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SUPERIOR COURT OF NEW JERSEY LAW DIVISION, CIVIL PART UNION COUNTY DOCKET NO.

UNN-L-140-08 LEHIGH, Plaintiff,) vs. TOWNSHIP OF CRANFORD, Defendant.) Place: Courthouse 2 Broad Street Elizabeth, New Jersey 07207 August 12, 2010 ) ) ) ) ) ) ) ) ) TRANSCRIPT OF TRIAL

Date: BEFORE:

THE HONORABLE LISA F. CHRYSTAL, J.S.C. TRANSCRIPT ORDERED BY: CARL R. WOODWARD, III, ESQ. (Carella Byrne) APPEARANCES STEPHEN EISDORFER, ESQ. (Hill Wallack LLP) Attorney for the Plaintiff CARL WOODWARD, III, ESQ. (Carella Byrne) Attorney for the Defendant BRIAN FENLON, ESQ. Attorney for the Defendant

AMY TOLENO Automated Transcription Services P.O. Box 2230 Laurel Springs, New Jersey (856) 784-4276

I N D E X WITNESSES Richard Marsden, Jr. By: Mr. Fenlon By: Mr. Eisdorfer By: Ms. McKenzie Direct Cross Redirect Recross 4 109 137 157 156

EXHIBITS Ident. Evidence D-169 Ordinance 15 37 D-170 Map 17 34 D-136 September Continuation 38 D-136A Marsden CV 38 D-55 Memo 46 D-153B, C, G Photos 50 D-98 51 92 D-105 93 D-157 93 D-121A, C, D, I, J, M, P Photos 102 D-171 Photo 102 106 D-172 Photo 102106 D-173 Photo 102 106 D-121E,G Photos 107 109

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Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 voice up. THE WITNESS: Thank you. binders. Honor. THE COURT: Okay. Okay. Mr. Marsden, you can step up. This ones -- this ones -- scattered throughout the MR. FENLON: The townships next witness is

Richard Marsden, the township engineer. THE COURT: Okay. I know -- thank you. I

know you gave me a list of the exhibits that youre going to use, but those exhibits are not together anywhere. Theyre scattered -MR. FENLON: Theyre in the binders, Your

MR. EISDORFER: mine, I think. MR. FENLON:

Thats yours? This tall one. Yes, I gave that --

MR. EISDORFER: MR. WOODWARD: R I C H A R D SWORN COURT OFFICER:

M A R S D E N, JR., DEFENSE WITNESS,

State your full name for the

record, sir, and spell your last name. THE WITNESS: M-A-R-S-D-E-N. COURT OFFICER: Please have a seat, keep your Richard Arnold Marsden, Jr.,

Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A DIRECT EXAMINATION BY MR. FENLON: Q Good morning, Mr. Marsden.

Could you

tell the Court what your present job title is? A I work for the Township of Cranford, I am the

director of engineering and public works. Q And in that capacity do you serve as

municipal engineer? A I am their municipal engineer and I review

planning board, zoning board applications. Q And how long have you held that position?

For over six years now. Q Okay. And could you briefly describe your

educational background, college and graduate degrees? A I have a bachelor of science degree and civil Back then it was NCE or college

engineering at NJIT. engineering.

I have taken master programs pertaining Ive taken special

to my interests in hydraulics.

classes and programs in reference to storm water management and hydraulics. Q That was my interest.

