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___________________________
LEHIGH ACQUISITION CORP. v.TOWNSHIP OF CRANFORD, ET Al.
DKT NO. UNN-L-0140-08
CRANFORD DEVELOPMENTASSOCIATES, LLC, ET AL., V.TOWNSHIP OF CRANFORD, ET AL.DKT NO. UNN-L-003759-08
Implementation of sitespecific builder's remedy inthe form of application byCranford DevelopmentAssociates, LLC, et al. forpreliminary and final site
plan approval, 215-235Avenue, Cranford Township,NJ, Block 291, Lot 15.01 andBlock 292, Lot 2 and for anOrder Compelling Cranford toConsent to Plaintiff'sRegrading of a Portion ofBirchwood Avenue.
TRANSCRIPT OFPUBLIC HEARING
(DAY 5)
___________________________
BEFORE: DOUGLAS K. WOLFSON, ESQ.
Hearing OfficerDATE: August 23, 2012
TIME: 10:15 a.m.
PLACE: Union County CourthouseElizabeth, New Jersey
Reported by: Joanne L. Sekella, CCR
CRUZ & COMPANY, LLCCertified Court Reporters
436 Morris AvenueSpringfield, New Jersey 07081
Phone: (973) 467-4123 Fax: (973) 467-8822E-mail: [email protected]
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A P P E A R A N C E S:
HILL WALLACK, LLP2 02 C ar neg ie C ent er D ri ve - S uit e 2 02Princeton, New Jersey 08543(609) 924-0808B y: S TEP HE N E IS DO RF ER , E SQ .Attorneys for Cranford Development Associates
FLORIO PERRUCCI STEINHARDT & FADER218 Route 17 NorthR och el le P ark , N ew J ers ey 0 76 62(201) 843-5858By: PHILIP J. MORIN, III, ESQ.Attorneys for Township of Cranford
A L S O P R E S E N T:
Elizabeth C. McKenzie, P.P., P.A.
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I N D E X
WITNESS NAME DIRECT CROSS REDIRECT RECROSS
RICHARD A. MARSDEN, JR.
BY: MR. EISDORFER 5 45,80,85
MR. MORIN 43,82
WITNESS NAME
THOMAS W. CREELMAN, P.E.
BY: MR. MORIN 87 96
MR. EISDORFER 94 98
WITNESS NAME
MICHAEL DIPPLE
BY: MR. EISDORFER 101
WITNESS NAME
LEONARD DOLAN
BY: MR. MORIN 104
B Y: M R. EI SD OR FE R 13 2
WITNESS NAME
CLAY EMERSON
BY: MR. EISDORFER 144
BY: MR. MORIN 169
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E X H I B I T S
NO. DESCRIPTION PAGE
A-26 Letter from Mr. Marsden addressed
to Engineering supervisor for UnionC oun ty , S tat e o f N ew Je rse yDepartment of EnvironmentalProtection dated January 3, 2012
13
A-27 Memorandum from Mr. Marsden datedAugust 2nd, 2012 addressed to ValdaOpara Review Engineering, NewJersey Department of Environmental
Protection entitled EngineeringDepartment Review of Preliminaryand Final Site Plan and Applicationfor Flood Hazard Area IndividualPermit, Cranford ResidentialDevelopment 215 and 235 BirchwoodAvenue
16
Sweeney-1 Photograph 49
Sweeney-2 Photograph 49
Sweeney-3 Photograph 49
Sweeney-4
Photograph 50
Sweeney-5 Photograph 50
A-28 Site Review of the RiverfrontDevelopment
137
LaBrutto-1 Report of Incident/Complaint, threepages
205
LaBrutto-2 Portion of McKenzie Report , page 31 206
LaBrutto-3 Test Pit Test Log from August 2 3,
2011
206
LaBrutto-4 Photograph 207
LaBrutto-5 Photograph 207
LaBrutto-6 Photograph 207
5
M R . W O L F S O N : W e a re b a ck o n t h e1
r e c o r d .2
M r . E i s d o r f e r , I b e l ie v e y o u a r e a b o u t3
t o s t a r t c ro s s - e x a m i n a ti o n o f M r . M a r s d e n .4M R . E I S D O R F E R : I a m .5
M R . W O L F S O N : W h e r e w o u l d y o u lik e6
M r . M a r s d e n t o b e ?7
M R . E I S D O R F E R : W h a t e v e r i s c o n v e n ie n t8
f o r t h e C o u r t R e p o r t e r. I a m g o i n g to a s k h i m t o9
r e f e r t o h i s c h a r t s .10
M R . W O L F S O N : W e w i ll s t a rt w it h y o u11
o v e r b y th e m a p .12
M R . W O L F S O N : S e t , P h i l?13
M R . M O R I N : Y e s .14
M R . W O L F S O N : G o a h e a d .15
R I C H A R D A . M A R S D E N , J .R . , P . E ., h a v i n g16
b e e n p r e v i o u s l y d u l y s w o r n , t e s t i fi e d a s f o l lo w s :17
C R O S S - E X A M I N A T IO N B Y M R . E IS D O R F E R :18
M r . M a r s d e n , w o u l d y o u s t e p a w a y f r o m19 Q.
t h e m a p f o r a m o m e n t ? I t i s s o p r e tt y .20
W h e n d i d y o u d o t h a t m a p , th e o n e w e21
h a v e m a r k e d a s D - 1 5 ?22
A u g u s t 2 n d .23 A.
S o - -24 Q.
T w o w e e k s a g o , I b e l ie v e .25 A.
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Two weeks?1 Q.
Right, more than two weeks now.2 A.
And have you actually run the computer3 Q.
model to determine the location of the floodway4
boundary?5
No, I haven't.6 A.
Do you have the knowledge and training7 Q.
to run that model?8
I have run HEC-2 models. I have the9 A.knowledge and training to run HEC-2 models.10
Now, you have, you testified yesterday11 Q.
about split flows, and I see you have a split flow12
marked on your plan. What exactly is it? What13
split flow do you think that the applicant should14
have calculated?15
What split flow?16 A.
Yes.17 Q.
Well, I don't know the detail of the18 A.
modeling in the HEC-2. There is a whole section,19
and the Army Corps model, I believe it was actually20
introduced into the model in the '80's that had a21
section where you could utilize the model for split22
flow. There are about six methods. Three of them,23
I think method 3 through 6, tied into, wow, tied24
into encroachment sections you can't use, but you25
7
can determine by selecting different parameters, I1
don't know the detail, I haven't done it in a while,2
to run and split the flows by measuring.3
You were very, you were very exacting4 Q.yesterday. You said that their calculation was5
defective because they didn't split the flow. What6
flow should they have split?7
Well, the flow they should have split8 A.
was the flows that come down from the upper reaches9
that are, could be split in the model.10
Do I know the detail now? I haven't11
done it since mid-'80's.12
Well, I don't understand what you are13 Q.
talking about. What, what was supposed to be split?14
Split between what?15
Well, you have flow comes through to16 A.
the first cross-section that they have, station17
1668. Now, initially the water goes through between18
culverts. Eventually, the water spreads out and19
splits so that the overflow then turns and goes20
through the section that is in the Birchwood Avenue.21
So is it split between water that flows22 Q.
through the culvert and water that can't flow23
through the culvert?24
Is it split for water flows through25 A.
8
the culvert? Yes, there is a portion there that is1
determined, you can do it for a weir conveyance.2
I am not going to go to the detail3
anymore because I haven't done it in a while. I4
have utilized split flow analysis and the computer5
model recommends it at some point in the warning6
modes that were printed out.7
So, but you are confident that that is8 Q.
a defect in the applicant's analysis?9
Well, what I am confident in is that10 A.
the model print stated that there, recommended th11
split flow be considered and that additional cross12
sections be considered in that model.13
When I went back and looked at this14
picture that we created, I said, well, what happens15
between the entrance of that pipe and the exit to16
that pipe. There is no data. And I believe the17
model is representing that.18
Now, we have, we have an exhibit that,19 Q.
Defendant's Exhibit 6, let me show you Defendant's20
Exhibit 6. Is that a document you have seen?21
Yes.22 A.
And what is the date on that document?23 Q.
March 31, 2010.24 A.
And did you see it approximately that25 Q.
9
date?1
I don't recall.2 A.
Why don't you take a look at it and see3 Q.
if that refreshes your recollection.4Well, I don't recall when I would have5 A.
seen it, year, two years ago.6
This was a document you commented upon7 Q.
in your testimony.8
MR. MORIN: Objection.9
MR. WOLFSON: Just a moment.10
MR. MORIN: Mr. Marsden didn't, I11
don't believe he commented upon this document.12
MR. EISDORFER: He commented that the13
plaintiff's engineer changed his analysis based on14
Mr. Marsden's critique?15
MR. MORIN: But you misrepresent what16
was done yesterday. He was never showed this17
document yesterday, nor was it referred to in the18
direct examination.19
MR. EISDORFER: Okay, very good.20
Is this a document you referred to?21 Q.
MR. WOLFSON: So nice you worked it22
out between you two.23
No, at this point, I don't recall. I24 A.
see the date.25
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Is this the document in which1 Q.
Mr. Marsden, which Mr. Dipple said, "Yes, I have to2
do a flood hazard area analysis"?3
I mean, it says, "Pursuant to the4 A.
request of the special master, Ms. Elizabeth5
McKenzie, and your office...."6
Okay.7 Q.
