Transcript 8.9.10 Dipple and Report. Resident Hrebin

7/31/2019 Transcript 8.9.10 Dipple and Report. Resident Hrebin

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SUPERIOR COURT OF NEW JERSEYLAW DIVISION, CIVIL PARTUNION COUNTY, NEW JERSEYDOCKET NUMBER: UNN-L-0140-08A.D. NO.:___________________

LEHIGH ACQUISITION, ET AL::

Plaintiff, :: TRANSCRIPT

vs. :: OF

TOWNSHIP OF CRANFORD, :: TRIAL

Defendant. :

Place: Union County CourthouseTwo Broad StreetElizabeth, New Jersey 07207

Date: August 9, 2010

BEFORE:

HONORABLE LISA F. CHRYSTAL, J.S.C.

TRANSCRIPT ORDERED BY:

CARL R. WOODWARD, III, ESQ.

APPEARANCES:

STEPHEN M. EISDORFER, ESQ. (Hill Wallack LLP)Attorney for the Plaintiff

CHARLES R. WOODWARD, ESQ. (Carella, Byrne, Cecchi,Olstein, Brody & Agnello)

Attorney for the Defendant

BRIAN FENLON, ESQ. (Carella, Byrne, Cecchi,Olstein, Brody & Agnello)



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2

VINCENZO M. MOGAVERO, ESQ. (Carella, Byrne,Cecchi, Olstein, Brody & Agnello)


DARCEL D. HART

UTOMATED TRANSCRIPTION SERVICESP.O. Box 2230

Laurel Springs, New Jersey(856) 784-4276


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3

I N D E X

August 9, 2010

ARGUMENT PAGE

By Mr. Woodward 6/13By Mr. Eisdorfer 10

THE COURT PAGE

Statement 3Decision 14

WITNESSES Direct Cross Redirect Recross

Mr. Hrebin 20By Mr. Eisdorfer 35By Ms. McKenzie 44

Dr. Kinsey 45 116

EXHIBITS Ident. Evid.

P-10b Wetland Survey Plan 58P-10c Photograph taken 4/15/2007 22P-30 ITE, Institute of Traffic Engineers

Parking Generation Report, 3rd

Edition 86P-39a Photo of Wadsworth rear property

line 45/58P-63a Enlargement of concept plan dated

7/30/10 45D-25a Photograph taken 4/15/2010 25 27D-25c photograph taken 4/15/2007 23 25D-25d Photograph taken 4/15/2007 21 22D-25f Photograph taken 4/15/2007 27 30D-25g Photograph taken 4/15/2007 30 31D-25m Photograph taken 4/15/2007 32 33

D-25n Photograph taken 4/15/2007 33D-165 Dr. Kinseys handwritten notes at

site 63D-166 The retainer letter 10/10/2008 68D-167 Copy of email from Kinsey to

Eisdorfer 69D-168 Dr. Kinseys notes dated 1/8/2009 114


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The Court

4

THE COURT: We're back on the record on1

Docket Number L-0140-08. And today is the day for2

continuation of the trial in this matter. We did not3

hear testimony on Friday, August 6th, because that was4

a motion day. And here we are on August 9th ready to5

proceed. Just for purposes of the record, let me have6

the appearances of Counsel. And I know we have an7

application, which is the result of a brief, letter8

brief that was on my desk this morning when I came in.9

And we have, a legal issue to address.10

MR. EISDORFER: Stephen Eisdorfer of the firm11

of Hill Wallack LLP on behalf of plaintiff Cranford12

Development Associates, et al.13

MR. WOODWARD: Thank you. Your Honor, Carl14

Woodward, Brian Fenlon and Vincenzo Mogavero of15

Carella, Byrne on behalf of the Township of Cranford16

and the Planning Board of the Township of Cranford.17

THE COURT: Okay. So as I said, today is the18

date for the continuation of the trial in this case.19

And, when I came in, I was faced with this brief20

submitted by Mr. Woodward, four page letter brief,21

explaining that he was served on Friday evening with a22

supplemental expert report by CDAs engineering expert,23

Michael Dipple, which will now be sought to be offered24

into evidence, I, I assume as a rebuttal witness. I25


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The Court

5

guess that's what was anticipated.1

Having read that letter brief, I conversed in2

chambers with Counsel and with the Special Master, Ms.3

McKenzie. Given that, although I had not been provided4

with a copy of the supplemental report, I now have5

been. It's a page and a half long and includes a6

couple of diagrams, drawings, pertaining to the flood7

hazard area. And the report, although I have not read8

the entire thing, talked about calculation of the flood9

hazard, flood hazard area, the flood storage area, and10

the drainage plans on the site.11

Certainly I, I reiterate what I told Counsel,12

that I do not make rulings in chambers. I certainly13

will give everybody the opportunity to place their14

positions on the record. But it seemed to me, as I15

said to Counsel, that the supplemental information16

struck at the heart of the issue in this case.17

And although Mr. Woodward is correct in his18

position that it is contrary to the New Jersey Court19

Rules, or rules of discovery to provide an experts20

report in the middle of a trial, and all the cases that21

he cited, do support the position that the Courts22

refusal to allow an expert after the start of trial is23

appropriate and generally upheld on appeal, this is not24

a new expert. This is the expert that testified25


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Woodward - Argument 6

previously. And this is an expert who is attempting to1

offer for, or respond to a very significant question2

in the case, perhaps the most important question, the3

main question, which is the site suitability and the4

flood drainage on the property in question.5

So, given that, I, I asked Counsel to come6

into chambers to determine whether we could resolve7

this case in a way that the finder of fact, the Court,8

would be able to obtain the information necessary9

during the trial and not exclude it out of technical10

correct application of the Court Rules, but in an11

effort to, to get at the, the truth of the matter, and12

the, and the relevant information for, for an13

assessment of the truth of the matter, how we could14

include it in a fair and non-prejudicial manner to all15

parties. So, I will hear you if you have anything to16

add to that summary of what we've been working on.17

MR. WOODWARD: Your Honor, Carl Woodward on18

behalf of Cranford. I appreciate your summary of, the19

position of the parties. I just do want to put on the20

record a few things, however. This report, I dont21

regard as a supplemental report. I regard this as an22

entirely new report because it deals with a response to23

a question that I asked Mr. Dipple at the end of his24

cross-examination with respect to his conclusion that a25


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Federal -- excuse me; flood hazard area permits could1

be obtained in this case. And his response was, based2

on my experience, I can get the permits.3

But then I asked him again, but you have no4

calculations and no data to support your conclusion.5

And his answer to that was no, I do not. At least6

that's how I recollect the testimony, the substance of7

it.8

That was last Tuesday. And this past Friday9

night after I had left the office after 6:30, around10

7:00 o'clock, we get these calculations or the summary11

report of his calculations which attempt to justify the12

position that he had taken before.13

The plaintiffs in this case have taken the14

position that, no we dont have to supply this15

information at all, notwithstanding that the Towns16

experts have been for months saying that this sort of17

calculation is, is important and should be done in this18

particular case.19

So, we have here prepared a trial -- for20

trial based upon the position of the plaintiff in the21

discovery received prior to the trial, with respect to22

this issue. We get this -- and, frankly, this is a23

tactic that was used by the plaintiffs in the very24

beginning of this case when they came to the Town and25


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wanted the property resolved in three weeks. There was1

a request for technical information, not provided. But2

in any event, here, we have the same issue.3

The harm to the plaintiffs or the defense is4

palpable. But, I also, and we cite the cases in which5

experts are barred. I understand that. But I also6

understand that there is cases that go the other way7

that say, if it's critical, we can get it in, or it can8

be allowed on terms, on conditions.9

And one of those conditions is, if it's going10

to be done, that the defendants or the party against11

whom the evidence is offered has a reasonable period of12

time to evaluate it, especially when it's technical and13

it involves the sort of things that at least I as a non14

Engineer cannot do. It involves consultation. It15

involves analysis and verification of the data that16

goes into that report. The report does not include any17

of that information.18

So, under those circumstances -- and, and by19

the way, sometimes, and I've seen this done in many20

cases, where okay, you want to get your expert report21

in and you want this additional, fine; but there's22

going to be sanction for what you did. There's a23

consequence to what you did. You're putting the other24

side to added expense in terms of defending the case.25


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So, we have said in our papers if you, if the1

