transcript 8.12.10 marsden

7/31/2019 Transcript 8.12.10 Marsden

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SUPERIOR COURT OF NEW JERSEYLAW DIVISION, CIVIL PARTUNION COUNTYDOCKET NO. UNN-L-140-08

LEHIGH, ))Plaintiff,)

) TRANSCRIPT) OF

vs. ) TRIAL))

TOWNSHIP OF CRANFORD, ))

Defendant.)

Place: Courthouse2 Broad StreetElizabeth, New Jersey 07207

Date: August 12, 2010

BEFORE:

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

TRANSCRIPT ORDERED BY:CARL R. WOODWARD, III, ESQ. (Carella Byrne)

APPEARANCES

STEPHEN EISDORFER, ESQ. (Hill Wallack LLP)Attorney for the Plaintiff

CARL WOODWARD, III, ESQ. (Carella Byrne)Attorney for the Defendant

BRIAN FENLON, ESQ.Attorney for the Defendant

AMY TOLENOAutomated Transcription Services

P.O. Box 2230Laurel Springs, New Jersey

(856) 784-4276


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AUTOMATED TRANSCRIPTION SERVICES 856-784-4276

2

I N D E X

WITNESSES Direct Cross Redirect RecrossRichard Marsden, Jr.By: Mr. Fenlon 4 157By: Mr. Eisdorfer 109 156By: Ms. McKenzie 137

EXHIBITS Ident. EvidenceD-169 Ordinance 15 37D-170 Map 17 34D-136 September Continuation 38D-136A Marsden CV 38D-55 Memo 46D-153B, C, G Photos 50D-98 51 92D-105 93D-157 93D-121A, C, D, I, J, M, P Photos 102D-171 Photo 102 106D-172 Photo 102106D-173 Photo 102 106D-121E,G Photos 107 109


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Colloquy 3

MR. FENLON: The townships next witness is1

Richard Marsden, the township engineer.2

THE COURT: Okay. I know -- thank you. I3

know you gave me a list of the exhibits that youre4

going to use, but those exhibits are not together5

anywhere. Theyre scattered --6

MR. FENLON: Theyre in the binders, Your7

Honor.8

THE COURT: -- scattered throughout the9

binders. Okay.10

Okay. Mr. Marsden, you can step up.11

MR. EISDORFER: This ones -- this ones12

mine, I think.13

MR. FENLON: Thats yours?14

MR. EISDORFER: This tall one.15

MR. WOODWARD: Yes, I gave that --16

R I C H A R D M A R S D E N, JR., DEFENSE WITNESS,17

SWORN18

COURT OFFICER: State your full name for the19

record, sir, and spell your last name.20

THE WITNESS: Richard Arnold Marsden, Jr.,21

M-A-R-S-D-E-N.22

COURT OFFICER: Please have a seat, keep your23

voice up.24

THE WITNESS: Thank you.25


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Marsden - Direct 4

DIRECT EXAMINATION BY MR. FENLON:1

Q Good morning, Mr. Marsden. Could you2

tell the Court what your present job title is?3

A I work for the Township of Cranford, I am the4

director of engineering and public works.5

Q And in that capacity do you serve as6

municipal engineer?7

A I am their municipal engineer and I review8

planning board, zoning board applications.9

Q And how long have you held that position?10

A For over six years now.11

Q Okay. And could you briefly describe your12

educational background, college and graduate degrees?13

A I have a bachelor of science degree and civil14

engineering at NJIT. Back then it was NCE or college15

engineering. I have taken master programs pertaining16

to my interests in hydraulics. Ive taken special17

classes and programs in reference to storm water18

management and hydraulics. That was my interest.19

Q And you indicated you took a masters course20

and did you receive a masters degree in that field?21

A No, no. Business got good and we went on to22

business and we didnt need it at that time.23

Q Okay. Very good. And could you briefly24

describe your employment history from when you secured25


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your degree from NJIT?1

A Well, prior to that in I guess 1966, I was party2

employed for a civil engineering firm called Gloucester3

and Goriello Associates (phonetic). I was project4

manager, field survey chief. I was did site plans,5

subdivisions, and storm water issues. Back then we did6

storm modeling, for instance computer punch cards.7

I moved on to Giatech Associates (phonetic),8

where I was in charge of engineering, site plans,9

subdivision, road improvement works, including storm10

sewer designs for other municipalities. Then I moved11

back to Gloucester and Goriello for awhile. Again,12

still doing survey chief work, supervising, project13

management on site plans, subdivisions.14

I then went to K. Hubnany and Companies15

(phonetic) who started an engineering division called16

Negarry and Associates (phonetic) where we had six17

people. I spent about almost 12 years there. We grew18

to about 48 people and did -- about 90 percent of our19

work was for K. Hubnany and Companies. We did site20

plans, we did major development from multi-family21

housing, commercial, site evaluations.22

In those packages that we would design, we23

would do not only roads and drainage, but 99 percent of24

the time their environmental features. Streams,25


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rivers, we have to analyze those in order to get our1

site plans, you know, in working order and approved by2

DEP.3

Q So let me just interject for a minute. So4

during your work for Negarry and Associates and5

Hubnany, as part of your duties you had to prepare6

applications and secure various permits from the7

Department of Environmental Protection?8

A That is correct.9

Q And what type of permits were those?10

A They were stream encroachment, flood hazard11

permits. We would do investigations for, you know,12

wetlands because we had a wetlands division, other13

environmental issues. I remember, you know, bog turtle14

issues, blue salamander issues, things like that.15

Q Those issues that you just referred to, would16

those be with regard to threatened or endangered17

species?18

A Yes.19

Q And what were some of the larger projects you20

worked on for Negarry or K. Hubnany?21

A Oh, lets see. In the beginning, we had -- my22

term there, we had projects in East Brunswick. I dont23

know whether it was Society Hill One, Two, Three, or24

what. That was back in the early 80s.25


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I did projects for Lincoln Park, Society1

Hill, Lincoln Park, One and Two. We had projects in2

Mahwah, a 1300 unit development with a brook running3

through that also. Society Hill at Bernards which had4

the dead river running through it. Oh boy.5

I probably start in Wayne. We had projects6

in Wayne, off of Route 23 or 17. We had site7

evaluations where we did projects in Rockaway. Working8

my way down, we had industrial projects in Princeton9

for Route 1.10

Q In connection --11

A Ive had quite a -- I had a few out of state. We12

had Waterbury, Connecticut. I was licensed in13

Connecticut. And New York State we had, just over the14

river, Peakskill project.15

Q In those projects were you required to design16

and lay out sanitary sewer systems for these17

residential developments?18

A Yes.19

Q And were you required to design and lay out20

storm water management systems on those sites?21

A Yes.22

Q But after your service with Negarry and23

Associates, would you describe, briefly, your -- your24

career since then?25


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A After Negarry and Associates, I moved on to a1

full-time position as municipal engineer in Fanwood,2

New Jersey, but at the same time, because it wasnt3

really enough income to work, and I started my own4

company. I used the -- I did about one major project a5

year, a large development project, and a series of6

smaller projects, improving road -- including road7

improvement projects and any special projects that8

other people couldnt take on, I took on and solved.9

Q And have you served as municipal engineer for10

any other town besides Cranford?11

A The Township -- the Borough of Fanwood for close12

to 12 years, I believe.13

Q And since 2004 youve served as a township14

engineer for Cranford?15

A That is correct.16

Q Do you hold any professional licenses?17

A Im a professional engineer, professional land18

surveyor. I have a professional planners license,19

although I didnt renew it when I came into Cranford.20

And Im a certified municipal engineer. I guess21

theyre the major ones.22

Q And during your career as an engineer have23

you ever been called upon to testify as an expert24

before any municipal planning boards or boards of25


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adjustment?1

A Once, representing Giatech Associates.2

MR. FENLON: Your Honor, I would ask that the3

Court qualify Mr. Marsden as a expert in professional4

engineering.5

THE COURT: Any questions?6

MR. EISDORFER: Not at this point, Your7

Honor. Ill save it for my cross.8

THE COURT: Okay. All right. So he will be9

so qualified as an expert in, what did you say?10

MR. FENLON: Professional engineering.11

THE COURT: Professional engineering.12

Okay. So youre offering him as an expert13

not as a fact witness in this case.14

MR. FENLON: Well, actually both, Your Honor.15

THE COURT: Okay.16

MR. FENLON: Thank you.17

BY MR. FENLON:18

Q Now, Mr. Marsden, could you briefly describe19

your responsibilities as the township engineer for20

Cranford?21

A As township engineer Im responsible for22

infrastructure, for roads, sidewalks, curbs, storm23

water, sanitary, sewer issues. Because Cranford is a24

community that floods often, a large part of my25


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activities are monitoring the river and the storm sewer1

