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

: UNN-L-140-08 A.D. NO.: ____________ CRANFORD DEVELOPMENT ASSOCIATES Plaintiff vs. TOWNSHIP OF CRANFORD Defendant ) ) ) ) ) ) ) ) ) )

TRANSCRIPT OF TRIAL

Place: Union County Courthouse Two Broad Street Elizabeth, New Jersey 07207 Date: September 28, 2010 A.M. Session

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

TRANSCRIPT ORDERED BY: CARL R. WOODWARD, ESQ.(Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein) APPEARANCES: STEPHEN M. EISDORFER, ESQ. (Hill, Wallack, LLP) Attorney for the Plaintiff CARL R. WOODWARD, ESQ. (Carella, Byrne, Bain, Attorney for the Defendant Gilfillan, Cecchi, Stewart & Olstein)

REGINA CALDWELL

UTOMATED TRANSCRIPTION SERVICES

P.O. Box 1582 Laurel Springs, New Jersey 08081 (856) 784-4276 SOUND RECORDED Operator: Smishkewych

I N D E X September 28, 2010 - A.M. Session DIRECT PLAINTIFFS WITNESS: Mr. Dipple 3 24 30 CROSS REDIRECT RECROSS

DEFENSE WITNESS: Mr. Marsden 32 50 (Eisdorfer) 63 (McKenzie) 66 67 (Eisdorfer)

EXHIBITS D-159 Control Point Survey D-162 3/31/10 Plans

IDENTIFIED 18 14 33 15

EVIDENCE

D-180 Mr. Marsdens Report - 9/16/10 D-184 Mr. Dipples Letter - 9/2/10

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Welcome back, everyone. Good morning, Your Honor.

MR. WOODWARD: THE COURT:

You can resume the stand and Were on the record? Yes, Your Honor.

youre still under oath.

COURT PERSONNEL: THE COURT: Okay.

MR. WOODWARD:

Thank you, Your Honor.

MICHAEL DIPPLE, PLAINTIFFS WITNESS, PREVIOUSLY SWORN CROSS-EXAMINATION BY MR. WOODWARD: Q. Mr. Dipple, Im going to show you P-63A,

which is your site analysis dated July 30, 2010. Youve seen that before, correct? A. I have, yes. Q. All right. I just want to revisit the issue If a fire truck, during a

of fire trucks for a minute.

flooded stay -- during a flood, has to come into this property, would it come in on the easterly side driveway and circle through? If Birchwood Avenue was

flooded, based on your knowledge of Birchwood Avenue? A. Yes. I suppose if the flood was extreme enough to

pass the -- at the same time there was a fire, the flood was high enough to surpass the western most driveway, then yeah, they would enter the eastern driveway. Q. Now, is there any ability for a fire truck,

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

assuming you couldnt get out the westerly driveway, if it came in the easterly driveway, to turn around, based on this plan? A. No, I dont think it could -- well, it may be able But,

to back up underneath Building A, potentially.

again, the floodwaters are only for a period of hours. So, in some cases the extreme floods may only be there for a period of hours, so. Q. So, a fire truck could be stuck there for a

period of hours? A. If -Q. Without being able to get out or turn around?

If a fire coincided with a hundred year flood

event, I suppose that he would have to wait a couple hours to turn his truck around. Q. Well, one other thing. I mean if a fire

truck had to come on to this site during a major flood event, and came in on the easterly sideline and is up here in the -- fighting a fire in Building A or Building B, and Birchwood Avenue is flooded, how would the other people, the residents, get out? people from Building A get out? A. Well, Im -Q. Drive their cars out, I mean. Could the

From Building A?

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

If the fire truck was blocking the exit, would I dont know

they remove their cars, I dont know. where the truck would be.

The road is 24 feet wide and

thats passable by two vehicles in either direction. So, if the truck was on the access road, yes, they could drive right past it. A standard truck is nine,

ten feet wide and I believe we have minimum, per Cranford standards, of 24 feet wide aisles, so. Q. Now, with respect to the photo you were shown

yesterday, D-172, -A. Yes. Q. -- which is a photograph of the parking lot

taken by Mr. Marsden. A. Yes. Q. I do. Q. Okay. Now, what was the height above the Do you recall that?

parking lot that that photograph was taken? A. What was the height above the parking -Q. correct? A. Okay, yeah. Q. Yeah. Sorry. Yeah. I mean it was taken at eyelevel,

About five feet?

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

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. And the distance to the back of the

parking lot is about four or 500 feet, isnt it? A. Potentially, yeah. Q. So, we have a very shallow angle trying to

determine whether theres any water in the back? A. Yeah. It looks like theres not. Thats what Im

saying. Q. angle? A. Thats the -- the summary we made, from looking at But you really cant tell, can you, from that

that photograph, was that theres flooding in the front and not in the back. Q. You werent there at the site when this

photograph was taken, were you, sir? A. No. Q. In fact, youve never been on the site with a

major -- with a significant rainfall like this, have you? A. I dont know how significant that rainfall is, but

I have been on the site on rainfall events, yes. Q. flooded? A. Mr. Woodward, the pipe was clogged -Q. Can you answer my question, sir? Yes or no? Well, where this parking lot was this

I dont know.

I asked -- I answered your

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

Now, you testified yesterday, as I recollect,

that the storm water system design that you were coming up with -- Im showing you P-91 for identification. A. Yes. Q. Now, this kind of storm water design and the

analysis that went into that was typical of what you do for clients during your due diligence, correct? A. Yes, something like that. Q. Well, did you say that or didnt you? That is what we -- this kind of In fact, Im

I did say that.

analysis is what we do for due diligence. doing it right now on another project. Q. All right.

You did your due diligence in

this -- on this project back in 2008, didnt you? A. The original site investigation report was done in

2008, yes. Q. Well, that was -- there was a design put

together at that point, wasnt there? A. No. There was a sketch, there was a site sketch But the due

by Lasar (phonetic), the architect.

diligence report doesnt typically include a storm water management design. Q. in 2008? So, what you did was not due diligence back

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. You can call it -- I dont know what term youre Its called site investigation report and its

using.

-- it -- the scope of the site investigation report was given to my client and he signed off on it. And whats

included in the report is what he asked me to do. Q. diligence. But you used the term yesterday due Did you consider that to be due diligence

by a poten -- by a prospective buyer of a piece of property? A. It is a form of due diligence, I would agree. You

know, I dont have the Websters definition of due diligence in front of me, but its a -- the report -- I may have said that, but the report is site investigation report. Q. diligence? A. Sir, I dont agree with that, no. I dont agree That is what we prepared.

So, what you did in 2008 wasnt due

with that assessment.

We use the term due diligence as

a means of investigation into issues and we highlight them. If you want to call it due diligence, you can.

If you dont, if you want to show me that I have the definition wrong, please do so. Q. Well, you, in that site investigation report,

didnt do any flood hazard analysis, did you? A. No, we did not.

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. you? A. Q. You didnt do any storm water analysis, did

No, I believe we commented on storm water, though. I dont have the

There is some -- I would say no. report in front of me. report? Q.

Could I be provided with that

Well, what do you remember?

I would like to see the report, if I can answer

questions in an exhibit correct. Q. report. A. Well, okay. Hold on. Well take a minute and get your

Okay. Q. Im going to show you whats been marked for

identification as a report dated D -- or document D-43, Site Investigation Report, dated May 21, 2008. going to show it to you. before? A. I have, yes. Q. Yes. Q. Okay. You said you wanted to review it. Is this the report you prepared? Im

Have you ever seen that

Please take your time and review it. A. Yes, theres a section, Section 6, called Storm

Water Management, where we discuss the storm water management rule and how it would apply to this project,

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and we provide a summary of that and some recommendations. Q. And your recommendation at this point was

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just to limit it to the impervious surface to that which currently exists, correct? A. Thats correct. Q. So, you didnt take into account the parking

lot behind the building at 215 Birchwood, did you? A. No. I dont believe we had a survey of the So, I dont think I

parking lot at this point. couldve done that. Q.