Court is intended to permit this, and I can understand2

why; then there is a term. The defense gets the3

adequate time. And we've discussed how to accomplish4

that, to prepare to meet the evidence, prepare to take5

the witness' deposition as we, as we could; to verify6

the stuff. And, frankly, for the defense, perhaps7

recast the way its going to present its defense.8

That's part of the harm of the surprise of this kind of9

information.10

Also, frankly, this is an expense now imposed11

upon a municipality and I think that the plaintiffs12

should pay for that. They should pay for our13

engineering experts review and analysis, and they14

should pay for the cost of a deposition as an example.15

So, that being said, Your Honor, I understand16

your sentiment in this regard. I also understand that17

this is a Bench Trial, and we have a Special Master.18

So that makes it a unique circumstance. We have set19

our position on the record. And, as I said, I think20

this stuff should be barred. But beyond that, if it's21

not, then the terms that we have suggested in our22

letter are the ones that we think should, should apply.23

And, I might add that it depends upon really,24

how much time, and looking at everyones schedules;25


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Eisdorfer - Argument 10

well try to accommodate the Courts schedule. But,1

you know, I don't want to be in a position where my2

expert has to be rushed unduly to prepare something in3

response. We're going to respond as quickly as we can,4

but I don't want, I want my people to be comfortable5

with what they're doing. And that's an important6

factor.7

And I might add that not only Mr. Krillman8

(phonetic) who is my Consulting Engineer on this9

matter, but Mr. Morrison who is the Township Engineer10

and has definite input into this and opinion on this,11

need to be consulted. And, as I've noted before, Mr.12

Morrison himself, is scheduled to go on vacation next13

Monday. And hes going to be away for two weeks.14

So we're doing the best we can with Mr.15

Morrison for the first, for the first few days. But,16

you know, again, we're being put in a position where17

our defense is being compromised by the conduct, by the18

late submission of this report. Thank you.19

THE COURT: Mr. Eisdorfer?20

MR. EISDORFER: May it please the Court; this21

is, this is a matter in which the defense, the defense22

bears the burden of proof. And it's their obligation23

to show that the site is not suitable, that there are24

compelling environmental considerations. And, last25


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March, in March I deposed Mr. Morrison, and I deposed1

Mr. Krillman. And I said youve expressed opinions as2

to the feasibility of this, have you done calculations?3

And they said, no, we weren't directed. And each of4

them answered and they said, no we were not directed to5

do any calculations.6

After Mr. Dipples testimony on Tuesday, I7

was approached by the Special Master, and she said,8

your Engineer may be right, but I'm not comfortable9

offering an opinion without seeing any calculations.10

At that point, I said, my goal is to make the Special11

Master comfortable. And, since the Town has not12

offered any calculations to support its attempt, we13

will go ahead and do those calculations. And so, we14

have done them. And we believe -- Mr. Dipple submitted15

them to me late Friday and I sent -- mailed them16

immediately to Ms. McKenzie and to Counsel, so that17

everybody should, should have them.18

We have now had a meeting between the19

Engineers. And Mr. Krillman has indicated to Mr.20

Dipple the information that he needs to, to do an21

evaluation. Mr. Dipple has indicated that he can get22

that out today and Mr. Krillman will have it first23

thing tomorrow morning. So, we think that, that this,24

the Court is handling this in a reasonable way in light25


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of the history.1

We would note that, that, we got a report.2

We got a new set of documents, a new set of data from3

Morrison about 4 o'clock Friday afternoon, and, and the4

supporting documentation in court this morning. I5

anticipate that Mr. Morrison is going to want to6

testify on, on this new data that he has collected.7

So both sides are a little scrappy on this.8

And, I confess that we are. And I suggest that the9

Town is too. This is far from a one-sided situation.10

We, we dont think that sanctions are appropriate in,11

in this context.12

Defendants made a conscious choice not to do13

the calculations themselves, but to put on a defense14

then, that, that didn't involve the calculations. They15

could have done that. It was their burden. We have,16

we have now, now gone ahead and done it. We dont17

think that plaintiff should be penalized for, at this18

point for responding to the concerns of a Special19

Master.20

THE COURT: Well what was it that you21

received new just recently from the Township?22

MR. EISDORFER: Mr. Morrison was, was on the23

site, his staff was on the site for three days last24

week. And they were out making measurements. And so25


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we received a map showing, showing measurements and1

showing what purports to be the existence of, of piping2

on the site different from what's shown on the surveys.3

And we received today the map, a map filled with, with4

penciled in, penciled in, penciled in survey5

measurements. I gather, I don't know, but I gather6

that what they, what theyve been doing is, theyve7

been out there with surveying equipment surveying,8

surveying the site, looking for high points and low9

points; looking for, looking for things that would be10

indicative of places where water does or does not sit.11

I really dont know, because at this point all I have,12

all I've received is a set of marked up, a set of13

marked up drawings.14

THE COURT: And you got those today?15

MR. EISDORFER: Yes.16

THE COURT: Okay.17

MR. WOODWARD: Your Honor, if I could just18

respond to the contention that they're receiving a new19

report from Mr. Morrison. There is no new report from20

Mr. Morrison. Last Sunday, Mr. Morrison took three21

photographs on the site. And we produced them to Mr.22

Eisdorfer on the rain event last Monday, actually.23

MR. EISDORFER: April -- August 4th.24

August 4th.25


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MR. WOODWARD: Mr. Morrison sent two1

employees of2

the Townships Engineering Department to make site3

measurements. They did not prepare a survey; to4

confirm distances, sizes of piping. The plaintiff's5

survey from 2008 has a number, numbers and distances6

calculated on it. Mr. Morrisons own prior numbers did7

not jive with that. So those are existing data of8

what's on the site; plain and simple. You may recall9

last week when we broke that there was an issue about10

whether the Engineer had site access to make these11

calculations.12

After that, Mr. Eisdorfer requested his13

calculations. That's an old survey. It was prepared14

of this property in 1974 and has the notations. It's15

not a new expert report. It's not even close to being16

the type of information that was provided regarding Mr.17

Dipples report on Friday. Thank you, Your Honor.18

THE COURT: All right. Listen, I, I -- I19

mean this isn't plain and simple. I mean it may sound20

basic. This is a search for the truth. This is a21

search for the finder of fact, the Court and, indeed,22

the Special Master who is charged with the23

responsibility of making a recommendation to the Court24

to understand the issues and have the information25


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The Court - Decision 15

necessary to make a decision.1

So, that's why I suggested in chambers, and2

as I have previously suggested that Counsel attempt to3

work out these issues in the course of the trial,4

throughout the course of the trial in an effort to5

provide the Court and the Special Master with the6

complete and full information necessary for the Court7

to make the appropriate decision.8

And as I said in chambers, if I exclude the9

information because technically it comes during the10

trial and it's prejudicial in two ways, I would11

anticipate a remand from the Appellate Division saying12

well the Trial Judge should have found a way to13

consider this information, whether it be by declaring a14

mistrial, which would have been, which would be of no15

help to either party, or adjourning the trial to allow16

the expert for the Township to consider the17

information, and allowing that expert to be deposed.18

It doesnt seem to me that it will take19

forever. It seems to me that it doesnt require 6020

days as, as requested by Mr. Woodward. And it seems to21

me that given the fact that both parties are amending22

site plans and amending drawings and still going out to23

the site, and still trying to place input into what,24

what's happening here in the courtroom based on what25


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they're seeing on the site, be it a rainfall on1

August 4th or new measurements on the property, that2

sanctions are in order for either party.3

I have asked you some several times in4

chambers to avoid this type of surprise and5

gamesmanship that two very experienced Attorneys, very6

professional Attorneys such as you could workout some7

of these issues.8

I think the prudent way to proceed is to have9

Mr. Dipple provide the entire basis for his -- and I10

might add, it's just this, a one and a half page11

letter. It's not extensive. It's not lengthy. I12

haven't read it yet, but it did come in response to Mr.13

Woodwards questioning, and open questions from the14

Special Master; which raised the question in my mind,15

that I should have been and will in the future, in this16

case, allow the Special Master to ask questions of the17

witness in that endeavor to get all the, obtain all the18

information and get at the, the truth of the matter.19

But maybe Mr. Dibble can provide that or20

return to his office now and provide that information21

by the end of today, and Mr. Krillman can review it22

tomorrow. My suggesting was that we take a day off23

from testimony tomorrow, or if there's some other24

testimony you can put on that is not relevant to that.25


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But Mr. Woodward, I understand that you may need time1

with your expert, and you may need time to depose Mr.2

Dipple.3

So, I will order Mr. Dipple remain available4

for his deposition tomorrow, Wednesday morning, if5

necessary. But I think we should resume this trial. I6

don't think that a 60 day adjournment is necessary. I7

am not going to penalize you, Mr. Woodward, in forcing8

you to proceed before your expert and yourself have the9

information necessary and you have Mr. Dipples10

deposition. But I'm not going to let vacations and11

days off or any of that interfere with it either.12

The case has been adjourned several times.13

We've already had one site visit to the Appellate14

Division. I think we need to proceed with this case.15

And it's, it's ready to go. We have two weeks that we16

can conclude it, this week and next week. So, I, I, I17

made arrangements because Ms. McKenzie thought she had18

a Livingston trial. That trial will be adjourned until19

the 23rd. We have two weeks to, to complete it. And20

if we dont, I've already advised Counsel that I intend21

to finish it up on the 7th and 8th of September. If we22

have to wait until then for Ms. McKenzies Special23

Master Report.24

I also indicated in chambers that I will be25


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asking you, Counsel, to submit proposed findings of1

