Transcript 8.3.10 CDA

SUPERIOR COURT OF NEW JERSEY LAW DIVISION, CIVIL PART UNION COUNTY, NEW JERSEY DOCKET NO.
UNN-L-140-08 A.D. NO.:__________________ LEHIGH Plaintiff vs. TOWNSHIP OF CRANFORD Defendant ) ) ) ) ) ) ) ) )
TRANSCRIPT OF TRIAL
Place: Union County Courthouse Two Broad Street Elizabeth, New Jersey 07207 Date: August 3, 2010 BEFORE: THE HONORABLE LISA F. CHRYSTAL, J.S.C. TRANSCRIPT ORDERED BY: CARL R. WOODWARD, III, ESQ. (Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein APPEARANCES: STEPHEN M. EISDORFER, ESQ., (Hill & Wallack, LLP) Attorney for the Plaintiff CARL R. WOODWARD, III, ESQ. (Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein) Attorney for the Defendant BRIAN H. FENLON, ESQ. (Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein) Attorney for the Defendant
UTOMATED TRANSCRIPTION SERVICES
LYNN COHEN-MOORE
P.O. Box 1582 Laurel Springs, New Jersey (856) 784-4276
2 I N D E X August 3, 2010 WITNESS Direct MICHAEL E. DIPPLE By Mr. Woodward By Mr. Eisdorfer PETER HEKEMIAN By Mr. Eisdorfer 77 By Mr. Fenlon EXHIBITS D-43 D-113 Mr. Creelmans pictures D-150 Mr. Dipples March 31, 2010 plan D-162 D-163 Photograph D-164 P-10C Survey P-15 P-16 P-25 P-38 P-39 P-39A Mr. Dipples drawing P-40 P-59 P-60 Photograph Photograph Phase one and phase two environmental study Addendum letter Analysis February 4, 2010 letter from Mr. Dipple Cross 3 Redirect 63 Recross 73
96 Ident. 14 3,4,68,69 18-20,22,25-28,41 25-29 24,43,44 58 6,12,43-45 91 91 92 11 30 25,28,29 15 85,86,97,99 85,87,97 88 88 Evid.
AUTOMATED TRANSCRIPTION SERVICES 856-784-4276
3 P-61 P-62 P-63 Photograph Photograph 85,87,89 85,87 19,37 88 88
P-63A Mr. Dipples 16,17,19,20,22,45,49,80.97,117 July 30, 2010 concept plan P-64A Drawing P-150 Attachment to March 31, 2010 report P-164 35 19,29 58
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 COUNSEL: Good morning, Your Honor. Are we ready to proceed? Yes, ma'am. D I P P L E, PLAINTIFFS WITNESS,
THE COURT: COUNSEL: M I C H A E L ON THE STAND: THE COURT: E
Mr. Dipple, you are still under
oath, so you can proceed. MR. WOODWARD: Thank you, Your Honor.
CROSS-EXAMINATION BY MR. WOODWARD: Q Mr. Dipple, I showed you yesterday a letter
from Mr. Creelman dated January 14, 2010 which has been marked as defendants exhibit D-113. Now I want to
direct your attention -- well, first of all before I show that to you, I want to ask you a question. I
think you stated yesterday when you visited the site you saw no evidence of flooding. correct? A Yes. There -- when I, on all occasions that I've The, Did I get that
been to the site I didnt see any indication. the, the property was not flooded. evidence of, of flooding. quite low at the times. Q
There was no
The stream was actually
In fact, it was never raining when you
visited the site. A No, it was. It was actually raining quite hard
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 one time when I went to the site. Q All right. Well, but you did learn from Mr.
Marsden, the township engineer, that the site floods. A I dont believe that Mr. Marsden mentioned that
until I, I saw the photographs. Q Well, take a look at D-113. Mr. Creelman
attaches to his report a number of photographs beginning at Exhibit C. I'm gonna show it to you and
ask you if you could look at. MR. WOODWARD: the witness. THE COURT: BY MR. WOODWARD: Q Yes. Q Yes. Q That shows Birchwood Avenue, right? -- show -- you recognize that? Exhibit C; does that -Sure. Your Honor, if I may approach
That's correct. Q It shows a car stuck in the middle of the
street, right? A Yes. Q correct? A That's correct. Its got water all the way up to its hubcaps,
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 Q Okay. Lets take a look at the next one.
That's a shot looking down Birchwood Avenue from east to west, correct? A That's correct. Q And it looks like its got one of the
driveways and its Birchwood -- is it fair to say that Birchwood Avenue is flooded? A Yes. Q And, in fact, the flooding in the picture
extends into 215-235 Birchwood Avenue, correct? A Yes. Q Take a look at Exhibit E. That's another
shot of Birchwood Avenue. A I do. Q
You recognize that?
By the way, is the street closed?
It looks like there's some individuals up at the Possibly, yes. Are there cars stuck in the middle of the
street. Q street? A
There, there are cars on the street. Q And is there flooding on 215-235 Birchwood
Avenue? A Yes. Q Take a look at picture E, if you would.
That is E.
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 At, excuse me. You recognize that picture?
Is that another picture of 215-235 Birchwood Avenue? A Yes, it appears to be the western side of the
property. Q Yes. Q G. Q Also is that a picture of the subject Take a look at picture F, G, I'm sorry. And is it flooded?
property, 215-235 Birchwood Avenue? A Yes, its looking into the west half of the
property. Q Yes. Q it, sir? A Yes. Q So there's no doubt in your mind that, that In fact, the flooding is extensive. Isn't Is it also flooded?
this property has a significant flooding problem, correct? A No. The study confirmed that the flood hazard
area does affect the property. Q Now I want to put up here Exhibit P-10C. I
think you testified that yesterday, correct? A Yes.
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 Q All right.
What I want to focus on right now This shows the
-- well, lets back up a second. wetlands, correct? A That's correct. Q Yes. Q
You highlighted that in the darker green.
And then in the lighter green you got the
wetlands buffer, correct? A Yes, various buffers. Q Yes.
And, and, and then a riparian buffer on the
west side of the property. A That's correct. Q Brook. A Yes. Q Yes. Q And then you also have in darkest green this Correct? And in the darkest green you have Casino
ditch that's on the east side of the property, correct? A That's correct. Q All right. Now this survey also shows the
existing development on the property that is as it stands today, correct? A Yes. Q Okay. I want to focus on the east side of
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 the property where there's a two story masonry office building and there's a big parking lot behind that building. A I do. Q Now that big parking lot behind the building You see that?
you testified about yesterday, correct? A I discussed it, yes. Q cover? A I, I don't know the area. I would guess its How large an area does that parking lot
multiple acres. Q Its at least two acres, two to three acres.
I, I think so. Q Yes. Q And you testified about some drainage valves Correct?
and so on but does that site, does that parking lot have actually any storage unit? A The parking lot? Q The parking lot itself. I dont, I
No, there are a number of inlets.
dont believe that that parking lot stores water by itself. Q it does. No. But you didnt study it to find out whether
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 A No, I just looked at the topographic map. Q
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But you didn't do any calculations to figure
out whether or not it could store water -A No. Q No. Q So you dont know. -- or does store water, correct.
I dont know. Q If it did store water, would you need to take
that into account as part of your calculations in support of an application for a flood hazard area permit? A Yes. Q And what would you have to do?
Well, we would have to analyze for the purposes of
meeting the requirements of the storm water management rule, we would analyze existing conditions and determine what the runoff values are and then study proposed conditions to determine what the runoff values are and then compare the two. Q Now if you have a -- if that stores water the
flow out of that would be, would have a low head, correct? A A, if it stores water, it would be a lower rate.
It would actually increase the head.
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 lot? A Yes, there are. A Q Well, its only a few feet that its going
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down, correct? A Yes, but storage creates a higher head. I'm just
clarifying a term that -Q Okay. But if you have a building over top of
that, that's 60 to 70 feet high, correct? A That's correct. Q The water that comes down from the sky and Is it?
lands on that roof isn't gonna be stored. A That's correct. Q
And its gonna fall through the gutters 60 to
70 feet before it hits the ground, correct? A That's correct. Q And so its gonna be flowing off the property
faster than what the current storage is, correct? A I, I don't believe so. And the reason I believe
is that were assuming that they're storage on the, on the parking lot which I dont believe that there is so -Q But you haven't studied it so you dont know.
No, but I, I see a parking lot there with no
storage on it and I dont believe that it does. Q Well, are there curves around the parking
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 they? A Yes. But there are also inlets on the property. (Pause) Q They're at least six inches high, aren't
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Now in your letter of February 4, 2010, which Do you recall
is P-38 in evidence, show you that. that? A I do. Q
You stated I think, in essence, that even
though you now agreed with Mr. Creelman that the, the Casino Brook and its related flood plain had to be studied, you didnt think it would make a difference in the design of the project, correct? A I just want to review my statement. Q Sure. (The witness reads P-38) My statement is that it is our professional
opinion that the proposed development can be designed to meet all the requirements of the flood hazard area rules and their permit can be granted. Q Well then if you take a look at the second
page of the document in paragraph two, you're talking about storm water management requirements and then you say, We foresee no change in the proposed design to meet the storm water management requirements. Do you
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 A see that? A Yes. Q So you wrote that.
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I did. Q Yes. Q -- of the site and you ended up making a Okay. And then you, then you did a study --
major change to the design, correct? A That's correct. Q You moved one of the buildings and relocated
it and resized it. A Yes. Q Yes. Q So, in fact, in order to accommodate this you Correct?
had to make a major change in the design. A Yes. Q Okay.
But that applied to the flood plain not the storm
water management requirements. Q Now with respect to P-10C again, I want to
ask you about this ditch that's on the lower right of the southeast corner of the project. A Yes. Q All right. Now you say there is no buffer Do you see that?
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 required there for wetlands, correct? A Correct. Q ditch is? A No, I dont. Q You know how many acres it is? Do you know what the drainage area of that
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No, I dont. Q You know in the DEP regulations if its more
than 50 acres, youve got to have a 50 foot riparian buffer, correct? A That's correct. Q But you dont know whether, in fact, it
requires a 50 foot buffer. A No, I don't know. Q No, I dont.
Youve never studied that.
No, I haven't. Q And if there's a 50 foot buffer, that would
extend on both sides of this ditch, correct? A Yes, it would. Q And you wouldnt be able to build in that 50
feet, correct? A You, you may be able to -- I believe you can Yes.
disturb what is already disturbed. Q Okay.
So you're saying that maybe if the end
of this parking lot was within that 50 foot buffer, you
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 could disturb that but on the south side of it you couldnt disturb that, could you? A That's correct. Q Or any of the area that's past the parking
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lot, correct? A That's correct. (Mr. Woodward looks for a document.) MR. WOODWARD: Excuse me, Your Honor. I seem
to have mislocated a document. BY MR. WOODWARD: Q Do we have your original report?
July 21 report? MR. WOODWARD: Excuse me, Your Honor. I just
need a moment. THE COURT: Take your time.
(The attorneys talk amongst themselves while Mr. Woodward looks for a document.) BY MR. WOODWARD: Q I'm gonna show you, sir, your report dated
May 21, 2008 which is D-43 for identification and I'm gonna direct your atten -THE COURT: What was it? P, P-40?
MR. WOODWARD: THE COURT:
D, D-43, Your Honor.
D-43, thank you. (inaudible)
MR. WOODWARD:
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 THE COURT: BY MR. WOODWARD: Q I want you to look at page three and at the Yes, okay. Thank you.
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bottom of the page, you talk about the zoning requirements for this area as part of your, part of your site analysis, correct? A That's correct. Q All right. Now the property is currently
located in what's called the O-1 zone, correct? A That's correct. Q And that's an office commercial zone?
It is a low density office building zone. Q Yeah. And, in fact, this property right now
is developed with -- in a low density fashion, correct? A That's correct. Q The lot coverage is not like 90 percent as Is it?
you testified about in Englewood yesterday. A No, its not. Q correct? A Yes, I think so. Q All right.
Probably in the maybe 20 to 30 percent,
And the front yard setback is 50
feet, correct? A Under the O-1 bulk standards, the -Q Minimum --
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 -- minimum front yard is 50 feet, yes. Q correct? A 50 feet, yes. Q And a minimum -- and the maximum building And the minimum size yard is 50 feet,
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height is 30 feet, correct? A Building height. Q All right. Yes, its 30 feet. And the buildings that are on
that site conform to those requirements, correct? A I, I believe so. I dont know the building
heights but I believe the setbacks, it looks like they conform with the setbacks. Q minute. Yes.
Now lets talk about the setbacks for a The proposal that you have submitted in
looking at P-63A which is dated July 30, 2010, shows Building B has an 18 foot setback, correct? A I believe that's correct. Q Yes.
And Building A is not identified but it looks Is that correct?
like it might be around 25 feet. A Yes. Q Okay.
Possible. Q Are there any other buildings on this street,
Birchwood Avenue, that are 18 feet from the curb? A Not that I'm aware of.
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 A Q Or from the property line. Not in this vicinity.
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Not that I'm aware of. Q
And youve been on Birchwood Avenue many
times, correct? A Yes, I have. Q You haven't seen any buildings that are that
close to the street. A I'm not aware of any buildings -Q Okay.
-- that close to the street. Q Are there any buildings that are 60 to 70
feet high on Birchwood Avenue? A Not that I'm aware of. Q And certainly there are no buildings 60 to 70
feet high within 18 feet of the street, of the property, front property line. A Not that I'm aware of. Q P-63A. Now lets take a look at, again at this This is your concept plan and it importantly
shows the floodway line, correct? A That's correct. Q No. Q Why is it not on there? Does it show the flood fringe line?
This plan was prepared by the architect and I, I
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 now. THE COURT: Okay. I have it. Q of this. MR. WOODWARD: THE COURT: This is D-150, Your Honor. dont, I dont know why they didnt include the flood fringe line but it is included on the opposite page. Q
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But dont you think it would be important to
understand this concept plan to show where the flood fringe line is? A In my opinion, I think the floodway line is the
more important line but I understand the need for the flood fringe line. (Mr. Woodward looks for an exhibit.) Now unfortunately I dont have a large copy
Okay. D-150.
Is it the same as P-63A? Well, I'm gonna get into that
MR. WOODWARD:
MR. WOODWARD: BY MR. WOODWARD: Q
Okay.
Now I'm sorry I dont have a blown copy of
this but this is D-150 and I'm gonna show it to you. I'm gonna represent to you that this is the plan that was attached to your March 31 rep, 2010 report. a look at it. Do you recognize it? Take
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, I do. Q Do you agree with me that March 31 is the
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date that this document is dated? A Yes. Q Okay. Now does that show the same location
of the buildings, Building A and Building B, as P-63, P-63A? A Yes, it does. Q All right. Does it show the limit of the
flood fringe area? A This document does not. Q So both in March 31 and on July 30, you have
not included or whoever prepared this has not included a delineation of the flood fringe area, correct? A That's correct. Q Now what Id also like you to go over with me
-- I'm gonna hand this back to you, D-150, tell me what the differences are between P-150 and P-63, P-63A? A The differences include the removal of the 20 foot
buffer line which was only shown for the benefit of the architect to make sure that they dont propose any structure within 20 feet of the wetlands. The line has
