SUPERIOR COURT OF NEW JERSEY LAW DIVISION CIVIL PART UNION COUNTY, NEW JERSEY DOCKET NO.

: UNN-L-140-08 A.D. NO.: ____________ CRANFORD DEVELOPMENT ) ASSOCIATES ) ) Plaintiff ) TRANSCRIPT ) vs. ) OF ) TOWNSHIP OF CRANFORD ) TRIAL ) Defendant ) Place: Union County Courthouse Two Broad Street Elizabeth, New Jersey 07207 BEFORE: Date: August 2, 2010

THE HONORABLE LISA F. CHRYSTAL, J.S.C. TRANSCRIPT ORDERED BY: CARL R. WOODWARD, III, ESQ. (Carella, Byrne, Cecchi, Olstein, Brody & Agnello) APPEARANCES: STEPHEN M. EISDORFER, ESQ. (Hill, Wallack, LLP) Attorney for the Plaintiff CARL R. WOODWARD, ESQ. (Carella, Byrne, Bain, Attorney for the Defendant Gilfillan, Cecchi, Stewart & Olstein) REGINA CALDWELL

UTOMATED TRANSCRIPTION SERVICES

P.O. Box 1582 Laurel Springs, New Jersey (856) 784-4276 SOUND RECORDED Operator: G. Plummer

I N D E X AUGUST 2, 2010 PLAINTIFFS WITNESS: DIRECT Mr. Dipple Voir Dire 5 Voir Dire 20 Voir Dire 30 Voir Dire 83 EXHIBITS P-10A P-10B P-10C P-11 P-11A P-13 P-20 P-20A P-36 P-37 P-38 P-39 P-39A P-55 P-63 P-63A P-64 P-64A D-43 D-94 D-98 D-105 D-113 9 20 31 90 IDENTIFIED 26 26 27 93 94 12 14 18 9 11 12 12 37 34 48 50 48 52 EVIDENCE 30 30 30 13 20 20 9 13 13 13 90 85 84 85 85 CROSS 108 REDIRECT RECROSS

DEP Letter of Interpretation Wetlands Survey Plan Wetlands Survey Plan - Colorized Existing Sanitary Sewer Map 1/09 Highlighted Sanitary Sewer Map Sanitary Sewer Capacity Study 1/09 Aerial Photo Enlarged Aerial Photo - Markings Mr. Dipples CV Letter Report 10/29/09 Flooding Letter Report 2/4/10 Flood Hazard Area Study Summary Branch 10-24 Flood Hazard Map Components of Flood Hazard Area Concept Plan Current Concept Plan Cross-sections of Concept Plan Enlarged Cross-sections of Concept Plan Site Investigation Report 5/21/08 PS&S Letter Report 10/14/09 Mr. Marsdens Memorandum 10/21/09 Mr. Dipples Letter 11/11/09 Mr. Creelmans Letter 1/14/10

110 112 115 115 117

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Cranford Development Associates May I have the

versus Township of Cranford.

appearances of counsel, please? MR. EISDORFER: Stephen Eisdorfer, of the

firm of Hill, Wallack, L.L.P., on behalf of Plaintiffs, Cranford Development Associates, et al. MR. WOODWARD: Carl Woodward. I guess Mr.

Cohens -- Carl Woodward -MR. COHEN: Douglas Cohen. Im general

counsel for Cranford Development Associates. THE COURT: Okay, welcome. I think I left

the sign-in sheet on my desk. MR. WOODWARD:

Thank you.

Your Honor, Carl Woodward, of

-- and Brian Fenlon and Vincenzo Mogavero on behalf of the Township of Cranford. Were with the firm of

Carella, Byrne, in Roseland. THE COURT: Welcome to all of you. Thank you.

MR. WOODWARD: THE COURT:

Welcome to those of you that are So, welcome to all

in the courtroom not introducing. of you. MS. MC KENZIE: appointed master. THE COURT: Okay.

Elizabeth McKenzie, court

All right, very well.

So,

the Court and counsel have spoken briefly in chambers

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them. engineer. THE COURT: Okay, all right. Did anybody and I think were going to start, Mr. Eisdorfer, with your experts, is that correct? MR. EISDORFER: Yes, well start with my

want to make a brief opening statement or -MR. EISDORFER: Your Honor, I dont think we

need to make an opening in this case. THE COURT: Okay, likewise, Mr. Woodward? I agree with that, Your Honor.

MR. WOODWARD:

Weve -- Your Honor, weve submitted trial briefs of some length that certainly, I think, clearly sets forth our position of why we believe that this site is not suitable. Thank you. THE COURT: Okay. Mr. Eisdorfer?

MR. EISDORFER:

Your Honor, before we begin,

as I indicated in chambers, there have been additional exhibits that should be added to the end of the Courts binder. And Ill give that to the Court. THE COURT: Okay. Everybody else has received

MR. EISDORFER:

Your Honor, Id like to call Michael Dipple as

my first witness. MICHAEL DIPPLE, PLAINTIFFS WITNESS, SWORN COURT ATTENDANT: State your full name, sir.

Mr. Dipple - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. A. A. Spell your last name. THE WITNESS: THE COURT: Michael Dipple, D-I-P-P-L-E. And if you could just let

Okay.

me know where in this exhibit binder -MR. EISDORFER: Your Honor, were going to

begin with Exhibit -- Im going to call out the tabs as we go, but -THE COURT: That would be helpful. But the first tab is Tab 36.

MR. EISDORFER:

VOIR DIRE EXAMINATION BY MR. EISDORFER: Q. please? A. Michael Dipple, D-I-P-P-L-E. Q. I do. Q. Where is that located? And do you maintain an office in New Jersey? Mr. Dipple, would you state your full name,

Its 60 Grand Avenue, in Englewood, New Jersey. Q. And what is your profession?

Im a civil engineer. Q. I do. Do you hold any licenses in New Jersey? Im a licensed professional engineer in the

State of New Jersey. Q. And can you tell us what your education is?

I have a bachelor of science, from Rutgers

University, in civil and environmental engineering.

Mr. Dipple - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And -MR. WOODWARD: Excuse me, Your Honor. I

cannot see the witness, if counsel could move. MR. EISDORFER: Oh, Im sorry.

CONTINUED BY MR. EISDORFER: Q. Can you describe to us your employment

background? A. Yes. I was first employed, after I graduated from

Rutgers University, in 1991, by Killam Associates, in Millburn, New Jersey. Where I was part of the storm I left there in 1994 and was

water management group.

employed by Bohler Engineering, working on site civil plans for land development projects, until June of 2000. In June of 2000 I went to work for Edwards and

Kelcey, in Manhattan, and, again, was the lead for their site civil department. And I left there in 2006

and formed L2A Land Design with another partner. Q. Now, in your experience as an engineer, do

you have experience with midrise buildings? A. I do, yes. Q. And can you indicate the extent of that

experience? A. Yeah. To name a few, we worked with the

Essakimian Group on two large projects in the City of Englewood. One, which is now referred to, I believe,

Mr. Dipple - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.

as the Brownstones, which is on the north side of Route 4, and another large midrise development on the south side of Route 4, which I believe is referred to now as the Sheffield or Flat Rock Square. I did some midrise It was a

work in Princeton, in downtown Princeton.

redevelopment project and a mid to high-rise development in Hoboken for the Essakimian Group. there may be others. Q. flooding? A. Yes, I do. In fact, my experience at Killam And

I -- those are the most recent.

Do you have experience in areas with

Associates is when I was introduced to floodplain and floodplain management, and we did a lot of flood studies. In fact, the Rahway River, just north of

Cranford, was one that I spent a lot of time on for Essex and Union Counties. And the two developments

that I mentioned in Englewood are both fully enclosed within the floodplain of the Overpeck Creek. Q. The floodplain or the flood hazard area? I will be sure to describe

The flood hazard area.

it as the flood hazard area. Q. Okay. Let me show you the -- this document.

Im showing -MR. EISDORFER: thats Tab 36. P-1. Im marking the document

Mr. Dipple - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 seen it. MR. EISDORFER: THE COURT: Its Tab 36. evidence. MR. WOODWARD: THE COURT: May I see it, Your Honor? Q.

Mr. Dipple, let me show you the document that

weve marked as P-1 and ask you to identify that document for me, please. A. Yes. That is my CV. MR. EISDORFER: I offer this CV into

I assume theres no objection. Id like to see it. I havent

MR. WOODWARD:

Oh, 36 in the exhibit binder. It might make it, Your Honor,

MR. WOODWARD:

it just might make it easier if we -- I dont know how you want to proceed, but it would just make it less confusing if the exhibit numbers were the same as the tab numbers. Its, you know, -It would be. But -I have no objection to that. I mean I --

THE COURT:

MR. WOODWARD: MR. EISDORFER: MR. WOODWARD: THE COURT:

Well, its marked as 36, not P-1. We can remark this as P-36.

MR. EISDORFER: That would be fine. THE COURT:

Oh, you want to make it P-36

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then? MR. EISDORFER: Woodward is suggesting. THE COURT: Is that what youre suggesting? That way were just all I think thats what Mr.

MR. WOODWARD: working from the same -THE COURT:

I agree. Okay.

MR. EISDORFER: THE COURT:

Thank you. Lets change the marking on

MR. EISDORFER: this to P-36. THE COURT:

Okay, any objection? No objection, Your Honor. Your Honor, I offer this

MR. WOODWARD: MR. EISDORFER:

witness as an expert in civil engineering. THE COURT: qualifications? MR. WOODWARD: thats okay. I didnt recall whether you -Any questions as to

No objection, Your Honor. Okay. He will be so qualified as

THE COURT:

an engineering expert in this court. DIRECT EXAMINATION BY Mr. EISDORFER: Q. Now, Mr. Dipple, did you prepare any reports

or studies in connection with the project at 215-235 Birchwood Avenue?

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 together. reports. MR. EISDORFER: Actually, we bundled them A. Yes. We prepared a report entitled Sanitary

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Sewer Capacity Study.

I prepared a report, I believe, And I

entitled Site Investigation Report, in 2008.

was involved in a flood study of Rahway River Branch 10-24, which we worked with Princeton Hydro, of Ringoes, New Jersey, in order to model the flood stud -- flood hazard area of Branch 10-24. MR. EISDORFER: Judge, let me ask the Court Do you want us to

how it wants to handle reports.

actually put the reports into evidence, or just do it through oral testimony? preferences. THE COURT: Yeah. No, I would appreciate Judges have different

them in evidence and I assume theyre in your package. MR. EISDORFER: THE COURT: Yes.

I heard that he had three

We have a few more than that. THE COURT: Okay. He just mentioned three. Im

MR. EISDORFER:

He mentioned three.

going to show him, actually, a total of six. THE COURT: Okay. So, he first mentioned the

Sanitary Sewer Study, and I didnt get the second one. What was the second one?

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38. MR. EISDORFER: Im sorry. Im sorry. CV. THE WITNESS: Im sorry. A. okay. THE WITNESS: Site Investigation Report. Okay. So, Im going to --

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MR. EISDORFER:

So, Id like to mark -- lets mark this as -Let me show you the doc --

this ones marked P-37. okay.

So, Im looking at tabs P-37, P-38 and P-39.

CONTINUED BY MR. EISDORFER: Q. Let me show you a document that weve marked

as P-37 and ask you to identify that. A. Yes, that is a letter report, dated October 29th,

2009, which is a review of a letter prepared by Thomas Creelman of PS&S. Q. And is this a report in which you considered

the suitability of this site? A. Thats correct. Q. For low and moderate income housing?

Yes, thats correct. Q. Let me show you a document that weve marked

as P-36 for identification. A. P-36 is another letter report, dated February 4th,

2010, that I -THE COURT: I dont think so. P-36 was the

This looks like P-

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. THE WITNESS: Im sorry. P-37, P-38 and P-39.

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MR. EISDORFER: THE COURT:

So, P-38 were talking about? Yes, it is. P-38 is? Its P-38.

THE WITNESS: THE COURT:

Okay.

THE WITNESS:

Is a letter report, dated

February 4th, 2010, in which I describe the flood hazard area and the regulatory flood elevation at 215235 Birchwood Avenue. CONTINUED BY MR. EISDORFER: Q. And let me show you P-39.

And P-39 is another letter report, dated March

31st -- excuse me -- March 31st, 2010, in which I describe, I believe, the findings of our flood hazard area study. Q. Is this the report you referred to a few

minutes ago when you said youve done a flood hazard area study? A. Yes, this is the summary of that. Yes, that is

the report that describes the summary of the analysis. MR. EISDORFER: Lets mark this as P-13. Let me show you

Once again, this is Tab 13.

a document weve marked as P-13 and ask you to identify that. A. Yes. P-13 is the Sanitary Sewer Capacity Study at

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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215-235 Birchwood Avenue, in the Township of Cranford, dated January 2009. Q. And it was prepared by our office.

And this is the sewer capacity study that you

referred to in your testimony a few minutes ago? A. Thats correct. MR. EISDORFER: Your Honor, I would offer P-

37, P -- P-37, P-38 and P-39 and P-13 into evidence as the reports of Mr. Dipple. THE COURT: Any objection? Well, the court has already

MR. WOODWARD:

indicated that it would desire to have these reports in and so we understand that. However, we also want to,

obviously, reserve our right to cross-examine. THE COURT: Of course. I expect well hear testimony

MR. WOODWARD: from the witness -MR. EISDORFER: MR. WOODWARD:

Yes. -- about these reports and

with those caveats, we do not object. THE COURT: 39 and 13 in evidence. CONTINUED BY MR. EISDORFER: Q. Mr. Dipple, are you familiar with the site at Thank you. Okay. So, P-37, 38,

215-235 Birchwood Avenue? A. Yes, I am.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (sic). Q. Mr. Dipple, let me show you a document Ive A. Q. Can you generally describe that site to us?

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The site sits on the south side of Birchwood It is one property and I believe from the Right now

Avenue.

intersection with Orange, Orange Avenue.

there are two office buildings which exist on the site; one at 215 Birchwood, one at 235 Birchwood. The

smaller of the two is currently occupied by a number of users. It has some parking and some grass areas. And

the opposite, the larger facility, is not currently occupied and it has a large asphalt parking lot to the rear of the site. Theres an area of freshwater

wetlands on the site and Im going to call that the southwest quadrant of the site, which is consumed by freshwater wetland areas. MR. EISDORFER: Let me mark this as P-10

marked for identification as P-10 and ask you if you can identify that for us. A. Yeah, thats an aerial photograph. It appears to

be taken from Google Earth, which depicts the site and the surrounding areas. Q. as P-10? A. Yes, its also an aerial. Its prepared by my Now, I have here a board. Is this the same

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this? THE COURT: Yeah, I dont know. Is this -find 20. site? A. Should I just speak loud, or -THE COURT: have is ten. I just wanted to -- the one I office, which depicts the site and the surrounding areas. Q.