fact and conclusions of law, together with references2

to the exhibits in evidence, and most likely with3

information, or if you do them orally, then copies of4

your oral summations in writing for me as well.5

I, I, you know, I think this is a fair6

resolution of this issue, and I think it's a, I think7

it's, I think it's the right way to proceed. So, I've8

considered everyones opinions and positions, and9

that's what we're going to do. What I said in chambers10

was, that unless you can tell me that there are fact11

witnesses that you can put on tomorrow, we will not12

work tomorrow. We will have a telephone conference13

call late in the day, and well determine whether or14

not there's a witness available for Wednesday.15

If not Wednesday morning, I am inclined to16

proceed again on Wednesday afternoon, just so you know,17

because I think Monday afternoon, all day Tuesday, and18

Wednesday morning should be sufficient, more than19

sufficient, more than generous, more than adequate to20

address this issue.21

I think it's, yes, it's a computerized model.22

Yes, it's new information. No, it's not a surprise.23

It should not have come as a surprise to anyone, given24

the fact that the parties knew this was a missing piece25


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that needs to be addressed at the trial. So, you know,1

the idea of who put it forward, who put it before the2

Court first shouldnt be an impediment to getting a3

full exploration of it at the trial.4

So with that, I think we can complete Mr. --5

oh. Okay. We have Mr. Kinsey, but you wanted to put6

on another witness?7

MR. WOODWARD: Your Honor, I have John Hrebin8

who is a resident of Cranford who took some photographs9

that have already been referred to in this trial. And10

I just wanted to put him on the stand to authenticate11

and give you some idea of, you know, where these12

photographs were.13

THE COURT: Okay. And Mr. Eisdorfer agrees14

to take him out of turn?15

MR. EISDORFER: Yes, Your Honor.16

MR. WOODWARD: All right. Fine. Id like to17

call John Hrebin to the stand.18

J O H N H R E B I N, DEFENDANTS WITNESS, SWORN19

THE CLERK: State your full name for the20

record, sir and spell your last name.21

THE WITNESS: John J. Hrebin, H-R-E-B-I-N.22

THE CLERK: Thank you. Please have a seat23

and keep your voice up.24

THE COURT: Can you spell your name again,25


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Hrebin - Direct 20

please.1

THE WITNESS: H-R-E-B-I-N.2

THE COURT: Thank you.3

DIRECT EXAMINATION BY MR. WOODWARD:4

Q Mr. Hrebin, could you tell us your address?5

A 414 Cranford Avenue, Cranford, New Jersey.6

Q And how long have you lived in Cranford?7

A 34 years.8

Q And, is Cranford Avenue or where you live in9

any proximity to Birchwood Avenue?10

A Yes.11

Q How far is it?12

A It's right around the corner. My house is three,13

three houses in from Birchwood Avenue.14

Q And have you ever seen Birchwood Avenue in a15

flooded condition?16

A Yes.17

Q Now, I'm going to direct your attention to18

April 15, 2007 and ask you if you recall a rain event19

and flooding on Birchwood Avenue on that date?20

A Yes, I did.21

Q And did you take any pictures on that day?22

A Yes, I did.23

(Pause)24

MR. WOODWARD: Your Honor, these pictures all25


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Hrebin - Direct 21

appear in the book under D-25. And I'm going to hand1

these out. We've got all blown-up copies for the2

Court.3

THE COURT: D-25?4

MR. WOODWARD: Yeah. This is going to be,5

this ones going to -- I, unfortunately, that's one not6

marked. It's got D-25e. Okay.7

BY MR. WOODWARD:8

Q All right. Mr. Hrebin, I'm going to show you9

what's been marked as D-25d. This is a photograph. Do10

you recognize that photograph?11

A Yes, I do.12

Q Did you take that photograph?13

A Yes, I did.14

Q When did you take it?15

A Approximately between three and four o'clock in16

the afternoon on April the 15th.17

Q 2007?18

A 2007.19

Q Okay. And what is depicted in this20

photograph?21

A This is a picture of Birchwood Avenue from22

approximately the east side of number 215, looking west23

on Birchwood Avenue to 235. And you can see two cars24

that are stuck in the water.25


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Hrebin - Direct 22

Q Now, Mr. Hrebin, I'm going to show you what's1

been marked as P-10c for identification. Could you2

come down here and point to the Court approximately3

where you took that photograph from, so the Judge can4

see. This is, just so you know, orientation,5

Birchwood out and Birchwood in.6

A Okay. Here is 215. I was approximately here.7

Q And by that, you are near to --8

A I'm east of the driveway from 215. The driveway9

is here.10

Q You're east of one of the driveways?11

A Yes.12

Q Okay. And you were standing right in front13

of the building at 215 Birchwood?14

A Approximately.15

Q Okay. In which direction is that picture16

taken?17

A The picture is going west. I believe it's18

considered west towards 35.19

Q All right. Fine. Thank you.20

MR. WOODWARD: I offer D-25d in evidence,21

please. Resume your seat.22

THE COURT: I assume there's no objection.23

MR. EISDORFER: I have no objection.24

THE COURT: Do, did you give me a list of --25


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Hrebin - Direct 23

did you give me an exhibit list?1

MR. WOODWARD: It's in our exhibit list as2

D-25, Your Honor.3

THE COURT: Okay.4

MR. WOODWARD: But I think --5

THE COURT: Oh that was a separate, a6

separate list. All right. As I said, I'm going to ask7

the Counsel to keep a list of what's in evidence so you8

can --9

(Pause)10

Oh, here I have it. It's D-25 in the book,11

in your volume D-25 has all the exhibits.12

(Pause)13

MR. WOODWARD: Your Honor, I'm going to hand14

you what's been marked D-25c, although that one is not15

marked. I have only one that's got the Exhibit Number16

D-25c.17

BY MR. WOODWARD:18

Q I'm showing you D-25c Mr. Hrebin. Can you19

identify that photograph?20

A This is taken, once again, looking west on21

Birchwood Avenue. You can see that there's two cars22

stuck in the water. There's a fire truck up on the23

right, which came to aid the people. Unfortunately,24

they couldnt help them. I was able to get a little25


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Hrebin - Direct 24

closer, but I also had the telephoto lens on the1

camera.2

Q Now, could you tell us when you took this3

picture?4

A Approximately, between, once again, three and four5

o'clock in the afternoon on April the 15th.6

Q On the 15th of April?7

A Yes.8

Q 2007?9

A Yes.10

Q All right. Fine. Could you come down here,11

and could you point to the Court and show the Court12

exactly where you stood when you took that photograph?13

A Once again, it was approximately in the same area.14

I may have been able to move a little closer, but once15

again, there was a telephoto lens on the camera.16

Q So you, you were standing in about the17

driveway?18

A About the driveway, yes.19

Q The westerly driveway of 215 --20

A Right.21

Q -- Birchwood Avenue?22

A Right.23

Q Okay. And you were taking a picture in a24

westerly direction --25


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Hrebin - Direct 25

A Right.1

Q -- down Birchwood Avenue? Does it show2

water, this photograph show water on 235 Birchwood3

Avenue?4

A Yes, it does. If you look in the trees, you're5

looking at -- there's some trees here and then the6

driveway is here. And these cars are approximately7

right past the driveway for 235.8

Q All right.9

A They wouldnt be over there. They would be10

approximately right here.11

Q Now there's water on the --12

A There's water on the 235 property, right at this13

fence.14

MR. WOODWARD: Fine. Thank you. I offer15

D-25c into evidence please?16

MR. EISDORFER: No objection, Your Honor.17

MR. WOODWARD: Your Honor, this is D-25a.18

Copy to Counsel.19

BY MR. WOODWARD:20

Q Mr. Hrebin, I'm showing you what's been21

marked as D-25a, for identification. And I'm going to22

ask you if you can identify that photograph?23

A Yes.24

Q Did you take it?25


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Hrebin - Direct 26

A Yes.1


A Approximately 6 p.m. on April the 15th. And the3

reason for that was I wanted to go to church, five4

o'clock mass. And I didn't have time to get around,5

because to get this picture, I had to go completely6

down to Springfield Avenue, up to Orange and over and7

come back. So I had to drive all the way around to get8

it. And it's about two and a half miles.9

Q All right. And could you show the Court10

where you took that photograph from?11

A Now this picture is looking into 235 from, this is12

the Verizon property you called it.13

Q Yeah.14

A And there's a little rise here. And, I took the15

picture again facing southbound. This is northbound.16

So, I took it southbound looking into the property.17

And, the car is just past the driveway here.18

Q Now, that's the driveway at 235 Birchwood?19

A Right, the driveway at 235 Birchwood.20

Q And you were standing on the Verizon property21

which was on the north side of Birchwood Avenue?22

A Yes. Yes. And to get the picture, I had to drive23

all the way around and come back on this side.24

