transcript 8.3.10 kinsey cda planner
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AUTOMATED TRANSCRIPTION SERVICES 856-784-4276
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I N D E X
August 3, 2010
WITNESS Direct Cross Redirect Recross
DAVID NORTH KINSEY
By Mr. Eisdorfer 3
EXHIBITS Ident. Evid.P-10C Wetlands document 50
P-25 43
P-30 37
P-31 Mr. Kinseys CV 5 6
P-32 Mr. Kinseys certification 9,10,11
P-33 Mr. Kinseys certification 9,10,11,14
P-34 Mr. Kinseys certificate 9,10,11
P-39A Map 53
P-58 July 20, 2010 letter from 9,10,11
Mr. Kinsey
P-63A 15,17,27
P-64 23
P-64A 15,17
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D A V I D N O R T H K I N S E Y, PLAINTIFFS1
WITNESS, SWORN:2
THE CLERK: Please state your name for the3
record.4
THE WITNESS: David North Kinsey.5
THE CLERK: Thank you.6
DIRECT EXAMINATION BY MR. EISDORFER:7
Q Mr. Kinsey, would you state your full name?8
A David North Kinsey, K-I-N-S-E-Y.9
Q And you have a professional office.10
A Yes.11
Q Where is that located?12
A 14 Aiken Avenue, Princeton, New Jersey 08540.13
Q What is your profession?14
A I'm a Planner.15
Q Do you hold any licenses?16
A Yes. I'm a prof, licensed professional planner17
in New Jersey.18
Q Would you provide us with, with your19
educational background?20
A Yes. I have a Bachelors of Arts Degree in21
Government and Architecture from Dartmouth College, a22
Master of Public Affairs and Urban Planning from23
Princeton University and a Ph.D. in Public and24
International Affairs from Princeton University.25
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Q Could you briefly out, outline for us your1
professional employment history?2
A After finishing on my doctorate, Your Honor, I3
began working in the New Jersey Department of4
Environmental Protection in 1975. I was the chief of5
the Office of Coastal Zone Management for several years6
from 1975 to 79. And then I was the director of the7
Division of Coastal Resources from 79 to 1982.8
Following that, I spent a year as the9
director of the Planning Group in DEP and then a six10
month assignment to the National Oceanic and11
Atmospheric Administration in Washington, D.C. where I12
served as a Coastal Resource Specialist. And then13
essentially since 1984 to the present I've been a14
partner in the small firm of Kinsey & Hand as a15
Consulting Planner.16
Since 1998, I served as a, or I have been17
appointed a visiting lecturer of Public and18
International Affairs at Princeton University. And19
since 2008, I've been a principal of Realty20
Innovations, LLC which is a New Jersey Focused Real21
Estate Investment Company.22
Q In your work at, at the Department of23
Environmental Protection, did, were mo, were24
evaluation of housing projects a part of your25
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responsibilities?1
A Yes, very much so. I was responsible for2
designing and implementing New Jerseys Coastal3
Management Program. It rests on three main laws.4
First, the Coastal Area Facility Review Act which5
applies to any residential development of 25 units or6
more in a land area equal to about 20 percent of the7
states land area.8
The second law is the Coastal Wetlands Act of9
1970 which regulates practically all development in10
delineated coastal wetlands. And third the 191411
Waterfront Development Law which outside of the CAFRA12
area, for example, along the Hudson River Waterfront13
regulates all development within at least 100 feet of14
the uplands from the main high water line and it can15
extend as far as 500 feet as far as --16
THE COURT: Do I have a CV in this package?17
MR. EISDORFER: Yes.18
THE COURT: That might help me.19
MR. EISDORFER: Sure. Its marked as P-31.20
THE COURT: Thank you.21
BY MR. EISDORFER:22
Q Dr. Kinsey, let me show you the document23
we've marked as P-31 and can you identify this for us?24
A Yes. P-31 is a one page biographical summary25
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followed by a six page CV followed by a one page1
summary listing of my various affordable housing2
planning assignments since 1985.3
Q Is, is this a document that you prepared?4
A It is.5
MR. EISDORFER: Your Honor, I would offer up6
P-31 into evidence.7
THE COURT: I assume there's no objection.8
DEFENDANTS COUNSEL: No objection, Your9
Honor.10
BY MR. EISDORFER:11
Q Dr. Kinsey, you were --12
THE COURT: Thank you.13
BY MR. EISDORFER:14
Q You were describing the, the way in which15
your work with, at, at New Jersey Department16
Environmental Protection encompassed review of, of17
housing projects?18
A Yes. I administered these three laws under a19
delegation from the commissioner so that I was the, the20
ultimate decision maker and made permanent decisions on21
development applications subject to those three laws22
and that included numerous residential development23
proposals throughout the coastal zone.24
Q Now in particular did that include projects25
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that were inclusionary projects?1
A It did include, it did include inclusionary2
projects using the definition of 100 percent affordable3
projects. And it did include projects that ultimately4
did propose low and moderate income housing, yes, under5
Mount Laurel One.6
Q Now after you went into -- in, in, in7
connection with your work at DEP, did that involve8
your, did that involve your reviewing sites for9
compliance with the various environmental standards?10
A It involved that completely. Of course, I had a11
staff who prepared draft decision documents that I12
often conducted pre-applications conferences myself13
together with the staff and reviewed projects and14
application proposals throughout the course of a15
project particularly for the more significant ones.16
And ultimately when it came to the a, I often wrote,17
rewrote decisions documents and ultimately I made the18
decision as in the three year period when I served as19
director of the division.20
Q Now since entering private practice, have you21
served as a court appointed master in Mount Laurel22
cases?23
A Yes. Your Honor, I've had I believe its 12 or 1324
appointments as a special master in Mount Laurel25
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litigation since 1985. I served under Judge Pisansky1
and Springfield Township and Berkeley Heights in this2
county and I've had other assignments throughout the3
state, one that has continued for in 22 years.4
Q And in, in that capacity did you review5
proposed inclusionary sites?6
A Yes.7
Q Did you review sites that, that that were8
proposed for builders remedies?9
A Yes.10
Q In how many of tho, how many of those11
instances the, were you reviewing sites proposed for12
builders remedies?13
A In all but one of the cases where I served as14
special master, the plaintiff was a builder plaintiff15
so in all but one case. And some of the cases had16
multiple plaintiffs and interveners and hence multiple17
sites.18
Q Beyond your service as, as, as special19
master, what kind of clients do you have?20
A I have several types of clients, Your Honor. I,21
the bulk of my work is on affordable housing planning.22
I advise public interest plaintiffs. I advise private23
sector builder plaintiffs. I advise objectors and24
citizen groups and I advise municipalities. I've25
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assisted municipalities in obtaining COAH certification1
of housing elements and fair share plans. I've advised2
participants in both the COAH process, to petitions for3
subsequent certification as well as court proceedings4
under the Mount Laurel doctrine.5
Q Do you have any professional affiliations?6
A Yes. I have been a certified planner, a member of7
the American Institute of Certified Planner for at8
least 25 years and in 2006, I was honored to be elected9
a Fellow of the College of Fellows of the American10
Institute of Certified Planners.11
Q How many Fellows are there in New Jersey?12
A There are I believe four currently active planners13
who are Fellows.14
MR. EISDORFER: Your Honor, I offer this15
witness as, as an expert witness in planning and16
affordable housing.17
MR. WOODARD: No objection.18
THE COURT: So he will be admitted as an19
expert in this court.20
BY MR. EISDORFER:21
Q Now Dr. Kinsey, have you prepared any, any22
reports in, in this case?23
A Yes, I prepared three certifications and one24
letter report.25
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(Pause)1
THE COURT: 32, 3, 33 and 34?2
MR. EISDORFER: And 58.3
THE COURT: Okay.4