And you indicated you took a masters course

and did you receive a masters degree in that field? A No, no. Business got good and we went on to

business and we didnt need it at that time. Q Okay. Very good. And could you briefly

describe your employment history from when you secured

Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your degree from NJIT? A Well, prior to that in I guess 1966, I was party

employed for a civil engineering firm called Gloucester and Goriello Associates (phonetic). manager, field survey chief. I was project

I was did site plans, Back then we did

subdivisions, and storm water issues.

storm modeling, for instance computer punch cards. I moved on to Giatech Associates (phonetic), where I was in charge of engineering, site plans, subdivision, road improvement works, including storm sewer designs for other municipalities. Then I moved Again,

back to Gloucester and Goriello for awhile.

still doing survey chief work, supervising, project management on site plans, subdivisions. I then went to K. Hubnany and Companies (phonetic) who started an engineering division called Negarry and Associates (phonetic) where we had six people. I spent about almost 12 years there. We grew

to about 48 people and did -- about 90 percent of our work was for K. Hubnany and Companies. We did site

plans, we did major development from multi-family housing, commercial, site evaluations. In those packages that we would design, we would do not only roads and drainage, but 99 percent of the time their environmental features. Streams,

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A rivers, we have to analyze those in order to get our site plans, you know, in working order and approved by DEP. Q So let me just interject for a minute. So

during your work for Negarry and Associates and Hubnany, as part of your duties you had to prepare applications and secure various permits from the Department of Environmental Protection? A That is correct. Q And what type of permits were those?

They were stream encroachment, flood hazard We would do investigations for, you know,

permits.

wetlands because we had a wetlands division, other environmental issues. I remember, you know, bog turtle

issues, blue salamander issues, things like that. Q Those issues that you just referred to, would

those be with regard to threatened or endangered species? A Yes. Q And what were some of the larger projects you

worked on for Negarry or K. Hubnany? A Oh, lets see. In the beginning, we had -- my I dont

term there, we had projects in East Brunswick.

know whether it was Society Hill One, Two, Three, or what. That was back in the early 80s.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I did projects for Lincoln Park, Society Hill, Lincoln Park, One and Two. We had projects in

Mahwah, a 1300 unit development with a brook running through that also. Society Hill at Bernards which had Oh boy. We had projects

the dead river running through it.

I probably start in Wayne. in Wayne, off of Route 23 or 17.

We had site Working

evaluations where we did projects in Rockaway.

my way down, we had industrial projects in Princeton for Route 1. Q In connection -We

Ive had quite a -- I had a few out of state. I was licensed in

had Waterbury, Connecticut. Connecticut.

And New York State we had, just over the

river, Peakskill project. Q In those projects were you required to design

and lay out sanitary sewer systems for these residential developments? A Yes. Q And were you required to design and lay out

storm water management systems on those sites? A Yes. Q But after your service with Negarry and

Associates, would you describe, briefly, your -- your career since then?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A After Negarry and Associates, I moved on to a

full-time position as municipal engineer in Fanwood, New Jersey, but at the same time, because it wasnt really enough income to work, and I started my own company. I used the -- I did about one major project a

year, a large development project, and a series of smaller projects, improving road -- including road improvement projects and any special projects that other people couldnt take on, I took on and solved. Q And have you served as municipal engineer for

any other town besides Cranford? A The Township -- the Borough of Fanwood for close

to 12 years, I believe. Q And since 2004 youve served as a township

engineer for Cranford? A That is correct. Q Do you hold any professional licenses?

Im a professional engineer, professional land I have a professional planners license,

surveyor.

although I didnt renew it when I came into Cranford. And Im a certified municipal engineer. theyre the major ones. Q And during your career as an engineer have I guess

you ever been called upon to testify as an expert before any municipal planning boards or boards of

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. adjustment? A Once, representing Giatech Associates. MR. FENLON:

Your Honor, I would ask that the

Court qualify Mr. Marsden as a expert in professional engineering. THE COURT: Any questions? Not at this point, Your

MR. EISDORFER:

Ill save it for my cross. THE COURT: Okay. All right. So he will be

so qualified as an expert in, what did you say? MR. FENLON: THE COURT: Okay. Professional engineering. Professional engineering.

