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.
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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
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