Okay. And it is to S. Hekemian Group.8 A.
"...in conjunction with representatives9
of Princeton Hydro that..." basically it says,10
"...and Joe Skupien..." it says, "...Has performed11
a flood plain analysis of branch in the vicinity of12
the Cranford Development Associates Property in13
accordance with Method 6." I mean, that's --14
Do you recall seeing that before the15 Q.
trial?16
Did I recall seeing that --17 A.
MR. WOLFSON: The trial or this here?18
The trial, the trial, two years ago.19 Q.
Two years ago?20 A.
Yes.21 Q.
Well, I do recall, I do recall seeing22 A.
different information on that, yes. I will say yes23
because we did go through that, but...24
Okay, so let me show you the25 Q.
11
attachments to -- let me show you the first1
attachment to D-6.2
Yes.3 A.
Is that a document you have seen4 Q.before?5
Yes.6 A.
And does that show a flood, a floodway7 Q.
boundary?8
It does.9 A.
And let me show you, ask you to look at10 Q.
A-4, Sheet C-02. Is that the same floodway boundary11
shown on that map?12
It appears to be because it is13 A.
different maps. The lines look similar. Okay.14
And now you have seen A-6, the15 Q.engineering report?16
Yes, I have.17 A.
Let me show you the map, FS-1.18 Q.
MR. WOLFSON: F as in Frank, S as in19
Sam.20
FS-1 included in the engineering21 Q.
report. And is this a document you have seen?22
Yes.23 A.
Does this show the same floodway24 Q.
boundary?25
12
As this map here?1 A.
Yes.2 Q.
Yes.3 A.
And as D-6?4 Q.
Similar, yes.5 A.
And --6 Q.
MR. WOLFSON: You say similar because7
it is not drawn to scale.8
MR. MARSDEN: It is so small and it is9
2010.10
This, A-6 was filed with D.E.P. last11 Q.
December. Did you see it around last December?12
MR. WOLFSON: 2011.13
MR. MARSDEN: December 9, 2011, when14
it was filed.15
MR. MORIN: I'm sorry, we are16
referring to A-6?17
MR. EISDORFER: A-6.18
MR. MORIN: I believe A-6 is the June.19
MR. MARSDEN: And it has three dates.20
The engineering report has initial date of21
December 9, 2011, a revised date of February 7,22
2012, and a second revised date of June 4, 2012.23
MR. WOLFSON: The question is did you24
see A-6 or one version of it, I suppose, on or about25
13
December of 2011, if you remember?1
MR. MARSDEN: I don't remember because2
information comes in.3
MR. WOLFSON: Okay.4MR. MARSDEN: I don't remember.5
MR. WOLFSON: Go ahead.6
Okay. Did you do a submission to7 Q.
D.E.P. in response to this report?8
At that point, no, I don't believe we9 A.
did.10
MR. EISDORFER: Let's mark this as,11
where am I now, A-26, I believe.12
(Exhibit A-26, Letter from Mr. Marsden13
addressed to Engineering supervisor for Union14
County, State of New Jersey Department of15Environmental Protection dated January 3, 2012, is16
marked for identification.)17
Let me show you a document we marked as18 Q.
A-26 and ask you if you have seen that document?19
MR. WOLFSON: Just for my records,20
what is it, Steve?21
MR. EISDORFER: This is a letter from22
Mr. Marsden addressed to engineering supervisor for23
Union County, State of New Jersey Department of24
Environmental Protection dated January 3, 2012.25
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MR. WOLFSON: From Mr. Marsden to1
D.E.P. dated 1/3/12. Got it.2
Okay, yes, I take that back. I did3 A.
actually send a letter, not through here, but to4
D.E.P. That's correct.5
And was that a letter in response to6 Q.
A-6?7
Well, it is entitled "Quick overview8 A.
of application and request for review extension."9
So it was in response to the10 Q.
application?11
Correct.12 A.
And the application included a map13 Q.
showing the floodway?14
That is correct.15 A.
And it had the same line that is shown16 Q.
in FS-1?17
That's correct.18 A.
Did you do any other submissions to19 Q.
D.E.P.?20
Later I did, yes.21 A.
When?22 Q.
Well, may I look at this submission23 A.
here for a little bit?24
I will ask you more questions later on,25 Q.
15
but right now the question is did you do any1
subsequent, did you do any subsequent submissions?2
I have done subsequent submissions.3 A.
When did you do your subsequent4 Q.submissions?5
Just recently, I believe.6 A.
MR. WOLFSON: Nothing between that and7
just recently?8
August 2nd.9 A.
Do you have a copy?10 Q.
MR. WOLFSON: This year?11
MR. MARSDEN: Yes.12
Do you have a copy?13 Q.
MR. WOLFSON: Mr. Marsden, nothing14
between those two dates?15
MR. MARSDEN: I don't believe so16
because the time and what we are going to review.17
My January 3rd letter, by the way, is18
just --19
MR. EISDORFER: Your Honor, there is no20
question pending.21
MR. WOLFSON: No question pending.22
Okay, just a copy of the summary of23 A.
prior testimony, no detailed review.24
MR. EISDORFER: Your Honor, I would25
16
like to mark this as A-27.1
MS. MCKENZIE: What is A-27?2
MR. EISDORFER: A-27 is a memorandum3
from Mr. Marsden dated August 2nd, 2012, addressed4
to Valda Opara Review Engineering, New Jersey5
Department of Environmental Protection. It is6
entitled Engineering Department Review of7
Preliminary and Final Site Plan and Application for8
Flood Hazard Area Individual Permit, Cranford9
Residential Development 215 and 235 Birchwood10
Avenue.11
(Exhibit A-27, Memorandum from12
Mr. Marsden dated August 2nd, 2012 addressed to13
Valda Opara Review Engineering, New Jersey14
Department of Environmental Protection entitled15
Engineering Department Review of Preliminary and16
Final Site Plan and Application for Flood Hazard17
Area Individual Permit, Cranford Residential18
Development 215 and 235 Birchwood Avenue, is marke19
for identification.)20
Now, during the course of the trial in21 Q.
August of 2011, you requested hydraulic and22
hydrologic data to enable you to review the flood23
storage documents prepared by Mr. Dipple. Do you24
recall that?25
17
I recall, I believe I did.1 A.
And you had a meeting with Ms. McKenzie2 Q.
and Mr. Dipple and you agreed on what information he3
should provide?4Well, the detail of what we requested5 A.
did not pertain to the number of sections in the6
methodology.7
I didn't ask you that.8 Q.
But you asked the detail be provided.9 A.
But you --10 Q.
We asked for the floodway and the11 A.
stream encroachment limits be determined and th12
hundred year floodway be determined by then. I 13
trying to recall it, but would I provide detail of14
what I looked at now, no, I wouldn't.15
No, all I am asking is did you ask for16 Q.
information then?17
Yes, we asked for information.18 A.
And that --19 Q.
So showing where the flood plain wou20 A.
be.21
And that information was provided?22 Q.
Yes, it was.23 A.
And there is, A-6 itself, the24 Q.
engineering report itself has hydrologic and25
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hydraulic data for calculation to support the1
calculations, does it not?2
It does.3 A.
And you have your own topographic4 Q.
information. Isn't that correct?5
Yes, we do.6 A.
In fact, you went on the site and did7 Q.
measurements, didn't you?8
We went on the site and measured9 A.relationship through flood debris elevation and its10
relationship to the site at one point.11
So, but with all that, you have never12 Q.
run, you, yourself have never run a model that would13
show where the boundary of the flood plain is?14
Well, as municipal engineer, we15 A.
usually consult out for the, and we did here, the16
review of this type of detail. I was not privy at17
that time to look at it because I was relying upon18
the Department of Environmental Protection and my19
consultant.20
So you can't tell us at this point,21 Q.
based on your own calculations, where the boundary22
of the flood, the floodway ought to be?23
And I never said I did.24 A.
Now, is, at the trial -- yesterday you25 Q.
19
made reference to certain, in connection with your1
analysis of the flood storage, you made reference to2
certain, quote, gate valves?3
Correct.4 A.Those were gate valves you testified to5 Q.
at trial?6
Correct.7 A.
And those are gate valves that are8 Q.
located at the end of the parking lot?9
Yes.10 A.
Are those gate valves currently11 Q.
operational?12
No.13 A.
Are they broken?14 Q.
One is definitely broken. It is bent15 A.probably through snowplowing in the past, but it is16
broken.17
And is the other one operational?18 Q.
I don't know. I didn't turn them or19 A.
check them to see if they were half opened or20
closed.21
Now, do you recall Mr. Dipple22 Q.
testifying at the trial that in their current state23
they were fully open?24
That I don't recall.25 A.
20
So you, yourself, don't know what their1 Q.
current state is?2
I just explained their current state,3 A.
and I don't know whether that one valve is open or4
closed.5
Uh-huh. So you have no information on6 Q.
your own on that?7
No, do you have any information of --8
how long have you been engineer in Cranford?9
Eight years.10 A.
Do you have any information of --11 Q.
during those eight years were you on the site prior12
to, prior to the trial in this case?13
I had been.14 A.
You were on the site in 2007?15 Q.
Yes.16 A.
Well, did, was that gate valve, did you17 Q.
see that gate valve at that time?18
No.19 A.