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The site is outlined in a black property line. Okay. If you would, would you step down from

the witness stand -A. Yes. Q. -- and point out to us the features of the

Is that this? Oh, its P-20. Im sorry.

MR. EISDORFER: THE COURT:

Oh, P-20? Yeah.

MR. EISDORFER: THE COURT:

Im sorry. Thats my fault. Let me

MR. EISDORFER: THE COURT: Okay. MR. WOODWARD:

Okay, hang on a second.

Excuse me, Steve.

May I see

MR. WOODWARD: to take a look -THE COURT: is the same one. MR. EISDORFER:

Your Honor, if I may, Id like

I just want to be sure that mine

Yes.

This is blown up more.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the -blowup. object. MR. WOODWARD: Your Honor, Im going to If they want to

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Its not the same picture.

identify it with a different exhibit number, thats fine. THE COURT: this, actually. MR. EISDORFER: No, this is the -- this is a Ill have him Yeah, that doesnt look like

This is just this area here.

identify it. THE COURT: Yeah. Okay.

MR. EISDORFER: THE COURT:

Thank you.

CONTINUED BY MR. EISDORFER: Q. Okay. Mr. Dipple, would you identify the

board here? A. Sure. This exhibit is an aerial photograph taken For

of the subject property and the surrounding areas.

the purposes of my testimony Im going to refer to the top of the page as north and the bottom of the exhibit as south. The nor -- north is generally in a diagonal

direction to the left, but its -- Im going to refer to it as north, south, east and west, the directions of the photograph. THE COURT: I just -- maybe this is -- maybe

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point. MR. EISDORFER:

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Your Honor, if you take this

document and you put it so Birchwood Avenue, orients of Birchwood Avenue is here. THE COURT: Okay. And its --

MR. EISDORFER: THE COURT:

Yeah, I think I -- okay. See, you have the healthcare

MR. EISDORFER: facility to the right.

This site in the minner -- in

the middle and, you know, with the wooded area to the south. See, heres the healthcare facility -THE COURT: Yeah. -- to the right. This is

MR. EISDORFER: Birchwood Avenue.

These are the buildings. Okay. Okay, you can proceed. Your Honor, I I dont

THE COURT:

MR. WOODWARD:

Your Honor.

just want to impose -- interpose an objection.

want to be difficult, but if this witness is going to testify about the exhibit thats on the board, we need to establish that its the same exhibit as the one thats been marked as P-20. THE COURT: Yeah, I would agree. I dont see that at this

MR. WOODWARD:

These look like different -- and certainly the

lines on them which outline the site are different. And maybe counsel can clear it up. Otherwise, Id like

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20A. THE COURT: Okay. 20A. to voir dire the witness. THE COURT: Yeah, --

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MR. WOODWARD:

And it should be into evidence

before hes asked any further questions on it. THE COURT: He can testify about a picture

like this, because that seems to be the one that everybody else has. MR. EISDORFER: THE COURT: Okay. Im, you know, --

It may be confusing, actually,

just to have him testify from this blown up version. Im not doubting that its the same, but it just -- it could be confusing. MR. WOODWARD: suggestion. Your Honor, if I may make a

I may not have a problem with either of

these, but it needs to be clarified and the photograph thats on the easel should have a separate exhibit number. MR. EISDORFER: MR. WOODWARD: Okay, lets do that. Either P something else or

I dont care, but those things need, for the

foundation purposes, to be clear. MR. EISDORFER: Okay, lets mark this as P-

CONTINUED BY MR. EISDORFER:

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Mr. Dipple, let me ask you if you are

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familiar with the doc -- the board that weve prepared, that weve marked for identification as P-20A? A. Yes. Q. This exhibit was prepared by my office. And can you tell us what it is?

It is an aerial photograph of the subject site and

the surrounding areas within the Township of Cranford. Q. And is -- have you marked this site up, this

aerial photograph up? A. Yes, I have. I have traced the property line, the

approximate property line around the subject site. Q. names? A. Yes, it is. Q. I notice its also marked to show the And is this map marked to show the street

identities of at least one building. A. Yes, the Cranford Health and Extended Care

Facility, which lies to the east of the subject site. Q. Is this an accurate representation of the

configuration of this area? A. Yes, it is. MR. EISDORFER: photo, into evidence. MR. WOODWARD: THE COURT: Voir dire, please. I offer this, this aerial

You want to ask him some

Mr. Dipple -Voir Dire/Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. A. questions? MR. WOODWARD: THE COURT: I want to ask him --

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Okay.

VOIR DIRE EXAMINATION BY MR. WOODWARD: Q. Mr. Dipple, P-20 and P-20A, now, it looks to

me like P-20 is an exhibit that you prepared, is that correct? A. No, my office did not prepare this. Q. Yeah. Okay. You took this from Google Earth?

I believe both exhibits were both taken You can see the Google name in the

from Google Earth.

lower right-hand corner of this one, but it looks like it was -Q. Yes. Q. How about P-20A, is Google -Thats P-20.

P-20A -Q. Does Google Earth appear on this?

It does not, but I can testify that we took this

from Google Earth. MR. WOODWARD: objection, Your Honor. THE COURT: Thanks. All right, fine. No

DIRECT EXAMINATION CONTINUED BY MR. EISDORFER: Q. Mr. Dipple, can you point out to us on this

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. site? A. Its a wooded area and its comprised map the location of existing buildings on 213-235 Birchwood Avenue? A. Sure. As I testified before, there are two The smaller of which

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existing buildings on the site.

is on the west half of the site and the larger of which is on the east half of the site. And Im tracing now

the rear parking lot, the large parking lot behind the existing larger office building. Q. What is this green area, at the bottom of the

predominantly of freshwater wetlands. Q. Now, can you -- looking at this photograph,

can you point out to us the adjoining uses? A. Yes. To the north, on the opposite side of

Birchwood Avenue, is an office building which is currently occupied by Verizon Telecommunications. To

the west of the site is a small office building which is currently occupied by a construction firm. To the

east of the site is the Cranford Health and Extended Care Facility. And to the south is the rear of the

residential, single family homes, which front on Wadsworth Terrace. Q. How large is the site? Im sorry.

I dont have the number in my head.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Im sorry, its roughly 15.9 acres. Q. And whats the general topography?

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The general topography is considerably flat on the

east side of the site and then it does rise a bit, maybe three or four feet, as you move eastward to the larger of the office buildings. Q. Are there any steep slopes, slopes in excess

of 15 percent, on this site? A. No, not that Im aware of. There may be some

minor slopes of that magnitude, but only a few feet. Q. Now, can you point out to us how one would

get on to and off of this site to the existing buildings? A. Yeah, the access would be from Birchwood Avenue.

Currently there are at least three driveways to the two office complexes off of Birchwood Avenue and that is the only right-of-way that the property fronts. Q. Now, are you familiar with the concept of

impervious coverage? A. Yes. Q. Okay. And can you tell us what impervious

coverage means? A. Impervious coverage could be in the form of

buildings, or asphalt, or concrete, or any ground surface cover that does not allow water, rainwater to

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. penetrate into the soils below. Q. Now, what parts of this site would be

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included in impervious coverage right now? A. Okay, starting with the west side of the site, you

have the smaller of the office buildings and there is an asphalt access way, drive aisle, parking area associated with that use. And then on the east side of

the site theres the larger of the office buildings and then the large asphalt parking field to the rear. There are some sidewalks, driveways and other things throughout the site that would count as impervious surfaces. Q. Do you know how much impervious coverage

there is on the site altogether? A. feet. Q. Now, is, to your knowledge, is this site I believe theres 2 -- roughly 222,000 square

serviced by public utilities? A. Yes, it is. Q. And is it serviced by public water?

Yes, in Birchwood Avenue. Q. And do you know who the water provider is? I dont know their

Elizabethtown Water Company.

current name, I believe. Q. Is it served by public sanitary sewer?

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes, through the Township of Cranford. Q. Now, youve talked about wetlands. How are

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wetlands marked out in New Jersey? A. Well, a wetlands expert would look at different

parameters to determine areas of freshwater wetlands, those being plant and -- plant life, flora and fauna. I should say plant and habitat, hydric soils and then general topography of the site. Its an approach which

was established by the United States Environmental Protection Agency for delineating freshwater wetlands. Q. In terms of how one actually goes about

delineating wetlands, how does one do it? A. One visits the site and reviews some of the plant

life that is in the area to determine roughly which plants generally exist in wetland soils. And then

there is some testing of the soils to look for wet, or hydric soils, and then a general review of the topography, the hydrology to see that water actually does flow in the direction of the wetlands, surface water. Q. Does existence of wetlands have any impact on

what can be developed on the property? A. Yes, they do. Theres different -- Im sorry?

Oh, okay.

Yes, there are different categories of

freshwater wetlands and each have certain restrictions

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and buffers associated with them. Q.

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In general, can you develop within delineated

freshwater wetlands? A. Not within intermediate or exceptional resource You generally cannot. There are some

value wetlands.

exceptions for some types of road crossings and utility crossings and there are, I believe at last count, either 20 some or 30 general permits which you can get within wetland areas, but generally no. Q. Now, in addition to wetlands, do the wetlands

-- in addition to the wetlands themselves, does the delineation of the wetlands have other consequences? Is there an area around the wetlands -A. Yes. Yeah, there are transition areas, or

commonly referred to as buffers, around the wetlands which have restrictions on development. I should

mention the third type, because I mentioned intermediate and exceptional. There is an ordinary

resource value wetland, which actually does not have a buffer associated with it, or a transition area. Q. Now, is there some way to, in a regulatory

way, to get an official delineation of wetlands? A. Yeah. The process is that a wetlands, a qualified

wetlands expert visits the site and prepares a delineation by flagging the wetlands, and then those

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wetlands are surveyed. And then an application is

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submitted to the Department of Environmental Protection for whats referred to as a letter of interpretation, or an LOI. Once the LOI is received from the DEP, that

is the DEPs official stance on the location of the freshwater wetlands and the category of those wetlands for a period of five years, I believe. MR. EISDORFER: Okay. Im going to mark

these two documents as P-10A and P-10B. Q. Im going to show you the documents weve

marked as P-10A and P-10 -MR. WOODWARD: see the documents? MR. EISDORFER: Sure. Excuse me, Your Honor. Can I

CONTINUED BY MR. EISDORFER: Q. Now, let me ask you to look at P-10A and can

you tell us what that is? A. P-10A is the letter of interpretation from the

state Department of Environmental Protection, which describes the delineation that was prepared by our office, in concert with our land surveyor and wetlands expert, which verifies the line that we had shown on our plan. Q. Let me show you a document which weve marked

as 10B, and ask you if you can tell us what this is.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. 10B? A. Yes, I have. Thats not it, Steve. Just getting some post-notes. Im just waiting for the A. Yeah. 10B is the accompanying plan. Its

27

entitled Wetlands Survey Plan.

It was prepared by

our land surveyor at Control Point Associates, of Warren, New Jersey. And it depicts the delineation of

the freshwater wetlands. Q. Now, have you prepared a board that shows

THE COURT:

MR. EISDORFER:

clerk to come back to mark this. THE COURT: Yeah. Thank you very much. Is that it? I

think they want this marked. MR. EISDORFER: THE COURT:

Its P-10B?

This is going to be P-10C.

Oh, C. The survey plan that weve

MR. EISDORFER: marked up, 10B.

CONTINUED BY MR. EISDORFER: Q. Mr. Dipple, Im going to ask you to look at a

document weve just marked as P-10C and ask if youre familiar with that document? A. I am. Q. And can you tell us what this is?

This is a colorized version of the plan that was

Exhibit P-10B, which is the survey of the wetlands that

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. A. A. accompanied the line -- the LOI from the DEP. Q. And you say its colorized. How have you

28

colored it? A. Yeah, we colored the different types of wetlands

that were found on the site in slightly different green colors and the transition areas also. Q. Tell us --

And weve labeled them also. Q. Okay. Tell us what the colors mean. The more -- the most significant green

thats on there is the intermediate resource value wetlands, which is the grayish green, the largest area of wetlands. Q. Yes. Q. Yes. Q. -- corner of the site? That is an area of intermediate resource Down toward the left-hand -Is that this sort of khaki green?

Exactly.

value wetlands that were delineated and agreed upon by the DEP. The darker green, on the right side, is a

ditch and that is classified as an ordinary resource value wetlands. And thats typically found in manmade

ditches and swales and detention basins and things like that, that theres an outfall there, a storm water

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 outfall, which carries water in the direction of the wetlands. So, that was classified as an ordinary And then -- Ill just

29

resource value wetlands. continue.

Theres a transition area coming off the

large green section that I described earlier, the intermediate resource value, which is 50 feet wide, which is the 50 foot transition area which is imposed by the DEP -THE COURT: Maybe you could just show us. Yeah.

THE WITNESS: THE COURT:

Maybe you can point to that. I think thats a good idea.

THE WITNESS:

CONTINUED BY THE WITNESS: A. Okay. So, this is -- this area here is the This extension And this

intermediate resource value wetlands.

here is the ordinary resource value wetlands.

green area here, which is 50 feet wide, which surrounds the intermediate resource value wetlands, is the transition area waiver. This green color running up

the left side of the page is state open water, which is Branch 10-24, and this is the riparian buffer which borders it on the east side of the property. Q. So, --

When you say Branch 10-24, what are you

referring to? A. The official name of that stream corridor is

Mr. Dipple - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Rahway River Branch 10-24. Q. Does it have a local name?

30

Its often-ly referred to as Common -- Casino

Brook. Q. Now, does the -MR. EISDORFER: Let me offer Exhibits 10A,

10B and 10C into evidence. MR. WOODWARD: 10C, please. Your Honor. VOIR DIRE EXAMINATION BY MR. WOODWARD: Q. On 10C, Mr. Dipple -- Im looking at 10B. If I just may take a look at

Just a couple questions on voir dire,

Let me just understand, is 10B and 10C supposed to be the same except its colorized? A. Well, we did add the transition areas to this. We

So, on 10B it doesnt show the transition areas. added those and then colored them. difference. MR. WOODWARD: THE COURT: Thank you.