no validity so we asked them to remove that line. They changed the parking which runs along the east side of the site to include some landscaped
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 islands and they removed a number of parking spaces between building, between Building A and Building B, more toward the south of Building B and they changed
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the parking count where the parking is located in the, in the parking table. Q Now could, could you do me a favor and come
up to the -A Yes. Q -- board and point out to The Court exactly
where the parking spaces are that were removed? A Parking spaces were removed from this area of this
new driveway. Q To the west side of Building B, correct?
To the west of Building B, the spaces that, that
were, the perpendicular spaces that faced Building B and then faced the west side of the property and some of the spaces where the roadway makes a turn to go eastward. Q All right, thank you. Resume your seat. So
D-150 calls for a total of 683 parking spaces, correct? A That's correct. Q Whereas D-63A only calls for 671.
Correct. Q Yes. A net reduction of 12 spaces.
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 All right. What is the RSIS standard for
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this building, for this property?
How many spaces are
required under the Residential Site Improvement Standard? A I dont have the total number. Its based upon
the number of bedrooms per unit and I, I, I dont have the calculation in front of me. on this concept. I dont believe its
Its I believe 1.8 spaces for a one-
bedroom unit and 2.3 spaces for a two-bedroom unit but I, I could be incorrect on that. Q The total number of spaces, am I correct,
for, for this property under the Residential Site Improvement Standards are about 813? A I, I can't testify to the number without doing it
but it, it, it sounds like it would be in that range. Q So we have a shortfall to be conservative of
spaces under the Residential Site Improvement Standards of at least 135, maybe more than 140 spaces, correct? A I think using your number of 813 and 680, 671, Yes.
rather, would be 140 spaces. Q
Now you can -- could you put all of those
spaces on this property -A Could I -Q -- to satisfy the RSIS standard?
I dont, I dont know if you could add 140 surface
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 spaces. There might be other opportunities in the You could increase the
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garage or under Building A.
surface parking but, but I, I dont, I dont know if 140 would, would fit on the site but -Q But this latest plan, P-63A, actually reduces
the number of spaces from the March 31 plan, correct, D-150? A Yeah. I believe the ratio on the D-150 plan is
1.63 spaces per dwelling unit and on P, what's this, 63A? Q Yeah. It is 1.60 spaces per
Is that what it is?
dwelling unit.
So there is a slight reduction in the
number of spaces proposed. Q But there's a significant shortfall in
parking between what's proposed whether its 680, 671 or 683 and over 800, correct? A Yes. Q 140 spaces. That's a significant number. Isn't it?
I dont, I dont, I dont know if its
significant. Q A 20 percent shortfall, a 15 to 20 percent
shortfall is not significant? A I, I do a lot of development where I believe sites
are over parked and I dont, I dont necessarily
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 have? A Well, we, we prepared the, the wetlands boundary A believe that, that its significantly over parked. would significantly be over -Q But its --
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-- parked -Q Its significantly short of the RSIS
standard, correct? A Its 20, its 20 percent shortfall. If its
significant, its significant, if its not, its not. Q Now with respect to the flood fringe line, Did you have any input into this
did -- excuse me. concept plan? A Yes. Q
Tell me what sort of -- in, in terms of your
interaction with Lazar -A Yes. Q What's, what sort of interaction did you
and, and obtained the LOI so we identified where the wetlands were and we did the flood study and created the floodway line and then, and then showed them where Building A could be located to comply with the flood hazard area regs. And just in general, reviewed the
concepts as they were being prepared, you know, throughout the course of, of the design process.
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 Well, was it your suggestion to remove the
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parking spaces on the west side of Building B? A I -- it was my suggestion to not encroach into the It
buffer as much as possible, the wetlands buffer.
just limits other parts of the site and if its not necessary then, then possibly we should, we should not encroach in that buffer. Q When you say it limits other part of the
site, you mean it limits the areas that you have availability for compensation for flood storage lost by the buildings? A No. I was, in terms of compensation for the The more you encroach
wetlands transition actually.
into the wetlands transition area, the more you have to compensate for that encroachment. So if those spaces
are not desired or required, whatever may be, then, then I would, in my opinion, its, its best to remove that encroachment. MR. WOODWARD: Your Honor, may I have this
marked as Defendants Exhibit 163 for identification? THE COURT: That's your last -I think 162 was our last
MR. WOODWARD: number, Your Honor. THE COURT:
I have 159 in the book. I'm sorry, Your Honor. We did
MR. WOODWARD:
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 have 159. MR. WOODWARD: that clarified. THE COURT: Fine. Later. supply some, a couple of additional exhibits so were up to 161. This really should be -THE COURT: I dont think I have 160.
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I just
Well, well, well, well get
No problem. We can label this rather 162, Thank you.
MR. WOODWARD:
D-162 for identification.
(D-162 is being marked for identification.) BY MR. WOODWARD: Q Mr. Dipple, I'm gonna show you what's been
marked as D-162 and you did a document which, which by the way is, its a document that bears a date of March 31, 2010. Okay? And that looks like D-150 but I'm
gonna represent to you that there has been an additional item added and that is the flood fringe limit line. Now you created this in another document Do you see
which for the moment we will call P-39A. that? A Yes. Q Okay.
And I'm gonna represent to you that we
took the flood fringe limit line and superimposed it on
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 D-162. A Yes. Q What I'd like you to do is take a couple of
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minutes, take your time and compare those two documents and tell me if weve done it reasonably accurate. you can get up and take a look if you wish. A I -- yeah. I dont, I dont doubt that that's a And
valid interpretation on the flood hazard area line on the, on the concept line. Q Okay. MR. EISDORFER: not correspond up here. MR. WOODWARD: MR. EISDORFER: about that. Well, we can talk about that. Well, no, no. He can't talk You can't Object. Actually, it does
That, that's your document.
represent that's, that, that's the same document as this. If your guy drew it differently using different You can't
criteria then youve got to put him on.
represent that these are the same documents. THE COURT: I'm waiting for a reply. My reply is I'd like Mr.
MR. WOODWARD:
Dipple to take a look at D-150 which is dated March 31, 2010 and see if, in fact, the drawing of the street is the same. THE COURT: All right. I mean I'll allow him
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 look at it and he can testify about it. If he's
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ever -- if he's gonna offer it into evidence, he's gonna have to put on whoever made it. MR. EISDORFER: THE COURT: Well, Your Honor --
I mean he could show it to him. He can show it to him but,
MR. EISDORFER: but, but -THE COURT:
That's what he's doing. But he can't represent, he
MR. EISDORFER:
can't put premise, any questions on a premise that, that its the same as this. THE COURT: Yeah. Well, the witness can tell me
MR. WOODWARD: that I'm wrong. THE COURT:
Right. I'm allowed to explore that on
MR. WOODWARD: cross examination. BY MR. WOODWARD: Q
Now, Mr. Dipple, what I'd like you to do is
take a look at D-150 and tell me whether D-162 has the same des, depiction of the street line. MR. EISDORFER: the street line. line. Your Honor, the issue isn't
The issue is the, is the flood fringe
The, the key, the key fact that Mr. Woodward is
supposed to talk about.
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. WOODWARD: Well, let me -- Your Honor, I'd like to ask the
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this is my cross examination.
witness some questions instead of having Mr. Eisdorfer testify. THE COURT: He has a wide leeway. BY MR. WOODWARD: Q Now, Mr. Dipple again, my question relates to Is the depiction of the Yeah. Its cross examination.
I'll allow it.
specifically D-162 and D-150.
street line the same on Birchwood Avenue? A Its -- I believe the depiction of the right of The actual street line is, is
way line is the same. not -Q All right.
-- depicted on Birchwood Avenue but the right of
way line is. Q Now lets, lets discuss P-39A for a moment.
This is your drawing, correct? A That's correct. Q Okay. And you show the limit of the flood
fringe area up on the northeast corner of this drawing around the driveway as being right at the curb, correct? A That's correct. Q And P-63A actually shows the curb, correct?
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 I'm sorry. Q Which number? 63?
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I'm sorry.
This is P-63A. That's P-39.
MR. EISDORFER: THE WITNESS: MR. WOODWARD: BY MR. WOODWARD: Q Yes. Q All right.
That's 39A. Excuse me. I apologize.
P-39A actually shows the curb, correct?
Whereas D-162 -- strike that.
P-150 does not show the curb line, correct? A It, it, it shows little pieces of the curb line in
various locations. Q But its not a solid line the way it shows up
on P-39A, correct? A That's correct. Q And the, the flood fringe line goes right to Is that
the curb at the, at the existing driveway. correct? A Yes. Q All right.
So when you're looking at P-1-6,
P-162, what you have is a flood fringe line that actually goes a little bit off the property -A That's correct. Q Yes. -- into the street right of way, correct?
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 Q
31
So now what I want to, -- having, having done
that, what I'd like to explore with you for a minute or two is what this actually shows, would you agree that this is a reasonably accurate depiction of the flood fringe line Building A, correct, is entirely in a flood fringe area, correct? A That's correct. Q A portion, -- the front portion of Building B
which is up against close to the street is also within a flood, flood fringe line, correct? A That's correct. Q Okay. Also all of the entrance driveway and
the parking spaces between those two buildings also in the front within, entirely within the flood fringe line, correct? A That's correct. Q All right. And under the March 31 plan, part
of the parking area was within the flood fringe line. A Yes. (Pause) Now yesterday you talked about what you
thought were the causes of flooding on this property. A Yes. Q First of all, the existing development on
this property occurred 30, 40, 50 years ago?
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 A A
32
Based upon the architecture, it appears that its Yeah.
been there for about that long. Q
And what about the building to the west,
Construction Contractor I think you said. A Yes. Q How long has that been there? It looks like its slightly more
I, I dont know.
modern architecture. Q And the, the Verizon building; that's
certainly been there for a while, correct? A Yeah, I would say that would be close to the same
time as the building on this site on the east side. Q So maybe 40, 40 years, 30, 40 years.
Yeah potentially. Q What about the houses? Did you ever go onto
Wadsworth Terrace and take a look at the houses that were on Wadsworth. A Yes, I did. Q And those houses have certainly been there
for a long time, correct? A Yes. Q Maybe 40 or 50 years.
Yeah, I think sometime between the 60s and 70s -Q Okay.
-- based upon the architecture.
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 So at the time and you mentioned one issue
33
was the culvert that was undersized on Wadsworth Terrace. A That's correct. Q Okay. Down about here. At one point in time
though that was put in based on your estimation probably about the time that Wadsworth Terrace was developed? A Yes. Q In order to build a road, they'd have to put
a culvert in to support the houses at the end of the street, correct? A That's correct. Q So that's an existing condition that's been
there for a long period of time, correct? A Yes. Q Okay. And the culvert on the other side of
Birchwood Avenue is also a condition that's been there for a long period of time. A Yes. Q All right. And even, -- although we dont
know exactly the years, the, the building to the west of this property and whatever fill was with that, has been there for a long period of time. A Yes.
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 Q No. Q None of this is new.
34
So were dealing with an existing condition.
That's correct. Q And the existing condition which have been
there for a long period of time do not change the applicability of the DEP regulations to the flood hazard. A Do they?
No, they do not. Q Now in terms of creating flood storage in the
flood fringe area, I just want to make clear of a couple of things. Isn't it true under the DEP
regulations that you cannot put flood storage for a flood fringe area in the flood line? A That's correct. Q So that any flood storage has to take place
in the flood fringe area, correct? A That's correct. Yes. I, I should clarify that It can be on other areas
its outside of the floodway. of the site.
The storage doesnt have to be created
between the floodway line and the flood fringe line. The storage just needs to be created on your property. Q But it can't be isolated from the flood
fringe area, correct? A It cannot be.
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 Its got to be directly connected to it.
35
That's correct. Q So you couldnt, you couldnt put your
retention basin over here unless somehow it was directly connected. A That's correct. Q Now are you aware of any plan for providing
parking for this property in Birchwood Avenue? A No. The application stands with 1.6 spaces per I haven't studied any potential parking
dwelling unit.
in Birchwood Avenue. Q But its fair to say, is it not, that the
entire distance of Birchwood Avenue in front of this property is in either the floodway or the flood fringe area. A That's correct. Q So any cars that would be parking there could
be subject to being flooded while parked. A I think its likely. Q Now -(The attorneys talk amongst themselves.) BY MR. WOODWARD: Q P-64A. drawing? All right. Now I want to take a look at Yes.
Were you involved in the preparation of this
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, to some extent. Q What was the extent of your preparation of
36
this drawing? A We, we provided the measurements of the trees
along the left side of Section C and we advised that on Section A potential flood storage and a crawl space underneath Building A is possible in that location. Q Now is it fair -- now you also have these A, That's these pictures here.
B and C sections. A Yes. Q
And you have a key map down at the lower You call it key plan.
right hand corner. A Key plan. Q Okay.
And Drawing A or Section A goes Is that
through the, I guess the front of Building A. correct? A yeah. Q Yeah.
Longitude in a way through building of, of,
You dont have one that shows, a cross
section that shows Building A as its closer to the floodway. A No. Q correct? A That's correct. Do you? That's not one depicted there. No.
And Section B goes through Building B,
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 Toward the street.
37
And Section C is for the
rear of the property, correct? A Yes. Q All right. In Section B, you show the, on
the left the existing nursing home, correct? A That's correct. Q Yes. Q Okay. And you have the estimated height of Which is the adjoining property?
that building at around 12.3 feet, correct? A Yes. Q My office measured that building. Okay. And at the rear of the building, its
got a peak height of 26 feet, correct? A Yeah, it appears there's an addition put on the
building at one point with a higher, with a higher roof elevation. Q Now with respect to Section B as we extend
through here, we see that there's a flood plain line goes, extends out to the right across the entry drive. Do you see that? A I, I dont. Q Sure. May I --
-- come closer? Q Yeah, take a look.
Yes, the architect has placed at a location of the
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 flood plain. It really should be labeled the flood
38
hazard area line. Q All right. But the flood hazard area line is
higher than the driveway, correct? A Yes. Q driveway. In fact, its significantly higher than the At least according to that line, it looks
