2012-11-10-Recommendations-Wolfson-Hearings of August 8, 9, 21, 22, 23, 2012

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FINDINGS OF FACTS, CONCLUSIONS AND RECOMMENDED CONDITIONS OF

APPROVAL BY THE COURT BASED UPON HEARINGS HELD ON AUGUST 8, 9, 21, 22

and 23, 2012, BEFORE DOUGLAS WOLFSON, HEARING OFFICER, AND IN THEPRESENCE OF ELIZABETH C. MCKENZIE, AICP, PP, SPECIAL MASTER

November 10, 2012

SUBMITTED TO THE HONORABLE LISA CHRYSTAL, JSC,

UNION COUNTY SUPERIOR COURT,

in the matter of CRANFORD DEVELOPMENT ASSOCIATES, LLC, et al. vs. TOWNSHIP OFCRANFORD AND PLANNING BOARD OF TOWNSHIP OF CRANFORD,

DOCKET NO.: UNN-L-003759-08

________________________________________________________________________

BACKGROUND

On July 29, 2011, the Law Division of the Superior Court (The Honorable Lisa Chrystal,

JSC, sitting), having previously ruled that defendant Cranford Township is in violation of its low

and moderate income fair share housing obligations, determined 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 total housing units on its property located at 215-235 Birchwood Avenue and identified

on the Cranford Township Tax Map as Block 291, Lot 15.01, and Block 292, Lot 2 (hereinafter

the Property) that would include a 15 percent set-aside of low and moderate income units on

terms specified by the Court. On December 9, 2011, the Court entered an Order embodying this

decision.

In implementation of its Order granting the Builders Remedy, the Court designated and

appointedDouglas Wolfson, a formerMount Laurel Judge (Middlesex Vicinage), as the SpecialHearing Officer (the Hearing Officer) in this matter to assume jurisdiction over the site plan


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review process in lieu of the Planning Board and to conduct public hearings consistent with the

requirements of the Municipal Land Use Law (the MLUL) and Order granting the Builders

Remedy, and, thereafter, to make a recommendation to The Honorable Lisa Chrystal, J.S.C.

concerning the application.

By Order dated August 6, 2012, the Court also directed the Hearing Officer to make a

recommendation to the Court, based upon facts adduced at the site plan hearing(s), on the issue

of whether defendants, Township of Cranford, et al., should be required to take the necessary

formal actions that would permit CDA, at CDAs 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 plans prepared by L2A Land Design, LLC, as part of its construction of the

proposed inclusionary development of the Property in order to obtain NJDEP approval of the

development.

A memorandum dated May 15, 2012 was circulated by Elizabeth C. McKenzie, AICP,

PP, the Court-Appointed Special Master (the Special Master) outlining the procedures to be

followed by the parties in submitting, reviewing and approving CDA'S site plan application.

THE APPLICATION

Consistent with the above-cited Orders and the procedural memorandum circulated by

the Special Master, CDA (the Applicant) submitted an application for Preliminary and Final

Site Plan Approval and requests for associated waivers and exceptions (the Application)


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together with supporting reports, plans and other materials by letter of transmittal dated June 6,

2012 (collectively, the Application Materials), to permit development of the Property.

The Application Materials initially consisted of the following:

a. Preliminary and Final Site Plan and Application for Individual Flood Hazard AreaPermit, M.E. Dipple, June 4, 201225 sheets (Ex. A-4)

b. Architectural Plan, Lessard Design, June 5, 20128 sheets (Ex. A-5)c. Engineering Report, M.E. Dipple, Rev. June 4, 2012 (Ex. A-6)

Subsequently, CDA also submitted the following additional 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)

CDAs site plan showed the proposed regrading of Birchwood Avenue.

The application was reviewed by the Township prior to the Hearings. The Townships

review included not only reviews by the Townships own professionals but also by outside traffic

and engineering consultants retained by the Township in accordance with standard municipal


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land use practice and paid for out of the escrow account established by CDA in accordance with

the MLUL, the Townships Ordinance and the recommended procedures of the Special Master.

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. Staigar 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)

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)

On August 1, 2012, representatives of CDA, including its professional consultants, met

with representatives of Cranford Township, including its Municipal Attorney, Municipal

Engineer, Construction Code Official, Zoning Officer, and a representative of the Township

Police Department, to jointly review the Application.

THE HEARINGS

Pursuant to an Order entered by the Honorable Lisa Chrystal on August 6, 2012, Open

Public Hearings were held at the Union County Court House in Elizabeth, New Jersey, during

regular Court House hours. The Hearings took place on August 8, 2012, August 9, 2012, August


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21, 2012, August 22, 2012, and August 23, 2012, before the Hearing Officer and in the presence

of the Special Master.

Although the Township of Cranford objected to the scope and sufficiency of the Notice

provided by the Applicant in a letter dated August 3, 2012, which letter is part of the record

before the Court, the Hearing Officer determined that the Applicant had provided adequate

Notice via proof of publication of the Notice in the Official Newspaper for Cranford Township,

as well as proof of service of Notice to all property owners within 200 feet of the Property as

shown on the certified list of property owners dated June 1, 2012, provided by Peter Barnett, Tax

Assessor for the Township of Cranford, on all utilities and cable television operators servicing

the Property or having facilities located within 200 feet of the Property, on any military facility

commander registered with the municipality, on the Union County Planning Board and on James

Simpson, New Jersey Department of Transportation Commissioner, all as provided by N.J.S.A.

40:55D-1, et seq. (Ex. A-1).

At the Hearings, the Applicant, represented by Stephen M. Eisdorfer, Esquire, of the firm

of Hill, Wallack, LLP, presented several witnesses, each of whom was then questioned by

counsel for the Township, Philip J. Morin, III, Esquire, of the firm of Florio, Perrucci, Steinhardt

and Fader, LLC, as well as by members of the public, including one attorney, Maria Anderson,

of 662 Trenton Avenue, Kenilworth, representing herself. The Applicant was permitted to

conduct a redirect examination, and the Township and members of the public were permitted to

ask questions limited to topics addressed in the redirect examination. Special Master Elizabeth

McKenzie and the Hearing Officer then asked questions. Finally, counsel for the Applicant and


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

the responses to the questions of the Special Master and the Hearing Officer.

The Township then presented its own witnesses, following the same procedure.

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

The Applicant, the Township, and members of the public were permitted to offer

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

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

CDA presented the testimony of the following witnesses:

a. Christian LessardArchitect (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 HekemianApplicant (8/9 T. 154-160)

e. Clay Emerson, PhD.Engineering and Water Resource Engineering (8/23 T

144-195)

The Township presented the testimony of the following witnesses:

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

b. Joseph StaigarTraffic Engineering (8/22 T. 105-129)

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


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

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

The Application proposes the redevelopment of a 15.8-acre site consisting of two

separate but adjoining lots designated on the Cranford Township Tax Map as Block 291, Lot

15.01, and Block 292, Lot 2. The lots are located at 215 and 235 Birchwood Avenue in Cranford

Township. Site Plan (Ex. A-4).

The Property is currently developed with two office buildings and associated paved

parking areas. The remainder of the Property includes 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).

The Property contains regulated freshwater wetlands and wetlands transition areas, which

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


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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.