So, there is a

No objection. Theres

So, just so Im clear.

four or five different categories of wetlands here? THE WITNESS: There are two different There is ordinary

categories of wetlands on the site.

resource value wetlands and intermediate resource value wetlands. And then the stream, which runs on the west

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. area? THE WITNESS: Brook? THE WITNESS: THE COURT: Yes. side of the property, is actually state open waters. THE COURT: Thats what you call the Casino

31

And what about the transition

They are transition areas which

are associated with the intermediate resource value wetlands. The DEP imposes a 50 foot wide transition

area to those. DIRECT EXAMINATION CONTINUED BY MR. EISDORFER: Q. So, those arent actually wetlands, are they?

They are not. Q. But they are regulated because they are

around the wetlands. A. They are regulated because theyre around the

wetlands, thats correct. Q. Now, does any of the existing structures lie

within wetlands? A. No. There is some encroachment into the existing

transition areas, but no, they -- none of the existing site features encroach on the actual wetlands themselves. Q. Can you point -- can you identify for us

which -- where the existing features encroach on the

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. transition area? A. Yes. Starting on the east side, theres some

32

encroachment -- east side of the property, theres some encroachment along the south parking area within the 50 foot wetland transition area. The main driveway And over on the

encroaches into the transition area.

-- Im sorry, I might have referred to that as the east. I meant the west. -- the east side, the rear

parking area, just a very small area over on the east side encroaches into the wetlands transition area. Q. Now, when was the LOI issued?

Can I see that exhibit again? Q. Yes, sir. Oh, Im sorry. It was

So I get the date correct.

issued on August 20th of 2009. Q. And for how long is -- does that LOI regulate

the delineation of the wetlands? A. Its -- I believe its for a period of five years. In my professional knowledge, its a I cant find it on the

Yes, it is.

period of five years. documents, though. Q.

Now, to your knowledge does this property

also have flood hazard areas? A. Yes. Q. Thank you. And can you tell us what a flood hazard area

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. is? A.

33

A flood hazard area is -- well, perhaps I can tell

how its established and that would tell what it is. Whenever theres a stream corridor on a site its common to establish the flood hazard area and one does that by studying the upstream area using hydrology to determine a runoff, a storm water runoff amount. And

then one creates a model of the stream and then in that establishes the flood hazard area elevation for -which is generally the flooding that would occur on a hundred year period plus 25 percent. butchered that, but -Q. Well, is -- to determine the amount of I think I

flooding, is that a historical study? A. Its -Q. The volume?

The volume of flooding -- could you explain, Im

sorry, historical stu -Q. Is that based on historical data?

Its based on -- yes, the hundred year has some

historical -- the hundred year storm has some historical value to it. It is the storm that would

generally occur, or a one percent chance per year of occurring, or, generally, once every 100 years of occurring. The flood hazard area then takes that

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A.

34

number and multiplies it by an additional 25 percent as a factor of safety and that is the regulatory flood elevation. Q. And so that determines the amount of water

and in determining how -- what the elevation is, do you look at the topography? A. Yes. Then you take the amount of water, the

volume of water, and you prepare a model and you route the flow rate through that model and determine at what elevation the flooding occurs. model. MR. EISDORFER: Judge, Id like to mark P-40. And thats a hydraulic

Im sorry, this is -- its marked, this is P-55. Q. Im going to show you the document marked as

P-55 for identification and ask if you can tell us what that is. A. This is a figure which is taken out of the Flood

Hazard Area Control Act Rules, or NJAC 7:13, which describes the components of the flood hazard area. Q. Let me -- have you blown that up?

I have. Q. Okay. Is this the blowup of P-55?

That is.

There is one footnote, which the source

of which was added to the larger version and I dont see that here on the -- on this exhibit you handed me.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. yes. Q. Q. Thats this one here.

35

Which describes where the figure was taken from,

Now, using this picture, can you describe to

us what the relationship of a flood hazard area is to the stream itself? A. Yeah. The flood hazard area is the entire width

of the flooding under whats referred to as the regulatory flood, or the flood hazard area. Within the You

flood hazard area you have two other components.

have the floodway, which is in the center, and you have the flood fringe on either side of the floodway, on the outside. Q. And what is the floodway?

The floodway is the carrying area of the stream.

And what I mean by that is its the part of the stream channel which carries the majority of the flow downstream. And you use mathematical models in order

to determine exactly where the floodway is located. Q. And what is the flood fringe?

The flood fringe is the remaining area outside the

floodway and still within the flood hazard area. Q. Now, do these -- does the delineation of the

floodway and of flood -- the flood fringe, do they have consequences for development?

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Yes. Q. What are those consequences?

36

The floodway is highly regulated and the

construction of any structure which would impede floodwaters within the floodway is prohibited. Within

the flood fringe development can occur and obstructions can occur. However, under the new regulations, which

were released in 2007, there needs to be a zero net fill. So, the volume of flood storage within the flood

fringe must be equivalent from existing to postdevelopment construction. So, there needs to be no

decrease in flood storage within the flood fringe. Q. Okay. Let me -- now, were you involved in

preparing -- did you do a flood hazard study of 215-235 Birchwood Avenue? A. Yes. We -- our office worked with Princeton Hydro

and SWM Consulting, also of Ringoes, New Jersey, in order to prepare that flood study. Q. And is that the report that we previously

marked as P-39? A. P-39 was -- yes, that was a summary of our

findings of that study. Q. Now, P-39 has a map attached to it. THE COURT: Mr. Eisdorfer, in a minute or two So, I just --

were going to break for lunch.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. P-39A. Q. A. MR. EISDORFER: THE COURT: Okay.

37

-- want you to be aware. Okay.

MR. EISDORFER: THE COURT:

Thank you. Ill have him talk about the

MR. EISDORFER:

map and then its a good time to break. THE COURT: Okay.

CONTINUED BY MR. EISDORFER: Q. Mr. Dipple, let me show you P-39. Does that

have a map attached to it? A. It does. Q. And can you tell us what that map is?

This map is entitled Branch 10-24 Flood Hazard And it depicts the limits

Area and Floodway Exhibit.

of the floodway and flood hazard area of Branch 10-24. MR. EISDORFER: P-39A. Mr. Dipple, let me show you a document weve Can you -- are you familiar with this Let me mark this document as

marked as P-39A. document? A. Yes, I am. Q.

Is this a document that you prepared?

Yes, it is. Q. And can you tell us what it is?

It is a colorized version of the floodway and

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. flood hazard area of Branch 10-24. Q. Yes. Is this based on the map thats on P-39?

38

I believe the lines are identical, although

its just a different size. Q. And youve added colors?

Ive added colors to the floodway and the flood

hazard area. Q. Okay. So, now, I see two different colors, a Can you tell us what

brighter blue and a lighter blue. those colors mean? A.

Yeah, the colors are a little bit similar, but I

was trying to depict the area between the solid red lines, which Im going to trace with my finger on the east side and on the west side. And the area that is The

enclosed within those two lines is the floodway. dash lines on furthest west on the document and furthest east are the flood hazard area limits.

So,

the area in between the floodway and the flood hazard area on both sides is the flood fringe. Q. And let me just go back to your previous If you were to color

picture of the flood hazard area.

this picture the same way, what would the colors be? A. Yeah, the floodway would be the slightly darker

blue and the flood fringe would be the lighter blue. Q. And there would be a stream thats somewhere

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 down in the midst of the floodway? A. Yeah. And the stream is located all the way on

39

the east side of that property, in this location. is the stream channel right here. Q.

This

And is that the same Casino Brook that you

pointed out to us on the wetlands map? A. Yes, it is. Q. And so, this is the floodway and flood fringe

associated with that brook? A. Thats correct. MR. EISDORFER: place to stop. THE COURT: you all at 1:30. MR. WOODWARD: MR. EISDORFER: (Off record. MR. EISDORFER: Thank you, Your Honor. Thank you, Your Honor. Back on record.) Thank you, Your Honor. Good. Thanks. So, we will see Your Honor, this is a good

CONTINUED BY MR. EISDORFER: Q. Mr. Dipple, before lunch you had described to Just to

us this board, which we had marked as P-39A.

reorient us once again after lunch, can you sort of give us directional -- the directional signs again? Where is north? A. Where is east? Where is west?

Im going to describe north as the top of the

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. exhibit, south as the bottom, east as the right and west as the left. Q. So, the Casino Brook is to the left side?

40

Casino Brook is on the west side of the property.

It runs along the west property boundary. Q. And where is Birchwood Road?

Birchwood is on the north side of the property. Q. Now, you described -- you indicated to us

that you did a flood hazard study which is reflected on this map. study? A. Thats correct. My firm worked with Princeton How did you come to do that flood hazard

Hydro, LLC, of Ringoes, New Jersey, and SWM Consulting, also of Ringoes, New Jersey. And collectively we

studied -- we surveyed additional property to the north of this site and to the south of this site and we prepared a hydrologic model, which is an assessment of the storm water runoff after different levels of rainfall events. And then we prepared a hydraulic

model using the additional survey work and the topography thats here on this plan here, and then assessed the flood hazard area from that and the floodway. Q. Where did you get data on how much water is

coming on to the site?

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A.

41

Well, we used the FEMA flood study, which stops at

the boundary between Cranford and Kenilworth, for the hundred year flows north of that. But we looked at the

entire tributary area to Branch 10-24 at this location. Q. Let me just stop you for a moment. What is FEMA? Its a You used

the term FEMA. A.

Yes, Federal Emergency Management Agency.

national -Q. What does that agency do?

Well, I think they do a lot of things, but they

publish flood insurance rate maps using available studies and they determine where areas of flooding throughout the United States occur. Q. And was there a report that you looked at to

determine how much water comes on to the site? A. Yes. Its part of the Union County system called

a Flood Insurance Rate Map, I believe is the title, prepared by FEMA. Q. And does that study the Rahway River?

It studies the Rahway River and other streams in

this area, and also Branch 10-24, but upstream of this site. Q. So, you had information from the FEMA study Did you use that

for water coming in upstream. unmodified?

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. We looked at the drainage area, the entire

42

area tributary to Branch 10-24 at this location and we enhanced that model and we created a new hydrologic model of -- to determine the flows to this location. And then, because the State of New Jersey uses the flood hazard area, which is 25 percent higher than the hundred year storm, we then increased the flow rates by an additional 25 percent. Q. Now, does the New Jersey Department of

Environmental Protection have standards for determining flood hazard areas? A. Yes, they do. In fact, they were just revised in

November of 2007 under the current Flood Hazard Area Control Act Rules. And there are six methodologies, I

believe, for determining the flood hazard area. Q. And in doing this study did you adhere to

those standards? A. Yes. Yes, we did. We initially looked at method

three and then I believe we fell back on method six, which, if my numbers -- if my nomenclatures correct, I believe its method six. Q. Do you have an opinion as to whether DEP will

accept this study based on their regulations? A. Yes, I believe they will. The study had oversight

by a gentleman by the name of Joseph Scubian, who is,

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in my opinion, the best at preparing flood studies. Hes been doing it throughout his entire career. And

43

we made sure that he had oversight and was part of the analysis of this floodway and flood hazard area. And I

personally have submitted a number of flood studies to determine floodways and flood hazard areas and I believe that every -- all the engineering that went into this is very sound and, in some respects, conservative. Q. by DEP? A. Yes, it will. As part of the approval for flood Now, will this ultimately have to be approved

hazard area you have to submit your hydrologic calculations and your hydraulic calculations to the DEP for review. Q. place? A. Upon -- well, theres two ways to go about it. At what point in the process will that take

You can submit just that for a determination of the flood hazard area and the floodway, or you could complete the design of your facility and submit for a flood hazard area permit and one of the components of that would be determining the floodway and flood hazard area through the hydrologic and hydraulic models. Its

the first step that the DEP would look at and then look

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. at the development and the impacts on those -- on the flood hazard area. Q. Do you anticipate that thats the process

44

that will be followed on this site? A. I do. Q. Now, when did you do the flood hazard study

on this site? A. 2010. I believe that was completed in the spring of I -- its -- it was either the fall of 2009 into I dont have the exact dates, but

the spring of 2010.

it was very recently. Q. Now, was that before or after the first

concept plan was drawn up for this site? A. That was after the first concept plan. Q. And how did you come to do the study?

We submitted our initial report, which is the And

first exhibit you showed me; I believe its P-37.

in that we had made the assumption that you could use the method three of the Flood Hazard Area Control Act Rules to determine the flood hazard area, which relies on the FEMA flood study. That was something that was You could

newly introduced to the regulations in 2007. never do that before 2007.

So, we had looked at the

flood hazard area maps for this area and it showed no signs of flooding in this area, and we, in our report,

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we say that. And that Mr. Creelman, in his report,

45

pointed out that the flood hazard area was actually -of Branch 10-24 was actually studied but it stops upstream of the site. And upon further review of the

FEMA flood study and the FIRM maps, FIRM standing for flood insurance rate maps, it was determined that there could very well be flood waters on this site and that we couldnt use method three. We had to do the

hydrologic and hydraulic analysis of this site to determine the flood hazard area and floodway. Q. And was that reflected in a subsequent

concept plan? A. Yes. The current concept plan, which we havent

shown the exhibit yet, depicts the development with parts of it in the flood fringe and none of it in the floodway. Q. Now, where -- you know, is the flooding

caused by -- to what extent is the flooding caused by the existing use of this site? A. Well, its not necessarily caused by the existing

use of the site, although there is water, storm water runoff from the site which is tributary to the stream event. The predominant cause of the flooding on this

site is an existing culvert which runs underneath Wadsworth Avenue between two of the residential

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 properties, which are shown in the lower left-hand corner of that exhibit.

46

And the culvert is very small

and does not have the capacity to carry the flow from the flood hazard area storm event and because of that, the floodwater gets backed up onto this site. And you

have a very low lying wetlands area immediately adjacent to that in the lower left-hand corner that was depicted on the map with the green color. And then

its further exacerbated by a culvert which was constructed, which originates at the Birchwood Avenue and runs northward, and its about 624 feet I believe. And it runs to the opposite side of the Verizon site, which we showed on the aerial, and the construction of that and the size of that, it was extremely undersized for the floodwaters. And Im going to go to the board.

And looking at Exhibit P-20A, the first culvert I mentioned, which runs through Wadsworths Terrace, is in this location. And its ver -- I dont know the

exact dimensions off the top of my head, but its very small. area. And it causes floodwater to backup in this Then theres a culvert at this location where

the stream runs underneath Birchwood Avenue and it crosses underneath the Verizon site to the north side of the Verizon site at this location. And that

culvert, which is a twin 36 by 60 elliptical pipes, I

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 believe, theres two of -- there are two of them.