So youre offering him as an expert

not as a fact witness in this case. MR. FENLON: THE COURT: MR. FENLON: BY MR. FENLON: Q Now, Mr. Marsden, could you briefly describe Well, actually both, Your Honor. Okay. Thank you.

your responsibilities as the township engineer for Cranford? A As township engineer Im responsible for

infrastructure, for roads, sidewalks, curbs, storm water, sanitary, sewer issues. Because Cranford is a

community that floods often, a large part of my

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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activities are monitoring the river and the storm sewer elements that are there. I am involved because of

being the township engineer, I have to keep the maps updated, tax maps, all the other records we have, review planning, zoning, construction permits. Theyve

tacked on -- they meaning the township, has tacked on buildings and grounds where we have maintenance tied into that in the engineering department. I go to council meetings on the request. usually go once a month to a workshop. mean -Q Thats fine. Now you mentioned you have your Could you tell me what the name I

I cant -- I

own engineering firm. of that company was? A

It was called JEM Engineering, J-E-M, capital J,

capital E, capital M. Q And what was the largest project you --

engineering project you handled at JEM? A The last one was the Rigid Back Brook. It was a

golf course of about 300 acres.

It had Back Brook Eighteen hole

running through it, plus a tributary. golf course. Q

And what type of engineering work did you

have to do in connection with the Rigid Back Brook golf course?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Well, we did what we had called the side

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engineering, and Im trying to remember who the golf course architect was. started with Fabio. He was in North Carolina. It

But we did the layout, the terrain

for the various homes, we did the storm water management. permits. We had to get the stream encroachment

We had to find the flood plain. We developed two lakes that we used for

irrigation.

Ones about a seven acre lake.

We had

about nine detention basins of various types, swales, everything we needed to make the golf course pass the DOT -- DEP standards. Q And during your initial years of design work

and with K. Hubnany, did you design any storm water management systems say in the 1970s or 80s? A In the 80s I went with Hubnany, since 83 I And the answer is yes. I mean, most of our

believe.

projects require storm water management of some size because they were large development projects that we had to mitigate, you know, the development, the impervious cover to try to keep the site in precondition as the storm water is released from the site. Q What type of systems were customarily

utilized in the 1970s and early 80s.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gentleman. A Well, in the 70s, I mean, when I worked for

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Giatech or Luster and Goriello, we were allowed then to what we called 20 percent -- encroach in a stream 20 percent. But we still had to, you know, mitigate the

fill in some areas by creating detention basins. Actually, yesterday I was talking to a We had -- I had a project on Route 22, And he used to do Steak and Ale. So he

Steak and Ale.

was telling me, Well my Steak and Ale is a detention basin and then a recharge -- not a recharge system but a piping system underground with stone wrapped around it. And he says, Well, I did one of those up in North

Jersey somewhere. And we were saying that, you know, back then things needed parking lot storage, meaning there was - the one I can think of only is in Fanwood before I became an engineer there, was a funeral home on South Avenue where we did parking lot storage. Strictly two -

basins on either end with a big pipe between them, stone in it, and an overflow. The parking lot would fill up partially as part of the storage. storage. The pipe itself would act as

And that would be what we would mitigate.

Our mitigation measure were when the water came down, now we have a parking lot there instead of an open

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 area. That water is stored on the site and released

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slowly.

And thats the method, simple method, as best

management practices they even use today. Q And you indicated that part of your work as Is

Cranford engineer as related to issues of flooding. that correct? A Yes. Q And what type of activities have you

undertaken as township engineer with respect to the flooding conditions in Cranford? A Well, one of the things that I pushed hard for, we

rewrote out storm water ordinance and we modeled it on the New Jersey Department of Environmental Protection best management practice, model ordinance. However, I

incorporated into it restrictions for residential development impervious cover. Because what you find in

old communities is that the piping systems were done in the 50s or the 60s and eventually people started doubling the width of their driveways, adding patios. And the question comes to an engineer that works in municipal governance says how come the streets are flooding, how come its gotten worse. My experience in Fanwood I have found, for an example, in 72 I designed a 42-inch piping -- 42-inch pipe. It was called the 25-year design. I had, when I