Q All right. So you, you actually approached25


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Hrebin - Direct 27

it from the west.1

A Yes.2

Q Is that correct?3

A From the west side, going through the parking lot4

taking the picture.5

Q And what does this picture show?6

A This shows a car stuck in the, in the, in the --7

Birchwood Avene. And you're looking into 230 -- the8

property at 235. This is a, a driveway and grass area9

and that.10

Q And is 235 Birchwood Avenue flooded?11

A Yes.12

THE COURT: So which way is this car headed13

on Birchwood?14

THE WITNESS: The car was headed. The car15

was headed westbound on Birchwood. And, unfortunately,16

the person drove right into the water, did -- not17

realizing how deep it was.18

MR. WOODWARD: Your Honor, Id like to offer19

D-25a into evidence at this time.20


BY MR. WOODWARD:22

Q Okay. you can sit down.23

MR. WOODWARD: Your Honor, this is going to24

be D-25f.25


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Hrebin - Direct 28

BY MR. WOODWARD:1

Q I'm showing you what's been marked as D-25f2

for identification. Do you recognize that photograph?3

A Yes, I do.4

Q And what does that photograph show?5

A This is a picture of the driveway area on 2356

Birchwood. I took it from the across the, the street.7

The street -- Birchwood Avenue is between the two8

trees, Your Honor; and it's all flooded out, it's all9

covered with water.10

Q And when did you take this photograph?11

THE COURT: That would be in between these12

two large trees?13

THE WITNESS: Yes. This tree and this tree.14

That's Birchwood Avenue.15

BY MR. WOODWARD:16

A Once again, it's about six o'clock.17

Q Six o'clock in the evening on --18

A Yeah, April the 15th, yeah.19

Q -- April the 15th, 2007?20

A Right.21

Q Okay. And does that fairly and accurately22

represent what you saw?23

A Yes, it does.24

Q And you took the photograph from the north25


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Hrebin - Direct 29

side of the street, --1

A Yes, the Verizon property again.2

Q -- the Verizon property? And --3

A I was more towards the, slightly more towards his4

driveway on 235.5

Q Does it show the building at 235 in the6

picture?7

A Yes, it does.8

Q And where, where? On the right side of the9

picture?10

A In the right-hand corner, yes.11

Q Does it show the parking area -- the12

driveways and the parking areas also?13

A Yes. The driveways -- I took the picture14

approximately here. The driveway is all covered with15

water back to the, well into the second median. There16

are medians here all the way -- there's a green median17

here, and green here, with the turnaround. And that's18

all covered with water.19

Q And --20

A Approximately right there.21

Q And it shows the driveway of 235 Birchwood22

Avenue?23

A Yes, the drive at 235 Birchwood. You can see a24

couple cars up on top here, and they're not going25


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Hrebin - Direct 30

anywhere.1

Q The cars aren't moving?2

A Yes.3

Q Okay.4

A They can't get out.5

MR. WOODWARD: All right. Your Honor, Id6

like to offer D-25f into evidence.7


(Pause)9

MR. WOODWARD: Your Honor, this is D-25g for10

identification.11

BY MR. WOODWARD:12

Q I'm showing you D-25g for identification, Mr.13

Hrebin. Do you recognize that photograph?14

A Yes.15

Q Did you take that photograph?16

A Yes, I did.17

Q Taken on April 15th, 2007.18

A Yes, I did.19

Q About what time?20

A Around 6:00 p.m.21

Q Around 6:00 p.m. And can you tell us what22

this photograph depicts?23

A Once again, it is a little bit wider perspective24

on the driveway at 235 showing the flooding more to the25


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Hrebin - Direct 31

left of the picture. You can still see a little bit of1

the building, and the car up on, on the right.2

Q Could you go down to the, the P-10c and show3

us where you stood when you took that photograph at4

approximately --5

A I moved over a little bit so I could get more of6

the wooded area here, along with the, along with the7

driveway and the medians, and a little bit of the other8

side. The --9

Q So, so, so you're standing opposite the10

driveway or east of the driveway at 235 Birchwood?11

A I'm approximately opposite the driveway --12

Q All right.13

A -- at 235.14

Q And which is the direction that that15

photograph was taken?16

A The direction would be south.17

Q South. And it shows 235 Birchwood?18

A Yes.19

Q Does it show any part of 215 Birchwood?20

A I'm not quite sure where that, the line is --21

Q All right. Thank you.22

MR. WOODWARD: Id like to offer D-25g into23

evidence, Your Honor.24



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Hrebin - Direct 32

MR. WOODWARD: This is going to be D-25m,1

Your Honor.2

BY MR. WOODWARD:3

Q I'm showing you D-25m for identification. Is4

that a photograph that you took?5

A Yes, it is.6


A This one is approximately between 3:00 and 4:00 on8

April 15th, because it was around the, I was on the9

east side of the flood.10

Q East side of the flood, okay. And could you11

tell us what it depicts?12

A This is looking into 235 Birchwood from the wooded13

strip between 215 and 235.14

Q Okay. Could you come down here and point out15

to the Court where you stood where you stood when you16

took that photograph, as best you know, and the17

direction in which it was taken?18

A Okay. It was approximately, the driveway was19

flooded past 235. But if you walked over the grass,20

you could get, you know, it was a sloppy, but you could21

get down into the wooded area here and take a picture22

of 235 from this position.23

Q So you were standing just to the west of the24

westerly driveway at the 215 Birchwood.25


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Hrebin - Direct 33

A I was in the wooded area here.1

Q And does that fairly and accurately represent2

what you saw --3

A Yes.4

Q -- on that occasion? Does it depict that5

property in a flooded condition?6

A Yes, it does.7

Q All right.8

MR. WOODWARD: Your Honor, Id like to offer9

P-25m for identification into evidence.10


MR. WOODWARD: Your Honor, I have D-25n for12

identification. And I'm going to show this again to13

Mr. Hrebin.14

BY MR. WOODWARD:15

Q D-25n, sir, can you identify that photograph?16

A Yes.17

Q And, did you take that photograph?18

A Yes, I did.19

Q And when was it taken?20

A Approximately between 3:00 and 4:00 in the21

afternoon on April the 15th.22

Q And what does it depict?23

A This is, shows the flooding on 235 from a little24

bit closer to the street, to Birchwood Avenue looking25


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Hrebin - Direct 34

into 235.1

Q And could you come down here and show us on2

the on P-10c, exactly where you stood when you took the3

picture.4

A I moved, I moved over closer to Birchwood Avenue.5

I was standing approximately, approximately, in this6

area.7

Q So about on the property line between -- wait8

a minute. So you were somewhat to the west of the9

westerly driveway of 215 --10

A Yes.11

Q -- Birchwood?12

A Yes.13

Q Okay. Fine. Thank you. And is Birchwood --14

is 215, 215 Birchwood Avenue --15

MR. WOODWARD: Withdraw the question.16

BY MR. WOODWARD:17

Q Is 235 Birchwood Avenue in a flooded18

condition?19

A Yes.20

MR. WOODWARD: I dont need these. One21

moment, Your Honor.22

(Pause)23

BY MR. WOODWARD:24

Q Have you ever witnessed Birchwood Avenue in a25


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Kinsey - Cross 35

flooded condition other than on this date?1

A Yes.2

Q And --3

MR. WOODWARD: I have no further questions,4

Your Honor.5

THE COURT: Cross-examine?6

MR. EISDORFER: Thank you, Your Honor.7

(Pause)8

CROSS-EXAMINATION BY MR. EISDORFER:9

Q Mr. Hrebin, what I'm going to ask you to do10

is, is to take those pictures once again, and come down11

from the stand, and I'm going to ask you to point out12

on this map --13

A Okay.14

Q -- where you were standing when you took15

these pictures. And you can start at the beginning16

with, in the order we got them.17

THE COURT: Just for the record, what18

exhibits do you have?19

MR. EISDORFER: Okay. So I, I have P-39a.20

This is a flood hazard area.21

BY MR. EISDORFER:22

Q So, so, so in what order do you have them?23

A I have D first.24

Q Okay. Let's do whatever order youve got.25


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Kinsey - Cross 36

That's the --1

A Okay. This is, I'm looking, I'm standing --2

Q Okay. So you're, you're -- this is3

D-235d(sic)?4

A Yes.5

Q D-25c. Okay. Go ahead.6

A So I am, this is Birchwood Avenue. Okay. So, --7

Q Okay.8

A So I'm standing, at this picture, I'm standing9

approximately, here.10

Q Okay.11

A All right. And I'm looking westbound into12

Birchwood. And down Birchwood Avenue, you can see the13

cars. And, once again, that was between three and four14

o'clock in the --15

Q Okay. So you're standing between the, the16

dotted line and the solid line here looking in the17

direction of the solid line?18

A Yes, yes.19

Q Okay. And the next one?20

A Now, I'm standing approximately the same place.21

But I like I said, I use the telephoto lens on the22

camera, so it looks like it's closer. And you can see23

the two cars stuck in the, the water, and the fire24