(Off the record; on the record)5
BY MR. EISDORFER:6
Q Dr. Kinsey, I'm gonna show you the documents7
that we marked for identification as P-32, P-33, P-348
and P-58. Now have you had a chance to examine those9
documents?10
A Yes.11
Q And can you tell us what they are?12
A They are in sequence my initial certification on13
the issue of whether the Township of Cranford was in14
compliance with its constitutional housing obligations15
under the Mount Laurel Doctrine. The second16
certification is on --17
MR. WOODWARD: May we know the date of that,18
Your Honor, just so we can follow along?19
THE WITNESS: The footer is dated January,20
2009 and the signature is January 29, 2009.21
MR. WOODWARD: Thank you.22
THE WITNESS: Thats P-32. P-33 is my23
certification on site suitability. It is dated July24
31, 2009.25
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THE COURT: July certification, 30, P-34?1
THE WITNESS: P-33, I'm sorry.2
THE COURT: Oh. Okay, 33 is -- I'm sorry.3
What was that?4
THE WITNESS: P-33 is my certification.5
THE COURT: On site suitability.6
THE WITNESS: On site suitability. The7
footer date is July, 2009. The signature date is July8
31, 2009.9
THE COURT: Thank you.10
THE WITNESS: P-34 is my certification on11
rebuttal on aspects of site suitability. The footer12
date is October, 2009 and the signature date is October13
26, 2009.14
F-58 (sic) is a letter report dated July 20,15
2010.16
DEFENDANT'S ATTORNEY: P.17
THE WITNESS: I'm sorry, P-58.18
MR. WOODWARD: I have something dated July19
19, 2010. I dont have anything dated July 20th. May20
I see it, counsel?21
(The attorneys talk amongst themselves.)22
BY MR. EISDORFER:23
Q Now do these, youve now looked at, at P-,24
P-32, P-33, P-34 and P-58. Do these accurately25
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represent your opinions?1
A Yes.2
MR. EISDORFER: Your Honor, I would,3
consistent with The Court, the way The Court has been4
handling these, I would move these into evidence as, as5
the witness reports.6
MR. WOODWARD: I, I know were pretty7
flexible in this particular area here, Your Honor, but8
just to say well, this is my report and it expresses my9
opinion and therefore its admissible in evidence, I10
dont think that's enough foundation. Thank you.11
Objection.12
THE COURT: Are you -- yeah.13
MR. EISDORFER: I'm gonna --14
THE COURT: Are you gonna testify about that?15
MR. EISDORFER: I'm gonna have him testify to16
everything.17
THE COURT: So why dont we do that first?18
MR. EISDORFER: Okay, okay.19
THE COURT: And then maybe Mr. Woodward will20
not have an objection at that time.21
MR. EISDORFER: Your Honor, I'm, I'm happy to22
handle this anyway The Court want, wants to handle it.23
THE COURT: Why dont we do it that way then24
maybe Mr. Woodward will not object.25
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(Tape 184-10 ends; tape 185-10 begins.)1
BY MR. EISDORFER:2
Q Mr. Kinsey, Dr. Kinsey in, in your work3
evaluating affordable housing projects, do you have an4
opinion as to what the appropriate criteria for5
evaluating the site suitability and affordable housing6
project is?7
A Yes.8
Q And, and how have you, how have you come to,9
to formulate such an opinion?10
A By first reading Mount Laurel Two in January,11
1983, second, serving as a Special Master in Montgomery12
Township and simultaneously or shortly thereafter13
beginning serving as a Master in Denville Township in14
the summer, I guess beginning in January, 1985 when as,15
in my first two assignments as Master a key issue is16
site suitability. And a number of Masters were working17
to develop appropriate site suitability criteria18
derived from a starting point of the standards the19
Supreme Court spelled out in Mount Laurel Two. Then as20
the Fair Housing Act was enacted in the summer of 8521
and then the counsel on affordable housing began its22
work, it eventually adopted a standard that cites for23
first the term was inclusionary development and then in24
more recent rules it said inclusionary development and25
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affordable housing developments must be approvable,1
developable, suitable and available and COAH rules2
defined each of those four terms. And what I had begun3
doing in 1985 and continued to refine to the present4
day is a check list of various site suitability5
criteria based on the COAH standards of approvable,6
developable, suitable and available plus an additional7
standard COAH adopted which is that such projects and8
sites should be consistent with the New Jersey State9
Development and Redevelopment Plan.10
Q And, and have you written those, tho, those11
criteria down?12
A Yes.13
Q And are, are they, are they shown in, in P-3314
in your site suitability report?15
A Yes, they are in exhibit, Exhibit F to my July,16
2009 certification.17
MR. EISDORFER: Your Honor, for everybodys18
convenience we, we have blown up Exhibit F so we can19
all follow along.20
BY MR. EISDORFER:21
Q Dr. Kinsey, I just put up a board. Is that22
identical to, to Exhibit F?23
A It is.24
Q Now in developing criteria, what's the25
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relationship between the criteria that youve developed1
and what we, what, what criteria might be used by a2
planning board?3
A They are very different. A planning board is4
evaluating fundamentally whether they, an application5
complies with the appropriate municipal land use6
ordinances, whether it complies with the zoning7
ordinance, site plan ordinance and typically a sub-8
division ordinance all as applicable to a particular9
development proposal. These are criteria that10
articulate, in my opinion in some specificity, a11
standard the Supreme Court established in 1983 for the12
review of projects proposed by builder plaintiffs and a13
municipality challenged such a site and project.14
Q Now in, are these the criteria that you have15
used in evaluating the concept plan that we've marked16
as P-63A?17
A Yes.18
Q What, what information are, are you relying19
on?20
A I have first relied upon the concept plan itself21
but the site plan has lost the sections. I've also22
reviewed I guess many of the documents that I've heard23
introduced in, in, into evidence by the, by the24
plaintiffs and through the plaintiffs engineer. For25
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example, I reviewed his site investigation report. I1
reviewed his sewer report. I reviewed his flood hazard2
area studies and, and maps. I also reviewed3
municipally prepared information, various housing4
elements and fair share plans, areas I guess master5
plans. I revisit draft of the land use element, other6
such documents prepared by the Township of Cranford or,7
and its planning consultants.8
Q In, in, in expressing your opinion today, is9
your opinion also informed by the testimony youve10
heard over the past two days?11
A Yes.12
Q Now what do you understand, based on your13
review, to be the proposed, the use of this site?14
A The proposal is to develop an inclusionary15
development, one that includes market rate housing and16
housing affordable to low and moderate income17
households and indeed housing restricted to low and18
moderate income houses for a total of I believe its19
419 units together with associated at-grade surface20
parking plus two parking structures, one as a podium21
for Building A, a second as a freestanding parking deck22
structure plus whatever else is necessary for the23
improvement of the site in terms of on-site utilities,24
drainage facilities, re-grading flood storage, all that25
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turns out to be kind of necessary and appropriate as1
the design process continues and engineer drawing are2
prepared.3
Q Now did the, is, is the use for which you,4
you evaluated the site, is that the same use that's5
shown in P-63A and P-64A?6
A Yes.7
Q And have you reviewed prior iterations of8
these plans as well?9
A Yes.10
Q Now Dr. Kinsey what I'm gonna do is I'm gonna11
essentially what I'm gonna do is, is take you down to12
your criteria and ask you to, to explain what, what13
your analysis of this site is under each, each of these14
criteria.15
The first criteria is control of the site.16
Is that correct?17
A Yes.18
Q And, and --19
THE COURT: You're talking about Exhibit F20
now?21
MR. EISDORFER: I'm looking at Exhibit F.22
Were gonna, were gonna walk our way down Exhibit F.23
THE COURT: Okay.24
MR. EISDORFER: I'm gonna ask him the next25
