cranford twp response to proposed findings and conclusions-cda

7/31/2019 Cranford Twp Response to Proposed Findings and Conclusions-CDA

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SUPERIOR COURT OF NEW JERSEY

UNION COUNTY - LAW DIVISIONDOCKET NOS. UNN-L-0140-08

UNN-L-003759-08

LEHIGH ACQUISITION CORP.,Plaintiffs,

vs.

TOWNSHIP OF CRANFORD andPLANNING BOARD OF THE

TOWNSHIP OF CRANFORD,Defendants;

and

CRANFORD DEVELOPMENTASSOCIATES, LLC, a limited liability

company organized under the laws ofthe State of New Jersey, SAMUEL

HEKEMIAN, PETER HEKEMIAN,JEFFREY HEKEMIAN, and ANNKRIKORIAN as trustee for RICHARD

HEKEMIAN and MARK HEKEMIAN,Plaintiffs,

vs.

TOWNSHIP OF CRANFORD, MAYORAND COUNCIL OF THE TOWNSHIP

OF CRANFORD and the PLANNINGBOARD OF THE TOWNSHIP OFCRANFORD,

efendants.

Civil Action

Implementation of Site-Specific

Builders Remedy in the Form of

Application by CranfordDevelopment Associates LLC et al

For Preliminary and Final Site PlanApproval, 215-235 BirchwoodAvenue, Cranford Township, NJ,

Block 291, Lot 15.01 and Block292, Lot 2

AndFor An Order Compelling Cranford

to Consent to Plaintiffs Regradingof a Portion of Birchwood Avenue

PLAINTIFFS PROPOSED FINDINGS AND CONCLUSIONS

FINDINGS

The proceedings

1. The Law Division of Superior Court (L. Chrystal, JSC, sitting) ruled on July

2931, 2011, that defendant Cranford Township is in violation of its fair share housing obligations


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and that plaintiff Cranford Development Associates LLC et al (hereinafter collectively CDA)

is entitled to a site-specific builders remedy, namely the right to construct an inclusionary

development consisting of 360 housing units on its property located at 215-235 Birchwood

Avenue, including low and moderate income units on terms specified by the Court. On

December 9, 2011, the Court entered an order embodying this decision.

2. In implementation of its order granting the builders remedy, the Court designated

Douglas Wolfson, Esq. as Special Hearing Officer (hereinafter the Special Hearing Officer) to

hear CDAs application for site plan approval and to make a wr itten report to the Court

containing findings of fact and conclusions of law.

3. By order dated August 6, 2012, the Court also directed the Special Hearing

Officer, to conduct proceedings and make a written report to the Court containing findings of

fact and conclusions of law on the issue of whether defendants Township of Cranford et al

should be required to take all formal actions necessary to permit Cranford Development

Associates LLC at its own expense to regrade a stretch of Birchwood Avenue to elevate it to a

level one foot above the flood hazard area design elevation in accordance with the plans prepared

by L2A Land Design, LLC as part of its construction of the proposed inclusionary development

at 215-235 Birchwood Avenue.

4. On June 6, 2012, CDA, following the procedure outlined in a memorandum

prepared by Court-appointed Special Master Elizabeth McKenzie and dated March 15, 2012,

submitted to the Special Hearing Officer the equivalent of an application for site plan approval.

The application included the following supporting documents:

a. Preliminary and final site plan and application for individual flood hazard area

permit, M.E. Dipple, June 4, 2012 25 sheets (Ex. A-4)


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b. Architectural plan, Lessard Design, June 5, 2012 8 sheets (Ex. A-5)

c. Engineering report, M.E. Dipple, Rev. June 4, 2012 (Ex. A-6).

5. Subsequently CDA also submitted the following additional supporting documents

a. Traffic impact assessment, E. Dolan, June 14, 2012 (Ex. A-11)

b. Letter report, Lessard Design, July 31, rev. August 1, 2012 (Ex A-8)

c. Code analysis, Lessard Design, Aug. 1, 2012 (Ex. A-9)

d. Fire code analysis, Lessard Design, Aug. 1, 2012 (Ex. A-10)

e. Letter report, M.E. Dipple, July 31, 2012 (Ex. A-11)

f. Letter report, M.E. Dipple and C. Emerson, Aug. 6, 2012 (Ex. A-12)

g. Sanitary sewer capacity study, M.E. Dipple, January 2009 (Ex. A-17)

h. Supplemental Traffic Report, E. Dolan, August 23, 2012 (Ex. A-24)

6. CDAs site plan included the proposed regqrading of Birchwood Avenue.

7. The application was comprehensively reviewed by the Township. The review

included reviews by the Townships own professionals and by outside traffic and engineering

consultants whom it retained in accordance with standard municipal land use practice and

charged to the escrow account established by at the expense of CDA in accordance with

municipal ordinance and the recommended procedures of the Special Master .

8. In response to the application the Township of Cranford submitted the following

review reports:

a. Memorandum from Code Official R. Belluscio to P. Morin, 7-18-12 (Ex. D-1)

b. Letter from Traffic Consultant J. Staiger to P. Morin, 8-7-12 (Exs. D-2 and D-14)

c. Memorandum from Cranford Police Traffic Division to P. Morin, 7-15-12 (Ex. D-

3)


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d. Memorandum from Municipal Engineer R. Marsden to P. Morin, 7-20-12 (Ex. D-

4 )

e. Memorandum from Zoning Officer R. Hudak to P. Morin, 7-18-12 (not in

evidence)

f. Memorandum from Fire Chief L. Dolan to P. Morin, 7-18-12 (Ex. D-17)

9. On August 1, 2012, representatives of CDA together with its professionals met

with representatives of Cranford Township, together its municipal attorney, municipal engineer,

construction code official, zoning officer, and police department representative to jointly review

the application.

10. In an Order dated August 6, 2012, over objections from the Township and with

CDA taking no position before the Court on the location of the hearings, the Court ordered

Special Hearing Officer to conduct hearings in the Union County Court House in Elizabeth, New

Jersey, during regular court house hours.

11. On July 24, 2012, CDA served public notice of the application by certified mail,

return receipt requested, on owners of real property within 200 feet of Block 291, Lot 15.01 and

Block 292, Lot 2 in the Township of Cranford as shown on the certified list of property owners

provided by Peter Barnett, Township Assessor for the Township of Cranford dated June 1, 2012,

on all utilities and cable television operators servicing the property or having facilities located

within 200 feet of the property and any military facility commander registered with the

municipality, and the Union County Planning Board and James Simpson, New Jersey

Department of Transportation Commissioner. (Ex. A-1) The Township objected to the scope

and sufficiency of the Notice by letter dated August 3, 2012, which correspondence is part of the

record before the Court.


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12. The hearing was conducted by the Special Hearing Officer on August 8, 9, 21, 22,

and 23, 2012, in the form of a public hearing on a site plan application under N.J.S.A. 40:55D-

10. The Special Hearing Officer and Special Master Elizabeth McKenzie were present and

participated in the entire public hearing.

a. The applicant presented witnesses, each of whom was then questioned by counsel

for the Township, and members of the public. The applicant was permitted to conduct redirect

and the counsel for the Township and members of the public were permitted to ask questions

limited to topics addressed in the redirect. Special Master Elizabeth Mckenzie and the Special

Hearing Officer then asked questions. Finally, counsel for the applicant and the Township and

members of the public were permitted to ask questions on topics addressed in the questions by

the Special Master and the Special Hearing Officer.

b. The Township then presented witnesses, following the same procedure.

c. Finally, members of the public were permitted to present testimony under oath.

d. The applicant, the Township, and members of the public were permitted to offer

documents into evidence, which were marked, and by stipulation all moved into evidence. A list

of the exhibits received into evidence is attached as Appendix A.

13. CDA presented the testimony of the following witnesses:

a. Christian Lessard architect (8/8 T. 31-160)

b. Elizabeth Dolan, P.E. traffic engineering (8/8 T. 161-230).

c. Michael Dipple, P.E. engineering and hydrology (8/9 T. 5-153 , 8/21 T. 7-173 ,

8/22 T. 5-129, 8/23 T. 101-103)

d. Peter Hekemian (8/9 T. 154-160)


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e. Clay Emerson, PhD. engineering and water resource engineering (8/23 T 144-

195)

14. The Township presented the testimony of the following witnesses:

a. Richard Marsden engineering (8/22 T. 129-200, 8/23 T. 5-87)

b. Joseph Staiger traffic engineering (8/22 T. 105-129)

c. Leonard Dolan fire chief (8/23 T.103-143)

d. Thomas Creelman engineering and hydrology (8/23 T. 87-100)

15. The following members of the public testified:

a. Laura Tarulli (8/23 T. 197-98)

b. Rita LaBrutto (8/23 T. 198-214).

c. Maria Anderson (8/23 T. 214-232)

d. Liz Sweeney (8/23 T. 232-238)

Existing conditions on the property

16. The application concerns a 15.8-acre property located at 215 and 235 Birchwood

Avenue in Cranford Township, a property designated Block 291, Lot 15.01 and Block 292, Lot 2

on the Townships tax map. Site Plan (Ex. A -4).