Do you have any information that would20 Q.
indicate that the gate valve was in a different21
condition --22
No.23 A.
-- in 2007 than it is now?24 Q.
No.25 A.
21
So at least for the past five years,1 Q.
you don't have any information that would indicate2
it is in a different position than it is now?3
That is correct.4 A.We had a little topo?5 Q.
We had a little topo?6 A.
Yeah, showing depressions and hills and7 Q.
valleys.8
Oh, I presented yesterday?9 A.
Yes.10 Q.
Yes, we did not make it large, the11 A.
board.12
Yeah. Okay. Okay D-16. Let me ask13 Q.
you to look at D-16.14
And you testified that there is a15depression sort of right in the middle of the site16
going from east to west, and how shall we describe17
it going north to south, not --18
To the east of the existing tree row.19 A.
Okay.20 Q.
How is that?21 A.
To the east of the existing tree row22 Q.
shown on this existing plan?23
That's correct.24 A.
And actually on sheet C0-2, it is the25 Q.
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same depression that is marked by this oval here?1
That's correct.2 A.
And let me make sure I understand your3 Q.
testimony.4
Your testimony is that during storm5
events, water collects in that site and flows off6
the site?7
Correct.8 A.
And where does it flow?9 Q.As the lines indicate on that map, it10 A.
flows to the south, between the tree row we just11
described and the existing parking lot, and enters12
into the wetlands.13
Okay. And it is your testimony that14 Q.
that needs to be calculated into the existing15
conditions on the site?16
My testimony referred to the different17 A.
option for time of concentration determination.18
That was not looked at. When looking at the19
existing topography map, which is what you have20
there, DA-1 actually prepared by Control Point21
Associates, Inc. determining the existing grades,22
contours, I was able to determine the direction of23
flow of the water that would go out of the site.24
Were you able to determine the25 Q.
23
magnitude?1
Did not determine the magnitude2 A.
because I was talking about the time of3
concentration.4So you can't tell us if it is large or5 Q.
small?6
I did not work out the calculations7 A.
because that is in the model, and it would still be8
the same time of concentration for that drainage9
areas that is defined as existing DA-3.10
Now, you show another, how shall I put11 Q.
it, what would you call that shade?12
Well, that is a ponding area.13 A.
Well, let's --14 Q.
It is cross-hatched.15 A.Okay. So is it is cross-hatched on16 Q.
your map on the northeast corner?17
Northeast corner.18 A.
Northeast corner of your map, you19 Q.
indicate that is another area that water collects,20
and does that also flow off the site?21
Yes, it does.22 A.
Were you able to determine the23 Q.
magnitude of that flow?24
No, the intent of the map is to show25 A.
24
that the time of concentration that was presente1
may not be the longest time of concentration.2
And as I testified yesterday, I was3
talking to the determination of time of4
concentration. You take the longest time, the5
furthest drop of water from that site that would6
drain off the site to your lowest outlay.7
In looking at that time of8
concentration, that was presented on DOA-1 by t9
applicant --10
MR. WOLFSON: Mr. Marsden, do you11
remember the question that he asked you?12
MR. MARSDEN: Yes. I answered that.13
MR. WOLFSON: Then stop.14
MR. MARSDEN: Oh.15
Now, now, did you, in your testimony16 Q.
did you show other places where you thought there17
was ponding on this map?18
No.19 A.
Okay. Now, in talking about, in your20 Q.
time of concentration analysis, you talked about the21
so-called rational equation. Is that right?22
It is tied into the --23 A.
And you indicated that Mr. Dipple used24 Q.
the rational equation in his analysis?25
25
I indicated the basic formulas that1 A.
are used for that --2
Well, is that what he did?3 Q.
I don't, I assume he did. I don't4 A.recall. They have models they run now --5
Are there other methods, other than the6 Q.
rational equation?7
Well, there are other methods derive8 A.
from that, correct.9
But in doing your analysis, it is your10 Q.
understanding that that is the methodology he used?11
Well, I didn't do the analysis.12 A.
MR. WOLFSON: He just wants to know if13
you thought he used it.14
You critiqued his analysis.15 Q.I critiqued his analysis, correct.16 A.
And was it your understanding that the17 Q.
analysis you critiqued was using the rational18
equation?19
MR. WOLFSON: If you remember.20
I am trying to find what I saw in the21 A.
book. I don't recall at this point. They have a22
chart that showed what the time, what the time 23
concentration was and they had input data for th24
MR. WOLFSON: Would that help refresh25
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your recollection as to if that is what he used and1
that is what you commented on?2
MR. MARSDEN: The book?3
MR. WOLFSON: Well, he asked you a4
question.5
MR. MARSDEN: I don't recall without6
looking at the book.7
MR. WOLFSON: He doesn't recall.8
Well, you gave us a long explanation of9 Q.
the rational equation.10
Well, the explanation is for time of11 A.
concentration comes from Q=CIA.12
The question is did you give us that13 Q.
explanation because that is what he used?14
I gave you the explanation because15 A.
that is where time of concentration is introduced to16
show what the total flow means on the site.17
I see. Okay. So he had to have used18 Q.
that?19
He had to use that or some form of20 A.
that, yes.21
So now my understanding, and tell me if22 Q.
I have got it right, in, on the subject of sewers,23
your concern is that increases in surcharge flow24
that is not under gravity, but under pressure,25
27
creates a risk of future failures in the system?1
An additional surcharge pressure in a2 A.
piping system --3
Is that your concern?4 Q.My concern is that you are introducing5 A.
additional pressure in the piping system, correct,6
and that does act on the integrity of the pipe and7
its material makeup.8
So, but is the problem, is the problem9 Q.
one of future failures?10
The problem is on the stress of the11 A.
pipe and the age of the pipe added, with the added12
flows will introduce a better chance of failure,13
correct.14
Now, how old, how old is the sewer15 Q.system in Cranford?16
In that area, it's probably 40,17 A.
50 years old.18
When you say that area, what are you19 Q.
referring to?20
Well, our storm sewer, our sanitary21 A.
sewer system is broken into a lot of different22
subsystems. One piping system does not travel23
around and through the entire site.24
The, that piping system that travels25
28
through the site in question is in the northern,1
north, northern reaches. It travel pretty much east2
to west out into Roselle Park. There are other3
systems that travel in other directions.4
Now, when you say that system are you5 Q.
referring to a map that is contained in A-17?6
Yes.7 A.
With the various stations marked MH-18 Q.
through 17?9
That is correct.10 A.
Are all the pipes of equal age?11 Q.
No.12 A.
Why don't you take us through and tell13 Q.
us how old the various segments are.14
That I could not tell.15 A.
Can you tell us which are the older16 Q.
segments?17
Well, I can tell you that the site had18 A.
building on it in the early '70's, so that makes it19
40, 50 years old.20
And --21 Q.
Could be 60.22 A.
And so for that to be sewered,23 Q.
everything else had to have already existed?24
For that to have been sewered, there25 A.
29
had to be development that occurred through this1
system.2
So there had to be, the sewer line that3 Q.
feeds this carries the sewage down under the Garden4State Parkway --5
Yes, correct.6 A.
-- and into Roselle already had to be7 Q.
in existence by the time those buildings were8
constructed and entered into the system?9
It had to be in existence at some10 A.
point as it was being constructed from the11
downstream end working your way up, meaning that --12
MR. WOLFSON: So yes, otherwise you13
couldn't have connected into it?14
MR. MARSDEN: Yes, you couldn't have15connected into it.16
That is all I am trying to understand.17 Q.
So the whole system is at least 40 to18
50 years old?19
At least. Probably at least. I can't20 A.
give you numbers. We don't have that information.21
The part under the Garden State Parkway22 Q.
had to be put in when the Parkway was built. Isn't23
that right?24
Well, I -- have to assume it was. I25 A.
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wasn't there. The Parkway in that area was built in1
'68, I believe. I lived in the area.2
So it has to be at least 50 years old?3 Q.
Yeah.4 A.
Incidentally, does the, does the5 Q.
municipality have an easement through the Parkway?6
Does it have the right to open the Parkway?7
That I don't know right now. I can't8 A.
answer that.9
That's, the Parkway itself is a state10 Q.
right-of-way?11
Yes.12 A.
Probably not just right-of-way, but the13 Q.
state owns it?14
State owns it, right. Parkway was15 A.
built in '58. Did I say '58 or '68?16
You said '68.17 Q.
'58.18 A.
So at least that segment of the pipe19 Q.
has to be at least 60 years old?20
Correct.21 A.
Now, you have been, you have been22 Q.
municipal engineer eight years?23
Eight years.24 A.
I know I just asked you that question25 Q.
31
and I have already forgotten the answer.1
Yes, eight years.2 A.
Eight years. Now, have there been,3 Q.
have there been failures in Cranford's sewer system4during that period?5
Town-wide?6 A.
Let me first ask you town-wide.7 Q.
Yes, we always have, a director of8 A.
public works, there is always monitoring of the bad9
areas. We have had failures in various parts of the10
town, yes.11
During your eight years, how many?12 Q.
During my eight years, I mean,13 A.
failures, complete failures and blockages, I believe14
we have had four that -- we have partial failures15
that we deal with as we go. And we have maintenance16
programs that we have, where we have actually in17
another development made that developer line that18
pipe section because of introduction of activity.19
But that is not a failure, that is20 Q.
something else?21
Well, I mean, define failures. If you22 A.
call it complete blockage, four.23
Have you had pipe bursts?24 Q.