47 And

because that has very limited capacity, the floodwaters then backup on this site but then run around the Verizon site and pass through the western half of the subject site, as depicted on the map with the blue colors on it. And then its further exacerbated by the

construction of the office building which houses the construction company, which seems to have been built right on the banks of the stream, which then further push the floodwaters onto the subject site. Q. Now, is -- when theres, what you call the

storm event, what do you mean by a storm event? A. Well, the regulatory storm event that were

speaking of is one that would produce a flood hazard area storm, which is the hundred year plus 25 percent. So, its an extremely large storm event. Q. Now, have we had such storm events in the

recent past? A. I believe we definitely have in the State of New At this location, I cant comment whether or

Jersey.

not theyve seen 100 year plus 25 percent events. Q. Have there been occasions, to your knowledge,

when there has been flooding in the general area of this site? A. Yes. We were provided with some photographs which

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

48

show flooding of the west side of the property, in the wetlands and within the office building, which show some flooding in that area and in Birchwood Avenue. Q. And is -- you know, can you tell us what the

cause of that flooding is? A. I believe the cause of the flooding is the limited The

capacity of the culvert at Wadsworth Terrace.

water backs up onto the site, really has nowhere to go, is restricted by the property to the west and, effectively, ponds up on the site until the floodwaters start to recede and they can then continue down Branch 10-24, or Casino Brook. MR. EISDORFER: Id like to mark these

exhibits as P-63 and P-64. MR. WOODWARD: MR. EISDORFER: MR. WOODWARD: dont know about 63. CONTINUED BY MR. EISDORFER: Q. Mr. Dipple, let me show you the document that Stephen, can I see them? Sure. Because Ive got 64, but I

weve marked for identification as P-63 and ask you if you can tell us what that is. A. P-63 is a concept plan thats prepared by Lasar

Group for development of the property. Q. Did you have a hand in the preparation of

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. P-64? A. Yes, we were. this concept plan? A. Yes, I did.

49

We provided the floodway line and the

wetlands transition areas and worked with the Lasar Group in order to plan the parking and the buildings and all the improvements. Q. Let me show you the document weve marked as

P-64 and ask you if you can tell us what that is. A Yes, these are the proposed sections of the So, its literally visual cross-sections

development.

through the buildings and the parking garage and other areas of the site to depict what it would look like visually from the -- from ground level. Q. And were you involved in the preparation of

We consulted with the Lasar Group. We discussed

We measured the trees out at the site.

ways in which we could provide flood storage on the site and generally worked with them in order to prepare this concept. Q. Now, I have here a board. Is this a board

that youve prepared? A. It was prepared by the Lasar Group, but our office

received it and mounted it on to the board, correct. Q. Is this identical to P-63? There is one line

It is -- it is not identical.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which is shown on P-63 within the buffer, which is 20 feet off the wetlands, which does not show up on that plan.

50

And then there was a buffer that was originally

contemplated along the ditch, but after further review, it has no buffer. MR. WOODWARD: MR. EISDORFER: THE WITNESS: Weve still got the old one. Okay.

Okay. Lets mark this then.

MR. EISDORFER: THE WITNESS:

Okay. Lets mark this as P-63A.

MR. EISDORFER: THE WITNESS:

Okay.

CONTINUED BY MR. EISDORFER: Q. Now, Im going to ask you to look again at

the document we marked P-63A and ask you to compare that with P-63. A. Yes. There are really two differences, Your

Honor, on this document between the small version of P63 and P-63A. And on the small one, P-63, theres a

line that is drawn 20 feet -- offset 20 feet from the wetlands boundary and that was placed there just because part of the transition area waiver regulations state that you cannot put structure within 20 feet of the wetlands. So, the architect had just drawn the 20

foot line to make sure that he didnt encroach into

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. that area. And then the ditch, which is over on the

51

lower right-hand corner, the original plan showed the same 50 foot buffer, but, in fact, that was classified as an ordinary resource value wetlands, which has no buffer. So, therefore, the buffer was removed on this.

It was just a -- it was an oversight that was corrected. Q. So, the wetlands -- the change in wetlands --

what is the relationship between the wetlands shown on P-63A and on document P-10C? A. see. The relationship is that -- they might want to The relationship is -- youre referring to the

ordinary? Q. Right.

Okay, the ordinary resource value wetlands, which

are in this dark green color, are depicted here with the lines surrounded by the B and the C flag. has no 50 foot transition area. And that

So, we removed the 50

foot line on the north side of that, because that actually doesnt exist. Q. So, --

Now, is P-63A the current concept plan?

That is. THE COURT: 63A? 63A, yes.

THE WITNESS:

CONTINUED BY MR. EISDORFER:

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

52

Mr. Dipple, Im going to show you a document Now, is this identical to P-64? I dont believe there were any

we marked as P-64A. A. I believe it is.

changes made to this document when we mounted the large copy on the board. Q. concepts? A. Yes, it does. Q. Now, weve used the term concept plan. Can So, I believe it is, yes.

So, now, does this represent the current

you tell us what a concept plan is? A. A concept plan is, effectively, the idea of the There is some architecture and site

development.

issues which are evaluated in order to arrive at the concept plan, but it is not the final design. building hasnt been designed completely. The

The site

hasnt been graded or any other improvements have been designed. Its -- it comes about through the

feasibility determinations and site investigation process and you arrive at this concept plan. Q. From a professional perspective, is this type

of concept plan appropriate to make determinations as to whether development of the site for this purpose is feasible? A. Yes, it is. MR. WOODWARD: Objection, leading.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: I didnt hear the question and Can you

53

the answer because I heard the objection. speak -MR. EISDORFER: THE COURT: I can hear it.

Ill rephrase the question.

If you can rephrase it anyway so

Thank you.

CONTINUED BY MR. EISDORFER: Q. At what stage in the process would one do

fully engineered plans? A. Typically, prior to submission for any kind of

approval, be it site plan approval through the local municipality or for a permit, such as the state or county level, you would need to provide fully engineered plans. Not necessarily full architectural

plans, but in my role you would design a full site plan for one of those approvals. Q. To do -- to make a determination for site

feasibility, what sort of plan would you do? A. Well, you could do a concept plan. A concept plan

is exactly that, to determine whether or not a development of this magnitude is feasible on the site. Q. P-64A are? A. Yes, that is a very typical concept plan. Q. Now, let me ask you to describe this concept And is that the kind of plan that P-63A and

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 plan for us. plan? A. Whats being proposed are two residential What is being proposed in this concept

54

buildings and residential Building A, the smaller of the two, and residential Building B. And they

surround, or, Im sorry, Building B surrounds an aboveground parking garage. Building A would house 88

dwelling units and Building B would house 331 dwelling units, for a total of 419. There is space on site for

104 vehicle parking spaces and there is sufficient room in Building A, below Building A, for the parking of 55 vehicle parking spaces. And in the parking garage, for I believe the buildings

512 vehicle parking spaces.

are four or five stories, which is depicted on P-64A, I believe. Q. Okay. And looking at -- can you tell us what

P-64A is a picture of? A. Yes. P-64A has three sections, A, B and C.

Section A is, if you can imagine cutting right through the building, the section would cut through Building A going from north to south. And it depicts a five

storey structure, the first level being the parking garage and a small lobby, and the floors above would be the residential floors. And Section B is a section

through Building B and the parking -- and the proposed

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. A. parking deck. And that depicts various levels of And theres no

55

parking and the residential levels.

parking beneath the building, which is referred to as podium parking. B. That is not depicted here on Section And Section C is another

Thats not proposed.

section through Building B, a little bit further to the south, to depict the magnitude of that structure, which I believe is four stories, with a loft above. Q. Now, I see that there is a little inset in

the lower right-hand corner of -A. Yes. Q. Yes. Q. Can you tell us what that is? -- of Exhibit 64A.

Thats a key map to depict where the sections of Its a planned view of the

the buildings were taken.

development -- of the concept plan. Q. Yes. Q. Yes. The buildings were sliced to -And those little markers would show which So thats where the slice is?

direction the eye is looking in order to arrive at these sections. Q. Now, to your understanding, will these

buildings include low and moderate income housing?

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. A. I understand that they will, yes. Q. Do you know how much?

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I dont know the exact number, no. Q. Is there any provision on this site for

recreational facilities? A. Yeah. Theres an area to the west of Building A,

which is the area inside the floodway, where theres a small building. Under this concept, that building and

the parking -- the associated parking would be removed so there are opportunities for, you know, passive recreation, some active recreation in that area. Theres a swimming pool, which is surrounded by parts of Building B on the concept plan. And there could be

other small passive recreation areas throughout the site. Q. would be? A. I dont -- Im sorry, I dont -Q. Does the section indicate that information? To the midpoint of the roof they Can you tell us how high these buildings

Yes, it may.

will be approximately 48 feet and four inches. Q. Are all the buildings the same height? Section A, which is a section of No, Im sorry. Im reading

No, Im sorry.

Building A, is 60 feet. that wrong.

Thats the trees.

I believe Section A

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 through Building A would be one floor higher and each floor is ten feet, six inches. So, it would be

57

generally to the midpoint 60 feet. Q. Now, do you know what -- previously you

described the impervious coverage of the existing uses. Do you know what the impervious coverage will be for this concept? A. Under this concept were showing 210,000 square

feet of impervious surface. Q. What is the difference between that and the

existing impervious? A. Its reduced by about 12,000 square feet. Q. Now, does that fact have consequences for

complying with the various DEP standards? A. Yes, it does. Under the Flood Hazard Area Control

Act Rules, the applicant must demonstrate that they also meet the storm water management rule which was adopted by the DEP in 2004. And that rule states that

for any development, the development must meet the criteria for water quantity, water quality and infiltration, and theres another subcomponent of that called nonstructural storm water management strategies, or a term like that. But the big three criteria you

have to meet are the quantity, the quality and the infiltration.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. What is the relationship of impervious

58

coverage to that? A. Well, the greater the impervious coverage the more

storm water runoff the site will produce and, therefore, the less -- Im sorry, less infiltration. And also, depending on the type of impervious surface, you could -- it could degragate water quality by not treating storm water runoff from say paved parking areas or other similar areas. Q. So, what is -- whats the implication of

reducing the amount of impervious coverage? A. Well, the impervious coverage was reduced for a -Well, it should be noted,

for two reasons, actually.

before I go into that, that because of the location of the project, which is in a metropolitan planning area one, we do not need to comply with the infiltration standards. So, of the three that I mentioned earlier, So,

were only left with the quantity and the quality.

by keeping the impervious coverage below the existing, we feel that we can comply with the water quantity -one of the water quality sections of the regulations which allow you to reduce the amount of the peak runoff rate of storm water and the volume of storm water as compared to the existing. And if you can, then you

have effectively met that section of the regulations

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for water quantity and thats very important. cant achieve that, then you need to provide significant amounts of storm water detention and hold If you

59

the water back and reduce it by very significant rates. However, that section of the regulation really deals with redevelopment and really states that if you want to redevelop a piece of property, you can do so as long as you match the -- match or reduce the existing peak rate of runoff from the site and the peak volume of runoff from the site. And thats kind of a broad brush

of that regulation, but thats why -- thats one of the reasons why we have reduced the impervious coverage. The second of which deals with the water quality and the way the storm water management regs are interpreted by the DEP is that if you do not provide an additional one/quarter acre of impervious surface on your site, then you do not need to take measures for water quality. So, you do not need to build elaborate water

quality devices or any other measure that would be approved by the DEP in order to cleanse the water before discharging it off the site. And again, I

believe there will be water quality measures built into this, but not to the extent that would be required by the DEP. Q. Now, let me ask you, on P-63A, are the

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. wetlands and the wetlands transition area boundaries marked? A. Yes, they are. Q. Yes. Q. -- point those out to us? And can you point those --

60

The wetlands transition areas this brown dash

line here and the wetlands are the dash line with the small triangles on them. Thats actually the wetlands And

boundary and then this is the transition area.

then this line here, which runs vertically through the site and jogs at various locations, is the floodway of it. Q. Now, so, is -- are those lines you just

described to us for the wetlands boundary, the wetlands transition boundary, are they the same lines that are shown on your wetlands map? A. Yes, they are. There was one slight change in But the

this location, which doesnt affect the site.

DEP requested that we straighten this line out, because they felt that sometime in the past some fill was placed, probably by the landscaping crew, within the wetlands. And in order to restore that back, they

asked us to straighten out that line, which I believe just didnt make it on to this plan. Its in this

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 location. that line. here. You can see theres a V shaped section of That line would actually -- Im sorry,

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That line would actually go straight across. We

That was something that was discussed with the DEP. changed the line and it was approved under the LOI. Thats the only change between the two. Q.

Now, to what extent are any of the structures

on this map in the wetlands? A. all. They do not encroach on the freshwater wetlands at There are a number of places where they do

encroach on the 50 foot transition area to the intermediate resource value wetlands. Q. And to what extent do the parking areas

encroach on the wetlands? A. The parking areas encroach on the wetland

transition area in this location and the driveway, which conceptually is shown going around the building, encroaches on the wetland transition area in this location. Building A has a slight encroachment on the But overall

wetlands transition area in this location. the encroachments are very slight. Q.

Now, do any of these things actually encroach

on the wetlands themselves? A. No, they do not. Q. Now, is -- to what extent is encroachment on

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. the wetlands transition area permissible under NJDEP standards? A.

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There are a number of standards, but an applicant

cannot encroach into the transition area for a distance of, I guess greater than 30 feet, so that the buffer can only be reduced to 20 feet with what the DEP defines as structure. And structure includes just

about anything manmade; roads, buildings, other improvements. You can imagine berms, things like that.

They can only reduce the transition area down to a width of 20 feet, at a minimum. the encroachment. And thats effectively

And then the compensation for that,

if you were to encroach on the wetlands, you would need to compensate for that encroachment in another area of the same wetland area by putting that area and adding that back to the buffer to widen that buffer. Q. Is there a technical term for what youve

just described? A. Yeah, its called a transition area waiver. Q. And that involves averaging the -Did I say the --

Averaging, yeah. Q.

-- the transition buffer? Its a And

Did I say the terminology correct?

transition area averaging plan.

Im sorry.

effectively what you do is you add up all the area that

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.

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you encroach into the wetlands transition area and you compensate for that on another part of the site where you have room to increase the size of the buffer. Its

a one foot per one foot -- one foot of encroachment requires one foot of compensation. And there are some

limitations to how wide you can make that wetlands buffer. You can only go to a distance of 75 feet from

the wetlands and some other small requirements, but generally thats how its done. Q. Now, has an averaging plan actually been

prepared for this project? A. No, we havent done an actual averaging plan. Q. Why not?