like it goes through the middle of the cars. A Yeah. Q Maybe two feet or more?
It looks like its about two feet. Q All right. Now if you take a look at P-63,
its hard to tell but is it fair to say that, that this, this cross section also includes not only the entry drive but parking area? A Yes. The architect as its depicted the parking
areas. Q So isn't it a requirement of the DEP that you
have to have the parking areas and the access drives at least one foot above the flood fringe? A Yeah. I believe the rule states that you have to
have driveways one foot above and parking areas one foot above to the extent possible so -Q All right. Is there anything that prevents
those driveway areas from, and parking areas from being
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 raised one foot above in this particular concept? A No. The -- this is a architectural rendering In design, I think we
39
which he depicted the parking.
would make every effort to bring those spaces up above the, the flood hazard area elevation just for the protection of the vehicles if nothing else. find other opportunities for flood storage. Q But as it stands right now, that concept plan And then
does not do that, correct? A No. The architect didnt raise the build, the
parking up above. Q Well, did you tell the architect that he
should do that? A I didnt notice that the, that the cars were
located below the floodway line. Q Now also in, in this, in this drawing there's
no cross section for the portion of the building that is large, of Building B that is largely in the flood hazard area, correct? A That's correct. The part of the building that's Right.
closest to Birchwood Avenue. Q
Now Building A -- Building A the way you
would construct it so that you have flood storage is to build it basically on piers or stilts. A Piles.
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 Q Piles.
40
Piers, yeah. Q Piles. Would you use piles? Its, it would be more like
Well, no.
I'm sorry.
stilts. Q
Yes, I'm sorry. Okay.
I used the wrong term.
And the floor of the garage, the
finished floor of the garage has got to be one foot, at least one foot above the flood hazard limit, correct? A Yeah, that's correct, to the extent possible,
right. Q Well, is there anything that prevents it from
being one foot above? A No, there are a number of reasons why you can, you They're
can get an exception from that from the DEP.
all listed in the regulations for parking areas as to how you make an effort to meet that but if you can't, there's, there are a number of reasons why you can't. But for the purposes of this, well say that it, the applicant will make every effort to raise that up a foot out of the flood hazard area. Q Okay. So lets talk about the structure of
this parking and the building itself. A Yes. Q Youve got to, youve got a slab that is one,
the top of it is one foot above the flood fringe area,
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 by -A These columns that we were referring to. Q Well, how about some cross members? Any A correct? A Correct. Q Okay. How thick is the slab? I, I haven't designed the slab
41
I, I dont know.
for parking and I'm, I'm not a structural engineer but it would be somewhere between I would say six to eight inches thick. Q Okay. And, and, and that has to be supported
cross members we'd have to support? A Well, it could be pre-cast concrete. So there
would be maybe some webs or something like that. Q Which would extend more than six to eight
inches down from the finished floor, correct? A Yes, that's correct. Q more -A Probably. Q Yes. Q All right. And that would actually be -- to support the weight. It might be a foot. It might be two feet or
encroaching into the flood fringe area, correct? A That's correct.
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
42
So in making your calculation you would have
to take all of that into account. A Yes. Q Now when you apply for a permit from the DEP
under the flood hazard area regulations, you have to show first of all, all of the fill that's gonna be added to the site that, whether its in the form of construction or dirt that's gonna encroach into that flood fringe area, correct? A Yes, correct. Q And you have to calculate how much has to be
compensated for, correct? A Yes. Q Okay. And what you have here doesnt attempt
to do that. A No. Q We haven't engineered that yet. So as it stands here today, we dont have, we
dont have any information in this court about how much fill there's gonna be or how much compensation there has to be. A No, that's not here. Q And going back to March 31 with that last
plan that you submitted, D-150, there were no such calculations then either, were there? A No.
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 So do you have, do you know -- withdrawn.
43
Also all the compensation has to be onsite, correct? A That's correct. Q And it has to be connected if its outside
the flood fringe area to the flood fringe area. A Yes. Q And you can't like build a base. Youve got
to have some form of connection so that the flow of the water across the property is basically accommodated, correct? A Yes. Q Where is the compensation for the volume
going to be? A A. Well, its, its going to be underneath Building There will be flood storage underneath Building A.
There will be other areas on the site as I, as I pointed out yesterday, where we can find opportunities for flood storage even underneath this parking lot and in some of these areas in the front and some of these areas here and, and this area over here and any, any place where we can provide that. Q Do you know whether there's actually flood
storage already on this site in some of those areas on the front that you pointed out? A There are, there are depressed areas, small
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 it? A Yes. MR. WOODWARD: D-163, Your Honor? BY MR. WOODWARD: Can I have this marked as A depressed areas in the front lawn of Building, the
44
building on the east side that Mr. Marsden pointed out. I dont know if they're flood storage areas, if they're in the flood fringe or not but, but there are small, you know, areas that, that puddle around the site. Q All right. Now you also said that there's
opportunities for flood storage down here on the southeast corner of this property, correct? A I believe so. Q Yes. Well, could you tell me whether
All right.
looking at P-10C, whether in fact, that's all wooded? A I believe it is wooded. Q Yes.
So in order to create some sort of flood
storage down there, youd have to remove trees, correct? A Some trees. Q How many? I dont, I dont know. Isn't
Well, I didnt count them. Q
Its pretty -- its heavily wooded.
Its, its, it has, it has a number of tall trees.
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 A A A Q I'm gonna show you what's been marked as
45
D-163 and I'll represent to you that this was produced by Mr. Eisdorfer to us on the 30th of July. recognize that photograph? A Yes. Q Yes. Q And that photograph shows the building as And that's a photograph of the site, correct? Do you
they currently exist. A Yes. Q Where did you get -- did you get that
photograph or do you know where it came from? A Yeah. I believe this was generated by my office. Its either
It was, it was either -- I should correct. Google or, or Bing Map site. Q Yes. Q Okay. All right.
I, I dont know which --
So your office generated this.
Its an aerial photograph, yes. Q Fine. Let me show this to The Court.
(Mr. Woodward shows D-163 to the Judge.) Now, Mr. Dipple, I'm gonna hold this, I'm
gonna hold this D-163 which has been marked for identification, up on this drawing which is P, P, P-10C, okay?
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 Okay. And if you take a look at P-63A, we A Yes. Q
46
And is it fair to say, and I'm gonna point to
the lower center part of this drawing just to the outside of the dotted red line, to the right of the dotted red line. A Yes. Q -- lower portion? Okay. Does that fairly or Do you see that --
does that, is, is, does that represent a corner, the southeast corner of P-10C that we've just been discussing? A Yes. Q Now is that heavily wooded?
I think you would describe it as heavily wooded.
see that this Building B extends from 18 feet from the street, Birchwood Avenue, several hundred feet all the way toward the back of the property. A That's correct. Q Do you know what the distance from the end of Fair enough?
this building is to the rear property lines of the houses on Wadsworth Terrace? A I, I do not. Q I could --
Can you scale at all?
I, I could, I could --
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 Can you estimate? Yes.
47
I could venture a guess. Q
All right, thank you.
My estimation is about 160 feet. Q So the end of the building, the rear property
line on Wadsworth Terrace is about 160 feet here and, and I'm not gonna hold you to be precise. A Understood. Q But, you know, its approximate. Okay.
Right. Q And its heavily wooded, correct? That
distance. A Yes. Q So if you were gonna use this for flood
storage, you'd have to remove trees, correct? A That is correct. Q Dont the trees here, even though they're
deciduous, provide at least something of a buffer, a barrier between the visibility of the building and the houses on Wadsworth Terrace? A Yeah, although there's not a lot of underbrush They're very tall canopies and there's not,
there.
its, its very, its not very dense on the underbrush. Its more of a high canopy. But I, there are, there is
a buffer there between the trees and the, and the, and
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 question. question. section. THE COURT: Do that. MR. WOODWARD: Your Honor. Thank you. I'll rephrase my question, All right. A the -Q How tall are the trees?
48
Those specifically are in the 70s, 70 to something
feet high. Q So, so they're about as tall as the building,
Building B, correct? A There are -- yeah, probably a bit taller than
proposed Building B. Q So at least and, and a typical house on
Wadsworth Terrace is probably 30 feet or less, correct? A Yeah, that's correct. Q So you have a building that's 60 to 70 feet
high, a house -MR. EISDORFER: I object to the form of the
The building is 70 feet high shown on the
You can rephrase your
BY MR. WOODWARD: Q I -Q Section C. I think you want to look at Building -- at Building 60 feet high; is that fair?
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
49
I think its less than 60 feet because the tree is If I project that line over, it I would think it
depicted at 60 feet.
looks like the building is less. would be in the mid 50s. Q All right.
Its higher than Building C. Excuse me. So you think
Okay.
its and, and that, that the building is about 50 feet high but certainly, 50 to 55 feet high, its certainly probably 25 feet higher than the houses on Wadsworth Terrace, correct? A Yeah, that's correct. Q And so those trees provide some kind of a
buffer at least for six months of the year for those properties from having to look at this building, correct? A That's correct. Q And one other thing. The dimension here for
Building what well call it width, this line at the back. A Yes. Q How long is that? Do you know?
I would estimate its, its greater than 100 feet Its probably 140, 140
but likely less than 150. something.
I dont, I dont have that dimension here
but using the same estimation I used for the distance. Q Sure, take your time.
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 All right.
50
I, I, I would say its about 150 some feet, maybe
-- 100 and 50, 155 feet. Q So the building mass is 55 feet high by 150 And the trees which would provide this
feet across.
buffer in order for you to provide the compensation flood hazard, flood storage compensation opportunities you're talking about, would have to be removed. A In that area if, if we needed that area. That's
correct. Q No. Well do you know whether you need that area? I, I think that the, the flood hazard area in
a lot of places is extremely shallow and it doesnt hold a lot of volume. So my compensation is really not In fact,
gonna produce the need for a lot of volume.
the higher floodway in the flood hazard area is extremely shallow just because of the nature of the property. So using that, I'm looking at available
flood storage areas and I'm confident we can provide them but there's an opportunity there in the lower right hand corner where, where we dont believe the land is restricted and we could, and there is some slope there and we can provide some flood storage. Q Now lets take a look at this plan again,
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 P-63A. lines? A Does this plan contain any provision for fire
51
They're not depicted there but in discussion with
that site plan approval, we would consult with the fire department and I, I believe theyve already provided a letter, a review letter of the concept and we would comply with all fire codes. Q All right. So if the fire lane required the
removal of parking spaces, you'd have to find more parking spaces somewhere else. A Yeah, I dont, I dont -- yeah. I doubt a fire
lane would require removal of spaces but -Q You haven't --
-- its usually striping. Q No. Q Excuse me. You haven't studied that though.
No, we haven't studied that. How about, how about turning lanes for fire Is there any impediment using this concept
trucks?
plan for the turning of fire trucks? A I, I, I dont think the fire trucks would, would
go -- well, they, they may go to the back of the site. I, I, I corre -- I withdraw my, my comment there. I
think this concept plan could be enhanced a little bit to provide better turning radii through the site if an emergency vehicle like a fire truck wanted to get to
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 the back of the site but -Q Well, say for example, I mean fire trucks
52
have to get to the back of the Building B, correct? A Yeah, the building is longer. I withdraw my, my
comment on that.
They, they, they may want to access
the back of the site in this case. Q And, and, and if you came in this entry drive
What's the turning radius of this particular
turn, this 90 degree turn between Building A and Building B? A I dont know. Its, its conceptual. My guess is
when we went the site plan approval we'd probably reconfigure that a little bit and smooth out the curve a little bit to provide that kind of access. I think
it, I think it would be a comment from the fire department to, to make that more accessible through there. Q And are you aware that, that the minimum
inside turning radius is 25 feet for fire trucks, correct? A Its, its -- yeah, its -Q And, and is it fair to say this does not
achieve that, does it?
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 after 11. break. A not? A It would require a change. Q And that change might in, in fact, require A No, that doesnt, it doesnt appear to. I think
53
we would have to, we'd have to reconfigure that. Q And, and this other turn which is closest to
Building B, that doesnt comply either, does it? A Likely it would not. Q So you're talking about a major change in the
way that driveway is configured, correct? A I, I, I strongly disagree with major change. Q Well, it would require a change. Would it
further invasion of the, the wetlands buffer area, correct? A Perhaps it would reduce the actual amount of
wetlands buffer because if you turn that driveway and provide a parking to the left and to the right and made it more of an S curve through there, you could actually reduce that. that. Q No. MR. WOODWARD: Your Honor, its about 10 But in any event, that hasnt been done here. There's an opportunity possible to reduce
I was wondering if we could take a short
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 THE COURT: Sure. Thank you.
54
MR. WOODWARD: (Short break) THE COURT:
Okay, Mr. Woodward. Thank you, Your Honor.
MR. WOODWARD: BY MR. WOODWARD: Q
Mr. Dipple, I think in your testimony
yesterday you talked about your experience involved with two projects for the Kinney Group in Englewood South. A Do you recall that? In Englewood, yes. All right. And one of them was called the
Yes. Q
Brownstones at Englewood South. A That's the current name where the development is. Q And, and the other one is called Flat Rock or
the Sheffield at Englewood South. A Yes. I believe the residential component is the
Sheffield and overall its been called Flat Rock Square. Q Okay. Could you tell me the, the
Brownstones, how large is that property? A The property is 20 acres I believe. I'm sorry.
The Brownstones was 18 acres. of Route 4. Q
That's on the north side
I believe it was 18 acres. Is it
Okay, and how many residential units?
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 that. A Yes. Q fair to say -- let me shorten this. A It -Q Yeah. 350 units? I think that was about the final number.
55
But there was also a commercial component to There were 40,000 square feet of retail space,
correct? A Yeah. Q vehicles. A I dont -- possibly. Q I dont, I dont know. I think it was roughly 40,000. And the site also included parking for 1500
Well, on your website, Mr. Dipple, you say
that the Brownstones was a mixed used development in Englewood, New Jersey consisting of 350 residential dwellings, 40,000 square feet of retail and parking for over 1500 vehicles. A Yes. Q Does that refresh your recollection?