The surrounding uses include a health care facility to the east of the Property, an office

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

municipal composting and recycling center to the north of the Property on the other side of

Birchwood Avenue. The nearest existing residential uses are single family houses on

Wadsworth Terrace to the south of the Property, which homes have rear yards that back up to the

Property. Lessard, 8/8 T. 34-35; Dipple, 8/9 T. 10-11; Aerial photo (Ex. A-8).

As amended by Ordinance No. 2012-11, Cranford Townships Land Development

Ordinance locates the Property in the Inclusionary Multi-Family Residential (IMR) zone. This

zone was created by the Township in response to the Court's December 9, 2011, Order. The

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

lots to the south, along Wadsworth Terrace, are located in the R-4 Single Family Detached

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

THE PROPOSED DEVELOPMENT/REDEVELOPMENT

As set forth in the Application, the Applicant proposes to redevelop 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


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

including 54 low and moderate income rental units. Site Plan, sht. C04 (Ex. A-4, A-14); Lessard

8/8 T. 35-36; Dipple, 8/9 T. 16-17.

Proposed Building A fronts on Birchwood Avenue. It consists of a 58 space parking

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

units. Proposed Building B fronts on Birchwood Avenue and wraps around Proposed Building C

(the parking structure). Building B is proposed to consist of four stories containing 300

residential units. Building C fronts on the internal driveway proposed along the east side of the

Property. It is a four-level parking structure containing 520 parking spaces. There are an

additional 89 surface parking spaces proposed 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.

At its nearest point, Building A will be approximately 545 feet from the rear property

lines of the lots fronting on Wadsworth Terrace. Lessard, 8/8 T. 95. At its nearest point,

Building B will be approximately 205 feet from the rear property lines of the lots fronting on

Wadsworth Terrace and 70 feet from the side lot line of the health care facility to the east.

Lessard, 8/8 T. 50.

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 Plan, sht. 9

(Ex. A-5). Building B will have a height of 51.8 feet above grade, again measured to the

midpoint of the roof in accordance with the Township's Ordinance. Lessard, 8/8 T. 49;


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Architectural Plan, sht. 9 (Ex. 5). The top level residential units in each building will each

include a loft level which will be open to 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 unroofed. Lessard, 8/8 T. 93. The floor level of the fourth

parking level will be 38 feet above grade. Architectural Plan, sht. 9 (Ex. A-5). The building

heights are in conformance with the requirements of Cranford's Ordinance.

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.

Access by residents and guests to Building A will be from the building entrance facing

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

building entrance facing the internal driveway. Architectural Plans, shts. 1, 3 (Ex. A-5); Lessard,

8/8 T. 39-40.

As previously authorized by the Court in the December 9, 2011, Order, the project has

been designed with a ratio of 1.85 parking spaces per unit. While not strictly in compliance with

the RSIS, the exception had been approved by the Court based upon the testimony presented

during the Builder's Remedy trial as to the types and sizes of dwelling units proposed and the

potential availability of temporary on-street parking for visitors in Birchwood Avenue, weather


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permitting. Architectural Plan, sheet 1 (Ex. A-5); Dipple, 8/21 T 156, 8/22 T. 52. The parking

spaces for residents versus guests have not been separately designated on the plans. If all of the

parking spaces in the 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 parking spaces to the east of Buildings B and C. Residents of

units in Building A and their guests will have direct access to the spaces in Building C through

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

(Ex. A-5). The parking spaces provided on the Property 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.

The drop off points for persons coming to the project would be inside the parking

structure for Building B and inside the podium parking area for Building A. For anyone not

wishing to go into the parking structure or the podium level of Building A, the drop off would be

along the eastern driveway by the entrance to the parking structure for Building B and along the

western driveway for Building A. Because there are no entrances into either of the buildings

along the building facades facing Birchwood Avenue, persons would not normally be dropped

off on Birchwood Avenue. Dipple, 8/9 T. 139 -40.

All parking spaces (except the handicapped and van spaces) will be 9 feet by 18 feet in

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

Loading areas will be 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.


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Residents will be able to move furniture and personal possessions into and out of their residential

units on carts using the elevator and proceeding through the parking structure or parking podium

to these loading areas. Elevators and doorways are designed to be wide enough to accommodate

such carts. Dipple, 8/22 T. 57-58.

Trash will be collected inside each building, stored inside the building, and taken outside

in carts by building staff members to the driveway for pickup. Lessard, 8/8 T. 41.

Of the residential units, 54 units (15 percent of the total) will be reserved for occupancy

by and will be affordable to low and moderate income households. Lessard, 8/8 T.35-36. In

conformity with the Rules of the New Jersey Council on Affordable Housing, the Applicant

proposes that 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. 2012-11 AND THE COURTS

ORDER OF DECEMBER 9, 2011

The proposed structures comply with all the bulk standards set forth in Ordinance No.

2012-11 and the Courts order of December 9, 2011:

Required Proposed

Minimum tract area 15 acres 15.86 acres

Minimum lot frontage 750 feet 825.84 feet

Minimum front yard setback 25 feet 25 feet

Minimum average front year setback 30 feet 44.36

Minimum side yard setback 55 62.37

Minimum rear year setback 175 196.75

Maximum impervious coverage 31.21% (existing

impervious coverage)

31.1%

Maximum height 55 feet


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Maximum heightBuilding A One parking level and

three residential levels

One parking level and

three residential levels

Maximum heightBuilding B Four residential levels Four residential levels

Minimum distance between multi-family

buildings

25 feet 57.71 feet

Minimum buffer to eastern lot line 10 feet 10 feet

Minimum buffer to rear lot line 175 feet 175 feet

Minimum parking spaces 666 667

Site plan, sht. C-04 (Ex. A-4); Dipple, 8/9 T. 19-21.

As presented, the proposed site plan contains an error. At the easternmost ingress/egress

driveway, the internal driveway is drawn too close the eastern lot line, leaving only an eight foot

buffer. Dipple, 8/9 T. 22; Site Plan, C-04 (Ex. A-4, Ex. A-14). The Applicant has agreed to

straighten the driveway and move it two feet to the west, which will eliminate that error and

bring the site plan into conformance with the bulk standards in Ordinance No. 2012-11 and the

Court Order. Dipple, 8/9 T. 22.

Subject to two requested waivers, and the correction of the above-described site plan

error, the Application conforms in all respects to the terms of Cranfords Land Development

Ordinance, as amended by Ordinance No. 2012-11, and the Court's Order of December 9, 2011.

Dipple, 8/9 T. 148.

Issues as to compliance of the proposed structures with the Uniform Construction Code

were raised in the report of Construction Code Official Belluscio. (Ex. D-1). These issues were

addressed in the testimony of the Applicant's Architect. Lessard 8/8 T. 50-69. The Township

did not present testimony by Belluscio or by any other witness on these issues. The Municipal

Engineer testified that certain issues had been resolved by the testimony of Lessard. Marsden,

8/22 T. 143, 186. Counsel for Cranford Township has requested that the Township have the


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right to address any non-site plan issues of Construction Code compliance at the time the

Applicant applies for Construction Permits.

COMPLIANCE WITH RESIDENTIAL SITE IMPROVEMENT STANDARDS (RSIS)

Except for the parking ratio, which was previously addressed and specifically authorized

by the Court, the Applicant has designed the project to comply with the Residential Site Plan

Improvement Standards. Dipple, 8/9 T. 28, 121, 126, 8/21 T. 156, 8/22 T. 24, 98. The

Township has not identified any violations of the Residential Site Plan Improvement Standards.