Now, you said yesterday, as I recollect, that Now,

your August 19th report -- withdraw the question.

I think you have up there P-87, which is your report of August 19. A. Yes. Q. Now, I think you said that this is what Here we go, P-87.

constituted the type of due diligence you do nowadays, correct? A. I -- its a conceptual storm water management If I used the term due diligence, then so be Its a conceptual storm

analysis. it.

I -- this is what it is.

water analysis. Q. But you were told by Mr. Marsden about the

storm drainage issue with respect to that parking lot

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 allow it. CONTINUED BY MR. WOODWARD: Q. Did you hear the question, sir? back in 2009, werent you? A. When you met with him?

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Mr. Marsden pointed out depressions throughout the The

site, which we incorporated into the design.

conceptual storm water management analysis, I should say, not the design. And he pointed out the valves and

rendered an opinion on the valves at that point, yes. Q. And the valves were part of a storm water

detention system that involved that parking lot, isnt that what he told you? A. Thats what he told me. Q. So, in 2009, I think you said July of 2009,

you knew at least that the township engineer was telling you this was an area that needed to be studied. But you didnt study that until August of 2010, did you? A. I was not asked to study it, no. Q. Now, Mr. Creelman submitted a report, back in

October of 2009, in which he told you that there was a flood hazard problem on this site, didnt he? MR. EISDORFER: Your Honor, this question has

been asked and answered previously. THE COURT: Its cross-examination, so Ill

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. Can you just repeat it? Q. Sure. Im sorry, I --

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Mr. Creelman submitted a report, in

October of 2009, in which he said that there was a flood hazard area problem on this site, correct? A. I dont have the report in front of me, but the

issue is what methodology needs to be used in order to determine the flood hazard area elevation. Where we

held the position that number -- that method three could be used, he told us that method six needed to be used. In the end it was method six, by the DEP

criteria, that was needed to determine the flood hazard area elevation. Q. So, it was a question of methodology.

Well, didnt you, in your October 29, 2009

report, P-37, state, and I quote, Therefore, it is our professional opinion that a flood hazard area permit does not apply to the proposed development? A. Yes. Q. Yes. Q. -- 29, 2009, correct? Because I was using method three That was your statement on October --

Thats correct.

and if you can use method three, you do not need a flood hazard area permit. time. Q. And you were mistaken, werent you? Thats what I thought at the

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. I was mistaken and method six was the correct

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method. Q. In fact, in February of 2010, you wrote a

letter concurring with Mr. Creelmans analysis that method six had to be used, correct? A. I believe I testified to this. Yes, Mr. -- weve

agreed that, in written form and in testimony, that Mr. Creelmans assessment of method six being the correct method is correct, yes. Q. And in that you also said however, that

wouldnt change the site design, isnt that correct? A. Wouldnt change the site design? Q. Yeah. Is that in my report? I dont have

I dont know.

the report in front of me.

Did I say it wouldnt

change the site design, I dont recall that. Q. In March 31, 2010, March 31, you submitted a

new plan, correct? A. Yes, there was new plans prepared by Lasar Group,

you know, with our input, thats correct. Q. And that plan recognized that there was a

major change in the site design, correct? A. The Building A was reoriented to stay out of the

floodway, thats correct. Q. And showing you whats been marked as D-162

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for identification -- here, you can take a look at it up close -- thats the March 31 plan that was submitted, correct? A. Thats correct. THE COURT: D, what is it? D-162, Your Honor.

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MR. WOODWARD: THE COURT:

Thank you.

CONTINUED BY MR. WOODWARD: Q. And in July 30, its been marked as P-63A,

still another plan was submitted, correct? A. I believe another -- I guess another plan was I think it was a correction to the parking. But perhaps I

submitted.

I dont recall, but that looks the same. could see the two together and I could -Q.

Well, I mean the driveways were changed,

werent they? A. Yes, some of the parking. As I just mentioned, it This doesnt include So, when you I

was the parking that was changed.

parking under Building A, this one does.

take the parking out you need less surface stalls.

believe this one was in error and this one is correct. Q. So, the one, P-1 -- D-162, the March 31,

2010, was in error, correct? A. Yes. I believe the Lasar Group forgot to add the

parking under the podium -- the podium parking, excuse

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 me, in Building A. Q. And by the way, the reason that Building A

15

was moved, in your March 31 plan, was because after you had done the flood hazard study using method six, you found out that almost the entire building was in the floodway, correct? A. Thats correct, yes. Q. Im going to show you what was marked as D-

25C in evidence, ask you if youve seen this picture before? A. I have, yes. Q. I believe so, yes.

And that picture is of Birchwood Avenue in a

flooded condition, correct? A. Thats correct, yes. Q. Look at the right-hand side, isnt there a

fire truck in the parking lot of the building across the street? A. Yes, there is. Q. And you dont see the fire truck driving down

the center of Birchwood when its flooded, do you? A. No. Q. Thank you. Im going to show you whats been Its a letter

marked as D-184 for identification. dated September 2, 2010. A. Yes.

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 report. THE COURT: Okay. yesterday. THE COURT: Oh. It was late. Its that late THE COURT: I dont have it. I think you should.

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MR. WOODWARD: THE COURT:

D-184? Yeah. Its September 2, 2010.

MR. WOODWARD:

If you want, Ill give you this extra copy. THE COURT: hand it to me? MR. WOODWARD: THE COURT: I think I -Okay, maybe I dont. Did you

Because its not in the binder. Yeah, it was handed

UNIDENTIFIED SPEAKER: out yesterday, Your Honor. MR. WOODWARD:

I think I handed them out

MR. WOODWARD:

CONTINUED BY MR. WOODWARD: Q. Now, this is a documentation or a letter that

you wrote on September 2nd, 2010 to Mr. Eisdorfer, correct? A. Yes. Q. And this was provided in response to a letter

from me, dated August 26th, with -- regarding supporting data for your report of August 19th,

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct? A. Yes. Q. Okay. Now, lets just take a look at the Item number one, you

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items that youve listed there.

made certain assumptions about drainage areas, existing drainage area three and drainage area two, correct? A. Yes. Q. And you did that because you didnt have

sufficient time to work it all out, correct? A. Yeah. I think, you know, wed probably break that

area up as I testified yesterday and yeah, the time constraint, and I also think its pointless, but yes. Q. Now, next, on item three, you say youve not

prepared a full comparison of time versus flow for storm water runoff from the property. A. Yes, I do. Q. And you didnt think that was appropriate at Do you see that?

this time so that we would know what the time versus flow analysis would be? A. Yeah, I think theres a lot more that goes into it

than a conceptual design to make that determination. Theres real pipes, theres real grades, theres real channels, potentially, and yeah, thats a pretty big analysis. And I -- right, I didnt -- I showed the

reductions and I felt that was sufficient.

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. You felt that was sufficient, but if

18

someones going to analyze it, they dont have the ability to analyze it thoroughly the way if -- as if it would be if it had been properly prepared, correct? A. In order to prepare that analysis you would need

full site plan design and that -- theres no time for that. Q. Now, item four, pipe invert and size

information for the predevelopment conditions were taken from the survey by Control Point. Just so I want

to make sure that we have everything tied together, the survey by Control Point is this document, D-159, correct? A. Yes. Q. Thats the survey that you based this

analysis on? A. That is. Q. And then you also took some documentation

prepared by Mr. Marsden of certain elevations and compared them and certain sizes and compared them to what was on that survey, correct? A. Thats correct, yeah. Q. And if there was a dispute, if there was a

disagreement in the numbers, you accepted Mr. Marsdens numbers, correct?