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question.1
BY MR. EISDORFER:2
Q Dr. Kinsey, can you explain to us what you,3
what, what, what first criteria means?4
A The first criteria is more than simple control of5
a site. Its cl, a site has clear title and is free6
of any encumbrances that would preclude the development7
of affordable housing so that its free of any deed8
restrictions or some other factor that might preclude9
such housing. And to satisfy myself that this criteria10
is met, I consulted with my client hence, particularly11
its general counsel who was aware of title searches12
and deeds and of that type of research having done the13
transaction and I was advised that a site, that type --14
COUNSEL: Objection, hearsay.15
THE COURT: Okay, yeah.16
MR. EISDORFER: Your Honor, is -- I'm sorry.17
BY MR. EISDORFER:18
Q Dr. Kinsey, is this the type of, of19
information that planners typically use in, in, in20
making these type of evaluations?21
A Yes.22
Q So what was the, what was the, what was the23
source of, of your information?24
A The general counsel of the S. Keenan (phonetic)25
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Group.1
Q So do you have an opinion as to, based on2
that information, as to whether the, the site satisfies3
that criteria?4
A Yes. I believe it does satisfy that criteria.5
Q What's the second criteria?6
A The second criteria, Your Honor, is whether the7
site is adjacent to compatible land uses.8
Q Now in, in your report you have the, you have9
Exhibit B. Can you tell us what Exhibit B is?10
A Exhibit B is an aerial image of this site which I11
took from Google Earth. It shows the site and the12
surrounding area extends to the Garden State Parkway13
and the southeast.14
Q Now can, can you walk us around Exhibit B and15
explain what, what the adjacent uses are?16
A Yes. Immediately across Birchwood Avenue to the17
north is the parking lot and then the office building18
occupied by Ver, by Verizon.19
Q Hold on just a moment.20
MR. EISDORFER: Judge, do, do you have this?21
THE COURT: What, yeah, where is Exhibit B?22
I'm looking at Exhibit E which are the criteria -- oh,23
okay.24
MR. EISDORFER: P, P, P-33, Exhibit B, the25
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next page.1
THE COURT: Okay.2
MR. EISDORFER: The next page.3
THE COURT: Thank you. Thank you.4
THE WITNESS: The site is outlined in white5
with a black dotted line and the north is to the top of6
the page.7
BY MR. EISDORFER:8
Q Okay. So would you first, first of all,9
point out the, the existing uses on, on, on the site?10
A The existing uses are the two office buildings;11
one to the, on the eastern side with a large parking12
lot that's visible and then a smaller one more to the13
north of west corner.14
Q Now if you, if you while using this as an15
aid, can you walk us around and describe the, the, the16
adjacent uses?17
A Yes. Your Honor, to the north is the parking lot18
and Verizon office building. To the west or left is a19
small office building. I believe a contractor occupies20
that small building. To the, further to the west and21
southwest, one sees the, a row of single family22
detached houses along Wadsworth Terrace. To the23
southeast or right of the site is the Cranford Extended24
Care Facility which I believe is a subacute care25
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extended care and assisted living facility. And then1
finally to the northeast across Birchwood Avenue is the2
townships composting recycling facility.3
Q Now in, in, in evaluating, in evaluating the4
compatibility, what did you look at?5
A Well, first I defined the term compatibility and I6
find that to be very important. COAH rules do not7
define the term compatible uses but the Department of8
Environmental Protection does have a rule that defines9
compatible, compatibility of uses which is defined as10
the ability for uses to exist together without11
aesthetic or functional conflicts. So then my inquiry12
is to examine whether there are any aesthetic or13
functional conflicts between this proposed residential14
use and the existing diverse collection of land uses15
that surround the site.16
Q You know, so, so what, what, what potential17
conflicts did, did you identify?18
A Well, first lets take the, the, the functional19
conflicts. I first considered well, how will this20
residential complex function? Residents will come to21
this complex by automobile, shuttle bus if provided by22
the developer as proposed, some by bicycle and probably23
some as pedestrians. Theyll be using Birchwood24
Avenue. Theyll be using its sidewalk. There are25
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likely to be some trucks making deliveries and pick1
ups. They will use the driveways to Birchwood Avenue.2
And then I examined and considered that these movements3
of people and vehicles are not likely to conflict with4
the existing mix of uses, the nursing home, office5
building, composting facility that also use the same6
Birchwood Avenue and sidewalk.7
In addition to these movements, therell be8
sounds but the sounds from the proposed new residential9
complex are not likely to be intense or, or adverse in10
my opinion and will not adversely affect the adjacent11
land uses. Sometimes often planners consider other12
possible impacts of, of a development upon areas off13
site that might be traffic, wastewater and, and14
flooding that might affect adversely adjacent uses and15
those are considered under other criteria on Exhibit F.16
And I ultimately concluded in terms of functioning that17
this residential complex, Your Honor, will not18
adversely affect the functioning of the adjacent uses19
and, and vice versa. And they will be able to continue20
to function in an unimpaired manner by the replacement21
of the existing office uses with a residential land use22
at this site. And then my next inquiry is the23
aesthetic question.24
What is proposed here are four and five story25
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residential buildings and in my opinion, they will not1
create any aesthetic conflict with the adjacent,2
existing adjacent land uses. And I base that opinion3
on an analysis of the section drawing which is one of4
the exhibits. I'm not sure what exhibit number that5
is.6
Q P-64A.7
A P-64A. That helps me to understand first the8
height of the trees that are along the eastern edge of9
the property and I can compare those trees to the10
heights of the proposed buildings and I'm aware, having11
walked along the site and taking photographs along that12
eastern edge, of the height and scale and mass of the13
Extended Care Facility to the east and it is lower,14
most of its one story, a portion of its two story, but15
it is essentially well screened by the tall, mature16
trees. Yes, they are deciduous but they are certainly17
green and leafy for much of the year and indeed there18
are trees that are of different heights along that,19
that edge. And so that provides a helpful buffer along20
that eastern edge.21
And then much of the property itself to the22
south is wooded and that provides a area of perhaps23
about 150 feet of buffer between what will be the24
developed portions of the site and the existing houses25
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on Wadsworth Terrace so there is another important1
buffer; its woods and wetlands that provide the buffer.2
Q Do you know how wide that buffer is?3
A Its about, maybe its about 150 to 200 feet, 2504
feet in depth so it, its significant.5
There's also the, the small office building6
to the west across the, the small creek and it too will7
be located probably, maybe its 200 feet from the8
proposed Building A, its probably more than 200 feet9
from the proposed Building A so again there too10
there's, there's a buffer. And in terms of the Verizon11
building across the street I see no conflict, no12
aesthetic conflict there. Its, its far across the13
street and similarly where the townships property14
which has woods directly across the site and then the15
entrance to the composting recycling facility, I see no16
aesthetic conflict of, from that vantage point either.17
So in my opinion, I, I include, I conclude that there's18
no aesthetic conflict between the low rise and the19
nursing home and the proposed adjacent mid-rise20
apartment building or from any of the other adjacent21
existing land uses.22
Q Now you indicated in your testimony that you,23
that you took some photographs as part of your24