Because I believe theres enough area to average Its a small area and we have a lot So, weve calculated

the encroachment.

of room in order to average that.

it from time-to-time within our office, but we havent produced any plan or document. Q. Do you know how much you would have to

compensate for, in terms of the encroachments? A. Under this concept, I would guess that were

probably around 2,000 square feet. Q. And do you have an opinion as to whether

theres adequate area of uplands area in which to compensate?

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yeah, there is adequate area.

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Any area outside of

the proposed improvements or disturbance, where there is the buffer to the intermediate resource value wetlands, you could increase that buffer from 50 to 75 feet. So, you would get a 25 foot additional buffer

around that wetlands area for a length that is equivalent to the encroachment. So, under this concept

plan there is adequate area within the buffer to the left of the site in order to average that. Q. When you say to the left of the site, do you

mean to the left of Building A? A. Exactly, to the left of Building A. Q. And so the compensation could take place any

place within the red dotted line? A. line. Its limited to the horizontal section of the red The vertical sections actually a riparian So -- and also to the -- Im sorry -- to the That -- on this concept that

buffer.

south, below the ditch.

boundary doesnt continue, but on the green map that boundary continues down to the back of the property line. You could also average over there. So, you have

a lot of areas that you could compensate for this. Q. Now, you indicated that DEP has standards for

transition area averaging, is that correct? A. Thats correct, yes.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Is the -- does the averaging that youve

65

described, would that comply with those standards? A. Yes, it would. Q. Do you have an opinion as to whether DEP

would permit that transition area averaging? A. Yes. I think, in fact, its very routine that Ive personally

they do that in developments.

submitted for a number of those and its a very routine approval. Q. Now, does P-39 -- P-63A, does that show the

flood hazard area? A. It doesnt show the flood hazard area. It shows

the floodway. Q. Can you show -- can you point out to us where

the floodway is shown on this map? A. Yes. THE COURT: P-63, right? P-63A.

THE WITNESS: BY THE WITNESS: A.

The floodway line is the thin vertical line, which

runs from north to south -- Im tracing it with my finger -- to the south side of the site. Q. On this concept are there any structures that

encroach in the floodway? A. No.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Now, in earlier versions of this plan were

66

there structures that encroached into the floodway? A. Yes. The earliest version of the concept plan, I

believe that was submitted here, showed Building A in a different configuration, closer to Birchwood Avenue, and it did exist within the floodway. Q. So, what change was made to get the building

out of the floodway? A. Well, we determined the floodway line and then we

reconfigured the building into the L-shaped building and moved some of the units from Building A, I believe into Building B, although I think it was a slight number. I dont know the exact number. But it was

reduced in footprint and it was relocated. Q. Did that have any impact on the total number

of units on the site? A. No. I believe the original concept showed 419

units. Q. Did it have any impact on the number of

parking spaces? A. No. I believe the original concept was -- had a

ratio of roughly 1.6 spaces per dwelling unit and since the dwelling units havent changed, I dont believe the parking count changed significantly, if not at all. Q. Now, let me ask you once again to take a look

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.

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at the documents we have, thats in evidence as P-39A, the flood hazard map. A. Yes. Q. Looking at this map, would any of the

structures be in the flood hazard area? A. Yes. Building A would be in the flood hazard

area, or the area that I referred to earlier as the flood fringe, and sections of Building B -MR. WOODWARD: Your Honor, I hesitate to

object, but P-39A is not in evidence, according to our records. CONTINUED BY MR. EISDORFER: Q. Okay. Okay, P-39A for identification. And Building B, in the vicinity of

Birchwood Avenue, would also exist within the flood fringe. Q. Now, is -- does the -- under DEP standards

are there circumstances in which construction is permitted in a flood fringe area? A. area. Yes, construction is permitted in a flood fringe There are a number of things that you need to do

to compensate for the fill which would be placed in the flood fringe, which would reduce the flood storage volume. You need to compensate for that. So,

effectively, what we do as engineers is calculate the

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 existing flood storage volume, under existing

68

conditions, and then after the facility is designed we recalculate the flood storage volume under proposed conditions and they have to be equivalent or more flood storage needs to be provided under post-development conditions. Q. There can be no reduction.

So, when, you know, when you actually put a

building on the ground, -A. Yes. Q. capacity? A. It does, but the plan here, under this -- doesnt that reduce the flood storage

development, would be to comply with the section of the Flood Hazard Area Control Act Rules which deal with crawlspaces and crawlspaces are discussed in the regulations. And Building A, specifically, we would

provide a crawlspace underneath Building A so that the flooding can still occur and we could match the flood storage volume. And in other areas of the site -- and

again, the analysis is not complete, but in other areas of the site we would create more flood storage volume. And then if, in fact, we had to store some -- or make a small crawlspace in Building B, theres the opportunity for that, although I dont know if thats necessary. Q. You used the term crawlspace.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. Yes. Q. Is that a term thats defined by DEP? Its specifically defined by DEP as a

69

That is.

method in which you could provide flood storage underneath a building. And there are very specific

criteria for that in order to call it a crawlspace. Q. in 64A? A. Yes. Since right now we believe that Building A Now, is that crawlspace shown in the section,

would require the crawlspace, theres a small blue band below the parking area, horizontal band in Section A, which depicts the amount of flood storage. And we

believe it only needs to be, I think at last count about two to two and a half feet, because the flood area is very, very shallow in that area. Its a very

wide floodplain and its very shallow, just due to the topography of the site. So, we believe a small

crawlspace under that would provide the flood storage we need in order to comply with the DEP regulations. Q. Now, in addition to preserving the flood

storage, are there any other requirements? A. Yes. You need to meet these requirements of the

storm water management rule. Q. Yes. Before we get to the storm water management.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q.

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Are there other construction requirements to

comply with to get the flood hazard permit? A. Yes. Residential parking needs to be elevated, to

the extent possible, to be one foot above the flood hazard area elevation. So, if youre -- in this case

all the parking would be for residential use. Therefore, it must be elevated to a height thats one foot above. Theres also another requirement that you

need to provide access out of the site at or above, I believe the latest terminology is at or above, to the extent possible, for emergency access to the site, you have to provide one means of ingress and egress to the site above that flood hazard area regulation. Q. Now, does this site --

Flood hazard elevation, Im sorry. Q. Does this site have an ingress and egress

above the flood hazard elevation? A. Yes. Most of Birchwood Avenue is below the flood

hazard area elevation, with the exception of the extreme eastern side of the site, or right-hand side of that concept plan, where theres an existing driveway. And you can see it on the blue map. Q. Let me show you again document P-39A.

Which the driveway on the eastern side of the

existing conditions, the existing driveway, is above

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. here. A. the flood hazard area elevation. Q. So maintaining that would --

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Do you want me to point it out? Q. Okay. Yes, please. The driveway Im referring to is this one

Theres a driveway which is one of the main

access points to this parking area under existing conditions. And you can see the flood hazard area line

leaves the property in this location, stays out in the road, but still provides access to and from the site. And based on my experience with the DEP, as long as one means of ingress and egress, or the applicant has made the best effort in order to keep one of those means of ingress and egress above the flood hazard area elevation, that would comply with the regulations. Q. Now, does -- are there requirements

concerning elevation of the residential structures? A. Yes. Residential finished floor elevations must

be one foot above the flood hazard area elevation. Q. And would that be complied with in this pro

-- this concept? A. Yeah. In this case I dont think its an issue,

because Building A, which is the building which predominantly exists within the floodplain, is going to be elevated and the ground floor is going to be

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 parking.

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So, the first floor of actual residential --

of the actual residential footprint is a minimum of eleven feet, I believe, above the ground elevation. Eleven feet, six inches, according to the Lasar concept plan, the Lasar sections. So, on Building A its not

an issue and then on Building B, which doesnt -predominantly doesnt exist within the flood hazard area at all, that building would be elevated so that its, just by its nature, it would be elevated above the flood hazard area elevation. Q. parking. elevated? A. The Building A parking, which is commonly referred Now, you made a reference to elevating Can you describe how the parking would be

as podium parking, and podium parking is that first level of parking on the ground floor. We discussed

this with the architect and what we contemplated is to build a concrete deck underneath -- on the ground floor of Building A and then elevate it through columns and then allow flood storage underneath. So, it would --

if you can imagine a parking deck, a concrete parking deck, which is elevated on each level, this would be the same thing on the ground level. It would just be

elevated a small amount in order to provide for flood storage and then all of the parking would be above

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. that. And then, of course, the residential buildings So, it would just have a

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would be above that also.

small crawlspace underneath. Q. Is that reflected in Exhibit P-64 -- 64A?

Yeah, thats shown on Section A, which shows that

horizontal blue band where the flood waters might flood underneath the parking deck. Q. Is this that area you referred to as the

crawlspace? A. That is the crawlspace, yes. Q. elevated? A. Well, the first level of the garage would just be It would probably be a slab How about the garage, how would that be

on the ground level. poured on grade.

We have no restriction due to the So, we would

floodplain or the floodway in that area.

build it on grade and then it would -- the levels above would be -- you know, it would be structured parking above, as anyones aware of, you know, a parking -concrete parking deck. Q. And you can do that because this doesnt lie

in the flood hazard area at all? A. Yeah. Q. There are just no restrictions. How about the surface parking?

The surface parking, if its residential, then

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. yes, it needs to be, to the extent possible, it needs to be elevated out of the flood hazard area.

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It needs

to be elevated above the flood hazard area elevation. Q. Now, would you point out for us which of the

surface parking areas are in the flood hazard area? A. This plan doesnt depict it, but I believe these

parking spaces here and maybe some of these spaces here. these. So, it would be about 17 and maybe five of So, about 22 of the surface spaces would

actually lie within that blue area thats depic -- that depicts the flood fringe. Q. And how would those be elevated?

They -- well, they would be -- they may be We are contemplating getting

elevated by ground level.

enough flood -- additional flood storage throughout the site in order to build these at ground level. But if

not, you know, they can be elevated the same way with a crawlspace, but, you know, probably thats the way we would approach that. Q. Now, do you have an opinion, based on the

standards of the DEP, as to whether a permit would be granted to construct the concept shown in P-63A, in the flood hazard area? A. Yes, Im confident that we can produce sound And I

engineering which would be approved by the DEP.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rely on my experience in Englewood for the Essakimian Group. They built two developments within the

75

floodplain of Overpeck Creek and in those developments we did have the crawlspace as an option. Those were

constructed before the regulations changed, but they had to comply with the 20 percent net fill rule, which allowed 20 percent net fill. However, in order to meet

that 20 percent net fill they still had to provide the crawlspace underneath some of the parking structures. And that was approved actually on a number of occasions with -- at the DEP for that development. Q. And was that -- that involved residential

construction? A. Yes, its predominantly residential, yes. Q. And thats -- the residential is also

midrise, midrise construction? A. I believe its four or five stories, yes. Four

stories, I believe. Q. Now, you made reference to storm water

management and you indicated that there were three requirements -A. Yes. Q. -- for -- under the storm water management Could you recall for us what those three

regulations.

requirements are?

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that? A. Yes. Well, there is -- not only theres a A. Yeah, theyre the three aspects, the three main And

76

aspects that you need to address in any design. they are water quality, water quantity and the infiltration to groundwater.

And there are other parts

of the storm water management rule that Im not discussing here, but, in general, those are the three requirements that you need to comply with that affect most developments. Q. So, how would this project -- this concept

comply with the storm water quality standard? A. The quality standard. Well, because we are

actually reducing the amount of impervious surface, we effectively dont need to address water quality in our application. Its not -- when we submit for the flood

hazard area permit, we would state that theres a reduction in overall impervious surface and, therefore, we meet the water quality regulation just by that fact alone. Q. Is there a specific regulatory standard on

standard, but theres also a document that is published by the DEP which they refer to as Frequently Asked Questions. And that document is published on their

internet site and actually does hold a lot of weight in

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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terms of thats the DEPs interpretation of those rules and in the rules they refer to you, or through discussions, or other correspondence, they refer to you to this document. And in that document it clearly

states that if you do not increase the impervious surface, the overall impervious surface, by more than one/quarter of an acre, you do not need to provide means -- water quality. In other words, youve met the And I should just add that

water quality requirements.

in Englewood, those developments I referred to, thats exactly how we met the water quality requirement. The

site was 90 percent impervious and we reduced it to somewhere around 78 percent impervious. And by that

reduction we met the water quality requirement for that development. Q. Now, the second standard is water quantity.

How would this project meet the water quantity standard? A. Yes, water quantity. Now, when it comes to water

quantity, the DEP has given the designer a number of options in order to meet the water quantity regulations. And after reviewing this site, I

consulted with my client and said I think we are best to meet the requirement of the standards which allows you the, in laymens terms, the redevelopment standard,

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. which allows you to show that you are reducing or matching the peak flow rate, the amount of water that during the peak that comes off of the site, that runs off the site, and the peak volume. So, during --

78

throughout the storm event a development would produce a volume of water that falls on the site and then runs off the site into neighboring streams or properties. So, you have to analyze existing and come up with the peak rate and the overall volume, and then you have to analyze again post-development and generate a peak rate of flow and the volume, and you have to have a reduction of both. Q. And how would this concept accomplish that?

Well, because we are reducing the impervious

surface, thats a good start, because I wont produce a higher peak rate or runoff by reducing the impervious surface as long as I match some of the other groundcover types and whatnot. And I have to analyze So,

that with landscaping and those types of things. thats a -- thats one of the main criteria that I

would use, first start with the reduction in impervious surface. Then I would look at the timing, because the

timing of the storm water runoff and the time of concentration is a big part of that, and I would produce a hydrograph, which is a graph of time versus

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. flow rate. And I would make sure that my post-

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development hydrograph falls within the confines of my predevelopment hydrograph, and if Ive done that, Ive met the regulations according to one of the sections in the water quality rules -- water quantity rules. sorry. Q. Have you actually produced a storm water Im

management plan for this site? A. No, I havent. We havent graded the site, but

weve done some analysis in the office to, as the concepts have developed, to understand how water might flow off the site and were confident that we can meet that. And again, the biggest component is the Thats --

reduction in impervious surface. Q.

Do you have a professional opinion as to

whether its feasible to meet that standard -A. Yeah. Q. -- in this concept?