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. I believe so, yes. Yes.

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Yeah, and I go on to say

we confirmed it. Q. Now, you also say, in item five, you talk

about pond reports, but at the very end you include a statement, the storm sewer system shown in the information provided is conceptual. storm sewer calculations were made. A. Yes, yes. Q. So, we dont know whether numerically these Therefore, no Correct?

-- the system works properly, do we? A. The storm sewer system? Q. Yeah. I

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

mean its -- it was a detention basin conceptual -- a detention basin analysis. The storm sewers just showed

the direction which they would discharge toward the ditch. Q. There was no -Okay. Now -- oh, that reminds me. One other

thing, with respect to your comments regarding the plan of July 30, 2010, I think you were testifying about this. This is P-63A. You were talking about how -Excuse me. Withdrawn.

maybe this is the wrong one. P-90. A. Yes. Q.

P-90 you testified about yesterday as showing

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. the proposed existing -- excuse me, proposed drainage area map, correct? A. Yes. Q. Yes, correct. All right.

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And you were asked about, by Mr.

Eisdorfer, about the areas that are within these indentations in Building B. A. Yeah, I do. Q. Okay. Now, you said that a way of getting Do you see that?

this water out of here -A. Yes. Q. correct? A. If it were to be designed that way. That wasnt -- would be to pipe it under the road,

part of the detention system, yes. conceptual -Q.

But this is a

And -- but if you were to do that, those

pipes would have to run underneath the road and out into the wetlands area, correct? A. Yeah, they would probably discharge at the base of

the wall, yes. Q. Yeah. And youd need a DEP permit for that?

For a discharge to the wetlands, I think within

the transition area you may, yeah. Q. Oh. The -- this is -- Im showing you P-91

again, the storm detention system.

Mr. Dipple - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. them. A. A. A. A. Yes. Q. What is the size of them again?

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I believe, -Q. I think you said --

-- if my memory serves me right, its 35,000 cubic So, divide that roughly by three, so I think one of thems shown

feet in total.

theyre maybe 12,000 each.

a little smaller, but, you know, roughly. Q. And dimension wise the -- theyre pretty

shallow, like maybe 30 inches high I think you said? A. I think so. Just thats what we used as an

initial conceptual takeout, it was, you know, 30 inches. Q. Yes. Q. Oh. All right, and their dimension? I think I said 140, maybe, by 40 on one of Two and a half feet?

The one on the right I think was the one I gave I mean I have a scale here, I could

the dimensions. check, but -Q.

What would be the elevation at which would be

the bottom of these tanks? A. Id have to look at my analysis. Q. One second.

Could I know what youre looking at?

Im looking at P-88, which is the --

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

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-- conceptual hydrologic and hydraulic analysis. Q. Thank you.

And I have them at 75.85, 75.85. Q. The bottom would be -- the elevation would be

75.8 -A. 75.85, yeah. Thats what my analysis shows. What page are we on? Im sorry. I -- that same -And it

THE COURT:

THE WITNESS:

about ten pages in, that same pond report. looks like that. MR. WOODWARD: THE WITNESS: So I can see. Keep going.

I think its

Its -- heres 75.85. MR. WOODWARD: THE WITNESS: This is what I think -Well, its -- I think its -Im looking at the My

its this one. wrong page.

Oh, no, Im sorry.

I apologize, theres no page numbers. Im going to

output doesnt give me page numbers. amend that. Its 76.

Its not that much different. The elevations 76.

And Im looking at this page. THE COURT:

Which page? Now it looks like that. Its

THE WITNESS:

kind of a -- Im going to say its not quite halfway through the report.

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

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THE WITNESS:

Yeah, but thats not the right

Just keep going a little bit further. THE COURT: Maybe we should take a break and

number the pages. THE WITNESS: Thats it. Thats it. And if

you look right here, I have elevation on the bottom, 76, under state storage takeout. THE COURT: Thank you.

CONTINUED BY MR. WOODWARD: Q. Now, you designed that so that it was

slightly above the invert elevation of the discharge pipe at the ditch, correct? A. Thats correct. Q. So, if theres a flood and theres no flood

restriction, tail water can back up into that, correct? A. Thats correct, yeah. On -- in that analysis,

right, yeah. Q. Wouldnt you -- wouldnt it be better to -So, your design does not take

withdraw the question.

into account the impact of tail water? A. No. I testified to that. Nor does it take it

into consideration on existing conditions, so. MR. WOODWARD: No further questions, Your

Mr. 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: Any redirect? Just --

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MR. EISDORFER:

REDIRECT EXAMINATION BY MR. EISDORFER: Q. Mr. Dipple, are you familiar with Residential

Site Improvement Standards? A. I am. THE COURT: I didnt hear your question. Im sorry.

MR. EISDORFER:

CONTINUED BY MR. EISDORFER: Q. Mr. Dipple, are you familiar with Residential

Site Improvement Standards? A. I am, yes. Q. Can you tell us what they are?

It was standards, I believe -MR. WOODWARD: Objection, Your Honor. This

goes beyond the scope of direct. MR. EISDORFER: that driveway. that driveway. THE COURT: Okay. Excuse me, Your Honor. Specifically, there I crossNo, it does not. You asked

So, Im going to ask some questions of

MR. WOODWARD:

Driveways were asked in direct.

was a discussion of driveways on direct. examined him on it. MR. EISDORFER:

Yes, and Im going to follow

Mr. 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 up that cross-examination. THE COURT: going, okay? MR. WOODWARD: All right. Let me just hear where this is

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CONTINUED BY MR. EISDORFER: Q. Can you tell us what the Residential Site

Improvement Standards are? A. In brief, they govern -- I believe its a document

that is -- was prepared and is governed -- or is part of the Department of Community Affairs, which regulates residential construction throughout the State of New Jersey. I believe it was an attempt to standardize

residential construction, you know, throughout the state. Q. And does that have standards governing

driveways, in terms of circulation? A. Yes, it does. Q. And do those standards reflect safety

considerations? A. Yes, I believe they do. Q. Is this compliant with the RSIS standards? MR. WOODWARD: Your Honor, Im going to

object because there was no testimony on direct about whether this complies with RSIS or not. MR. EISDORFER: Your Honor, the -- he was

Mr. 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. complies.

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questioned on whether the driveway is adequate for fire equipment. RSIS is a uniform state standard that

reflects all those and the testimonys going to be if this was compliant with the RSIS. THE COURT: I mean, you know, I assume it I mean -- to that

Thats not the point.

extent Im going to allow it. BY THE WITNESS: A. I believe that -- I believe the width of the Again, this

driveway complies with the RSIS standards.

is not a developed site plan, a designed site plan. So, yeah, there may have to be some engineering that goes into this for full compliance, yes. Q. Now, you were asked questions about different

soil characteristics. A. Yes. Q. Yes. Q. Now, can -- and you indicated that some of Do you recall that?

the soils were Class C -A. Yes. Q. -- and Class D.

Thats correct. Q. Yes. Can you come and point out to us --

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

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Im asking you to point it out in connection

with your existing drainage area maps, which is P-89, I guess. A. Right. I -- okay. So, the soil on this side of

the site is the Haledon type and the soil thats over here on this side of the site is the Passaic type. based upon the soil map that was provided as part of Exhibit D-184, Im just going to trace with my finger about where the soil line is. and then it goes this way. Its right about here And

And then it looks like it

comes out this way and then makes its way down to Wildhorse Terrace. somewhere. Q. Now, which is Class C and which is Class -It kind of bows out right in here

This is C on this side and that is hydrologic soil Its -- thats the official term, hydrologic

group D.

soil group. Q. So, now in drainage area -- where would the

-- well, for which of these drainage areas would the soil type have an impact on your analysis? A. Drainage area three, proposed -- are you speaking

of proposed? Q. Yeah. No, --

Mr. 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. Youre looking at the proposed drainage area.