elements that are there. I am involved because of2

being the township engineer, I have to keep the maps3

updated, tax maps, all the other records we have,4

review planning, zoning, construction permits. Theyve5

tacked on -- they meaning the township, has tacked on6

buildings and grounds where we have maintenance tied7

into that in the engineering department.8

I go to council meetings on the request. I9

usually go once a month to a workshop. I cant -- I10

mean --11

Q Thats fine. Now you mentioned you have your12

own engineering firm. Could you tell me what the name13

of that company was?14

A It was called JEM Engineering, J-E-M, capital J,15

capital E, capital M.16

Q And what was the largest project you --17

engineering project you handled at JEM?18

A The last one was the Rigid Back Brook. It was a19

golf course of about 300 acres. It had Back Brook20

running through it, plus a tributary. Eighteen hole21

golf course.22

Q And what type of engineering work did you23

have to do in connection with the Rigid Back Brook golf24

course?25


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A Well, we did what we had called the side1

engineering, and Im trying to remember who the golf2

course architect was. He was in North Carolina. It3

started with Fabio. But we did the layout, the terrain4

for the various homes, we did the storm water5

management. We had to get the stream encroachment6

permits. We had to find the flood plain.7

We developed two lakes that we used for8

irrigation. Ones about a seven acre lake. We had9

about nine detention basins of various types, swales,10

everything we needed to make the golf course pass the11

DOT -- DEP standards.12

Q And during your initial years of design work13

and with K. Hubnany, did you design any storm water14

management systems say in the 1970s or 80s?15

A In the 80s I went with Hubnany, since 83 I16

believe. And the answer is yes. I mean, most of our17

projects require storm water management of some size18

because they were large development projects that we19

had to mitigate, you know, the development, the20

impervious cover to try to keep the site in21

precondition as the storm water is released from the22

site.23

Q What type of systems were customarily24

utilized in the 1970s and early 80s.25


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A Well, in the 70s, I mean, when I worked for1

Giatech or Luster and Goriello, we were allowed then to2

what we called 20 percent -- encroach in a stream 203

percent. But we still had to, you know, mitigate the4

fill in some areas by creating detention basins.5

Actually, yesterday I was talking to a6

gentleman. We had -- I had a project on Route 22,7

Steak and Ale. And he used to do Steak and Ale. So he8

was telling me, Well my Steak and Ale is a detention9

basin and then a recharge -- not a recharge system but10

a piping system underground with stone wrapped around11

it. And he says, Well, I did one of those up in North12

Jersey somewhere.13

And we were saying that, you know, back then14

things needed parking lot storage, meaning there was -15

- the one I can think of only is in Fanwood before I16

became an engineer there, was a funeral home on South17

Avenue where we did parking lot storage. Strictly two18

basins on either end with a big pipe between them,19

stone in it, and an overflow.20

The parking lot would fill up partially as21

part of the storage. The pipe itself would act as22

storage. And that would be what we would mitigate.23

Our mitigation measure were when the water came down,24

now we have a parking lot there instead of an open25


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area. That water is stored on the site and released1

slowly. And thats the method, simple method, as best2

management practices they even use today.3

Q And you indicated that part of your work as4

Cranford engineer as related to issues of flooding. Is5

that correct?6

A Yes.7

Q And what type of activities have you8

undertaken as township engineer with respect to the9

flooding conditions in Cranford?10

A Well, one of the things that I pushed hard for, we11

rewrote out storm water ordinance and we modeled it on12

the New Jersey Department of Environmental Protection13

best management practice, model ordinance. However, I14

incorporated into it restrictions for residential15

development impervious cover. Because what you find in16

old communities is that the piping systems were done in17

the 50s or the 60s and eventually people started18

doubling the width of their driveways, adding patios.19

And the question comes to an engineer that works in20

municipal governance says how come the streets are21

flooding, how come its gotten worse.22

My experience in Fanwood I have found, for an23

example, in 72 I designed a 42-inch piping -- 42-inch24

pipe. It was called the 25-year design. I had, when I25


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was engineer in the 80s there, we had a project, it was1

just down the stream, and I had the consulting firm2

evaluate what capacity that pipe was. That pipe went3

from a 25-year storm capacity to a four-year storm4

capacity.5

And that enlightened me to say, well this6

little bit of development or these little lots alone,7

which are not part of the requirements of the state or8

anything else, do impact your community in storm water9

management.10

So, in Cranford I put a restriction on this11

ordinance saying you can -- any -- 450 square feet or12

better, you have to mitigate the storm water due to the13

impervious cover.14

The other projects I did where we had15

consultants that were part of that before I got there,16

but we implemented and moved ahead a pumping station17

project -- five million. We had what I call a phase18

one express storm sewer project which took storm water19

that was upstream of our community and expressed it to20

the river so it wouldnt flood along our river, our21

homes that are along the river earlier, at an earlier22

time frame of a storm event.23

Other than that, were always drawing plans24

up, were trying to mitigate where we can. We have25


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five phases in this what we call the northeast quadrant1

storm order management program. We have the Army Corps2

working with us and doing a study for dikes. We had3

existing dikes there that just breached in 2007. It4

just breached this year, in March, and did breach in5

2007.6

MR. FENLON: Id like to have an exhibit7

marked.8

Your Honor, could I have this exhibit marked9

D-169 for identification.10

THE COURT: Okay. So this is a new exhibit.11

MR. FENLON: A new exhibit, Your Honor. This12

is the ordinance that the witness referred to.13

(Pause)14

BY MR. FENLON:15

Q Now, Mr. Marsden, let me show you an exhibit16

that was marked for identification, D-169, and take a17

look at that and see if you can identify that document.18

A Okay. This is the storm water management19

ordinance that we adopted in 2008, I believe. Yes.20

THE COURT: When was it adopted?21

THE WITNESS: The township meeting held22

November 25th, 2008.23

BY MR. FENLON:24

Q And this is the ordinance that you say you25


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prepared as township engineer.1