My opinion is it is feasible and it can be done in

order to meet the storm water management regulations. Q. You indicated there was a third standard, Well, first of all, what is that?

infiltration. A. Yes.

The -- some time ago the DEP realized that

we werent -- we, in the State of New Jersey, were producing too much impervious surface and it was

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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affecting the quality of -- or the amount of water that was making its way through the soil and then generally to be used in aquifers and things like that. So, in

the storm water management rule they required that you match the infiltration rate under existing conditions. So, you had to analyze existing conditions and come up -- and they have a spreadsheet that you use to analyze the amount of water that infiltrates into the ground of your existing. And then when you superimpose your

development on top of that, you produce a number and those have to match. infiltration rate. They have to match the

However, that only needs to take

place if youre outside -- or you only need to do that analysis, rather, if youre outside the metropolitan planning area one or some of the planning areas. So,

this site in Cranford falls within the metropolitan planning area one and, therefore, the infiltration requirement is not required. Q. Metropolitan planning area one, where does

that come from? A. It comes from the state plan policy map, and I

believe I have the title of that, which is generated by the New Jersey Department of Community Affairs. Q. So, in your professional opinion, can the --

can this concept satisfy the DEP requirements for storm

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 water management? A. Yes, it can. Q.

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Is there a permit that one needs to apply --

submit to DEP for that? A. It would be part of the flood hazard area permit

that we would submit for disturbance of the flood fringe, yes. Q. And do you have an opinion on, in light of

all this, on whether DEP -- whether under DEP standards this concept can meet the requirements for a flood hazard area permit, including storm water management? A. Yes, Im very confident that it can. I mean the

majority of this site is not affected by the flood hazard area at all. If you refer back to, I believe

its 39A, youll see a large part of the development on the east side, which the large building and the large parking lot, which arent affected by the flood hazard area at all. Its Building A, which falls within the

flood fringe, and again, after the analysis we were careful to keep Building A out of the floodway. But,

in general, we will design Building A and the site in order to meet the flood hazard area regulations, which is routinely done and has been done by my office. And

then the majority of Building B really isnt affected by the floodplain at all. So, yes, I believe that this

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time. 39. VOIR DIRE EXAMINATION BY MR. WOODWARD:

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development, as shown in the concept plan by Lasar, can be designed to meet the Flood Hazard Area Control Act Rules. Q. To the best of your knowledge, are there any

other DEP regulatory requirements that this concept would have to satisfy, other than the ones youve testified about today? A. We would need to obtain a treatment works approval

from the DEP for the sewer and a safe drinking water permit, I believe, also from the DEP for some of the utilities. But environmentally, I believe the wetlands

and the flood hazard area are the ones that would affect the development. MR. EISDORFER: Now, Judge, let me -- Id

like to move P-39, P-63A and P-64A into evidence. THE COURT: Any objection? Voir dire, Your Honor. P-63A? Make

MR. WOODWARD:

sure Ive got the right numbers. MR. EISDORFER: MR. WOODWARD: THE COURT: P-64A.

What else?

And P-39?

63A and -Well take them one at a

MR. EISDORFER:

Lets do P-63A and P-64A, and then well do P-

Mr. Dipple - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q.

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P-63A is the latest versions of the plan, is

that correct? A. Yes, that is. Q. And thats dated July 30, 2010, thats just

three days ago, correct? A. Thats correct. Q. Okay. What are the differences between this

plan and the one that you prepared on March 31st? A. On March 31st, I believe the differences are the

parking along the west side of Building B was reconfigured. Not as much surface space -- surface I described how the

vehicular spaces were provided.

line that was drawn 20 feet from the wetlands boundary was removed and the small area of ordinary resource value wetlands has no buffer. removed. So, therefore, that was

And some landscaped islands had been provided

along the east side of the parking field that runs up the east property. Every ten or so spaces the

architect has provided a landscaped island. Q. Yes. Q. Because I dont understand what youre Could you point those out?

talking about. A. Yes. Along the east side theres a parking field,

or a parking lot, if youll recall, which under the

Mr. Dipple - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 minute. current concept has 69 parking spaces.

84

And whats been

added to that, every ten or so spaces, a small landscaped island in order to break up the row of parking. So, theres an opportunity to plant a tree at I

various locations throughout the parking lot.

believe the parking is also pulled back a bit off of Birchwood Avenue to line up with roughly the edge of Building B and some of the parking along this area was reconfigured. I believe on the March 31st concept plan

there was some parking that was located here, but that was removed. MR. WOODWARD: Excuse me, Your Honor, for one

Okay, no objection to P-63A, Your Honor. THE COURT: Okay. So, P-63A in evidence.

MR. WOODWARD: THE COURT:

Okay, whats the next one?

And P-63, any objection to that? 63? Whats P-63?

MR. WOODWARD: MR. FENLON: MR. WOODWARD: THE COURT:

Thats the actual concept plan. Oh.

In the binder.

CONTINUED BY MR. WOODWARD: Q. P-63 itself was also prepared on July 30th,

correct, three days ago? A. Yes, P-63 was -- is dated July 30th, 2010, thats

correct.

Mr. Dipple - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 evidence. MR. EISDORFER: P-64A. MR. WOODWARD: Your Honor. THE COURT: Thank you. Okay, fine. No objection,

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MR. EISDORFER:

And Im also moving P-64 and

Those are the sections. THE COURT: Any objection to 64 and 64A? Just a moment, Your Honor. No objection, Your

MR. WOODWARD:

Let me take a look at them again. Honor. THE COURT: Okay.

So, 64 and 64A also in

Your Honor, and if I may, Id

like to move P-39 and P-39A into evidence. THE COURT: Any objection? Im looking for P-30 (sic).

MR. WOODWARD: Here we go. MR. EISDORFER:

P-39 is already in.

This is

just a colorized version of P-39. MR. WOODWARD: Okay. Voir dire, Your Honor.

CONTINUED BY MR. WOODWARD: Q. I want you to take a look at P-39 and compare

it to P-39A and tell me whether, in fact, part of Birchwood Avenue on P-39 is actually cutoff? A. Yes, in P-39 it appears that the upper right-hand

corner of Birchwood Avenue is not depicted on P-39.

Mr. Dipple - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

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And if, in fact, this P-39A is created on, it Want to take a look?

says July 19th, 2010? A. Yes. Q.

Yes, thats correct. So, P-39 was created on March 31 and P-39A

was created on July 19, 2010, correct? A. Thats correct. MR. WOODWARD: dont object to P-39. never seen it before. for the first time. Your Honor, I object -- I I object to P-39A because Ive It was produced here in court

It was not produced before. Your Honor, we have had

MR EISDORFER:

testimony that this is just a colorized version of P39. Its just a demonstrative exhibit to assist the

witness in explaining it to the court. MR. WOODWARD: Its clearly not, Your Honor.

Because if you take a look at P-39 and compare it to P39A, part of Birchwood Avenue is cutoff and that part depicts the limit of the flood hazard area. is not included in P-39. And that

There is a difference, Your I object. Its not been

Honor, and its significant. produced before. THE COURT:

Well, with reference to the fact

that it hasnt been produced before, whats the prejudice to you or your client? MR. WOODWARD: Again, its trial by ambush,

Mr. Dipple - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Your Honor. THE COURT: Well, -I mean once -- Im seeing a Someone says well, this

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MR. WOODWARD:

document for the first time.

is the same document, but its not. THE COURT: All right. What -- let me just

hear again whats the difference between P-39 and P39A, which I think was your question, Mr. Woodward, right? What is the difference -MR. WOODWARD: THE COURT: Yes, it was.

-- between the two documents? Yes.

MR. WOODWARD: THE COURT:

And I want to understand that.

Because to the extent that its significant to assist the trier of facts in understanding the facts and the opinion of the expert, it may be relevant. And with

reference to your objection that its trial by ambush, I mean that -- I dont know what that means in terms of what the prejudice is to your client. If your expert

needs some time to review it and understand the differences, certainly we can afford that time. So, I

mean to the extent that its trial by ambush, yes, we know, certainly, that documents are not supposed to be produced for the first time at the time of trial. But

I think if I understand this very specific difference

Mr. Dipple - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 line -THE COURT: broken, right? THE WITNESS: The flood fringe goes between between 39 and 39A, I might understand why its relevant, if its relevant, to assist me. You know,

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the other difference is, candidly, the one that I have in my binder, which I guess is 39, isnt color coded. So, to be quite honest, its not as easy to understand for me, really, as in 39A. And I think your --

certainly your objection, you know, is very significant as to the cutting off of Birchwood Avenue, but I want to understand the difference between 39 and 39A and how that -- how thats depicted and why its relevant. THE WITNESS: P-39, Your Honor, is a drawing

that was made for this size sheet and when the lines, the floodway lines, the floodplain lines are identical to the lines that are shown on P-39A. THE COURT: broken line? THE WITNESS: Both. The flood hazard area Thats the solid line or the

Goes in between the solid and the

the solid and the broken. two solid lines, yes.

The floodway is between the

So, I believe the difference

between P-39 and P-39A is that its a larger viewport, which is a common term for these drawings and the

Mr. Dipple - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 production of these drawings. So, where the viewport

89

of P-39 was reduced somewhat to fit on a smaller sheet of paper, it was able to expand a bit when we got to the board, and it also depicts -- and you can see the flood hazard area line crossing over the existing driveway on P-39. And whats not depicted is this

small curvature of the flood hazard area line which follows the contours of the road, of Birchwood Avenue. So, thats the main difference. And I do see a bit

down here, but the entire property is depicted on the bottom of the page. Its just not depicting these So, I -- in my opinion,

homes in this location here.

that is the difference between those two drawings. THE COURT: Do you withdraw your objection? I dont, Your Honor. On the

MR. WOODWARD:

other hand -- well, Your Honor, if it would assist the court, I will withdraw my objection. THE COURT: Thats very gracious. Thank you.

MR. WOODWARD:

But I know, you know, I do

know that what Ive got is a document that is not the same exactly as was represented before. with this document since March 31st. Weve labored

We now have a new

document were seeing in court for the first time. THE COURT: Okay. Well, certainly your --

MR. WOODWARD:

Thank you.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT:

90

-- engineers, you know, welcome

to comment on that, because the Court will, as it welcomes this to assist it in its, you know, resolution of the case, so would your experts opinion with reference to the modification now. allow it in this instance. So, Im going to

And thats not to say that

Im going to allow introduction of documents that are new or newly presented at the time of trial, but I think the differences are not that significant, or, to the extent that they are, certainly your engineer will have the opportunity to comment. MR. WOODWARD: THE COURT: So, --

Thank you, Your Honor.

-- Ill allow P-39 and P-39A. Mr. Dipple, --

MR. EISDORFER: THE COURT:

And I think 39 was already moved

into evidence, by the way. MR. EISDORFER: Yes, 39 is already in. Its

just 39A that Im moving in at this point. DIRECT EXAMINATION CONTINUED BY MR. EISDORFER: Q. Mr. Dipple, have you done any analysis of how

this property would be served by sanitary sewers? A. Yes. Theres an existing sanitary sewer, which

looking at -- it needs to be marked. MR. EISDORFER: Yeah, this is -- let me just

indicate that this is -- we should have this marked.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you would. MR. EISDORFER: THE WITNESS: THE COURT: This is P-10. No, this is P-10B. this P-10B. THE COURT: Ten? Yes. Its the -- we previously marked

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MR. EISDORFER: MR. FENLON:

I think thats incorrect. Yes.

MR. EISDORFER: MR. FENLON:

The aerials were 20 and 20A. Yeah. No, this is --

MR. EISDORFER: MR. WOODWARD: MR. FENLON:

This is a different map.

Okay. This is the wetlands. Just give me a minute, if

MR. EISDORFER: THE COURT:

Okay.

This is --

Okay, just give me -- if you P-10?

could just give me a minute to get there. THE WITNESS:

That was the letter of

interpretation, Your Honor. MR. EISDORFER: P-10 is the letter of

interpretation and P-10B is the map -THE COURT: have it here. Oh, I have it here. Yeah, no, I

Okay, thank you. And this is just a mounted copy

THE WITNESS:

of P-10B, which is the wetlands survey plan we

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 depicted? THE WITNESS: Its a small thin line which discussed earlier.

92

And on that plan, going from north

to south, from the existing building, office building on the east side of the site, there is a six inch sanitary sewer which runs from north to south and then continues off the site down North Union Avenue. And

this map actually depicts the manhole within Wadsworth Terrace where that sewer connects. It does change to

an eight inch sanitary sewer, I believe at a manhole located near the ditch. THE COURT: So, --

How is the sanitary sewer

runs through the parking lot in a north/south direction. Its probably very faint on that size map. THE COURT: Broken line? Yes, it is. Its a dash line.

THE WITNESS:

And it runs to a manhole which is located right on the side of the ditch and then it continues southward to the North Union Avenue right-of-way, which actually abuts the back of the property. So, sanitary sewer

service would be provided through that lateral, or through that main sewer main, which runs from North Union Avenue. CONTINUED BY MR. EISDORFER: Q. Now, where ultimately does the sewage flow?

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. 11. Q. A. A. The sewage flows through residential areas of

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Cranford and eventually crosses under the Garden State Parkway and continues into Roselle Park. Q. And is there a treatment plant located there?

Yes, the -- well, I dont think its in Roselle

Park, but its the Rahway Valley Sewage Authority. Q. And to your knowledge, is there adequate

capacity in that plant to accommodate this project? A. Yes. We spoke to representatives from the plant

and they confirmed that there was adequate capacity in the plant. MR. EISDORFER: Let me mark this as P-11. P-

Mr. Dipple, let me show you a document weve

marked as P-11 and ask you to take a look at that. A. Yes. P-11 is a map that was prepared by my And

office, entitled Existing Sanitary Sewer Map. its dated January 2009. Q.

And how did you come to prepare that map?

I went to the Borough of Cranfords engineering

office and I obtained their sanitary sewer maps for the area of the site and downstream of the site, following the sanitary sewer. And I attached them altogether and

then sketched the path of the sanitary sewer, which runs downstream.

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. MR. EISDORFER: Lets mark this as P-11A.

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Mr. Dipple, let me show you the map that we

marked as P-11A for identification. A. Yes. Q. Yes. And ask you if you can identify that? P-11A is a photocopy of P-11. Its the

exact same map.