17. The site is currently developed with two office buildings and associated paved

parking areas. The remainder of the site is mature woods, a mixture of evergreen and deciduous

vegetation, and lawn. Casino Brook, a narrow stream that is a tributary of the Rahway River

(also known as Rahway River Branch 10-24) forms the western edge of the site. The southeast

corner of the site has another man-made ditch. Dipple, 8/8 T. 12-15; Site Plan, sht. C-02 (Ex. A-

4); Aerial Photo (Ex. A- 8).


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18. The site contains regulated freshwaster wetlands and wetlands transition areas,

which have been delineated by the NJDEP in a formal Letter of Interpretation. Letter from A.

Clark, Northeast Region Supervisor, Bureau of Inland Regulation, NJDEP to Michael Rehman,

July 20, 2009 (Ex. A-18); Site Plan sht. C-02 (Exs. A-4, A-14); Dipple, 8/9 T 13, 42-44. It also

contains areas within the regulated floodway and flood fringe area of Casino Brook. Site Plan

sht. C-02 (Exs. A-4); Dipple Engineering Report, Sheet FS-01, Dipple, 8/9T 13-14.

19. The surrounding uses include a health care facility to the east of the site, an office

building to the west of the site, and an office building owned by Verizon, Inc. and a municipal

recycling center to the north of the site on the other side of Birchwood Avenue. The nearest

existing residential units are single family houses on Wadsworth Terrace to the south of the site,

which back up to the site. Lessard, 8/8 T. 34-35; Dipple, 8/9 T. 10-11; Aerial photo (Ex. A- 8).

20. As amended by Ordinance No. 2012-11, Cranford Townships zoning ordinance

locates CDAs property in the Inclusionary Multi-Family Residential (IMR) zone. The

properties on the west, north and east are located in the Low Density Office District (I-O) zone.

The properties to the south are located in the R-4 Single Family Detached Residential zone. Site

Plan shts. C-O1,C-04 (Ex. A-4)

The proposed development

21. As set forth in the application, CDA proposes to develop the site with two

residential buildings, a garage structure, surface parking, walkways, lawns, open spaces,

preserved woods, wetlands, wetlands buffers, and recreational amenities. In accordance with the

Courts Order of December 9, 2011, CDA proposes to construct a total of 360 dwelling units.

Site Plan, sht. C04 (Ex. A-4, A-14); Lessard 8/8 T. 35-36; Dipple, 8/9 T. 16-17.


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22. As proposed, Building A fronts on Birchwood Avenue. It consists of a parking

level (parking podium) with three stories of residential units above it. It includes 60 residential

units and 58 parking spaces in the parking podium. Building B fronts on Birchwood Avenue and

wraps around Building C (parking structure). It would consist of four stories of residential units.

It includes 300 residential units. Building C fronts on the internal drive on the east side of the

site. It is four-level parking structure with 520 parking spaces. There are an additional 89

surface parking spaces along the internal drive. Lessard, 8/8 T. 36-37; Site Plan, sht. C-04 (Ex.

A-4, A-14); Architectural Plan, sht. 5 (Ex. A-5); Dipple, 8/9 T. 17-19, 22-23.

23. At its nearest point, Building A is approximately 545 feet from the rear property

line of the houses facing on Wadsworth Terrace, Lessard, 8/8 T. 95, and 70 feet from the lot line

of the health care facility to the east, Lessard, 8/8 T. __. .. At its nearest point, Building B is

approximately 205 feet from the rear property line of the houses facing onto Wadsworth Terrace.

Lessard, 8/8 T 50.

24. Building A will have a height of 55 feet above grade, measured to the midpoint of

the roof as mandated by Ordinance 2012-112(E)(6). Lessard, 8/8 T. 43. Architectural Plans, sht.

9 (Ex. A-5). Building B will have a height of 51.8 ft, measured to the midpoint of the roof.

Lessard, 8/8 T. 49; Architectural plan, sht. 9 (Ex. 5). The top level residential units in each

building will each include a loft level which will be open and look down on the main level of the

unit. These lofts will be within the level of the roof and will not add to the height of the

building. Architectural plan, sht. 9 (Ex. 5), Lessard, 8/8 T. 41-42,45-46. The parking structure

(Building C) will have four levels, of which the top level will be open and not roofed. Lessard,

8/8 T. 93. The floor level of the fourth level will be 38 feet above grade. Architectural Plans, sht.

9 (Ex. A-5).


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25. A two-way internal driveway will form a loop through the project, providing

ingress and egress onto Birchwood Avenue at two separate points. Site Plan, sht. C-04, Dipple,

8/9 T. 16. In conformity with the Residential Site Improvement Standards, the width of the

cartway of the driveway will be at least 24 feet at all points. Site Plan, sht. C-04, Dipple, 8/9 T.

28..

26. Access by residents and guests to Building A will be from the internal driveway

and from the ground floor podium parking area. Access by residents and guests to Building B

will be from each level of the parking structure (Building C) and from the internal driveway.

Architectural Plans, shts. 1, 3 (Ex. A-5), Lessard, 8/8 T. 39-40.

27. In conformity with the RSIS as determined by the court, the project provides 1.85

parking spaces per unit. This includes .5 guest spaces per unit. Architectural Plans, sheet 1 (Ex.

A-5); Dipple, 8/21 T 156, 8/22 T. 52. The parking spaces for guests are not separately

designated. If all the parking spaces in podium level of Building A are occupied, residents and

guests will be free to park in the surface level spaces between Building A and Building B, in the

parking structure (Building C), or in the surface spaces to the east of Buildings B and C.

Residents and guests of units in Building A have direct access to the spaces in Building C

through the entrance and pedestrian walkway through Building B. Architectural Plans, sheet 1

(Ex. A-5), The parking spaces will include 14 designated handicapped spaces, of which two will

be handicapped van spaces as required by the Uniform Construction Code. Lessard, 8/8 T.64-65;

Dipple, 8/9 T. 24-25, 123-124.

28. The drop off point for persons coming to the project would be inside the parking

structure for Building B and in the podium parking area for Building A. If someone did not want

to go into the parking structure or podium parking, the drop off would be on the eastern driveway


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by the entrance to the parking structure for Building B and on the western driveway for Building

A. Because there are no entrances into the buildings on the sides facing Birchwood Avenue,

persons would not normally be dropped off on Birchwood Avenue. Dipple, 8/9 T. 139 - 40.

29. All parking spaces (except the handicapped van spaces) will be 9 feet by 18 feet

in accordance with the statewide Residential Site Improvement Standards. Dipple, 8/9 T. 122.

30. Loading areas are provided adjacent to the internal driveway near the entrance to

Building A and near the entrance to the parking structure (Building C). Dipple, 8/9 T. 26.

Residents may move furniture and personal possessions into and out their residential units on

carts through the elevator, and parking areas to these loading areas. Elevators and doorways are

designed to be wide enough to accommodate such carts. Dipple, 8/22 T. 57-58.

31. Trash will be collected inside each building, stored inside the building, and

wheeled outside in carts for pickup at the driveway. Lessard, 8/8 T. 41.

32. Of the residential units, 54 units15 percentwill be reserved for, and

affordable to, low and moderate income households. Lessard, 8/8 T.35-36. In conformity with

regulations of the New Jersey Council on Affordable Housing, 11 units will be three-bedroom

units, 32 units will be two bedroom units, and 11 units will be one bedroom or studio units.

Lessard, 8/8 T. 141.

Compliance with standards in Ordinance No. 2012 and

the Courts Order of December 9, 2012

33. The proposed structures comply with all the bulk standards set forth in Ordinance

No. 2012-11 and the Courts order of December 9, 2012:

Required Proposedinimum tract area 15 acres 15.86 acresinimum lot frontage 750 feet 825.84 feetinimum front yard setback 25 feet 25 feetinimum average front year setback 30 feet 44.36


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inimum side yard setback 55 62.37inimum rear year setback 175 196.75aximum impervious coverage 31.21% (existing

imperviouscoverage)

31.1%

aximum height 55 feet


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8/22 T. 143, 186. However, the Township, through counsel, reserved the right to address the

issues of construction code compliance to the municipal permitting process, should CDA

ultimately proceed with the development.

Compliance with the statewide Residential Site Plan Improvement Standards

37. The application was designed to comply with the Residential Site Plan

Improvement Standards, as construed by the Court in its Order of December 9, 2012. Dipple,

8/9 T. 28, 121, 126, 8/21 T. 156, 8/22 T. 24, 98.

38. The Township did not identify any violations of the Residential Site Plan

Improvement Standards.