A Thats correct.2

Q And based it off a --3

A A New Jersey --4

Q -- draft --5

A Yeah. New Jersey Department of Environmental6

Protection model ordinance.7

Q Now as township engineer have you been8

involved in responding to street flooding issues within9

the township during your tenure?10

A Yes. We have -- actually Cranford, due to their11

experiences, their flooding, have created a very good12

protocol system. We have gage stations we monitor. I13

developed a map that shows areas based upon police, the14

public works, and the engineering records that show15

areas in the town that flood in intersections so we can16

put up barricades or be aware of them.17

When a gage station hits a certain number, we18

send out the notices for our emergency management19

operation team to get in place, which Im part of. The20

barricades are set in positions in lieu of the21

flooding. Its quite a bit of storm water we do in22

Cranford.23

MR. FENLON: Your Honor, Id like to have24

this exhibit marked as D-170 for identification.25


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(Pause)1

BY MR. FENLON:2

Q Now, Mr. Marsden, Im going to show you a3

document which we marked exhibit D-170 for4

identification and ask you if you can identify this5

exhibit for the Court?6

A This is an exhibit I prepared to present to the7

township council when I was requested to look at this8

site back in 2008, and I prepared a memo to go along9

with it.10

Q And Im going to take you through each of the11

drawings, but with reference theres a map in the12

bottom left corner which was marked as exhibit 3A of13

your deposition. A moment ago you made reference to a14

map that you prepared regarding streets. Could you15

come up here and describe this exhibit for us and how16

you prepared it?17

THE COURT: And can you keep your voice up a18

little bit?19

THE WITNESS: Oh, I can project.20

This, 3A?21

BY MR. FENLON:22

Q Yeah, this one here.23

A Exhibit 3A is a map that my engineering department24

prepared and completed on September 2nd, 2008. It25


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shows in red the locations of flooding that occurred in1

our entire community of Cranford and areas that are2

circled show where we usually have to put barricades3

up.4

When I mentioned about the part of my5

responsibility with this flooding is to keep an eye on6

it, oversee some of the operations being done involving7

public works. Public works involves the police8

departments.9

When we do get a call or when we decide that10

the storm is getting to a point were going to have to11

get ready for this, those are usually areas we hit12

first with the barricades and preparation. When the13

storm gets to that point, then the police go out there,14

the public works go out there and they place the15

barricades.16

So its very difficult say from here, but17

those circled areas are areas where barricades have18

been placed. The red areas are water -- where water19

and flooding occur, where we have to be cautious that20

they can, and at sometimes may be barricaded. You can21

see the site is -- Birchwood is up -- Birchwood Avenue22

is up here. That circle is there because it does flood23

and it gets two, three foot of water in there.24

If you go down you can see the next street is25


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Wadsworth. Wadsworth. Right? Wadsworth. Ive been1

six years and I still cant remember. Wadsworth. And2

then we have Casino Road which the brook meanders. The3

one side is piped out, the other side -- fronts and4

backyards. That street is a river. And Ive seen it5

in my six years three, four times, run like a river6

when the Casino Brook gets inundated. And its a big7

concern of ours.8

We have other tributary brooks that are big9

concerns. Orchard Brook. We have a detention basin10

that dealt with another brook. This flooding here is11

due to the Rahway River directly because the Rahway12

River floods takes in an area that goes all the way out13

to here, all the way out to the east to the Noma Haven14

Park and then comes out in here to the high school and15

the grammar school and comes back in.16

The north side is where our major flooding17

does occur. The south side is not as much. We have18

over 280 homes. Or the 100 year flood plain on the19

north side, and some of them get basements full of20

water.21

So this is why this community, and I think22

one of the reasons I was hired is because my ability to23

understand storm water management.24

Q And what sort of data did you have in order25


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to create this exhibit and mark the streets that were1

ordinarily blockaded and --2

A The police had a list. I talked with the officers3

involved in it. I think they -- they just know which4

streets to go to back when I first came on board.5

Public works, in talking to them, what streets being6

there. For the, what, almost four years prior to that7

I got to know those areas myself and I questioned them8

and the barricades. So it was a corroboration of9

pieces of information put together.10

MR. FENLON: Your Honor, there is a folder in11

volume one that has each one of those exhibits12

separately as 40 --13

UNIDENTIFIED: Its actually A is 40 --14

MR. FENLON: 37, 45, 48, 49 exhibit.15

THE COURT: Say it again.16

MR. FENLON: 37, 45, 48 and 49 and 50, and17

theyre in a clear, plastic folder in the beginning of18

Volume 1.19

THE COURT: Oh.20

MR. FENLON: And this particular drawing,21

Your Honor.22

THE COURT: Thank you.23

MR. FENLON: A is exhibit D-45.24

THE COURT: Let me see.25


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BY MR. FENLON:1

Q And so this map you prepared on September 2nd2

of 2008, is that a distillation of historical data3

within possession of the Township of Cranford?4

A Yes.5

Q And during your tenure as township engineer6

have you ever witnessed flooding on the site which is7

the subject of this litigation, 215 and 235 Birchwood8

Avenue and/or on Birchwood Avenue itself?9

A Yes.10

Q On how many occasions have you --11

MR. EISDORFER: Object to the question. On12

the site. On Birchwood Avenue. On both of them. On13

one or the other.14

THE COURT: Okay. So you just want him to be15

more specific.16

MR. EISDORFER: Yes, please.17

THE COURT: Okay. Im sure he can do that,18

right?19

MR. FENLON: Okay. Well take -- well take20

it --21

BY MR. FENLON:22

Q The street Birchwood Avenue, have you ever23

seen that public street in a flooded condition?24

A Yes.25


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Q And on how many occasions?1

A Gee, on many occasions. I mean, I dont get to go2

-- I dont go there for every storm event, but Ive3

probably been there five, six times going through the4

community.5

Q Now were you -- now with respect to the6

property located at 215 Birchwood Ave., have you ever7

observed that particular property in a flooded8

condition?9

A 215 is the one to the east. Is that correct?10

Q Yes.11

A Okay. Yes.12

Q On how many occasions have you observed that?13

A It would be about the same. As I say, I drive --14

you can drive through Birchwood and you can stop and15

see up Verizon Property, down the other side to see the16

limits of the flooding.17

Q And the same question with respect to 23518

Birchwood Avenue. Have you ever seen that property?19

A It would -- it would be the same answer, yes.20

Q And did you have occasion to be on the -- on21

Birchwood Avenue or either 215 or 235 Birchwood Avenue22

during the rainfall that occurred on April 15th of23

2007?24

A The tax day storm?25


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Q Yes.1

A Yeah. I was there. I didnt spend any time2

there. I was trying to get around to another area, but3

I did see the site, yes.4

Q And let me just show you some photographs5

which are attached as exhibits C, D, E, and F and G to6

what has been marked as defendants exhibit 113 which7

is the January 14th, 2010 report of Thomas Kramer8

(phonetic).9

MR. EISDORFER: Mr. Fenlon, are these the10

same exhibits weve previously marked as D-25?11

MR. FENLON: No. I dont think so.12

THE COURT: Are you talking about these13

photographs? Are we talking about these photographs14

again?15

MR. FENLON: No, Your Honor. These are --16

photos are attached to Exhibit D-113.17

THE COURT: Okay.18

(Pause)19

BY MR. FENLON:20

Q Again, Im going to point your attention to21

Exhibit C through G of exhibit D-113 and ask you if22

these photographs accurately reflect the conditions on23

Birchwood Avenue and the CDA site which you observed on24

April 15th, 2007, the so-called tax day storm?25


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A Yes.1

Q Now, Mr. Marsden, I think you indicated that2

at some point in 2008 you were asked to review a3

development proposal submitted to the township by the4

plaintiffs in this case.5

A Did I? Yes.6

Q Do you recall when you were asked to7

undertake this engineering review?8

A It was in October 2008, I believe.9

Q And in that regard what documents were you10

requested to review by the township committee?11

A Well, I had a concept plan to review that was12

presented from the applicant to the township committee.13

I prepared a concept -- a conceptual review of that14

concept plan which is the one thats shown in the15

exhibit that I was looking at before.16

Q And the -- what was the nature of the review17

that the township committee asked you to undertake with18

respect to the CDA concept plan?19

A Well, it was -- it was basically I do reviews for20

them and other properties. Its a standard review.21

Check out the drainage, check out any utilities, check22

out what could be impacting to our community. So its23

-- I mean, I look at the drainage, I look at the24

utilities conceptually, and I advise so that if they do25


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go further they can look into what other reports1