And what Ive done for the benefit of

the court is to highlight in yellow the property boundary and then, in the orange-ish brown color, I highlighted the path of the sanitary sewer where it leaves the site on the south side and continues, well say eastward, south eastward into Roselle Park. Q. Now, have you done a study of the conveyance

capacity of these sewer lines? A. Yes, we produced a document called Sanitary Sewer

Capacity Study, dated January 2009. Q. And thats the document that we moved into

evidence as P-13, is that correct? A. P-13, thats correct. Q. Okay. Now, tell us how you went about doing

this study. A. Well, as I mentioned, we first obtained the We spoke to a

sanitary sewer maps from the township. representative of the township.

And we then mapped out

where the sewer line was from the property line and --

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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or continuing all the way outside of the town and past the boundary into Roselle Park. And in order to study

the flows, what we first did was to install flow meters at five locations along the sanitary sewer line as it leaves the site and we monitored the flow for a period of one month, and the data was very good. The data was

very -- we got some rainfall events and we measured the sanitary sewer flow and the data was very consistent. And from that we took that flow data to assess the existing conditions of the sanitary sewer system and then we added the flow that would be generated by the proposed development. And we used the DEP projected And we added those flows in We took the peak flow and

flow criteria to do that. and -- to the peak value.

added it to the peak flow value to be produced by -that we saw, Im sorry, existing in the sanitary sewer lines and then created a peak flow rate for the entire system. Then reanalyzed it to see how it would work And thats whats contained in the

going downstream. capacity study. Q.

Now, were there particular spots that you

looked at as spots of interest? A. Yeah. There are a number of pipes that come into

the sanitary sewer system and in order to set up our meters we had to set them up in locations where we got

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 good flow data. You didnt want a lot of turbulence.

96

So, first we opened up as many of these man -- or actually all of the manholes that were here, with the exception, I think, of one that was within the Garden State Parkway right-of-way. And we assessed them on

how well the meters would work in those manholes and we found five very good locations. So, we measured that

and then took that data and then continued our study. Q. Now, were there areas that you -- in the

sewer line that you identified that were not functioning ideally? A. Yeah. I believe my analysis shows that in three

instances, in three pipe lengths, there are a total of 17 pipe lengths that we studied here -- I believe its 17. There are 17 manholes. Perhaps there are 16 pipe

lengths.

But we measured those pipe lengths and we The

determined that two of the pipe lengths were flat. one that goes from manhole 13 to manhole 14 had no slope at all.

It was the same invert on the upstream And therefore, under open

side as the downstream side.

channel flow analysis, that pipe has no capacity. There was another pipe that actually had a slight pitch backward. So, again, using open channel flow analysis, And then there was

that would produce zero capacity.

one of the pipe lengths, I believe it was between

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. manhole ten and manhole eleven, where the pipe was relatively flat and, in fact, it was so flat that it

97

didnt produce the capacity necessary to carry the flow under open channel flow conditions. Q. What is the practical consequence of that?

Well, these pipes were really analyzed one-by-one.

So, what you try to achieve are open channel flow conditions, and that is that the water level never really reaches the top of the pipe where the pipe would then flow under pressure condition and it would take a certain amount of pressure to push the water through. So, its flow, like in a stream or something like that, that is open channel flow. desired condition. And that is the most

But if you have zero slope when you

do the calculation which we do, it shows that there is really no capacity in that. answer your -Q. Well, so, does sewage actually flow through But -- well, let me just

those pipes? A. Yes, it does. And it flows because, number one,

it has a certain amount of energy behind it in order to carry -- as I mentioned, they were analyzed one-by-one. So, that doesnt consider any amount of energy that the flow has going forward and as it continues on it carries that energy through, it has water pushing it

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 from behind.

98

And also, it could go in to whats called

a surcharge condition where a certain amount of flow actually backs up in one of the manholes and then pushes the flow through the pipe so that it functions. So, what I analyzed here was does this work under open channel flow conditions, which, again, is the most desirable way for a sewer system to work. Q. Now, did -- were you able to form an opinion

of whether the sewer system is, in fact, operating under existing conditions? A. Yeah. Initially, we talked to representatives I believe his name was

from the Township of Cranford.

William Zielenbach and he worked for the engineering department. And when we first started this study we

asked are there any known problems with the sanitary sewer going downstream, and the answer was no. When we

did the analysis, you know, it showed that there really wasnt much of a concern. There could be instances -So, this

and again, Im dealing with peak flow values.

is -- and its also a very conservative peak flow estimation. Q. And --

What makes it a conservative peak flow

estimation? A. Well, we use -- when there are some unknowns with

the system, as an engineer you default to the most

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 conservative estimate. So that if, in fact, the data

99

is not as it seems, youve already taken into effect the conservative factor into that. For instance, in

part of my study I analyzed a peaking factor and I analyzed the existing sewers to figure out what the peaking factor is. And what a peaking factor is, is

you take the peak flow rate and you divide it by the average flow rate. So, for instance, in the morning

one would expect sanitary sewer rates to peak because everyones going to work, everyones showering and theres a lot more water being consumed during certain hours of the day. In the middle of the afternoon not

as much; in the middle of say two oclock in the morning theres very little sanitary sewer flow at all. So, what we do is we create a peaking factor and our analysis shows that the peaking factor for this existing sanitary sewer is about 2.1. So that the peak

rate of flow is about 2.1 times higher than the average flow. For our new development we defaulted up to the

first whole number and went with a peaking factor of three. So, effectively, there is a conservative

estimate thats worked into that by increasing the peaking factor. Additionally, we installed five meters

and where we got a reading, we carried that flow rate backward up the system until the next meter. So, in

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fact, where we would see that flow rate only at that

100

meter, we conservatively carried that flow rate back up the pipe to the next meter, because anything between the two meters is unknown. So, we defaulted to the

highest number possible, which is the downstream meter. When, in fact, between the two meters there may be a number of sewer lines that are tributary to that mainline which could add flow into the system. that -- the peaking factor -Q. And that flow would come in below the So,

upstream meter? A. It would come in below the upstream meter and,

therefore, you know, it could come in just a few feet below -- above the downstream meter and then the rest of the pipe, you know, would be actually operating at a lower flow rate. So, some of these conservative things

we put in there really make this study very conservative, in my opinion. Q. Now, based on this study did you form an

opinion as to whether the system is functioning under existing conditions? A. Yes, I believe it is. Under existing conditions

we received no reports from the township that it wasnt, first of all. And number two, even if the pipe

does, under peak flow rate, go into a surcharge

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

101

condition on two or three of these pipes, the area in which it would go into a surcharge condition, I think is es -- is, on the average, about 18 feet deep. So,

in effect, it really doesnt take the sewage -- it only has to rise a certain amount in order to push the sewage through the next pipe. So, 18 feet has plenty And what

of room in which to rise before it goes up.

we did is an analysis of the hydraulic grade line, which is the level in which water would seek, if it wasnt restricted by the pipe. So, the hydraulic grade So,

line was well within the sanitary sewer system.

after doing the hydraulic grade line analysis, we really feel comfortable that there is no issue with the sanitary sewers and the capacity going downstream all the way to Roselle Park. Q. Ive asked you about existing use, but did --

were you able to form an opinion as to whether the system would operate adequately with the additional flow from this project? A. Yes. Its the same opinion. Im sorry. When we

ran the hydraulic grade line we used the projected flows from the development and the hydraulic grade line was well within the vicinity of the top of the pipe on those three occasions. with that. And, therefore, we see no issue

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Now, you indicated that this project would

102

need to obtain a treatment works permit -A. Yes. Q. Yes. Q. For what -- what would it need the treatment -- from the NJDEP?

works permit for? A. There are a number of criteria which you need to

submit for the -- to the DEP, one of which is if you have a project which exceeds 8,000 gallons per day of sanitary sewage. And you use their projected numbers And a residential unit

in order to come to that value.

of this size would generate somewhere between 225 and 300 gallons a day. And if the limits 8,000, you could

see that 400 dwelling units would easily exceed the 8,000 gallons per day limit. So, therefore, by that

value alone youre required to seek a treatment works approval from the DEP. Q. Do you have an opinion as to whether the,

under DEP standards, a treatment works permit -- do you have an opinion as to whether the -- this concept would comply with the standards for granting a DEP treatment works permit? A. Yes, it would. They only look at the proposed

sanitary sewers.

They could be designed in order to

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. accommodate the flow and because there is no known moratorium on the flows going to the Rahway Valley

103

Sewage Authority, we believe that it would be routine that we could procure a treatment works approval from the DEP. Q. Now, have you actually been on the site?

Many times, yes. Q. Now, in inspecting the site, have you seen

anything on -- any structures on the site that would have an impact on storm water management? A. It was -- there is a -- theres a broken valve on Its rusted and it exists -- you know, Ill Okay, were on, I think its P-39.

the site.

point to it. Q. P-10? Q. P-10.

This is P-10. Im sorry. P-10B.

MR. WOODWARD: MR. EISDORFER: BY THE WITNESS: A. P-10B.

P-10 what? B P-10.

At this location, Your Honor, there is --

there are some small black squares that are depicted on the survey. One of which exists along a 15 inch And the -- what that is, is a

concrete storm sewer. valve of some kind.

And theres a concrete structure,

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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similar to a large manhole, that you can observe from ground level. Its -- I dont -- the dimensions are And

maybe ten-by-ten in area, ten feet by ten feet.

theres a broken and rusted valve -- the top of a valve. I dont believe the other components of the And when we

valve exist anymore below the surface.

first arrived at the site and met with Mr. Marsden, whos the township engineer in Cranford, he pointed out that that had something to do with storm water management. sewers. And it does exist along one of the storm I

However, I dont know what it was used for.

havent seen any documentation, nor any old plans, or anything. Weve requested any plans that the township There

may have had for what that structure could be.

could be a number of uses that could either restrict flow from coming into the site or backflow from -backup flow from going off the site, but there is a valve there, or the remnants of an old valve at that location. Q. Were you able to ascertain whether it

facilitates storm water management in its present condition? A. No, it clearly does not. Its in a state of Its a

disrepair.

I dont -- I didnt analyze it.

confined space.

I did not go into the confined space

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to see if any components were still operational or

105

anything like that, but the aboveground components are clearly in a state of disrepair. Q. Do you have an opinion as to whether any

beneficial affect of that -- that that structure has on storm water management could be accommodated in this concept? A. I dont know what its used for, but I can say That whatever

that it hasnt been used in a long time.

-- its not restricting any flow from leaving the site for quite a long time, because of the rusted nature and the disrepair of the valve stem. So, if it had a

purpose in holding storm water back on the site, it clearly has not had that -- has not fulfilled that purpose for quite a long time. So, under current

conditions, I would argue that it really should be ignored. However, we -- if there is some document that

was produced that shows it as something else, we would surely analyze it. THE COURT: Mr. Eisdorfer, would this be a

good time for a little bit of a break? MR. EISDORFER: THE COURT: Sure, absolutely. So, well take like ten

Okay.

minutes until ten to four, okay? (Off record. Back on record.)

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Mr. Eisdorfer. Thank you, Your Honor.

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MR. EISDORFER:

CONTINUED BY MR. EISDORFER: Q. Mr. Dipple, you previously testified that you

did a flood hazard study and you delineated both the floodway and flood fringe area, is that correct? A. Thats correct. Q. floodway? A. Yes. As I explained before, first you prepare the Can you tell us how you delineated the

hydrologic model and then you prepare the hydraulic model of the stream channel using the flood hazard area -- Im sorry, the flood hazard storm event, which is the hundred year plus 25 percent. And then in order to

determine the floodway, what the engineer will do is hell actually create, with a computer model, imaginary walls and continue to squeeze those walls into the flood hazard area until what you see is a rise in the 100 year storm event of two/tenths of a foot. And once

you achieve that two/tenths of a foot throughout the entire reach, that is the floodway. So, its an

iterate process, and most of its computerized now, where you, again, squeeze the flood hazard area until you see that rise and -Q. Does DEP have standards for how you go

Mr. Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 through this process? A. Yes. They describe how to determine the flood

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hazard area and the floodway in the Flood Hazard Area Control Act Rules and the DEP will review our analysis and our model of both the floodway and the flood hazard area with our application. Q. And do you have an opinion -- well, do you

have an opinion as to whether the way the floodplain was -- the floodway was determined for this concept complies with those standards? A. Yes. It was done in accordance with the

standards, exactly in accordance with the standards, and we produced that floodway line, which is consistent with the way the floodwaters come across Birchwood Avenue. Its the way we perceived it would go and

thats the way that -- and thats the way the model presented it, yes. Q. Now, are you familiar with situations in

which a parking structure has been constructed and an additional level has been added at a later date? A. Yes. On the first development that was

constructed by the Essakimian Group, in Englewood, I believe it was three levels of parking deck were constructed on the site. And then at a later date the

fourth level was added on to accommodate more parking.

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is -THE COURT: Thank you. Q. In your opinion would it be feasible to

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construct the parking structure shown on the concept plan to permit addition of addi -- addition of an additional level if that were necessary? A. Yes. I believe in the same manner, in fact, the

Essakimian Group has, throughout the design process, has commented that they would use the same type of parking deck construction at this facility as they used in Englewood. And, therefore, I believe, in my

opinion, that construction would be the same. MR. EISDORFER: Your Honor. THE COURT: Cross-examine. Thank you, Your Honor. I have no further questions,

MR. WOODWARD:

CROSS-EXAMINATION BY MR. WOODWARD: Q. Mr. Dipple, Im going to show you whats been

marked as Exhibit D-43. THE COURT: exhibits up here. MR. WOODWARD: THE COURT: Would you like a copy? You know, I dont have the D

No, you know what, I think that

your exhibits are probably in one of those boxes. MR. WOODWARD: Thank you, Your Honor. This

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 difficult. MR. WOODWARD: This is one through 70. We

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will need the second one, though, because the next ones going to be D-90. THE COURT: Thank you. D-43. So, were at D-43.

MR. WOODWARD: THE COURT:

Im thinking there may have been

a better way to do these exhibits, but I dont know. By -- perhaps by witness or something like that, but they probably crossover. MR. WOODWARD: Your Honor, we -- its always That was --

We did them chronologically. THE COURT: Yeah.

Okay, well manage. As a

MR. WOODWARD:

-- the way we did it.

suggestion, if you want, and you want to use a computer, we actually have them on disc as well. I didnt know whether you had a computer that was readily available. THE COURT: Well, I wish I could. I guess, Well,

if I called IT, they could probably set my laptop up out here, but I dont know if its really realistically possible. MR. WOODWARD: Hackensack last year. I tried a case up in

There, the judge used a computer So, I mean -- okay, fine.

and we had stuff on disc. THE COURT:

Its a thought.

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. MR. WOODWARD: THE COURT: We can proceed.

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Thank you very much.

