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___________________________

LEHIGH ACQUISITION CORP. v.TOWNSHIP OF CRANFORD, ET Al.

DKT NO. UNN-L-0140-08

CRANFORD DEVELOPMENTASSOCIATES, LLC, ET AL., V.TOWNSHIP OF CRANFORD, ET AL.DKT NO. UNN-L-003759-08

Implementation of sitespecific builder's remedy inthe form of application byCranford DevelopmentAssociates, LLC, et al. forpreliminary and final site

plan approval, 215-235Avenue, Cranford Township,NJ, Block 291, Lot 15.01 andBlock 292, Lot 2 and for anOrder Compelling Cranford toConsent to Plaintiff'sRegrading of a Portion ofBirchwood Avenue.

TRANSCRIPT OFPUBLIC HEARING

(DAY 5)

___________________________

BEFORE: DOUGLAS K. WOLFSON, ESQ.

Hearing OfficerDATE: August 23, 2012

TIME: 10:15 a.m.

PLACE: Union County CourthouseElizabeth, New Jersey

Reported by: Joanne L. Sekella, CCR

CRUZ & COMPANY, LLCCertified Court Reporters

436 Morris AvenueSpringfield, New Jersey 07081

Phone: (973) 467-4123 Fax: (973) 467-8822E-mail: [email protected]

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age 2 to 5 of 242 CRUZ & COMPANY, LLC

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A P P E A R A N C E S:

HILL WALLACK, LLP2 02 C ar neg ie C ent er D ri ve - S uit e 2 02Princeton, New Jersey 08543(609) 924-0808B y: S TEP HE N E IS DO RF ER , E SQ .Attorneys for Cranford Development Associates

FLORIO PERRUCCI STEINHARDT & FADER218 Route 17 NorthR och el le P ark , N ew J ers ey 0 76 62(201) 843-5858By: PHILIP J. MORIN, III, ESQ.Attorneys for Township of Cranford

A L S O P R E S E N T:

Elizabeth C. McKenzie, P.P., P.A.

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I N D E X

WITNESS NAME DIRECT CROSS REDIRECT RECROSS

RICHARD A. MARSDEN, JR.

BY: MR. EISDORFER 5 45,80,85

MR. MORIN 43,82

WITNESS NAME

THOMAS W. CREELMAN, P.E.

BY: MR. MORIN 87 96

MR. EISDORFER 94 98

WITNESS NAME

MICHAEL DIPPLE

BY: MR. EISDORFER 101

WITNESS NAME

LEONARD DOLAN

BY: MR. MORIN 104

B Y: M R. EI SD OR FE R 13 2

WITNESS NAME

CLAY EMERSON

BY: MR. EISDORFER 144

BY: MR. MORIN 169

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E X H I B I T S

NO. DESCRIPTION PAGE

A-26 Letter from Mr. Marsden addressed

to Engineering supervisor for UnionC oun ty , S tat e o f N ew Je rse yDepartment of EnvironmentalProtection dated January 3, 2012

13

A-27 Memorandum from Mr. Marsden datedAugust 2nd, 2012 addressed to ValdaOpara Review Engineering, NewJersey Department of Environmental

Protection entitled EngineeringDepartment Review of Preliminaryand Final Site Plan and Applicationfor Flood Hazard Area IndividualPermit, Cranford ResidentialDevelopment 215 and 235 BirchwoodAvenue

16

Sweeney-1 Photograph 49



Sweeney-4

Photograph 50


A-28 Site Review of the RiverfrontDevelopment

137

LaBrutto-1 Report of Incident/Complaint, threepages

205

LaBrutto-2 Portion of McKenzie Report , page 31 206

LaBrutto-3 Test Pit Test Log from August 2 3,

2011

206

LaBrutto-4 Photograph 207



5

M R . W O L F S O N : W e a re b a ck o n t h e1

r e c o r d .2

M r . E i s d o r f e r , I b e l ie v e y o u a r e a b o u t3

t o s t a r t c ro s s - e x a m i n a ti o n o f M r . M a r s d e n .4M R . E I S D O R F E R : I a m .5

M R . W O L F S O N : W h e r e w o u l d y o u lik e6

M r . M a r s d e n t o b e ?7

M R . E I S D O R F E R : W h a t e v e r i s c o n v e n ie n t8

f o r t h e C o u r t R e p o r t e r. I a m g o i n g to a s k h i m t o9

r e f e r t o h i s c h a r t s .10

M R . W O L F S O N : W e w i ll s t a rt w it h y o u11

o v e r b y th e m a p .12

M R . W O L F S O N : S e t , P h i l?13

M R . M O R I N : Y e s .14

M R . W O L F S O N : G o a h e a d .15

R I C H A R D A . M A R S D E N , J .R . , P . E ., h a v i n g16

b e e n p r e v i o u s l y d u l y s w o r n , t e s t i fi e d a s f o l lo w s :17

C R O S S - E X A M I N A T IO N B Y M R . E IS D O R F E R :18

M r . M a r s d e n , w o u l d y o u s t e p a w a y f r o m19 Q.

t h e m a p f o r a m o m e n t ? I t i s s o p r e tt y .20

W h e n d i d y o u d o t h a t m a p , th e o n e w e21

h a v e m a r k e d a s D - 1 5 ?22

A u g u s t 2 n d .23 A.

S o - -24 Q.

T w o w e e k s a g o , I b e l ie v e .25 A.

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Two weeks?1 Q.

Right, more than two weeks now.2 A.

And have you actually run the computer3 Q.

model to determine the location of the floodway4

boundary?5

No, I haven't.6 A.

Do you have the knowledge and training7 Q.

to run that model?8

I have run HEC-2 models. I have the9 A.knowledge and training to run HEC-2 models.10

Now, you have, you testified yesterday11 Q.

about split flows, and I see you have a split flow12

marked on your plan. What exactly is it? What13

split flow do you think that the applicant should14

have calculated?15

What split flow?16 A.

Yes.17 Q.

Well, I don't know the detail of the18 A.

modeling in the HEC-2. There is a whole section,19

and the Army Corps model, I believe it was actually20

introduced into the model in the '80's that had a21

section where you could utilize the model for split22

flow. There are about six methods. Three of them,23

I think method 3 through 6, tied into, wow, tied24

into encroachment sections you can't use, but you25

7

can determine by selecting different parameters, I1

don't know the detail, I haven't done it in a while,2

to run and split the flows by measuring.3

You were very, you were very exacting4 Q.yesterday. You said that their calculation was5

defective because they didn't split the flow. What6

flow should they have split?7

Well, the flow they should have split8 A.

was the flows that come down from the upper reaches9

that are, could be split in the model.10

Do I know the detail now? I haven't11

done it since mid-'80's.12

Well, I don't understand what you are13 Q.

talking about. What, what was supposed to be split?14

Split between what?15

Well, you have flow comes through to16 A.

the first cross-section that they have, station17

1668. Now, initially the water goes through between18

culverts. Eventually, the water spreads out and19

splits so that the overflow then turns and goes20

through the section that is in the Birchwood Avenue.21

So is it split between water that flows22 Q.

through the culvert and water that can't flow23

through the culvert?24

Is it split for water flows through25 A.

8

the culvert? Yes, there is a portion there that is1

determined, you can do it for a weir conveyance.2

I am not going to go to the detail3

anymore because I haven't done it in a while. I4

have utilized split flow analysis and the computer5

model recommends it at some point in the warning6

modes that were printed out.7

So, but you are confident that that is8 Q.

a defect in the applicant's analysis?9

Well, what I am confident in is that10 A.

the model print stated that there, recommended th11

split flow be considered and that additional cross12

sections be considered in that model.13

When I went back and looked at this14

picture that we created, I said, well, what happens15

between the entrance of that pipe and the exit to16

that pipe. There is no data. And I believe the17

model is representing that.18

Now, we have, we have an exhibit that,19 Q.

Defendant's Exhibit 6, let me show you Defendant's20

Exhibit 6. Is that a document you have seen?21

Yes.22 A.

And what is the date on that document?23 Q.

March 31, 2010.24 A.

And did you see it approximately that25 Q.

9

date?1

I don't recall.2 A.

Why don't you take a look at it and see3 Q.

if that refreshes your recollection.4Well, I don't recall when I would have5 A.

seen it, year, two years ago.6

This was a document you commented upon7 Q.

in your testimony.8

MR. MORIN: Objection.9

MR. WOLFSON: Just a moment.10

MR. MORIN: Mr. Marsden didn't, I11

don't believe he commented upon this document.12

MR. EISDORFER: He commented that the13

plaintiff's engineer changed his analysis based on14

Mr. Marsden's critique?15

MR. MORIN: But you misrepresent what16

was done yesterday. He was never showed this17

document yesterday, nor was it referred to in the18

direct examination.19

MR. EISDORFER: Okay, very good.20

Is this a document you referred to?21 Q.

MR. WOLFSON: So nice you worked it22

out between you two.23

No, at this point, I don't recall. I24 A.

see the date.25

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Is this the document in which1 Q.

Mr. Marsden, which Mr. Dipple said, "Yes, I have to2

do a flood hazard area analysis"?3

I mean, it says, "Pursuant to the4 A.

request of the special master, Ms. Elizabeth5

McKenzie, and your office...."6

Okay.7 Q.