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was engineer in the 80s there, we had a project, it was just down the stream, and I had the consulting firm evaluate what capacity that pipe was. That pipe went

from a 25-year storm capacity to a four-year storm capacity. And that enlightened me to say, well this little bit of development or these little lots alone, which are not part of the requirements of the state or anything else, do impact your community in storm water management. So, in Cranford I put a restriction on this ordinance saying you can -- any -- 450 square feet or better, you have to mitigate the storm water due to the impervious cover. The other projects I did where we had consultants that were part of that before I got there, but we implemented and moved ahead a pumping station project -- five million. We had what I call a phase

one express storm sewer project which took storm water that was upstream of our community and expressed it to the river so it wouldnt flood along our river, our homes that are along the river earlier, at an earlier time frame of a storm event. Other than that, were always drawing plans up, were trying to mitigate where we can. We have

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 marked.

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five phases in this what we call the northeast quadrant storm order management program. We have the Army Corps We had It

working with us and doing a study for dikes.

existing dikes there that just breached in 2007.

just breached this year, in March, and did breach in 2007. MR. FENLON: Id like to have an exhibit

Your Honor, could I have this exhibit marked D-169 for identification. THE COURT: MR. FENLON: Okay. So this is a new exhibit. This

A new exhibit, Your Honor.

is the ordinance that the witness referred to. (Pause) BY MR. FENLON: Q Now, Mr. Marsden, let me show you an exhibit

that was marked for identification, D-169, and take a look at that and see if you can identify that document. A Okay. This is the storm water management Yes.

ordinance that we adopted in 2008, I believe. THE COURT: When was it adopted?

THE WITNESS: November 25th, 2008. BY MR. FENLON: Q

The township meeting held

And this is the ordinance that you say you

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A prepared as township engineer. A Thats correct. Q And based it off a --

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A New Jersey -Q Yeah. -- draft -New Jersey Department of Environmental

Protection model ordinance. Q Now as township engineer have you been

involved in responding to street flooding issues within the township during your tenure? A Yes. We have -- actually Cranford, due to their

experiences, their flooding, have created a very good protocol system. We have gage stations we monitor. I

developed a map that shows areas based upon police, the public works, and the engineering records that show areas in the town that flood in intersections so we can put up barricades or be aware of them. When a gage station hits a certain number, we send out the notices for our emergency management operation team to get in place, which Im part of. barricades are set in positions in lieu of the flooding. Cranford. MR. FENLON: Your Honor, Id like to have Its quite a bit of storm water we do in The

this exhibit marked as D-170 for identification.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A (Pause) BY MR. FENLON: Q Now, Mr. Marsden, Im going to show you a

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document which we marked exhibit D-170 for identification and ask you if you can identify this exhibit for the Court? A This is an exhibit I prepared to present to the

township council when I was requested to look at this site back in 2008, and I prepared a memo to go along with it. Q And Im going to take you through each of the

drawings, but with reference theres a map in the bottom left corner which was marked as exhibit 3A of your deposition. A moment ago you made reference to a Could you

map that you prepared regarding streets.

come up here and describe this exhibit for us and how you prepared it? THE COURT: little bit? THE WITNESS: This, 3A? BY MR. FENLON: Q Yeah, this one here. Oh, I can project. And can you keep your voice up a

Exhibit 3A is a map that my engineering department It

prepared and completed on September 2nd, 2008.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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shows in red the locations of flooding that occurred in our entire community of Cranford and areas that are circled show where we usually have to put barricades up. When I mentioned about the part of my responsibility with this flooding is to keep an eye on it, oversee some of the operations being done involving public works. departments. When we do get a call or when we decide that the storm is getting to a point were going to have to get ready for this, those are usually areas we hit first with the barricades and preparation. When the Public works involves the police

storm gets to that point, then the police go out there, the public works go out there and they place the barricades. So its very difficult say from here, but those circled areas are areas where barricades have been placed. The red areas are water -- where water

and flooding occur, where we have to be cautious that they can, and at sometimes may be barricaded. You can

see the site is -- Birchwood is up -- Birchwood Avenue is up here. That circle is there because it does flood

and it gets two, three foot of water in there. If you go down you can see the next street is

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 concerns. Wadsworth. Wadsworth. Right? Wadsworth. Ive been

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six years and I still cant remember.