28 No,

Im sorry, youre looking at existing. Q. Existing. Existing.

I apologize. Q. Okay.

Existing drainage area three. And based on what youve just shown us

is drainage area three entirely in Class C? A. No. No, theres a significant part of drainage

area three that is Class -- or hydrologic soil group C and theres a significant area in hydrologic soil group D. Q. In practical terms, would it have made any

practical difference in the outcome if you had treated that as partially in C and partially in D? A. No. Basically, youre going to get a little more So, if you take half of I dont know what the split Its just

runoff in the Class D soil. that, lets say its half. is.

Say half of its C, half of its D.

going to bump up incrementally.

So, your existing

conditions runoff rate is going to go up a little bit and your proposed conditions runoff rate is going to go up a little bit. So, were only comparising -So, its

comparing the difference between the two. kind of a sliding scale.

If they go up a little bit, And we actually

were only looking at the difference.

ran all of drainage area three with D and it made no

Mr. 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. this? MR. EISDORFER: THE COURT: No, I dont. opened. difference in the change between the two flow rates. MR. WOODWARD: Objection, Your Honor.

29

Theres nothing in his testimony which he just gave in any of his reports. MR. EISDORFER: Your Honor, the door was

He was cross-examined on this. THE COURT: Do you have anything else on

Okay, then move on.

CONTINUED BY MR. EISDORFER: Q. You were shown a New Jersey Department of

Transit manual. A. Department of Transportation, yes. Q. Yes. Q. -- manual concerning the calculation of storm Department of Transportation, sorry, --

water and you testified that that was not the appropriate manual. manual is? A. Yes. Its the Best Management Practices manual, Do you know what the appropriate

which is referenced in the storm water management rule. The storm water management rule references back and puts some of the engineering standards into the Best Management Practices manual.

Mr. 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. Does that have the same standard for

30

sheeploads as the DOT manual? A. No, it doesnt. Its different than the DOT

manual. Q. And what is that standard? What is the

standard in the DEP manual? A. The standard in the DEP manual, the Best

Management Practices manual, its actually called the New Jersey Storm Water Best Management Practices manual. Its in chapter five and it states the maximum

sheepload length recommended by the NRCS is 150 feet. According to the NRCS, longer lengths may be used only in special cases, such as smooth, uniformly graded parking lots. MR. EISDORFER: THE COURT: I have no further questions.

Anything else, Mr. Woodward?

RECROSS-EXAMINATION BY MR. WOODWARD: Q. Mr. Dipple, when you did -- when you were

just asked those questions by Mr. Eisdorfer, you were referring to a -- you said you could use it for a parking lot, but the proposal here is not to build a parking lot, is it? driveways, correct? A. But Im analyzing the existing -- the common Its to build a building with

concentration issue revolves around existing conditions

Mr. 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 questions. THE COURT: No? No, Your Honor. Thank you. you. A. of drainage area one and that is a parking lot. Q. Now, with respect to the Passaic soils that

31

you mentioned, at least half the site is that class type D soils, correct? A. Im going to say yes, about half. Q. And isnt there a procedure under the TR-55

that you have to use a worksheet and put the numbers down, do an analysis, do an averaging? that? A. Its a weighted average. Q. Did you do that? I was Did you do

I didnt include the type D, no.

simplifying the analysis. MR. WOODWARD: Your Honor. THE COURT: Anything else? Not from me. I dont know -Thank Okay. No further questions,

MR. EISDORFER: THE COURT:

Okay, you can step down. Ms. McKenzie?

Oh, wait a minute. MR. EISDORFER:

I dont know if Ms. McKenzie

has questions. MS. MC KENZIE: I dont think I have any

MS. MC KENZIE:

Mr. Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Okay, you could step down. Thank you.

32

THE WITNESS: THE COURT:

Mr. Eisdorfer, anything further? I have no further witnesses. So, the Plaintiff rests

MR. EISDORFER: THE COURT:

Okay.

subject to the admission of the evidence. MR. EISDORFER: THE COURT: Thats correct. So, why dont we take ten

Okay.

minutes and your witness? (Off record. THE COURT: Back on record.) Mr. Woodward? Id

All right.

MR. WOODWARD:

Thank you, Your Honor.

call Richard Marsden to the stand. RICHARD A. MARSDEN, JR., DEFENSE WITNESS, SWORN COURT PERSONNEL: the record. THE WITNESS: MR. WOODWARD: Richard Arnold Marsden, Jr. Thank you. Please state your name for

DIRECT EXAMINATION BY MR. WOODWARD: Q. Cranford? A. Yes. Q. correct? A. Correct. And you previously testified in this case, Mr. Marsden, youre the township engineer for

Mr. Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Subsequent to your testimony there were a

33

couple reports produced by Mr. Dipple and Im going to show them to you. One is dated August 19th, 2010, and

bears exhibit number P-87D, and with it is a conceptual hydrologic and hydraulic analysis of P-88, plus a series of drawings, including one thats labeled P-92, P-89, P-86, P-91 and P-90. And Im going to ask you if

youve ever seen those documents before? A. I have. Q. And in addition, there was a document dated

September 2, 2010, which has been marked for identification as D-184. before? A. Yes. Q. Have you reviewed those documents? And have you ever seen that

I have. Q. And as a result of your review, did you

prepare a report? A. Yes, I did. Q. And Im going to show you whats been marked And its dated September Is this

as D-180 for identification. 16, 2010.

Take a moment to look at it, D-180.

a copy of your report? A. Yes, it is. Q. Now, could you tell us what documents you

Mr. Marsden - 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 reviewed in preparing this report? A. Well, as it states in the report, I reviewed the

34

L2A letter, dated September 2nd; the August report, dated August 19th; the conceptual hydraulic and hydrologic analyses, dated August 19th; their maps entitled Proposed Drainage Area Map, dated August 19th; the existing drainage area map, dated August 19th; the parking lot, storage exhibit map, dated August 19th, and the conceptual basin location plan, dated August 19th. Q. Now, based upon your review of those

documents and your analysis as a professional engineer, could you tell us whether you reached any conclusions regarding the content of the report and the letter and the various documents you reviewed? A. Yes, I did. Q. Could you tell us what your -- in summary,

what your conclusions were? A. Well, in summary, my conclusions were that there

were two assumptions that were made that were not correct. One is that the gate valves were assumed

completely open and the second one is the assumption that the proposed design that regulated the outflow elevation would be higher than the flood elevation. Q. All right. Well, lets talk about the first

Mr. Marsden - 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 one, gate valves assumed to be completely open in the analysis. Could you tell me, or tell us what the

35

significance of that is? A. Well, the assumption that the gate valves were

completely open also assumes that, quite fra -- leads to the question of why are they there in the first place. If the gate valves were there, they would have Trying to analyze what the functions would

a function.

be, I can only come to the conclusion that it was a regulated outflow function, meaning that the gate valve was closed at some point to regulate the storm water system for detention on that parking lot. Q. Can you tell us what are the factors that

lead to your conclusion that the parking lot was designed as a storm water detention facility? A. Well, the initial overriding factor, before any of

these reports came into play, were when we looked at the parking lot and we saw the outflow chamber that led to the outflow of the storm water piping system through a gate valve. There are pipes that were entering this

chamber that were larger than the pipe that left the chamber. And in that pipe that left the chamber there I tried to assume that well, what Its not

were gate valves.

would those gate valves have as a function. used for maintenance for backwater.