theyre going to need, you know, traffic,2

environmental. Its a conceptual review that3

highlights what I think the concerns should be based4

upon my experience of these type of evaluations.5

Q And as part of the -- your review, did you6

prepare the four drawings or sub-drawings on Exhibit D-7

170 which are sub-marked Exhibit B, C, D, and E?8

A Yes.9

Q And you prepared those exhibits in connection10

with a presentation that you were going to make to the11

township committee?12

A Yeah, a presentation I made to the township13

committee, yes.14

Q Why dont you take us through the -- youve15

already discussed the flooding map streets which is16

Exhibit A. Why dont you start with Exhibit B and take17

us through the three drawings that you prepared?18

A The set exhibit B is an overall drainage area for19

Casino Brook. I found that and its part of a key map20

in the county design for a culvert close to the21

confluence with the Rahway River where the brook would22

meet the Rahway River. Just to show that the total23

drainage area for this brook is quite large and that24

the development is in the middle of it and the25


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estimated drainage area above the development is at 2421

acres.2

I show the line of the Rahway River in blue.3

I show the lines where the Casino Brook traverses4

through the center of that yellow area. Any water that5

falls within that yellow area eventually goes to the6

brook, into the Rahway River. That was the intent of7

showing council.8

MR. FENLON: For the record, Your Honor,9

thats defense exhibit --10

THE COURT: Is it B? B-170.11

MR. FENLON: Thats a part of it, actually.12

THE COURT: Part of 170.13

MR. FENLON: In the folder I believe its D-14

37.15

THE COURT: Okay.16

BY MR. FENLON:17

Q And why dont we address the next drawing18

which is exhibit C on D-170.19

Q Exhibit --20

A Tell me what that drawing is.21

Q Exhibit C is -- it was a black and white copy22

of the concept plan that was presented to the town23

council at that time. I colored it to make it easier24

for the council to see what elements are on the plan.25


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The orange are the proposed buildings. The yellow1

represented pavement, parking, driveways. The green,2

heavy green line, represented the 50-foot wetlands3

buffer limit line. The lighter blue line I believe is4

the actual wetlands limit line that was delineated5

previously.6

The property is bordered by, it looks like,7

pink from here. And that shows the --8

Q Pink or purple.9

A Pink or purple. Okay. That showed the proposed10

development as it would sit on the entire site in11

relationship to the other elements there at that time.12

Mostly wetlands and the stream.13

Q And then the next drawing is Exhibit D.14

Could you tell us how you prepared that?15

A Exhibit D came from our -- our green acres or16

Rossi maps. They show land that is either township17

owned, open space, or green acres land. The purpose of18

this map is to show in this area there is a large area19

of wooded areas, you see theyre upstream and20

downstream of the development.21

I was trying to impose a connection between22

the region, showing that there are wooded areas, there23

are wetland areas that are part and contiguous with24

Casino Brook, that are important to the -- the25


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hydraulics of Casino Brook. Meaning that these help to1

keep more flood waters from coming down faster and I2

just wanted that to be given some attention.3

Its more of a heads-up, this is what we have4

there right now. Its township property, but as many5

of you know whove been to this site, right across from6

this site was all woods too, and it was wetlands, and7

that was part of the Verizon property.8

So its almost contiguous if you look at the9

nature of the existing construction with the park10

atmosphere where wildlife Ive seen go across one11

street to the next to transit themselves through the12

community.13

Q And the shaded in black area, can you14

identify that?15

A That is our conservation center. The majority of16

that is wetlands and forested. The perimeters are17

buffered. Thats where we have our recycling center, a18

small portion of it is located to the lower right.19

Q And again, the square or trapezoid thats20

either in purple or pink, could you identify what21

property that is?22

A Thats the Birchwood property. It had 215, 235.23

Q And the green area, could you identify that24

for the record?25


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A The green area is the approximate wetlands area1

that has been delineated for that property.2

Q And theres a blue dotted line also depicted3

on this map. Could you identify that?4

A Yeah. The dotted section shows where the Casino5

Brook is piped. The solid blue line shows where its6

an open brook. So where you see it dotted is where7

its underground. Theres a double elliptical pipe8

that goes through the Verizon property and it opens up9

into the wetlands of the township conversation center.10

You can see the tip of the blue line leaves11

the site off into Kenilworth. Thats also part of the12

drainage area. Off to the far right.13

Q The area youre referring off to the far14

right?15

A Yeah. Yes.16

Q So Kenilworth is to the north of the17

township?18

A To the northeast, yes.19

MR. FENLON: Just for the record, Your Honor,20

thats in that glassine folder, D-49, sub-exhibit D.21

BY MR. FENLON:22

Q And then the final drawing, exhibit D-170, is23

exhibit E. Could you identify it as far as that24

exhibit goes?25


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A Exhibit E is an aerial that is taken from our1

sanitary sewer maps where weve marked down our2

sanitary sewer lines. I superimposed in black dash3

lines the sanitary sewer region, which is sewer 24

series of lines, which are shown I guess in blue it5

looks like there.6

Its to give an idea of how many units, how7

much land developed properties do go into the existing8

sanitary sewer system. You can see the Birchwood9

property is in the middle. It was highlighted in10

purple. There is a six-inch line that comes from that.11

And it continues, the flow would continue down to the12

southeast, or in this map showed it lower, lower right.13

Up -- up stream of that is a school, pool, residential.14

And that all drains through the main part of the15

sanitary sewer system that eventually crosses where the16

six-inch line from the Birchwood property comes to and17

then drains again down to the lower right into Roselle18

Park.19

Q And could you identify what the --20

A Pink?21

Q -- pink line is?22

A The pink line is the township border line.23

THE COURT: Is the what?24

THE WITNESS: Township border line.25


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MR. FENLON: And for purposes of the record,1

Your Honor, that sub-exhibit E was marked as exhibit D-2

50.3

(Pause)4

MR. FENLON: Your Honor, Id like to offer5

exhibit D-170 into evidence.6

MR. EISDORFER: -- voir dire, Your Honor.7

THE COURT: Im sorry, you just have some8

questions?9

MR. EISDORFER: Yes, I want to voir dire him.10

VOIR DIRE BY MR. EISDORFER:11

Q If you look at the map marked A of D-170, is12

this a map that you prepared?13

A Yes.14

Q How many times did one of these intersections15

have the flood to be put on the map?16

A Well, they flood regularly, a hundred or more17

times.18

Q How many times do they have to be flood to be19

put on the -- put on the map?20

A How many times they flood. They only have to21

flood -- they flood regularly, two, three times a year.22

Q How many times do they have to be flood for -23

-24

A There is no criteria for that. We have criteria25


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for what -- what areas of intersections that require1

the barricades. These are areas that are typically2

flooding when a storm occurs. Do I know the exact3

number? No.4

Q I want to know how you prepared the map.5

A Based upon the information Ive gotten from public6

works, our engineering department, and police7

department on the streets that are typically barricaded8

during storm events that, you know, warrant that. And9

it happens two, three times, four times a year. Last10

year it happened -- its happened three times already11

since December.12

Q When you say three times, three times --13

three times that one or more of these -- of these were14

barricaded?15

A Most of these are barricaded.16

Q Well, when you prepared the map, how many17

times do they have to be barricaded before you said,18

Im going to put it on this map?19

A How many times?20

Q Yeah.21

A I didnt have a number of time limit, I just knew22

that theyre frequent areas of barricading. I didnt23

say, okay, how many times -- did it barricade, how24

many, two years or three years or four years or four25


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occurrences or three occurrences. These are things1

that do happen three, four times a year.2

Q When theres flooding, do they all -- do you3

barricade them all?4

A When its flooding they -- depending on the type5

of storm, some are not as critical as others and they6

do get -- some will not get barricaded. For example, I7

dont know -- theres ones always barricaded down on8

South Union Avenue and James Street because its just9

floods. So that was one of the first ones theyre10

always looking at.11

The later on flooding that would occur would12

be on Willow Street because its tied more into the13

Rahway River and it has less frequency of flooding but14

it is a major street where school systems are, where15

schools are and transportation systems to them travel,16

so that is the focus.17

The rest of them flood, depending on the18

nature of the storm and how it impacts the area.19

MR. EISDORFER: I have no objection to this.20

THE COURT: Okay. D-170 in evidence.21

MR. FENLON: Thank you, Your Honor.22

THE COURT: Let me just remind counsel that23

at the end, I mean, I have four binders probably from24

defendants and one at least from plaintiffs. Im going25


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to ask you to arrange for me just the documents that1