CONTINUED BY MR. WOODWARD: Q. Anyway, Mr. Dipple, Im going to show you Its

whats been marked as D-43 for identification. dated May 21, 2008. Report.

Its called Site Investigation Is this a

I ask you to take a look at that.

report that you prepared? A. Yes. Q. Yes. Q. Yes. Q. Yes. Q. -- drainage ditches exist along the northern Although these And the second bullet, -You talked about environmental constraints. And in that report, take a look at page one.

and eastern boundaries of the site.

ditches do not appear on the USGS maps or the FEMA flood insurance rate maps as streams or floodplains, the town may require some analysis in protection. A 50

foot riparian buffer will likely be required from top of banks of the ditches. A. Yes. Q. Thats your first comment on any analysis of

this property regarding whether or not theres a

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. yes. Q. recall? A. It was likely three weeks before that. When do you -- when did you start? Do you floodplain, correct? A. Thats correct. Q. And you submitted this to the Essakimian

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Group as part of their determination -- strike that. Why were you asked to prepare this evaluation? A. At the time, I believe they were doing due

diligence in order to potentially acquire the property. Q. And so your report was part of the due

diligence that the company was doing? A. I believe thats true, yes. Q. All right. And that was in May of 2008?

I believe I finished the report in May of 2008,

So, it may

have begun at the end of April or beginning of May. Q. As part of your investigation of that report

did you contact any municipal officials? A. Yes, I did. Q. Whod you contact?

I spoke with, I believe I spoke with Mr. Marsden

at the time and Mr. -- I refer to a gentleman in the engineering office named Zielenbach, I believe. met with a gentleman who was in the planning And I

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A.

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department, who gave me a development handbook, and I dont recall his name. MR. WOODWARD: I need the next book. All right, fine. Thank you.

Your Honor, Im sorry, the next

books coming up, because were going to Exhibit D-94. THE COURT: Thank you.

CONTINUED BY MR. WOODWARD: Q. Im going to show you whats been marked as

Exhibit D-94, Mr. Dipple, and ask you if youve ever seen that before. A. Yes, I have. Q. This is a report prepared by Thomas Creelman

of PS&S, -A. Thats correct. Q. -- dated October 14, 2009?

Youre correct. Q. And have you taken -- Id like you to turn --

and you reviewed this report, correct? A. I have, yes. Q. Yes. Q. Yes. Q. -- where it says floodplain, and at 2.0, All right. Take a look at page two, -In fact, you wrote a response to it, correct?

Environmental Evaluation Floodplain.

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes. Q.

113

And Mr. Creelman says Casino Brook is a state

regulated water body, NJ State Water Body 10-24, and has a drainage area greater than 50 acres. As such,

any proposed development will require a flood hazard area permit from the NJDEP. He goes on to say, in

reviewing the FEMA flood maps for this area, it can be seen that a flood study was not conducted in the immediate vicinity of the site, but that a flood hazard line was established both upstream and downstream of the property. As part of the FHAP application, the 100

year floodplain, floodway and encroachment lines along this portion of the brook will need to be determined and the developer will have to demonstrate that the proposed development will not increase upstream or downstream flooding. A. Yes. Q. Id like you to take a look at Exhibit P-37, Do you recall those comments?

which has already been identified by you. MR. WOODWARD: MR. EISDORFER: MR. WOODWARD: Is P-37 in evidence? Yes. Okay. It should be marked.

CONTINUED BY MR. WOODWARD: Q. Im going to show this to you. Thats your

response to Mr. Creelmans October 14 letter, correct?

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes. Q.

114

And in that, if you take a look at the second

paragraph of 2.0, -A. Yes. Q. -- floodplain, in the middle of that

paragraph you say, since Casino Brook is not listed on the DEPs list of department delineated waters, Appendix 2, and the applicant would re -- would prefer not to calculate the flood hazard area, method three for flood hazard area and floodway based on a FEMA flood insurance study may be used. Since the current

FEMA flood insurance study is dated September 20, 2006, and the hundred year floodplain and floodway are depicted on the map, method three is conformed as an acceptable method. A. Yeah. Q. Did I read that correctly?

I think I meant to say confirmed, but yes. Then -THE COURT: Im sorry, you meant confirmed?

CONTINUED BY MR. WOODWARD: Q. conformed. A. Okay. Okay. Im sorry, thats a misprint. And then you go on to say the So, it should be confirmed instead of

Confirmed, yes. Q. All right.

FEMA flood insurance study shows no areas of floodplain on the subject property. Therefore, it is our

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to D-98. Q. Im showing you for identification whats Its a memorandum from professional opinion that a flood hazard area permit does not apply for the proposed development. was your conclusion on October 14th, 2009. need to do a flood hazard study, correct? A. Thats correct. MR. WOODWARD:

115

So, that

You didnt

Your Honor, Im going to refer

been marked as Exhibit D-98.

the township engineer, Richard A. Marsden, dated October 21, 2009. And if you take a look at the first

page, Mr. Marsden also talks about the need for a flood hazard delineation and flooding on the property, correct? A. Yes, on page three, I believe, is where he

discusses that. Q. And in that he tells -- he says that you need

a flood hazard area delineation, correct? A. Yes. He uses the word determine, but yes, I

believe he means to delineate the hundred year floodplain. Q. And -- okay. Now Id like you to take a look This is a letter dated November Take a look at it.

at D-105, Your Honor.

11, 2009, written by you. A. Yes.

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. Q. By the way, you did read the Marsden memo

116

because you responded to it, correct? A. I did, yes. Q. Okay. And if you take a look at page two of Of your

your response -- well, let me ask you first.

letter of November 11, 2009, was that in response to Mr. Marsdens letter? A. Yes, it is. Q. Okay. And on the issue of the flood hazard

study, on page two, in the second paragraph, at 1.1.2, floodplain, -A. Yes. Q. -- you said the following: The FEMA flood

insurance study shows no areas of floodplain on the subject property. Therefore, it is our professional

opinion that a flood hazard area permit does not apply to the proposed development. November 11, 2009, correct? A. Thats correct. Q. And you rejected Mr. Marsdens comments? I -That was your opinion on

Can you define the term rejected? Q. What? I re --

Im sorry. Q.

You rejected them.

I stated my opinion.

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

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And your opinion was that you disagreed with

Mr. Marsden that a flood hazard area study had to be performed? A. Yes. Q. Okay. Im next going to show you Defendants

Exhibit D-113, which is a January 14, 2010 letter from Mr. Creelman, at PS&S, to myself. -THE COURT: Which one is this? D? Im going to ask you

MR. WOODWARD: THE COURT: in the binder? MR. FENLON: MR. WOODWARD: THE COURT:

This is D-113, Your Honor.

I dont think thats -- is that

The vinyl binder, Judge. Sorry, Your Honor.

You know, Im actually concerned

about Ms. McKenzie, because I think if she wants to follow along, its impossible. MS. MC KENZIE: THE COURT: I actually --

Im going to clear -- Im going

to ask that this table be cleared off for you -MS. MC KENZIE: THE COURT: Oh, okay. So that those --

-- tomorrow.

all those things can be moved and that Ms. McKenzie can sit there. MS. MC KENZIE: Okay. I do have copies of

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yet. we go. THE COURT: the binders in my office.

118

I didnt bring them today,

but I will bring them for tomorrow. THE COURT: Okay. So, well --

MS. MC KENZIE:

So, Ill be able to follow as

But I -- you know, Im concerned

that you dont have a work space, because I barely have enough space here. MS. MC KENZIE: THE COURT: Oh, Im taking up the whole--

I know, but were going to --

well have that prepared for you tomorrow. MS. MC KENZIE: would be wonderful. THE COURT: All right, thank you. That

Thank you, Your Honor. So, 113? D-113, Your Honor, yes.

MR. WOODWARD: THE COURT:

And none of these are in evidence

Theyre just marked for identification, correct? MR. WOODWARD: THE COURT: Its not my custom to put --

Yeah, okay. -- things into evidence on

MR. WOODWARD:

cross-examination, unless the court wishes to allow me. THE COURT: Theres no -- okay. Okay? Excuse me. Go ahead. If the

MR. WOODWARD:

court pleases, Ill do that, but -THE COURT: No, its fine.

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. MR. WOODWARD: THE COURT: referring to. MR. WOODWARD: Okay, thank you. Okay.

119

Im keeping track of what youre

CONTINUED BY MR. WOODWARD: Q. Showing you this letter dated January 14, Would you take a look at that

2010, from Mr. Creelman.

and tell me if you recognize it? A. I do recognize that, yes. Q. And its his letter of January 14, 2010 in

which, among other things, he reports on a flood study that hes done, correct? A. Page two. Take a look at page two.

I believe he reviewed the FEMA flood

insurance study, correct? Q. Well, you read the letter. I mean --

Im -Q. -- you assume that he did that, correct?

I -- it states that he confirmed with the DEP that

the FEMA flood insurance study for Cranford did not include the delineation of that portion of Casino Brook located in the Township of Cranford. Q. And as a result of that, in your letter of

February 4, 2010, which is P-38 in evidence, -A. Yes. Q. Take a look at that. You finally agreed with

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Mr. Creelman that that would have to be studied, the floodplain would have to be studied as he had suggested, correct? A. Thats correct. Q.

120

And you subsequently did that study, correct?

Thats correct. Q. And that was contained in your report dated And I show

March 31, 2010, which is P-39 in evidence. you that. A. Is that correct?

Yes, thats the summary of the analysis that was

done, yes. Q. Okay. Also, as a result of that study, there

was a major modification to the concept plan that had originally been presented to the Township of Cranford, is that correct? A. Thats correct. Q. And that plan showed -- that plan relocated

Building A, correct? A. Yes. Q. The study that you did also identified the

floodway and the limits of the flood fringe area, correct? A. Yes. Q. Now, what Id like to do is spend a few Now, P-39A shows the

minutes talking about P-39A.

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. limits of the floodway, correct? A. Yes. Q.

121

And it shows the limits of the flood hazard

area, correct? A. Thats correct. Q. Now, you have in blue, dark blue the And in light blue the flood hazard

floodway, correct? area? A. Yes. Q.

Or I should --

Flood fringe. Q. Yes. Q. Yes. Q. All right. Now, you dont illuminate it Together they comprise the flood hazard area. -- say the flood fringe.

here, because I think youre just referring to the property, but, in fact, from the -- almost the entire stretch of Birchwood Road thats shown there is in the flood hazard area, correct? A. Yes. Q. As a matter of fact, that flood hazard area

runs all the way virtually to the edge of the eastern edge of the property, correct? A. Close to it, I believe, yes.

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. And it covers the driveway, correct? The

122

existing driveway, because this just shows what the existing structures are. A. Well, its only flooded in the right-of-way. The

actual beginning of the driveway is set back, you know, ten, twelve feet. But yes, its flooded in Birchwood

Avenue right-of-way in front of that driveway. Q. Well, according to the calculation, if you

have this size of a flood, you have to drive through water in the street to get into the driveway, correct? A. Yes, apparently so. Q. Yes, I agree.

And that covers the driveway that you contend

is the one thats accessible according to DEP regulations. A. Yeah, its a small piece of Birchwood Avenue in

front of the driveway, yes. Q. Now, with respect to obtaining a flood hazard

area permit, with the Department of Environmental Protection, you have to show the storage compensation for fill within the flood hazard area, correct? A. Within the flood fringe, yes. Q. Yes. Q. everyday. Please excuse me. I dont deal with this Within the flood fringe, Im sorry, yes.

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Theyre like terms. Q.

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So, in any event, does the plan, which is P-

63A, I assume is the latest iteration -- let me rephrase the question. This is the latest iteration,

P-63A, of the concept plan? A. Yes. Q. Is that correct?

Thats correct. Q. Now, does this plan show where any storage

compensation for fill within the flood fringe limit is going to be? A. No, it doesnt show where its contemplated, no. Q. So, you dont know where youre going to put

it at this point, do you? A. No. We discussed that it would go underneath

Building A and there are opportunities we discussed on the south side of the site and there are opportunities within the site, even in between some of those extensions of the buildings, where we could create some flood storage. And we discussed underneath some of the

surface parking, if necessary. Q. Well, when you said the southern part of the

site you could have some opportunities there, could you tell me -- point out where they are and tell me what they would be?

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for me? THE WITNESS: Yes. We know that the A. some. I believe in this area we could potentially get Its unrestricted by the wetlands.

124

And we could We could

get -- we know that we could get some here. get some underneath this building.

We could get some There are areas

underneath this parking, if need be. in here where we could get some. THE COURT:

Can you just point to those again

crawlspace will be provided under Building A and there will be some opportunity for flood storage increase in this area. We are looking at this area to the south And as I said, if some of this

for flood storage.

Building B needs to be rised -- raised up for a crawlspace under here, theres an opportunity and even in some of these spaces here there could be some low -THE COURT: Where? Where -In Building --

THE WITNESS:

Im sorry.

within Building B, in this area. CONTINUED BY MR. WOODWARD: Q. But if Im not mistaken, the areas here

around Building -- that you just pointed out, in Building B, are not -- theyre not within the flood fringe area, correct? A. Thats correct.

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 to break. THE COURT: good time to break? MR. WOODWARD: Mr. Woodward, would this be a

125

This would be a very good spot

I just wanted to say, Mr. Creelman, my

engineer, has been here, but he had to leave for a doctors appointment. I really would like to consult

with him before I continue this -THE COURT: Well, were just a couple minutes So,--

before the close of the court day, in any event. MR. WOODWARD: THE COURT: All right, thank you.

We can break now.

And I just

want to ask counsel, 9:30 tomorrow? MS. MC KENZIE: THE COURT: Yeah, that would -- that --

Is that okay? Yeah, Ill be here.

MS. MC KENZIE: THE COURT:

Hows that, 9:30?

(End of recorded proceedings in this matter) * * * * * * * * * * * *

126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Date: By: Regina Caldwell Regina Caldwell September 11, 2010 _357_____________ A.O.C. Number CERTIFICATION I, Regina R. Caldwell, the assigned transcriber, do hereby certify that the foregoing transcript of proceedings in the matter of CRANFORD DEVELOPMENT ASSOCIATES V. TOWNSHIP OF CRANFORD, heard in the Union County Superior Court, Law Division, Civil Part, on August 2, 2010, Tape #180/10, Index #0026 to the end, Tape #181/10, Index #0001 to the end, and Tape #182/10, Index #0001 to #0433, is prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate non-compressed transcript of the proceedings as recorded. AUTOMATED TRANSCRIPTION SERVICES

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