I, I haven't looked at my website in a while I
have to admit, but it looks like you have a page from our website so I'm gonna -Q All right. But that refreshes your
recollection, correct? A Yes.
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 A site. Q Q All right. Now all the parking, all of the
56
parking is accommodated on that site, correct? A Yes. Q correct? A That is an old warehouse. It was -- yeah, I think And that's an old warehouse district,
it was General Motors I think had a parts distribution facility there. Q Right.
So there were no wetlands.
No, I dont believe there were wetlands on that No. And you didnt have a floodway. No.
We did not have a floodway. Q Yes.
Did you have a flood fringe area? The entire site was located in the flood
fringe. Q And I think you said yesterday that at least
one or both of these, I'm gonna ask you to tell me which one, had 90 percent black coverage, impervious coverage. A It was, it was on the south side of Route 4 and
the one I referred to is Flat Rock Square or the Sheffield. Q Yes. All right. And I think it was, the existing lot
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 coverage was, was 90 plus square feet. Q How about the Brownstones? Yes.
57
What was the lot
coverage there? A I, I dont know. I designed that in 2002, 2003. I would
I dont, I dont remember the lot coverage.
guess it was, percentage wise it was 70, 70 percent, 75 percent. Q So in both cases certainly much larger than
the lot coverage on the Birchwood Avenue site, correct? A Percentage wise, yes. Q Now the Sheffield, how many acres?
20 I believe. Q You sure its not 40?
I'm, I know its not, I know its, its not 40.
I, I believe its in the range of 20 acres. Q Yeah. And 377 residential units? I dont know what the last count was. At
the time of the design, I think we were getting 377 approved. Q building? A Seven story office building on the north side. I Yes. And its gonna have a seven story office
though it was -- yeah, there was a seven story office building originally proposed on the south side or the, the Sheffield Flat Rock Square site.
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 And a seven story hotel?
58
Yes, there's definitely a hotel. Q And 50,000 square feet of retail? At one time, there was 50,000
At the time, yes.
square feet. Q And again that site was an old warehouse or
industrial facility, correct? A Yeah, there were a number of different properties Yes.
in different uses one of which was a warehouse. Q
And that property, if I'm not mistaken,
backed up to Overpeck Creek, correct? A Yes. Q It, it bordered Overpeck Creek. Which was tidal? It was not Right.
No, it was -- no, it was fluvial.
tidal.
We needed a flood hazard area permit at the
time and at that time if it was tidal, you wouldnt need to do all the things we did. Q There, there -- were there any property --
there weren't any properties that were directly downstream of that prope, of, of Flat Rock River Sheffield, correct? Overpeck Creek. A Correct. Q It bordered Overpeck Creek, right. In other words, it bordered the
So unlike here where the, where the stream
actually flows across the property and then exits onto
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 Court. BY MR. WOODWARD: Q Show you whats been marked as D-164 for residential properties to the south. A No, I think its very similar. It runs --
59
although the property line runs down the middle of the stream its, its very close to this. Its a
development that is proposed along a stream corridor so I think its adjacent. the stream corridor. Q But there's not culvert on Overpeck Creek The development is adjacent to
right at the end of the property. A No, there's no culvert. MR. WOODWARD: identification? Yes.
Can I have this marked for
Its D-164. P? D. D. D? Here's a copy for The
THE COURT:
MR. WOODWARD:
identification.
I represent to you that this was taken Does this show the Sheffield
off of Google Earth. property? A Yes. Q
And does it at least partly show the
Brownstones property? A Yes. Q Okay. What I'd like you to do is take my pen
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 Court. A A A A A and I'd like you to circle the Sheffield property and write on it Sheffield. A Would you like me to highlight the property
60
boundary approximately? Q Okay. Q Sure. Q Thatll be great. Thank you. If you could.
Just the Sheffield property? And then I'd like you to do the same for the
brownstone although I dont think it -A Yeah, I think I heard it all. Oh, I didnt, I I'm sorry.
didnt write Sheffield and Brown. Q Oh.
I forgot to write that.
Do you want me to write
Sheffield? Q Okay. Q Sure. Q Thank you very much. MR. WOODWARD: I'm gonna show this to The If you would do that? On the one.
Well, actually let me just ask another I'm gonna hold this up.
question.
BY MR. WOODWARD: Q On the upper left hand corner sort of
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 not. A I, I dont, I dont, I dont know what the -Q All right. A A A diagonally, could you point to Overpeck Creek? A Overpeck Creek runs from the top of the photo
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diagonally toward the bottom of the photo right here. Its straight. Q In the upper left hand corner.
In the upper left hand. Q Backwards. The upper left hand corner
Sorry, Im backwards.
of the photo. Q Yeah. Q Thank you very much. Now do you know whether there's any affordable housing in these two projects? A No, I'm not aware. Q You dont know whether there is or there is Yeah.
-- what the rates of those, those properties are. Q Okay. Now I think yesterday you expressed
your professional opinion that FHA flood, flood hazard area permits could be obtained for this Birchwood Avenue property, correct? A Yes. I'm confident. Yes.
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 Oh, all right. A Q But you haven't provided us with any
62
calculations of amount of flood compensation in the flood fringe area, have you? A No, not at this time. Q And you haven't shown us any locations of
compensation areas, have you? A I have shown potential compensation areas. Q of that. A No, I haven't submitted documentation. Q And you haven't studied it. No. But you haven't submitted any documentation
I haven't studied it thoroughly. Q
And if I'm not mistaken, you were requested
twice by two other professional engineers to study the Casino Brook and flood plain of Casino Brook and you refused twice, correct? A No, I didnt refuse to do it. It was a discussion
of which methodology could be used in a flood hazard area permit application, either method three or method six and I argued that method three could apply here. Q But -I just
So I didnt, I didnt refuse to study it.
But you rejected Mr. Creelman Isn't that correct?
and Mr. Marsdens recommendation.
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 That -- I, I took the position that, that method
63
three which uses the FEMA Flood Study could be used to determine the floodway and flood plain. correct. Q But ultimately Mr. Creelman was the one that Isn't that right? That's
was correct. A
Mr. Creelman was correct, yes. Q And you had to change your opinion and you
had to agree with Mr. Creelman, correct? A That's correct. In the letters we reviewed, I did
change my opinion. Q And as a result of that, you had to redesign
the project, correct? A That's correct. Q And now you want this court to take your word
for it that you can get permits from the DEP. A Would you like me to respond to that? Q Okay. Sure. I, again I've testified that I am confident
that because of the shallow nature of the water because I see opportunities for flood storage here, because the majority of the development is not located in a flood hazard area at all I believe that a flood hazard area, and given my experience in, in procuring flood hazard area permits for residential where flooding is, is
Dipple - Redirect 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 Honor. REDIRECT EXAMINATION BY MR. EISDORFER: Q Mr. Dipple, in, in, in doing your flood
64
permitted below a building, the fact that the DEP does allow flood storage in crawl spaces. They have a
specific section of their regulations which allow that and discuss that, yes, I am very confident that a flood hazard area permit can be obtained for the, the encroachment into the flood fringe. Q Notwithstanding that there are no
calculations before this court to prove your point, correct? A There are no calculations here at this time. MR. WOODWARD: No further questions, Your
hazard area study. A Yes. Q Were you able to determine the height, the,
the, the difference in height between ground level and the flood hazard level? A Yes. Q And typically what is that height? There are con --
It, it varies across the site.
first of all, the flood hazard area elevation is based upon our analysis and the analysis of present (phonetic) hydro and, and SWM. Its 78.6 feet. And
Dipple - Redirect 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 there are varying elevations throughout the site; elevation 76, 77 and even as you get closer to
65
building, the building to the east side of the site you get into the 78s. So its somewhere between roughly
two and a half feet to zero and the majority would be somewhere in between. Q Now in your, in your testimony to the, in
your cross examination, you described that as shallow. Can you show us how deep that, you know, you know, just with your hand? A Yes. Q Just how deep that's likely to be?
I think if, if you look at the areas around, I
can't see it from here, but around the western side of the building some of those contours are 76. So two and
a half feet I think would be about that depth. Q Okay. Q -- step down and show us on the floor. I Measuring from -- why dont you st,
think its easier to see from the side than -A That would be 30 inches which is roughly the size
of a desk so it would be -Q And --
-- that would be in this area I believe over here And then going this way, you
where its elevation 76.
Dipple - Redirect 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 see elevation 77 in the flood fringe, that would be roughly one-and-a-half feet which would be about that deep. And then as you get closer over here, you see
66
elevation 78 and I wont do it on the floor but that would be about that deep. So my interpretation of the
flood hazard area being shallow is based upon that. Q Now the, the significance of being shallow,
does that have significance for the, the volume of, of water that, that would have to be accommodated in, in, in a hundred year flood event? A Yes. Its, its a volume. Its a, its a cubic
foot number and therefore the shallower it is, the, the less volume that it would produce over the same, you know, the area. Q So yes.
So even though the area within the, within
the flood fringe that, that you would intrude it, you know -A Yes. Q -- is of some magnitude. The fact that its
shallow has impact on the volume that would have to be, would have to be stored? A Yes. Q Do you have an opinion on, as to whether, you
know, based upon the, the, the study youve done, the flood hazard area study and your knowledge of the
Dipple - Redirect 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 proposed concept recognizing you haven't done any calculations nonetheless from, from a rough of point, do you have an opinion as to whether that, that, that amount of water could be accommodated on the site? A Yes. Yes.
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I, I stated my opinion that we have a
number of areas that we can work and then, of course, underneath Building A. So even as counselor pointed
out that we would, at Building A we would probably the, the fill would just be from the columns and the structure of the parking deck so that would be very minimal. So then were only dealing with a Outside of that, were dealing with the
disturbance.
disturbance, a minor disturbance from Building B in some of the parking areas. So and giving those
disturbances, I, I feel that it would be a minimal amount of fill in the flood fringe that we would then have to compensate for. Q And you haven't done any calculations as, as
to the total amount of storage that could be accommodated under, under Building A. A No, I haven't. Q But, but based on, on the, the volume of Have you?
water, one could, could anticipate and your knowledge, do you think its likely, in your professional opinion, that it could all be accommodated under Building A?
Dipple - Redirect 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 times. A A A All of the flood storage -Q Yeah.
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-- for the project? Q Yes. MR. WOODWARD: THE WITNESS: Objection; lack of foundation. I'm sorry. Could, could you
repeat the question. BY MR. EISDORFER: Q question. Now youve been on the site a number of Haven't you? I'll withdraw it, sir. I withdraw the
Yes. Q Have you been on the site when its raining?
Yes, a number of times its been raining. Q Have, have you deliberately gone on the site
when it was raining? A Yes. I believe it was in March of this year, New
Jersey experienced some various, significant flooding events. There were flooding events in Lodi I believe
and in Bound Brook and other areas throughout the state and I purposely went to the site to see how this site reacted. Now this is after we did the majority of the And went to see how this site reacted to
flood study.
that and I saw that in that instance the stream really
Dipple - Redirect 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 about? BY MR. EISDORFER: Q Showed you the pictures that, that, that in A showed no flooding at all.
69
In fact, I would guess the
depth would be probably less than a foot within the channel. All the flow was contained completely within So it still
the channel and it was just a small depth.
had maybe four feet to go before it would overtop the banks and produce any kind of flooding on the site. Q Now the, the, the calculations youve done
are -- in your flood hazard study, that's for a hundred year flood. A No, that's for a 100 year flood and then you add
25 percent on top of that which produces a flood hazard area flood event. Q Yes. Q Now you, you -- Mr. Creelman -- Mr., Mr. Are those pictures So that's an extraordinary event?
Woodward showed you some pictures. inconsistent with, with your study? A No. They, they sh MR. WOODWARD: THE WITNESS: MR. WOODWARD: Objection. I'm sorry.
What pictures are we talking
Mr. Creelmans reports.
Dipple - Redirect 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 D-113. Q D-113. I want to see what (inaudible). D-113? Yes.
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MR. WOODWARD: MR. EISDORFER: BY MR. EISDORFER: Q
So you recall that, that, that Mr. Woodward
showed you pictures in D113? A Yes. Q Are those pictures inconsistent with, with,
with the results of your flood, flood hazard area study? A No, they're, they're not inconsistent. They, they
show that, that the Branch 1024 does experience flooding when water overtops the banks and you could see that water appears to be coming from the Verizon site. As I mentioned, the existing culvert which goes
under the Verizon site is, is grossly undersized so therefore the flow comes around the Verizon site, goes across Birchwood Avenue and then travels in the direction of the, the main channel of Branch 1024. So
its, its consistent with the way that the, the model interprets the flooding at the, at this location. Q Now the, the, if it were to turn out that,
that, to, to accommodate storm water on the site and, and, and you chose to make, to accommodate water to the
Dipple - Redirect 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 term. A south of the ditch -A Flood storage, correct. Q Yes. Q I'm sorry. I want to use the right, right Flood storage.
71
Flood storage to the south of the ditch, would
you have to, would, would you have to move all the trees there? A No, I dont believe you have to move all the Its an opportunity for flood storage but, but,
trees.
but you know, know, knowing the value of the trees and the buffer and I dont believe we would propose to remove all of the trees. We would look at that
opportunity or, or look for an opportunity in that area to provide some flood storage but, but not compromise the trees or the buffer completely, I should say. Q Now Mr. Woodward had you describe the, the
changes that were made between the September concept plan and the March concept plan. A Yes. Q And the physical change was to reorient,
reorient Building A. A Yeah. The Building A footprint changed. It was
reconfigured and reoriented so it, it fell within the flood fringe. Correct.
Dipple - Redirect 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 A Q
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Did, did, did the number of the total number
of units change? A No. Q Did the, did the impervious coverage change?
It may have changed slightly but its, its in the Its below the existing -- yes.
same magnitude. Q
Did the number of parking spaces change? I think So
Not the -- I dont believe significantly.
we are in the same parking ratio per dwelling unit. it did change slightly but not significantly. Q
Are these changes of, of the sorts of changes