Okay. And it is to S. Hekemian Group.8 A.

"...in conjunction with representatives9

of Princeton Hydro that..." basically it says,10

"...and Joe Skupien..." it says, "...Has performed11

a flood plain analysis of branch in the vicinity of12

the Cranford Development Associates Property in13

accordance with Method 6." I mean, that's --14

Do you recall seeing that before the15 Q.

trial?16

Did I recall seeing that --17 A.

MR. WOLFSON: The trial or this here?18

The trial, the trial, two years ago.19 Q.

Two years ago?20 A.

Yes.21 Q.

Well, I do recall, I do recall seeing22 A.

different information on that, yes. I will say yes23

because we did go through that, but...24

Okay, so let me show you the25 Q.

11

attachments to -- let me show you the first1

attachment to D-6.2

Yes.3 A.

Is that a document you have seen4 Q.before?5

Yes.6 A.

And does that show a flood, a floodway7 Q.

boundary?8

It does.9 A.

And let me show you, ask you to look at10 Q.

A-4, Sheet C-02. Is that the same floodway boundary11

shown on that map?12

It appears to be because it is13 A.

different maps. The lines look similar. Okay.14

And now you have seen A-6, the15 Q.engineering report?16

Yes, I have.17 A.

Let me show you the map, FS-1.18 Q.

MR. WOLFSON: F as in Frank, S as in19

Sam.20

FS-1 included in the engineering21 Q.

report. And is this a document you have seen?22

Yes.23 A.

Does this show the same floodway24 Q.

boundary?25

12

As this map here?1 A.

Yes.2 Q.

Yes.3 A.

And as D-6?4 Q.

Similar, yes.5 A.

And --6 Q.

MR. WOLFSON: You say similar because7

it is not drawn to scale.8

MR. MARSDEN: It is so small and it is9

2010.10

This, A-6 was filed with D.E.P. last11 Q.

December. Did you see it around last December?12

MR. WOLFSON: 2011.13

MR. MARSDEN: December 9, 2011, when14

it was filed.15

MR. MORIN: I'm sorry, we are16

referring to A-6?17

MR. EISDORFER: A-6.18

MR. MORIN: I believe A-6 is the June.19

MR. MARSDEN: And it has three dates.20

The engineering report has initial date of21

December 9, 2011, a revised date of February 7,22

2012, and a second revised date of June 4, 2012.23

MR. WOLFSON: The question is did you24

see A-6 or one version of it, I suppose, on or about25

13

December of 2011, if you remember?1

MR. MARSDEN: I don't remember because2

information comes in.3

MR. WOLFSON: Okay.4MR. MARSDEN: I don't remember.5

MR. WOLFSON: Go ahead.6

Okay. Did you do a submission to7 Q.

D.E.P. in response to this report?8

At that point, no, I don't believe we9 A.

did.10

MR. EISDORFER: Let's mark this as,11

where am I now, A-26, I believe.12

(Exhibit A-26, Letter from Mr. Marsden13

addressed to Engineering supervisor for Union14

County, State of New Jersey Department of15Environmental Protection dated January 3, 2012, is16

marked for identification.)17

Let me show you a document we marked as18 Q.

A-26 and ask you if you have seen that document?19

MR. WOLFSON: Just for my records,20

what is it, Steve?21

MR. EISDORFER: This is a letter from22

Mr. Marsden addressed to engineering supervisor for23

Union County, State of New Jersey Department of24

Environmental Protection dated January 3, 2012.25

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MR. WOLFSON: From Mr. Marsden to1

D.E.P. dated 1/3/12. Got it.2

Okay, yes, I take that back. I did3 A.

actually send a letter, not through here, but to4

D.E.P. That's correct.5

And was that a letter in response to6 Q.

A-6?7

Well, it is entitled "Quick overview8 A.

of application and request for review extension."9

So it was in response to the10 Q.

application?11

Correct.12 A.

And the application included a map13 Q.

showing the floodway?14

That is correct.15 A.

And it had the same line that is shown16 Q.

in FS-1?17

That's correct.18 A.

Did you do any other submissions to19 Q.

D.E.P.?20

Later I did, yes.21 A.

When?22 Q.

Well, may I look at this submission23 A.

here for a little bit?24

I will ask you more questions later on,25 Q.

15

but right now the question is did you do any1

subsequent, did you do any subsequent submissions?2

I have done subsequent submissions.3 A.

When did you do your subsequent4 Q.submissions?5

Just recently, I believe.6 A.

MR. WOLFSON: Nothing between that and7

just recently?8

August 2nd.9 A.

Do you have a copy?10 Q.

MR. WOLFSON: This year?11

MR. MARSDEN: Yes.12

Do you have a copy?13 Q.

MR. WOLFSON: Mr. Marsden, nothing14

between those two dates?15

MR. MARSDEN: I don't believe so16

because the time and what we are going to review.17

My January 3rd letter, by the way, is18

just --19

MR. EISDORFER: Your Honor, there is no20

question pending.21

MR. WOLFSON: No question pending.22

Okay, just a copy of the summary of23 A.

prior testimony, no detailed review.24

MR. EISDORFER: Your Honor, I would25

16

like to mark this as A-27.1

MS. MCKENZIE: What is A-27?2

MR. EISDORFER: A-27 is a memorandum3

from Mr. Marsden dated August 2nd, 2012, addressed4

to Valda Opara Review Engineering, New Jersey5

Department of Environmental Protection. It is6

entitled Engineering Department Review of7

Preliminary and Final Site Plan and Application for8

Flood Hazard Area Individual Permit, Cranford9

Residential Development 215 and 235 Birchwood10

Avenue.11

(Exhibit A-27, Memorandum from12

Mr. Marsden dated August 2nd, 2012 addressed to13

Valda Opara Review Engineering, New Jersey14

Department of Environmental Protection entitled15

Engineering Department Review of Preliminary and16

Final Site Plan and Application for Flood Hazard17

Area Individual Permit, Cranford Residential18

Development 215 and 235 Birchwood Avenue, is marke19

for identification.)20

Now, during the course of the trial in21 Q.

August of 2011, you requested hydraulic and22

hydrologic data to enable you to review the flood23

storage documents prepared by Mr. Dipple. Do you24

recall that?25

17

I recall, I believe I did.1 A.

And you had a meeting with Ms. McKenzie2 Q.

and Mr. Dipple and you agreed on what information he3

should provide?4Well, the detail of what we requested5 A.

did not pertain to the number of sections in the6

methodology.7

I didn't ask you that.8 Q.

But you asked the detail be provided.9 A.

But you --10 Q.

We asked for the floodway and the11 A.

stream encroachment limits be determined and th12

hundred year floodway be determined by then. I 13

trying to recall it, but would I provide detail of14

what I looked at now, no, I wouldn't.15

No, all I am asking is did you ask for16 Q.

information then?17

Yes, we asked for information.18 A.

And that --19 Q.

So showing where the flood plain wou20 A.

be.21

And that information was provided?22 Q.

Yes, it was.23 A.

And there is, A-6 itself, the24 Q.

engineering report itself has hydrologic and25

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hydraulic data for calculation to support the1

calculations, does it not?2

It does.3 A.

And you have your own topographic4 Q.

information. Isn't that correct?5

Yes, we do.6 A.

In fact, you went on the site and did7 Q.

measurements, didn't you?8

We went on the site and measured9 A.relationship through flood debris elevation and its10

relationship to the site at one point.11

So, but with all that, you have never12 Q.

run, you, yourself have never run a model that would13

show where the boundary of the flood plain is?14

Well, as municipal engineer, we15 A.

usually consult out for the, and we did here, the16

review of this type of detail. I was not privy at17

that time to look at it because I was relying upon18

the Department of Environmental Protection and my19

consultant.20

So you can't tell us at this point,21 Q.

based on your own calculations, where the boundary22

of the flood, the floodway ought to be?23

And I never said I did.24 A.

Now, is, at the trial -- yesterday you25 Q.

19

made reference to certain, in connection with your1

analysis of the flood storage, you made reference to2

certain, quote, gate valves?3

Correct.4 A.Those were gate valves you testified to5 Q.

at trial?6

Correct.7 A.

And those are gate valves that are8 Q.

located at the end of the parking lot?9

Yes.10 A.

Are those gate valves currently11 Q.

operational?12

No.13 A.

Are they broken?14 Q.

One is definitely broken. It is bent15 A.probably through snowplowing in the past, but it is16

broken.17

And is the other one operational?18 Q.

I don't know. I didn't turn them or19 A.

check them to see if they were half opened or20

closed.21

Now, do you recall Mr. Dipple22 Q.

testifying at the trial that in their current state23

they were fully open?24

That I don't recall.25 A.

20

So you, yourself, don't know what their1 Q.

current state is?2

I just explained their current state,3 A.

and I don't know whether that one valve is open or4

closed.5

Uh-huh. So you have no information on6 Q.

your own on that?7

No, do you have any information of --8

how long have you been engineer in Cranford?9

Eight years.10 A.

Do you have any information of --11 Q.

during those eight years were you on the site prior12

to, prior to the trial in this case?13

I had been.14 A.

You were on the site in 2007?15 Q.

Yes.16 A.

Well, did, was that gate valve, did you17 Q.

see that gate valve at that time?18

No.19 A.