Infrastructure

39. The additional traffic generated by the project will not exceed the capacity of

Birchwood Avenue. It will have only a small impact on the intersections of Birchwood Avenue

and Orange Avenue, Cranford Avenue, and Bloomingdale Avenue. Those intersections will all

continue to function at acceptable levels. The Birchwood Avenue northbound approach operates

at level of service "E" duing the peak morning hour. J. Staiger, 8/22 T. 111-112. This is a

minimal level of acceptablility. Id. No improvements at any of those intersections are

recommendedquired or would increase traffic safety at any of those intersections. E. Dolan, 8/8

T. 161-230; J. Staiger, 8/22 T. 105-129; E. Dolan, Traffic Impact Assessment (Ex. A-11); E.

Dolan, Supplemental traffic impact assessment (Ex. A-24); Staiger, Letter to P. Morin (Exs. D-2

and D -14).

40. Fire Chief Leonard Dolan expressed a number of concerns about the layout of the

site plan: the angle at which the internal driveway meets Birchwood Avenue at the easternmost

ingress/egress may impede access by Cranfords fire equipment; the turn radius of the internal


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driveway around the south end of Building B may impede access by Cranfords largest truck,

and if, during a flood event that restricts access to the project through the westernmost

ingress/egress, the width of the internal driveway may be too narrow to both accommodate

Cranfords largest truck and permit access by other vehicles to Building A. Dolan, 8/23 T. 107-

125, Dolan Memorandum, (Ex. D-17). The issues willcan be addressed by straightening the

eastern ingress/egress as proposed by CDA, Marsden, 8/22 T. 144-45; by increasing the turn

radius on the interior drive around the south Building B to 30 feet and reducing the height of the

curb, Dipple, 8/9 T.28-29, 125-126, 132; Truck turning diagram (Ex. A-15); Marsden, 8/22 T.

144-45; L. Dolan, 8/23 T. 130, providing mountable curbs along the internal drive, L. Dolan,

8/23 T. 130-131, and providing turnouts at various points along the internal driveway L. Dolan,

8/23 T. 122-25. CDA shall submit a revised site plan to the Township and to the Court

evidencing compliance with the changes proposed by CDA.

41. Fire Chief Dolan was accepted as an expert in the field of fire safety design. also

expressed concerns about adequate access to the site under severe flooding conditions which

might make Birchwood Avenue impassable. He also expressed significant concerns over

adequate access to the site in the event of an emergency condition during flooding conditions due

to the constraints of the "narrow and deep" site of which the "majority of the site does not front

the roadway" with "limited access for emergency purposes", particularly in situations in which

the westerly driveway would be inaccessable. L. Dolan, 8/23 T. 114-117. Elevation of

Birchwood Avenue to one foot above the flood hazard design elevation as shown on the site

plan. Site Plan, shts.. C-04, C-19 (Ex. A-4), would potentially provide assure at least one safe

street access even in a 100-year flood event. L. Dolan, 8/23 T 113. While elevation of one foot

above the flood hazard design elevation This meets the regulatory requirements of is adequate


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for public safety purposes as determined by NJDEP,. Dipple, 8/9 T. 127, CDA provided no

testimony from an expert in fire safety design or any other qualified expertto support the fact

that such a change in the elevation of Birchwood Avenue would actually permit adequate

emergency vehicle access to the development, which is the burden of CDA. CDA, during cross-

examination, attempted to discredit Fire Chief Dolan, a 35-year member of the Cranford Fire

Department, including 15 years as the fire chief, by questioning him about his review of a

separate and distinct development project located in Cranford's downtown district, commonly

known as the Riverfront Development. The Riverfront Development project is distinguishable

from the proposed CDA project from a public safety standpoint. The Riverfront Development

project is located approximately a quarter of a mile from the Cranford Fire Department while

CDA's proposed development is approximately over a mile away. Dolan, 8/23 T. 142.

Additionally, emergency vehicle access to the Riverfront Development project is accessible from

three public streets, Dolan, 8/23 T. 143, while the proposed CDA project is "long and deep"

without significant frontage along the public right of way. Dolan, 8/23, T. 116. Thus, a

proposed finding by CDA that attempts to diminish Chief Dolan's credibility is not properly

founded. The force of Dolans expressed concern is diminished by evidence that Dolan did not

express a similar objection to the municipalitys Riverfront Development, Dolan, 8/23 T. 136-39;

L. Dolan. Review Reports on Site Plan Application for Riverfront Redevelopment Project (Ex.

A-28), even though that development includes multifamily housing and the development and all

the surrounding streets lie within the state-approved flood hazard area. Dipple, 8/9 T . 86-89;

Flood Hazard Area Permit for Riverfront Redevelopment Project (Ex. A-22).

42. Water for domestic consumption and fire suppression will be provided through

connection to Cranford Townships public water system. Dipple, 8/9 T 29-32. TWhile the


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parties are in dispute as to whether the public water system provide enough water to the site for

fire suppression. If the existing system does not provide enough water to the site for fire

suppression, replacing the existing water main along Birchwood Avenue from the hydrant at the

east end of the property to Bloomingdale Avenue with 12- inch pipe and increasing the looped

water line on the site to 12-inches along with a second connection to the looped system would

provide sufficient water. L. Dolan, 8 /23 T. 128, 133-34; Dipple, 8/9 T. 32. Providing a fire

pump at grade level would, if necessary, assure sufficient water for fire suppression at all levels

for Buildings A, B and C. Lessard, 8/8 T. 86-87.

43. Sanitary sewage service will be provided by connection to the Cranford Township

sanitary sewer system. Treatment for this system is provided by the Rahway Valley Sewerage

Authority in Rahway, which has sufficient capacity. Dipple, 8/21 T. 172.

44. Cranfords sanitary sewer conveyance system is old. The line that runs between

the property and border with Roselle Park is at least 40 to 60 years old and some stretches, which

were constructed at the same time as the Garden State Parkway or earlier must be at l east 64

years old. Marsden, 8/23 T. 27-30. The system suffers from a serious problem of inflow

surface water entering the system--and infiltrationgroundwater entering the system. Marsden,

8/22 T 158, 160. The system has had relatively few failuresfour lines breaks within the entire

municipality within the last eight years. Marsden, 8/23 T. 31-32. Two of those breaks, however,

have occurred in the stretch of line between the Garden State Parkway and the border with

Roselle Park, which is part of the system that would serve the project, in the past year. Marsden,

8/23 T. 30 -34.

45. Based upon review of the municipal sewer system map, Sanitary Sewer Capacity

Study, Existing Sanitary Sewer Map (Ex. A-17) and measurement of existing flow through the


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pipes in this system between the property and the border with Roselle Park, the system has

sufficient existing capacity to provide service through simple gravity driven flow (open channel

flow), except for threetwo stretches of pipe. Because, as shown on the sewer system map, each

of these stretches is essentially flat, analysis under simple gravity flow (open channel flow)

shows it as having no capacity. This is not a function of the size of the pipes but of the lack of

slope. CDA's engineer claimed that aA field survey indicated that one of these stretches of pipe

actually has adequate slope and functions properly and safely under simple gravity under both

average and peak flow conditions, although no report or data supporting that conclusion was

presented to the Township of the Special Hearing Officer before or during the hearing. The two

remaining stretches operate properly and safely under average and peak flow conditions under

pressurized flowso-called surcharged flow. The pressure created by energy of the effluent

flowing into the stretch carries it through. If the flow slows down, it backs up and creates

additional pressure that forces it through. Dipple, 8/9 T 35-40; 8/21 T 103-105, 8/22 T. 37 -40

Sanitary Sewer Capacity Study, Tables 1 and 2 (Ex. A-14)

46. Based upon an early designfor 422 unitsthe project would have added 83,850

gallons per day to the system. Sanitary Sewer Capacity Study, Table 3 (Ex. A -14). The present

design for 360 units would add significantly less flow, although still significant. In the opinion

of CDA's engineer, eEven adding 83,850 gallons per day, the amount that would be generated

under NJDEP design standards by 422 units, the system operates properly and safely under

average and peak flow conditions. In the opinion of CDA's engineer, aAll of the stretches that

currently operate through simple gravity flow will continue to do so properly and safely; all of

the stretches that operate through pressurized flow (under surcharged conditions) will continue to

do so properly and safely. CDA's engineer further opined that tT he additional flow will not


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cause any stretch of pipe to transition from simple gravity flow to pressurized flow. Dipple, 8/9

T. 35-40, 8/21 T. 103-105; 8/22 T. 37-40, 91-93; Marsden, 8/23 T 39. CDA's engineer stated

that aA more sophisticated evaluationa so-called hydraulic grade line study-- indicates that

even where the system is currently operating under pressurized conditions, the level of flow for

the most part does not go above the level of the pipes, i.e., it does not rise in the manholes above

the level of the pipes. Moreover, because of the depth of the pipes, the backups that routinely

occur in the stretches of the sewer line that operate under pressurized conditions would not cause

the effluent to rise to any significant degree in the manholes above the levels to which they

currently rise, even in peak conditions. Dipple, 8/22 T 40-42, 91-93. It is the opinion of CDA's

engineer that tThe system will operate safely and effectively with the additional flow. Dipple,

8/9 T. 137 -38; 8/22 T. 37-42, 46, 91-93.