that, that routinely take place in the design phase of a project? MR. WOODWARD: Objection, leading, redirect.
(Tape 183-10 ends; tape 184-10 begins) The -- are you familiar with -- have, have
you been involved in, in the design of, of, of projects of this magnitude? A Yes. Q And, and typically do you, the, the,
typically are there more than one, one, one design along the way? A Yes. MR. WOODWARD: THE WITNESS: Objection, leading. Okay.
Dipple - Redirect 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 THE COURT: BY MR. EISDORFER: Q To what extent are the, are, are, are the
73
He answered the question already.
changes reflected in, in the, in the change of design between September and March, greater or lesser than, than changes that typically take place in the design stage? A I, I think its common for changes to take place Almost every project
in the layout and configuration.
that I work on starts with a conceptual plan and then as more information becomes available for a multitude of reasons. In this case, the driving force was the
floodway line but, but in all circumstances you start with a conceptual plan and it, it changes quite a few times along the way and then continues to change even through the site plan approval process. Q Does -- you testified as to the, the
permitting standards for flood hazard area permit. A Yes. Q Yes. Q Do those permitting standards address in any Is that correct?
way the conditions on, on existing public streets? A No. When it comes to private roads or, or parking
they only address new or proposed public, public
Dipple - Redirect 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 Honor. RECROSS EXAMINATION BY MR. WOODWARD: Q Mr. Dipple, when you visited the Birchwood streets and parking. There's a section in the
74
ordinance that describes, of, of the, of the statute that describes parking and private streets. if I'm using the wrong terminology. and parking areas. Q Assuming that, that the flood fringe has an I'm sorry
Private streets
area extended all the way across the driveway -A Right. Q Would -- to, to what extent would that impact
your ability to the, the ability to get a flood hazard area permit? A It wouldnt. The regulations only are concerned
with, with the private drives and the private parking areas on the site. In my experience and my discussions
with the DEP, its well known that a lot of streets surrounding these developments may experience flooding. MR. EISDORFER: THE COURT: I have no further questions.
Anything else? A couple of questions, Your
MR. WOODWARD:
Avenue site I think you said March, 2010. A I believe it was March. Q All right. Yes.
And you said it was raining at
Dipple - Recross 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 the time. A It had just actually stopped raining. Q How many inches of rain fell? Yes.
75
I dont know. Q So even though you saw no flooding, you can't
draw any conclusion because you dont know how much rain fell. A That's correct. Q Okay. Based on your investigations, how
often does Birchwood Avenue close due to flooding? A I dont know. I've never seen it closed due to
flooding. Q So you dont know whether its been closed
due to flooding or not. A I, I believe it has been closed due to flooding.
I believe through the photographs that were provided here and some of the discussion here in this courtroom I believe that it has been closed. I, I did see, I did
see a map provided by the city recently that showed areas that where road closures have. it, it included Birchwood Avenue. I dont know if
I believe it did
have a circle around that area of Birchwood Avenue near the stream. Q All right, thank you. MR. WOODWARD: No further questions.
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 Okay. MR. WOODWARD: THE COURT: I, I'm sorry to keep -No, no. I have it. exhibits. THE COURT: Yeah. I dont think I have you. THE WITNESS: Thank you. There's a lot of THE COURT: Anything else? No further questions. Thank
76
MR. EISDORFER: THE COURT:
Okay, you can step down.
while, while they're just for identification but I have a gap between 159 and 164. between. MR. WOODWARD: on Friday 160 and 161. Your Honor. THE COURT: Yeah, okay. Oh, I have those. We provided I think your clerk We can straighten that out, I didnt get anything in
Yeah.
MR. WOODWARD:
So we do have that and I just
want a retrieve all those things that I had marked for identification. THE COURT: I think these are -MR. WOODWARD: THE COURT: These are in evidence. And these two, are these for me?
Oh, these are in evidence? I believe. They're not
MR. WOODWARD:
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. onto them. MR. EISDORFER: No, the, the, these, these, marked. They just say ID. THE COURT: Mr. Eisdorfer, are these yours?
77
I think they may be the plaintiffs exhibits in evidence. MR. EISDORFER: THE COURT: Yes. Yes.
I'm gonna just -- you can hold
these are all, these are all in evidence. THE COURT: on to them -MR. EISDORFER: THE COURT: Okay. If you want to, you can just hold
-- and at the end well, you'll
exchange what's in evidence -MR. EISDORFER: THE COURT: Okay.
-- versus what you -- I assume
not every exhibit in the binders -MR. EISDORFER: THE COURT: No, no.
-- is gonna be in evidence. I'm hoping not.
So, so you can keep track of
That would help me. MR. WOODWARD: THE COURT: All right, thank you.
Okay. If I might suggest, Your
MR. WOODWARD:
Hekemian - 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 E T E R SWORN: THE CLERK: State your full name for the thank you. THE COURT: wit, another witness. MR. EISDORFER: THE COURT: I, I do. I call Peter Hekemian. Okay. Honor, Mr. Eisdorfer, that he staple his exhibits together -THE COURT: Yeah, of course.
78
MR. WOODWARD:
-- so we dont lose pages but
Mr. Eisdorfer, you have a
Okay.
H E K E M I A N, PLAINTIFFS WITNESS,
record, sir, and spell your last name. THE WITNESS: Peter Hekemian and its spelled
H-E-K-E-M, as in Mary, I-A-N, as in Nancy. DIRECT EXAMINATION BY MR. EISDORFER: Q please. A Peter Hekemian. Q And do you have a business address? Mr. Hekemian, would you state your full name
45 Eisenhower Drive, Paramus, New Jersey 07652. Q And what business are you in?
We are in the business of owning and developing
commercial real estate. Q And we, when you say we, what do you mean?
Hekemian - 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
79
Both the family as owners within each of the LLCs
and under the umbrella, the developing agent which is the S. Hekemian Group which manages the process of developing property for the benefit of various LLCs. Q Okay. Do you have an interest in -- well,
can you describe, can you describe to us who owns the site at 215-235 Birchwood Avenue? A Its a combination of family members and Doug
Cohen. Q And, and do they own them as individuals?
They own them through varying LLCs. Q In particular, does Cranford Development
Associates -- is, is that, is that a part owner of the property? A It is. Q property? A I dont have those statistics actually. I can What share does, does CDA own of, of the
look those up for you if you -Q Do you -- are you, are you an individual
owner of, of the share of the property? A I do own a portion individually, yes. Q in CDA? A I'm responsible for managing the redevelopment of And, and are you, do, do you have a role in,
Hekemian - 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 the, the property. Q Yes. Q -- of, of CDA? Are you the managing member of --
80
Just in terms of, of, of your
background, how long have you been involved in the development of real estate? A On a full-time basis since about 1996. My whole
career, I've basically worked on commercial real estate for different entities, some of which include the family and some of which have been outside entities such as investment banks investing in commercial real estate. Prior to my full-time employment, I've worked
for the family probably a total of eight summers doing various property management activities from the, the bottom of the, you know, from, from down on the ground which would include moving, you know, pushing lawnmowers and, and ripping apart kitchens and bathrooms to overseeing varying residential rental and retail properties. Q I do. Q And what is it, what is that in? Do you have, do you have a college degree?
Business. Q And where, where was that obtained?
University of Vermont.
Hekemian - 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 And have, have you been involved in real
81
estate development since, since you graduated from college? A Yes. Like I said, for third party companies, one
third party development company, one investment bank and then also for the family entities. Q Now are you familiar with, with the plan that
we have marked as 63A? A I am. Q And is that the current concept plan for,
for, for this development? A It is. Q And can you, can you describe for us what
the, what the, what, what the purpose of a concept plan like this is? A What is the purpose? Its, its typically what we
would do is on, on issues such as zoning, we would present to the municipality varying concepts that would act as guiding factors to establish zoning. If and
when you change the zone, you typically would go in for the fully engineered site plan application which would incorporate the requirements of the zone that had been established and further refine the design that is presented in the concept plan. Q Now is this concept plan fully engineered?
Hekemian - 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 It is not. Q Why not?
82
That would typically be done at a site plan level, You wouldnt typically
site plan application level.
engineer the whole site at this stage. Q To what extent would you envision further
tweaking this, the, the, the, this concept? A Well, the building heights and setback
requirements and, and, and all these different parameters that are established in the zoning would be abided by but you might slightly rearrange, you know, some of the buildings or, or whatever still abiding by all the requirements set forth in the new zone. Q So from, from your point, what, what are the
essential features of, of this concept plan? A Well essentially, you know, you really have three As we see it as developers, you start with
structures.
the pre-cast parking garage which, which we built a number of. You then have Building B which wraps around Building B would include
the majority of, of the deck.
many of the amenity features, most of the amenity features of the site; the clubhouse, the leasing facility, the club room, fitness center, facilities typically a yoga room and/or a child care facility for the residents. You have the pool there working off of
Hekemian - 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 Building B corridor.
83
And then you have Building A
which is what we refer to as a podium style building where you have the first floor parking podium and you build your residential on top of that with the elevator dropping down into the podium. Q The, the, the -- how many units would be in
this, in, in this concept altogether? A 419. Q And would you envision that any of them would
be low and moderate income units? A Yes. Q And would, would the low and moderate be, be
sold or rented? A Theyd be rented. Q Now the, the, the parking structure which,
which we've marked I guess in, its, its in the gray here, whom would that serve? A The residents of both Building B and A. Q It would be common parking for --
Thats right. Q Is, is that atypical in rental projects?
For one parking garage to serve a number of No. In, in the case of our first phase in
buildings?
Englewood, we have a particular building, Building C, its what it was originally called, which as I
Hekemian - 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 recollect and I'm, I'm sort of guessing here roughly speaking, I think we had maybe 275 stalls for that building, 108 units in that particular building.
84
And,
and the purpose for over parking that garage was so that other buildings such as Building A in the case of Cranford, could utilize the excess parking, walk through the lobby. Q It was serving both buildings.
Is your intention to build the, this project
in accordance with this concept plan? A Yes. Q And is it your intention to build the, the,
include the low and moderate as rental units? A Yes. Q Have -- now do you have experience
constructing a garage and then adding another level onto it? A Yes. Q Can you describe that?
In Englewood first phase again, the building in
the back which was initially referred to as Building A had a initial, lets see the parking garage I think initially had, I'm ball parking it, I think it was 172 stalls and we designed the, the garage such that the, in that case there was piles. And so we designed the
foundation which would include the piles, the piles
Hekemian - 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
85
caps, the grade beams such that the, the parking garage could take an extra level of deck in the event that it was deemed necessary. And we had the garage columns
and structural supports which are called tees appropriately sized so that they could withstand the loads also of the extra level of parking deck which we put in. I think there were an extra 80 stalls or so
that we put in after the fact once the building was all up. MR. EISDORFER: Judge, I'd like to, to mark
exhibits and these are tabbed; 59, 60, 61 and 62. THE COURT: 59, 60, 61 and 62? That's correct.
MR. EISDORFER: THE COURT: BY MR. EISDORFER: Q
Thank you.
Mr. Hekemian, I'm gonna show you a series of
photographs that were just marked for identification as P-59, 60, 61 and 62 and ask you to take a look at those photographs. A Okay. Q Are you familiar with, with these
photographs? A I am. Q Can you tell us what they represent? MR. WOODWARD: Your Honor, I'm gonna object
Hekemian - 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 them. evidence. -MR. WOODWARD: these photographs. THE COURT: He hasnt offered them into to these photographs. These are documents that were
86
produced for the first time on Friday, two days before trial. THE COURT: Mr. Eisdorfer. That's true.
How are you prejudiced by their
I, I have no information about
He's just asking him to identify them. MR. WOODWARD: Well, okay. I, I, I -- well,
my objection stands but I understand. THE COURT: I'll, I'll allow him to identify
I dont know whether -- I mean see where were
going with this. BY MR. EISDORFER: Q Mr. Hekemian, can, can you tell us what each
of these photographs represents? A Picture by picture? Q Please.
How are they ident -- is this P-59? Q Yup.
P-59 is a, you know, they're all the, the
amendment to the Building A parking garage.
Hekemian - 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. Q -- of, of, of what youve just described? A Q In Englewood?
87
In Englewood after the initial installation of the
deck was completed, and the 86 residential units that were abutting it were installed and I'm not sure if they were COd at that point. So picture P-59 is the
crane set up and the image of the pre-cast Tee (phonetic) on the flatbed of the truck which they should have been from the Birkshires (phonetic) image. P-60 is a wall panel being dropped into place during the, the additional, after the addition of, during the addition of this extra level that weve been talking about. P-61 is what you'd call a Tee being
dropped into place by the crane once again during the amendment to the parking garage. And P-62 is the
complet, the completed product after the fact once we were done adding an extra (inaudible). Q Were you, were, were you present on the scene
when, when, when this took place? A I dont know if I took these particular pictures
but, yeah, I, I was there many times while the work was being done. Q Are these pictures accurate representations
Hekemian - 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 I think we went through a site plan application evidence. BY MR. EISDORFER: Q Mr. Hekemian, how did you come to, to add a Honor. A Yeah. MR. EISDORFER:
88
Your Honor, I offer, I offer
P-59 to, to 62 into evidence. MR. WOODWARD: Withdraw the -THE COURT: Okay. So your objection to -I have no objection, Your
I, I withdraw the objection. So 59, 60, 61 and 62 in
Okay.
level onto the garage in Englewood after it was completed? A I dont understand the question. Q How, how -- why did you complete the garage
and then add a level later? A What's the rational? Q Was there something in the approval process
where they -- I, I dont recall why we effectively -Q that site? A We did. Q And, and can you describe to me how you came Did, did you go through a test period on, on
Hekemian - 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 to go through that test period? what the test period was. A The test period was simply, you know, we had I think its twoWell, describe to me
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occupancy of a number of units.
thirds to three quarter filled and we collected data in terms of -- as to how much parking was, was, was being utilized and consumed on-site between the surface stalls and the garage facilities that had been constructed. Q And, and what was, what was, what was the
conclusion of that test period? A I dont have the exact data. I believe it was, we
were using, we were actually consuming about 1., I think it was 1.5 stalls per unit or 1.3 stalls. could check the data. Q And, and that lead to, to, lead you to add an I