Because if there

Mr. Marsden - 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 what? A. The function of a gate valve -was a backwater effect at the time of a large storm

36

event, there would be no real velocities, thered be no real sediment depositing back into the piping system that would be a concern because everything would fall out. Because youre having a very large floodplain and

the perimeter, the outer limits of the floodplain the velocities drop tremendously and in this ditch, thats the furthest point. So, I wasnt concerned, as a

Public Works Director, that something like that would deal -- would be a backup. It just didnt make sense.

Because it also leads to the first chamber, which also adds to a wider opening and would, in turn, reduce the velocities. Now, when I heard testimony that the pipes

were clear, I -- it just confirms that the piping system flushes itself out for whatever little debris may have backed up into it, because those gate valves have been opened fully. So, it wasnt that. The only

conclusion I can come to is that these gate valves were there to regulate the outflow. Why would an engineer

spend the money, or recommend spending the money, to put a gate valve when you had a twelve inch pipe that wouldve done the same thing. Q. So, the function of a gate valve is to do

Mr. Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. In your view. It would reduce

37

-- is to regulate the outflow.

the outflow to some degree that would be comparable to what the preexisting conditions were on that site. The

-- in reducing the gate valve opening, it would have water backup, as has been testified from Mr. Dipple, that would fill the parking lot. In looking at the map

of the parking lot, as it regulated its flow depth, it almost looked uniform, meaning that the parking lot was pretty much flat. Q. If you -Im sorry.

Now -- go ahead.

If you didnt need it there for storm water

detention, you wouldnt have graded it such a way, because the terrain itself, on either end of that portion of the site, goes from elevation 81 at one point to 82. And at the drops where you can obviously

see the fill, which was testified by, it goes to 77, 78. So, theres a natural slope that was there. A

design engineer, if he wasnt being required to do anything other than put a parking lot in, would pretty much do what Site 235 did, just put it down close to grade and pitch it so it drains towards the river. Q. Now, you say Site 235, and Im -- right now

Im looking at -A. Building number. I guess its --

Mr. Marsden - 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. Q. Yeah. Q. -- on the far western side of the property? 235 is --

38

Thats correct. Q. And that parking lot, can you describe that

parking lot? A. Well, that parking lot basically drains close to It appeared to be built close to the

the grades.

grades that are flat along the river, Casino Brook that is. And it drains from the parking lot down to the There are no real inlet I think there

back and then out the back.

connections there that accommodate that.

may be two, but theres not a series of storm water detention systems and gate valves. Q. Now, take a look at whats been marked as P-

92, which was an attachment to Mr. Dipples August 19th report. A. Could you tell us what this document is?

Well, the -Q. Or what you understand it to be, I guess.

Well, this document is -- it shows the storage of The one in the upper

runoff at different elevations.

left-hand corner has an elevation height, maximum storage height of 90 -- 79.2, and as you go clockwise, it goes 79.4, 79. -- oh, excuse me -- .6 and 79.8. shows almost uniformly, through the blue filled in It

Mr. Marsden - 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 areas, that it fills up equally, like a bathtub not flushed or regularly.

39

So, it was built, in my opinion,

to act as a storm water detaining facility. Q. Now, I think when you testified earlier in

this trial, Mr. Marsden, you testified as having designed systems somewhat like this during the 1970s? A. I mean -- that is correct. We did parking lot

storage then.

It was a cheap efficient way to detain

water without going through, you know, additional costs, doing underground piping systems. Q. And do you know when this -- approximately

when this building was constructed and that parking lot? A. Well, we believe it started around, I guess it was I

maybe completely constructed around 1976 or 74. dont know specifically.

I dont have that -- I dont I know it

know if I had a map showing it after that. was after 1973. Q.

Now, if there was a reduction in the flow

through a gate valve, what impact, if any, would that have on the detention ability of that parking lot? A. Well, what would happen is, if there is -- if the

gate flow was set at a certain reduction, more water would be stored in the parking lot. As you go from -Im

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

Mr. Marsden - 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. sorry. Q. I think its --

40

I cant read that. Q. P-92 for identification. P-92, it shows that when they got to

Oh, sorry.

elevation 79.8 it really hadnt gone up to a large part of the curb. greater. So, as it fills up the area becomes

Therefore, the volume becomes a lot larger So, thered be a lot more And in

per change in height.

storage capability in that parking lot.

previous testimony, and in these reports, it showed that the weir or the spillway elevations were very close, within a half an inch of all three that were mentioned. It was, was it 81.13? No, 80.13 and 80.07

and another one like that, which its quite a coincidence that they were all set close to the same for spillover. Q. Now, in terms of calculating what the flow

from this should -- by the way, what is the purpose of detaining water on a site, such as this, through structures, such as you have described here? A. Well, the purpose is that engineers, the State

Department of Environmental Protection, weve, for a long time, weve tried to regulate outflows from developed sites. Because when we put impervious cover,

Mr. Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 parking lots, buildings, on a site, it increases the rate of flow off the site and that rate of flow then enters your bodies of water quicker, sooner. So, at

41

some point downstream theres now more water than there used to be. So, we try to regulate the outflow from

the sites to what the existing or precondition was. One way of doing that is to provide detention structures, parking lot or in the ground structures, that hold that water out and regulate the outflow that would mimic the precondition. Q. Now, in this particular situation you

indicated in your report that in order to determine how much the gate valve should function, you had to look at what the original site conditions were before development. A. Thats correct. And there is -- theres no

information out there showing us what the gate valve regulation was. The only way you can do that is to

back-step into it, meaning that you come back with the original concept of what the design criteria was, which was a wooded, or an undeveloped site, to a developed site with this impervious cover. Determine what the

undeveloped site outflow was, pretty much what they did here except for they used the parking lot as the control assuming the gate valve was fully open. You

Mr. Marsden - 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 couldnt do that. You have to develop, say well, the

42

undeveloped site releases, just say hypothetical, ten cubic feet per second of water. Now, then take your

post-development site and say okay, I have a site here that with a full gate valve open it releases, I dont remember the number, but hypothetically say, 20 cubic feet per second of water. Therefore, you then have to

reduce that gate valve to get down to the ten cubic foot regime, so that you would then be meeting the undeveloped site condition to your new developed site condition with detention. Q. Now, would someone go out and operate that

gate valve on a regular basis? A. No. It would be set at some point. For example,

we have a valve we use for our slough gate in our pump station. There is a height where we will set the -- so Well, we can open it

we know how far the gate is open. more.

We can close it less, but theres a number set.

My feeling is is that there was a predetermined set opening for that. The reason the gate valve is there,

as I said before, is to have some reduced regulation in the twelve inch pipe. Q. Now, moving on. You mentioned that you

thought there was a second assumption in the report submitted on August 19th that was in error, or at least

Mr. Marsden - 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. you disagree with. Could you go into that, talking

43

about outflow elevation? A. Oh. Q. And --

The other -Q. -- the storage facility.