evaluation.25
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A Yes. They're included in as Exhibits H and I of1
my certification of July, 2009. And then Exhibit J,2
Your Honor, is a copy of the site survey of the3
existing conditions of the site on which I've drawn in4
green the view shed that what, in other words, what one5
sees when one stands at the apex of that V shape as one6
looks at the sites. So Exhibit H is the view from7
standing at the entrance to the existing driveway8
looking essentially to the southeast. One sees the9
mature vegetation on the left and a full run of that10
vegetation down to the woods to the, what is called the11
back of the site.12
And then Exhibit I is taken from standing in13
the southeastern corner of the existing parking lot and14
looking back towards the office building and the15
driveway where the first photograph was taken. Here16
too one can see the mature vegetation that this, the17
engineer surveyed as rising to up to 79 feet. As you18
can see, the vegetation is still in. Its not just a19
tall canopy. There are deciduous trees of different20
heights and dimensions providing a leafy border much of21
the full run of, of this eastern edge of the property.22
Q Now are the Exhibits H and I, are those23
photographs that you took?24
A Yes. They taken as indicated on the exhibits on25
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July 15, 2009.1
Q And do these photographs accurately represent2
what you saw at, at, at that time?3
A Yes.4
Q And does, does, does Exhibit J actually por,5
accurately portray where you stood when, on the site6
where, when you took those photographs?7
A Yes.8
Q And, and the Vs that open out, that shows the9
direction in which you faced?10
A It shows the direction and my best approximation,11
Your Honor, of the extent of what one can see in the12
photograph.13
Q Now what was your third criteria?14
A The third criterion is access to appropriate15
streets.16
Q And what, what, what is, what, what do you17
mean by that?18
A This is the language verbatim I believe from the19
COAH rule and I interpret this to mean that the site20
physically adjoins an appropriate street or there can21
be an easement through whatever property necessary of22
the appropriate width to provide direct physical access23
to appropriate streets.24
In this case, the site has about 825 feet of25
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frontage on Birchwood Avenue which is a fairly wide1
street. I believe its 36 feet wide and that's wide2
enough, Your Honor, for two lanes of travel plus two,3
plus parking on both sides. This site is located about4
halfway between two intersections with Birchwood5
Avenue. One is Orange Avenue which is something6
planners or traffic engineers would classify as a minor7
arterial and that's to the northwest. And then there's8
Cranford Avenue to the local street which is to the9
southeast.10
Q Now can you, can you show us on, on P-30, P-,11
P-63A, can you step down and point out to us where the12
ingress/digress on to Birchwood Avenue is?13
A Your Honor, the concept plan proposes14
ingress/digress in two locations. One, between15
Buildings A and B at the center of the sites, 325 foot16
frontage and the second is along, very close to the17
eastern edge of the property, close to the Extended18
Care Facility site.19
Q Thank you. Now in, in connection with your,20
in, in connection with making your evaluation, did you21
do a traffic study?22
A I did not do a detailed traffic study. I did23
visit the site and considered the traffic that, that I24
observed.25
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Q Why not do a traffic study at this point?1
A I'm, first I'm not a traffic engineer and2
secondly, Your Honor, this is something that is3
typically done in my experience before a planning board4
where there's a site plan application and a developer5
will often do a, a traffic impact study particularly if6
there's an intersection nearby as is the case here with7
the Orange Avenue intersection. And the traffic study8
will analyze how well that intersection functions in9
terms of traffic standards and if its found to be10
needing improvements, those improvements are typically11
then proposed and then under the Municipal Land Use12
Law, the developer is required as a condition of13
approval to make its pro rata share to, to pay for its14
pro rata share of the cost of improvements as necessary15
to that intersection.16
Q Typically are, are, are, do planning boards17
turn down projects because of, because of off-site18
traffic?19
MR. WOODWARD: Objection, leading.20
BY MR. EISDORFER:21
Q To what extent can or do pl, planning boards22
turn, turn down projects because of off-site traffic23
condition?24
A I'm not aware of many cases where a planning board25
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has rejected an application solely because of off-site1
traffic considerations.2
Q So do you have an opinion as to whether this,3
this project has, has adequate road access?4
A Yes. Your Honor, I, I conclude that this site5
complies with the COAH criterion on access to6
appropriate streets.7
Q What was your, what, what is your fourth8
criteria?9
A The fourth criterion is access, is adequate sewer10
capacity. That is to say that there's adequate waste11
water, conveyance and treatment capacity available to12
the site to connect to whatever the appropriate system13
is. And in this case there is a township owned14
conveyance system and a regional treatment system and15
here I've heard and rely upon the, Mr. Dipple, the, the16
plaintiffs engineers analysis, modeling and17
determinations that the existing sewers will function18
properly with the anticipated peak, waste water flow19
and that furthermore that treatment capacity is more20
than available at the Rahway Valley Surge Authority21
Treatment Facility. So therefore its, I conclude that22
this project, this site complies with the COAH23
criterion on sewer capacity.24
Q What is your, what is your fifth criteria?25
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A The fifth criterion, Your Honor, is adequate water1
capacity again to assure that there's adequate protable2
water available to the site from appropriate sources.3
And here too I've had the benefit of the engineers4
research and analysis. There is a utility, New Jersey5
American Water Company which owns and operates a water6
main in Birchwood Avenue. The site has proximity to an7
adequate supply. I understand from the engineers8
report that a hydrant flow test may be appropriate and9
that typically again takes place at the site plan stage10
to establish whether the flow rate is adequate and11
there's adequate pressure and if not, the engineer12
advised that there could be a booster pump provided13
inside the residential development and, and that's14
normal and something again typically happens in the15
site plan application process. And so I conclude that16
the site can comply with a COAH criterion on adequate17
water capacity.18
Q What is your next criteria?19
A The next criterion is again this is the COAH20
language that the project is and site are developable21
under the residential site improvement standards often22
referred to as RSIS or R-S-I-S which are the, as23
determined indicates the site improvement standard24
established on a uniform basis statewide by state law25
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with rules adopted by the Department of Community1
Affairs and the concern and requirement is that these2
rules be met as applicable and essentially they apply3
to five major site improvement aspects of residential4
developments.5
First streets, second water supply, third,6
sanitary sewers, fourth, storm water management and7
fifth, parking.8
Q Before you, before you proceed to finalize9
each of those, let me ask you that, that are you, are10
you familiar with, with the, the RSIS standards?11
A Yes.12
Q And how are they formulated?13
A They are formulated using a starting point of a14
research project performed for the State Department of15
Community Affairs by the Rutgers University Center for16
Urban Policy Research which spent a number of years17
with the assistance of practicing engineers, planners,18
I believe municipal attorneys and planning board19
attorneys in developing what would be considered the20
best practices and most appropriate practices for New21
Jersey residential development. That research report22