additional level to the garage? A I believe that's what occurred. Q If, if that sort of test period were required
as, as, as part of the approval of the project in Cranford, could you do that here? A We could. Q Yes. Q In, in Englewood, did you do other things to, And would you do it?
Hekemian - 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 to, to reduce the amount of parking that was required develop (phonetic) a shuttle? A We did, yeah, the second phase in Englewood. Q And where, where does, where, where, how
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often does that shuttle run? A I think it runs I believe every 15 minutes where
it goes from our front lobby, roughly 15 minutes and it, it drops off residents at a New Jersey Transit bus line and its significantly utilized and considered a, both a selling point and a, and an amenity for the residents. Q If it were, if, if the approval of this
project required you to, to minimize, minimize the parking by, included by providing a shuttle on this, on this project, would you do that? A Yes. Q In connection with, with the, the work on
this site, did you secure studies of, of, of any toxic materials on the site? A Are you speaking of Cranford now? Q Yes, in Cranford.
Yes, we did. Q The, the, the, did you secure phase one and
phase two studies? A We did.
Hekemian - 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 THE COURT: Mr. Eisdorfer, maybe this would
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be a good time to break -MR. EISDORFER: THE COURT: Sure.
-- for lunch. Yeah. So thank you. Well see
MR. EISDORFER: THE COURT: you back here at 1:30. lunch time so -MR. WOODWARD: THE COURT:
Okay?
I have to go to a meeting at
Okay. Thank you.
Okay?
(Lunch break) THE COURT: -- back everyone.
Mr. Eisdorfer. MR. EISDORFER: Thank you, Your Honor.
I'd like to mark documents P-15 and P-16. (The documents are being marked.) BY MR. EISDORFER: Q Mr. Hekemian, let me show you the document
we've marked as P-15 and ask you if, if, if you're familiar with that document. A I am. Q Can you tell us what that is?
Its a, its a phase one, phase two environmental
study. Q Okay. Was that the study that you
Hekemian - 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 commissioned? A It is. Q Okay.
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And let me show you, show you document
P-16, ask you if you can identify that. A That's an addendum letter supplementing the, the
initial. Q Yes. Q Okay. Now we heard some testimony from Mr. Is that a study that you commissioned?
Dipple on the subject of, of the development in Englewood and reference was made to 1500 parking spaces. Were 1500 parking spaces constructed on, in
that project? A No, there weren't. Q Can you explain to us how, how the parking
worked in, in, in that project? A Yeah. There were a number of different uses and The 1500 number I believe included the
approvals.
parking stalls to be built which were never, in fact, built in the event that 190,000 square foot office building was built on the site which was not. MR. EISDORFER: BY MR. EISDORFER: Q Let me show you the document we've marked as Lets mark this as P-25.
P-25; ask you if youve seen that document before.
Hekemian - 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 I have. Q Okay. There are -- can you tell us what,
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what, what this document is? A Yeah. This, this analysis was done by us studying
two, two other similar projects that were built in Englewood by, by our firm where we studied the, the number of units that were constructed, the, the number of occupied units and the parking consumption based on the number of occupied units in each of the respective projects. Q study it? A We had our management team collect the data. Q you do it? A I believe we took a picture in time where we, we Did you just look at one day? How, how did When you say you studied, how, how did you
collected both the number of stalls that were be, being utilized within parking structures and also the counts of surface stalls in the evening. Q And was this, was, was this, was this data
collected at the request of Dr. Kinsey? A Yes. Q Now when you, when you constructed the, the
garage structure, what, what approval had, had you gotten prior to the construction of that garage
Hekemian - 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 structure? MR. WOODWARD: Excuse me, Your Honor. I'm
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gonna object only for the purposes of clarification. As I understand it, there are two projects in Englewood and I dont know which one he's referring to. MR. EISDORFER: Okay. The, the, the project
on the north side that we refer to as the Brownstones. BY MR. EISDORFER: Q What, what, what approval did you have prior
to constructing the garage on, on that project? A Prior to the, the additional level of construction
of the, the Building A deck, we had gone in for a conditional var, or a variance with a condition where we got relief from the planning board in terms of the numbers of stalls to be constructed for the Building A garage whereby we had presented them data, actual data of parking consumption, parking consumption at the project, and they agreed that it appeared that we didnt need all of the parking stalls. MR. WOODWARD: THE COURT: Objection, hearsay. Just
I'll sustain the objection.
tell -- well, you can instruct your client. BY MR. EISDORFER: Q Yeah. Tell us what, what action they took.
The action they took was that we did not have to
Hekemian - 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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build the number of stalls that was required under RSIS after presentation of parking consumption data. And
the, -- additionally we had a requirement whereby we'd build back to the planning board in a year, present them data based on a fully occupied building with the associated parking data, and in the event that the statistics on a fully stabilized project were similar to that of a snapshot in time where we were in front of the planning board. The relief which was that we
didnt have to build all the parking stalls under RSIS would be made permanent. Q And what, in fact, happened?
Like I said, we got the, the conditional variance
and we then put the property under contract, the purchaser, and they requested that we -MR. WOODWARD: THE WITNESS: MR. WOODWARD: THE COURT: somebody told you. Objection, hearsay. They instructed us -Objection, hearsay. You can't tell us what
Yeah.
Just tell us what happened. We were required to build the
THE WITNESS:
additional level of parking, parking structure prior to the one year anniversary of the conditional variance. BY MR. EISDORFER: Q So that was a requirement of, of the
Hekemian - 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 purchaser? A It was. Q And did you ever go, go, go back to the
96
planning board and, and show them further, further data? A No, we just sent them a letter stating that we
were no longer seeking a relief under the, the conditional variance. MR. EISDORFER: questions of this witness. THE COURT: Cross examination. Yes, Your Honor. Your Honor, I have no further
MR. WOODWARD: (Pause)
CROSS-EXAMINATION BY MR. FENLON: Q Now, Mr. Hekemian, I think your previous
answer was that the additional level of the parking garage at this Englewood project was constructed by the S. Hekemian Group at the request of the purchaser, correct? A Correct. Q And that was a project of the S. Hekemian
Group actually constructed and then flipped to another purchaser. A Correct. Q And what was the particular project in
Hekemian - 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 Englewood that this garage was built at? A Brownstones at Englewood South. Q Brownstones at Englewood South. Now with
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respect to the Brownstones development or the Sheffield development, were either of those projects, did either of those projects involve a builders remedy that was awarded by the Superior Court? A No. In the case of Sheffield and, and, and
Brownstones, there was no builder remedy. Q So the municipal approvals or the approvals
to proceed with that project were obtained through the ordinary course of zoning development approvals through those municipalities? A That's correct. Q Now let me just show you a couple of Lets take a
photographs that were previously marked. look at exhibits P-59, 60 and 61.
And I, I think I
recall your testimony being that the process for installing an additional level of parking in the, to the parking garage proposed at the CDA site would be similarly undertaken to this project that is depicted in the photos? A Roughly, roughly speaking, yeah. Q Okay. And in that project -- and was that
Brownstones or Sheffield?
Hekemian - 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 This is Brownstones. Q Okay, Brownstones.
98
Was that parking garage a
stand-alone structure or was it surrounded by a residential building? A It was surrounded by residential. Q Okay. And if you were to undertake the
construction of an additional level at the parking garage presented on the concept plan marked P-63A, where would the, the cranes and the additional panels, how would they be positioned on-site? A They would be positioned on the easterly side of
the garage. Q Yup. Q -- on the easterly line of the property with So is that in this area here --
parking, marked with parking spaces? A That's correct. Q Okay. And what would be the length of time
that would be required for S. Hekemian Group or its subcontractors to actually complete the installation of additional level of parking on that particular garage? A Having specifically asked Unistress who installs
our garages but based on the time required to build a full garage which is about 30 to 35 days and based on the fact that this is only one level or call it a fifth
Hekemian - 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 of that time period, I would say 15 to 20 days. Q So about two to three weeks?
99
Two weeks probably. Q Okay. And would this -- on the concept plan,
this is this sort of a driveway with parking spaces on it? A It is. Q Okay. And does that actually exit onto
Birchwood Avenue? A Yes. Q During the construction process, would this
driveway and access way be required to be closed off? A Not the entirety of it. A portion of it. I mean
we would work that, work up an acceptable safety plan with the Building Department in Cranford but I would anticipate that we'd be able to maintain probably twothirds of the, the surface stalls while were constructing. Q Okay. But you wouldnt be able to go through
the entirety of the, the driveway during the construction process, correct? A That depends on the requirements of Unistress in
terms of how much area they need and the safety requirements of the Building Department in Cranford. Q Well, just looking at, at the exhibit P-59
Hekemian - 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 and the size, I'm assuming it would be the same size crane, truck and then trailer holding the panels, correct? A I dont know how they would set it up. I mean
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that, that's how they set up that crane.
They set up,
probably all the garages they built for us, theyve set up differently. Q Okay. And if you added another level to the
parking garage, what, what height differential would that increase the garage structure to? A Well off the top of my head but if we have a
typical level, we'd be no different than the -Q This was marked as P-64A. I believe it is in
evidence and this is the Lessard Groups (phonetic) cross section drawing, correct? A I, I dont have the specifics but I, I believe the
additional level is only a half level that we needed to, to install. I'm not, I'm not sure. And each level
is approximately 10.6.
So under the assumption that
you only have to do a half level, itd be another five feet. Under the assumption you have to do a full
level, its 10.6 approximately. Q Now with a half level, is that you're, you're
sort of going up from the, the existing level halfway and then you take another turn if you put on a full
Hekemian - 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 air. A That's right. Q Its not covered. Do you have an level? A Yes. Q Correct.
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And this additional level would then be open
understanding of what the additional construction cost would, additional construction cost would be for a, a half level add on to the parking garage or a full level? MR. EISDORFER: Objection to, to, to the
question on the grounds of relevance. MR. FENLON: Well, Your Honor, when we
present our feasibility expert, Mr. Hekemian did put in a rebuttal report. on costs. MR. EISDORFER: Your Honor, its our position I'm just asking a general question
that, that none of the questions on, on, on costs are, are relevant to the determination of site suitability. THE COURT: I mean I think I can make that I
determination given that I'm the trier of fact. dont know. relevant? MR. FENLON: Is there a proffer as to why its
Its not really relevant at this I can ask Mr. Hekemian this
point in time, Your Honor.
Hekemian - 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 when he's put on for rebuttal. THE COURT: BY MR. FENLON: Q Now, Mr. Hekemian, you testified earlier Okay, thank you.
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about CDAs amenability to providing a shuttle service. Is that correct? A That's right. Q And you indicated that you had provided or
SH, S. Hekemian Group provided a shuttle at one of the Englewood projects. A That's correct. Q And where did that shuttle go from, take the
residents from the project to where? A It, it starts at the, the front door of one of the
buildings at the, the front entrance lobby and it drives I would estimate three quarters of a mile, maybe, maybe, probably about three quarters of a mile to the nearest bus stop of New Jersey Transit, drops the residents off there, circles back to the lobby and it does the reverse process in the, in the evenings. Q And you indicated that it runs every 15
minutes or so. A Approximately, yeah. Q And, and is that continuously throughout the
day or with, within a limited window of time?
Hekemian - 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 Its, its during the rush hour, hours.
103 I dont
know off the top of my head what they are. guess its roughly 6 to 9:30 or 7 to 10. Q
I would
And if CDA was to provide a shuttle at the
Birchwood Avenue site, where would that shuttle take the residents to? A It would take them to the train station. Q Yes. Q And do you know what the distance is between In downtown Cranford?
the CDA site and the train station? A Estimate its a mile and a half. Q And you'd be proposing the same times of
operation, rush hour in the morning, rush hour in -A Yeah. Rush hour in the morning and the evening
roughly. Q Now in your testimony, you indicated that the Can you give
Englewood shuttle was significantly used.
us a better factual basis for the, the ridership that takes advantage of that shuttle? A I dont have empirical data. I've just been told
by the management team on site that its highly utilized and just my own observations when I'm at the site is that I see people getting on and off the shuttle. But I rely -- the, the lion share of my
Hekemian - 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 opinion is based off of management on-site that's telling me that people use it and its, its an important amenity for our project. Q Mr. Hekemian, let me ask you some factual
104
background questions now.
Do you know when the members
of the Hekemian family first became interested in purchasing the Birchwood Avenue property? A I have a little cheat sheet with our schedule here
so can I look at that? Q Can I take a look at it?
(Inaudible). Q No objection.
The answer to your question roughly in the, the
spring of 08 we identified the property, probably the spring of 08. Q If I represented to you that annexed to L2A
Land Designs May 21st, 2008 site assessment report that there was a concept plan prepared by the Lessard Group in there, in that report that was dated April 29th, 2008, would that refresh your recollection at all as to more clearly as to when in the spring of 2008 the Hekemian -A You're saying, you're saying April 28th. Q 2008? April --
Hekemian - 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 were? A Well, its typical environmental investigation A A Q Yeah.
105
That, that sounds about right. Q So it would have been in around April?
That's right. Q Okay. And eventually the plaintiff signed a
agreement of sale with Ann Estabrook (phonetic), correct? A That's right. Q signed? A The contract was signed June 2nd, 08, 2008. Q And did that contract have any contingency And do you know what date that contract was
provisions relating to environmental conditions or flood issues? A It did. Q Can you tell me what those contingencies
analysis that you would have in a due diligence provision of a contract. Q And if your due diligence had indicated that
there were problems did the, did the contingencies afford the members of the Hekemian family to cancel the contract? A Yes.