truck here trying to help them. And, once again, I'm25


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Kinsey - Cross 37

standing approximately here looking west.1

Q So you're standing between --2

THE COURT: Which one is that, D-25 what?3

THE WITNESS: B.4

BY MR. EISDORFER:5

Q Okay. So you're, so you're standing between6

the dotted line and the solid line and you're looking7

towards the --8

A Yes.9

Q -- solid line. And because of the telephoto10

lens, you're, actually seeing deeper, --11

A Yes.12

Q -- into the area between the two solid lines?13

A Yes.14

Q Okay. Thank you. Let's go -- look at the15

next one.16

A D-25a. This is a picture of, looking into the 23517

Birchwood from the Verizon property, the property up18

here. And I am to, in this area here in this picture,19

to the west of the driveway at 235.20

Q Um-hmm.21

A Okay. so the car is stuck in the, in the, in the22

water here. And the car is facing westbound. And you23

are looking, I am looking into this area here. And you24

can see the area flooding.25


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Kinsey - Cross 38

Q Okay. So you're, so you're, so you're1

standing across Birchwood Avenue, --2

A Yes.3

Q -- and between the two solid lines. And4

you're looking down into the, into the darker blue5

area?6

A No, no. I'm looking this way.7

Q So if you're standing over here, you're8

across the --9

A Yes.10

Q -- darker blue area?11

A Right.12

Q Okay. Thank you. Let's look at the next13

one.14

A Okay. This is D-25f. And I moved over a little15

bit back towards the east and more opposite the16

driveway on 235. And you can see that the area is all17

under water all the back to this, this area here well18

into the second median.19

Q And so you are -- which side of Birchwood20

Avenue are --21

A I'm on the north side of Birchwood.22

Q And you're on the north side of Birchwood23

between the two solid lines?24

A Yes.25


39/124

Kinsey - Cross 39

Q And you're looking across the dark blue area1

into the light blue area?2

A Right.3

Q Okay.4

A You can see the -- Birchwood Avenue, once again,5

is between the two trees under water.6

Q Um-hmm. Take a look at the next one.7

A This is once again from the --8

MR. WOODWARD: What's the --9

THE WITNESS: Excuse me, D-26.10

BY MR. WOODWARD:11

Q No, no, D-25, --12

A D-25 --13

Q -- g.14

A -- g, okay. Now this is a little bit, I moved a15

little bit over towards the east so I can get a little16

bit more of the, the driveway and a piece of the, the17

wooded area here. And this is looking, once again,18

from the Verizon property into the driveway area of19

235. And, once again, you can see how far back is all20

under water.21

Q So once again, if you're standing between, on22

west side of Birchwood Avenue --23

A Right.24

Q -- between the two solid lines, --25


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Kinsey - Cross 40

A I would have to be standing right about here.1

Q Okay. Because you're looking south into the2

dark, the dark blue area across that into the light3

blue area. Go ahead. Move to the next one.4

A D-25m.5

THE COURT: F?6

THE WITNESS: D-25m.7

THE COURT: Oh M.8

MR. EISDORFER:9

A Now in this picture, I skirted the area here that10

was flooded. Once again, it was flooded back past the11

driveway, well past the driveway. So I had to walk12

over the grass and into the wooded area to get this13

picture. And, this one, yeah. This one is, I walked a14

little bit further into the wooded area to get it. And15

you can see 235, the driveway especially from 23516

flooded.17

Q Now, I'm not quite understanding where you18

were standing?19

A Okay. What I did was, this area was flooded back20

here. So I was able to walk around on the, because21

there's a slight rise there. You could walk around22

across, across the driveway. And it's approximately in23

this area. And I am looking into 235 Birchwood.24

Q Okay. So, you're standing between the -- on25


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Kinsey - Cross 41

the, on the 215-235 Birchwood property between the1

hatch line and the solid line, --2

A Yes.3

Q -- and you're looking west, --4

A West.5

Q -- into the darker blue area?6

A Right.7

Q Take a look at the next one.8

A The last one is D-25n. And what I did in this9

picture, I just moved a little bit down further towards10

Birchwood Avenue, and I'm looking west. And you can11

see a little bit of the building in the back and the12

cars over there. This is the area at 235 that is13

flooded.14

Q Okay. So, so you are, you are standing here?15

A Approximately.16

Q Okay, close to the solid, between the hatch17

line and the solid line, --18

A Yes.19

Q -- close to the solid line, and looking --20

A West.21

Q -- west, looking into the darker blue area?22

A Right.23

Q Okay. You can take the stand if you -- oh24

actually one more question. You indicated that25


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Kinsey - Cross 42

Birchwood Avenue was flooded back from, from where you1

were standing?2

A Right.3

Q Can you show us how far back it was flooded?4

A I would say approximately, heres the driveway. I5

would say approximately in this area.6

Q So, --7

A Couldnt say how many feet or anything like that.8

Q Well, I dont need footage, we've got a scale9

here (phonetic).10

A Okay.11

Q The scale is 40 foot, 40 foot three inch.12

How far back would you say that is, about an inch, two13

inch, three inch, four?14

A More.15

Q Four inches?16

A (inaudible).17

Q Okay. So where, where we, where we see the18

point --19

A Here.20

Q About around there?21

A Yes.22

Q Okay. Okay. Okay.23

THE COURT: Mr. Eisdorfer, I wonder if you24

could just have him point, if you could just point to25


43/124

Kinsey - Cross 43

D-25f again, where he was standing.1

THE WITNESS: Okay. I was standing -- this2

is the driveway at 235. I was standing on the Verizon3

property, almost, almost opposite. Again, the two4

trees, that's Birchwood Avenue. I was standing here.5

And if you could look back, once again, the flooding6

goes at least back to the right into the second median.7

BY MR. EISDORFER:8

Q Okay. You, you may retake the stand.9

April 15, 2007, was a fairly heavy rain, about eight to10

nine inches, wasnt it?11

A Yes, it was.12

Q And, and, although it was a very heavy rain,13

Birchwood Avenue wasnt flooded back beyond this point,14

was it?15

A No.16

Q Now, did you post these photographs on the17

web?18

A No, I did not. I gave them to a friend of mine19

who posted them on the Web.20

Q Did you intend that they be posted on the21

Web?22

A I wanted to make sure people saw them. What --23

the circumstance at the time was; I don't know if you24

want me to go into it. But the circumstance at the25


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Kinsey - Cross 44

time was, Woodland (phonetic) Corporation had proposed1

building a 122 unit higher income, restricted age2

condos on the two properties. And we were very upset3

about it because of the flooding. And that's why I4

took the pictures.5

Q Okay.6

MR. EISDORFER: I have no further questions,7

Your Honor.8

THE COURT: Any redirect?9

MR. WOODWARD: No. No. Thank you, Your10

Honor.11

THE COURT: Any questions by the Special12

Master.13

MS. MCKENZIE: Not --14

CROSS-EXAMINATION BY MS. MCKENZIE:15

Q All of these pictures were taken at once.16

All these pictures were taken April --17

A 15th.18

Q -- 2007. They were not from any date around19

it?20

A No, no. They were all April 15, 200721

Q Thank you.22

MS. MCKENZIE: That's, that's all, Your23

Honor.24

THE COURT: Okay. You can step down. Thank25


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Kinsey - Cross 45

you very much for coming in. Okay. So this, would1

this be a good time to break for lunch?2

(Recess)3

THE COURT: Dr. Kinsey can resume, resume the4

stand. Dr. Kinsey, you remain under oath from last5

week.6

D A V I D K I N S E Y, PLAINTIFF'S WITNESS, PREVIOUSLY7

SWORN8

CROSS-EXAMINATION (CONTINUED) BY MR. WOODWARD:9

Q Dr. Kinsey, the last thing we were talking10

about the last time we were here was the distance from11

the end of the parking lot, we're taking a look at the12

P-39a. They're the rear property lines, on Wadsworth13

Terrace. Do you recall that?14

A Yes.15

Q Okay. And I think you gave an estimate of16

that distance of being about 150 feet. Is that17

correct?18

A That sounds like the ballpark.19

Q Okay. Now, what --20

(Pause)21

Let's take a look at what's been marked as22

P-63a. Do you see that?23

A Yes.24

Q And this is an enlargement of the concept25


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Kinsey - Cross 46

dated July 30, 2010. Do you want to -- you may check1

or you could agree with me on that.2

A I can agree with you.3

Q Okay. Fine. What I'm interested in knowing4

is, first of all, what's the setback from Birchwood5

Avenue of Building A. Do you know?6

A I do not know.7

Q How about Building B?8

A I do not know?9

Q Well, could you come up here for a minute.10

Do you see this dotted line just below the, the11

property line on Birchwood Avenue? Do you see that12

dotted line?13

A Yes.14

Q And in that, it says proposed 18 foot15

setback. Would you agree with me that the setback of16