INFRASTRUCTURE

According to the testimony of the Applicant's traffic expert, 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 with Cranford Avenue and

Bloomingdale Avenue. Those intersections will continue to function at acceptable levels. The

Birchwood Avenue northbound approach to Orange Avenue will operate at Level ofService E

during the morning peak hour, which is a minimum level of acceptability. J. Staigar, 8/22 T.

111-112. No improvements were recommended, however, to enhance the Level of Service or

increase traffic safety. E. Dolan, 8/8 T. 161-230; J. Staigar, 8/22 T. 105-129; E. Dolan, Traffic

Impact Assessment (Ex. A-11); E. Dolan, Supplemental Traffic Impact Assessment (Ex. A-24);

Staigar, Letter to P. Morin (Exs. D-2 and D-14).


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Fire Chief Leonard Dolan, who was offered and accepted as an expert in the field of fire

safety and design, expressed the following concerns about the layout of the site plan:

a. the angle at which the internal driveway meets Birchwood Avenue at the

easternmost ingress/egress may impede access by Cranfords fire equipment;

b. the turning radius of the internal driveway around the south end of Building B

may impede access by Cranfords largest fire truck; and

c. during any flood event that restricts access to the project through the westernmost

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

largest truck plus permit access by other vehicles to Building A.

L. Dolan, 8/23 T. 107-125; L. Dolan Memorandum (Ex. D-17).

To address these issues, the Applicant has agreed to:

a. straighten the eastern ingress/egress;

b. increase the turning radius on the interior drive around the south end of Building

B to 30 feet;

c. provide mountable curbs along the internal drives; and

d. provide turnouts at various points along the internal driveway.

In this regard, the Applicant has agreed to submit a revised Site Plan to the Township and to the

Court evidencing compliance with all of these representations. 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. 130-131;

L. Dolan, 8/23 T. 122-25.

Chief Dolan also expressed concerns about the adequacy of access to the site under

severe flooding conditions that might make Birchwood Avenue impassable. He was particularly


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concerned about the ability of emergency equipment to access the site during flooding conditions

given the depth of the Property and its relatively limited roadway frontage, especially at times

when the westerly driveway would be inaccessible. 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 provide at least one point of access in a 100-

year flood event. L. Dolan, 8/23 T. 113. The elevation of Birchwood Avenue would satisfy the

NJDEP regulatory requirements. Dipple, 8/9 T. 127.

The Township did not embrace the testimony offered by the Applicant as to the public

safety efficacy of this solution, despite the fact that neither the Township nor Chief Dolan had

raised any objection when the Township was reviewing and approving a similarly situated

development known as the "Riverfront Redevelopment Project". That multifamily development

had been approved by the Township despite the fact that the development itself and all of the

surrounding streets lie within and remain below the elevation of the State-designated flood

hazard area. L. Dolan, 8/23 T. 136-39; L. Dolan Review Reports on Site Plan Application for

Riverfront Redevelopment Project (Ex. A-28); Dipple, 8/9 T. 86-89; Flood Hazard Area Permit

for Riverfront Redevelopment Project (Ex. A-22). In its attempt to justify this obvious

inconsistency, the Township argued that the Riverfront Redevelopment Project: a) is located

only one quarter mile from the Cranford Fire Station while the Applicants Property is over a

mile away; and b) the Riverfront Development has access from three public streets as compared

to the Applicants Project, which has frontage on only one street and on which the developable

area is exceptionally deep with limited exposure to the street frontage. L. Dolan 8/23 T. 142-

142, 116.


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Water for domestic consumption and fire suppression will be provided through

connection to Cranford Townships public water system. Dipple, 8/9 T 29-32. The parties were

in dispute at the Hearing as to whether the public water system will provide enough water to the

site for fire suppression. If the existing system were to be determined to provide an inadequate

supply of water for fire suppression purposes, possible solutions proposed by the Township

included: a) replacing the existing water main along Birchwood Avenue with a 12 inch pipe

extending from the hydrant at the east end of the Property to Bloomingdale Avenue and

increasing the size of the looped water line on the site to 12 inches; and b) providing a second

connection to the looped system on the Property from the adjacent nursing home property. L.

Dolan, 8/23 T. 128, 133-34; Dipple, 8/9 T. 32. Providing a fire pump at grade level would assure

sufficient water pressure for fire suppression at all levels in Buildings A, B and C. Lessard, 8/8

T. 86-87.

Sanitary sewage service is to be provided by connection to the Cranford Township

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

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

Cranfords sanitary sewage conveyance system is old. Most of the line that runs between

the Property and the Roselle Park border is 40 to 60 years old, and some stretches, constructed at

the same time as the Garden State Parkway or earlier, are at least 64 years old. Marsden, 8/23 T.

27-30. As a result, the system suffers from a serious problem of inflow - surface water entering

the system - and infiltration - groundwater entering the system. Marsden, 8/22 T. 158, 160. The

system has had relatively few failures - four lines breaks within the entire municipality over the

last eight years. Marsden, 8/23 T. 31-32. Two of these breaks, however, have occurred in the


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past year in the stretch of line between the Garden State Parkway and the Roselle Park border,

which is part of the system that would serve the project. Marsden, 8/23 T. 30-34.

Based upon the Sanitary Sewer Capacity Study, the Existing Sanitary Sewer Map (Ex.

A-17) and measurement of existing flow through the pipes in the sanitary sewer system between

the Property and the Roselle Park border, the system has sufficient existing capacity to provide

service through simple gravity driven flow (open channel flow), except for three stretches of

pipe. As shown on the Existing Sanitary Sewer Map (Ex. A-17), each of these three stretches is

essentially flat; consequently, a mathematical analysis that assigns a value of zero to slope

under a simple gravity flow (open channel flow) model shows these stretches as having no

capacity. This "technical" lack of capacity is thus not a function of the sizes of the pipes but of

the lack of slope in certain areas. The Applicants Engineer testified that a field survey indicated

that one of these three stretches of pipe actually has adequate slope and functions properly and

safely using gravity flow under both average and peak flow conditions, although the data

supporting this conclusion were not presented at the Hearing. The two remaining stretches of

pipe operate properly and safely under average and peak flow conditions using pressurized flow -

described as surcharged flow (in which the pressure created by the effluent itself actually carries

the flow through the flat stretch of pipe). If the flow slows down, it backs up to a point that it

eventually creates the pressure needed to force it through the pipe. 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).

Based upon the original Project design - for 422 units - 83,850 gallons per day would

have been added to the system, based on NJDEP design standards. Sanitary Sewer Capacity

Study, Table 3 (Ex. A-14). At 83,850 gallons per day, the system would operate properly and


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safely under average and peak flow conditions. The currently proposed Project, for 360 units,

will generate lower flows than the original design would have generated. In the opinion of the

Applicants Engineer, all of the stretches that currently operate through simple gravity flow will

continue to do so properly and safely, and all of the stretches that operate through pressurized

flow (under surcharged conditions) will continue to do so properly and safely. Moreover, it is

the opinion of the Applicants Engineer that the additional flow from 360 units will not 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.