then became the starting point for the rule making once23
the municipal land use law was amended by the adoption24
of the, the statute that authorized and required the25
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residential site improvement standards.1
Q Now is your understanding these standards2
apply uniformly throughout the state?3
A Yes.4
Q Now are, are municipalities permitted to5
impose more, stricter standards, higher standards?6
A No.7
Q Can they accept something less, less than the8
RS system, RSIS standards?9
A Yes, Your Honor. There are, there are waiver10
provisions and special area standard provisions and11
other provisions recognizing that local conditions may12
make some modification from the standard to be13
appropriate in a specific site.14
Q At this point, is it possi, possible to do a15
full evaluation of compliance of this project with the16
RSIS?17
A No, because the, the site has not been engineered.18
Q Where, where, where would that evaluation19
typically take place?20
A Again, its something that's reviewed at the site21
plan or subdivision plan stage before the municipal22
planning board.23
Q What kind of evaluation can you do at this24
point?25
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A I can address each of the five criteria in1
different levels of detail.2
Q Will you be able to formulate opinions as to,3
as to, as whether, whether its feasible to meet the4
RSIS?5
A Yes, consistent with practice under COAH rules in6
evaluating the compliance of sites and projects with7
this COAH rule.8
Q The, the first item you listed was streets.9
How, how do you evaluate, how do you evaluate the site10
in terms of RSIS criteria concerning streets?11
A The simple answer, it doesnt apply because here12
the developer is not proposing any streets only13
driveways so the RSIS does not apply.14
Q Does, does the RSIS govern usage of Birchwood15
Avenue?16
A No.17
Q Your second, your second, your second item18
was sanitary sewers.19
A Yes.20
Q How did, how do you analyze the, the site on21
the sanitary sewer service to the site under the RSIS?22
A Here, Your Honor, RSIS basically has engineering23
design standards and that is something that will happen24
later on in the process. The engineer will be25
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responsible that and I'm confident that he will design1
the sewers and on-site sewers to comply with these2
standards. Also as I explained earlier, the site has3
adequate sewer capacity so that's an important part of4
the RSIS standard that is met.5
Q The third item was water supply.6
A And, Your Honor, water supply is a similar7
analysis and, and opinion. Here too its the engineer8
who will be designing the, the pipes and whatever is9
necessary in terms of pumps for, for, for water flow10
and pressure but that has not happened yet. Thatll11
happen in the normal course of events at the site plan12
stage. As I've testified, there's adequate water13
capacity at this site and so in my opinion it complies14
with this RSIS criteria as well.15
Q Your fourth, your fourth system you indicated16
was, was governed by RSIS was storm water management.17
A Yes. And, and here too the detail storm water18
management plan for this site has not yet been19
engineered but it will be at the appropriate time. And20
I heard Mr. Dipples testimony on this point in the21
various approaches that he is contemplating to address22
the standards which are a combination of the RSIS23
standards which then embody the applicable standards24
from NJDET. So here too its my opinion that the site25
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can comply with RAS (sic), RSIS as to storm water1
management.2
Q The last system you, you, you had on your3
list was parking. Now how, how do you, how do you4
determine compliance with, with RSIS for parking?5
A The first step, Your Honor, is to calculate the6
requirements.7
(The Judge sneezes.)8
DEFENDANT'S ATTORNEY: Bless you.9
THE COURT: Excuse me.10
THE WITNESS: RSIS specifies different11
parking standard for different bedroom types and12
housing types. And so one must first classify the13
proposed residential development and then calculate the14
number of parking spaces required based on the bedroom15
mix. That I have done in a chart that's in my16
certification which was based on of the concept plan at17
some point before July of 2009.18
I have also prepared a handwritten chart19
based on the concept plan that's before The Court and20
the answer is the same that under RSIS, the bottom line21
is the same. RSIS would require a total of 811 parking22
spaces for the configuration of 419 units that are23
proposed in the July 30, 2010 concept plan. And I'm24
aware of the number of parking spaces that are provided25
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in this plan which I believe is 673 and that's a1
deficit of 138 spaces from the RSIS standard.2
BY MR. EISDORFER:3
Q Now the, in general what, what are, what are4
the R, RSIS -- well, in general, if one did the5
calculation, what ratio would the, would RSIS require6
of parking spaces to dwelling units in this project?7
A Your Honor, it would require a 1.9 parking spaces8
per dwelling unit. That's because its not a round9
number of two because for a one-bedroom unit RS (sic) a10
one-bedroom unit in a mid-rise structure which is how11
this project is classified, RSIS would require 1.812
spaces per unit. And then for a two-bedroom unit it13
would require two spaces per unit. And in a three-14
bedroom unit it would require 2.1 spaces. And these15
ratios include both residents as well as their16
visitors.17
THE COURT: Is there a chart for me to see18
what you're looking at?19
MR. EISDORFER: Yes.20
THE WITNESS: Yeah, I, I have a chart.21
MR. EISDORFER: Your Honor, there, there is a22
chart in the report at paragraph 26.23
THE WITNESS: Page nine of the July, 200924
certification.25
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THE COURT: Thank you.1
THE WITNESS: And this, Your Honor, is the2
chart that has the same bottom line of 811 required3
parking spaces, spaces provided and surplus or in this4
case deficit although the, the three lines above are5
slightly different because the number of one-bedroom,6
two-bedroom and three-bedroom units is slightly7
different in their current concept plan.8
BY MR. EISDORFER:9
Q Now that 1.9 ratio, is there, is, is there an10
actual data as to parking usage, parking utilization in11
(inaudible) structures?12
A Yes.13
Q And well, what is the source of that be?14
A Well, the Institute of Traffic, excuse me, the15
Institute of Transportation Engineers publishes such16
data on, on parking demand and has done at least I17
believe two additi, three additions of it that the18
tone is entitled Parking Generation.19
MR. EISDORFER: Your Honor, I'd like to mark20
this as P-30, P-30.21
BY MR. EISDORFER:22
Q Let me show you the document that we have23
marked as P-30 and ask you if you can identify that.24
A Yes. This is the --25
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MR. WOODWARD: Your Honor, I'm gonna object1
to that document. I dont know this has ever been2
produced before. If it has, I stand corrected.3
THE COURT: I'm sorry. If it --4
MR. WOODWARD: I dont think this document5
has ever been produced before.6
MR. EISDORFER: Your Honor, the, the, its,7
its P-30 and --8
MR. WOODWARD: I, I understand what --9
MR. EISDORFER: And its, and its made, and10
reference was made to it in his report and, and it was11
provided in response to your request for, for, for12
documents in connection with his deposition.13
MR. WOODWARD: If, if we got it, then I stand14
corrected. I just dont remember ever seeing it before15
and well have to check it and I will continue my16
objection if --17
THE COURT: I, I dont even think he offered18
it in evidence. He just showed it to the --19
MR. WOODWARD: Well, he's gonna have the20
witness testify from it and if we haven't seen it21
before then I think its inappropriate.22
THE COURT: Well, he says its in his report.23
MR. EISDORFER: Its --24
THE COURT: You want to just refer to where25
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it is in the report so that we can clear this up now?1
MR. EISDORFER: Sure.2
THE COURT: And you're sure it was produced3
in connection with his deposition?4
MR. EISDORFER: He was, he was deposed on it.5
MR. WOODWARD: But by the way, I'll check. I6
could be wrong.7
THE COURT: Okay. Why dont you just, so we8