Building B is 18 feet, portions of it from the property17

line?18

A From the property line, not from the street.19

Q I understand that. I'm talking about the20

front property line?21

A Yes. And I'm just trying to understand, because22

earlier you asked the question in terms of distance23

from Birchwood Avenue.24

Q Okay.25


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Kinsey - Cross 47

A So the distance that's shown on this exhibit is1

indeed 18 feet from the property line to the northwest2

corner of Building B.3

Q Okay. And would the same apply also to the4

northeast corner of Building B?5

A To the area near the northeast corner of the6

building B.7

Q All right. Fine. Now, how about Building A?8

You can use this to scale it off, if youd like. It's9

a little measure -- if you would take a look and tell10

me how far Building A is set back.11

(Pause)12

A One corner of Building A appears to be set back13

about 30 feet.14

Q Okay. Now, what I'm interested next in15

examining is the distance from the front of Building B16

all the way to the back. Can you tell us what that17

distance is? Do you know?18

A Not without calculating it, without measuring.19

Q Could you measure it? Do you have a20

measurer, or you want to use this? Here you go.21

That's 12 inches.22

(Pause)23

A It's a bit more than 1400 feet.24

Q 1400 feet?25


48/124

Kinsey - Cross 48

A Yes.1

Q Okay. And -- you're sure about that?2

A Well, if you use a scale, one inch equals 1003

feet.4

Q Okay. Well, is 100 feet from here to here?5

I, I dont want you to get it wrong.6

A Oh. Thank you for -- yes, it's, they're about 7007

feet.8

Q Okay. And, how high is the building going to9

be, do you know?10

A The heights are shown on sections. I don't11

recall --12

Q Okay.13

A -- off the top of my head. To be precise, let me14

go to the sections.15

Q Let's see if we can get that here. Maybe16

youll want to come down and take a look at this. This17

is P-64a. Can you tell us how high Building B is? I18

think Building B is shown on this Section C, also19

Section B? Take moment and examine the plan. I would20

also represent to you that the top drawing is section21

A, which runs through Building A. But, I could be22

wrong.23

A Building B to the mid point of the roof is shown24

at less than 60 feet.25


49/124

Kinsey - Cross 49

Q Okay. So, at the top of the roof, would that1

be around 60 feet, 55 to 60 feet?2

A Yes, this line would be the top of the roof.3

Q All right. Okay. All right. You can sit4

down. So, if we go back here and we take a look at5

P-63a and we take this distance which I think you said6

was 700 feet?7

A About 700 feet.8

Q Okay. From the front to the back of the9

building, and the building is about say 55 feet high,10

what is the area of the wall, both garage and the11

building itself, the area that runs from the front of12

the property to the back? So 700 times --13

A 55.14

Q -- 55 would give us what?15

A It's multiplication.16

Q So it would be like, it's like it's about17

37,000 square feet. Is that about right? Could it be18

more, 38,500?19

A It, it could be. I was just giving it a rough --20

Q Okay. Okay. So, so the wall that extends21

along this property line, this easterly property line22

is going to be 37 to 38,000 square feet from the ground23

all the way up to the 55 foot height, correct?24

A No.25


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Kinsey - Cross 50

Q No?1

A Because there are gaps between the building and2

the parking structure.3

Q Gaps between the building and the parking4

structure?5

A It's my, my understanding of the design, Your6

Honor, is that the parking deck is a free-standing7

structure. And it's separated, I think it's for fire8

separation reasons, by a gap perhaps two feet from the9

building itself.10

THE COURT: That would be the gray area in11

there?12

THE WITNESS: Correct. The gray area of the13

parking deck.14

BY MR. WOODWARD:15

Q All right. Fine, they're -- okay. The16

garage would be a free-standing structure. But it sort17

of fits within a, a nook created by the shape of the,18

of the residential structure, correct?19

A Yes.20

Q All right. But if you're looking at the21

building from this side, the east side, the building22

and the garage would have a basic area of that wall of23

about 38,000 square feet, right?24

A Actually on that concept plan, correct.25


51/124

Kinsey - Cross 51

Q All right. And 38,000 feet, if I'm not1

mistaken, is closing in on one acre, correct?2

A Correct.3

Q An acre is about 44,000 square feet?4

A 42,500.5

Q All right. Now, let's take a look at the6

distance of the rear wall of this building towards7

Wadsworth Avenue. Again, it's going to be 55 feet high8

or so. But, Id like you to come down and scale this9

off, if you could, what the dimension of that is.10

(Pause)11

A This distance, Your Honor, is about 169 feet.12

It's the southern faade of Building B.13

Q So if we were to determine the area of that14

rear wall, we would multiply 55, the height of the15

building times 100 and -- what did you say, 159 feet,16

160 feet?17

A I'm not sure without looking at the section18

design.19

Q Okay. I think youll find the problem with20

the section design, is that the section doesnt go21

through the end wall of the building, correct?22

A That's correct, Your Honor. On Building B, there23

is no section to the end wall, so I don't know what the24

height of the end wall would be.25


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Kinsey - Cross 52

Q So, is there any indication in any plan here1

that this wall or the roof of this structure is going2

to get less than 55 feet?3

A There's no indication one way or the other of what4

the, that height is.5

Q Okay. But as it goes through section C, it's6

55 feet, correct?7

A Yes, approximately.8

Q And do you have any reason to believe that,9

that the plan that calls for 419 units is going to10

actually step down at the back?11

A Yes, Your Honor. I look at section A through12

section -- Building A, and I notice that the end13

portion of section A or Building A is less than the,14

the roof height.15

Q All right. But when you look at the end16

point of building A, you see that it's less than the17

maximum of the roof. I think we would, you would agree18

that -- well, tell me what's, what's the height of19

Building A?20

A Well, the mid point of the roof is 60 feet, as21

shown on this plan.22

Q So, add another four or five feet for the,23

from the mid point to the very top of the roof,24

correct?25


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Kinsey - Cross 53

A Yes.1

Q And subtract four or five feet to the very2

front edge, correct?3

A Subtract --4

Q To get, to get a front faade height?5

A Yes.6

Q All right. And if you did the same thing7

here on the back, but you can't tell. So it would be,8

on the back of Building B, the back of it would be --9

well, you think the mid point of the roof on section C10

is, is what?11

A The mid point of the roof on section C is shown12

here as 48.13

Q Okay. And so you add another few feet to get14

to the top of the roof, correct?15

A Yes.16

Q All right. But if you were to subtract,17

because this, as you say might, might slope off to the18

edge, you're talking three or four feet to subtract off19

of that, correct?20

A It depends on what the design is. I don't know21

the design.22

Q Well, this design as it is right now; like23

what does it appear to you?24

A That is not shown on this plan what that section25


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Kinsey - Cross 54

would be.1

Q So it could extend all the way out and be 552

feet in height, or it could be tapered down and take3

off another four or five feet, in which case, it would4

be 48 to 50 feet in height, correct?5

A If it did not taper off?6

Q If it did not taper off, it would be 55 feet,7

correct?8

A Around 55 feet, yes.9

Q And if it did taper off, it would be probably10

seven or eight feet less than that, correct?11

A That is correct.12

Q All right. So, 47, 48 feet. Okay. Fine.13

You may sit down now. So, the, the area of that wall14

would be say, 47, 48 feet by 169 feet, correct?15

A In, in that order, --16

Q Okay.17

A -- magnitude.18

Q Would it be fair to say that the area of that19

wall is about 7500 square feet? You can calculate it20

yourself if youd like.21

A I'm sorry. What were the numbers you used, 48 by?22

Q 48 by 169.23

A Ill accept your multiplication.24

Q So, 75, 7600 square feet, correct?25


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Kinsey - Cross 55

A I didn't bother to, to check it.1

Q All right. Fine. Now, let's take a look at2

the front of the building. Can you tell me what the3

distance is between this point of Building B, which is4

the far westerly point, and this point of Building B,5

that also extends to the 18 foot proposed setback.6

Would you come measure that?7

(Pause)8

A This distance is 200 and, about 247 feet, Your9

Honor, from this point, westerly point to this other10

point to the northeast.11

Q And, when you take a look at this building12

from the street, you have a -- now there are, there13

are, what shall I call them; bins in the building.14

But, looking at it from the street, straight away,15