The Applicants Engineer testified that under a more sophisticated evaluation - known as

a hydraulic grade line study -- it was determined that even where the system is currently

operating under surcharged or pressurized conditions, the level of flow does not rise above the

level of the pipes, i.e., it does not rise into the manholes above the pipes. Moreover, in the

opinion of the Applicants Engineer, due to the depth of the sewer pipes, the backups that

routinely occur in the stretches of sewer line that operate under surcharge or pressurized

conditions will not result in the effluent rising above the levels to which it currently rises and

into the manholes, even under peak conditions. Dipple, 8/22 T. 40-42, 91-93. It was the

conclusion of the Applicants Engineer that the existing sewerage system will operate safely and

effectively even with the additional flow. Dipple, 8/9 T. 137-38; 8/22 T. 37-42, 46, 91-93.

Cranfords Engineer, Richard Marsden, expressed "concerns" that, given the age of the

existing system, the additional flows from the project, which he characterized as substantial,

when combined with the existing flows and the existing (unremediated) inflow and infiltration

would create a potential risk of future line breaks, although he could not quantify the degree of


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risk. Marsden, 8/22 T. 155-162; 8/23 T. 27. Marsden recommended that approximately 1,300

linear feet of off-tract sewer pipe be re-lined in order to reduce inflow and infiltration and to

increase the integrity of the existing pipe, reducing friction and enhancing flow-through. In

Marsdens opinion, such measures would decrease the incidence of pressurized or surcharge

flow. Marsden, 8/22 T. 161. Marsden opined that the Applicant would have substantial

responsibility for this off-tract improvement, but was unable to specify the magnitude of CDAs

pro-rata share of such an improvement. Marsden, 8/22 T. 161-172.

In light of the unresolved issue concerning the extent, if any, of the Applicants

responsibility for sanitary sewerage improvements under Section 136-27 of Cranfords Land

Development Ordinance, which addresses off-tract improvements, the Hearing Officer

recommended that the parties meet to attempt to resolve the issue and report back to the Court

and the Special Master as to whether or not the issue has been resolved.

COMPLIANCE WITH WETLAND, STORM WATER MANAGEMENT, AND FLOOD

HAZARD AREA STANDARDS

The Property includes areas of State-regulated freshwater wetlands and State-regulated

wetlands transition areas. Based upon the calculations provided by the Applicants experts, and

subject to NJDEP review and approval, the Project has been designed to avoid any infringement

on regulated freshwater wetlands. The Project will intrude into required freshwater wetlands

transition areas, and, in accordance with NJDEP regulations, the Applicant has applied to the

NJDEP for approval of a freshwater wetlands transition area averaging plan and will comply

with all NJDEP regulations concerning construction within and in the vicinity of a wetlands

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


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Notice of the applications for both the Flood Hazard Area Permit and Wetlands Permit

was provided as required by the NJDEP. Public Notices of CDA Application for Flood Hazard

Area Permit and Wetlands Permit (Ex. A-19).

The Townships Engineer (Marsden) suggested that construction of a short stretch of pipe

will require approval of a permit by the NJDEP. Marsden, 8/22 T. 156, 187. The Applicants

Engineer testified that if NJDEP determines that a general permit is required for that particular

stretch of pipe, such a permit is routinely available under NJDEPs regulatory standards for a

General Permit 2 and would be requested. Dipple, 8/9 T. 44-45, 135-136.

Township Engineer Marsden expressed a number of concerns as to the impact of the

Project on freshwater wetlands. All of these objections may appropriately be raised with the

NJDEP prior to final approval of the application by the NJDEP, and Cranford Township and

individual members of the public are entitled to voice any objections they may have to such

application. Dipple, 8/9 T. 47. Indeed, Cranford has already participated in the NJDEP review

process and has submitted its 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).

As the Project will disturb more than one acre of land, it is subject to New Jerseys

Stormwater Management Regulations. Dipple, 8/9 T. 48. The NJDEP regulations are

incorporated by reference into the Residential Site Improvement Standards. Dipple, 8/9 T. 48.


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As part of its Flood Hazard Area Permit application, the Applicant has filed for NJDEP approval

of the stormwater management plan for the Project. Dipple, 8/9 T. 43.

The States Stormwater Management Regulations encompass four areas of regulation:

a. storm water quantity;

b. storm water quality;

c. infiltration to ground water; and

d. nonstructural strategies or best management practices.

The Applicant's Engineer testified that the Project is specifically designed to meet the applicable

standards within each of these areas to the extent applicable and subject to NJDEP approval of

the methodology and resulting calculations. Dipple, 8/9 T. 48.

The Applicant's Engineer testified that the NJDEP water quality standards do not apply to

the Project; the water quality standards only apply to projects that will increase the existing

impervious coverage. The Project will actually reduce impervious coverage from 31.21 percent

(existing) to 31.1 percent (proposed). Site plan, sht. C-04 (Ex. A-4); Dipple, 8/9 T. 19-21, 49.

The NJDEP groundwater recharge standards do not apply to sites within areas designated

on the State Plan as the Metropolitan Planning Area (PA-1). The Property is within PA-1, the

Metropolitan Planning Area. Dipple, 8/9 T. 49-50.

With respect to the stormwater quantity standard, the Project has been designed in

accordance with NJDEP regulations to reduce the peak rate of run-off below existing conditions

for the two-year, ten-year, and one-hundred-year storm events. The rate of run-off for the two-


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year storm must be reduced by 50 percent, the ten-year storm by 25 percent, and the hundred-

year storm by 20 percent. The Project will satisfy these standards by providing for stormwater

storage in and controlled discharge from a large underground detention basin to be constructed

under the surface parking area on the east side of Buildings B and C. Dipple, 8/9 T. 51-52 and

8/21 T. 122-24; Site Plan sht. C-05 (Ex. A-4). The Applicants Engineertestified that, based on

the modeling that was undertaken in accordance with NJDEP standards, the Project will reduce

peak stormwater run-off (in cubic feet per second) as follows:

Storm event Existing

conditions peak

runoff rate

Proposed

conditions peak

runoff rate

Reduction Proposed rate

as percent of

existing rate

2 17.89 3.66 14.23 20%

10 24.59 11.86 12.73 48%

100 37.03 28.16 8.87 76%

Dipple, 8/9 T. 53-54 and 8/21 T. 117-118; Engineering Report, Table E-1 (Ex. A-6).

As required by the NJDEP, the rate of runoff for each storm was modeled taking into

account all existing conditions, including existing buildings, parking lots and drainage structures.

Dipple, 8/9 T. 56-57 and 127-28; Site Plan, sht. C0-2 (Ex. A-4).

Cranford Engineer Marsden raised various technical concerns about the stormwater

management plan and the calculations upon which it is based, claiming that CDAs Engineer

failed to properly account for existing drainage structures, improperly calculated the time of

concentration, and did not consider "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).


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These concerns were rebutted by CDAs experts, Dipple and Emerson, both of whom

stated that the drainage structures had been modeled in their existing condition. Dipple, 8/9 T.

56-57, 127-28, 145-47; 8/23 T. 101-103. According to Emerson, Marsdens critique of the time

of concentration analysis was based upon a methodology not used in CDAs study and not

permitted by NJDEP. Emerson, 8/23 T. 166-67. Further, under 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. Emerson acknowledged that he is not

licensed as a Professional Engineer in the State of New Jersey and that he had not viewed the

subject property during a storm event.