dont leave it hanging out there for the record, why9
dont you just, if you could, Mr. Eisdorfer, clear it10
up for us.11
MR. EISDORFER: Okay.12
BY MR. EISDORFER:13
Q The, the, this -- Dr. Kinsey, would you take14
us to paragraph, paragraph 33 of, of your report?15
A Yes. This is my July, 2009 certification at pages16
10 and 11, paragraph 33. I have a sentence that says,17
The most recent nationwide research published by the18
Institute of Transportation Engineers reports an19
average peak parking period demand for low/mid-rise20
apartments (maximum of four stories) of 1.2 vehicles21
per dwelling unit. Then I have a footnote which is,22
Far fewer than the plaintiffs proposal at Cranford.23
And my footnote is to the document identified as P-3024
which is a Parking Generation book, third edition,25
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published by the Institution of Transportation1
Engineers. I have one correction, in my footnote I2
indicated its Institute of Traffic Engineers. Instead3
of traffic, it should be Transportation.4
Q There's a footnote 14 in, in your report?5
A Thats right. Footnote 14 of my certification of6
July, 2009.7
THE COURT: Okay. I assume you're8
withdrawing your objection, Mr. Woodward.9
MR. WOODWARD: At this point, I would --10
excuse me, Your Honor. At this point, I would have to11
go back and actually look in my files to find out12
whether this was ever produced before. At this point,13
I'm gonna reserve my right to object to the testimony,14
moved that it stricken if it wasnt produced.15
THE COURT: Okay.16
MR. WOODWARD: But in the meantime, in the17
meantime, you know, just to allow it to go forward. He18
can ask the questions but I reserve my right on that19
subject to my checking it.20
THE COURT: Very well.21
MR. WOODWARD: Thank you.22
THE COURT: Thank you.23
BY MR. EISDORFER:24
Q Dr. Kinsey, is, is, so is, is, is this25
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document you referred to for a source of information as1
to the national data on parking utilization in mid-rise2
apartments?3
A Yes.4
Q Is this, is this the type of, of, of5
information that planners and traffic engineers6
typically rely on for this purpose?7
A Yes.8
Q What's in, in, in the profession, what's the9
status of, of this document?10
A Highly revered and respected.11
Q Now what, what, what conclusions did you draw12
from this document?13
A Well, Your Honor, I find it interesting that this14
national data suggests that 1.2 vehicles per dwelling15
unit is the average peak parking demand presumably at 316
AM, 4 AM, 5 AM in the morning when everybody is at17
home. And that's far fewer than the 1.6 parking spaces18
per dwelling unit proposed by the plaintiff.19
Q Now are you familiar with the concept of cost20
increasing requirements and, and, under Mount Laurel?21
A Yes.22
Q Can you tell us what, what, what that term23
means?24
A Yes. Your Honor, one of the Supreme Courts25
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concerns in Mount Laurel Two was that it is important1
to satisfy municipal fair share housing obligations and2
particularly to make it realistically possible for the3
private sector to do that. Site improvement standards4
and other municipal requirements on development that5
had un-costs that are not necessary for public health6
and safety are viewed as cost generative and are7
prohibited under the Mount Laurel doctrine.8
Q Can, can, can park, excessive parking be, be9
a cost or increase in requirement?10
A Yes.11
Q Why is that?12
A Well, Your Honor, if one is required to build more13
parking than is reasonably likely to be used based on14
national standards and other credible studies, then15
that's a cost of X thousands of dollars per parking16
space that is not necessary and is therefore by17
definition cost generative and not related to public18
health and safety.19
Q Now in light of, of, of the national data, do20
you have any, do, is there any New Jersey data that21
corroborates in your opinion with the national data?22
A Yes, Your Honor. I became aware of my clients23
related projects in Englewood, New Jersey, the24
brownstones at Englewood South and the Sheffield at25
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Englewood South that I've heard testimony on in this1
court yesterday and today. These are both four story2
mid-rise structures. Neither has close convenient3
access to public transit. There is a bus line, New4
Jersey Transit line 166 that provides convenient5
service to New York City, just one hour to and from.6
Its on a bus stop that's a short distance, about a7
half mile east of these two complexes, half a mile east8
on Route 4 but its not an easy place to walk. And so9
its, its not pedestrian friendly.10
I asked my client for information on the11
number of parking spaces in these two complexes and12
particularly how many were used, what's the utilization13
rate for both the residents and, and visitors and14
found, and, and obtained that data and turned it into a15
table that's my Exhibit J to my July, 200916
certification, which I believe was previously17
introduced into evidence as a plaintiffs exhibit18
separately.19
Q Was that Exhibit J or Exhibit K?20
A Excuse me, exhibit K to my certification.21
MR. EISDORFER: Your Honor, Your Honor, this22
exhibit will be previously marked as P-25.23
BY MR. EISDORFER:24
Q And, and what conclusions do you draw from,25
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from the data on Exhibit K?1
A I was struck, Your Honor, that at the brownstones2
the occupied parking spaces amounted to 1.31 spaces per3
dwelling unit and at the Sheffield, the occupied spaces4
amounted to 1.37 spaces per unit which was a bit more5
than the national data reported by -- the average6
national data reported by the Institute of7
Transportation En, Engineers and still less than that8
proposed by the plaintiff at the Cranford site.9
Q Now based on, on the national data and the10
New Jersey data, were you able to form an opinion as to11
whether the 1.9 parking unit per, per, per dwelling is12
a cost increasing requirement for planning purposes?13
A Yes. And in my opinion, the 1.9 at this site14
given the bedroom mix and the likely clientele or15
residences would be a cost generative requirement.16
Q Now does the RSIS pro, pro, provide for17
alternative standards for parking?18
A Yes, it does explicitly.19
Q And what are the criteria for, for using20
alternative standards?21
A The term under RSIS is, Alternative parking22
standards and those may be sought if they, Better23
reflect local conditions and the RSIS enumerates four24
factors that may be evaluated.25
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The first is the household characteristics of1
the anticipated residents. In, in this case, the, the2
plaintiff anticipates that the market rate units will3
be admittedly luxury rental apartments that will be4
predominately rented to one or two person households5
most likely with very few children even with the 656
percent two-bedroom units.7
The plaintiff is proposing a greater8
percentage of one-bedroom units in Cranford compared to9
the experience in Englewood so the average household10
size maybe comparable or it might even be less. So the11
extent of motor vehicle ownership by these, these12
tenants particularly the market rate tenants is likely13
to be less than even the 1.6 parking spaces per unit.14
But I caution and this is just based on this one set of15
examples from Englewood, there's another extensive data16
base that planners typically use in New Jersey in17
examining these kind of demographic questions. Its18
called Who lives in New Jersey?19
It was commissioned by the New Jersey20
Department of Community Affairs and several other21
organizations. It too was prepared by Rutgers22
University Center for Urban Policy and Research. The23
principal author, the lead author is David Plisterkin24
(phonetic) but unfortunately this data does not analyze25
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persons per unit for three-bedroom units but rather1
kind of lumps them together with two and three so it2
can't really tease out and be more precise as to the3
likely household size in, in this facility. So that's4
the first one; household characteristics.5
Second is the availability of mass transit6
but here this is really not applicable, Your Honor,7
because no public transit is available close to the8
site. The, there is frequent New Jersey rail service9