What that led to is, in reviewing the reports

prepared by Mr. Dipple, one of the things you try to do is not to create a -- and I call it backwater for simple terms, but its tail water, or headwater effect. Tail water effect? Gosh, Im losing it. Anyway, its

-- it is the backing up of the water that tries to get out of the system that cant get out because theres already water in the downstream portion of the system that it has to displace. The only way it is displaced

is the increase in height of the water in the upstream system creating a head, which gives more weight to that water, which, by gravity, pushes it down and is able to push it out. That effect, if there is water already in

the downstream system, will reduce the outflow of that pipe. It has the downstream ponding. Using the fact

that in order to design it properly, which we do and I think Mr. Dipple stated, was that we have to build the outflow pretty much at what the flood elevation would be so there would be no backwater due to the -- upon

Mr. Marsden - 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. that youre at maximum flood of the Casino Brook. In

44

doing that youd have to raise that elevation to the height of the storm event elevation, which I believe was 78.6. Using that as just a very conceptual

starting point, and not assuming any slopes and any pipes upstream, not assuming slopes to get the water to the inlets that would have to collect this water for the detention basin, we utilized what information was in the report. The report stated that theres 30

inches, the conceptual detention basin, or detention structure, that would have a height of 30 inches, which is two and a half feet, which is actually very good. Its one of the more common ways we do it because its more efficient. If you start going higher and deeper, Narrower and wider it becomes a

you get more troubles. maintenance issue.

So -- and its an acceptable But when you add up what

practice and I agree there.

elevations, 78.6, plus two and a half feet, that gives you 80.1 -- 81. Let me look at my report. My math

skills as I get older. Q. Please, go ahead. Yeah, it gives you

80 -- 78 outflow structure.

elevation 81, you know, 81.1.

On top of that, when you

put -- you have to have cover or thickness of your detention structure. And again, typically youre going

Mr. Marsden - 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. to try to stay pretty deep, because the structure

45

itself will have some type of limited integrity due to depth under the ground. inches. A minimum would be twelve

So, wed assume twelve inches, another foot.

So that brings the top of your detention structure to about elevation 72.1. Q. 72.1. Q. 82.1. Excuse me. Again, thats not assuming -72.1?

It was 71 -Or 82.1? 82.1. That would bring -- not even

counting the slope to get the water to that point, which would even be higher. That would then tell me

that the minimum height that you have to have on the site is 82.1. Going back through their profile

reports, which we have here, for example, its Exhibit P-83, it shows conceptual elevations of those buildings. 79.6. Building B was at 80. Building A was at

That tells me at this point, in order to have a

system similar to what was in the report done, the whole site pretty much has to be raised more than two feet, which then now impacts the relative height of the property with the surrounding area. Q. And as a result of that do you have a

conclusion as to whether or not there is sufficient data to make a determination as to whether or not this

Mr. Marsden - 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. design would be approved by the DEP? A. Well, what this shows is that theres not enough

46

data to accurately determine to say well, this is what the height of the buildings going to be, or this is what -- where the detention structure is going to be. My feeling is DEP is going to look at this and if they present it this way, theyre going to question what is the outflow based upon the existing parking lot condition, meaning the detention and the restricted outflow. Because there is no real fact, other than my

opinion, going back to what the precondition design was and theyre probably going to request that. approved? Can it get

I dont think it can get approved without

going through that analysis. Q. Do you have an opinion as to whether or not

the -- by the way, attached to your report is an aerial photograph. A. Yes. Q. Could you tell us what that is? It came to my Do you see that?

This is an aerial photograph.

attention -- it was in the construction departments plat files. It wasnt in mine. Theyre plates that

were developed and taken by -- excuse me -- Aerial Photographic Survey, on February 25th, 1973. through them I found this plate. And going

Its actually

Mr. Marsden - 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

47

somewhere written in white above -- even in that plate, it says 2/25-73, shows when it was flown. Next to it

is the actual series number they use when they do their aerial flights. top side. Its 068-73, its on the right-hand I pulled

It looks like one and then 08.

this plate out because it shows our site, what it looked like in 1973. Q. Well, can you direct the court to where

Birchwood Avenue is, if you want to hold it up to show the Judge? A. Okay. Actually, if you look at it, as its been

stapled together, youll see a fan like structure there, a fan like structure there. facility. THE COURT: BY THE WITNESS: A. Cranford Con -- yeah. And just going up slightly Cranford Conva -Thats the nursing

to the left is, you can almost see a tree line there, darker objects that are going across there. That

represents trees that are along the edge of that property. Above that is all open area, with a little

dark diagonal slot, which was probably an old tree row, that farmers typically use when theyre cleaning their fields and theyre putting rocks aside and -- you know, so they can be able to farm it. That is approximately

Mr. Marsden - 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.

48

in the middle of this proposed site thats housing 235. Q. 215. 215? Im sorry. Now, above that you see a double

line, very faint. building. building.

Thats the parking lot to the other

Thats the entranceway to the other So, you can gauge that just downward of that

double line and above the fan building, that thats the site that we are talking about. Q. Was it developed at that point?

No, it wasnt. Q. That is the 215 Birchwood site.

Thats correct. Q. And this was in 1973?

That was 1973. Q. February. Now -- by the way, with respect to

the proposed detention system that was in P-81, are any of those located in the driveway? A. The potential location of the underground storm One is fully

water storage systems, two of them. located under a driveway.

The one thats furthest

north is partially, a little less than half of it appears to be located under a driveway. The third one

appears to be located in more of a court area. Q. Now, with respect to the ones in the

driveway, is there any particular structural

Mr. Marsden - 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

49

requirements so that vehicles and trucks and so on can drive over them without problem? A. Of course thered have to be -- theyd have to

have structures that would be able to support the loads of those vehicles. I mean our typical storm water There are systems out

inlets are designed to do that.

there, like the arch, I think Mr. Dipple is alluding to. A certain criteria has arch, corrugated arch

systems or concrete thatll also have the structural integrity to support loads under a parking lot or a driveway. Q. Do you have a conclusion as to whether, based

on what youve seen from these reports, the impact that it would have or whether it would create increased -strike that. Do you have an opinion as to whether or

not the site, with this additional requirement, vis-vis the drainage system, or the detention system, is suitable for the size of the development as proposed? A. Well, based on their reports and the fact that

they show theres detention going up to the elevation, it was, I believe, going up to elevation 79.8 on those maps, with the gate fully open, my opinion is I know the gate wouldnt be there if it was fully open. the gate had to be closed to some degree. So,

Therefore, In

there would be more storage in that parking lot.

Mr. Marsden - 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. is? A. Well, its current state is nonoperational. Q. In what way is it nonoperational? Honor. THE COURT: Cross-examine. addition, showing the calculations that were showing outflow rates, there would be less existing outflow, because the gates were partially closed. So, yes, it

50

would bring water into the system sooner if this cri -if this concept, the design was held and it would negatively impact downstream of us. MR. WOODWARD: No further questions, Your

CROSS-EXAMINATION BY MR. EISDORFER: Q. Mr. Marsden, have you inspected the valve

youve been describing? A. No. Q. No. So, do you know what its current state

Through, I believe, probably snowplowing, it was Both gates -- both gate shafts

bent or knocked over. were bent. Q. Cranford? A.

How long have you been municipal engineer at

A little over six years. Q. Has the gate ever been operational during the

period when youve been municipal engineer?

Mr. Marsden - 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 open? A. No. Q. So, any -- theres no actual evidence of it A. A. A. A. I couldnt tell you that. I wasnt there

51

initially in my first couple years. Q. Im sorry, I dont un -So, --

I was not at the site until later on. Q.

When was the first time you were at the site? 2007.

When we had flooding. Q.

And was the gate operational then?