The NJDEP has jurisdiction over CDA's stormwater management plan in the context of

CDAs application for a flood hazard area permit, and objections to the Applicant's storm water

management plan (if any) can, and should, be directed to the NJDEP, which, in fact, Township

Engineer Marsden has already done on behalf of Cranford. 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 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 conditions on the site are largely

due to stormwater flowing from developed areas north of the site and also due to stormwater

backing up from an undersized culvert under Wadsworth Terrace, which lies to the south of the

site. Dipple, 8/9 T. 58-59; Marsden, Flood Hazard Map (D-15).


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As described by the Applicant's Engineer, the flood hazard area consists of the entire area

that would be flooded in a state-defined flood hazard area flood event - a 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 that 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 of little or no velocity where storm water "ponds" and is

stored during a 100-year flood event; the flood fringe areas do not actually carry the downstream

flow. Dipple, 8/9 T. 65-68, 72; NJDEP Flood Hazard Area Diagram (Ex. A-20).

As part of its flood hazard area permit application, the Applicant's experts 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, all 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, the model included the existing office building and parking lot at 235 Birchwood

Avenue, both of 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 base point).

Dipple, 8/9 T. 72. The floodway boundary and the flood hazard area boundary are shown on the

site plan. Site Plan sht. C-04 (Exs. A-4, A-14); Dipple, 8/9 T 13-14.

Cranford Engineer Marsden expressed concerns about the correctness of the methodology

used for determining the location of the floodway boundary, including that it did not follow


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existing topographic contour lines, that it was improperly affected by the existing office building

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

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

over the street. Marsden, 8/22 T. 138-140, 8/23 T. 61-72; Marsden Memo to P. Morin (Ex. D-4).

The NJDEP has sole and exclusive jurisdiction over the issuance of flood hazard area

permits and is thus the proper forum for these kinds of technical objections. Objections have

already been made in the form of letters from Engineer Marsden to the NJDEP on behalf of

Cranford Township. 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).

Notwithstanding the absence of any local jurisdiction over such matters, Marsden's

concerns were addressed and contradicted by CDAs experts, Engineer Dipple and Dr. Emerson,

both of whom testified that according to NJDEP standards the floodway boundary is required to

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

be determined any other way. Further, since the determination of the floodway is based upon a

conceptual computer model of the area required for the flow of floodwaters, the floodway need

not, and typically does not, follow existing topographic contour lines. Finally, 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).

Upon cross-examination by Mr. Eisdorfer, Marsden acknowledged that:


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a. he had reviewed the floodway boundary determinations made by Dipple in the

summer of 2010;

b. he had an opportunity to request the underlying data from Dipple at that time;

c. he had testified on the floodway boundary issue at the Builder's Remedy trial;

d. he had reviewed the floodway boundary determination again in December, 2011,

in connection with CDAs flood hazard area permit application to the NJDEP;

e. he had filed objections to that application; and

f. while he had the knowledge and experience to run the standard computer model

himself to determine the floodway boundaries, he did not actually do so.

Marsden, 8/23 T. 6-18, 64. As a result, he could not testify that the floodway boundary as

determined by Dipple and Emerson was actually incorrect nor could he quantify the magnitude

of any alleged error. Marsden, 8/23 T. 18, 64. Finally, Marsden conceded that NJDEP

regulations require the floodway to be determined based on existing conditions at the time of

application and not based on proposed changes to those conditions. Marsden, 8/23 T. 82-83.

Consistent with NJDEP regulations, the Project does not involve any construction in the

floodway as determined by the Applicant's Engineer and delineated on the Site Plan. 8/21 T. 89;

Site Plan, sht. C-04 (Ex. A-4). Rather, the Applicant proposes to demolish and remove the

existing office building and parking lot currently located within the floodway. Dipple, 8/9 T. 65;

Site Plan, sht. C-03 (Ex. A-4). According to the Dr. Emerson, this will improve the functioning

of the floodway and actually reduce the area of flood flow. Emerson, 8/23 T. 151.

The Project, as proposed and as submitted to the NJDEP in connection with the flood

hazard area permit application, includes construction in the flood fringe area, including Building


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

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

04 (Exs. A-4, A-14).

Under NJDEP standards, construction is permitted in the flood fringe provided the State's

regulatory standards are met:

a. the project may not reduce the amount of flood storage in the flood fringe area;

b. all residential units within the flood fringe area must be at least one foot above the

flood hazard area design elevation;

c. to the extent possible, all required parking for residential units within the flood

fringe area must be at least one foot above the flood hazard area design elevation; and

d. for all 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 area design elevation.

Dipple, 8/9 T. 72.

The Applicant's Engineer testified that the project was designed to comply with NJDEP

standards for a flood hazard area permit. Dipple, 8/9 T. 72. The design includes a calculation of

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

Report, sht. FS-1 (Ex. A-6). It also includes a grading plan designed to assure that the project

would not reduce the amount of flood storage within the flood fringe area during any of the

relevant potential flood events including the flood hazard area flood event. Dipple, 8/9 T. 70-71.

The plan includes providing for crawl spaces under Building A to provide additional flood

storage within the flood fringe area consistent with NJDEP regulations. Dipple, 8/9 T. 74-75;

Architectural Plans, sht. 9 (Ex. A-9). According to Dipple's calculations, the project will


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increase the amount of flood storage during a 100-year storm event from 318,182.9 cubic feet

under existing conditions to 321,838 cubic feet under proposed conditions. Dipple, 8/21 T. 129-

130; Site Plan, shts. C-10, C-14.

The project design provides that all the residential units in Buildings A will be elevated to

a level at least 11 feet above the flood hazard elevation, thereby satisfying the requirement that

the units all be at least one foot above the flood hazard design elevation. Lessard, 8/8 T. 37, 45;

Architectural Plans, sht. 9 (Ex. A-5).

All of the parking is proposed to be elevated to a level at least one foot above the flood

hazard area design elevation. Lessard, 8/8 T. 44; Architectural Plans, sht. 9 (Ex. A-5).

Ingress/egress to and from the Property will is available even during a flood hazard area flood

event via the easternmost driveway, which is proposed to be elevated one foot above the flood

fringe area. Dipple, 8/9 T. 72; Site Plan, sht. C-03.

The Site Plan was submitted to the NJDEP as part of CDA's flood hazard area permit

application 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. The Applicant made the changes requested by the NJDEP

and submitted the revisions along with the required additional information. Dipple, 8/9 T. 76-77;

8/22 T. 94-97.

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 new deficiency notice requested additional


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documentation and also identified a substantive deficiency - a violation of N.J.A.C. 7: 13-11.5(h)

(Ex. A-23). It advised that the application, as submitted, would require a hardship waiver under

N.J.A.C. 7:13-9.8. Dipple, 8/9 T. 81-85.

Dipple reported that he had been informed via a telephone communication and a

subsequent meeting with NJDEP representatives that the deficiency was with respect to N.J.A.C.

7:13-11.5(h)(2), which provides in part:

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

According to Dipple's testimony, NJDEP informed the Applicant that the deficiency lies

with the fact that Building A, which is a public building under the NJDEP regulations and is

located in the flood hazard area, lacks a roadway that is elevated "at least one foot" above the

flood hazard area design flood elevation. The NJDEP deems the portion of Birchwood Avenue

on which the Property fronts to be the roadway" to which this requirement applies, and both

driveways that serve Building A 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.

Dipple indicated that this determination was unexpected as it differed from the NJDEP's

historical interpretations as evidenced by its determinations in two other projects, including a

project constructed by the same developer in Englewood and another project in Cranford, the

Riverfront Redevelopment Project, for which the NJDEP had granted a flood hazard area permit


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in February, 2010, while expressly noting in the permit that all of 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).