Wadsworth.

And The

then we have Casino Road which the brook meanders. one side is piped out, the other side -- fronts and backyards. That street is a river.

And Ive seen it

in my six years three, four times, run like a river when the Casino Brook gets inundated. concern of ours. We have other tributary brooks that are big Orchard Brook. We have a detention basin This flooding here is And its a big

that dealt with another brook.

due to the Rahway River directly because the Rahway River floods takes in an area that goes all the way out to here, all the way out to the east to the Noma Haven Park and then comes out in here to the high school and the grammar school and comes back in. The north side is where our major flooding does occur. The south side is not as much. We have

over 280 homes.

Or the 100 year flood plain on the

north side, and some of them get basements full of water. So this is why this community, and I think one of the reasons I was hired is because my ability to understand storm water management. Q And what sort of data did you have in order

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to create this exhibit and mark the streets that were ordinarily blockaded and -A The police had a list.

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I talked with the officers

involved in it.

I think they -- they just know which

streets to go to back when I first came on board. Public works, in talking to them, what streets being there. For the, what, almost four years prior to that

I got to know those areas myself and I questioned them and the barricades. So it was a corroboration of

pieces of information put together. MR. FENLON: Your Honor, there is a folder in

volume one that has each one of those exhibits separately as 40 -UNIDENTIFIED: MR. FENLON: THE COURT: MR. FENLON: Its actually A is 40 --

37, 45, 48, 49 exhibit. Say it again. 37, 45, 48 and 49 and 50, and

theyre in a clear, plastic folder in the beginning of Volume 1. THE COURT: MR. FENLON: Your Honor. THE COURT: MR. FENLON: THE COURT: Thank you. A is exhibit D-45. Let me see. Oh. And this particular drawing,

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it -BY MR. FENLON: Q The street Birchwood Avenue, have you ever right? MR. FENLON: Okay. the site. BY MR. FENLON: Q

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And so this map you prepared on September 2nd

of 2008, is that a distillation of historical data within possession of the Township of Cranford? A Yes. Q And during your tenure as township engineer

have you ever witnessed flooding on the site which is the subject of this litigation, 215 and 235 Birchwood Avenue and/or on Birchwood Avenue itself? A Yes. Q On how many occasions have you -MR. EISDORFER: Object to the question. On both of them. On On

On Birchwood Avenue.

one or the other. THE COURT: more specific. MR. EISDORFER: THE COURT: Yes, please. Im sure he can do that, Okay. So you just want him to be

Okay.

Well take -- well take

seen that public street in a flooded condition? A Yes.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A Q And on how many occasions?

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Gee, on many occasions.

I mean, I dont get to go

-- I dont go there for every storm event, but Ive probably been there five, six times going through the community. Q Now were you -- now with respect to the

property located at 215 Birchwood Ave., have you ever observed that particular property in a flooded condition? A 215 is the one to the east. Q Okay. Q Yes. Yes. On how many occasions have you observed that? As I say, I drive -Is that correct?

It would be about the same.

you can drive through Birchwood and you can stop and see up Verizon Property, down the other side to see the limits of the flooding. Q And the same question with respect to 235 Have you ever seen that property?

Birchwood Avenue. A

It would -- it would be the same answer, yes. Q And did you have occasion to be on the -- on

Birchwood Avenue or either 215 or 235 Birchwood Avenue during the rainfall that occurred on April 15th of 2007? A The tax day storm?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Yeah. Yes. I was there. I didnt spend any time

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there.