are in evidence. So the rest of it --2

MR. EISDORFER: In a lighter format?3

THE COURT: Yeah, just pull them out. I4

mean, you could have mine, but otherwise Im going to5

be faced with a lot of superfluous, unnecessary6

documents.7

MR. FENLON: We will. We will shorten what8

you have as much as possible, Your Honor.9

THE COURT: Thank you. Okay. Thank you.10

(Pause)11

BY MR. FENLON:12

Q Now, Mr. Marsden, with respect to the exhibit13

D-170, are there culverts depicted on the map exhibit A14

which is in the bottom left hand corner of the exhibit?15

A Culverts?16

Q Culvert crossings.17

A No.18

Q Are there any culvert crossings which impact19

Birchwood Avenue?20

A Yes.21

Q Now in connection with the engineering review22

that the township committee asked you to undertake, did23

you prepare a memorandum for the township?24

A The 2008 memo you are referencing?25


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Q Yes.1

A Yeah, in October 20th, 2008 I prepared a memo to2

go with my presentation of that conceptual review site3

plan.4

(Pause)5

Excuse me. I got a cramp.6

THE COURT: You need a break?7

THE WITNESS: No, I got a cramp.8

MR. FENLON: Maybe just a five-minute break,9

Your Honor.10

THE COURT: Okay.11

MR. FENLON: Thank you.12

(Recess)13

MR. FENLON: Just before we pick up, I wanted14

to do some housekeeping related work, moving in matters15

of the evidence.16

Im just thinking it might be easier if we17

also move into evidence each of the sub-maps that are18

on exhibit 170 which is now in evidence or individually19

mark, those are defense exhibits D-37, 45, 48, 49, and20

50. They were in that --21

THE COURT: 37, 45, 48, and 50?22

MR. FENLON: 49 as well.23

THE COURT: Okay. They correspond to the24

photographs.25


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MR. FENLON: Yes.1

THE COURT: So -- so --2

MR. EISDORFER: Im sorry. These are the3

photographs?4

MR. FENLON: No, no.5

THE COURT: No, no, no, maps.6

MR. FENLON: Theyre drawings.7

THE COURT: Theyre drawings.8

MR. FENLON: Yes.9

THE COURT: So D-50 is exhibit E, D-45 is10

exhibit A, 48 is C, and 49 is D. And --11

MR. FENLON: 37 is B.12

THE COURT: 37 is B.13

MR. FENLON: B as in boy.14

THE COURT: So I assume you have no15

objection.16

MR. EISDORFER: You know, they were going to17

be admitted --18

THE COURT: Yeah.19

MR. EISDORFER: So I have no objection of20

marking them separately.21

MR. FENLON: And then, Your Honor, Id like22

to move into evidence exhibit D-169 which is Township23

of Cranford for ordinance 2008 --24

THE COURT: I assume you have no objection,25


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Mr. Eisdorfer.1

MR. EISDORFER: I have no objection.2

THE COURT: D-169.3

MR. FENLON: And then, finally, Id like to4

move into evidence two documents which together5

comprise Mr. Marsden, C.P. The first is exhibit D-1366

which is a September 2007 continuation. And the next I7

had marked as for identification exhibit D-136A which8

is Mr. Marsdens CV through January of 03.9

THE COURT: 136 and whats the other one?10

MR. FENLON: 136A. 136 is in the binder;11

that earlier CV is not, Your Honor.12

THE COURT: This is 136A, what you just13

handed me?14

MR. FENLON: Yes, that is, Your Honor.15

THE COURT: Okay.16

MR. EISDORFER: Your Honor, I have no17

objection to any of those.18

BY MR. FENLON:19

Q Now, Mr. Marsden, just before we broke I20

think we were discussing whether or not you prepared21

any memorandums for the Township of Cranford committee22

concerning your assessment of the CDA concept plans and23

in October 2008 you indicated you had. Is that24

correct?25


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A Thats correct.1

Q Let me show you a document which has been2

marked as exhibit D-55 and ask you if you can identify3

that document.4

A This is the document that I wrote when I received5

this -- concept plan. Information in the document was6

based on my review of said concept plan.7

Q Was there any other -- were there any other8

documents, reports, or the like, that were provided by9

the plaintiffs at the time you were doing this concept10

plan in October of 2008?11

A No, I believe it was just this concept plan.12

Q And was there any other reports or data that13

you reviewed independently in connection with the14

preparation of your October 20th, 2008 memorandum?15

A Any documents I reviewed independently, meaning in16

reference to the site that I received? I dont17

understand the question.18

Q Did you look at any other information in19

preparing exhibit D-55 besides the concept plan?20

A Well, the exhibits that I presented and thats21

basically where all that information came from.22

Q Prior to preparing this memorandum had you23

ever been on site at either 215 Birchwood Avenue or 23524

Birchwood Avenue?25


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A Yes, I have.1

Q So you were familiar with the property when2

you received these concept plans?3

A Yes.4

Q Now could you tell me what -- whether you5

reached any conclusions regarding flooding in your6

memorandum?7

A In the October 20th, 2008 memorandum I -- I8

questioned the site on the flooding issues pertaining9

to where the flood plain was, where the flood -- would10

be, and I pretty much stated that because Casino Brook11

is a very sensitive brook, it does flood already, that12

we have to focus on making sure no conditions will get13

worse due to this potential development.14

In reviewing the application, I felt that15

theyd have to get a New Jersey Department of16

Environmental Protection flood hazard permit because17

there was no flood plain shown in the maps we have.18

However, through my experience I knew there had to be19

some and it had to be impacted to this area.20

The other concerns would be the utilities,21

the sanitary sewer specifically because its an older22

area. The sewers may have been built in the 50s. Some23

of these homes are built earlier than that. So I24

highlighted, like I should do during any conceptual25


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review, those areas of concerns. Unsanitary sewer was1

another one.2

If I may. Utility infrastructure comes to3

light for water, for example. Ive had involvement4

with I call mid-rise. We have a seven story parking5

garage. When I first came in the township, I6

questioned. It was submitted to go to construction,7

and I questioned sanitary sewer and the water pressure.8

They said they had adequate water pressure. However,9

when we went and tested the hydrants they found they10

did not. So obviously, based upon the experience Ive11

had I says, well, you know, out here, residential, a12

lot of the systems in our community are low pressure13

systems. I think its something to be aware of that14

its going to be a cost factor. You may need to15

upgrade the water systems.16

Sanitary sewer, we did the study for the17

Cranford Crossing Garage and found it just met the18

conditions of existing sewer system. However, even19

there I implemented and put into my stimulus package a20

lining program for that sanitary sewer cause it has21

inflow infiltration problems and it will be impacted by22

additional flows as opposed to what existed there prior23

to that.24

This is the same type of evaluation I did on25


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this site conceptually, to say, well there would be1