It appeared not to be. Q. Have you actually seen the gate anything

other than fully open? A. Well, you cant tell whether the gates fully open

or not, because you dont know what the height of the steering wheel or the shaft was, regulations. Q. Do you have any municipal records that

indicate that -A. No, I dont. Q. -- that it was anything other than fully

being full -- of being anything other than fully open? A. Well, theres no evidence in knowing how much or

how little it was open. Q. But is there any evidence of it being -- do

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

Mr. Marsden - 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. No. Q. Now, have -- does the -- did the resolution

52

approving this project specify the existence of this gate valve? A. I dont know. Q. Did it specify that it had to be maintained

at being less than fully open? A. I dont know. Q. At the time when this project was -- you

indicated that the project was constructed sometime in the 1970s, after 1973, but you thought maybe by 1978, is that right? A. It could, yeah, it could be by then, later. 76,

its tough to -Q. At that point there was no state regulation

of storm water, was there? A. 76. 78, yes, we were doing storm water

regulation. Q. But was it --

Flood hazard regulation. Q. Yeah. The first state regulations didnt

come in until 1983, didnt -- did they? A. No, I believe we were doing flood hazard I know locally we were doing detention

regulations.

basins and facilities.

Mr. Marsden - 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. Q. When you say locally, you dont mean in --

53

I mean in Union County. Q. You dont mean in Cranford?

And -- well, part of Cranford did through Union The Lenape Park detention basin, I think. We

County.

have the Carpenter Street detention basin.

We were all

aware of the increase in impervious cover issues. Q. At -- well, was there state regulation at

that point, in the 19 -- at the time this was built? A. I couldnt say directly -Q. You dont know?

-- without looking it up. Q. You dont know?

Not right now. Q. Cranford didnt have an ordinance until 1983,

did it? A. No. Q. So, there was no local regulation?

There was no local regulation. Q. So, you dont know what standards were

applied when this project was approved, do you? A. That is correct. Q. Any -- and it is merely inference on your

part that the standards were reproducing existing conditions, isnt that right?

Mr. Marsden - 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. Its -- say -- can you try that again? Q.

54

I asked you if it is merely inference on your

part that the standards that would have been applied at that point were reproducing existing conditions, is that right? A. Based upon -- yes. Q. Base -- yes.

In fact, its not inference, its You dont

speculation, because you dont really know. have -MR. WOODWARD:

Objection, argumentative.

CONTINUED BY MR. EISDORFER: Q. No. Q. There was no ordinance. You havent seen the resolution, have you?

Thats correct. Q. There was no state regulation.

Dont know. Q. So, you dont have any actual knowledge of

what standard was applied then. A. Direct knowledge, no. Q. Youre merely speculating as to what you

think might -- would, could or shouldve been applied. A. My speculation is what we have applied in the mid-

70s, yes. Q. Now, have you modeled, have you done the

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

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calculations as to what the affect of partially closing the valve would be? A. No. Thats -- well, my task was to review the We have consultants, you know, who will look

report.

into that if it ever came up to be a request. Q. So, you cant tell us how much additional

flood -- how much additional water storage there would be if it were fully closed, can you? A. Well, could I now? Q. No. Q. No. Now.

I couldnt -Q. You havent done the calculations?

Well, -MR. WOODWARD: Objection, Your Honor. Hes

interrupting the witness. his answer. THE COURT:

The witness hadnt finished

Lets let him finish his answer. Okay.

MR. EISDORFER: BY THE WITNESS: A.

What I do know is, through my experience of these

type structure designs, by reducing the outflow you will increase storage. outflow. You will reduce rate of

Mr. Marsden - 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. But you cant tell us how much?

56

I could not tell you exactly how much. Q. So, you cant -- you cannot tell us what the

significance, in quantitative terms, would be of closing the valve a little bit, a little more or a little more than that, can you? A. I can tell you that there is an increase in I can

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

tell you that if they are closed it will be decreased in outflow rate. cant tell you. Q. The actual ratio and significance I I did not do those calculations.

Now, the curb on the existing parking lot is

six inches high, is that correct? A. I dont know exactly. It may be a little less I dont -- I

because its been resurfaced or whatever. cant tell you. Q.

Is that something you measured when you did

your survey? A. They probably did. I didnt remember -- memorize

all top of curb and bottom of curb elevations. Q. happens? A. Well, if it gets above the curb, it actually wont If the water gets above the curb what

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

Mr. Marsden - 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. It cant get above the curb in all but one

57

location. Q. Well, what happens when the water gets high

enough to get above the curb? A. Well, it then spills over. Q. Spills over.

Thats what your consultant, Mr. Dipples design

showed that it would spill over the curb in the lower left-hand side of that map youre working with. Q. Now, that sets a limit on how much water can

be detained. A. Thats correct. Q. volume -A. That volume of water. Q. That volume of water. It cant -- it can never hold more than the

Thats right. Q. And so thats the maximum.

That would be the maximum. Q. Now, so did you calculate what the effect of

that maximum would be? A. As I said, I didnt do any calculations, in a I do know theres three weirs there.

large degree.

One -- the other two structures are the driveway entrances and exits to the parking lot. And that lower

Mr. Marsden - 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 left-hand corner acts as a weir, as Mr. Dipple testified. Q.

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Now, if -- youve testified that this manual Do you know

valve was set at some predetermined level. what the predetermined level was? A. No. Q. I said that.

Under what circumstances would people change

it, would someone go out there and change the level? A. Well, they would change the level -- they would Meaning that if

open it up all the way to maintain it.

its opened and sediment developed in that last chamber, its easy to flush a twelve inch pipe thats completely open without having a restriction in the middle of it than it is to have an orifice restriction. I can give you an example that DEP and I discussed in the 70s about restricted outflows. We have -- there

was a regulation of DEP in the 70s that required a minimum orifice size of three inches. Through the

state, the developers, we had issues about that minimum size because it was a maintenance problem. Outcomes of

that were options to be able to open up your outflow structure with plates or possibly these type of gates. The plates Im talking about would be in the chamber itself before it leads out. It would be put in front

of the twelve inch pipe that had a restricted burned

Mr. Marsden - 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. out circle that would say thats your outflow. When

59

its time to maintain it youd pull it out, youd flush your pipe system. Public works departments had

equipment that would push water through it or sweep a pipe to get this type of thing clean. maintain your outflow structures. You have to

That couldve been

one way of having your restriction and then being able to open the valve up and then flush your pipe out without hitting that restriction. Q. So, do you imagine that that valve was only

used for maintenance? A. I believe that valve was only used for

maintenance, tied into detention. Q. So -- but the valve itself was just used for

maintenance? A. The valve was set for detaining the water at a It was decided to use a valve

certain reduced opening.

possibly because of maintenance. Q. Is that how you would design a system now?

Design a system now? Q. Would you use a -- would you design a system

now with a manually operated valve? A. No, Id probably use a plate in front of it. Q. Would -- if -- as a municipal engineer, would

you approve a system now designed with a manually

Mr. Marsden - 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 was? A. I have no idea. MR. WOODWARD: interruption. MR. EISDORFER: BY THE WITNESS: A. I have no idea. Q. You have no idea what that opinion was? Im sorry. Objection, Your Honor, A. A. operated -A. With a manually operating valve, no, because it Another point where

60

adds to a maintenance headache.

youd have to maintain the valve, where its a lot easier to maintain or remove a steel plate and replace it. Q. So, but your assumption is that the municipal

engineer in 1970 had a different view than you do? A. Well, an engineer that was responsible for the I dont know whether it was a

site criteria, yes.

municipal engineer or a county engineer at that time. Q. But had a different opinion --

Had a different opinion. Q. -- than you do.