Do you have any information that would20 Q.

indicate that the gate valve was in a different21

condition --22

No.23 A.

-- in 2007 than it is now?24 Q.

No.25 A.

21

So at least for the past five years,1 Q.

you don't have any information that would indicate2

it is in a different position than it is now?3

That is correct.4 A.We had a little topo?5 Q.

We had a little topo?6 A.

Yeah, showing depressions and hills and7 Q.

valleys.8

Oh, I presented yesterday?9 A.

Yes.10 Q.

Yes, we did not make it large, the11 A.

board.12

Yeah. Okay. Okay D-16. Let me ask13 Q.

you to look at D-16.14

And you testified that there is a15depression sort of right in the middle of the site16

going from east to west, and how shall we describe17

it going north to south, not --18

To the east of the existing tree row.19 A.

Okay.20 Q.

How is that?21 A.

To the east of the existing tree row22 Q.

shown on this existing plan?23

That's correct.24 A.

And actually on sheet C0-2, it is the25 Q.

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same depression that is marked by this oval here?1

That's correct.2 A.

And let me make sure I understand your3 Q.

testimony.4

Your testimony is that during storm5

events, water collects in that site and flows off6

the site?7

Correct.8 A.

And where does it flow?9 Q.As the lines indicate on that map, it10 A.

flows to the south, between the tree row we just11

described and the existing parking lot, and enters12

into the wetlands.13

Okay. And it is your testimony that14 Q.

that needs to be calculated into the existing15

conditions on the site?16

My testimony referred to the different17 A.

option for time of concentration determination.18

That was not looked at. When looking at the19

existing topography map, which is what you have20

there, DA-1 actually prepared by Control Point21

Associates, Inc. determining the existing grades,22

contours, I was able to determine the direction of23

flow of the water that would go out of the site.24

Were you able to determine the25 Q.

23

magnitude?1

Did not determine the magnitude2 A.

because I was talking about the time of3

concentration.4So you can't tell us if it is large or5 Q.

small?6

I did not work out the calculations7 A.

because that is in the model, and it would still be8

the same time of concentration for that drainage9

areas that is defined as existing DA-3.10

Now, you show another, how shall I put11 Q.

it, what would you call that shade?12

Well, that is a ponding area.13 A.

Well, let's --14 Q.

It is cross-hatched.15 A.Okay. So is it is cross-hatched on16 Q.

your map on the northeast corner?17

Northeast corner.18 A.

Northeast corner of your map, you19 Q.

indicate that is another area that water collects,20

and does that also flow off the site?21

Yes, it does.22 A.

Were you able to determine the23 Q.

magnitude of that flow?24

No, the intent of the map is to show25 A.

24

that the time of concentration that was presente1

may not be the longest time of concentration.2

And as I testified yesterday, I was3

talking to the determination of time of4

concentration. You take the longest time, the5

furthest drop of water from that site that would6

drain off the site to your lowest outlay.7

In looking at that time of8

concentration, that was presented on DOA-1 by t9

applicant --10

MR. WOLFSON: Mr. Marsden, do you11

remember the question that he asked you?12

MR. MARSDEN: Yes. I answered that.13

MR. WOLFSON: Then stop.14

MR. MARSDEN: Oh.15

Now, now, did you, in your testimony16 Q.

did you show other places where you thought there17

was ponding on this map?18

No.19 A.

Okay. Now, in talking about, in your20 Q.

time of concentration analysis, you talked about the21

so-called rational equation. Is that right?22

It is tied into the --23 A.

And you indicated that Mr. Dipple used24 Q.

the rational equation in his analysis?25

25

I indicated the basic formulas that1 A.

are used for that --2

Well, is that what he did?3 Q.

I don't, I assume he did. I don't4 A.recall. They have models they run now --5

Are there other methods, other than the6 Q.

rational equation?7

Well, there are other methods derive8 A.

from that, correct.9

But in doing your analysis, it is your10 Q.

understanding that that is the methodology he used?11

Well, I didn't do the analysis.12 A.

MR. WOLFSON: He just wants to know if13

you thought he used it.14

You critiqued his analysis.15 Q.I critiqued his analysis, correct.16 A.

And was it your understanding that the17 Q.

analysis you critiqued was using the rational18

equation?19

MR. WOLFSON: If you remember.20

I am trying to find what I saw in the21 A.

book. I don't recall at this point. They have a22

chart that showed what the time, what the time 23

concentration was and they had input data for th24

MR. WOLFSON: Would that help refresh25

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your recollection as to if that is what he used and1

that is what you commented on?2

MR. MARSDEN: The book?3

MR. WOLFSON: Well, he asked you a4

question.5

MR. MARSDEN: I don't recall without6

looking at the book.7

MR. WOLFSON: He doesn't recall.8

Well, you gave us a long explanation of9 Q.

the rational equation.10

Well, the explanation is for time of11 A.

concentration comes from Q=CIA.12

The question is did you give us that13 Q.

explanation because that is what he used?14

I gave you the explanation because15 A.

that is where time of concentration is introduced to16

show what the total flow means on the site.17

I see. Okay. So he had to have used18 Q.

that?19

He had to use that or some form of20 A.

that, yes.21

So now my understanding, and tell me if22 Q.

I have got it right, in, on the subject of sewers,23

your concern is that increases in surcharge flow24

that is not under gravity, but under pressure,25

27

creates a risk of future failures in the system?1

An additional surcharge pressure in a2 A.

piping system --3

Is that your concern?4 Q.My concern is that you are introducing5 A.

additional pressure in the piping system, correct,6

and that does act on the integrity of the pipe and7

its material makeup.8

So, but is the problem, is the problem9 Q.

one of future failures?10

The problem is on the stress of the11 A.

pipe and the age of the pipe added, with the added12

flows will introduce a better chance of failure,13

correct.14

Now, how old, how old is the sewer15 Q.system in Cranford?16

In that area, it's probably 40,17 A.

50 years old.18

When you say that area, what are you19 Q.

referring to?20

Well, our storm sewer, our sanitary21 A.

sewer system is broken into a lot of different22

subsystems. One piping system does not travel23

around and through the entire site.24

The, that piping system that travels25

28

through the site in question is in the northern,1

north, northern reaches. It travel pretty much east2

to west out into Roselle Park. There are other3

systems that travel in other directions.4

Now, when you say that system are you5 Q.

referring to a map that is contained in A-17?6

Yes.7 A.

With the various stations marked MH-18 Q.

through 17?9

That is correct.10 A.

Are all the pipes of equal age?11 Q.

No.12 A.

Why don't you take us through and tell13 Q.

us how old the various segments are.14

That I could not tell.15 A.

Can you tell us which are the older16 Q.

segments?17

Well, I can tell you that the site had18 A.

building on it in the early '70's, so that makes it19

40, 50 years old.20

And --21 Q.

Could be 60.22 A.

And so for that to be sewered,23 Q.

everything else had to have already existed?24

For that to have been sewered, there25 A.

29

had to be development that occurred through this1

system.2

So there had to be, the sewer line that3 Q.

feeds this carries the sewage down under the Garden4State Parkway --5

Yes, correct.6 A.

-- and into Roselle already had to be7 Q.

in existence by the time those buildings were8

constructed and entered into the system?9

It had to be in existence at some10 A.

point as it was being constructed from the11

downstream end working your way up, meaning that --12

MR. WOLFSON: So yes, otherwise you13

couldn't have connected into it?14

MR. MARSDEN: Yes, you couldn't have15connected into it.16

That is all I am trying to understand.17 Q.

So the whole system is at least 40 to18

50 years old?19

At least. Probably at least. I can't20 A.

give you numbers. We don't have that information.21

The part under the Garden State Parkway22 Q.

had to be put in when the Parkway was built. Isn't23

that right?24

Well, I -- have to assume it was. I25 A.

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wasn't there. The Parkway in that area was built in1

'68, I believe. I lived in the area.2

So it has to be at least 50 years old?3 Q.

Yeah.4 A.

Incidentally, does the, does the5 Q.

municipality have an easement through the Parkway?6

Does it have the right to open the Parkway?7

That I don't know right now. I can't8 A.

answer that.9

That's, the Parkway itself is a state10 Q.

right-of-way?11

Yes.12 A.

Probably not just right-of-way, but the13 Q.

state owns it?14

State owns it, right. Parkway was15 A.

built in '58. Did I say '58 or '68?16

You said '68.17 Q.

'58.18 A.

So at least that segment of the pipe19 Q.

has to be at least 60 years old?20

Correct.21 A.

Now, you have been, you have been22 Q.

municipal engineer eight years?23

Eight years.24 A.

I know I just asked you that question25 Q.

31

and I have already forgotten the answer.1

Yes, eight years.2 A.

Eight years. Now, have there been,3 Q.

have there been failures in Cranford's sewer system4during that period?5

Town-wide?6 A.

Let me first ask you town-wide.7 Q.

Yes, we always have, a director of8 A.

public works, there is always monitoring of the bad9

areas. We have had failures in various parts of the10

town, yes.11

During your eight years, how many?12 Q.

During my eight years, I mean,13 A.

failures, complete failures and blockages, I believe14

we have had four that -- we have partial failures15

that we deal with as we go. And we have maintenance16

programs that we have, where we have actually in17

another development made that developer line that18

pipe section because of introduction of activity.19

But that is not a failure, that is20 Q.

something else?21

Well, I mean, define failures. If you22 A.

call it complete blockage, four.23

Have you had pipe bursts?24 Q.