47. Cranford engineer Richard Marsden expressed concern that, given the age of the

existing system, the substantial additional flow from the project, combined with existing flows

and existing unremediated inflow and infiltration, will create potential risks of future line breaks.

Marsden, 8/22 T. 155-162, 8/23 T. 27. He recommended that approximately 1,300 linear feet of

off-site sewer pipes be relined to reduce inflow and infiltration and increase the integrity of the

esting pipe, as it provides a "brand-new smooth surface on the pipe reducing the friction factor ...

[and] allowing more flow through." Such measures will allow for a less presurized flow and

reduction of the head that exists there now. Marsden, 8/22 T. 161. He attributed substantial

responsibility to CDA for remedial measures to the sewer line to the substantial amount of new

flow added to the system, although hHe was unable to present a calculation of the pro-rata share

of CDA did not specify the magnitude of the potential risks. Nor could he apportion the risk

between the age and condition of the existing system and the impact of the additional flowat the


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time of the hearing. Marsden, 8/22 T. 161-172. As there is a legitimate dispute as to the

responsibility of CDA for such off -tract improvements under the off-tract improvement

provisions of the Cranford Land Development Ordinance, section 136-27, the parties, at the

recommendation of the Special Hearing Officer, agreed to meet to attempt to resolve this issue

and, in fact met on September 21, 2012 to discuss this matter, and the parties will be provid ing a

supplemental response to the Special Hearing Officer and/or to the Court as to whether the issue

of allocation of the cost of sewer improvements can be resolved between the parties.

Compliance with wetland, stormwater, and flooding hazard standards

48. The property includes areas of state-regulated freshwater wetlands and state-

regulated wetlands transition areas. Presuming that the calculations provided by CDA's

engineers are accurate and subject to NJDEP review and approval, t The project will not involve

any intrusion into regulated freshwater wetlands. Dipple, 8/9 T. 43. It is undisputed that the

project It will involve small intrusion into freshwater wetlands transition areas. Dipple, 8/9 T.

43-44. With notice to Cranford, Public Notices of CDA Application for Flood Hazard Area

Permit and Wetlands Permit (Ex. A-19), CDA has made applications to the NJDEP for approval

of a freshwater wetlands transition area averaging plan, as permitted under NJDEP regulations

and will comply with all the NJDEP regulations concerning construction in the vicinity of a

wetlands transition area. 8/9 T. 42-44, 46-47, 144-145.

49. Marsden has suggested that construction of a short stretch of pipe will require

approval by the NJDEP. Marsden, 8/22 T 156, 187. CDAs engineer testified that if NJDEP

determines that a general permit is required for that pipe, such a permit for that disturbance is

routinely available under the NJDEP regulatory standards for a NJDEP General Permit 2.

Dipple, 8/9 T. 44-45, 135-136.


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50. Municipal engineer Richard Marsden has expressed various other concerns as to

the impact of the project on freshwater wetlands. These objections should be addressed prior to

the granting of final site plan approval and should be a condition of approval. Furthermore, aAll

of these objections can be raised before the NJDEP in connection with the pending application.

51. The proposed project will disturb more than one acre and is therefore subject to

regulation under New Jerseys stormwater regulations. Dipple, 8/9 T. 48. The stormwater

standards are incorporated into both the uniform Residential Site Improvement Standards and

NJDEP regulations. Dipple, 8/9 T. 48. As part of its flood hazard area permit application, CDA

has filed an application for approval by the NJDEP of its stormwater management plan. Dipple,

8/9 T. 43.

52. CDA filed this flood hazard area permit application with public notice to Cranford

Township and nearby residents. 8/9 T. 42-44, Public Notices of CDA Application for Flood

Hazard Area Permit and Wetlands Permit (Ex. A-19). Cranford Township and individual

members of the public are entitled to submit objections to this application. Dipple, 8/9 T. 47.

The Township of Cranford has participated in the NJDEP review process by submitting

objections. Marsden, 8/23 T. 14-16 ; Letter from R. Marsden to Engineering Supervisor for

Union County, NJDEP, January 3, 2012 (Ex. A-26); Memorandum from R. Marsden to V.

Opara, NJDEP, August 2, 2012 (Ex. A-27).

53. The state stormwater regulation imposes four principal standards: storm water

quantity, storm water quality, infiltration to ground water, and nonstructural strategies or best

management practices. The proposed project is specifically designed to meet each of these

standards to the extent applicable. Dipple, 8/9 T. 48.


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57. In accordance with NJDEP standards, and subject to NJDEP review and approval,

the rate of runoff was modeled based upon existing conditions, including existing buildings,

parking lots and existing drainage structures in the its current state. Dipple, 8/9 T. 56-57, 127-

28; Site Plan, sht. C0-2 (Ex. A-4).

58. Cranford engineer Marsden raised various technical concerns about the

stormwater management plan and calculations upon which it is based, including claims that

CDAs engineer failed to properly account for existing drainage structures, improperly calculated

time of concentration, and did not consider so-called tail water effects. R. Marsden, 8/22 T.

134-137; 190-199, Memorandum from R. Marsden to P. Morin, 7-20-12 (Ex. D-4).

59. CDA failed to provide sufficient evidence, supported by reliable data, that

Marsden's concerns were not valid. For example, Emerson's credential were called into question

as he admitted he is not licensed as an engineer in New Jersey and he has never viewed the

subject property during a storm event, so unlike Marsden and Dolan, he has no understanding of

actual site conditions during a storm event. These concerns were effectively rebutted by CDAs

experts Dipple and Emerson. The drainage structures were modeled in their existing condition.

Dipple, 8/9 T. 56-57, 127-28,. 145- 47, 8/23 T. 101-103. Marsdens critique of the time of

concentration analysis was based upon a methodology not used in CDAs study, which Emerson

claimed would not be permitted to be used by NJDEP and not permitted by NJDEP. Emerson,

8/23 T. 166-67. Emerson further claimed that uUnder NJDEP regulations, tail water effects must

be dealt with by incorporating a mechanical backflow preventer in the detention basin, which

CDA has done. Emerson, 8/23 T. 168. The Court takes judicial notice that, as a non- licensed

engineer in New Jersey, Emerson would not be able to certify the FHA or any other land use


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application to NJDEP, so his testimony as to what NJDEP would require or not require cannot be

deemed credible.

60. While tThese objections also can be made to the NJDEP, which has jurisdiction

over stormwater management plans in the context of CDAs application for a flood hazard area

permit, and have been made by Marsden on behalf of Cranford in his objection letters, the

applicant must demonstrate the adequacy of its stormwater management plan in order to receive

permits for development. Marsden, 8/23 T. 14-16 ; Letter from R. Marsden to Engineering

Supervisor for Union County, NJDEP, January 3, 2012 (Ex. A-26); Memorandum from R.

Marsden to V. Opara, NJDEP, August 2, 2012 (Ex. A-27).

61. The property includes areas within the state regulated floodway and the state

regulated flood fringe. Site Plan, sht. C-02; Dipple, 8/9 T. 58. Flooding is not due in part to

existing conditions on the site, but is primarily the result of from waters flowing from developed

areas north of the site and backing up from an undersized culvert under Wadsworth Terrace to

the south of the site. Dipple, 8/9 T. 58-59; Marsden, Flood hazard map (D-15).

62. The flood hazard area consists of the entire area that would be flooded in a state-

defined flood hazard area flood eventa 100-year storm plus an additional flow rate of 25

percent. It is the area contiguous to the stream which lies below the flood hazard area

elevation--the maximum elevation of flood waters in a flood hazard area flood event. The

floodway is the portion of the flood hazard area which would actually carry the downstream flow

of water during a flood hazard area flood event. Its boundaries are determined using a model

approved by the NJDEP. The flood fringe is the remainder of the flood hazard area and consists

of areas where waters pond and are stored during a 100-year flood event and which do not


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actually carry the downstream flow. Dipple, 8/9 T. 65-68, 72; NJDEP flood hazard area

diagram (Ex. A-20).

63. As part of its flood hazard are permit application, CDA has modeled Branch 10-

24, determined its flood hazard area elevation and delineated its floodway boundary and flood

hazard area boundary based upon existing conditions on the site in accordance with the NJDEP

approved methodology. Dipple, 8/9 T. 59-65, 72; Dipple Engineering Report, sht. FS-01 (Ex. A-

6); Site Plan, sht. C-02 (Ex. A-4). As required by the NJDEP approved methodology, this model

includes an existing office building and parking lot at 235 Birchwood Avenue which are located

in the floodway. Dipple, 8/9 T. 64 -65; Emerson, 8/23 T. 150-151. The flood hazard area

elevation is at a level of 78.6 feet (above the level of the basepoint). Dipple, 8/9 T. 72. The

floodway boundary and the flood hazard area boundary are shown in the site plan. Site Plan sht.