sanitary sewers issues, there may be water issues. Im2

not the utility companies, but you should bring that3

to, you know, light in concern for development of this4

magnitude.5

Basically, like other developments, I refer6

to police or fire for fire zones and I just make sure7

that the councils aware that these are things that are8

going to have to be looked at in a development of this9

type. And thats basically the gist of this memo.10

Q Did you make any conclusion as to whether11

there were areas within Casino Brooks drainage basin12

that served as natural detention systems?13

A Yes, I did. And that refers back to the exhibit D14

I talked about there, where we have the green acres15

wetlands that are down stream of the site and the issue16

of upstreaming the site. And including on the site17

where they have the wetlands and the lowland areas that18

arent wetlands because this is -- this is the concern19

I have about doing the stream encroachment application.20

They could find out where it was because we felt even21

in the builded -- built areas that have already been22

constructed, the offices, there are areas where there23

is water being stored outside the wetlands area. So24

there is concern, there was a concern for that.25


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42

Q And I think you indicated that one of the1

areas concerns was your inclusion that this project2

would require a flood hazard area permit. Is that3

correct?4

A That is correct.5

Q And did you reach any conclusion whether the6

concept plan as proposed by the plaintiffs in September7

of 2008 would increase impervious coverage from the8

existing site?9

A I have to refer to this memo at that time. I10

mean, yes, I believe there would be -- I mean, not a11

belief, but I felt that when I saw that there would be12

more impervious cover created.13

Q And what was the basis for that conclusion?14

A Well, the initial observations of this site showed15

that not only was there flooding into the Birchwood16

roadway system but there was flooding on the property.17

The 235 site is to the west, is inundated at times,18

meaning flood -- flood completely along their parking19

lots.20

Plus the fact that we had noticed prior to21

that on this site that there was some type of storm22

water detention system put in the upper -- I call it23

the upper site or the site thats higher in elevation24

known as 215 in the parking lot. Im not sure. I25


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brought that up in detail with that memo. Im just1

trying to find it quickly.2

THE COURT: Mr. Fenlon, my memo just goes up3

to Page 4, and then it gets redacted.4

MR. FENLON: Yes, Your Honor. Yes.5

THE COURT: Is that correct?6

MR. FENLON: That is correct.7

THE COURT: Okay. Thank you. It didnt look8

like there was any kind of conclusion on it at all.9

THE WITNESS: No.10

THE COURT: Okay.11

THE WITNESS: I mean, at that time I was12

highlighting concerns.13

BY MR. FENLON:14

Q And did you make any assessment or testaments15

of whether the proposed project would be significantly16

increasing the sanitary sewer flows into the existing17

system?18

A Well, I did. I believe I did some quick19

calculations based upon DEP standards and I felt that20

the sewer flows would double, and thats where I21

believe I would recommend that there would be a study22

for that.23

Q And did you reach any conclusions regarding24

whether this concept of land -- project would be25


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required to comply with the storm water management1