Pipe bursts. That is what I meant by25 A.

32

failure, complete collapse.1

So sewage doesn't continue on?2 Q.

It doesn't continue on unless you3 A.

bypass it or get it out.4

Those, when were those?5 Q.

Oh, my gosh, the first one I think was6 A.

when I first came on board on Springfield Avenue. 7

second one, I believe, was on North Avenue. Third8

one was on Balmiere Place and -- there is five.9

Just recently, the Carpenter Place10

detention basin, which this system is part of, and11

just upstream of that we had a collapse just after12

the park, Garden State Parkway downstream in that13

system that had to be repaired.14

So when? I am trying to --15 Q.

Two of them were this year.16 A.

Two of them this year?17 Q.

We have budget money to repair the18 A.

one. We have made the emergency repair. It is19

functioning, but we are going to spend about20

$300,000. And the pipe burst and line through21

trenchless technology, the one that is under the22

Carpenter Place detention.23

Why don't you show us -- as you say,24 Q.

there were two recent ones. Why don't you show us25

33

on this map where those two recent ones are.1

Sure.2 A.

MR. WOLFSON: It is at map of A-17.3

MR. EISDORFER: Your Honor, this is4the map contained in A-6.5

MR. WOLFSON: A-6.6

MR. EISDORFER: The sewer system map7

contained in A-6.8

MR. WOLFSON: Thank you.9

Let's orient ourselves. So here is the10 Q.

site. (Indicating.)11

The site is in the upper right-hand,12 A.

left-hand corner, which is in the north.13

And --14 Q.

West portion.15 A.Here is the Garden State Parkway.16 Q.

(Indicating.)17

Garden State Parkway cuts across from18 A.

the upper right down short to the middle right going19

from north to south.20

And Roselle is off the --21 Q.

Roselle Park is off the map to the22 A.

right or east. The sewer system diagonally cuts23

across from this map from the upper left to the24

lower right. That's going from northwest to25

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southeast. The line that has failed is the line1

that cuts through the portion that's past manhole2

16. The other line that failed was just at, part of3

manhole, just before manhole 15.4

Okay. And when were those failures?5 Q.

This year.6 A.

This year. And at least during your7 Q.

tenure, there hadn't been any previous failures?8

On this system.9 A.

On this system. Now, say starting from10 Q.

manhole 15, how many residences are served by this11

system?12

I can't tell you that. I don't know13 A.

that answer.14

Dozens, hundreds?15 Q.

No, I wouldn't -- I mean, this is an16 A.

old map. You see I have no, unless we take a newer17

map and look it up, I cannot answer that question.18

Are there other residences served by19 Q.

this?20

Yes, there are residences.21 A.

Whole neighborhoods?22 Q.

There are neighborhoods.23 A.

So lots in a lawyer's term?24 Q.

Lots.25 A.

35

Lots. But --1 Q.

Lots as was determined in that2 A.

sanitary sewer report number of volume.3

I am trying to say how many residences4 Q.are served?5

I didn't do that calculation. It was6 A.

done in the report.7

But if we looked at a map, if we took8 Q.

this and looked at a map showing residences, we9

would be able to figure that out?10

You would be able to figure it out,11 A.

correct.12

And any failure affects all those13 Q.

houses, right?14

No, only affects those upstream in a15 A.failure.16

Now, yesterday you testified that there17 Q.

were, yesterday you testified that there were18

particular stretches of the line that would19

transition from open channel flow, from gravity flow20

to surcharged flow if, if this project were, went21

online. Is that correct?22

Your applicant's engineer testified to23 A.

those lines.24

Well, he did -- he testified --25 Q.

36

I agree.1 A.

He testified none of them would go to2 Q.

surcharge flow, but you said some of them would?3

Well, that's not correct. He said the4 A.

ones that had zero capacity.5

Are already in surcharge flow?6 Q.

That's correct.7 A.

But you said there were some that were8 Q.

going to change over. Which ones were those?9

Well, what I said was by introducing10 A.

the additional flows, you are more than tripling or11

multiplying at one point five times the amount of12

flow into the piping system, which creates a13

capacity, not including inflow and infiltration, of14

57 percent, 70 percent, 76 percent, 60 percent of15

additional flow. Not additional, capacity.16

Does that cause them to transition to17 Q.

surcharge flow?18

It does not cause them to surcharge19 A.

flow under non-infiltration conditions.20

Under current conditions?21 Q.

Under current conditions, correct.22 A.

Does that cause them to transition, in23 Q.

your opinion does that cause them to transition into24

surcharge flow?25

37

No, it would not be surcharge flow at1 A.

that point.2

Now I am not understanding. Are there,3 Q.

do you have an opinion that, that some stretches of4pipe current, not currently, currently operating5

under gravity flow, operating under open channel6

flow would transition to surcharge flow?7

When they transition to surcharge flow8 A.

is through the influence of infiltration and inflow,9

which is what I testified to.10

Well, let's take infiltration and11 Q.

inflow is a given.12

And I answered the question. Your13 A.

question was will those other pipes that I just14

referred to downstream of manhole 1 through manhole154 would not surcharge. They would have greater16

capacity to the point of 57 percent, 70 percent,17

76 percent and 59 percent as stated from manhole 118

through 4.19

In the existing conditions, those 120

through 4 manholes similarly would have 14 percent,21

29 percent, 32 percent and 25 percent. You are22

doubling the flow, introducing an opportunity23

because of infiltration inflow, to put pressure24

under those lines that never had that additional25

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flow before.1

So it is not pressure due to2 Q.

surcharges, but just due to the additional flow?3

As I said, introducing inflow4 A.

infiltration, there would be surcharges.5

I am just not understanding. Let me6 Q.

try again.7

Okay.8 A.

Under existing conditions with whatever9 Q.

infiltration and inflow there is are these currently10

operating in a surcharge condition?11

Can I make a suggestion? Eliminate12 A.

the word inflow and infiltration.13

No, I want to know --14 Q.

MR. WOLFSON: Isn't there inflow and15

infiltration now?16

MR. MARSDEN: Yes.17

MR. WOLFSON: Okay, so that is a18

given.19

MR. MARSDEN: Yes, right.20

MR. WOLFSON: When you use your bottom21

number that you are comparing your new numbers, it22

already has the influence.23

MR. MARSDEN: It does.24

MR. WOLFSON: His question is --25

39

MR. MARSDEN: The influence is --1

MR. WOLFSON: Stop, stop, stop.2

His question is with the new flow do3

they transition from gravity open channel to4surcharge, and you said, you gave me four different5

statistical percentages, all of which are under6

100 percent, so I am assuming the answer is no, they7

don't. Is that incorrect or is that correct?8

Under inflow infiltration during a9 A.

storm event which raises the level of inflow and10

infiltration, they would surcharge.11

When the normal inflow and12

infiltration, if that is recorded during their13

metering is there, then it should not surcharge14

based upon the numbers that was provided in the15

report. My under --16

So depending upon how much infil --17 Q.

Depend on the rain event.18 A.

From the event, it might?19 Q.

Correct.20 A.

So have you modeled that?21 Q.

Have I modeled that?22 A.

Have you modeled it?23 Q.

No.24 A.

So this is not based on any calculation25 Q.

40

or analysis?1

Right.2 A.

Well, it is --3 Q.

Is it is based upon, as you stated4 A.

later, in the Township of Cranford, we have old5

systems. We know during rain events, manholes do6

surcharge, meaning they do pop sanitary sewer up 7

of them in many areas. And we do know that old8

systems have inflow and infiltration rates, but I9

did not do that calculation.10

MR. WOLFSON: Has that happened on any11

of the manholes that would be servicing the areas12

that would be affected by this development?13

Manholes by it?14

MR. MARSDEN: I don't specifically15

know. There was testimony, I thought that there16

was. I can't tell you which ones. I never worried17

about which system they were prior to, you know,18

today. I just knew we have to deal with them. My19

public works people have those records that they20

keep an eye on.21

Most of my manhole, I would hope now22

all my manholes are sealed so there is no inflow23

directly.24

MR. WOLFSON: All right, go ahead.25

41

Now, yesterday you testified that you1 Q.

hadn't, you hadn't heard about any hydraulic grade2

line analysis as described by Mr. Dipple before his3

testimony yesterday. Is that correct?4I don't recall hydraulic grade line5 A.

analysis specifically. In what, in what reference6

was that?7

He testified to an analysis, a dynamic8 Q.

analysis that would show how high the water would go9

under dynamic conditions and whether it would rise10

the manholes.11

Are we are talking sanitary sewers?12 A.

Sanitary sewers.13 Q.

I haven't seen that report.14 A.

Now, do you recall him testifying to15 Q.that?16

I don't recall.17 A.

Okay.18 Q.

Other than this court.19 A.

Let me see if I can refresh your20 Q.

recollection.21

Okay. You probably can.22 A.

I am going to show you page 101 from23 Q.

the transcript of Mr. Dipple's testimony on24

August 2nd before Judge Chrystal, and let me ask you25

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to start reading at the sentence that begins at the1

end of line seven.2

MR. WOLFSON: Do you want him to read3

it to himself or out loud?4

Is this Mr. Dipple's testimony?5 A.