C-04 (Exs. A-4, A-14); Dipple, 8/9T 13-14.

64. Cranford engineer Marsden expressed concerns about the correctness of the

methodology for determining the location of floodway boundary, including, among other things,

that it did not follow existing topographic contour lines, was improperly affected by the existing

office building at 235 Birchwood Avenue, and did not split the flow of flood waters coming from

north of Birchwood Avenue between the stormwater pipes under the street and surface flow

across the street. Marsden, 8/22 T. 138-140, 8/23 T. 61-72; Marsden memo to P. Morin (Ex. D-

4).

65. While tThese objections can also be made to the NJDEP, which has jurisdiction

over the flood hazard area permit, and have been made by Marsden on behalf of Cranford in his

objection letters, CDA has failed to meet its burden of proof to obtain the extraordinary remedy

of an order requiring the elevation of Birchwood Avenue absent submission of data supporting


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its position that the floodway boundary was correctly determined. . Marsden, 8/23 T.14-16, 72-

75; Letter from R. Marsden to Engineering Supervisor for Union County, NJDEP, January 3,

2012 (Ex. A-26); Memorandum from R. Marsden to V. Opara, NJDEP, August 2, 2012 (Ex. A-

27).

66. CDA provided no objective data to rebut the testimony of Marsden. As such,

tThese concerns were not effectively rebutted by the testimony of CDAs experts Mr. Dipple

and Dr. Emerson. They claimedexplained that under NJDEP standards, the floodway boundary

must be determined utilizing existing conditions, including the existing structures, and cannot

lawfully be determined any other way. Because it is based upon a conceptual computer model of

the area required for the flow of floodwaters, the floodway need not be, and usually does not,

follow existing topographic contour lines. The computer model expressly splits the flow between

the storm water conduits under Birchwood Avenue and surface flow. Dipple, 8/9 T . 129-130;

Emerson, 8/23 T 147-157; Letter report, M.E. Dipple and C. Emerson, Aug. 6, 2012 (Ex. A-13).

67. Although CDA raised through cross-examination of Marsden at the hearing The

force of the concerns expressed by Marsden is diminished by the fact that, although that he

reviewed floodway boundary determinations made by Dipple before the trial in the present case

in the summer of 2010, had an opportunity to request for the underlying data from Dipple in

August 2010, testified as to this issue at the trial, reviewed the floodway boundary determination

again in December 2011 in connection with CDAs flood hazard area permit application to the

NJDEP, filed objections to that application, and had the knowledge and experience to run the

standard computer model to determining the floodway boundaries himself, he did not actually

run the computer model. Marsden, 8/23 T. 6-18, 64. As a result, he could not testify based upon

any actual data as to whether the boundary determined by Dipple and Emerson was incorrect or


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the magnitude of any purported error. Marsden, 8/23 T. 18, 64. Moreover, Marsden himself

conceded that under NJDEP regulations the floodway had to be at the time of application based

upon existing conditions and would not be determined again based upon a change in those

conditions. 8/23 T. 82-83. However, the burden of proof is not upon the Township, but CDA

must establish that it has adequately determined the floodway boundary if the site plan is to be

approved and NJDEP permits are to be issued.

68. Based upon the floodway as shown on the site plan and testimony of CDA's

engineer, the plan is cConsistent with NJDEP regulations, the project does not include any

construction in the floodway. 8/21 T. 89; Site Plan, sht. C-04 (Ex. A-4). Rather, CDA proposes

to demolish and remove an existing office building and parking lot located within the state-

regulated floodway. Dipple, 8/9 T. 65; Site Plan, sht. C-03 (Ex. A-4). CDA provided testimony

that tThis will improve the functioning of the floodway and actually reduce the area of flood

flow. Emerson, 8/23 T. 151.

69. Based upon the application submitted to NJDEP, and subject to NJDEP's review

and approval, tThe project includes construction in the flood fringe area, including Building A

and a portion of the internal driveway adjacent to Building A. Buildings B and C and remainder

of the internal driveway are entirely outside of the flood fringe area. Site Plan, sht. C-04 (Exs.

A-4, A-14).

70. Under NJDEP standards, construction is permitted in the flood fringe provided

state regulatory standards are met. Specifically, the project may not reduce the amount of flood

storage in the flood fringe area; all residential units within the flood fringe area must be at least

one foot above the flood hazard design elevation; to the extent possible all parking for residential

units within the flood fringe area must be at least one foot above the flood hazard design


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elevation; for public buildings within the flood fringe, the roadway must provide at least one

emergency exit route that is at least one foot above the flood hazard design elevation. Dipple, 8/9

T. 72.

71. CDA testified that tThe project was designed to comply with NJDEP standards

for a flood hazard permit. Dipple, 8/9 T. 72. The design included a calculation showing the

amount of flood storage within the flood fringe under existing conditions. Engineering Report,

sheet FS-1 (Ex. A-6). It also included a grading plan designed to assure that the project does not

reduce the amount of flood storage within the flood fringe area during any of the relevant

potential flood events including a flood hazard area flood event. Dipple, 8/9 T. 70-71. This plan

includes providing for crawl spaces under Building A to provide additional flood storage within

the flood fringe area as permitted by NJDEP regulations. Dipple, 8/9 T. 74-74; Architectural

Plans, sht. 9 (Ex. A-9). Based upon the calculations of CDA, which are subject to review and

approval by NJDEP, tThe project will increase the amount flood storage during a 100-year storm

event from 318,182.9 cubic feet to 321,838 cubic feet. Dipple, 8/21 T. 129-130, Site Plan, shts..

C-10, C-14.

72. The project design provides that all the residential units in Buildings A are

elevated to a level at least 11 feet above the flood hazard elevation and thereby satisfy the

requirement that they be at least one foot above the flood hazard design elevation. Lessard, 8/8

T. 37, 45; Architectural Plans, sht. 9 (Ex. A-5).

73. All of the parking is elevated to a level at least one foot above the flood hazard

design elevation, Lessard, 8/8 T. 44; Architectural Plans, sht. 9 (Ex. A-5). The site plan provides

that the easternly access point on the property An ingress/egress is available even during a flood

hazard area flood event via the driveway to the eastern ingress/egress which lies outside the


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flood fringe area.is one foot above the flood hazard elevation. Dipple, 8/9 T. 72 ; Site Plan, sht.

C-03.

74. This plan was submitted to the NJDEP as part of its flood hazard area permit in

December 2011. NJDEP issued a deficiency notice on February 8, 2011 requesting more

information and changes in the design of the underground detention basin. Dipple, 8/9 T. 76-77,

8/22 T. 94 -97. CDA provided the requested information and made the requested revisions.

Dipple, 8/9 T. 76-77, 8/22 T. 94-97.

75. On March 8, 2012, NJDEP issued a new deficiency notice. Dipple, 8/9 T. 78-79,

NJDEP deficiency notice, March 8, 2012 (Ex. A -21). The notice required additional

documentation, Dipple, 8/9 T. 81-83. It also identified one substantive deficiencyviolation of

N.J.A.C. 7: 13-11.5(h) (Ex. A-23) and advised CDA that the application, as submitted, would

require a hardship waiver under N.J.A.C. 7:13-9.8. Dipple, 8/9 T. 83-85.

76. Based solely upon the testimony of Dipple and without any documentation from

NJDEP or an y contemporaneous correspondence from Dipple or CDA to NJDEP confirming the

alleged deficiency, he claimed that iIn a telephone communication and a subsequent meeting,

NJDEP specified that the alleged deficiency involves N.J.A.C. 7:13-11.5(h) (2). That regulation

provides:

(h) The Department shall issue an individual permit to construct or reconstruct a

public building only if the following requirements are satisfied:

***

2. For a new building in a fluvial flood hazard area, the applicant demonstratesthat the building is served by at least one roadway, the travel surface of which is

constructed at least one foot above the flood hazard area design flood elevation.

Dipple claimed that NJDEP specified that the problem is not with the design of the project itself.

Rather the deficiency is that Building A, which is a deemed to be a public building under the


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NJDEP regulations and which is located in the flood hazard area, lacks a roadway that lies at

least one foot above the flood hazard area design flood elevation. The NJDEP deems the portion

of Birchwood Avenue fronting on the property to be part of the roadway. Both driveways that

serve this building exit onto portions of Birchwood Avenue that lie at elevations lower than the

flood hazard area design flood elevation. Dipple, 8/9 T. 79-81, 84-85.

77. Dipple claimed that tThis deficiency came as a surprise to CDA because it

differed from the NJDEPs policy's "policy" relating to in other projects. He identified only two

projects, however, A , including a project constructed by the same developer in Englewood and a

project in Cranford, known as the Riverfront Redevelopment Project, for which the NJDEP had

granted a flood hazard area permit in February 2010 even though NJDEP expressly noted in the

permit that all the surrounding streets are located in the flood hazard area . Dipple, 8/9 T. 86-89;

Flood Hazard Area Permit for Riverfront Redevelopment Project (Ex. A-22). Dipple had no

involvement with the Flood Hazard Area Permit for the Riverfront Redevelopment Project.