in Cranford but that's about one and a half miles away10
by the closest pattern of streets that one could take11
by car, walking or bicycle. The third factor under12
RSIS is urban versus suburban location. On the13
continuum, I would make a urban/suburban rural and14
exurban. This site has a suburban location. Its15
really automobile dependent.16
And the fourth factor is what's called17
available off-site parking. The resources on Birchwood18
Avenue does have the capacity for about 32 parallel19
parking stalls along just the sites frontage. It has20
capacity on the other side of the street so off-site21
parking could be available particularly during the day22
for visitors, people pulling up to, to meet with23
someone who lives in this complex. Those are the, the24
first four factors. And I testified earlier to what I25
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think is the most important factor which is nationwide1
data and research on parking demand.2
Q Now based on, on your analysis of the3
alternative parking standard factors, in your opinion4
would, would use of an alternative parking standard be5
appropriate and, as to this project?6
A Yes. In my opinion, Your Honor, that an approp,7
the appropriate parking standard for this project at8
this site and its configuration, its location, its9
likely demographics is an alternative parking standard10
that respects the, the national data for this housing11
type and the developers experience, real world12
experience with the Englewoods projects.13
Q And approximately what would that be?14
A It -- the 1.6 spaces per unit would be an15
appropriate approach.16
Q Now have you given any consideration to, to,17
to how the, how the project might, might deal with if18
this turns out to be too low a number?19
A Yes. A concerted approach, Your Honor, would be20
to say 1.6 is appropriate but lets make sure and one21
could evaluate the actual parking usage in this22
apartment, these apartment buildings once they are23
fully rented up perhaps six months or a year of full24
occupancy and find out with real facts how much parking25
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is necessary and whether the provided parking is1
sufficient. And if its not, then there's some steps2
that could be taken.3
First, as I said earlier, residents could be4
encouraged to use, excuse me, visitors could be5
encouraged to park on adjacent Birchwood Avenue.6
People park on streets when visiting peoples home all7
the time.8
Second, as Mr. Hakim (phonetic) testified9
today, the developer could provide a convenient van10
shuttle between the site and the Cranford train station11
and perhaps other appropriate points in Downtown12
Cranford on a regular basis particularly during the13
peak morning and evening commuting hours. And third,14
as was also testified to today, third could be another15
level of parking structure added to the building, be a16
parking deck with the appropriate number of spaces17
based on the design of the structure. If its one half18
of a, of a level, that's perhaps 50 spaces. If its19
the full two levels or two halves, that's perhaps 10020
spaces. And if 100 spaces were added, that would21
increase the parking ratio as I calculate it to 1.8522
spaces per unit. So these options provide additional23
flexibility and, in my opinion, provide more24
justification for my conclusion that this project25
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should properly be analyzed using the RSIS alternate1
parking standards.2
Q To your knowledge, is, is on-street parking3
currently permitted on, on Birchwood Avenue in front4
of, of this site?5
A I believe it is. Yes.6
Q If it weren't, would that be an appropriate7
change in the, in the local regulations?8
A Yes, it would be appropriate.9
Q You're the -- in light of, of your testimony,10
do you have an opinion as to whether the, the site11
complies with the, the proposed concept complies with12
RSIS standards based upon the kind of evaluation you13
have described?14
A Yes. Your Honor, its my opinion that this15
proposed development can and will be designed to be16
compliant with RSIS and will meet this COAH criteria.17
Q Well, your next, your next criterion is18
compliance with regional, regional planning standards?19
A Yes. This is one of the easiest ones to address20
today because this one is not applicable. Cranford is21
not in the Meadowlands district. Its not in the22
Pinelands area. Its not in the Highlands region and23
its not in the coastal area under CATHRA so this24
criterion does not apply.25
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Q Your next criterion is --1
(Mr. Eisdorfer and his client speak amongst2
themselves.)3
BY MR. EISDORFER:4
Q Okay. So were, were up to, to item eight5
in Exhibit F. Describe to us what that, what that6
criterion is?7
A Yes. Your Honor, the next criterion is compliance8
with the New Jersey Freshwater Wetlands Protection Act.9
In particular, compliance with any wetlands and10
wetlands transition area constraints.11
Q And how did you evaluate this site based12
under that criterion?13
A First, I reviewed the letter of interpretation14
from DEP that confirmed the delineation of wetlands and15
resource value of the wetlands as identified by the16
plaintiffs engineer and environment consultants and I17
reviewed the associated map which DEP approved. Its18
one of the exhibits in evidence with two tones of, of19
green. A darker green for the wetlands area itself and20
then in certain areas adjacent to the intermediate21
resource value wetlands, there's a 50-foot wide22
wetlands transition area.23
Q I'm gonna show you the document we have24
marked as P-10C. Is this the wetlands document you're25
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referring to?1
A Yes, it is.2
Q Please proceed.3
A Yes. So that the, the area where the darkish,4
khaki wetland area and the cross action are the5
designated intermediate resource value wetlands and6
then 50 feet beyond them, is an area of a, of a bright7
green. That's the wetlands transition area.8
Then to the southeast corner of the site or9
the right of the, of the panel is a narrow ditch of10
wetlands designated as ordinary resource value11
wetlands. And then finally, the stream itself to the12
west side of the site is classified by DEP as state13
open waters.14
Q And, and how, in light of this information15
how did you assess the, the compliance with the16
proposed concept with the wetland standard?17
A My approach is to take the concept plan and18
compare it to the wetlands constraints, both the19
wetlands constraints and the wetlands transition area20
constraints. Some of those lines are shown as well on21
the concept plan and since this site plan respects by22
avoiding the wetlands area that assures compliance with23
that part of the criterion. And then for the wetlands24
transition areas, as I believe Mr. Dipple testified,25
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DEP rules allows for modifications of the wetlands1
transition area so that one can have a narrower than 502
foot transition area in some places. That's called the3
reduction provided there's a compensation area, an4
increase to larger than 50 feet somewhere else on the5
site. And then DEP as part of that regulatory process6
of granting a transition, what's called a transition7
area averaging waiver, DEP requires that that8
transition area be the subject of a conservation9
easement so that its quite firmly protected to serve10
that purpose for a very long time. And so I've11
reviewed the concept plan and find that it is designed12
in a manner that will comply with the requirements of13
the Freshwater Wetlands Protection Act and this COAH14
criterion.15
Q In looking at this, did you see an actual16
transition area averaging plan on this, on this site?17
A No. One has not yet been prepared and, and18
that's, that's understandable given this stage of the19
design development for this project.20
Q At what point would that be prepared?21
A That would be prepared as, -- when the engineering22
starts for the plan because then one of the23
considerations is where's the most appropriate place24
from a logical perspective as well as overall25
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improvement of the site for the compensation area1
that's gonna have a deed restriction.2
Q Your next category was Category One Waters.3
A Yes. That's, category -- the, the criterion is4
compliance with Category One Water Body constraints.5