Pipe bursts. That is what I meant by25 A.
32
failure, complete collapse.1
So sewage doesn't continue on?2 Q.
It doesn't continue on unless you3 A.
bypass it or get it out.4
Those, when were those?5 Q.
Oh, my gosh, the first one I think was6 A.
when I first came on board on Springfield Avenue. 7
second one, I believe, was on North Avenue. Third8
one was on Balmiere Place and -- there is five.9
Just recently, the Carpenter Place10
detention basin, which this system is part of, and11
just upstream of that we had a collapse just after12
the park, Garden State Parkway downstream in that13
system that had to be repaired.14
So when? I am trying to --15 Q.
Two of them were this year.16 A.
Two of them this year?17 Q.
We have budget money to repair the18 A.
one. We have made the emergency repair. It is19
functioning, but we are going to spend about20
$300,000. And the pipe burst and line through21
trenchless technology, the one that is under the22
Carpenter Place detention.23
Why don't you show us -- as you say,24 Q.
there were two recent ones. Why don't you show us25
33
on this map where those two recent ones are.1
Sure.2 A.
MR. WOLFSON: It is at map of A-17.3
MR. EISDORFER: Your Honor, this is4the map contained in A-6.5
MR. WOLFSON: A-6.6
MR. EISDORFER: The sewer system map7
contained in A-6.8
MR. WOLFSON: Thank you.9
Let's orient ourselves. So here is the10 Q.
site. (Indicating.)11
The site is in the upper right-hand,12 A.
left-hand corner, which is in the north.13
And --14 Q.
West portion.15 A.Here is the Garden State Parkway.16 Q.
(Indicating.)17
Garden State Parkway cuts across from18 A.
the upper right down short to the middle right going19
from north to south.20
And Roselle is off the --21 Q.
Roselle Park is off the map to the22 A.
right or east. The sewer system diagonally cuts23
across from this map from the upper left to the24
lower right. That's going from northwest to25
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southeast. The line that has failed is the line1
that cuts through the portion that's past manhole2
16. The other line that failed was just at, part of3
manhole, just before manhole 15.4
Okay. And when were those failures?5 Q.
This year.6 A.
This year. And at least during your7 Q.
tenure, there hadn't been any previous failures?8
On this system.9 A.
On this system. Now, say starting from10 Q.
manhole 15, how many residences are served by this11
system?12
I can't tell you that. I don't know13 A.
that answer.14
Dozens, hundreds?15 Q.
No, I wouldn't -- I mean, this is an16 A.
old map. You see I have no, unless we take a newer17
map and look it up, I cannot answer that question.18
Are there other residences served by19 Q.
this?20
Yes, there are residences.21 A.
Whole neighborhoods?22 Q.
There are neighborhoods.23 A.
So lots in a lawyer's term?24 Q.
Lots.25 A.
35
Lots. But --1 Q.
Lots as was determined in that2 A.
sanitary sewer report number of volume.3
I am trying to say how many residences4 Q.are served?5
I didn't do that calculation. It was6 A.
done in the report.7
But if we looked at a map, if we took8 Q.
this and looked at a map showing residences, we9
would be able to figure that out?10
You would be able to figure it out,11 A.
correct.12
And any failure affects all those13 Q.
houses, right?14
No, only affects those upstream in a15 A.failure.16
Now, yesterday you testified that there17 Q.
were, yesterday you testified that there were18
particular stretches of the line that would19
transition from open channel flow, from gravity flow20
to surcharged flow if, if this project were, went21
online. Is that correct?22
Your applicant's engineer testified to23 A.
those lines.24
Well, he did -- he testified --25 Q.
36
I agree.1 A.
He testified none of them would go to2 Q.
surcharge flow, but you said some of them would?3
Well, that's not correct. He said the4 A.
ones that had zero capacity.5
Are already in surcharge flow?6 Q.
That's correct.7 A.
But you said there were some that were8 Q.
going to change over. Which ones were those?9
Well, what I said was by introducing10 A.
the additional flows, you are more than tripling or11
multiplying at one point five times the amount of12
flow into the piping system, which creates a13
capacity, not including inflow and infiltration, of14
57 percent, 70 percent, 76 percent, 60 percent of15
additional flow. Not additional, capacity.16
Does that cause them to transition to17 Q.
surcharge flow?18
It does not cause them to surcharge19 A.
flow under non-infiltration conditions.20
Under current conditions?21 Q.
Under current conditions, correct.22 A.
Does that cause them to transition, in23 Q.
your opinion does that cause them to transition into24
surcharge flow?25
37
No, it would not be surcharge flow at1 A.
that point.2
Now I am not understanding. Are there,3 Q.
do you have an opinion that, that some stretches of4pipe current, not currently, currently operating5
under gravity flow, operating under open channel6
flow would transition to surcharge flow?7
When they transition to surcharge flow8 A.
is through the influence of infiltration and inflow,9
which is what I testified to.10
Well, let's take infiltration and11 Q.
inflow is a given.12
And I answered the question. Your13 A.
question was will those other pipes that I just14
referred to downstream of manhole 1 through manhole154 would not surcharge. They would have greater16
capacity to the point of 57 percent, 70 percent,17
76 percent and 59 percent as stated from manhole 118
through 4.19
In the existing conditions, those 120
through 4 manholes similarly would have 14 percent,21
29 percent, 32 percent and 25 percent. You are22
doubling the flow, introducing an opportunity23
because of infiltration inflow, to put pressure24
under those lines that never had that additional25
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flow before.1
So it is not pressure due to2 Q.
surcharges, but just due to the additional flow?3
As I said, introducing inflow4 A.
infiltration, there would be surcharges.5
I am just not understanding. Let me6 Q.
try again.7
Okay.8 A.
Under existing conditions with whatever9 Q.
infiltration and inflow there is are these currently10
operating in a surcharge condition?11
Can I make a suggestion? Eliminate12 A.
the word inflow and infiltration.13
No, I want to know --14 Q.
MR. WOLFSON: Isn't there inflow and15
infiltration now?16
MR. MARSDEN: Yes.17
MR. WOLFSON: Okay, so that is a18
given.19
MR. MARSDEN: Yes, right.20
MR. WOLFSON: When you use your bottom21
number that you are comparing your new numbers, it22
already has the influence.23
MR. MARSDEN: It does.24
MR. WOLFSON: His question is --25
39
MR. MARSDEN: The influence is --1
MR. WOLFSON: Stop, stop, stop.2
His question is with the new flow do3
they transition from gravity open channel to4surcharge, and you said, you gave me four different5
statistical percentages, all of which are under6
100 percent, so I am assuming the answer is no, they7
don't. Is that incorrect or is that correct?8
Under inflow infiltration during a9 A.
storm event which raises the level of inflow and10
infiltration, they would surcharge.11
When the normal inflow and12
infiltration, if that is recorded during their13
metering is there, then it should not surcharge14
based upon the numbers that was provided in the15
report. My under --16
So depending upon how much infil --17 Q.
Depend on the rain event.18 A.
From the event, it might?19 Q.
Correct.20 A.
So have you modeled that?21 Q.
Have I modeled that?22 A.
Have you modeled it?23 Q.
No.24 A.
So this is not based on any calculation25 Q.
40
or analysis?1
Right.2 A.
Well, it is --3 Q.
Is it is based upon, as you stated4 A.
later, in the Township of Cranford, we have old5
systems. We know during rain events, manholes do6
surcharge, meaning they do pop sanitary sewer up 7
of them in many areas. And we do know that old8
systems have inflow and infiltration rates, but I9
did not do that calculation.10
MR. WOLFSON: Has that happened on any11
of the manholes that would be servicing the areas12
that would be affected by this development?13
Manholes by it?14
MR. MARSDEN: I don't specifically15
know. There was testimony, I thought that there16
was. I can't tell you which ones. I never worried17
about which system they were prior to, you know,18
today. I just knew we have to deal with them. My19
public works people have those records that they20
keep an eye on.21
Most of my manhole, I would hope now22
all my manholes are sealed so there is no inflow23
directly.24
MR. WOLFSON: All right, go ahead.25
41
Now, yesterday you testified that you1 Q.
hadn't, you hadn't heard about any hydraulic grade2
line analysis as described by Mr. Dipple before his3
testimony yesterday. Is that correct?4I don't recall hydraulic grade line5 A.
analysis specifically. In what, in what reference6
was that?7
He testified to an analysis, a dynamic8 Q.
analysis that would show how high the water would go9
under dynamic conditions and whether it would rise10
the manholes.11
Are we are talking sanitary sewers?12 A.
Sanitary sewers.13 Q.
I haven't seen that report.14 A.
Now, do you recall him testifying to15 Q.that?16
I don't recall.17 A.
Okay.18 Q.
Other than this court.19 A.
Let me see if I can refresh your20 Q.
recollection.21
Okay. You probably can.22 A.
I am going to show you page 101 from23 Q.
the transcript of Mr. Dipple's testimony on24
August 2nd before Judge Chrystal, and let me ask you25
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to start reading at the sentence that begins at the1
end of line seven.2
MR. WOLFSON: Do you want him to read3
it to himself or out loud?4
Is this Mr. Dipple's testimony?5 A.
This is Mr. Dipple's --6 Q.