Upon cross-examination, Dipple acknowledged that his knowledge of the Riverfront

Redevelopment Project was based on a review of file material and not from any direct

involvement with that project, and he also acknowledged that the permit for the Englewood

project had been a stream encroachment permit (the precursor to the flood hazard area permit)

that had been issued in 2003, prior to the adoption of the current NJDEP flood hazard area

regulations. Dipple, 8/21 T. 13-14. Further, Dipple admitted that he had not discussed this

aspect of the new regulations with NJDEP prior to submitting the flood hazard area permit

application for the CDA Project and that he had initially been of the opinion that a flood hazard

area permit would not even be required for the Project. Dipple, T. 16, 20-23.

According to Dipple, upon learning of NJDEP's position, the Applicant explored various

options for complying with N.J.A.C. 7:13-11.5(h)(2). The Applicant first considered extending

an emergency access from the back of the property onto North Union, but rejected this option

because the North Union access would likewise not be one foot above the flood hazard elevation

for its full length and, therefore, would also violate NJDEP regulations. Dipple, 8/9 T. 100-101.

Dipple indicated that the Applicant also attempted to secure the consent of the owner of the

health care facility to construct an access drive to that property, which access drive would have

been entirely outside of the flood hazard area, but that the owner had not responded to CDAs

repeated inquiries. Peter Hekemian, a principal of CDA, also testified as to the efforts to contact

the owner of the health care facility. Dipple, 8/9 T. 100; P. Hekemian, 8/9 T. 155, 156-157.


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According to Dipple, CDA concluded that the most promising means of complying with

N.J.A.C.:13-11.5(h)(2) and avoiding the necessity of seeking a hardship waiver (the approach

that had been recommended by the NJDEP), would be to elevate Birchwood Avenue in the

vicinity of the easternmost driveway of the project. Dipple, 8/9 T. 101.

As shown on the site plan application, CDA proposes to regrade a portion of Birchwood

Avenue at CDA's sole cost and expense so that it will be one foot above the flood hazard

elevation at the point the road crosses in front of the Projects easternmost driveway. This will

require the level of the roadway to be raised by 1.28 feet in that location. To effect a transition

between the proposed elevation at the easternmost driveway and the existing elevation of

Birchwood Avenue in the direction of Orange Avenue, about 300 linear feet of the roadway will

need to be included in the regrading. Dipple stated that, after the regrading, the road will run

gradually downhill toward Orange Avenue, as it does now, and opined that the resulting change

in elevation would be slight and probably unnoticeable. Dipple, 8/9 T. 90-93; 8/21 T. 86, 132-

133; Site Plan, shts. C-05, C-18, C-19 (Ex. A-4). The regrading will require the replacement of

driveway aprons at one of the driveways to the health care facility and at the driveway to the

municipal recycling facility; additionally, a portion of the sidewalk in front of the health care

facility would need to be replaced. All of these improvements would be undertaken within the

municipal right of way. Dipple, 8/9 T. 99; 8/22 T. 64. Dipple also stated that the scope of the

proposed improvements would include the addition of three new storm drains along Birchwood

Avenue, which could be expected to improve drainage for properties along Birchwood Avenue.

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


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According to Dipple, the proposed regrading of Birchwood Avenue will add fill within

the flood fringe, thus requiring the Applicant to compensate for the loss of flood storage due to

the additional fill. Accordingly, the Project has been redesigned to provide the additional flood

storage elsewhere on the site in order to comply with NJDEP requirements. Dipple, 8/9 T. 93-

94.

Dipple testified that the proposed regrading will also cause the flood hazard area

boundary to be adjusted to a point west of the easternmost driveway. However, he determined

that this would not affect the flood hazard elevation, because any flood storage lost by the

regrading of Birchwood Avenue would be offset by newly created flood storage on the Property.

As a result, there will be no increased flooding on the upstream properties (to the north of

Birchwood Avenue) or on properties to the west along Birchwood Avenue that are in the flood

hazard area, and there will be no impact on properties to the east along Birchwood Avenue

(which will continue to be outside of the flood hazard area). Dipple also opined that the

regrading of Birchwood Avenue would not negatively affect drainage, because there would be no

increase in the amount of impervious coverage; in fact, drainage would be improved by virtue of

the additional storm drains proposed in Birchwood Avenue. Dipple and Dr. Emerson both

concluded that the proposed regrading of Birchwood Avenue would have no detrimental effect

on other properties or residents of Cranford. Dipple, 8/9 T. 84-100, 149-150; Emerson, 8/23 T.

163.

Dipple's conclusions as to the absence of any upstream impact were questioned by

Cranford Engineer Marsden and later by Cranford Consulting Engineer Creelman since the

Township had not been provided with any of the calculations or modeling upon which Dipple


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presumably relied in reaching his conclusions. Marsden, 8/22 T. 145-152; Creelman 8/23 T. 90-

99. Marsden and Creelman were both concerned that moving the flood hazard boundary further

west on Birchwood Avenue would increase the flood hazard elevation and generally increase

flooding along Birchwood Avenue. Creelman opined that there were insufficient cross-sections

to enable a valid evaluation of the upstream impact. Creelman, 8/23 T. 90-98. Marsden agreed,

and noted that neither Dipple nor Emerson had accounted for the fact that floodwater flows into

the area north of Birchwood Avenue from Kenilworth to the northwest. As such, Marsden stated

his belief that flooding would increase on properties north of Birchwood Avenue. 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).

In light of NJDEP's sole and exclusive jurisdiction over the flood hazard area permit,

these objections must be adjudicated by the NJDEP. Marsden has, in fact, made Cranford's

objections known to the NJDEP by way of multiple letters objecting to the issuance of the flood

hazard area permit. 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).

In response, CDAs experts, Engineer Dipple and Dr. Emerson, both explained that, even

in a flood hazard area flood event, floodwater flows within the floodway. In their view, the

proposed change in the boundary of the flood hazard area (at a considerable distance from the

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

hazard area elevation. The entire flood fringe area is hydraulically interconnected and is

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


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fringe functions as a single lake. All of the floodwater throughout the entire flood fringe area

is stored at the same elevation. Floodwater that is temporarily unable to flow downstream

through the floodway is stored in the flood fringe area until it can, in due course, be released into

the floodway. Elevating the road will not change this. Since the geographic source of the

floodwater is immaterial to the function of the flood fringe area, there is no scientific justification

for a geographically divided analysis. 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 Hearing Officer finds the analysis by CDA's experts

to be credible and accepts this testimony as valid.

As to fire safety, the Applicant did not provide any testimony from an expert of its own,

but, instead, relied on the conclusions of the Township's fire safety expert, Chief Dolan, that

elevating Birchwood Avenue at the eastern entrance to the Property will provide a safety benefit

because it will assure at least one point of access for fire fighting and other emergency vehicles

in the event of a flood hazard area flood event. L. Dolan, 23. T. 113; N.J.A.C. 7:13-11.5(h)(2).

Dipple acknowledged that if the proposed regrading of Birchwood Avenue were not

approved by Cranford and the Applicant is unable to obtain a hardship waiver from the NJDEP,

it will be impossible for CDA to build the proposed Project, due to its inability to obtain the

necessary flood hazard area permit from the NJDEP.1

Dipple, 8/9 T. 152-153; Dipple 8/21 T.