Q What is, what is a Category One Water?6
A Category One Waters, Your Honor, is a very high7
quality classification DEP has assigned to certain8
water bodies in this state. The site is not within the9
watershed of any such waters and therefore this10
criterion does not apply.11
Q Your next criterion is, is compliance with12
flood water hazard constraints?13
A Yes.14
Q How did you assess this, this site on the15
basis of that criterion?16
A Here its the same inquiry as the wetlands17
analysis which is to review, in this case, the floodway18
delineation and flood fringe area delineation prepared19
by Mr. Dipple and to compare that with the conceptual20
site plan and review the sections, the conceptual21
sections that show opportunities for flood, flood22
storage as part of the structures and listening to Mr.23
Dipples testimony as a professional engineer who has24
interacted with DEP on flood hazard area questions has,25
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has obtained such permits for projects with1
characteristics similar to this one. All of that body2
of information leads me to conclude that this site can3
comply with the COAH criterion on flood hazard areas.4
Q And when you, when you, when you refer to5
the, the map of flood hazard, the flood hazard map6
showing floodway and the flood fringe, I'm putting up7
the board marked P-39A. Is that the document you're8
referring to?9
A Yes, it is.10
Q Your next criterion is, its steep slope11
constraints. Can you, can you describe what that's12
about?13
A This is another criterion taken straight from the14
DEP rules. It refers to areas of a site as mapped on15
the U.S. Geological Survey Typographic Quadrangles16
which are a scale of one inch equals 2000 feet and if17
the slopes are 15 percent or more, then that's18
considered a steep slope. There are no such areas on19
this generally very, very flat site. And, and even20
the, the ditch on the western side of the site would21
not qualify as a steep slope under the DE (sic), under22
the COAH criterion because it doesnt show up on the23
USGS maps as steep slopes.24
Q The, the next criterion is providing buffers25
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to historic resources.1
A Yes. Here the DE, the, excuse me, the COAH2
criterion is that appropriate buffers be provided for3
both sites and districts that are listed on the state4
or national registers of historic places. There are no5
such properties either on the site or adjacent or even6
near, in close proximity to the site and therefore this7
criterion does not apply.8
Q Your next criterion is consistency with the9
state development and redevelopment plan. Is that10
correct?11
A Yes.12
Q First of all, can you tell us what state13
development and redevelopment plan is?14
A Yes. Your Honor, in nine (sic), 18, 1985 or15
perhaps with an effective date of January 1, 86, the16
State Planning Act was enacted. It was the second law17
that was really an offspring of the Mount Laurel Two18
decision. It created a state planning commission which19
was charged, composed, composed of members of the20
governors cabinet, some ex, designated exaficio,21
others designated by the governor plus various public22
members in the various categories appointed by the23
governor, confirmed by the state senate.24
Its principal mandate was to prepare the25
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first state development and redevelopment plan for the1
state. The mandate to classify areas of the state and2
prepare appropriate policies for the state but not just3
for state government both the process of preparing the4
plan and its implementation were to involve various5
levels of government, state, county and municipal. In6
a sense, working towards vertical integration of7
planning as well as horizontal integration across state8
agencies.9
It took the state planning commission a10
number of years to develop the first state plan. Its11
a large document that has a one map in particular12
that's referred to as the policy map. Its the one13
that classifies the land areas of the state into five14
principal categories. First -- and they're all called15
planning areas one through five.16
One is the Metropolitan Planning Area. Two17
is the Suburban Planning Area. Three is the Fringe18
Planning Area. Four is the Rural Planning Area and19
five is the Environmentally Sensitive Planning Area.20
There's some refinements on the last two as well. And21
then there are specific goals, strategies, policies,22
objectives and rationales for each of those policy23
areas. After several years of implementation and in24
response to the statutory mandate to re-examine and25
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update the state plan, a second state plan was1
ultimately adopted in 2001 and that is the current2
state development and redevelopment plan that is in3
effect with its policy map depicted in typically in two4
fashions.5
One, there's a map the size of the, the state6
highway map that the Department of Transportation7
prepares and hands out for free. That's a scale of 1008
to 250,000 but the officials maps are the scale of inch9
equals 2,000 feet and those are prepared on the same10
base and grids as the U.S. Geological Surveys11
Topographic Quadrangle maps and that's the official12
state plan policy map for an area.13
Q Now did, did you examine the state policy14
plan map that encompasses Cranford Township?15
A Yes.16
Q And, and can you tell us what, what planning17
area this site is located in?18
A This site -- all of Cranford Township is in19
planning area one, the Metropolitan Planning Area.20
Q And what is the, what, what is the policy21
significance of, of designating an area as being within22
the Metropolitan Planning Area?23
A Let me answer in, in two ways. First, to read a24
policy statement that's included in the state plan for25
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this policy area, excuse me, for this planning area.1
It is that state policy in this area to quote, Provide2
a full range of housing choices through redevelopment,3
new construction, rehabilitation, adaptive reuse of4
residential buildings and the introduction of new5
housing into appropriate non-residential settings.6
That's at page 191 of the current state plan. That's7
paragraph 30, excuse me, 43 from my July, 20098
certification. So that's the broad statement of9
policy. And then there are other provisions in state10
agency rules that build upon the state plan and its11
planning area designations.12
One in particular concerns storm water13
management and the DEP rule that has differentiated the14
standards that must be met based on whether a site is15
in a planning area one or not.16
Q Do you recall what the, what the, the17
substantive differences in the NJDEP equal?18
A I believe the difference is that storm water19
management need not include water quality measures if20
the site is in planning area one and that's in part21
because planning area one is, is heavily developed22
already.23
Q Does that also affect infiltration measures?24
A It may.25
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Q Now were you able to assess whether, whether1
the proposed concept is consistent with the state2
development, redevelopment plan?3
A Yes. It is consistent with the planning area4
location as well as this broad statement of state5
policy.6
Q Okay. What's, what's you're next criteria?7
THE COURT: But before we get into that,8
maybe its a good time to break for the day.9
MR. EISDORFER: That would be fine.10
THE COURT: Before we get into the next11
criteria. Okay? So I guess were are we off the12
record? Are we off?13
(Off the record; on the record)14
15
* * *16
(Whereupon, proceedings of 8-3-10 concluded)17
* * *18
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CERTIFICATION1
I, Lynn Cohen-Moore, the assigned2
transcriber, do hereby certify that the foregoing3
transcript of proceedings in the matter of LEHIGH vs.4
TOWNSHIP OF CRANFORD, heard in the Union County5
Superior Court, Law Division, on August 3, 2010, Tape6
Number 184-10, Index Number 5555 to end, and Tape7
Number 185-10, Index Number 001 to 4920, is prepared in8
full compliance with the current Transcript Format for9
Judicial Proceedings and is a true and accurate non-10
compressed transcript of the proceedings as recorded.11
AUTOMATED TRANSCRIPTION SERVICES12
BY: Lynn Cohen-Moore __________________13
Lynn Cohen-Moore A.O.C. #36814
Dated: August 15, 201015