MR. WOLFSON: Wait, read it to himself7
or read it out loud?8
Out loud, please.9 Q.
Beginning at end of line six?10 A.
End of line seven.11 Q.
End of line seven, okay.12 A.
"And what we did is an analysis of the13
hydraulic grade line, which is the level in which14
water would seek if it wasn't restricted by the15
pipe. So the hydraulic grade line was well within16
the sanitary sewer."17
Okay. Now, does that refresh your18 Q.
recollection as to whether you have heard that19
testimony before?20
Well, it's in the document. I will21 A.
take that for fact. I don't recall it, but...22
Now, did you subsequently ask for any23 Q.
of the underlying calculations behind that analysis?24
Not at that time.25 A.
43
Well, you know when you had your1 Q.
meeting with Ms. McKenzie and asked, in August of2
2011, did you ask for it then?3
No.4 A.Have you asked for it at any subsequent5 Q.
time?6
I think just recently when we were7 A.
told that there was that report.8
MR. EISDORFER: Okay, I have no9
further questions of this witness.10
But --11 A.
MR. WOLFSON: Do you have any12
redirect, Phil?13
MR. MORIN: Yes, I do.14
REDIRECT EXAMINATION BY MR. MORIN:15
Mr. Eisdorfer asked you a number of16 Q.
questions about the gate valves that you testified17
to yesterday. Do you remember that?18
Yes.19 A.
MR. WOLFSON: Do you remember the20
testimony or do you remember --21
I remember yesterday my testimony.22 A.
You remember both? You remember the23 Q.
questions and what you talked about yesterday?24
Yes.25 A.
44
Well, from your engineering experience,1 Q.
why would someone put those valves in?2
Well, as I wrote in my letter, those3 A.
valves would be put in as an added restriction so4
that water can be backed up into the parking lot.5
They are put in because maintenance of a system like6
that is, I wouldn't say annoying, but difficult when7
we have a little pipe that runs a whole reach. It8
could clog.9
We try to restrict ourselves from10
having three-inch pipes that just run the whole11
system because leave debris, everything would clog12
it.13
So back at that point, we would put in,14
a valve or a short type of plate or whatever, you15
know, worked the best for the applicant that would16
regulate the flow. That would allow you to open the17
valve and clean a 12-inch pipe. But during the18
storm event or once the pipe is maintained and19
clean, you shut it back to its level.20
Usually there is a tag on it that shows21
you how far down it is, and then that restriction22
stayed there until the next time you want to23
maintain the system.24
MR. WOLFSON: So it restricts the25
45
flow?1
MR. MARSDEN: It restricts the flow2
more than what a 12-inch pipe by itself would be.3
The point being is why would I put a gate valve in4there in the first place if the 12-inch controlled5
the outflow. You wouldn't need to.6
In your opinion would there be any7 Q.
other reason to install the valves as they are?8
I'm sorry?9 A.
I will repeat the question.10 Q.
Would there be any other reason from an11
engineering perspective as to why those valves are12
installed?13
I could not think of any, even when I14 A.
first, you know, introduced the...15
MR. WOLFSON: Anything else?16
MR. MORIN: Nothing for me.17
MR. WOLFSON: Mr. Eisdorfer?18
CROSS-EXAMINATION BY MR. EISDORFER:19
When was the last time you saw those20 Q.
valves operate?21
I haven't.22 A.
Never?23 Q.
I never had the need to go check that24 A.
out --25
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MR. WOLFSON: So yes, never?1
MR. MARSDEN: Never.2
MR. EISDORFER: I have no other3
questions.4
MR. WOLFSON: Is there anybody in the5
audience who wishes to question Mr. Marsden on the6
substance of his testimony to date?7
State your name and spell your name for8
the Court Reporter, please.9
MS. SWEENEY: It is Liz Sweeney,10
S-W-E-E-N-E-Y, from Cranford.11
Mr. Marsden, regarding the sewers, will12
residents adding shut-off valves to their home sewer13
lines due to existing backup conditions add to the14
surcharge in the main line?15
MR. MARSDEN: Will residents adding16
shut-off valves --17
MS. SWEENEY: Can I explain where I am18
coming from?19
MR. MARSDEN: Please.20
MR. WOLFSON: You certainly can21
provide Mr. Marsden with a foundation for your22
question so he understands what you are asking.23
MS. SWEENEY: Wadsworth Terrace, the24
sewers back up.25
47
MR. MARSDEN: Correct.1
MS. SWEENEY: Everybody is adding2
shut-off valves to their homes so the sewers can no3
longer backup into their homes.4MR. MARSDEN: Okay.5
MS. SWEENEY: Does shutting down the6
sewage from coming in our homes do anything to the7
main line running down the road? Does it add more8
pressure to that?9
MR. MARSDEN: No. What it does is it10
prevents the back flow from going into your11
basements, and when you, as I have been recommending12
in town, you have a gate valve, one-way valve, so13
there is no back water going into your sewers during14
a storm event because, as you know, when we have a15storm event, because of inflow and infiltration,16
these systems do, you know, surcharge.17
When they surcharge, the water that is18
falling in through the ground getting into the19
joints of the pipe, that pressure level that is20
above the pipe acts in all directions. The pipe21
would try to push the flow downstream, but because22
it can't get that flow rate by gravity through a23
pipe size, it seeks other ways to go, backing up in24
the manholes, backing in the system that you are25
48
introducing more flow to.1
Now, if everybody stopped using it, it2
would not be as critical. It would recover sooner,3
meaning that you wouldn't have to wait as long as4
you do to open the gates again. But the method5
right now before storm events is that everybody that6
has a backup in the areas where the rivers and7
flooding occur should have some type of valve, a8
one-way valve, gate valve. I prefer not making them9
mechanical in case you are away and you forget, that10
it is something, that valve that will not allow11
water to backup. Like a check valve.12
MS. SWEENEY: My next question13
regarding the sewers is adding 80,000 gallons of14
water, of sewage to the sanitary sewer line at North15
Union Avenue and Wadsworth Terrace, will that affect16
the people upstream? Will we have more backup due17
to this additional sewage going into the line?18
What I testified to and what is19 A.
difficult to state exact numbers on is the fact that20
yes, introducing more flow into a system that wo21
be surcharge during a rain event would not help t22
system, meaning that it would create a worse23
condition.24
MS. SWEENEY: Okay, am I allowed to25
49
bring, I have a picture of --1
MR. WOLFSON: If you want to use it to2
ask a question.3
MS. SWEENEY: I can use it to ask a4question?5
MR. WOLFSON: You have to mark it and6
then you leave it.7
MR. MARSDEN: You may lose it.8
MS. SWEENEY: I may lose it. It is9
okay.10
MR. WOLFSON: You have to leave it.11
MS. SWEENEY: That is fine. I have a12
question.13
MR. WOLFSON: So would you like to14
mark that?15MS. SWEENEY: Sure.16
MR. WOLFSON: So the reporter, would17
you mark that Sweeney-1. Whichever one you want to18
show the witness you should have marked.19
MS. SWEENEY: Okay, and this one.20
(Indicating.)21
MR. WOLFSON: Just two pictures,22
Ms. Sweeney?23
MS. SWEENEY: Well, I have a few,24
but...25
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MR. WOLFSON: I want her to mark them1
all at once so we don't have to keep stopping.2
(Exhibit Sweeney-1, Photograph, is3
marked for identification by the Court Reporter.)4
(Exhibit Sweeney-2, Photograph, is5
marked for identification by the Court Reporter.)6
(Exhibit Sweeney-3, Photograph, is7
marked for identification by the Court Reporter.)8
MR. WOLFSON: And the only thing I9
would ask you, Ms. Sweeney, when you refer to a10
picture, refer to it by the number.11
MS. SWEENEY: Okay.12
(Exhibit Sweeney-4, Photograph, is13
marked for identification by the Court Reporter.)14
(Exhibit Sweeney-5, Photograph, is15
marked for identification by the Court Reporter.)16
MR. EISDORFER: I am afraid of, no17
significant foundation has been laid for these18
pictures.19
MR. WOLFSON: We will see where we go.20
MS. SWEENEY: I am referring to21
picture Sweeney-1. Regarding your split flow, does22
this picture mirror your split flow.23
MR. WOLFSON: What is the question,24
does it mirror?25
51
MS. SWEENEY: Yes, is this a picture1
of this, the water flowing through the conservation2
center?3
MR. EISDORFER: I think we need some4foundation to tell us what the picture purports to5
portray.6
MR. WOLFSON: Actually --7
MR. MARSDEN: Can I do this?8
MR. WOLFSON: Actually, she has asked9
him sort of that question, so I will allow that so10
far. Go ahead.11
MR. MARSDEN: It appears to be an12
aerial photograph possibly from Google Earth that13
shows the property that's north of the intersection14
of Birchwood Avenue and Cranford Avenue, focusing on15the Cranford Conservation Center, the wetlands and16
forest behind it and part of the Verizon parking lot17
to the left or, in this case, west end portion of18
Kenilworth residences to the right. It shows --19
MR. WOLFSON: Is the property in20
question on that picture?21
MR. MARSDEN: The property in question22
is on the lower left-hand corner or southwest.23
MR. WOLFSON: So most of the24
picture --25
52
MR. MARSDEN: Most of the picture --1
MR. WOLFSON: 90 percent or so is of2
other than the site?3
MR. MARSDEN: Focused on the4
conservation center, the stream and the wooded areas5
surrounding.6
MR. WOLFSON: And your question,7
Ms. Sweeney, was does this show the split flow?8