Dipple, 8/21 T. _. On cross-examination of Dipple, he could identify no other projects in which

he dealt with a similar access issue, thus confining his actual "understanding" of NJDEP "policy"

to only one project - the Englewood project. Dipple, 8/21 T. Furthermore, cross-examination

revealed that that the Stream Encroachment Permit issued by NJDEP for project in Englewood

(the precursor to a Flood Hazard Area Permit) was issued in or about 2003, well before the

regulations which the NJDEP was purportedly citing here, were adopted. Dipple, 8/21 T. 13-14.

He conceded that the regulation had changed, but attempted to rely on the "spirit" of the

regulation to deflect the inconsistency in his testimony. Dipple, 8/21 T. 14. Dipple further

conceded that he never had any discussion with NJDEP representatives prior to submitting the

FHA application for the CDA project as to whether the change in regulations from the time he


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worked on the Englewood project in 2003 to the present resulted in a different interpretation of

the regulations as to access to public buildings. Dipple, 8/21 T. 16. Furthermore, Dipple's

credibility on the overall issue of compliance with the FHA regulations must be called int o

question and his credibility compromised due to the fact that he originally opined that an FHA

permit was not required for the project. Dipple, 8/21 T. 20- 23.

78. In response, CDA provided testimony that it allegedly explored various options to

comply with N.J.A.C. 7:13-11.5(h) (2) as construed by the NJDEP, which is the regulatory

agency charged with interpretation of the FHA regulations . It considered extending an

emergency access from the back of the property on North Union, but that option was not

feasible as It reject that option because that access would not be one foot above the flood hazard

elevation for its full length and would itselftherefore violate NJDEP regulations. Dipple, 8/9 T.

100-101. It allegedly attempted to secure the consent of the owner of the health care facility to

construct an ingress/egress on its property, which would have been entirely outside the flood

hazard area, but the owner did not respond to any of CDAs repeated inquiries. CDA did not

provide any copies of correspondence it purportedly sent to the health care facility owner.

Dipple, 8/9 T. 100; P. Hekemian, 8/9 T. 155, 156-157. Rather than seek a hardship waiver, as

recommended by NJDEP, CDA seeks The most promising means to comply with N.J.A.C.:13-

11.5(h) (2) as construed by the NJDEP was toby significantly elevatinge Birchwood Avenue in

the vicinity of the easternmost driveway of the project. Dipple, 8/9 T. 101. CDA has not

submitted a request for a hardship waiver to NJDEP prior to requesting the Court provide the

extraordinary remedy of requiring the Township to elevate a significant portion of Bloomindale

Avenue, which is not owned or controlled by CDA. Dipple, 8/23 T. 99-100. CDA has failed to

exhaust its administrative remedies before NJDEP prior to seeking an order of the Court.


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79. As shown in the site plan application, CDA proposes to regrade Birchwood

Avenue at its sole cost and expense so that when it crosses in front of the projects easternmost

driveway as it goes downhill toward Orange Avenue, it is approximately one foot above the

flood hazard elevation. This changes the level at that point by 1.28 feet. The regrade will affect

about 300 feet of the street. As regraded, the road will still run steadily at a downward slope

toward Orange Avenue and the change in the slope will be so small that it probably will not even

be noticeable. Dipple, 8/9 T. 90-93, 8/21 T. 86, 132-33; Site Plan, pp.C-05, 18, 19 (Ex. A-4).

The regrade will require the replacement of driveway aprons for one driveway for the healthcare

facility and one for the driveway for the municipal recycling facility and also a portion of the

sidewalk in front of the health care facility. All of these improvements will be within the

municipal right of way. Dipple, 8/9 T. 99, 8/22 T. 64. As part of the regrade, three additional

storm drains to the municipal storm sewer system will be added along Birchwood Avenue.

According to CDA's engineer, t This will improve drainage for properties on Birchwood Avenue.

Dipple, 8/9 T. 96-97, 8/21 T. 134-36; Site Plan, pp.C-05 (Ex. A-4).

80. The regrade has been designed as part of the project as a whole to comply with

NJDEP requirements, but CDA has failed to first apply to NJDEP for a hardship, and has thus

failed to exhaust its administrative remedies before NJDEP . In particular, because the regrade

will add fill within the flood fringe (i.e., reduce flood storage), additional storage volume must

be provided elsewhere on the site. According to CDA's engineer, but in dispute by the

Township's professionals, tThe project has been designed to satisfy that standard. Dipple, 8/9 T.

93-94. Furthermore, CDA has provided no calculations or data with respect to the upstream

impact of the elevation of Birchwood Avenue nor addressed that such impact would further

violate the FHA regulations. Marsden, 8/22 T. 145-152; Dipple


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81. The regrade will move the location of the flood hazard area boundary to a point

west of the easternmost driveway. Despite the lack of any reports, data or modeling to support

its conclusions, CDA's engineer claims that the regrading of Birchwood AvenueIt will not have

any effect on the flood hazard elevation because all the lost flood storage will be offset by newly

created flood storage on site. CDA's engineer further claims that, aAs a result, it will not

increase flooding on the properties upstream of the road (i.e. north of Birchwood Avenue) or on

other properties west of the CDA site along Birchwood Avenue that are in the flood hazard area;

. Iit will not affect flooding on properties east of the CDA site because they will remain outside

the flood hazard area; and . R regrading the street will not have any effect on drainage, since the

amount of impervious cover will remain unchanged, but drainage will be improved by the

addition of additional storm drains. Dipple, 8/9 T. 84-100. However, CDA conceded that it

performed no analysis of the impact of the regrading of Birchwood Avenue on upstream

properties and has performed no modeling that demonstrates that the elevation of Birchwood

Avenue would not increase the flood elevation upstream. Dipple, 8/21 T. 39.

82. As a result, CDA proffered net opinions that tThe proposed regrading of

Birchwood Avenue would have no detrimental effect on other residents of Cranford. Dipple, 8/9

T. 84-100, 149-150; Emerson, 8/23 T. 163. Significantly, no data was presented to support the

conclusion that the proposed regrading would not have a detrimental impact on property owners

in Cranford or Kenilworth.

83. Cranfords engineers Marsden and Creelman expressed concerns that moving the

flood hazard boundary on Birchwood Avenue further west would increase the height of the flood

hazard elevation and increase flooding along Birchwood Avenue. Creelman expressed concern

that CDAs engineer had not generated sufficient cross-sections to enable the impact to be


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evaluated. Creelman, 8/23 T. 88-98. Marsden further expressed concern as to the impact of the

regrading on properties north of Birchwood Avenue, including concerns that Dipple and

Emerson had not performed the correct calculation, that they had not correctly accounted for the

fact that the flood waters flow into the area north of the Birchwood Avenue from Kenilworth in

the northwest, and that flooding would increase on properties north of Birchwood. Marsden, 8/22

T. 145-154; Memorandum from R. Marsden to P. Morin, 7-20-12 (Ex. D-4); E-mail from P.

Morin to D. Cohen, 8-3-12 (Ex. D-9).

84. While tThese objections can be made to the NJDEP, which has jurisdiction over

the flood h azard area permit, and have been made by Marsden on behalf of Cranford in his

objection letters,. Marsden, 8/23 T. 14-16 ; Letter from R. Marsden to Engineering Supervisor

for Union County, NJDEP, January 3, 2012 (Ex. A-26); Memorandum from R. Marsden to V.

Opara, NJDEP, August 2, 2012 (Ex. A-27), the Court cannot simply grant at this time the

extraordinary remedy of ordering the Township to allow the regrading of a significant portion of

Birchwood Avenue absent a showing b y CDA through objective data that the roadway elevation

will have no impact on upstream or downstream properties, particularly in light of the fact that

CDA has failed to pursue a hardship application with NJDEP, which is permitted under the

regulations and which Dipple conceded NJDEP recommended. Dipple, 8/22 T. .