Hekemian - 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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Now do you remember when the members of the
Hekemian family actually closed title with Ms. Estabrook (phonetic)? A September 19th, 2008. Q And what was the purchase price that was paid
to Ms. Estabrook (phonetic). MR. EISDORFER: I object to, to, to this
question again on grounds of relevance. MR. FENLON: Your Honor, I, I think its
relevant for many of the purposes that were here. This is a, a developer that is seeking a builders remedy and I think that The Court should have the background facts as to the nature of this project. One
of the defenses that were raising in this case is they did not make an advantageous real estate deal for themselves and if they are entitled to a remedy, that does not mean that the remedy can, that the Superior Court should take them out of a bad deal that has nothing to do with the Mount Laurel doctrine. just trying to lay some factual background. nothing privileged or secret. So I'm
There's
This deed is a matter of
public record and The Court can take judicial notice of it. MR. EISDORFER: Your Honor, this is
specifically the line of inquiry prohibited in
Hekemian - 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 Rosenshine vs. Palisades Park (phonetic) where The Court said the, the financial circumstances of the transaction are irrelevant.
107
The issue is compliance by This is
the municipality and suitability of the site.
precisely the, the, the inquiry that, that was, that was rejected in Rosenshine. MR. FENLON: Well, Your Honor, the plaintiff
has made a motion on this basis which you denied and now were having a trial and they also move to exclude Mr. Ferminack (phonetic). You denied that motion. So
I'm just making a record so that there is some factual basis for some of the conclusions that Mr. Ferminack is gonna testify to. If he wants to renew his motion at
the end of Mr. Ferminacks presentation, that's fine. But we disagree with his, his recital of what Rosenshine holds and doesnt hold. In that particular
juncture in that particular builders remedy case, The Court said it wasnt relevant. circumstances. THE COURT: in front of me. I dont have the Rosenshine case This is different
Do you have a copy to provide to me? I, I dont, I dont have a
MR. EISDORFER: copy at hand. THE COURT:
All right.
I'm gonna allow it
and I'll, you, I'll allow you to make the motion at the
Hekemian - 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 close of the case to strike that testimony. And I
108
mean, given that The Court is sitting as the fact finder, I definitely can ignore or not consider testimony that I deem to be irrelevant or improper. So
I'll allow it and if I determine its not relevant, I will not consider it. MR. FENLON: THE WITNESS: million dollars. BY MR. FENLON: Q And did the S. Hekemian Group determine to Thank you, Your Honor. The purchase price is eight
purchase the Birchwood Avenue site for the purposes of an Internal Revenue Service 1031 Like Kind exchange transaction? MR. EISDORFER: Your Honor, I'm gonna object, Were getting very
object on the grounds of relevance. far away from -THE COURT: Yeah.
MR. EISDORFER: THE COURT: MR. FENLON:
-- site suitability.
Why is that relevant? Your Honor, it, it, when I
deposed Mr. Hekemian, he testified to that -(The Judge sneezes.) MR. WOODWARD: MR. FENLON: God bless you. -- fact in his deposition to the
Hekemian - 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 -THE COURT: make it relevant? MR. FENLON: THE COURT: Thank you.
109
Well, how does that
It, its relevant because the -I mean certainly the discovery
rules are far more expansive in the discovery stage -MR. FENLON: THE COURT: MR. FENLON: Understood, Your Honor. -- than at trial. They testi -- he, he testified
that this property, he purchased this property as a Like Kind exchange. building. THE COURT: So what does that -- how is that It was purchased as an office
relevant to the builders remedy? MR. FENLON: That makes it relevant to the
determination of what remedy, if any, he's gonna be granted. THE COURT: MR. FENLON: How -Their argument is, one of the
arguments is we have to have so many units, 419 units in order to make this project * THE COURT: That's not -Your Honor, that, that's,
MR. EISDORFER:
that's not, that's not our argument. THE COURT: That's not the argument at trial.
Hekemian - 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. EISDORFER: Your Honor, that's -- our
110
position is this is what the site is suitable for and -THE COURT: I understand. I'm not gonna -- I I allowed it. I
mean you asked the initial question. think that's sufficient. trial.
I think I want to keep the
I mean that's why I granted some of these
pretrial motions because I think the issue is, is the site suitability. BY MR. FENLON: Q Mr. Hekemian, how many large scale So you can proceed.
residential projects has the S. Hekemian Group actually constructed during its history? A In the current form? Q Of the S. Hekemian Group, yes. A ball park number.
Primarily two. Q Two?
Under the S. Hekemian Group umbrella, yeah. Q And how many under the previous iterations of
this family business? A You know, I dont have those, I dont have a
history of the last 90 years but I would ballpark that about 20 projects have been built by our family, residential projects. Q And have any of the residential projects
Hekemian - 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 which the S. Hekemian Group or its predecessors
111
constructed, did any of them include a component of low and moderate income housing? A Historically, our residential projects have not
included low and mod in it. Q And does -We do
I should, I should clarify that actually.
have a project in Wycoff that's a redevelopment of a retail center where there's a small component of COAH units. Q Yes. That have actually been constructed? Were not the manager of that project. We
have a large ownership percentage but were not the managing agent for that project. Q Did the S. Hekemian Group have any
significant role in constructing that project? A We do not. Q So you, the Group purchased an interest in
that property at some point in time? A We developed the property 40 years ago as a family As a
and we've been redeveloping it for ten years.
owner, we haven't actively been the developing the agent though; the familys been redeveloping it. S. Hekemian Group has had no active role in the process. The
Hekemian - 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 And other than the site which is a project
112
which is at issue in this case, does the S. Hekemian Group have any other projects which are currently in development which call for the construction of affordable housing? A Meaning projects under contract? Q Under project or under contract or ones that
are actually in the development process. A We have one in Hoboken that has a, I'm not sure if I
its a 12 and a half or 15 percent COAH requirement. believe its 15 percent. in total. Q Is that the project where the S. Hekemian
And that's a 240 unit project
Group has been named as the redeveloper of a former municipal garage site? A That's correct. Q And under its redevelopment approval
designation, the S. Hekemian Group is required to construct 24 units, units of affordable housing, correct? A Like I said, I dont have the exact percentage but
that would be ten percent and I think the number was higher than that but I could be in error. Q Isn't it true that in June of this year the
S. Hekemian Group approached the municipality, the City
Hekemian - 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 A
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of Hoboken and asked to be relieved of its obligation to build those affordable housing units due to the parking additions? A We made many proposals to Hoboken to allow the That may have been a part of one of
deal to work. them, yeah. Q
Is that the current iteration of, of S.
Hekemian Groups dealings with the town? A No. Q So its retracted it request that it be
forgiven the obligation to construct affordable housing? A That's correct. Q And when did it retract that request?
A ballpark, 60 days ago. (The attorneys talk amongst themselves.) Mr. Hekemian, by number of residential
housing units, wouldnt this project, the Birchwood Avenue project in Cranford be the largest, represent the largest amount of housing units which the S. Hekemian Group or its prior iterations has ever constructed? A Well, we, we really started the Englewood projects
as one big project that was phased over really a decade. So, you know, we refer to it as Brownstones
Hekemian - 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 and Sheffield. You know, we were going for rezoning
114
and assembling property all as one big group of properties really. So we refer to it as Brownstones
and Sheffield as being different projects but they're all really the genesis of one concept. So when you
really look at it from that perspective on a unit count basis, we had 350 units in, in the phase one which is Brownstones. We had 377 units in the phase two and as
part of that we have additional components surrounding all these different pieces so when you add it all up, the dollar amount for the development in the case of Englewood far surpasses really the value of the cost of, of Cranford on a gross basis. When you look at it on a per unit basis, Brownstones was a much more intense project than, than Cranford in that in, it had non-combustible construction on it which means really that there is about half of the units built out of steel and concrete so that we could build higher. What that means
effectively is that the cost per unit goes up dramatically. So you let, you, you, you combine that
with the fact that those projects where thought out on a construction basis in terms of when we, we signed contracts with our CM to build them. Construction
values were significantly higher; maybe as much as 20
Hekemian - 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
115
to 30 percent higher than where they're at now so per, in terms of the construction value per unit was significantly higher in Englewood. So both on a per
unit and a gross basis if you look at it really as one big project, Englewood surpasses Cranford in terms of values, costs and all that stuff. We, -- between the
two projects, what's been built its probably worth, it is worth a quarter billion (phonetic) dollars. The
cost of Cranford is, from our perspective, financable and doable. Q Well, I, I didnt ask you cost wise what the
other, on the other project but I asked you unit size. When was the Brownstones component of the Englewood project completed, construction? A I would estimate 2008. Q Yeah. Q Yeah. Q completed? A -- timeline. I, I would guess, let me push And when was the Sheffield Englewood Residential. Is that the one that has 350 units.
Brownstones back to 2007 and Sheffield the end of 2008. Q And the project which the plaintiffs are
proposing for Cranford does not have any retail or
Hekemian - 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 hotel or office component, correct? A That's correct. Q All right. So now did the 350 unit
116
Brownstone project, are there any affordable housing units in that aspect of the development? MR. EISDORFER: MR. FENLON: Asked and answered.
I think I asked him if he had
ever built any projects but not specifically. THE COURT: I mean I think I know the answer
but no, you can answer it. THE WITNESS: BY MR. FENLON: Q Are there any affordable units at the What was the question?
Brownstone project? A No. Q No. Q Now I think in your direct examination you And are there any at the Sheffield?
indicated that its the plaintiffs intention to build affordable housing units in Cranford at the Birchwood Avenue site, correct? A That's correct. Q And in a certification that you submitted to
The Court on January 30th, 2009 in connection with the plaintiffs motion to validate Cranford zoning
Hekemian - 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 ordinance, you indicated similarly that it was plaintiffs intention to construct low and moderate
117
income housing on this site and that it was prepared to construct as much affordable housing as The Court directs. A Do you recall that?
I do. Q Are you familiar with the Council on
Affordable Housings third ground regulations requiring set asides for rental projects? A I largely rely on my counsels guidance for that Generally somewhat familiar with it.
sort of stuff. Q
If I was to represent to you that the current
regulations require a 20 percent set aside for rental housing, would that correspond to your understanding? A it. Q And in connection with this project as No. Not, not as simply as that as I understand
designed and shown on exhibit P-63A, the Lessard Concept plan, July 30th, 2010, CDA is proposing a 15 percent set aside. A Is that correct?
That's correct. Q And why is, why are the plaintiffs only
proposing 15 percent as opposed to 20 percent at this particular site? A My laymans understanding of it is that when you
Hekemian - 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
118
build a rental project versus a for sale project, the, the guidelines shift towards 15 percent in many cases. That's just my general understanding of how it works. Q So your, your testimony is that under the
COAH regulations on the construction of a rental project, the 20 percent requirement becomes more of a sliding scale? A My understanding is that generally speaking when
you build a rental project the percentage is often 15 percent. MR. FENLON: five minutes. THE COURT: MR. FENLON: (Short break) THE COURT: MR. FENLON: your indulgence. BY MR. FENLON: Q Mr. Hekemian, did the, the two projects that Okay, Mr. Fenlon. Yes, thank you, Your Honor, for Sure. Thank you. Your Honor, if I could just have
Just a couple of more questions.
were developed in Englewood, Brownstones and Sheffield, they represented two separate and distinct sets of zoning applications, correct? A Two separate zoning applications. Q Correct.
And but the question for you on parking is
Hekemian - 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
119
are the plaintiffs currently proposing to use parking on Birchwood Avenue as part of their development plan or are they suggesting that all -A We, we are not. Q -- of the parking could be on site.
All of the parking is on site. Q With the reduction of the RSIS standards that
you're seeking, correct? A That's right. Q And with those on site parking, does that
include visitors as well as residents or is there a suggestion that visitors may park on, on Birchwood Avenue? A Visitors and residents will be parking on site. Q During the time that CDA and the Hekemians
have owned the Birchwood property, have you personally witnessed any flooding on site? A I have not. Q storm? A I recall being at the site once when it was Yeah. Now just one final question, Mr. Hekemian. I And have you ever been on site during a rain
raining. Q
asked you questions, two or three questions about the Hoboken redevelopment project and I think you confirmed
Hekemian - 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 Honor. THE COURT: Thank you.
120
that at one point this year the S. Hekemian Group had asked the City of Hoboken to be relieved of its obligation to build affordable housing units and then subsequently it retracted that request. assessment of your testimony? A Yes. Specifically what happened was we during one Is that a fair
of our various proposals, we suggested that we make a payment in lieu of building the units and we retracted that proposal. Q And if I told you that the proposal to make a
one time payment instead of building the housing was tendered on or about June 3rd of this year, would that refresh your recollection as to when the, the S. Hekemian Group subsequently retracted that request? A What's the question? Was it June 3rd that we
retracted it? Q request.
Is that the question?
June 3rd is when, is when you made the You said that you thought it was about two,
60 days ago that it was retracted. A That, that sounds about right. I thought it was a
little before then but -MR. FENLON: No further questions, Your
MR. EISDORFER:
Your Honor, I have no, no, no
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 further questions. THE COURT: Okay. You can step down.
121
Mr. Eisdorfer. MR. EISDORFER: witness Dr. David Kinsey. * * * (Whereupon, requested portion of 8-3-10 concluded; the rest of the days proceedings reflected in transcript previously provided to requester) * * * Your Honor, I call as my next
122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Dated: CERTIFICATION I, Lynn Cohen-Moore, the assigned transcriber, do hereby certify that the foregoing transcript of proceedings in the matter of LEHIGH vs. TOWNSHIP OF CRANFORD, heard in the Union County Superior Court, Law Division, on August 3, 2010, Tape Number 183-10 Index Number 034 to end and Tape Number 184-10 Index Number 001 to 5455, is prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate noncompressed transcript of the proceedings as recorded. AUTOMATED TRANSCRIPTION SERVICES BY: Lynn Cohen-Moore Lynn Cohen-Moore October 28, 2010 __________________ A.O.C. #368