you're seeing something that is 200 and, I think you16

said 247 feet, and about 48 feet high, as they used say17

in the slope, correct?18

A No.19

Q No? Why not?20

A It is not seeing a building that is 247 feet long.21

That's the distance on the ground, basically these two22

points. The actual wall surface is different. There23

are five facades here.24

Q But they're all the same height, correct?25


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Kinsey - Cross 56

A There are four facades. I assume they're all the1

same height. Again, having seen that, I don't have2

here before me that section, that design.3

Q Okay. Thank you. You can sit down. Now,4

the footprint of this building, Building B is 84,4005

square feet. Is that correct?6

A Yes, as shown on the plans.7

Q Okay. And that's about two acres, correct?8

A I'm sorry, what was the number again?9

Q 84,000 --10

A Yes.11

Q -- 400 square feet. And that's about --12

A About two acres.13

Q -- to acres, right? And, Building A, there14

is a footprint of about 22,000 square feet. And that's15

about a half acre, correct?16

A Correct.17

Q All right. And, the footprint of the garage18

is 35,400 square feet, correct?19

A Correct.20

Q All right. So the combination of Building B21

and the garage yields about 119,000, 120,000 square22

feet, correct?23

A Yes.24

Q Close to three acres, correct?25


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Kinsey - Cross 57

A Yes.1

Q All right. Now, and by the way, the garage2

is going to be at least five levels or maybe six3

levels, correct?4

A The garage is shown with four levels and five5

levels.6

Q Okay. So the length of --7

A Half four, half five.8

Q Okay. And you know what the height of that9

building, that part of the structure is?10

A Not off the top of my head.11

Q Okay. Can you come down here and tell us12

what the height is to the top of the garage, measure13

it?14

A I don't believe the garage has a top. It's open15

air.16

Q Well, the highest point of the garage, put it17

that way.18

(Pause)19

A About 32, or 33 feet to this 5th level of the20

garage.21

Q All right. Thank you. Now, with respect to22

this plan, you mentioned in your testi, your prior23

testimony, that there is a buffer, a vegetative buffer24

between Building B and the adjoining property to the25


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Kinsey - Cross 58

east. Do you recall that?1

A Yes.2

Q I'm showing you what's been marked as3

P-39a --4

MR. EISDORFER: There's a separate, there's a5

separate copy of that.6

(Pause - side discussion)7

MR. WOODWARD: Your Honor, just for the8

record, the map on the board, which is a Wetland Survey9

Plan dated July 29, 2009 prepared by Control Point10

Associates is a copy of a document already in evidence,11

P-10b, even though this one hasnt been marked. But I12

do want to refer the witness to this.13

THE COURT: Wetland Survey Plan?14

MR. WOODWARD: Yeah. P-10b.15

BY MR. WOODWARD:16

Q Now, with respect to P-10b, which is this17

Wetland Survey Plan, this does show vegetation on it.18

And I think you said it was a vegetative buffer between19

Building B, what's going to be Building or the existing20

parking lot and masonry building at 215 Birchwood21

Avenue, and the property to the east, which, I think22

you would agree is a nursing home or assisted living23

facility, correct?24

A Yes, extended care facility.25


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Kinsey - Cross 59

Q Right. Now, that vegetative buffer is how1

thick on the property of CDA? When I say, thick, I2

mean, what's the depth of it, do you know?3

A Not without measuring.4

Q All right. Youve looked at this plan5

before, have you not?6

A I have looked at that plan.7

Q The vegetative buffer, let's talk about the8

quality of it. It's deciduous correct?9

A Yes, as I recall.10

Q Which means that it loses its leaves in11

October, November in the fall?12

A Yes.13

Q And doesnt have more vegetation back until14

the spring in April or thereabouts, correct?15

A Yes, but I have not done a tree by tree survey to16

make sure that it's all deciduous.17

Q All right. But youve been out there and you18

said this was a buffer, and you saw, and you assumed19

that, but it's, it's mostly deciduous, correct?20

A I recall it being mostly --21

Q And deciduous trees lose their leaves in the22

wintertime, correct?23

A Yes.24

Q All right. So you can see through the trees.25


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Kinsey - Cross 60

The leaves dont perform any function during that1

period of time, correct?2

A The leaves aren't there at that time.3

Q That's correct. Okay. Now, the -- how --4

the, the, the assisted living facility has -- it's, I5

think you reported on it, is how high? What's the6

height of those buildings?7

A Your Honor, it's two different heights. The8

portion closest to Birchwood Avenue is essentially a9

one-story structure. And then to the rear, there's a10

later two-story addition.11

Q And the height of that two-story addition is12

about 25 feet, correct?13

A I haven't measured it.14

Q The height of the one-story building is 1515

feet?16

A Again, I haven't measured it.17

Q Well, you see buildings all the time. It's18

one story. It's certainly --19

MR. WOODWARD: Strike that.20

BY MR. WOODWARD:21

Q Compared to the height of the proposed22

building, it's less than half the height of the23

proposed building, correct?24

A Yes.25


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Kinsey - Cross 61

Q Now, let's talk about the buffer between the1

Wadsworth Terrace homes and the back of the back of the2

building, Building B site. And, again, I'm looking at3

P-10b. You see that? There's a vegetative buffer back4

there?5

A There's a vegetative area to the southeast corner6

of the site.7

Q And, and again, those are deciduous trees,8

correct?9

A Yes.10

Q And it's open woodlands below there or no?11

A It's fairly open.12

Q So then these trees lose their leaves. And I13

think when we --14

MR. WOODWARD: Withdraw the question.15

BY MR. WOODWARD:16

Q They lose their leaves, correct?17

A In the fall, they lose their leaves.18

Q Right. Okay. So, when someone is looking19

out their backyard on Wadsworth Terrace, and this20

building that's proposed, if constructed, they will see21

in the winter time a structure without any shielding22

other than the trees themselves, but not, not leaves,23

correct?24

A No, not necessarily.25


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Kinsey - Cross 62

Q So you think they can't see through that1

wooded area?2

A Well, additional coniferous trees could be planted3

within this buffer area.4

Q But there aren't any there now, are there?5

A That's correct.6

Q And, this is heavily wooded in the sense7

that, that there is a solid tree canopy in this entire8

area behind the parking lot, correct?9

A Yes, south of the ditch, there is a tall, mature10

canopy of trees.11

Q In order to put conifers in there, youd have12

to remove existing trees, right?13

A I'm not sure whether removal is required or14

whether there's room in the vicinity of what we're15

calling the open ditch, on the north side of the ditch,16

for example.17

Q Now the houses on Wadsworth, I think you18

testified before, are about 30 feet high?19

A Yes, I referred to my certification. And I20

described them as split-level structures; so a maximum21

of 35 feet high.22

Q And, in fact, when I asked you the other day,23

you said they were 30 feet, correct?24

A I don't recall.25


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Kinsey - Cross 63

Q Now, I think --1

MR. WOODWARD: First of all, Your Honor,2

could I have this marked for identification? D-165.3

(Pause)4

BY MR. WOODWARD:5

Q I'm showing you what's been marked as D-1656

for identification, Mr. Kinsey. Are these notes that7

you made when you visited the site on, at some point in8

time?9

A Yes.10

Q This your handwriting on a Google map?11

A Yes.12

Q All right. And the handwritten notations on13

there represent what you saw, both on site and in the14

neighborhood?15

A Yes, and that I decided to note down.16

Q What you decided to write down, correct.17

Okay. Now, in the vicinity of this property, in the18

center where I think it says A, do you see that?19

A Yes. It's the north, northern edge of the site?20

Q Okay. It says Birchwood Ave. All right.21

The purpose of this was, was for what?22

A This, Your Honor, is a sheet of field notes when I23

first inspected the site and the surrounding24

neighborhood.25


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Kinsey - Cross 64

Q Now, when you inspected the site, you were1

looking for things in the surrounding neighborhood, and2

did you find any, any shopping in that neighborhood?3

A No, I did not.4

Q Did you find any municipal facilities?5

A Yes.6

Q And you found what?7

A The swimming pool8

Q And a conservation center.9

A And the conservation center across the street.10

Q Any other municipal facilities?11

A Public schools, but I dont see them as municipal.12

Q All right. You found in, in the immediate13

area, no transportation, correct; mass transit?14

A No mass transit.15

Q No retail shopping?16

A That's correct.17

Q No restaurants?18