85. These concerns were not effectively rebutted by the testimony of CDAs experts

Mr. Dipple and Dr. Emerson. As noted above, both Dipple and Emerson present serious

credibility issues as Dipple failed to even conceded initially that the property was subject to the

FHA regulations. Furthermore, it was only after cross-examination and the fact that the

Township requested the Englewood Stream Encroachment Permit during the site plan hearings

that it became clear that Dipple overstated NJDEP's alleged "policy" with respect to the need to


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have access to a public roadway at least one foot above the FHA elevation. Furthermore,

Emerson, as non-New Jersey licensed engineer, would not be able to certify to an application to

NJDEP and, therefore, the weight of his testimony must be questioned. They testified that,

among other things, even in a flood hazard area flood event, the flow of the flood travels within

the floodway. A change in the boundary of the flood hazard area at a considerable distance from

the floodway and involving a relatively small amount of fill, would have no effect on flood

hazard elevation. Because the entire flood fringe area is hydraulically interconnected and is

dominated by the effect of the undersized conduit under Wadsworth Terrace, the whole flood

fringe area functions as a single lake, i.e., flood waters throughout the area are all at the same

level. Although flood waters that cannot flow downstream through the floodway will

temporarily be stored in the flood fringe area, they are not trapped there but, in due course will

flow downhill into the floodway. Elevating the road does not change this. For the same reason,

the geographic source of the flood waters has no effect and there is no justification for treating it

as geographically divided. Dipple, 8/9 T. 132- 33, 8/21 T. 45-46, 49-50, 93-96,142, 8/22 T. 88-

89; Emerson, 8/23 T. 157-163; 165-68, 174-75, 180; Letter report, M.E. Dipple and C. Emerson,

Aug. 6, 2012 (Ex. A-13). The additional cross-sections requested by Marsden and demanded by

Creelman would provide no additional information, and will do not contribute to the analysis of

the effect of regrading the road and are not utilized the computer model cited b y Creelman.

Emerson, 8/23 T.163-64..

86. The force of the concerns expressed by the Township's engineer and consulting

engineer, Marsden and Creelman, is buttressed diminished by the fact that, despite numerous

requests and the opportunity to provide data or models that supported their net opinions, neither

Dipple nor Emersonof them ran models of the effect of the regrading Birchwood Avenue.


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Marsden, 8/23 T. 18, 64; Creelman, 8/23 T 95. As a result, neither could testify based upon any

actual data as to effect of regrading Birchwood Avenue. or as to the magnitude of any purported

error by Dipple. Marsden, 8/23 T. 18, 64; Creelman, 8/23 T. 88-99.

87. While the rRegrading ofBirchwood Avenue as proposed would provide technical

compliance with NJDEP regulations, CDA presented no testimony from a qualified expert in the

field of fire safety to support the fact that the elevation of the roadway would foster public safety.

by assuring that the elevation would be sufficient to allow access to fire and other emergency

vehicles. Chief Dolan could at best only state that preventing six inches of water "would help"

but presented sound and valid concerns with access to the property based upon his 35 years of

experience in the field of fire safety, including 15 years as chief. foster public safety by assuring

that there is at least one access for fire access and emergency vehicles, even in the event of a

flood hazard area flood event. L. Dolan, 23. T. 1123-117.; N.J.A.C. 7:13-11.5(h)(2).

88. CDA's engineer opined that iIf the proposed regrading of Birchwood Avenue

were not permitted and the proposed project did not get a hardship waiver from the NJDEP and ,

it would be impossible for CDA to construct the project because it would not be able to secure a

obtain a flood hazard area permit from the NJDEP, which is essential to the project. Dipple, 8/9

T. 152-153, 8/21 T. 142-143. However, the Court, in its J uly 29, 2011 Opinion made quite clear

that if NJDEP permits cannot be obtained, the project cannot be built. See Opinion of Hon. Lisa

Chrystal, 7/29/11 at 42 -60. Furthermore, CDA never requested any relief with respect to the

proposed regrading of Birchwood Avenue during trial and any additional facts and testimony

presented at the site plan hearing are not subject to the same evidentiary standards as if before

the trial court. Thus, any testimony presented at the site plan hearing cannot and should not be


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relied upon to provide post-trial relief to a litigant who failed to seek such relief at trial or

through a proper motion for reconsideration directed to the trial court.

Landscaping, tree replacement, requested waiver of tree removal site design standard

89. The site plan includes a complete landscaping and tree replacement plan. Site

Plan, sht. C-07 (Ex. A -4,A- 14). In accordance with the terms of the Court order, it provides for a

10 foot wide landscaped buffer between the driveway and the lot line for the health care facility

which will be landscaped with a dense row of deer-resistant arborvitae (or another suitable deer-

resistant planting) in addition to the existing deciduous trees. Also in accordance with the terms

of the Court order, it provides for a dense buffer of evergreens along the south side of the

buildings between the buildings and single family houses on Wadsworth Terrace. More street

trees will be planted along Birchwood Avenue in addition to the existing street trees. There will

foundation plantings along the foundations of the buildings and ornamental trees in the court

yards and near the entrances. Dipple, 8/9 T. 102-3.

90. Existing trees will remain undisturbed in the wetlands areas, in the wooded areas

at the south end of the site, in the buffer along the eastern edge of the site, and on the street in

front of the buildings. These include mature trees with heights of 30 feet and diameters of 16, 18,

24, and 36 inches and some trees as high as 79 feet. Dipple, 8/9 T. 104-107.

91. Nonetheless, approximately 72 existing trees will have to be removed to make

way for the proposed structures. Dipple, 8/21 T. 160-61, 8/22 T. 14-17; Site Plan, sht. C-07.

Under the terms of tree replacement provision of the Cranfords site plan ordinance, CDA would

have to replace these trees with 295 new trees. CDA proposes instead to plant only

approximately 180 new trees108 more tree than will be removed. It seeks a design waiver

from the tree removal standard. Dipple, 8/9 T. 107-108; Site Plan, sht. C-07.


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92. As proposed, the landscaping plan provides for additional full and extensive

landscaping on the propertya much greater extent of landscaping than currently exists,

although that is not a factor considering the site is currently configured and was previously zoned

for commercial use. The only open area of lawn proposed is in the floodway where the existing

building and parking is currently located. CDA's engineer claims that pP lanting additional trees

in the floodway has the potential to impede the flow of waters through the floodway and to trap

branches and other detritus which could further block the floodway. Dipple, 8/9 T. 108.

93. Cranford is not obligated to has offer proofs offered no proofs as to why the

planting of 223 trees in excess of the number already on the property is necessary to protect

public health and safety and why planting only 108 trees in excess of the number already on the

property will not suffice. CDA has not challenged the tree replacement ordinance as part of the

litigation and must strictly comply with the requirements of the ordinance, particularly in light of

the significant increase in size and mass that the proposed development presents as opposed to

the existing office buildings.

Bicycle racks, request for waiver of bicycle rack design standard

94. The design standards of the Cranford site plan ordinance require racks that

provide spaces for 394 bicycles. As proposed the plan provides for bicycle racks that would

accommodate 40 bicycles exterior to the buildings and additional storage on each level of the

residential building or parking structure (Building C). Dipple, 8/9 T. 109-110; Site Plan, sht. C-

04.. It seeks a design waiver from the bicycle rack standard.

95. Requiring racks for 394 bicycles is exorbitant, greatly in excess of any likely

usage, for this type of midrise apartment building at this type of location. Dipple, 8/9 T. 109-110.


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96. Cranford is not obligated to offer proofs as has offered no proofs as to why

requiring racks for 394 bicycles is necessary to protect public health and safety and why racks

for 40 bicycles on the exterior and additional racks in the residential buildings or parking

structure totaling a lesser number is not sufficient. However, the Township will accept a

reasonable deviation from the total of racks for 394 bicycles.

CONCLUSIONS

Site Plan Approval

97. Subject to the two requested waivers, the proposed project as described in

Exhibits A-4, A-5, and A-6 (including the proposed regrading of Birchwood Avenue) conforms

in all respects to the terms of Cranfords land use ordinance as amended by Ordinance No. 2012-

11 and the Courts Order of December 9, 2012.

98. The Court need not determine whether the proposed project conforms to the

stormwater management provisions of the Residential Site Plan Improvement Standards,

N.J.A.C. 5:21-7 et seq., since CDA has filed an application with the NJDEP, which will review

the proposed project for compliance with those standards. In all other respects, the proposed

project conforms to the requirements of the Residential Site Plan Improvement Standards as

construed by the Courts Order of December 9, 2012.

99. Development of the proposed project with fewer bicycle racks than mandated by

Cranford Ordinances 136-23(G)(5) would not create a substantial detriment to public health or

safety. Permitting development of the proposed project with fewer bicycle racks than the

number mandated by the ordinance would remove an unnecessary cost and impediment to the

inclusionary development of 360 units as authorized by the Court order of December 9, 2012.


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Subject to the conditions set forth below, a waiver of Cranford Ordinances 136-23(G)(5) is

justified.

100. The specific landscaping provisions of the Courts Order of December 9, 2011

and of Ordinance No. 2012-11 do not supersede the general tree replacement provisions of

Cranford Ordinances 136-23(L)(1)-(3) and the waiver sought by CDA is not granted.

101. Even if As Cranford Ordinances 136-23(L)(1)-(3) iswere applicable,

development of the proposed project with the planting of fewer additional trees than mandated

by the ordinance would not create a substantial detriment to public health or safety. Permitting

development of the project with fewer additional trees than the number mandated by the

ordinance would remove an unnecessary cost and impediment to the inclusionary development

of 360 units as authorized by the Courts Order of December 9, 2012. A partial waiver of

Cranford Ordinances 136-23(L)(1)-(3) to require only the ttrees provided in CDAs landscape

plan as well as the additional plantings recommended by Marsden is justified.