MS. SWEENEY: Does this show the9
stream and would this indicate a split flow or does10
it show the stream coming down to Kenilworth and11
where it does, where it goes?12
MR. WOLFSON: Let's break that down to13
one question at a time. Does it show the stream?14
MS. SWEENEY: Does it show the stream?15
MR. MARSDEN: Yes, it shows the16
stream.17
MR. WOLFSON: Next question.18
MS. SWEENEY: Does it show where the19
split flow might be? Can you indicate on that where20
the split flow would be?21
MR. MARSDEN: Because it is an22
aerial --23
MR. WOLFSON: Are you asking does the24
picture show a split flow or are you asking him to25
53
show us on the picture where the split flow would1
be?2
MS. SWEENEY: Could you show me on the3
picture where the split flow might be?4MR. MARSDEN: All right. On the5
picture it shows, similar to this Exhibit D-15, the6
channel for Orchard Casino Brook.7
MR. WOLFSON: So yes, it shows it?8
MR. MARSDEN: So the answer is it does9
show similarities to what you have on the map.10
MR. WOLFSON: Next question.11
MS. SWEENEY: I am referring to12
Sweeney-4. Do you recognize that location in13
Kenilworth at all?14
MR. MARSDEN: No.15MR. WOLFSON: Okay.16
MR. MARSDEN: This is Kenilworth.17
(Indicating.)18
MS. SWEENEY: Yes.19
MR. MARSDEN: Yes.20
MR. WOLFSON: You are representing21
that is Kenilworth.22
MS. SWEENEY: I am representing it is23
Kenilworth.24
Do you recognize that this might be the25
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brook in Kenilworth?1
MR. WOLFSON: You are referring to2
now?3
MS. SWEENEY: I'm sorry, Sweeney-3.4
Do you recognize that this might be the brook in5
Kenilworth?6
MR. WOLFSON: Do you recognize it at7
all?8
MR. MARSDEN: No.9
MS. SWEENEY: Do you recognize this at10
all?11
MR. MARSDEN: After looking at brooks,12
they all look --13
MS. SWEENEY: Can you tell me where14
this brook --15
MR. WOLFSON: He doesn't recognize it.16
You can ask him, you can tell him where it is and17
ask him if it refreshes his recollection.18
MS. SWEENEY: This is the brook in19
Kenilworth at Cranford Avenue and Faitoute Avenue.20
MR. WOLFSON: Does that refresh your21
recollection?22
MS. SWEENEY: Does that refresh your23
recollection?24
MR. MARSDEN: Well, I can't say25
55
because I look at a lot of little brooks --1
MS. SWEENEY: Could you tell me where2
that would be on your map?3
MR. MARSDEN: From your information --4MR. EISDORFER: If he doesn't --5
MR. MARSDEN: I don't recall.6
MR. WOLFSON: Assuming that that7
picture depicts what you say it does, where would8
that be on the map?9
MR. MARSDEN: It would be --10
MR. WOLFSON: Off the map.11
MR. MARSDEN: It would be in here.12
(Indicating.)13
MR. WOLFSON: Just on the upper14
right-hand corner?15MR. MARSDEN: Upper right-hand corner.16
MS. SWEENEY: Okay. And do you17
recognize where this water is coming from on18
Sweeney-2? Does that look at all --19
MR. WOLFSON: Can you identify that20
location?21
MS. SWEENEY: Can you identify that22
location? That's about 25 feet from the23
conservation center across from where the --24
MR. WOLFSON: Do you recognize it?25
56
MR. MARSDEN: Well, I am, it is1
difficult to say. There is no landmarks.2
MR. WOLFSON: Okay. Do you have a3
question about it, Ms. Sweeney?4
MS. SWEENEY: Yes. Would you say t5
this would be a normal, would this indicate the6
split flow coming down from here --7
MR. WOLFSON: Well, we don't have a8
proper foundation for where that is.9
MR. MARSDEN: I can't determine that10
MR. WOLFSON: Are you going to11
represent to us what that is?12
MS. SWEENEY: Yes, I can represent13
that that is about 25 feet from the conservation14
center.15
MR. WOLFSON: Okay. Now, assuming16
that to be so, Mr. Marsden, can you identify where17
that would be on a whatever this is? What is this?18
MR. MARSDEN: Exhibit D-15.19
MR. WOLFSON: D-15.20
MR. MORIN: I'm sorry, 25 feet toward21
the, between --22
MS. SWEENEY: Toward the Verizon23
building, which would be west on the map.24
MR. MARSDEN: May I ask where this25
57
picture was taken from?1
MS. SWEENEY: It was taken from --2
MR. EISDORFER: We are in the realm3
testimony now, Your Honor.4MR. WOLFSON: It's okay. It's okay.5
What is the question you want to ask about it,6
assuming that it shows an area?7
MS. SWEENEY: I wanted to know if th8
would be, would be a way of showing his split flow9
from here down to --10
MR. WOLFSON: No, he can't answer11
that. He wouldn't.12
MR. MARSDEN: No, no, you wouldn't 13
able to tell.14
MS. SWEENEY: Okay, my last questio15Where is my first picture? One more question and 16
am done.17
MR. WOLFSON: Take your time.18
MS. SWEENEY: Sweeney, S-1, can yo19
tell me about the condition of the ground around th20
conservation center? Is it forested?21
MR. MARSDEN: Well --22
MS. SWEENEY: From this picture?23
MR. WOLFSON: Do you know that from24
your own knowledge anyway?25
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MR. MARSDEN: My own knowledge is that1
a good portion of the center of the conservation is2
not forested because we use it for leaves, topsoil,3
transfer materials.4
The perimeter to, oh, the perimeter to5
the southwest and northeast along Birchwood Avenue6
and Cranford area have wooded frontages. That may7
be 50 feet deep or 25 feet deep.8
MS. SWEENEY: And due to the fact that9
it is not forested would it make it easier for the10
water to flow down from this stream to Birchwood11
Avenue?12
MR. MARSDEN: Well, what it would do13
is make the water that falls on the open areas, what14
it would do is let, the water will flow faster on15
non-wooded areas into the brook wherever the contour16
is directed. Wooded areas, it would stay in the17
trees for a while and some would be absorbed and it18
would go down through the grass and the mulch and19
some information there.20
But open areas, the flow does move21
quicker.22
MS. SWEENEY: All right, thank you.23
MR. WOLFSON: Based on the lack of24
foundation for those photographs, either counsel25
59
take issue with the fact that they should not be1
made part of our record?2
MR. EISDORFER: Your Honor, it seems3
to me the only photograph for which foundation was4laid is the first one.5
MR. WOLFSON: First one. Right.6
Other than that?7
MR. EISDORFER: Other than that, we8
object to them.9
MR. MORIN: Well, I would say at this10
point that is premature. I think Ms. Sweeney is11
entitled to provide testimony herself during the12
public comment portion.13
MR. EISDORFER: If she doesn't.14
MR. WOLFSON: Fair enough.15
MR. MORIN: And qualify these photos.16
MR. WOLFSON: I agree with that. If17
she chooses to do that, it is possible they be made18
part of the record.19
Ms. Sweeney, we are going to allow S-120
in because there was an adequate foundation of what21
it was and where it was situated. If you want the22
other 4 or 3, however many there were, to be made23
part of the record, you will have to give us sworn24
testimony as to how you got them, where they were25
60
taken, the orientation and what they depict, and1
that they accurately depict what they purport to2
depict. If you can do that, they can be made part3
of the record if you choose to do that.4
So we will mark S, Sweeney-1 part of5
the record. We need to hold onto that, and the6
other four give back to Ms. Sweeney.7
MR. MORIN: Actually, another8
question. One of the photos Ms. Sweeney marked S-5.9
In looking at that photo --10
MR. EISDORFER: What is going on here?11
MR. MORIN: I am asking follow-up12
questions based upon --13
MR. WOLFSON: Not your turn, but...14
MR. MORIN: That's fine. That's fine.15
When Steve said he had no follow-up questions, I16
will ask my questions.17
MR. WOLFSON: I just asked whether or18
not anybody objected to or didn't object to them19
going on in. Anyway, let's not get ahead of20
ourselves.21
Is there anyone else in the audience, a22
member of the public who wishes to ask any questions23
of Mr. Marsden?24
Ms. McKenzie, do you have any questions25
61
that you would like to ask of Mr. Marsden?1
MS. MCKENZIE: Yes, I do.2
Mr. Marsden, yesterday when you were3
testifying, you talked about how, you talked about4the fact that there are buildings and parking areas5
on 215 Birchwood and that with the building there,6
there is less area to flow through the building7
actually helps to detail the water through some8
areas and force it through other areas, is what I9
gathered, and correct me if I am misunderstanding10
what you said.11
And you felt that Mr. Dipple should12
have figured out the, I guess, detention function of13
the buildings on 215 and how much they might slow14
the run-off. Is that what you were saying?15
MR. MARSDEN: No, what I was saying is16
I just wanted the hearing officer to recognize that17
when you are looking at the sections that were18
provided to us that day, as I presented them in19
order from upstream to downstream, that the area20
where water flows through before you run into that21
building is a wide, a larger area.22
With the building in the way, the area23
becomes a lot smaller so, therefore, that volume of24
water still has to get pushed through that area that25
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had been determined due to the pushing the floodway1
lines in.2
The point was, is that looking just for3
general understanding that you are taking water4
through a wider area section and then you are5
introducing it to the next downstream section which6
has a building in it, and it becomes narrower. It7
could come smaller.8
MS. MCKENZIE: You are talking about9
the increased velocity of the water?10
MR. MARSDEN: Yes, that is right. I11