A Correct.19

(Pause)20

Q Now, are there any other, in the vicinity of21

this project, proposed buildings -- first of all, on22

Birchwood Avenue; are there any buildings on Birchwood23

Avenue that are setback 18 feet, or proposed to be24

set -- excuse me; set back 18 feet from the front25


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Kinsey - Cross 65

property line?1

A No.2

Q Well, are there any buildings that are 50 to3

65 feet high on Birchwood Avenue?4

A If I can clarify that last answer. I'm not sure5

of the existing setback of the two existing buildings6

without looking at the map.7

Q Please do. Do you want to look at the map?8

A It's in one of the exhibits. I just dont recall9

the question.10

Q The existing buildings on, on 215 and 235?11

A Yes.12

Q Please take a look.13

(Pause)14

A Thank you.15

Q And the building at 215, how far is that from16

the front property line?17

A 215 is the one to the east?18

Q Yes.19

A It's -- at its corner, Your Honor, I was just20

measuring it. It's shown as 50 feet.21

Q Fifty feet. Okay. And, are there any22

buildings on Birchwood Avenue that are as large, in23

terms of their maps, as Building B proposed by CDA;24

Building B being P-53a. Are there any buildings that25


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Kinsey - Cross 66

have the same or similar volume on Birchwood Avenue as1

Building B?2

A The extended care facility has a large volume,3

because there are lots of walls. I believe it's less4

than the proposed volume of Building B.5

Q And the Verizon building is not as large is6

it?7

A No, it is not as large.8

Q Now, when you were retained to work on this9

project, were you retained to help design it?10

A No.11

Q In fact, when you were first retained, the12

project had already been designed correct? A concept13

plan had already been prepared?14

A Oh, yes, a concept plan had been prepared.15

Q All right. And did you have any input into16

the revisions to the Concept plan that occurred in17

March of 2010?18

A I may have had some conversations --19

Q With whom?20

A -- with my client and General Counsel,21

particularly as we were talking about the parking22

issue.23

Q But, did you have any -- did you have any24

input into this July 30 plan that we designed, input25


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Kinsey - Cross 67

into that particular plan?1

A Yes, I had input into a July 30 exhibit.2

Q The concept plan. Okay. What was your3

input?4

A My input was to review a draft of this document,5

Your Honor, and suggest changes in the data that was6

depicted showing various freshwater wetlands lines,7

other lines and various labels, some of which I thought8

to be confusing or inaccurate.9

Q Now, going back to the March 31 plan, did you10

have -- what input did you have into that?11

A Very little other than some discussion on the12

parking issue.13

(Pause)14

Q Now, who first contacted you about working15

on, being retained by Cranford Development Associates?16

A Mr. Eisdorfer.17

Q And he asked you to do what in connection18

with this matter?19

A To, to become involved and to be retained, to20

analyze the compliance of the Township of Cranford with21

its Mount Laurel obligations, and to review the22

suitability of the site and project as proposed by the23

client.24

Q Mr. Eisdorfer also told you that he intended25


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Kinsey - Cross 68

to sue Cranford, didn't he?1

A I don't believe -- I don't recall when I, right2

now when I first had my conversation with Mr.3

Eisdorfer.4

Q Well, would it refresh your recollection if I5

told you that the first conversation you had with him6

was on October 7, 2008?7

A It could be.8

Q And that your retainer letter is dated9

October 10, 2008?10

A Okay.11

MR. WOODWARD: Your Honor, if I could have12

this marked for identification, D-166.13

THE COURT: Which is what, the retainer14

letter?15

MR. WOODWARD: Retainer letter, yes.16

THE COURT: D?17

MR. WOODWARD: 166.18

(Pause)19

BY MR. WOODWARD:20

Q I show you what's been marked as D-166 for21

identification. Is that a copy of your retainer letter22

of October 10, 2008?23

A This is an unsigned copy.24

Q Well, on page four you signed it, correct?25


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Kinsey - Cross 69

A Yes, but this particular copy is not accepted.1

The last page is accepted.2

Q All right. Okay. But does that refresh your3

recollection as to when you sent the retainer letter?4

A Yes.5

Q All right.6

MR. WOODWARD: Mark this a D-167, please.7

(Pause)8

BY MR. WOODWARD:9

Q I'm showing you what's been marked as D-16710

for identification. These are -- and by the way, these11

came out of your files, correct?12

A Yes. It should be 167. Yes, this is a copy of an13

email from me to Mr. Eisdorfer.14

Q Now take a look at the second page. It's15

from Steve Eisdorfer to you, correct?16

A Yes.17

Q Look at the last sentence. My current18

expectation is that we will file our complaint no later19

than November 11, 2008, maybe sooner. I would like to20

be able to file a motion for summary judgment as soon21

thereafter as the Court Rules permit, about five weeks.22

So I would like you to get started on this as soon as23

you can. Call me so that we can discuss strategy24

first. That was communication to you from Mr.25


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Kinsey - Cross 70

Eisdorfer, correct?1

A Yes.2

Q And that occurred during the time that the3

CDA Group was having discussions or was appearing4

before the Township Committee of Cranford, correct?5

MR. EISDORFER: Your Honor, I'm going to6

object to this line of questioning. This is an effort7

to re-litigate the issue that's no longer relevant, the8

issue that the Court has already has addressed, my9

motion for summary judgment. I object to all of this10

on the grounds of relevance.11

THE COURT: Mr. Woodward, your proffer on12

this?13

MR. WOODWARD: My proffer on this is, I want14

to know what this witness' duties and obligations were,15

what his understanding of his role was in this case.16

And all of this correspondence is relevant to that.17

Whether it has something to do with the other parts of18

the case, or something that's already been decided is a19

different issue. It's still relevant for purposes of20

cross-examination of this witness and his motivations.21

THE COURT: Okay, I mean, insofar as it goes22

to his credibility, with the opinion that hes23

rendering, I think it's relevant to, to a limited24

extent. So, Ill allow it, but --25


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Kinsey - Cross 71

MR. WOODWARD: Thank you, Your Honor.1

THE COURT: -- so I get a picture.2

BY MR. WOODWARD:3

Q Can you answer the question? Did I read that4

correctly, first of all?5

A Yes, you read it correctly.6

Q And, that this correspondence occurred while7

CDA was still dealing with, or appearing before the8

governing body of Cranford, correct?9

A I believe so. I was not involved in those10

discussions.11

Q Thank you very much. Now, the complaint in12

this case, do you know when the complaint in this case13

was filed?14

A I believe in November or December 2008.15

Q And, you were aware at the time that you were16

retained, or you learned during the course of that17

retention that Lehigh Acquisition had filed a case in18

January of 2008, correct?19

A I had learned that Lehigh Acquisition had filed a20

case. I don't recall when I may have learned about the21

complaint date.22

Q So is it fair to say that the Lehigh case23

that was filed in January of 08 was filed before the24

case was filed by CDA?25


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Kinsey - Cross 72

A Yes.1

Q And then the Lehigh case was a builder's2

remedy case, correct?3

A That's my understanding.4

Q Lehigh sought a builder's remedy?5

A That's my understanding.6

Q So approvals for affordable housing projects7

that may have been granted after January 14, 2008 are8

attributable to Lehigh and not to CDA. Isn't that9

correct?10

A I don't understand what you mean by the question.11

Q Well, if an affordable housing approval, if12

approval for an affordable housing unit is obtained by13

a developer after the Lehigh case was filed on14

January 14 of 08, then those, that approval would be15

attributable to the case filed by Lehigh, and not by16

CDA, correct?17

MR. EISDORFER: Your Honor, I object to the18

form of the question. It's (inaudible). I don't know19

what attributable means. I don't know how the witness20

can answer that question.21

MR. WOODWARD: This witness can answer the22

question if he can.23

THE COURT: Isn't, doesnt this call for a24

legal answer, a legal response?25


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Kinsey - Cross 73

MR. WOODWARD: On one level, Your Honor, it1

probably is. But on another level, it's, you know, we2

have people who deal here on a regular basis on3

affordable housing, what's --4

THE COURT: Ill allow him to answer it if he5

can.6

MR. WOODWARD: All right.7

THE COURT: But I think

Transcript 8.9.10 Dipple and Report. Resident Hrebin

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Transcript of Transcript 8.9.10 Dipple and Report. Resident Hrebin