This is Mr. Dipple's --6 Q.

MR. WOLFSON: Wait, read it to himself7

or read it out loud?8

Out loud, please.9 Q.

Beginning at end of line six?10 A.

End of line seven.11 Q.

End of line seven, okay.12 A.

"And what we did is an analysis of the13

hydraulic grade line, which is the level in which14

water would seek if it wasn't restricted by the15

pipe. So the hydraulic grade line was well within16

the sanitary sewer."17

Okay. Now, does that refresh your18 Q.

recollection as to whether you have heard that19

testimony before?20

Well, it's in the document. I will21 A.

take that for fact. I don't recall it, but...22

Now, did you subsequently ask for any23 Q.

of the underlying calculations behind that analysis?24

Not at that time.25 A.

43

Well, you know when you had your1 Q.

meeting with Ms. McKenzie and asked, in August of2

2011, did you ask for it then?3

No.4 A.Have you asked for it at any subsequent5 Q.

time?6

I think just recently when we were7 A.

told that there was that report.8

MR. EISDORFER: Okay, I have no9

further questions of this witness.10

But --11 A.

MR. WOLFSON: Do you have any12

redirect, Phil?13

MR. MORIN: Yes, I do.14

REDIRECT EXAMINATION BY MR. MORIN:15

Mr. Eisdorfer asked you a number of16 Q.

questions about the gate valves that you testified17

to yesterday. Do you remember that?18

Yes.19 A.

MR. WOLFSON: Do you remember the20

testimony or do you remember --21

I remember yesterday my testimony.22 A.

You remember both? You remember the23 Q.

questions and what you talked about yesterday?24

Yes.25 A.

44

Well, from your engineering experience,1 Q.

why would someone put those valves in?2

Well, as I wrote in my letter, those3 A.

valves would be put in as an added restriction so4

that water can be backed up into the parking lot.5

They are put in because maintenance of a system like6

that is, I wouldn't say annoying, but difficult when7

we have a little pipe that runs a whole reach. It8

could clog.9

We try to restrict ourselves from10

having three-inch pipes that just run the whole11

system because leave debris, everything would clog12

it.13

So back at that point, we would put in,14

a valve or a short type of plate or whatever, you15

know, worked the best for the applicant that would16

regulate the flow. That would allow you to open the17

valve and clean a 12-inch pipe. But during the18

storm event or once the pipe is maintained and19

clean, you shut it back to its level.20

Usually there is a tag on it that shows21

you how far down it is, and then that restriction22

stayed there until the next time you want to23

maintain the system.24

MR. WOLFSON: So it restricts the25

45

flow?1

MR. MARSDEN: It restricts the flow2

more than what a 12-inch pipe by itself would be.3

The point being is why would I put a gate valve in4there in the first place if the 12-inch controlled5

the outflow. You wouldn't need to.6

In your opinion would there be any7 Q.

other reason to install the valves as they are?8

I'm sorry?9 A.

I will repeat the question.10 Q.

Would there be any other reason from an11

engineering perspective as to why those valves are12

installed?13

I could not think of any, even when I14 A.

first, you know, introduced the...15

MR. WOLFSON: Anything else?16

MR. MORIN: Nothing for me.17

MR. WOLFSON: Mr. Eisdorfer?18

CROSS-EXAMINATION BY MR. EISDORFER:19

When was the last time you saw those20 Q.

valves operate?21

I haven't.22 A.

Never?23 Q.

I never had the need to go check that24 A.

out --25

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MR. WOLFSON: So yes, never?1

MR. MARSDEN: Never.2

MR. EISDORFER: I have no other3

questions.4

MR. WOLFSON: Is there anybody in the5

audience who wishes to question Mr. Marsden on the6

substance of his testimony to date?7

State your name and spell your name for8

the Court Reporter, please.9

MS. SWEENEY: It is Liz Sweeney,10

S-W-E-E-N-E-Y, from Cranford.11

Mr. Marsden, regarding the sewers, will12

residents adding shut-off valves to their home sewer13

lines due to existing backup conditions add to the14

surcharge in the main line?15

MR. MARSDEN: Will residents adding16

shut-off valves --17

MS. SWEENEY: Can I explain where I am18

coming from?19

MR. MARSDEN: Please.20

MR. WOLFSON: You certainly can21

provide Mr. Marsden with a foundation for your22

question so he understands what you are asking.23

MS. SWEENEY: Wadsworth Terrace, the24

sewers back up.25

47

MR. MARSDEN: Correct.1

MS. SWEENEY: Everybody is adding2

shut-off valves to their homes so the sewers can no3

longer backup into their homes.4MR. MARSDEN: Okay.5

MS. SWEENEY: Does shutting down the6

sewage from coming in our homes do anything to the7

main line running down the road? Does it add more8

pressure to that?9

MR. MARSDEN: No. What it does is it10

prevents the back flow from going into your11

basements, and when you, as I have been recommending12

in town, you have a gate valve, one-way valve, so13

there is no back water going into your sewers during14

a storm event because, as you know, when we have a15storm event, because of inflow and infiltration,16

these systems do, you know, surcharge.17

When they surcharge, the water that is18

falling in through the ground getting into the19

joints of the pipe, that pressure level that is20

above the pipe acts in all directions. The pipe21

would try to push the flow downstream, but because22

it can't get that flow rate by gravity through a23

pipe size, it seeks other ways to go, backing up in24

the manholes, backing in the system that you are25

48

introducing more flow to.1

Now, if everybody stopped using it, it2

would not be as critical. It would recover sooner,3

meaning that you wouldn't have to wait as long as4

you do to open the gates again. But the method5

right now before storm events is that everybody that6

has a backup in the areas where the rivers and7

flooding occur should have some type of valve, a8

one-way valve, gate valve. I prefer not making them9

mechanical in case you are away and you forget, that10

it is something, that valve that will not allow11

water to backup. Like a check valve.12

MS. SWEENEY: My next question13

regarding the sewers is adding 80,000 gallons of14

water, of sewage to the sanitary sewer line at North15

Union Avenue and Wadsworth Terrace, will that affect16

the people upstream? Will we have more backup due17

to this additional sewage going into the line?18

What I testified to and what is19 A.

difficult to state exact numbers on is the fact that20

yes, introducing more flow into a system that wo21

be surcharge during a rain event would not help t22

system, meaning that it would create a worse23

condition.24

MS. SWEENEY: Okay, am I allowed to25

49

bring, I have a picture of --1

MR. WOLFSON: If you want to use it to2

ask a question.3

MS. SWEENEY: I can use it to ask a4question?5

MR. WOLFSON: You have to mark it and6

then you leave it.7

MR. MARSDEN: You may lose it.8

MS. SWEENEY: I may lose it. It is9

okay.10

MR. WOLFSON: You have to leave it.11

MS. SWEENEY: That is fine. I have a12

question.13

MR. WOLFSON: So would you like to14

mark that?15MS. SWEENEY: Sure.16

MR. WOLFSON: So the reporter, would17

you mark that Sweeney-1. Whichever one you want to18

show the witness you should have marked.19

MS. SWEENEY: Okay, and this one.20

(Indicating.)21

MR. WOLFSON: Just two pictures,22

Ms. Sweeney?23

MS. SWEENEY: Well, I have a few,24

but...25

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MR. WOLFSON: I want her to mark them1

all at once so we don't have to keep stopping.2

(Exhibit Sweeney-1, Photograph, is3

marked for identification by the Court Reporter.)4





MR. WOLFSON: And the only thing I9

would ask you, Ms. Sweeney, when you refer to a10

picture, refer to it by the number.11

MS. SWEENEY: Okay.12





MR. EISDORFER: I am afraid of, no17

significant foundation has been laid for these18

pictures.19

MR. WOLFSON: We will see where we go.20

MS. SWEENEY: I am referring to21

picture Sweeney-1. Regarding your split flow, does22

this picture mirror your split flow.23

MR. WOLFSON: What is the question,24

does it mirror?25

51

MS. SWEENEY: Yes, is this a picture1

of this, the water flowing through the conservation2

center?3

MR. EISDORFER: I think we need some4foundation to tell us what the picture purports to5

portray.6

MR. WOLFSON: Actually --7

MR. MARSDEN: Can I do this?8

MR. WOLFSON: Actually, she has asked9

him sort of that question, so I will allow that so10

far. Go ahead.11

MR. MARSDEN: It appears to be an12

aerial photograph possibly from Google Earth that13

shows the property that's north of the intersection14

of Birchwood Avenue and Cranford Avenue, focusing on15the Cranford Conservation Center, the wetlands and16