I was trying to get around to another area, but

I did see the site, yes. Q And let me just show you some photographs

which are attached as exhibits C, D, E, and F and G to what has been marked as defendants exhibit 113 which is the January 14th, 2010 report of Thomas Kramer (phonetic). MR. EISDORFER: Mr. Fenlon, are these the

same exhibits weve previously marked as D-25? MR. FENLON: THE COURT: photographs? again? MR. FENLON: No, Your Honor. These are -No. I dont think so.

Are you talking about these

Are we talking about these photographs

photos are attached to Exhibit D-113. THE COURT: (Pause) BY MR. FENLON: Q Again, Im going to point your attention to Okay.

Exhibit C through G of exhibit D-113 and ask you if these photographs accurately reflect the conditions on Birchwood Avenue and the CDA site which you observed on April 15th, 2007, the so-called tax day storm?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q

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Now, Mr. Marsden, I think you indicated that

at some point in 2008 you were asked to review a development proposal submitted to the township by the plaintiffs in this case. A Did I? Q Yes.

Do you recall when you were asked to

undertake this engineering review? A It was in October 2008, I believe. Q And in that regard what documents were you

requested to review by the township committee? A Well, I had a concept plan to review that was

presented from the applicant to the township committee. I prepared a concept -- a conceptual review of that concept plan which is the one thats shown in the exhibit that I was looking at before. Q And the -- what was the nature of the review

that the township committee asked you to undertake with respect to the CDA concept plan? A Well, it was -- it was basically I do reviews for Its a standard review.

them and other properties.

Check out the drainage, check out any utilities, check out what could be impacting to our community. So its

-- I mean, I look at the drainage, I look at the utilities conceptually, and I advise so that if they do

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 go further they can look into what other reports theyre going to need, you know, traffic, environmental. Its a conceptual review that

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highlights what I think the concerns should be based upon my experience of these type of evaluations. Q And as part of the -- your review, did you

prepare the four drawings or sub-drawings on Exhibit D170 which are sub-marked Exhibit B, C, D, and E? A Yes. Q And you prepared those exhibits in connection

with a presentation that you were going to make to the township committee? A Yeah, a presentation I made to the township

committee, yes. Q Why dont you take us through the -- youve

already discussed the flooding map streets which is Exhibit A. Why dont you start with Exhibit B and take

us through the three drawings that you prepared? A The set exhibit B is an overall drainage area for I found that and its part of a key map

Casino Brook.

in the county design for a culvert close to the confluence with the Rahway River where the brook would meet the Rahway River. Just to show that the total

drainage area for this brook is quite large and that the development is in the middle of it and the

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A 37. THE COURT: BY MR. FENLON: Q And why dont we address the next drawing Okay.

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estimated drainage area above the development is at 242 acres. I show the line of the Rahway River in blue. I show the lines where the Casino Brook traverses through the center of that yellow area. Any water that

falls within that yellow area eventually goes to the brook, into the Rahway River. showing council. MR. FENLON: For the record, Your Honor, That was the intent of

thats defense exhibit -THE COURT: MR. FENLON: THE COURT: MR. FENLON: Is it B? B-170.

Thats a part of it, actually. Part of 170. In the folder I believe its D-

which is exhibit C on D-170. Q Exhibit --

Tell me what that drawing is. Q Exhibit C is -- it was a black and white copy

of the concept plan that was presented to the town council at that time. I colored it to make it easier

for the council to see what elements are on the plan.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A The orange are the proposed buildings. The yellow The green,

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represented pavement, parking, driveways.

heavy green line, represented the 50-foot wetlands buffer limit line. The lighter blue line I believe is

the actual wetlands limit line that was delineated previously. The property is bordered by, it looks like, pink from here. Q And that shows the --

Pink or purple. Okay. That showed the proposed

Pink or purple.

development as it would sit on the entire site in relationship to the other elements there at that time. Mostly wetlands and the stream. Q And then the next drawing is Exhibit D.