142-143.

______________________________________________________________________________

1It is the Township's position that the Applicant should seek the hardship waiver recommended by the NJDEP

before seeking permission to regrade Birchwood Avenue. The Township does not believe it has sufficient

information on which to base a decision to allow the grade of Birchwood Avenue to be altered nor does it accept


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LANDSCAPING, TREE REPLACEMENT, REQUESTED WAIVER OF TREE REMOVAL

DESIGN STANDARD

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 Court's Order of December 9, 2011, the Site Plan

provides for a 10 foot wide 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 other suitable

deer-resistant species) in addition to the existing deciduous trees, which will remain. Also in

accordance with the terms of the Court December 9, 2011, Order, the Site Plan provides for a

dense buffer of evergreens to the south of the buildings between the development on the Property

and the single family homes along Wadsworth Terrace. Additional street trees will be planted

along Birchwood Avenue to supplement 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.

Existing trees 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 will be left

in place. Many of these trees are mature trees having diameters of 16, 18, 24, and 36 inches and

heights ranging from 30 feet to as high as 79 feet. Dipple, 8/9 T. 104-107.

______________________________________________________________________________

that, in the context of a Builder's Remedy lawsuit, the site plan application is an appropriate forum for granting the

relief sought by the Applicant. Instead, it is the Township's position that this issue should be cause for

reconsideration of the award of the Builder's Remedy by the trial court. For reasons set forth in the Conclusions

section, the Hearing Officer disagrees with the Township's position and strongly recommends that the Court order

the regrading to be permitted to occur.


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Approximately 72 existing trees will have to be removed to make way for the proposed

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

replacement provisions of the Cranfords site plan regulations, the Applicant would have to

replace these 72 trees with 295 new trees. The Applicant proposes instead to plant 180 new trees

- 108 more trees than will be removed. Consequently, the Applicant seeks a design waiver from

the tree replacement standard in Cranford's Ordinance. Dipple, 8/9 T. 107-108; Site Plan, sht. C-

07.

As proposed, the landscaping plan provides for extensive landscaping on the property -

much more than the landscaping that exists there currently. The only open lawn area proposed is

in the floodway where the existing building and parking lot at 235 Birchwood are located now

and will be removed. The Applicant's Engineer testified that the planting of additional trees in

the floodway could potentially impede the flow of water through the floodway and trap branches

and other detritus that might build up and block the floodway. Dipple, 8/9 T. 108.

REQUEST FOR WAIVER OF BICYCLE RACK DESIGN STANDARD

The design standards of the Cranford site plan regulations require the installation of

bicycle racks based on a ratio that will require the Applicant to provide racks accommodating

394 bicycles. The Site Plan proposes to provide bicycle racks accommodating 40 bicycles out of

doors with additional bicycle storage to be provided on each level of the residential buildings or

in the parking structure (Building C). Dipple, 8/9 T. 109-110; Site Plan, sht. C-04. A design

waiver is sought from the Township's standard for the provision of bicycle racks on the grounds


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that 394 bicycle rack spaces is an exorbitant requirement, far in excess of any likely usage.

Dipple, 8/9 T. 109-110.

Cranford has indicated its willingness to accept a reasonable deviation from the bicycle

rack requirement.

CONCLUSIONS

1. Subject to the granting of the two requested waivers, the proposed Project as

described in Exhibits A-4, A-5, and A-6 conforms in all respects to the terms of Cranfords Land

Development Ordinance as amended by Ordinance No. 2012-11 and the Courts Order of

December 9, 2011.

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

water management provisions of N.J.A.C. 5:21-7, et seq., and the Residential Site Improvement

Standards, since CDA has already filed an application for approval of its storm water

management plan with the NJDEP, and NJDEP will be reviewing that application for compliance

with applicable standards. With respect to all other site improvements, the Project conforms to

the requirements of the Residential Site Improvement Standards, except as to the reduced

parking requirement, which was approved as part of the Court's December 9, 2011, Order.

3. Development of the proposed project with fewer outdoor bicycle racks than

mandated by Cranford Ordinance 136-23(G)(5) will not create a substantial detriment to public

health or safety. Residents are more likely to store their bicycles within the building or Parking


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Garage overnight, and provisions for this will need to be made in the design of the buildings and

Parking Garage. Granting a waiver for fewer outdoor bicycle racks than the number mandated

by the Ordinance will thus remove an unnecessary cost-generating requirement while better

addressing the needs of the residents of the Project. Subject to the conditions set forth below, a

waiver of Cranford Ordinance 136-23(G)(5) is justified in this particular case.

4. Likewise, the development of the Project with fewer trees than called for by the

tree replacement provisions of 136-23(L)(1)-(3) of Cranford's Ordinance will not create a

substantial detriment to public health or safety or to the appearance of the Property. The

Property is proposed to be well-landscaped in all areas that will be disturbed for development.

Other areas will be left in their existing natural state. Permitting the tree replacement

requirement to be reduced to a number that can comfortably be accommodated within the areas

slated for redevelopment will remove what would otherwise be an unnecessary cost generating

requirement, with no documented corresponding public benefit associated with requiring more

trees to be planted. The waiver sought from 136-23(L)(1)-(3) of Cranford's Ordinance to limit

the tree replacement requirement to only those trees shown on CDAs landscaping plan is,

therefore, justified.

5. Subject to conditions outlined in the next section of this Recommendation, the

Project as proposed will provide adequate ingress and egress to Birchwood Avenue, sanitary

sewer service and public water service.

6. Storm water management, flood control, and wetlands protection are matters that

are ultimately governed by the regulatory standards established by the NJDEP. CDA has filed


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applications with the NJDEP for the approvals and permits needed in each of these areas and has

acknowledged that it cannot commence construction unless it receives all of these permits and

approvals. The Township of Cranford is permitted to participate in the proceedings before the

NJDEP and has elected to do so. Under these circumstances, and consistent with N.J.S.A.

40:55D-22(b), it is recommended that any approval granted by the Court be expressly

conditioned on CDAs securing all required permits and approvals from the NJDEP, or waivers

or exceptions therefrom, if available, as well as required permits and approvals from all other

outside agencies.

7. With respect to CDA's proposed regrading of Birchwood Avenue in order to

elevate the Project's easternmost entrance drive above the flood hazard elevation, it is duly noted

that the Township is opposed to the approval of this proposal in connection with the Court's

approval of the site plan. Nonetheless, this matter has been referred to the Hearing Officer for

consideration by the Court, and it is, therefore, appropriate for the Hearing Officer to make

findings and recommendations to the Court on this issue.

The Hearing Officer is satisfied, from both a legal and an engineering perspective, that

the proposed elevation of Birchwood Avenue should be ordered by the Court as a necessary

component of its grant of a Builder's Remedy to CDA, subject, of course, to whatever permits

and approvals are required by the appropriate governmental agencies and authorities. There is

simply no credible evidence to suggest any detriment will ensue, either from a planning,

environmental or flood protection perspective, if the regrading of Birchwood Avenue is

permitted to occur. Moreover, given the municipality's obligation to take such affirmative steps

as are reasonably necessary to facilitate and make realistically possible the construction of


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affordable housing, there seems little reason for the Court to refrain from so ordering. In

addition to the lack of credible evidence that any detriment will ensue, there is sufficient credible

evidence that the regrading of a section of Birchwood Avenue as proposed by the Applicant will

promote public safety, ensure compliance with NJDEP's most recent interpretation of its

regulations, and ensure that a substantial amount of affordable housing can be built in the context

of the Project.