102. Subject to the conditions outlined below, it is the opinion of CDA' professionals

that the proposed project that will provide adequate infrastructure, including ingress and egress

to Birchwood Avenue, parking, sanitary sewer service, and public water service for domestic use

and fire suppression.

103. CDA has proposed definite, specific feasible plans to address storm water

management, flood control, and protection of wetlands. These matters are ultimately governed

by regulatory standards established by the NJDEP. CDA has filed applications to the NJDEP for

approvals or permits as to each of these matters and has acknowledged that it cannot commence

construction unless it receives these permits and approvals. The Township of Cranford may

participate in proceedings before the NJDEP and has elected to do so. Any decision by the


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Court, standing in pl ace of the Planning Board, on these issues would at the very least be

redundant. Under these circumstances, the proper course under N.J.S.A. 40:55D-22(b) is to

condition any approval granted by the Court on the CDAs securing all required permits and

approvals from the NJDEP prior to drawing building permits.

104. To the extent that the Court, standing in place of the Planning Board, must rule on

whether CDAs plans to address storm water management, flood control, and protection of

wetlands satisfy the governing regulatory standards, the opinion testimony of the Township's

CDAs expert witnesses that the plans do not provide enough information, particulary as to the

upstream impact of the regrading of Birchwood Avenue, to satisfy the relevant standards is

credible. To the extent that CDAthe Townships expert opinion conflicts with that opinion

testimony ofthe TownshipCDA's expert witnesses, it less credible and the Court should reject

those opinions.

Regrading Birchwood Avenue

105. CDA must first apply to NJDEP for a hardship waiver as to CDA has no feasible

means of complying with NJAC 7: 13-11.5(h), as it has failed to date to exhaust its

administrative remedies before as construed by the NJDEP. CDA must do so prior to seeking

the extraordinary relief it seeks in compelling the Township to allow regrading of Birchwood

Avenue, particularly as it has not established, by competent evidence, that the regrading will not

impact other properties within the Township or the Borough of Kenilworth. other than by

regrading Birchwood Avenue as proposed in Exhibit A -4.

106. The opinion testimony of CDAs expert witnesses that proposed plan to regrade

300 feet of Birchwood Avenue will not cause any significant harm to residents of Cranford is not

credible absent a full and complete modeling of the upstream conditions following the regrading


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of the public right of way, which is the burden of CDA to provide . To the extent that the

CDATownships expert opinions conflicts with the opinion testimony of the TownshipCDA;s

expert witnesses, they are less credible and the Court reject those opinions. Furthermore, CDA's

experts presented what amounted to "net opinions" as to the upstream impact as they did not rely

on any modeling, reports or data to support their conclusions.

107. Thus, it was not established by competent evidence that tT he proposed regrading

of Birchwood Avenue will not cause any significant harm to residents of Cranford and will have

a significant public safety benefit.

108. CDA should first seek In the absence of (i) a hardship exception from NJAC 7:

13-11.5(h) granted by the NJDEP or (ii) a successful appeal from the NJDEPs construction of

the regulation prior to the Court granting this extraordinary remedy. , CDA cannot construct the

project unless it is permitted to regrade of Birchwood Avenue as proposed in Exhibit A-4,

because it would not be able to secure a obtain an indispensable flood hazard area permit from

the NJDEP. Permitting the proposed regrading of Birchwood Avenue would remove a

substantial impediment to the inclusionary development of 360 units as authorized by the Courts

Order of December 9, 2012.The Court's July 29, 2011 Opinion makes clear that if CDA cannot

obtain the requisite NJDEP approvals, the project cannot be built. See Opinion of Hon. Lisa

Crystal, 7/29/11 T. 42-60.

109. While CDA must might seek to construct the project without complying with this

regulation either by applying for a hardship exception under N.J.A.C. 7:13-9.8 or filing an appeal

from the NJDEPs construction of N.J.A.C. 7: 13-11.5(h), there are sound reasons to permit

CDA to regrade Birchwood rather pursuing either of those other options .


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110. As noted above, the Court, in its July 29, 2011 Opinion made quite clear that if

NJDEP permits cannot be obtained, the project cannot be built. See Opinion of Judge Lisa

Chrystal, 7/29/11 at 42 -60. Furthermore, CDA never requested any relief with respect to the

proposed regrading of Birchwood Avenue during trial and any additional facts and testimony

presented at the site plan hearing are not subject to the same evidentiary standards as if before

the trial court. Thus, any testimony presented at the site plan hearing cannot and should not be

relied upon to provide post-trial relief to a litigant who failed to seek such relief at trial or

through a proper motion for reconsideration directed to the trial court.

a.First, if CDA were successful in either of those options, the portion of Birchwood

Avenue that would cross in front of both of entrances into the project from that street, as

constructed, would still lie within the flood hazard area. In a flood hazard area flood event--

however rare that may be--that portion of Birchwood Avenue might be flooded for some period

of time. Neither party has offered any evidence in this proceeding as to whether if so

constructed, the flood water level in Birchwood Avenue in front of the easternmost driveway

during a flood hazard area flood event would impede entry onto the site by fire or emergency

vehicles. The testimony of Fire Chief Dolan, although generalized and not addressing this

specific issue, at least raises this as a potential problem. It is undisputed that if CDA is permitted

to comply with the NJDEP regulation by regrading Birchwood Avenue, there will be at least one

entrance into the project from Birchwood Avenue that will lie outside the flood hazard area and

will lie at least one foot above the flood hazard design elevation. Thus, permitting CDA to

comply with the NJDEP regulation by regrading Birchwood Avenue avoids a potential public

safety problem.

Formatted: Bullets and Numbering


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b.Second, requiring CDA to apply for a hardship exception or to appeal from the

NJDEPs interpretation of N.J.A.C. 7: 13-11.5(h) would needlessly add uncertainty and delay to

the project. This is antithetical to the mandate by the Supreme Court in the Mount Laurel

decisions that opportunities for the construction of low and moderate income housing be made

realistic.

110.The Court therefore should permit CDA to regrade Birchwood Avenue as proposed

in Exhibit A-4 at its own expense and should order Cranford Township to take all formal actions

necessary to permit CDA to do so.

Off-site Improvements

111. In addition to the regrading of the Birchwood Avenue proposed by CDA, the

Township has recommended that CDA be required to construct or, contribute its pro rata share of

the cost of, three off-site improvements under N.J.S.A. 40:55D-42: upgrading the public water

line between the project and Bloomingdale Avenue; connecting proposed water line running

down the easternmost driveway to the water main in the service road in the adjacent health care

facility; and relining approximately 1,300 linear feet of sanitary sewer lines.

112. Fire Chief Dolan testified that providing water service at a level of 2,000 gallons

per minute at the hydrant is desirable to assure sufficient water to the project for fire suppression.

The parties are in dispute as to whether Cranfords public water system currently provides this

level of service. Fire Chief Dolan testified that, if this level of service is not currently being

provided, it can be provided by replacing the existing 8 inch water main between the easternmost

hydrant in front of the project and the water main in Bloomingdale Avenue with a 12 inch water

main. Approval of the project by the Court should be conditioned on performance at CDAs

expense of an independent test of the level of water service available at the h ydrants in front of


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the project by the water company (or some other third party agreed upon by both parties) in

accordance the relevant national standard, NFWA 291. If the test shows that water service at

the hydrants is significantly below 2,000 gallons per minute, then CDA shall construct this

upgrade or reimburse Cranford for its pro rata share of the reasonable cost of the Townships

performing this upgrade, at CDAs discretion.

113. There are conceivable circumstances, however unlikely, in which public water

services might not be available from either of the hydrants served by the water main on

Birchwood in front the project but would be available from the water main in the service road of

the adjacent health care facility just to the east of the project. Connecting the water line looping

around the project to the water main in the service driveway of the health care facility or another

appropriate location would provide at least some degree of redundancy in the provision of public

water for fire suppression for the project. This off-site improvement, however, would require an

easement across the property of the health care facility. Cranford has not offered to acquire the

easement through exercise of its powers of eminent domain. Under these circumstances,

approval of the project cannot lawfully be conditioned on CDAs constructing, or reimbursing

the Township for construction of, this link, if it must connect through the health care facility. It

should be conditioned on CDAs making a good faith effort to secure the consent of the owner of

the health care facility to connect a water line from the proposed project to the water main on the

health care facility and to secure the property rights necessary to construct the connecting line at

a reasonable cost and, if it succeeds in doing so, constructing, or reimbursing the Township for

the reasonable cost of construction of, this link or agreeing with the Township's recommendation

of another appropriate connection.


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114. The Township urges that, even if the existing sanitary sewer system can safely

accept the additional flow from the project, the additional

cranford twp response to proposed findings and conclusions-cda

Documents