forest behind it and part of the Verizon parking lot17

to the left or, in this case, west end portion of18

Kenilworth residences to the right. It shows --19

MR. WOLFSON: Is the property in20

question on that picture?21

MR. MARSDEN: The property in question22

is on the lower left-hand corner or southwest.23

MR. WOLFSON: So most of the24

picture --25

52

MR. MARSDEN: Most of the picture --1

MR. WOLFSON: 90 percent or so is of2

other than the site?3

MR. MARSDEN: Focused on the4

conservation center, the stream and the wooded areas5

surrounding.6

MR. WOLFSON: And your question,7

Ms. Sweeney, was does this show the split flow?8

MS. SWEENEY: Does this show the9

stream and would this indicate a split flow or does10

it show the stream coming down to Kenilworth and11

where it does, where it goes?12

MR. WOLFSON: Let's break that down to13

one question at a time. Does it show the stream?14

MS. SWEENEY: Does it show the stream?15

MR. MARSDEN: Yes, it shows the16

stream.17

MR. WOLFSON: Next question.18

MS. SWEENEY: Does it show where the19

split flow might be? Can you indicate on that where20

the split flow would be?21

MR. MARSDEN: Because it is an22

aerial --23

MR. WOLFSON: Are you asking does the24

picture show a split flow or are you asking him to25

53

show us on the picture where the split flow would1

be?2

MS. SWEENEY: Could you show me on the3

picture where the split flow might be?4MR. MARSDEN: All right. On the5

picture it shows, similar to this Exhibit D-15, the6

channel for Orchard Casino Brook.7

MR. WOLFSON: So yes, it shows it?8

MR. MARSDEN: So the answer is it does9

show similarities to what you have on the map.10

MR. WOLFSON: Next question.11

MS. SWEENEY: I am referring to12

Sweeney-4. Do you recognize that location in13

Kenilworth at all?14

MR. MARSDEN: No.15MR. WOLFSON: Okay.16

MR. MARSDEN: This is Kenilworth.17

(Indicating.)18

MS. SWEENEY: Yes.19

MR. MARSDEN: Yes.20

MR. WOLFSON: You are representing21

that is Kenilworth.22

MS. SWEENEY: I am representing it is23

Kenilworth.24

Do you recognize that this might be the25

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brook in Kenilworth?1

MR. WOLFSON: You are referring to2

now?3

MS. SWEENEY: I'm sorry, Sweeney-3.4

Do you recognize that this might be the brook in5

Kenilworth?6

MR. WOLFSON: Do you recognize it at7

all?8

MR. MARSDEN: No.9

MS. SWEENEY: Do you recognize this at10

all?11

MR. MARSDEN: After looking at brooks,12

they all look --13

MS. SWEENEY: Can you tell me where14

this brook --15

MR. WOLFSON: He doesn't recognize it.16

You can ask him, you can tell him where it is and17

ask him if it refreshes his recollection.18

MS. SWEENEY: This is the brook in19

Kenilworth at Cranford Avenue and Faitoute Avenue.20

MR. WOLFSON: Does that refresh your21

recollection?22

MS. SWEENEY: Does that refresh your23

recollection?24

MR. MARSDEN: Well, I can't say25

55

because I look at a lot of little brooks --1

MS. SWEENEY: Could you tell me where2

that would be on your map?3

MR. MARSDEN: From your information --4MR. EISDORFER: If he doesn't --5

MR. MARSDEN: I don't recall.6

MR. WOLFSON: Assuming that that7

picture depicts what you say it does, where would8

that be on the map?9

MR. MARSDEN: It would be --10

MR. WOLFSON: Off the map.11

MR. MARSDEN: It would be in here.12

(Indicating.)13

MR. WOLFSON: Just on the upper14

right-hand corner?15MR. MARSDEN: Upper right-hand corner.16

MS. SWEENEY: Okay. And do you17

recognize where this water is coming from on18

Sweeney-2? Does that look at all --19

MR. WOLFSON: Can you identify that20

location?21

MS. SWEENEY: Can you identify that22

location? That's about 25 feet from the23

conservation center across from where the --24

MR. WOLFSON: Do you recognize it?25

56

MR. MARSDEN: Well, I am, it is1

difficult to say. There is no landmarks.2

MR. WOLFSON: Okay. Do you have a3

question about it, Ms. Sweeney?4

MS. SWEENEY: Yes. Would you say t5

this would be a normal, would this indicate the6

split flow coming down from here --7

MR. WOLFSON: Well, we don't have a8

proper foundation for where that is.9

MR. MARSDEN: I can't determine that10

MR. WOLFSON: Are you going to11

represent to us what that is?12

MS. SWEENEY: Yes, I can represent13

that that is about 25 feet from the conservation14

center.15

MR. WOLFSON: Okay. Now, assuming16

that to be so, Mr. Marsden, can you identify where17

that would be on a whatever this is? What is this?18

MR. MARSDEN: Exhibit D-15.19

MR. WOLFSON: D-15.20

MR. MORIN: I'm sorry, 25 feet toward21

the, between --22

MS. SWEENEY: Toward the Verizon23

building, which would be west on the map.24

MR. MARSDEN: May I ask where this25

57

picture was taken from?1

MS. SWEENEY: It was taken from --2

MR. EISDORFER: We are in the realm3

testimony now, Your Honor.4MR. WOLFSON: It's okay. It's okay.5

What is the question you want to ask about it,6

assuming that it shows an area?7

MS. SWEENEY: I wanted to know if th8

would be, would be a way of showing his split flow9

from here down to --10

MR. WOLFSON: No, he can't answer11

that. He wouldn't.12

MR. MARSDEN: No, no, you wouldn't 13

able to tell.14

MS. SWEENEY: Okay, my last questio15Where is my first picture? One more question and 16

am done.17

MR. WOLFSON: Take your time.18

MS. SWEENEY: Sweeney, S-1, can yo19

tell me about the condition of the ground around th20

conservation center? Is it forested?21

MR. MARSDEN: Well --22

MS. SWEENEY: From this picture?23

MR. WOLFSON: Do you know that from24

your own knowledge anyway?25

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MR. MARSDEN: My own knowledge is that1

a good portion of the center of the conservation is2

not forested because we use it for leaves, topsoil,3

transfer materials.4

The perimeter to, oh, the perimeter to5

the southwest and northeast along Birchwood Avenue6

and Cranford area have wooded frontages. That may7

be 50 feet deep or 25 feet deep.8

MS. SWEENEY: And due to the fact that9

it is not forested would it make it easier for the10

water to flow down from this stream to Birchwood11

Avenue?12

MR. MARSDEN: Well, what it would do13

is make the water that falls on the open areas, what14

it would do is let, the water will flow faster on15

non-wooded areas into the brook wherever the contour16

is directed. Wooded areas, it would stay in the17

trees for a while and some would be absorbed and it18

would go down through the grass and the mulch and19

some information there.20

But open areas, the flow does move21

quicker.22

MS. SWEENEY: All right, thank you.23

MR. WOLFSON: Based on the lack of24

foundation for those photographs, either counsel25

59

take issue with the fact that they should not be1

made part of our record?2

MR. EISDORFER: Your Honor, it seems3

to me the only photograph for which foundation was4laid is the first one.5

MR. WOLFSON: First one. Right.6

Other than that?7

MR. EISDORFER: Other than that, we8

object to them.9

MR. MORIN: Well, I would say at this10

point that is premature. I think Ms. Sweeney is11

entitled to provide testimony herself during the12

public comment portion.13

MR. EISDORFER: If she doesn't.14

MR. WOLFSON: Fair enough.15

MR. MORIN: And qualify these photos.16

MR. WOLFSON: I agree with that. If17

she chooses to do that, it is possible they be made18

part of the record.19

Ms. Sweeney, we are going to allow S-120

in because there was an adequate foundation of what21

it was and where it was situated. If you want the22

other 4 or 3, however many there were, to be made23

part of the record, you will have to give us sworn24

testimony as to how you got them, where they were25

60

taken, the orientation and what they depict, and1

that they accurately depict what they purport to2

depict. If you can do that, they can be made part3

of the record if you choose to do that.4

So we will mark S, Sweeney-1 part of5

the record. We need to hold onto that, and the6

other four give back to Ms. Sweeney.7

MR. MORIN: Actually, another8

question. One of the photos Ms. Sweeney marked S-5.9

In looking at that photo --10

MR. EISDORFER: What is going on here?11

MR. MORIN: I am asking follow-up12

questions based upon --13

MR. WOLFSON: Not your turn, but...14

MR. MORIN: That's fine. That's fine.15

When Steve said he had no follow-up questions, I16

will ask my questions.17

MR. WOLFSON: I just asked whether or18

not anybody objected to or didn't object to them19

going on in. Anyway, let's not get ahead of20

ourselves.21

Is there anyone else in the audience, a22

member of the public who wishes to ask any questions23

of Mr. Marsden?24

Ms. McKenzie, do you have any questions25

61

that you would like to ask of Mr. Marsden?1

MS. MCKENZIE: Yes, I do.2

Mr. Marsden, yesterday when you were3

testifying, you talked about how, you talked about4the fact that there are buildings and parking areas5

on 215 Birchwood and that with the building there,6

there is less area to flow through the building7

actually helps to detail the water through some8

areas and force it through other areas, is what I9

gathered, and correct me if I am misunderstanding10

what you said.11

And you felt that Mr. Dipple should12

have figured out the, I guess, detention function of13

the buildings on 215 and how much they might slow14

the run-off. Is that what you were saying?15

MR. MARSDEN: No, what I was saying is16

I just wanted the hearing officer to recognize that17

when you are looking at the sections that were18

provided to us that day, as I presented them in19

order from upstream to downstream, that the area20

where water flows through before you run into that21

building is a wide, a larger area.22

With the building in the way, the area23

becomes a lot smaller so, therefore, that volume of24

water still has to get pushed through that area that25

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had been determined due to the pushing the floodway1