And it was fresh in our design criteria detention

and the answer would be yes. Q. And -- but you dont know what that opinion

Mr. Marsden - 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. No, what that opinion was. I was not -- I dont

61

even know who did the -Q. Now, based on your analysis, do you have an

opinion whether its possible to design this site along the lines of the concept plans that have been proposed, that would comply with NJDEP regulations? A. Well, as I stated earlier, in order to properly

determine the outflow you would have to use the preassumption that the site was undeveloped. If they use

that criteria, I dont see how DEP would not approve. Q. Assuming thats not the case, assuming that

the standard is the existing -- the comparison is the existing conditions. Do you have an opinion as to

whether the -- that the site can -- that this can be presented to DEP and it would -- let me take it back. Assuming that we compare it to the existing conditions, which is the valve is fully open, do you have an opinion as to whether a storm water system can be designed that would comply with the DEP regulations? A. Im not sure I understand the question. With the

valve completely open can a storm water system be designed -Q. Assuming that the existing conditions were

comparing to that needed to be mimicked is the valve was fully open.

Mr. Marsden - 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. Well, I guess maybe Im misunderstanding the Because I can turn around, as I stated a

62

question.

minute ago, a restrictive valve flow orifi -- a restrictive plate in that one chamber before it gets to the gate to make it comply. Q. Now, my question is, is it infeasible to

comply with the DEP regulations on this site? MR. WOODWARD: Objection as to specificity.

CONTINUED BY MR. EISDORFER: Q. Assuming the site plan that was presented in

-- the July 30th site plan. A. Not counting storm water, assuming that they can

do some form of detention that would make the site developable. Q. I mean -Is it impossible

Well, thats my question.

to design a storm water system that would comply with DEP regulations to that site? A. Talking to an engineer, no. I mean you can -- we

can design whatever it takes, whatever the cost is, to make it work. Its a very tight site. Its not going It

to be an easy design.

It would be more costly.

wouldnt be a simple aboveground structure, as your -Mr. Dipple testified. underground system. Q. But its your opinion that it could be It would have to be some type of

Mr. Marsden - 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: wait, wait, wait. Okay, you can step down. Sorry. Oh, designed? A. Oh, sure. MR. EISDORFER: MR. WOODWARD:

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I have no further questions. No further questions, Your

Not yet.

Ms. McKenzie?

MS. MC KENZIE: quick questions. THE COURT:

Yes, I just have a couple of

Good, good. Where is she?

THE WITNESS:

CROSS-EXAMINATION BY MS. MC KENZIE: Q. Not long. Ive got to find it. Okay, Mr.

Marsden, in your experience, what does -- when the NJDEP looks at the existing hydraulic condition of the site, what is it that theyre looking at normally? When they -- if presented with a site such as this, what would they consider to be the existing hydraulic condition on the site? A. Well, theyd look at what features are out there

presently; the existing structure, the existing terrain, the existing soils and its permeability aspects. Q. The -- its vegetative state. Okay. So, in your opinion, how would the DEP

treat the drainage structures that are there, those

Mr. Marsden - 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 existing drainage structures? Do you have an opinion

64

as to how they would respond to those? A. Well, because they have the restricted ori -- have

the orif -- the gate valves in there, because the parking lot is as flat as it is, and there is a question to whether the existing site had detention on it already. They would then, in my opinion, consider

-- make the request that the site should be considered undeveloped when doing the design criteria for your new system. Q. And have you been involved in applications to

DEP where this kind of situation has arisen and that has been their reaction? A. I have not gotten to that point, because we have

had systems where farmers had facilities, have had storage area, ponding, that we just assumed didnt exist as a detention. And we went ahead with an

undeveloped condition and developed from there. Q. I see. Okay. And you had indicated that you

main -- you had designed systems with these kinds of gate valves in the past, in your experience. A. Well, I know they were talked about. I have seen

designed system -- I have not done that myself. Q. Okay. Because in the systems that youre

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

Mr. Marsden - 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. valve handled? A. Well, the only management or the maintenance of

65

the gate valves that would be handled, and I cant tell you specifically, because it was a long time ago, would be basically a maintenance program, just like we do now for detention structures. We have a maintenance

program that says after so many storms, or storms of major extent, we need you to make sure you clean out your detention system. That gate valve may possibly be

used at that time, open it up, to flush out the outflow structure so it could be cleaned. Remember, when you

put a gate valve in its going to require a restriction. Water, sediment, pebbles from gravel

driveways or stone driveways, leaves, would hit this restriction and then drop down. start to build up. cleaned out. So, then it would

You have to occasionally get that

To clean it out you got to remove the

restriction and flush it. Q. And who would normally do that?

That, in this case, wouldve been somebody thats,

because it was a private system, would be somebody in the maintenance of that building. Q. But there was no mechanism in place where

public works checked on whether that was undertaken? A. At that time I dont know. I mean now we do. In

Mr. Marsden - Cross / 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. my term, six year plus term here, we do regulate and keep an eye on those structures, because we have reports that mandate maintenance. Q.

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And -- but you indicated that since you have

been on the site youre not aware of any maintenance -A. No. Q. -- thats been undertaken?

Thats correct. Q. Is there an easement on the property to get

to those -A. No, there arent. Q. valves? A. No. Its a private system. MS. MC KENZIE: MR. WOODWARD: Okay, thank you very much. Your Honor, just if I may. For maintenance purposes to get to the

REDIRECT EXAMINATION BY MR. WOODWARD: Q. Mr. -- you were asked -- just the last

question that you were asked was whether there was any easement to get to the system. But in fact, isnt

there a sewer easement on this property? A. As a sanitary sewer, but not storm sewer related. Q. property? A. Thats correct. And that runs across the back of this

Mr. Marsden - 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. Honor. MR. EISDORFER: McKenzies questions. RECROSS-EXAMINATION BY MR. EISDORFER: Q. Have you been involved in any DEP A. Q. Over to the Casino Brook area?

67

Correct. MR. WOODWARD: No further questions, Your

Just follow up on one of Ms.

applications in which there were existing drainage structures where DEP said go back to the predevelopment conditions in designing your new drainage? A. Well, a system, I stated Im involved, and I

believe it was Society Hill at Burnage, there was a swale and a pond design. We assumed that that, even

before going to DEP, we did not incorporate that. Q. But that wasnt a DEP decision, that was the

developers -A. That was our decision. Q. The developers decision?

Thats correct. Q. Are you aware of any instances in which there

are existing manmade drainage facilities where DEP has said go back to the predevelopment conditions? A. Well, Im aware that by regulation, as I stated

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

Mr. Marsden - 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 idea. here. THE COURT: lunch and start -MR. WOODWARD: Hell be a while. THE COURT: well see you at 1:30. Okay. All right, good. So, I think it might be a good Oh, okay. Should we break for

68

management, that there is the option or the ability to reanalyze the system, if there is signs that there is a condition that shows what preconditions should be. Q. Well, but that regulation says you look back

five years, doesnt it? A. I dont know an exact answer for that one. I

dont have it memorized anymore. MR. EISDORFER: THE WITNESS: THE COURT: I have no further questions.

Thank you.

Anything else, anyone? No thanks, Your Honor. No. You can step down.

MR. WOODWARD: MS. MC KENZIE: THE COURT: THE WITNESS: THE COURT: further, Mr. Woodward? MR. WOODWARD:

Okay.

Thank you.

So, I guess next is -- anything

Yes.

I have Mr. Creelman

Enjoy your lunch.

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

69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Date: By: Regina Caldwell Regina Caldwell October 9, 2010 _357_____________ A.O.C. Number * * * * * * * * * * * * CERTIFICATION I, Regina R. Caldwell, the assigned transcriber, do hereby certify that the foregoing transcript of proceedings in the matter of CRANFORD DEVELOPMENT ASSOCIATES VS. TOWNSHIP OF CRANFORD, heard in the Union County Superior Court, Law Division, Civil Part, on September 28, 2010, Tape #236/10, Index #0890 to the end, and Tape #237/10, Index #0001 to #1200, is prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate non-compressed transcript of the proceedings as recorded. AUTOMATED TRANSCRIPTION SERVICES