the site should be considered8

undeveloped when doing the design criteria for your new9

system.10

Q. And have you been involved in applications to11

DEP where this kind of situation has arisen and that12

has been their reaction?13

A. I have not gotten to that point, because we have14

had systems where farmers had facilities, have had15

storage area, ponding, that we just assumed didnt16

exist as a detention. And we went ahead with an17

undeveloped condition and developed from there.18

Q. I see. Okay. And you had indicated that you19

main -- you had designed systems with these kinds of20

gate valves in the past, in your experience.21

A. Well, I know they were talked about. I have seen22

designed system -- I have not done that myself.23

Q. Okay. Because in the systems that youre24

aware of were -- how was the management of the gate25


65/69


valve handled?1

A. Well, the only management or the maintenance of2

the gate valves that would be handled, and I cant tell3

you specifically, because it was a long time ago, would4

be basically a maintenance program, just like we do now5

for detention structures. We have a maintenance6

program that says after so many storms, or storms of7

major extent, we need you to make sure you clean out8

your detention system. That gate valve may possibly be9

used at that time, open it up, to flush out the outflow10

structure so it could be cleaned. Remember, when you11

put a gate valve in its going to require a12

restriction. Water, sediment, pebbles from gravel13

driveways or stone driveways, leaves, would hit this14

restriction and then drop down. So, then it would15

start to build up. You have to occasionally get that16

cleaned out. To clean it out you got to remove the17

restriction and flush it.18

Q. And who would normally do that?19

A. That, in this case, wouldve been somebody thats,20

because it was a private system, would be somebody in21

the maintenance of that building.22

Q. But there was no mechanism in place where23

public works checked on whether that was undertaken?24

A. At that time I dont know. I mean now we do. In25


66/69

Mr. Marsden - Cross / Redirect 66

my term, six year plus term here, we do regulate and1

keep an eye on those structures, because we have2

reports that mandate maintenance.3

Q. And -- but you indicated that since you have4

been on the site youre not aware of any maintenance --5

A. No.6

Q. -- thats been undertaken?7

A. Thats correct.8

Q. Is there an easement on the property to get9

to those --10

A. No, there arent.11

Q. For maintenance purposes to get to the12

valves?13

A. No. Its a private system.14

MS. MC KENZIE: Okay, thank you very much.15

MR. WOODWARD: Your Honor, just if I may.16

REDIRECT EXAMINATION BY MR. WOODWARD:17

Q. Mr. -- you were asked -- just the last18

question that you were asked was whether there was any19

easement to get to the system. But in fact, isnt20

there a sewer easement on this property?21

A. As a sanitary sewer, but not storm sewer related.22

Q. And that runs across the back of this23

property?24

A. Thats correct.25


67/69

Mr. Marsden - Recross 67

Q. Over to the Casino Brook area?1

A. Correct.2


Honor.4

MR. EISDORFER: Just follow up on one of Ms.5

McKenzies questions.6

RECROSS-EXAMINATION BY MR. EISDORFER:7

Q. Have you been involved in any DEP8

applications in which there were existing drainage9

structures where DEP said go back to the predevelopment10

conditions in designing your new drainage?11

A. Well, a system, I stated Im involved, and I12

believe it was Society Hill at Burnage, there was a13

swale and a pond design. We assumed that that, even14

before going to DEP, we did not incorporate that.15

Q. But that wasnt a DEP decision, that was the16

developers --17

A. That was our decision.18

Q. The developers decision?19

A. Thats correct.20

Q. Are you aware of any instances in which there21

are existing manmade drainage facilities where DEP has22

said go back to the predevelopment conditions?23

A. Well, Im aware that by regulation, as I stated24

last time in testimony, which is in our new storm water25


68/69

Mr. Marsden - Recross 68

management, that there is the option or the ability to1

reanalyze the system, if there is signs that there is a2

condition that shows what preconditions should be.3

Q. Well, but that regulation says you look back4

five years, doesnt it?5

A. I dont know an exact answer for that one. I6

dont have it memorized anymore.7



THE COURT: Anything else, anyone?10

MR. WOODWARD: No thanks, Your Honor.11

MS. MC KENZIE: No.12

THE COURT: Okay. You can step down.13


THE COURT: So, I guess next is -- anything15

further, Mr. Woodward?16

MR. WOODWARD: Yes. I have Mr. Creelman17

here.18

THE COURT: Oh, okay. Should we break for19

lunch and start --20

MR. WOODWARD: I think it might be a good21

idea. Hell be a while.22

THE COURT: Okay. All right, good. So,23

well see you at 1:30. Enjoy your lunch.24

(End of the A.M. session of this proceeding)25


69/69

69

* * * * * * * * * * * *1

CERTIFICATION2

I, Regina R. Caldwell, the assigned transcriber,3

do hereby certify that the foregoing transcript of4

proceedings in the matter of CRANFORD DEVELOPMENT5

ASSOCIATES VS. TOWNSHIP OF CRANFORD, heard in the Union6

County Superior Court, Law Division, Civil Part, on7

September 28, 2010, Tape #236/10, Index #0890 to the8

end, and Tape #237/10, Index #0001 to #1200, is9

prepared in full compliance with the current Transcript10

Format for Judicial Proceedings and is a true and11

accurate non-compressed transcript of the proceedings12

as recorded.13

AUTOMATED TRANSCRIPTION SERVICES14

15

By: Regina Caldwell _357_____________16

Regina Caldwell A.O.C. Number17

Date: October 9, 201018

19

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Transcript 9.28.10 Dipple Marsden

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