lines in.2

The point was, is that looking just for3

general understanding that you are taking water4

through a wider area section and then you are5

introducing it to the next downstream section which6

has a building in it, and it becomes narrower. It7

could come smaller.8

MS. MCKENZIE: You are talking about9

the increased velocity of the water?10

MR. MARSDEN: Yes, that is right. I11

am saying something would have to give, meaning that12

the water can't just flow through an opening yay big13

at the same foot elevation, and then flow through an14

opening that is less.15

MR. WOLFSON: The question is what is16

the relevance?17

MR. MARSDEN: Well, the --18

MS. MCKENZIE: That was my question,19

what does that --20

MR. MARSDEN: -- relevance is that21

either the floodway would have to be adjusted to22

allow for that area if the elevation stays the23

same --24

MR. WOLFSON: But why does that --25

63

MR. MARSDEN: Or the velocity is1

increased.2

MR. WOLFSON: Why is that if the3

building is going to be gone?4MR. MARSDEN: Well, the issue is the5

determination of the floodway. With the building6

gone, it would be a non-issue, that's correct.7

MR. WOLFSON: And that is what they8

did, right?9

MR. MARSDEN: No, I believe they were,10

testified to the fact that the building was there11

and they would remove it.12

MR. WOLFSON: Okay. Okay. Go ahead.13

MS. MCKENZIE: So what are you saying14

he should have done instead, I guess that is my15

bottom line?16

MR. MARSDEN: What I am saying is that17

section of the floodway that gets very narrow and18

goes towards the stream in their analysis may not19

be, well, in my opinion is not correct based upon my20

experience in determining floodways. Yes, you can21

force it, as I explained by the showing the map22

through the velocity numbers got higher in that one23

channel area.24

MS. MCKENZIE: You are saying that25

64

would have increased the size of the floodway?1

MR. MARSDEN: It increases the flow2

and it forces the elevation on the upstream and3

downstream section to become higher, so you are so4

of playing a balancing act. Is that a true5

representative of the floodway? That's what will be6

determined by D.E.P.7

MS. MCKENZIE: Okay, and here is, so 8

have two additional questions then.9

Did you do any calculation yourself of10

what that impact might be?11

MR. MARSDEN: No.12

MS. MCKENZIE: And based on your13

knowledge and familiarity with that area and the14

drainage area and the size of the floodway and15

flooding in that area, I guess, do you believe that16

that would result in a substantial change in the17

delineation of the floodway?18

MR. MARSDEN: Ask that question agai19

MR. WOLFSON: Even though you didn'20

do the calculations --21

MS. MCKENZIE: Based on your22

experience and your knowledge of the area do you23

think that having failed to take into consideration24

the impact of those, the placement of those25

65

buildings on stormwater velocities, do you think1

that that would have, that that will substantially,2

if that were taken into consideration, would it3

substantially alter the delineation of the floodway?4MR. MARSDEN: First of all, it's, it5

is not a failure. It is part of the models, what6

they did. My concern in prior to presenting7

testimony in my notes was saying that very seldom8

does a floodway jut in and then jut out. What I say9

usually tries to, you usually try to look at the10

analysis via model on the overall basis to determine11

what a realistic floodway would be.12

MR. WOLFSON: The question --13

MR. MARSDEN: I have done models --14

MR. WOLFSON: The question is does it15

make a difference?16

MR. MARSDEN: Well, it does make a17

difference if I say --18

MR. WOLFSON: What is the difference?19

MR. MARSDEN: Well, it cuts into20

Building A.21

MR. WOLFSON: What is the difference22

downstream in terms --23

MS. MCKENZIE: No, no, no. Actually,24

even, I am even interested in when you say it cuts25

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into Building A, do you, do you have some idea of1

the magnitude of that impact? I mean, are we2

talking about inches? Are we talking about feet?3

MR. MARSDEN: No, we are --4

MR. WOLFSON: Are we talking about5

eliminating Building A?6

MR. MARSDEN: We are talking about7

feet. We are talking about taking that indentation8

that occurs and smoothing it out so it doesn't jump9

in there by 20, 40 feet. It's a question that10

D.E.P. has.11

MS. MCKENZIE: Can you show me on one12

of the exhibits what you mean?13

MR. MARSDEN: Sure.14

MR. WOLFSON: I don't understand what15

the impact is here.16

MS. MCKENZIE: That is what I am17

trying to find out.18

MR. MARSDEN: This is existing. We19

are looking at C-2.20

MS. MCKENZIE: Yes.21

MR. MARSDEN: There is your floodway,22

the dark line. . (Indicating.)23

MS. MCKENZIE: Right.24

MR. MARSDEN: See how it juts in here?25

67

MS. MCKENZIE: Yes.1

MR. MARSDEN: It is in the section,2

when they analyze it, there is the building, there3

is the area the water can flow through. Here is the4area. I am not going to doubt those the water can5

flow though into here.6

What I am saying is prior to that, it7

is a wide flood, it is a wide area that water can8

flow.9

MS. MCKENZIE: It seeps up.10

MR. MARSDEN: And now it tightens up.11

So what I am saying is because of the velocities12

would have to increase in order to keep this here is13

that realistic to modeling where a floodway would be14

and my experience indicates that a floodway follows15

areas that are more conducive to topography.16

MR. WOLFSON: Let's say you are right.17

The question is --18

MR. MARSDEN: I will show you in a19

minute.20

MR. WOLFSON: So what, what happens?21

MR. MARSDEN: Well, what happens is if22

the, if the D.E.P. does not agree with the floodway23

and becomes more consistent, like here, that24

floodway would continue and go out taking part of25

68

that area where Building A is.1

MS. MCKENZIE: So, are you suggesting2

that in effect that once you remove the buildings3

and the floodway does what it might have done prior4

to that, those buildings being placed in the5

floodway, that you will have the part of Building A6

would then be --7

MR. MARSDEN: Well, I am still saying8

that no building is in the, no building is here in9

the finished --10

MS. MCKENZIE: I understand. I am11

talking about --12

MR. MARSDEN: Now, we have run that13

flow through there. It still narrows for some14

reason right there and... (Indicating).15

MS. MCKENZIE: Because the floodway --16

MR. MARSDEN: -- the reason is because17

of a few grades, spot grades that are there. If you18

take the building out, you are taking the --19

MR. WOLFSON: The old building out.20

MR. MARSDEN: The old building out.21

I'm sorry, if you take the old building --22

MS. MCKENZIE: I understand.23

MR. MARSDEN: -- and remove the24

parking lot and the grade changes here (indicating),25

69

this grade is only up here to drain the parking lot.1

That is what was introduced. That is why you look2

at the floodway and over --3

MR. WOLFSON: Of the new building?4MR. MARSDEN: No, no.5

MS. MCKENZIE: Of the old building.6

MR. MARSDEN: The old building. There7

were two driveways. I can show that.8

There are two driveways. All right.9

This is one. This is the other. The site parking10

and design of this existing complex drain this way11

and that way. To do that, they elevated this here.12

Okay. If you follow the contours of the grading13

that is reflected in the area, you show this is a14

high point, 77, 76. This becomes 77, 76. This15

becomes the regime where the water would flow16

through prior to these buildings. So the17

determination of the floodway should be consistent18

with the character of the area. That is what I am19

saying.20

MR. WOLFSON: And that is important --21

MR. MARSDEN: That's important.22

MR. WOLFSON: -- because?23

MR. MARSDEN: They are putting a24

building --25

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MR. WOLFSON: In the floodway?1

MR. MARSDEN: In what may be the2

floodway.3

MS. MCKENZIE: It is not in the4

floodway now, but it is proposed to be in what could5

become effectively the floodway is what you are6

saying?7

MR. MARSDEN: What I am saying is this8

line may not be correct. D.E.P. will have to9

determine that --10

MR. WOLFSON: Suppose --11

MR. MARSDEN: -- if this line is here.12

MR. WOLFSON: Let me ask you the13

question. If the line is not correct --14

MR. MARSDEN: Okay.15

MR. WOLFSON: -- and the new flood16

line that D.E.P. says is the new floodway line puts17

the proposed building in the floodway, what happens?18

MR. MARSDEN: Then they have to move19

the building out.20

MR. WOLFSON: Okay. So that is up to21

the D.E.P.?22

MR. MARSDEN: That's correct.23

MR. WOLFSON: Okay.24

MS. MCKENZIE: And when DEP requires a25

71

calculation of the floodway and requires the1

determination of the floodway do they do that based2

upon existing conditions on the day that you are3

essentially doing the study and making the4application or do they do that on what would be5