am saying something would have to give, meaning that12
the water can't just flow through an opening yay big13
at the same foot elevation, and then flow through an14
opening that is less.15
MR. WOLFSON: The question is what is16
the relevance?17
MR. MARSDEN: Well, the --18
MS. MCKENZIE: That was my question,19
what does that --20
MR. MARSDEN: -- relevance is that21
either the floodway would have to be adjusted to22
allow for that area if the elevation stays the23
same --24
MR. WOLFSON: But why does that --25
63
MR. MARSDEN: Or the velocity is1
increased.2
MR. WOLFSON: Why is that if the3
building is going to be gone?4MR. MARSDEN: Well, the issue is the5
determination of the floodway. With the building6
gone, it would be a non-issue, that's correct.7
MR. WOLFSON: And that is what they8
did, right?9
MR. MARSDEN: No, I believe they were,10
testified to the fact that the building was there11
and they would remove it.12
MR. WOLFSON: Okay. Okay. Go ahead.13
MS. MCKENZIE: So what are you saying14
he should have done instead, I guess that is my15
bottom line?16
MR. MARSDEN: What I am saying is that17
section of the floodway that gets very narrow and18
goes towards the stream in their analysis may not19
be, well, in my opinion is not correct based upon my20
experience in determining floodways. Yes, you can21
force it, as I explained by the showing the map22
through the velocity numbers got higher in that one23
channel area.24
MS. MCKENZIE: You are saying that25
64
would have increased the size of the floodway?1
MR. MARSDEN: It increases the flow2
and it forces the elevation on the upstream and3
downstream section to become higher, so you are so4
of playing a balancing act. Is that a true5
representative of the floodway? That's what will be6
determined by D.E.P.7
MS. MCKENZIE: Okay, and here is, so 8
have two additional questions then.9
Did you do any calculation yourself of10
what that impact might be?11
MR. MARSDEN: No.12
MS. MCKENZIE: And based on your13
knowledge and familiarity with that area and the14
drainage area and the size of the floodway and15
flooding in that area, I guess, do you believe that16
that would result in a substantial change in the17
delineation of the floodway?18
MR. MARSDEN: Ask that question agai19
MR. WOLFSON: Even though you didn'20
do the calculations --21
MS. MCKENZIE: Based on your22
experience and your knowledge of the area do you23
think that having failed to take into consideration24
the impact of those, the placement of those25
65
buildings on stormwater velocities, do you think1
that that would have, that that will substantially,2
if that were taken into consideration, would it3
substantially alter the delineation of the floodway?4MR. MARSDEN: First of all, it's, it5
is not a failure. It is part of the models, what6
they did. My concern in prior to presenting7
testimony in my notes was saying that very seldom8
does a floodway jut in and then jut out. What I say9
usually tries to, you usually try to look at the10
analysis via model on the overall basis to determine11
what a realistic floodway would be.12
MR. WOLFSON: The question --13
MR. MARSDEN: I have done models --14
MR. WOLFSON: The question is does it15
make a difference?16
MR. MARSDEN: Well, it does make a17
difference if I say --18
MR. WOLFSON: What is the difference?19
MR. MARSDEN: Well, it cuts into20
Building A.21
MR. WOLFSON: What is the difference22
downstream in terms --23
MS. MCKENZIE: No, no, no. Actually,24
even, I am even interested in when you say it cuts25
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into Building A, do you, do you have some idea of1
the magnitude of that impact? I mean, are we2
talking about inches? Are we talking about feet?3
MR. MARSDEN: No, we are --4
MR. WOLFSON: Are we talking about5
eliminating Building A?6
MR. MARSDEN: We are talking about7
feet. We are talking about taking that indentation8
that occurs and smoothing it out so it doesn't jump9
in there by 20, 40 feet. It's a question that10
D.E.P. has.11
MS. MCKENZIE: Can you show me on one12
of the exhibits what you mean?13
MR. MARSDEN: Sure.14
MR. WOLFSON: I don't understand what15
the impact is here.16
MS. MCKENZIE: That is what I am17
trying to find out.18
MR. MARSDEN: This is existing. We19
are looking at C-2.20
MS. MCKENZIE: Yes.21
MR. MARSDEN: There is your floodway,22
the dark line. . (Indicating.)23
MS. MCKENZIE: Right.24
MR. MARSDEN: See how it juts in here?25
67
MS. MCKENZIE: Yes.1
MR. MARSDEN: It is in the section,2
when they analyze it, there is the building, there3
is the area the water can flow through. Here is the4area. I am not going to doubt those the water can5
flow though into here.6
What I am saying is prior to that, it7
is a wide flood, it is a wide area that water can8
flow.9
MS. MCKENZIE: It seeps up.10
MR. MARSDEN: And now it tightens up.11
So what I am saying is because of the velocities12
would have to increase in order to keep this here is13
that realistic to modeling where a floodway would be14
and my experience indicates that a floodway follows15
areas that are more conducive to topography.16
MR. WOLFSON: Let's say you are right.17
The question is --18
MR. MARSDEN: I will show you in a19
minute.20
MR. WOLFSON: So what, what happens?21
MR. MARSDEN: Well, what happens is if22
the, if the D.E.P. does not agree with the floodway23
and becomes more consistent, like here, that24
floodway would continue and go out taking part of25
68
that area where Building A is.1
MS. MCKENZIE: So, are you suggesting2
that in effect that once you remove the buildings3
and the floodway does what it might have done prior4
to that, those buildings being placed in the5
floodway, that you will have the part of Building A6
would then be --7
MR. MARSDEN: Well, I am still saying8
that no building is in the, no building is here in9
the finished --10
MS. MCKENZIE: I understand. I am11
talking about --12
MR. MARSDEN: Now, we have run that13
flow through there. It still narrows for some14
reason right there and... (Indicating).15
MS. MCKENZIE: Because the floodway --16
MR. MARSDEN: -- the reason is because17
of a few grades, spot grades that are there. If you18
take the building out, you are taking the --19
MR. WOLFSON: The old building out.20
MR. MARSDEN: The old building out.21
I'm sorry, if you take the old building --22
MS. MCKENZIE: I understand.23
MR. MARSDEN: -- and remove the24
parking lot and the grade changes here (indicating),25
69
this grade is only up here to drain the parking lot.1
That is what was introduced. That is why you look2
at the floodway and over --3
MR. WOLFSON: Of the new building?4MR. MARSDEN: No, no.5
MS. MCKENZIE: Of the old building.6
MR. MARSDEN: The old building. There7
were two driveways. I can show that.8
There are two driveways. All right.9
This is one. This is the other. The site parking10
and design of this existing complex drain this way11
and that way. To do that, they elevated this here.12
Okay. If you follow the contours of the grading13
that is reflected in the area, you show this is a14
high point, 77, 76. This becomes 77, 76. This15
becomes the regime where the water would flow16
through prior to these buildings. So the17
determination of the floodway should be consistent18
with the character of the area. That is what I am19
saying.20
MR. WOLFSON: And that is important --21
MR. MARSDEN: That's important.22
MR. WOLFSON: -- because?23
MR. MARSDEN: They are putting a24
building --25
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MR. WOLFSON: In the floodway?1
MR. MARSDEN: In what may be the2
floodway.3
MS. MCKENZIE: It is not in the4
floodway now, but it is proposed to be in what could5
become effectively the floodway is what you are6
saying?7
MR. MARSDEN: What I am saying is this8
line may not be correct. D.E.P. will have to9
determine that --10
MR. WOLFSON: Suppose --11
MR. MARSDEN: -- if this line is here.12
MR. WOLFSON: Let me ask you the13
question. If the line is not correct --14
MR. MARSDEN: Okay.15
MR. WOLFSON: -- and the new flood16
line that D.E.P. says is the new floodway line puts17
the proposed building in the floodway, what happens?18
MR. MARSDEN: Then they have to move19
the building out.20
MR. WOLFSON: Okay. So that is up to21
the D.E.P.?22
MR. MARSDEN: That's correct.23
MR. WOLFSON: Okay.24
MS. MCKENZIE: And when DEP requires a25
71
calculation of the floodway and requires the1
determination of the floodway do they do that based2
upon existing conditions on the day that you are3
essentially doing the study and making the4application or do they do that on what would be5
natural conditions without any development, because6
that is sort of the choice that you are talking7
about here?8
MR. MARSDEN: Well, that is correct.9
What will they do? They should look at it as I10
described it.11
If there is a, if there is a character12
change that I call is more extreme in a small area,13
they should look at that and say why did that occur14
and then they should review that in more detail.15
And if it is acceptable to them, they would hold it16
there.17
MS. MCKENZIE: And is it your18
experience that they tend to do that or that they19
tend to rely on their formulas and models?20
MR. MARSDEN: Well, in my experience,21
I have not showed a sudden increase or change in the22
floodway that is dramatic.23
I did through the flood maps we had in24
2006 that were brought in from FEMA question their25
72
floodway due to the fact that it was crisscrossing1
levies and doing other things and they modified it.2
Because in the model, sometimes they don't look at3
