Transcript 9.29.10 Creelman

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


THE COURT: Okay. All right. And youll15

give me a list as well, I assume, right?16


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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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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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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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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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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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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(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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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


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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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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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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Creelman - Cross 26

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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Creelman - Cross 27

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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Creelman - Cross 28

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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Creelman - Cross 29

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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Creelman - Cross 30

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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Creelman - Cross 31

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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Creelman - Cross 32

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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Creelman - Cross 33

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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Creelman - Cross 34

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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Creelman - Cross 35

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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Creelman - Cross 36

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


37/171

Colloquy 37

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


38/171

Colloquy 38

you want to handle it, but Im just going to read1

through them.2


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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Colloquy 39

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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Colloquy 40

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


(Pause)16

MR. WOODWARD: Okay. D-53, meeting minutes17

October 6th, 2008.18

D-54, meeting minutes, October 7, 2008.19



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


41/171

Colloquy 41

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


42/171

Colloquy 42

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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Colloquy 43

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


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


(Pause)25


44/171

McKenzie - By The Court 44


(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


45/171


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


46/171


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


47/171


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


48/171


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


49/171


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


50/171


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


51/171


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


52/171


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

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