regulations in the residential improvements --2

A Well, I mean yes. Based upon my observation of3

the site, what I know about the flooding in the area, I4

pretty much recommended that theyre going to need a5

flood hazard permit and theyre going to have to6

mitigate it based upon the resident site improvement7

standards because of increase of impervious cover.8

Q And at some point in October of 2008, did you9

present your findings to the township committee?10

A Say it again.11

Q Well, your memos dated October 20th 2008.12

A Okay, yes. I presented this memo at that time13

with this display, going over --14

Q Exhibit D-170?15

A These exhibits, yes.16

MR. FENLON: Your Honor, I would like to move17

into evidence exhibit D-55 which is Mr. Marsdens18

October 20th 2008 memo.19

MR. EISDORFER: Your Honor, with quick20

permission Id like to voir dire on this.21

THE COURT: Okay.22


Q Mr. Marsden, D-55 was cast in terms of24

recommendations. Isnt that correct?25


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45

A D-55 is -- yes, recommendations and concerns of1

what this -- this improvement would be.2

Q Yes. And these were recommendations for more3

information to be provided by the property owner?4

A Thats correct.5

Q Do you know -- did you communicate these6

recommendations to the property owner?7

A Its my responsibility to send it to the township8

clerk, to the township committee. They do what they9

will with that.10

Q Did you have an interactive process with Mr.11

-- with the developers engineer?12

A Not at that time. Not at that time.13

Q Do you know -- did you make a recommendation14

to the township council when you presented it, that15

they seek information from the developer?16

A Thats what is in my memo.17

Q Okay. And did they -- did they communicate18

that to -- to the developer?19

A I dont know.20

MR. EISDORFER: I have no objection, Your21

Honor.22

THE COURT: So D-55 in evidence.23

MR. FENLON: Yeah, Your Honor, in evidence24

for -- for the purpose of showing what the witness25


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46

opinions are.1

(Pause)2

BY MR. FENLON:3

Q Now, Mr. Marsden, I think you indicated that4

you were familiar with the 215 and 235 Birchwood Avenue5

properties.6

A Thats correct.7

Q Prior to preparing the October memo. Is that8

correct?9

A Thats correct.10

Q October 20th memo.11

A Yes.12

Q And Im going to show you three exhibits and13

ask you if you can identify them. Its D-153G, 153C.14

Mr. Marsden, can you identify these15

photographs for the Court?16

A You already gave them to me. 153G was taken --17

all three of these were taken around February 2007. I18

had my technician whos in the township engineering19

department for 28 years and we were out looking at the20

wetlands and the systems that go into the wetlands back21

there. And this was brought to my attention, so it was22

the focus of this site.23

We found what you see on exhibit 153G, two24

chambers and a smaller chamber which is a -- a gate.25


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47

How would you say, its an adjustable crank, like a1

steering wheel gate system that opens and closes a gate2

at the pipe. When we opened these up, we found that3

there is a large pipe going into the big chamber, a4

small pipe leaving it, going into this gate chamber5

which has the adjustable valve. What youre seeing has6

been hit, I assume through snow plowing or whatever in7

the past. That after the gate flowing downstream, the8

pipe would discharge into the brook that was right in9

the distance where you can see the homes are right10

beyond -- beyond that.11

The photograph was taken from the parking12

lot, looking south, towards Wadsworth.13

Q On which property, 215?14

A On 215.15

Q The eastern most property?16

A Thats correct.17

Q And did you take these photographs?18

A I took those photographs. On D-153C, again, I19

just took photographs showing the limits of the20

wetlands in the distance and how its buffered. It was21

just informational for me to put this in a file that we22

had at that time.23

The best time to look at wetlands and those24

areas for hydraulic reasons are in the winter time25


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48

because theres less vegetation and you can see what1

you have in there. And basically thats what weve2

done. You cant see the ditch. You can see a dark3

depression which shows it on D-53B. That was the4

intent of that extra review.5

Q And these pictures were taken on February --6

A February 2nd, I believe, 2007.7

Q And they were taken at various locations in8

the parking lot.9

A Basically, through the back of the parking lot.10

Were looking at the wetlands in the back there.11

Q And do these photographs accurately depict12

what you observed when you took the photographs on that13

date?14

A Yes.15

MR. FENLON: Your Honor, Id like to move16

into evidence exhibits D-153B, C, and G.17

MR. EISDORFER: Your Honor, if I could voir18

dire on these.19

THE COURT: Sure.20


Q This property is privately owned, isnt it?22

A Yes.23

Q Did you have -- did you have the consent of24

the owner to go onto the property?25


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49

A No.1

Q Now there was an application pending at the2

time, wasnt there? There was no application for re-3

zoning. Is that correct?4

A I dont recall.5

Q Did you go onto the site specifically to make6

-- in connection with that application?7

A See, I dont recall when the application timing8

was. I dont recall. I know I went out in the site9

due to my technician saying that we have -- there are10

structures out there. I wanted to see them. And I11

said while were out there, well go in the wintertime12

and check it.13

Could it have been Woodmont that triggered14

it? I dont recall. I really dont.15

Q You dont recall at this point.16

A No, I dont. Im sorry.17

MR. EISDORFER: I have no objection.18

THE COURT: Okay. 153 --19

MR. FENLON: B, C, and G.20

THE COURT: In evidence.21

(Pause)22

BY MR. FENLON:23

Q Now, Mr. Marsden, I think on one of the voir24

dires counsel for the plaintiffs asked you if you had25


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50

any communication or interactions with the plaintiffs1

or their representatives. Do you recall whether at any2

time you had any meetings or communications with the3

engineer for Cranford Development Associates, Mr.4

Michael --5

A After that memo in October 2008, yes.6

Q Do you recall when the first contact you had7

was with Mr. Dipple (phonetic)?8

A I dont recall whether it was a meeting and then9

we decided to go out and look at the site together. I10

believe thats how it went. But I dont know any dates11

at this time.12

Q Now did there come a point in time when my13

law firm for -- well, strike -- withdraw the question.14

Did you become aware that at some point in15

time the plaintiffs of this action filed a builders16

remedy lawsuit against the Township of Cranford?17

A Yes.18

Q Do you recall when you first became aware of19

that fact?20

A Time-wise, dates, no.21

Q Okay.22

A It was later.23

Q Did there -- I will represent to you for the24

record that their complaint was filed on November 12th25


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of 2008.1

Did there come a point in time during the2

pendency of the litigation that my office as counsel3

for the Township of Cranford asked you to prepare a4

memorandum or report in connection with the litigation?5

A Yes.6

Q I show you exhibit D-98 and ask you if you7

can identify that exhibit?8

A Well, as per the township attorneys request, I9

prepared a more detailed document of my side assessment10

of this project that was being proposed, and that was11

on October 21st, 2009.12

Q And subsequent to the townships service of13

this document, you were deposed by both sets of14

plaintiffs. Is that correct?15

A Thats correct.16

Q And could you briefly describe what exhibit17

D-98 is?18

A Its a more detailed project site assessment19

review based upon the concept plan that was presented20

at that time which I believe is the same plan thats on21

the board as exhibit C there. It highlights in a22

little more detail and makes conclusions on certain23

areas based upon my experience in the field of24

engineering, site evaluation, and the multi-family25


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development.1

The flooding, as I said in the original memo,2

of Casino Brook is something we have to be very3

sensitive to.4

Q And why is that?5

A Because Casino Brook, when it rains hard and not6

have to be a 50-year or 100-year storm, we have7

flooding in the roadway, the brook is -- traverses the8

front, the sides, and the backs of homes downstream.9

We do barricade areas. Any additional development10

along in that flood plain has to be looked at carefully11

and make sure we dont make the conditions worse.12

Actually, I say in there, I mention streets13

that flood for lack of capacity of storm sewer system14

through the years of development upstream that created15

that problem. I dont want to make it worse. Thats16

my job as engineers, to not allow that to get worse.17

So I reviewed that as a project impact.18

At that time I mentioned not only the fact19

that the -- I felt the sites were in the flood plain or20

flood way, it had to be delineated, but I also21

mentioned the fact that there were two chambers that22

indicated and confirmed to me that the site that23

contained 215 had detention systems already in place in24

it for the parking lot.25


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And I felt that that was an issue that cannot1

be ignored because right now with the existing flow2

that we use that site includes the hydraulic design of3

those detention features which is flooding the parking4

lot, the pipes, and with the regulated gate valve5

outflow and which is not uncommon for a design that6

would be done in the 70s. As I mentioned earlier, we7

have done parking lot detention, meaning we flood the8

parking lot and make it like a dish so people still can9

get out, that theyre not inundated above their10

driveways. Its usually maximum of six inches. But11

there is a regulated outflow. The piping systems12

collects the water, a big pipe goes into a chamber,13

small pipe goes out. If the flows are greater than14

what the small pipe allows out which is the control,15

then the parking lot begins to flood out.16

Then theres a point where it would spill17

over which maximizes its storage capacity. I look at18

this site and thats what I saw.19

Q I think you indicated that you saw some --20

some other detention basins. Could you describe them?21

A Thats correct. Along with the property of 215 to22

the western property line, the common boundary line of23

235 and 215, there were manmade rectangular not24

cavities but swells that were there. At the time we25


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were trying to figure out why they were there.1

We checked against the building, just looking2

at that time to see if we had some type of drainage3

system that would go to it. We couldnt observe any4

real piping system going to it other than those covered5

little grates that show there is a direction of flow,6

the pipe that goes in that direction. It was wet at7

the time, there was water in it at times Ive been8

there. These are features which I actually use now9

when I did my golf course. It controls the velocity of10

water and --11

Q Let me just interject for clarity of the12

record, you refer to the golf course, is that the Rigid13

Back Brook.14

A The Rigid Back Brook.15

Q Which you engineered.16

A Along the edge of wetland areas we would collect17

water and swales and then had a little berm to hold it,18

and then the next one would drip down. Thats what it19

appeared to be at that point. I couldnt find an20

actual daylight piping system, but then again it21

doesnt mean its not in there underneath, acting as a22

recharge area. Meaning that its underground with23

opening to let it out.24

Q Let me just interrupt you for a minute. If25


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you take a look at the date of this memo, its October1

21st of 2009, I had asked you a bit earlier if you had2

had some meetings or phone conversations with Mr.3

Dipple, the plaintiffs engineer. Does seeing the date4

of this memo refresh your recollection as to when the5

first communications you wouldve had with Mr. Dipple6

regarding this site?7

A No, I cant say whether it was before it or after8

it. I mean, thats -- maybe Mr. Dipple -- I dont9

recall. I know we out to the site and we showed these10

elements to, you know, Mike, the swales, questioning11

why are they there, is it something to be concerned12

about.13

I also showed him the front where the trees14

were, where the -- setback, where theres a shallow15

there where I says, you know, in storm water management16

you would consider -- you look at the site two17

dimensionally. You look down and say, okay, this grass18

or this is woods and -- and you put in an impervious19

cover factor to it.20

One of the things that its difficult to21

determine is the site specific issues like in the front22

of 215 theres like a dish, and water will sit there23

first. And then eventually go underground or spill out24

and go. So it has its own natural detention. And,25


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again, it goes back to my concern. The Casino Brook1

being treated fairly so that we make sure we get the2

proper outflow to it that doesnt make the condition3

worse. We dont -- you know, we dont increase the4

flow into that brook.5

This site has, in my opinion, detention in6

the parking lot already, it has detention in the front7

in the small form of recharging into the ground, and on8

the side there was some reason why there were three9

rectangular structure, ground depressions that were10

created there. And highly suspicious. It looks like11

it was some type of correction system to slow the flow12

of water down.13

Q Youve reached that conclusion --14

A Ive reached that conclusion.15

Q -- in your professional capacity as an16

engineer from your experience?17

A Yes.18

Q In your October 2009 memorandum, exhibit D-19

98, did you reach or reaffirm any conclusions as to20

whether the September 2008 concept plan would represent21

an increase in impervious coverage?22

A At that time I came to the conclusion that it23

would increase impervious cover because they werent24

talking about mitigating for the existing storm water25


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detention or retention that was there. They were using1

the parking lot. Strictly impervious cover with the2

existing building and saying, Listen, my development is3

a little less than that. But I have to incorporate the4

existing hydraulic condition that was there which5

includes the storage that that parking lot was6

designed for and those rectangular features on the7

side, at a minimum.8

The intent of not releasing more water is --9

the -- regulations is not to release more water on --10

off the site into our system. If you ignore the11

detention thats there, its just like having --12

impervious cover, you know, go through the site into13

the brook, into Casino Brook.14

Q Now based on the concept plan, what15

structures are being proposed to be corrected on the16

existing parking lot and the area where the existing17

building on 215 are presently situated?18

A I dont know if the numbering system -- I think19

building B which is the large building that goes down,20

what, four, 500 feet, it looks like a reverse E at the21

bottom, thats the area where the parking lot is. And22

a little further into the main structure.23

Thats the area that becomes all building,24

all roof, with driveways around it. Thats the area25


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that if you rip up the parking lot and placed a1

building, youre also ripping up that existing storm2

water detention feature.3

Q Right. And with the construction of a 5004

foot long building thats approximately --5

A I dont know if its 500 foot. I mean, its long.6

Q And its between 55 and 60 feet in height is7

what theyre proposing. Correct?8

A Thats correct.9

Q All right. If you replace the existing10

parking lot with a structure of that size, does that -11

- would that structure have any direct impact on storm12

water flow?13

A Of course if its not mitigated. What Im saying14

here is you build a large structure in a restricted15

upland area that already has distension features and16

you strip that of that and just build another building,17

its just like putting impervious cover on top of the18

site that did not have impervious cover.19

You have to understand, that parking lot at20

one time, if that parking lot was not there, the21

parking lot was put in and somebody say youve got to22

detain the water for all that asphalt you put in there.23

So they made the parking lot into a ditch. They had24

the collection system, and they said, okay, what were25


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going to do is detain that water in the parking lot as1