the natural features as much as they should have.4
MS. MCKENZIE: Okay. So that leads t5
another question because I think this is important.6
If there are issues that the township legitimately7
feels are, you know, should be brought to D.E.P.'s8
attention, what is the process and what9
opportunities in the process will the township have,10
or does the township have to bring these issues to11
the attention of the D.E.P. in their review?12
MR. MARSDEN: Well, as I testified13
earlier and as the applicant's attorney showed, I14
had questioned in 2010 or 2011 --15
MR. WOLFSON: January 2011.16
MR. EISDORFER: A-25 and A-26.17
MR. WOLFSON: What was the date on18
that?19
MR. EISDORFER: And A-26 and A-27.20
You are referring to these documents?21
MR. MARSDEN: Yes.22
MS. MCKENZIE: A-26 and A-27, let me23
write those down. A-26 being --24
MR. MARSDEN: The January --25
73
MR. EISDORFER: 3.1
MS. MCKENZIE: January 3rd.2
MR. MARSDEN: Right.3
MS. MCKENZIE: Memo?4MR. MARSDEN: Correct.5
MS. MCKENZIE: And A-27 being the6
August --7
MR. MARSDEN: August 2nd.8
MS. MCKENZIE: 2nd.9
MR. MARSDEN: Correct.10
MS. MCKENZIE: Is this also a memo?11
MR. MARSDEN: No. Well, the12
January one is a letter and the second one is a13
memo.14
MS. MCKENZIE: I'm sorry, go ahead a15
answer. I didn't mean to interrupt.16
MR. MARSDEN: I am going back to17
detail. I may not have, I did not address the18
floodway on the January memo. I was highlighting19
based on conceptual information we have had20
previously and testified to -- oh, I did, 1.3. I21
did question the floodway at that point, yes.22
MS. MCKENZIE: Okay, that's, I am not23
asking what you did because that stands for itself.24
That has already been asked.25
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MR. MARSDEN: I am just telling you.1
MS. MCKENZIE: I am asking is there a2
process by which you can make D.E.P. aware of your3
concerns with their methodology and bring attention4
to what you believe may be flaws in the applicant's5
calculations or approach to the determination of the6
floodway and potential impact of the development on7
flooding?8
MR. MARSDEN: Yes. And on the,9
actually, August 2nd letter, I did that. That was,10
you know, the follow-up to the more detailed review.11
MS. MCKENZIE: And have you received12
any response from D.E.P.?13
MR. MARSDEN: Actually, a little more14
than two weeks ago here I got a phone call on a15
Tuesday and I was told by their review officer,16
Valda, that they are not reviewing it until they17
have an application to review, and they said they18
didn't have it at that time.19
MS. MCKENZIE: Okay. Will they allow20
you to resubmit? Will they hold your letter?21
MR. MARSDEN: They told me they would22
take my letter and take it under consideration and23
review it when the application comes in.24
MS. MCKENZIE: Okay. Okay, thank you.25
75
And are you able to, is there an1
opportunity for you to attend any meetings between2
D.E.P. and the applicant if you ask to be included3
in those meetings? Are there opportunities for you4to be there?5
MR. MARSDEN: Well, I am sure there6
would be based on this case.7
MS. MCKENZIE: Okay. Okay, thank you.8
Let me just see.9
You said something, you raised a10
question which I thought was interesting in your11
memo, your August 6th, is it August 6th -- or July12
30th letter.13
MR. MARSDEN: 20.14
MS. MCKENZIE: July 20th, whatever,15the one where you raise the issue about the problem16
with the lighting stanchions that were going to be17
in and amongst the trees along the nursing home18
property and your concern that ultimately those, the19
trees would impede light.20
Is there another alternative, such as21
putting goose neck lamps on the parking garage to22
light the parking lot as opposed to using23
traditional lighting stanchions.24
MR. MARSDEN: Well, there are always25
76
other alternatives, yes.1
MS. MCKENZIE: Is there something that2
you --3
MR. MARSDEN: I mean, your suggestion4
works. The question is -- I mean, I am not5
designing. I don't know the character of what they6
want the site to look like. My concern was that7
where the lights -- referring back to the plan8
package, sheet six, the lights are shown within that9
ten-foot buffer.10
MS. MCKENZIE: Right, right. And you11
had raised the question in your memo which I think12
is valid that, you know, that the problem is if you13
are not really careful about where you trim trees14
and things, eventually the lights will be obscured15
and it will be fairly meaningless. And I was16
wondering if there was an alternative place where17
you could put the lights to achieve the objective of18
lighting the parking lot.19
And I suggested the possibility of20
goose neck lamps on the parking side of parking21
garage looking out over the rest of the parking lot,22
and I was wondering if you thought that would be a23
potential solution or something that the applicant24
should look at as an alternative to having any25
77
lighting stanchions at all in that ten-foot area. I1
was listening to you.2
MR. MARSDEN: Thank you. Yes, it is3
an idea, and you ask if there is any other ideas.4What we do a lot of times is put the lights in the5
parking islands so that they are further out from6
the buffer so they would not be impacted by growth7
and vegetation in that ten-foot stretch.8
MR. WOLFSON: Ms. Eisdorfer, is that9
something your clients are willing to discuss?10
MR. EISDORFER: We are willing to look11
at all the alternatives.12
MR. WOLFSON: So my suggestion to13
counsel and Mr. Marsden is during the time period14
between which we conclude today hopefully and you15submitting to me your proposed findings of fact and16
recommendations and proposed list of conditions,17
that you either try to work that out or not. If you18
don't, then give me what you want as a proposed19
condition and Mr. Eisdorfer will give me whether he20
will or won't be willing to live with by way of a21
voluntary condition.22
MS. MCKENZIE: Thank you.23
My next question, Mr. Marsden, in terms24
of lighting, you had initially recommended that25
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because there might be drop off along Birchwood in1
front of Building B that there should be2
streetlights in that location, and then you said3
that because that is not going to be a drop-off area4
that you rescinded that recommendation.5
Do you think there is any wisdom or not6
in having streetlights along Birchwood or along that7
part of the Birchwood which is the applicant's8
frontage -- or would you be inclined not to9
recommend that because of its effect on the overall10
character of the area? I am interested in your11
recommendation.12
MR. MARSDEN: Well, in my opinion,13
your second statement I feel is more correct in that14
I don't want to overlight the area either.15
MS. MCKENZIE: Okay.16
MR. MARSDEN: And there are existing17
lights at the intersections of the post entranceway18
and there are streetlights that are staggered there19
that do --20
MS. MCKENZIE: So you are satisfied21
that if there is not going to be a drop-off area22
created there, it doesn't need to be --23
MR. MARSDEN: If there is not an24
increase in pedestrian traffic, which they are25
79
saying there will not be because there will be1
vehicles coming into the site instead of stopping2
at, you know, the Birchwood curb line.3
MS. MCKENZIE: Okay. And then looking4again at your January 20th letter, I just, I missed5
something and I am just asking for the record, you6
talked about your comments 21 and 22 -- actually, it7
is not -- yeah, 21 and 22 which had to do with a8
silt fence location and the stockpile location.9
What were the outcomes of those10
discussions or those recommendations? Did they11
agree to that --12
The outcome on the stockpile I13 A.
believe, the testimony was that, I am looking at map14
C-8 in the --15
MR. WOLFSON: My note says they will16
comply with the 15-foot.17
MR. MARSDEN: They will comply with18
the 15-foot, and the stockpile would be moved if it19
became an issue.20
MS. MCKENZIE: Okay. That is all.21
That is all I wanted to know. And then I am almost22
done here. Just a couple more questions.23
And just one more question about those24
gate valves, which I am sure you are tired of25
80
hearing about.1
Who would normally have been supposed2
to operate those valves to control what happened3
during a flood?4
MR. MARSDEN: Well, that would be the5
property owner. It is a private system. It would6
be, they would be the ones in charge.7
MS. MCKENZIE: So if the property8
owner decided he didn't want his parking lot to hold9
a lot of water, he just wouldn't bother to shut10
them?11
MR. MARSDEN: That's correct.12
MS. MCKENZIE: Okay, thank you.13
MR. WOLFSON: Anything else?14
MS. MCKENZIE: No. Thank you.15
MR. WOLFSON: We will take five16
minutes, and when we come back, I guess I will ask17
counsel whether they have follow-ups of Mr. Marsden.18
(Whereupon, a short break is taken.)19
MR. WOLFSON: We are back on the20
record. Either counsel have any questions in light21
of Ms. McKenzie's questioning?22
MR. EISDORFER: Your Honor, I do.23
MR. WOLFSON: Go ahead.24
CROSS-EXAMINATION BY MR. EISDORFER:25
81
Mr. Marsden, when is the last time you1 Q.
filed an application for a flood hazard area permit?2
MR. MORIN: Objection. It is not3
responsive to special master's questions.4MR. WOLFSON: I think it actually is5
directly related to her asking him whether he had an6
opportunity to do certain things.7
MR. EISDORFER: Well, she has asked8
him to offer opinions based on his judgment and9
experience.10
MR. WOLFSON: I will allow it. Go11
ahead.12
When is