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

UNN-L-140-08 A.D. NO.:__________________ LEHIGH Plaintiff vs. TOWNSHIP OF CRANFORD Defendant ) ) ) ) ) ) ) ) )

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P.O. Box 1582 Laurel Springs, New Jersey (856) 784-4276

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3 P-61 P-62 P-63 Photograph Photograph 85,87,89 85,87 19,37 88 88

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THE COURT: COUNSEL: M I C H A E L ON THE STAND: THE COURT: E

Mr. Dipple, you are still under

CROSS-EXAMINATION BY MR. WOODWARD: Q Mr. Dipple, I showed you yesterday a letter

The stream was actually

In fact, it was never raining when you

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That's correct. Q It shows a car stuck in the middle of the

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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 Q Okay. Lets take a look at the next one.

shot of Birchwood Avenue. A I do. Q

You recognize that?

By the way, is the street closed?

Avenue? A Yes. Q Take a look at picture E, if you would.

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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 At, excuse me. You recognize that picture?

think you testified that yesterday, correct? A Yes.

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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 Q All right.

What I want to focus on right now This shows the

-- well, lets back up a second. wetlands, correct? A That's correct. Q Yes. Q

You highlighted that in the darker green.

And then in the lighter green you got the

wetlands buffer, correct? A Yes, various buffers. Q Yes.

And, and, and then a riparian buffer on the

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multiple acres. Q Its at least two acres, two to three acres.

No, there are a number of inlets.

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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 A No, I just looked at the topographic map. Q

But you didn't do any calculations to figure

I dont know. Q If it did store water, would you need to take

Well, we would have to analyze for the purposes of

It would actually increase the head.

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lands on that roof isn't gonna be stored. A That's correct. Q

And its gonna fall through the gutters 60 to

No, but I, I see a parking lot there with no

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Now in your letter of February 4, 2010, which Do you recall

is P-38 in evidence, show you that. that? A I do. Q

You stated I think, in essence, that even

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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 A see that? A Yes. Q So you wrote that.

had to make a major change in the design. A Yes. Q Okay.

But that applied to the flood plain not the storm

water management requirements. Q Now with respect to P-10C again, I want to

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No, I dont. Q You know in the DEP regulations if its more

requires a 50 foot buffer. A No, I don't know. Q No, I dont.

Youve never studied that.

No, I haven't. Q And if there's a 50 foot buffer, that would

disturb what is already disturbed. Q Okay.

So you're saying that maybe if the end

of this parking lot was within that 50 foot buffer, you

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to have mislocated a document. BY MR. WOODWARD: Q Do we have your original report?

July 21 report? MR. WOODWARD: Excuse me, Your Honor. I just