natural conditions without any development, because6

that is sort of the choice that you are talking7

about here?8

MR. MARSDEN: Well, that is correct.9

What will they do? They should look at it as I10

described it.11

If there is a, if there is a character12

change that I call is more extreme in a small area,13

they should look at that and say why did that occur14

and then they should review that in more detail.15

And if it is acceptable to them, they would hold it16

there.17

MS. MCKENZIE: And is it your18

experience that they tend to do that or that they19

tend to rely on their formulas and models?20

MR. MARSDEN: Well, in my experience,21

I have not showed a sudden increase or change in the22

floodway that is dramatic.23

I did through the flood maps we had in24

2006 that were brought in from FEMA question their25

72

floodway due to the fact that it was crisscrossing1

levies and doing other things and they modified it.2

Because in the model, sometimes they don't look at3

the natural features as much as they should have.4

MS. MCKENZIE: Okay. So that leads t5

another question because I think this is important.6

If there are issues that the township legitimately7

feels are, you know, should be brought to D.E.P.'s8

attention, what is the process and what9

opportunities in the process will the township have,10

or does the township have to bring these issues to11

the attention of the D.E.P. in their review?12

MR. MARSDEN: Well, as I testified13

earlier and as the applicant's attorney showed, I14

had questioned in 2010 or 2011 --15

MR. WOLFSON: January 2011.16

MR. EISDORFER: A-25 and A-26.17

MR. WOLFSON: What was the date on18

that?19

MR. EISDORFER: And A-26 and A-27.20

You are referring to these documents?21

MR. MARSDEN: Yes.22

MS. MCKENZIE: A-26 and A-27, let me23

write those down. A-26 being --24

MR. MARSDEN: The January --25

73

MR. EISDORFER: 3.1

MS. MCKENZIE: January 3rd.2

MR. MARSDEN: Right.3

MS. MCKENZIE: Memo?4MR. MARSDEN: Correct.5

MS. MCKENZIE: And A-27 being the6

August --7

MR. MARSDEN: August 2nd.8

MS. MCKENZIE: 2nd.9

MR. MARSDEN: Correct.10

MS. MCKENZIE: Is this also a memo?11

MR. MARSDEN: No. Well, the12

January one is a letter and the second one is a13

memo.14

MS. MCKENZIE: I'm sorry, go ahead a15

answer. I didn't mean to interrupt.16

MR. MARSDEN: I am going back to17

detail. I may not have, I did not address the18

floodway on the January memo. I was highlighting19

based on conceptual information we have had20

previously and testified to -- oh, I did, 1.3. I21

did question the floodway at that point, yes.22

MS. MCKENZIE: Okay, that's, I am not23

asking what you did because that stands for itself.24

That has already been asked.25

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MR. MARSDEN: I am just telling you.1

MS. MCKENZIE: I am asking is there a2

process by which you can make D.E.P. aware of your3

concerns with their methodology and bring attention4

to what you believe may be flaws in the applicant's5

calculations or approach to the determination of the6

floodway and potential impact of the development on7

flooding?8

MR. MARSDEN: Yes. And on the,9

actually, August 2nd letter, I did that. That was,10

you know, the follow-up to the more detailed review.11

MS. MCKENZIE: And have you received12

any response from D.E.P.?13

MR. MARSDEN: Actually, a little more14

than two weeks ago here I got a phone call on a15

Tuesday and I was told by their review officer,16

Valda, that they are not reviewing it until they17

have an application to review, and they said they18

didn't have it at that time.19

MS. MCKENZIE: Okay. Will they allow20

you to resubmit? Will they hold your letter?21

MR. MARSDEN: They told me they would22

take my letter and take it under consideration and23

review it when the application comes in.24

MS. MCKENZIE: Okay. Okay, thank you.25

75

And are you able to, is there an1

opportunity for you to attend any meetings between2

D.E.P. and the applicant if you ask to be included3

in those meetings? Are there opportunities for you4to be there?5

MR. MARSDEN: Well, I am sure there6

would be based on this case.7

MS. MCKENZIE: Okay. Okay, thank you.8

Let me just see.9

You said something, you raised a10

question which I thought was interesting in your11

memo, your August 6th, is it August 6th -- or July12

30th letter.13

MR. MARSDEN: 20.14

MS. MCKENZIE: July 20th, whatever,15the one where you raise the issue about the problem16

with the lighting stanchions that were going to be17

in and amongst the trees along the nursing home18

property and your concern that ultimately those, the19

trees would impede light.20

Is there another alternative, such as21

putting goose neck lamps on the parking garage to22

light the parking lot as opposed to using23

traditional lighting stanchions.24

MR. MARSDEN: Well, there are always25

76

other alternatives, yes.1

MS. MCKENZIE: Is there something that2

you --3

MR. MARSDEN: I mean, your suggestion4

works. The question is -- I mean, I am not5

designing. I don't know the character of what they6

want the site to look like. My concern was that7

where the lights -- referring back to the plan8

package, sheet six, the lights are shown within that9

ten-foot buffer.10

MS. MCKENZIE: Right, right. And you11

had raised the question in your memo which I think12

is valid that, you know, that the problem is if you13

are not really careful about where you trim trees14

and things, eventually the lights will be obscured15

and it will be fairly meaningless. And I was16

wondering if there was an alternative place where17

you could put the lights to achieve the objective of18

lighting the parking lot.19

And I suggested the possibility of20

goose neck lamps on the parking side of parking21

garage looking out over the rest of the parking lot,22

and I was wondering if you thought that would be a23

potential solution or something that the applicant24

should look at as an alternative to having any25

77

lighting stanchions at all in that ten-foot area. I1

was listening to you.2

MR. MARSDEN: Thank you. Yes, it is3

an idea, and you ask if there is any other ideas.4What we do a lot of times is put the lights in the5

parking islands so that they are further out from6

the buffer so they would not be impacted by growth7

and vegetation in that ten-foot stretch.8

MR. WOLFSON: Ms. Eisdorfer, is that9

something your clients are willing to discuss?10

MR. EISDORFER: We are willing to look11

at all the alternatives.12

MR. WOLFSON: So my suggestion to13

counsel and Mr. Marsden is during the time period14

between which we conclude today hopefully and you15submitting to me your proposed findings of fact and16

recommendations and proposed list of conditions,17

that you either try to work that out or not. If you18

don't, then give me what you want as a proposed19

condition and Mr. Eisdorfer will give me whether he20

will or won't be willing to live with by way of a21

voluntary condition.22

MS. MCKENZIE: Thank you.23

My next question, Mr. Marsden, in terms24

of lighting, you had initially recommended that25

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because there might be drop off along Birchwood in1

front of Building B that there should be2

streetlights in that location, and then you said3

that because that is not going to be a drop-off area4

that you rescinded that recommendation.5

Do you think there is any wisdom or not6

in having streetlights along Birchwood or along that7

part of the Birchwood which is the applicant's8

frontage -- or would you be inclined not to9

recommend that because of its effect on the overall10

character of the area? I am interested in your11

recommendation.12

MR. MARSDEN: Well, in my opinion,13

your second statement I feel is more correct in that14

I don't want to overlight the area either.15

MS. MCKENZIE: Okay.16

MR. MARSDEN: And there are existing17

lights at the intersections of the post entranceway18

and there are streetlights that are staggered there19

that do --20

MS. MCKENZIE: So you are satisfied21

that if there is not going to be a drop-off area22

created there, it doesn't need to be --23

MR. MARSDEN: If there is not an24

increase in pedestrian traffic, which they are25

79

saying there will not be because there will be1

vehicles coming into the site instead of stopping2

at, you know, the Birchwood curb line.3

MS. MCKENZIE: Okay. And then looking4again at your January 20th letter, I just, I missed5

something and I am just asking for the record, you6

talked about your comments 21 and 22 -- actually, it7

is not -- yeah, 21 and 22 which had to do with a8

silt fence location and the stockpile location.9

What were the outcomes of those10

discussions or those recommendations? Did they11

agree to that --12

The outcome on the stockpile I13 A.

believe, the testimony was that, I am looking at map14

C-8 in the --15

MR. WOLFSON: My note says they will16

comply with the 15-foot.17

MR. MARSDEN: They will comply with18

the 15-foot, and the stockpile would be moved if it19

became an issue.20

MS. MCKENZIE: Okay. That is all.21

That is all I wanted to know. And then I am almost22

done here. Just a couple more questions.23

And just one more question about those24

gate valves, which I am sure you are tired of25

80

hearing about.1

Who would normally have been supposed2

to operate those valves to control what happened3

during a flood?4

MR. MARSDEN: Well, that would be the5

property owner. It is a private system. It would6

be, they would be the ones in charge.7

MS. MCKENZIE: So if the property8

owner decided he didn't want his parking lot to hold9

a lot of water, he just wouldn't bother to shut10

them?11

MR. MARSDEN: That's correct.12

MS. MCKENZIE: Okay, thank you.13

MR. WOLFSON: Anything else?14

MS. MCKENZIE: No. Thank you.15

MR. WOLFSON: We will take five16

minutes, and when we come back, I guess I will ask17

counsel whether they have follow-ups of Mr. Marsden.18

(Whereupon, a short break is taken.)19

MR. WOLFSON: We are back on the20

record. Either counsel have any questions in light21

of Ms. McKenzie's questioning?22

MR. EISDORFER: Your Honor, I do.23

MR. WOLFSON: Go ahead.24

CROSS-EXAMINATION BY MR. EISDORFER:25

81

Mr. Marsden, when is the last time you1 Q.

filed an application for a flood hazard area permit?2

MR. MORIN: Objection. It is not3

responsive to special master's questions.4MR. WOLFSON: I think it actually is5

directly related to her asking him whether he had an6

opportunity to do certain things.7

MR. EISDORFER: Well, she has asked8

him to offer opinions based on his judgment and9

experience.10

MR. WOLFSON: I will allow it. Go11

ahead.12

When is

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