though its still a wooded site. And thats what it2

appears to be, and thats what I see has happened to3

the existing site.4

At some point the parking lot was put in.5

Maybe the entire building in the mid 70s. They went to6

put the parking lot in, they said youve got to detain7

that impervious coverage going in my wetlands8

undetained, please, you know, mitigate it.9

So they designed a system that water would go10

into the parking lot, fall out at a slower rate than it11

would without having any detention. The parking lot12

impervious water would go from one end of the parking13

lot quicker for asphalt or concrete than it would14

through grass or a forested area.15

The idea is to hold that water back so it16

only flows out at the same rate it did prior to17

development. And thats why the parking lot was18

designed as a dish with collecting systems, two piping19

systems. It went in the chambers, it had reduced pipes20

outflow. Added onto that were eight valves that21

regulate even that outflow. And thats why Im22

convinced that this design thats there today has23

detention features.24

Now what you do when you look at the25


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evaluation of hydraulics on a site, you say what is the1

hydraulics. Well, the hydraulics on the site include2

detention. Therefore, they assume that in the3

beginning, in order to make this detention work, that4

it was a wooded site. And thats what I referenced in5

my report. That because of the --6

(Tape 195-10 ends; Tape 196-10 begins)7

They had to detain that water from where8

there was woods before, or fields, and thats why they9

designed that system.10

So that feature right now, in my opinion,11

represents a wooded site because waters being released12

at the same rate it was when it was a wooded site.13

Q Now do you have a assessment of what the14

impact on -- in the event this building B was actually15

constructed as proposed, would have on if a significant16

rainfall occurred? Would it be different and more17

severe than the site as its presently constituted?18

A As its presently proposed, yes.19

Q What would that impact be?20

A Well, there would be an increase of runoff down21

the stream going into the brook. Therefore, the flow22

rate would increase, the downstream area would get23

water sooner and therefore have a larger volume sooner24

in that storm event. Im not sure I got that clear,25


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but when you look at an overall drainage basin area,1

just like in the yellow shown in exhibit B, when it2

rains we analyze the furthest point of the drop -- of3

the drop of the rain thats in that basin. In this4

case, it may be up there at the point where Kenilworth5

is. We establish a time of concentration. And by the6

time that water gets down to a certain point other7

waters start coming in. Thats how we develop how much8

-- and flow occur.9

Now if you take that upper reach and pave it10

like a flume, that water will fly down there. And11

because its the furthest point, the other water along12

the perimeters will also meet at a sooner time,13

therefore creating a greater volume in a shorter time14

which is whats been creating our flooding in our15

intersection because our storm water systems were16

designed initially not to accommodate that additional17

impervious cover.18

This is my whole reason why we increased our19

storm water management plan for impervious cover20

mitigation. This is why we have to monitor21

intersections because we, in the past, have not22

considered impervious cover as a major issue. And now23

we started to in the -- you know, in the 70s we started24

doing that, but mostly for industrial, not residential.25


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Later on it became more residential. Now1

its in my town that Im engineer in, Ive included2

single family residential that wants to build large3

additions in the 200 to 450 square feet or more, they4

have to mitigate it. By themselves thats not a great5

distance. And the council agrees that, you know, the6

town residents are going to have to pay three or $4,0007

more for seepage pits or ways to mitigate it because in8

the long run if everybody gets to increase their more,9

my storm sewer piping system cant contain that. And10

thats going to cost a lot more to fix than holding it11

in bay.12

And this is why, you know, I strongly feel at13

this site I cannot accept the fact that we cannot14

consider this sites existing detention features as15

deemed nonrelevant.16

Q And is it your professional opinion that the17

-- well, strike that.18

You reached a conclusion that the proposed19

concept plan existed in September of 08 was going to20

represent an increase in impervious coverage. Is that21

correct?22

A Thats correct.23

Q And the basis for that conclusion?24

A Is based upon the fact that they did not mention25


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anything about the existing detention system thats1

there already.2

Q And you hold that opinion and have offered3

that opinion notwithstanding the fact that the -- the4

numerical number of impervious coverage that exists may5

be slightly reduced in the concept plan?6

MR. EISDORFER: Object to the form of the7

question. Its leading.8

THE COURT: Why dont you just rephrase.9

BY MR. FENLON:10

Q Are you aware of what the plaintiffs11

position is with respect to impervious coverage in this12

case?13

A Yes. The planner indicates that their proposed14

impervious cover is less than what exists. And thats15

solely based upon the surface area of the existing16

asphalt and the building thats there.17

Q And your professional opinion is that the18

impervious coverage is actually increased and this is19

because of the failure to address and mitigate the20

existing -- what you find --21

MR. EISDORFER: Object to the form of the22

question. Leading.23

THE COURT: Well, he didnt even finish his24

question yet. So why dont we let him finish his25


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question before we can judge whether or not its1

objectionable.2

MR. FENLON: Ill rephrase, Your Honor.3

THE COURT: Thank you.4

BY MR. FENLON:5

Q Youve just testified to the fact that the6

plaintiffs included that their concept plan has a7

smaller impervious coverage that exists. Correct?8

A Thats correct.9

Q And your -- you testified that your10

professional opinion is that actually the proposed11

concept plan is increasing impervious coverage.12

Correct?13

A Thats correct.14

Q And could you tell me or tell the Court what15

factors and criteria you assessed in reaching your16

professional opinion that impervious coverage is17

actually being increased by this proposed project.18

A As I said, the parking lot as a minimum cannot be19

considered impervious coverage at this point because20

there is a storm water detention system put in place21

that mitigated its impervious cover to the state of a22

wooded site.23

I dont know if you understand. Im trying24

to make it -- lets see, how do we make it simpler.25


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The site at the parking lot at a minimum1

which is about 300 by 400 feet, say. Thats 120,0002

square feet of grasslands. You put a parking lot in3

there and you say, I cant just put the parking lot4

there, Ive got to hold back that water that that5

parking lot now shoots off the property. So it gets6

back to the precondition of that wooded area. All7

right. Meaning that the time of concentration or any -8

- flow down because its held on the property or in the9

parking lot.10

So when everything is built and said and11

done, the waters being released from the property at12

the same rate that it was prior to development.13

So when you take that parking lot, just14

looking at it as a surface feature and say, okay,15

thats my impervious cover, thats not true because the16

parking lot was designed to act like it was a wooded17

site because of the detention measure.18

Q And --19

A And thats my conclusion of why theres actually20

less impervious cover because Im not analyzing just21

the pavement, Im analyzing the hydraulic features of22

that parking lot.23

Q And is there any requirement under -- by24

municipal ordinance that would support your conclusion?25


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A I did do the research on that and I went to my1

ordinance and yes, the ordinance which I found does2

address that. The verbiage, I dont know offhand3

directly, but it says the hydraulic condition has to be4

analyzed -- should be analyzed and included if its5

five years or more it would be utilized as the factor6

of impervious or runoff coefficients for that site.7

If you want I can find it on the --8

Q You were referring to an ordinance. Is that9

ordinance 2008-41 which you testified earlier that you10

prepared for the township committee?11

A Yes.12

Q Exhibit D-169 in evidence. Would you find13

the provision in the ordinance which you were just14

speaking about?15

A Under Section 136-42, calculation of storm water16

runoff and groundwater recharge, section A, entitled17

storm water runoff shall be calculated in accordance18

with the following. Paragraph two, halfway into that19

paragraph it states that a runoff coefficient or ground20

water recharge land cover for an existing condition may21

be used on all or a portion of the site if the design22

engineer verifies the hydraulic condition. Thats the23

key to what Ive been talking about on this parking24

lot.25


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