The Hearing Officer therefore unreservedly recommends to the Court that it authorize the

elevation of Birchwood Avenue to be performed by CDA, at its sole cost and expense, as an

integral component of the Builder's Remedy.

8. During the Hearings, the Township has proposed that CDA be required to

construct or contribute its pro rata share to the cost of constructing certain off-tract

improvements, as authorized by N.J.S.A. 40:55D-42. This provision of the Municipal Land Use

Law permits municipalities to adopt ordinances providing regulations by which developers may

be required to contribute their pro rata share of reasonable and necessary off-tract improvements

pertaining to street improvements, water, sewerage and drainage facilities, if such improvements

are necessitated or required by construction or improvements within the development. The Law

requires such ordinances to be based upon circulation and comprehensive utility service plans

prepared as part of the municipal Master Plan. It was not clear from the testimony offered by the

Township at the hearing whether such Ordinance, in fact, exists. If it does, the Township may

require the Applicant to contribute only its pro rata share of such improvements as have been

deemed necessary to the construction of the Project. If such an Ordinance does not exist, the

Township has no authority to require contributions for any off-tract improvements.


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The following off-tract improvement contributions were discussed at the Hearings:

a. increasing the size of the existing 8 inch water line between the Project and

Bloomingdale Avenue to 12 inches;

b. connecting the proposed water line in the easternmost driveway of the Project to

the water main in the service road of the adjacent health care facility; and

c. relining approximately 1,300 linear feet of sanitary sewer lines.

For reasons discussed in the next few paragraphs, only this last proposed off-tract improvement

contribution remains at issue.

9. As to water system improvements, Fire Chief Dolan had testified that a hydrant

water service level of 2,000 gallons per minute is desirable to assure sufficient water for fire

suppression at the Project. During the Hearings, the parties were in dispute as to whether

Cranfords existing public water system currently provides this level of service or if additional

water service needs to be created at the Property. Fire Chief Dolan had testified that, if a water

service level of 2,000 gallons per minute is not currently available at the Property, it could 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 main. Furthermore, if

the water service level is insufficient at the hydrants served by the water main on Birchwood

Avenue in front the Project but is determined to be available elsewhere in the area, such as at the

water main in the service driveway of the health care facility just east of the Project, then

connecting the water line that will loop through the Project to another line with sufficient service

would be another way to create the additional water service level needed for the Project.


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There is no question that CDA is responsible for assuring that there is adequate water

service for the Project. Consequently, the Applicant offered to arrange for an independent test of

the water service level at the hydrants in front of the Project to be conducted either by the water

company or by another entity agreed upon by CDA and the Township, which test would be

undertaken in accordance with the relevant national standard, NFWA 291, and paid for by CDA.

If the test showed that the water service level at these hydrants is significantly below 2,000

gallons per minute, then CDA would either construct the 12 inch water line or elect to reimburse

Cranford for its pro rata share of the reasonable cost of the Townships performing this upgrade.

The second remedy proposed by Chief Dolan, which was the connection to the water main in the

driveway to the health care facility, would require an easement to be obtained from the health

care facility. Cranford has not offered to acquire such an easement through the exercise of its

powers of eminent domain. Consequently, approval of the Project cannot be conditioned on that

particular connection, although CDA agreed to make a good faith effort to attempt to secure the

property rights necessary to construct such a connection, if necessary.

Subsequent to the Hearings, on October 12, 2012, an independent test of the level of

water service available at the hydrants in front of the Property was conducted by New Jersey

American Water Company in the presence of representatives of both Cranford Township and the

Applicant. The results of the test indicate that, at a pressure of 20 pounds per square inch, the

flow at the two hydrants in front of the Property was 2,778 gallons per minute and 2,887 gallons

per minute, respectively. Since Fire Chief Dolan had indicated that an acceptable level of flow at

a pressure of 20 pounds per square inch is 2,000 gallons per minute, there is no need to upgrade

the 8 inch line in Birchwood Avenue between the easternmost hydrant in front of the Property

and Bloomingdale Avenue, as initially proposed by the Township.


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Also subsequent to the Hearings, at a meeting held between the parties on September 28,

2012, the map of the municipal water system was reviewed and it was learned that the

Birchwood Avenue water main does not extend to Cranford Avenue; instead, it runs up

Birchwood Avenue to the driveway of the health care facility just east of the Property, runs down

that driveway, around the health care facility building and then out to Cranford Avenue.

Consequently, the water main in the health care facility driveway is not a separate water main, as

initially assumed, but is in fact the very same water main that serves the Property. Consequently,

there is no need to provide a second connection to the water main in the driveway to the health

care facility from the Property.

Accordingly, there is no reason to require any off-tract improvement contributions with

respect to the water system as a result of the Project.

10. As to the sewerage improvements, it is the position of Cranford Township that

even if the existing sanitary sewer system has the capacity to accept the additional flows from the

Project, such additional flows will increase the risk of future breaks in the system. To address

this potential problem, the Township has proposed that CDA be required to either re-line, or

contribute its pro rata share of the cost of re-lining, approximately 1,300 linear feet of sanitary

sewer lines at unspecified locations.

The parties both agree that the existing sewerage system is very old, suffers from serious

unremediated inflow and infiltration, and is already subject to breaks. There is substantial

disagreement, however, about whether and to what extent sewage flows from the Project will

increase the likelihood of additional breaks and the extent to which the Project should be


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required to contribute toward necessary improvements to the sewerage system to correct existing

problems. This is an issue that may well need to be resolved by the Court, if the parties cannot

come to an agreement as to the need for improvements to the sewerage system and as to the need

for the Applicant to pay a pro rata share of the cost of such system improvements or what that

pro rata share should be.

Nothing herein is intended to suggest that the Township is precluded from making

whatever improvements to the system it believes are necessary and assessing each of the

beneficiaries of the improvement, including CDA, for a fair share of the costs, in the manner

provided by law.

RECOMMENDED CONDITIONS OF APPROVAL

During the course of the Hearings, the Applicant voluntarily agreed to a number of

conditions requested by the Townships experts, the Special Master and/or the Hearing Officer,

all of which conditions are recommended to be incorporated into any Preliminary and Final Site

Plan Approval ordered by the Court. There are also a number of other conditions, to which the

Applicant has not agreed, but are being recommended by the Hearing Officer (with the

concurrence of the Special Master) to be imposed by the Court as part of its approval of the Site

Plan for this Builder's Remedy Project.

THE HEARING OFFICER (WITH THE CONCURRENCE OF THE SPECIAL

MASTER) HEREBY RECOMMENDS THAT PRELIMINARY AND FINAL SITE PLAN

APPROVAL, ALONG WITH TWO WAIVERS OF TOWNSHIP DESIGN STANDARDS


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(ONE PERTAINING TO THE NUMBER OF TREES REQUIRED TO BE PLANTED TO

REPLACE TREES BEING REMOVED FOR DEVELOPMENT AND THE OTHER

PERTAINING TO THE NUMBER OF REQUI

2012-11-10-Recommendations-Wolfson-Hearings of August 8, 9, 21, 22, 23, 2012

Documents

Transcript of 2012-11-10-Recommendations-Wolfson-Hearings of August 8, 9, 21, 22, 23, 2012