Could you tell us how you prepared that? A Exhibit D came from our -- our green acres or They show land that is either township The purpose of

Rossi maps.

owned, open space, or green acres land.

this map is to show in this area there is a large area of wooded areas, you see theyre upstream and downstream of the development. I was trying to impose a connection between the region, showing that there are wooded areas, there are wetland areas that are part and contiguous with Casino Brook, that are important to the -- the

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hydraulics of Casino Brook.

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Meaning that these help to

keep more flood waters from coming down faster and I just wanted that to be given some attention. Its more of a heads-up, this is what we have there right now. Its township property, but as many

of you know whove been to this site, right across from this site was all woods too, and it was wetlands, and that was part of the Verizon property. So its almost contiguous if you look at the nature of the existing construction with the park atmosphere where wildlife Ive seen go across one street to the next to transit themselves through the community. Q And the shaded in black area, can you

identify that? A That is our conservation center. The majority of

that is wetlands and forested. buffered.

The perimeters are

Thats where we have our recycling center, a

small portion of it is located to the lower right. Q And again, the square or trapezoid thats

either in purple or pink, could you identify what property that is? A Thats the Birchwood property. Q It had 215, 235.

And the green area, could you identify that

for the record?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A The green area is the approximate wetlands area

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that has been delineated for that property. Q And theres a blue dotted line also depicted Could you identify that?

on this map. A Yeah.

The dotted section shows where the Casino The solid blue line shows where its So where you see it dotted is where Theres a double elliptical pipe

Brook is piped. an open brook.

its underground.

that goes through the Verizon property and it opens up into the wetlands of the township conversation center. You can see the tip of the blue line leaves the site off into Kenilworth. drainage area. Q right? A Yeah. Q township? A To the northeast, yes. MR. FENLON: Just for the record, Your Honor, Yes. So Kenilworth is to the north of the Thats also part of the

Off to the far right.

The area youre referring off to the far

thats in that glassine folder, D-49, sub-exhibit D. BY MR. FENLON: Q exhibit E. And then the final drawing, exhibit D-170, is Could you identify it as far as that

exhibit goes?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A Exhibit E is an aerial that is taken from our

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sanitary sewer maps where weve marked down our sanitary sewer lines. I superimposed in black dash

lines the sanitary sewer region, which is sewer 2 series of lines, which are shown I guess in blue it looks like there. Its to give an idea of how many units, how much land developed properties do go into the existing sanitary sewer system. You can see the Birchwood It was highlighted in

property is in the middle. purple.

There is a six-inch line that comes from that.

And it continues, the flow would continue down to the southeast, or in this map showed it lower, lower right. Up -- up stream of that is a school, pool, residential. And that all drains through the main part of the sanitary sewer system that eventually crosses where the six-inch line from the Birchwood property comes to and then drains again down to the lower right into Roselle Park. Q Pink? Q -- pink line is? And could you identify what the --

The pink line is the township border line. THE COURT: Is the what? Township border line.

THE WITNESS:

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A There is no criteria for that. We have criteria questions? MR. EISDORFER: MR. FENLON:

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And for purposes of the record,

Your Honor, that sub-exhibit E was marked as exhibit D50. (Pause) MR. FENLON: Your Honor, Id like to offer

exhibit D-170 into evidence. MR. EISDORFER: THE COURT: -- voir dire, Your Honor.

Im sorry, you just have some

Yes, I want to voir dire him.

VOIR DIRE BY MR. EISDORFER: Q If you look at the map marked A of D-170, is

this a map that you prepared? A Yes. Q How many times did one of these intersections

have the flood to be put on the map? A Well, they flood regularly, a hundred or more

times. Q How many times do they have to be flood to be

put on the -- put on the map? A How many times they flood. They only have to

flood -- they flood regularly, two, three times a year. Q How many times do they have to be flood for -

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A for what -- what areas of intersections that require the barricades. These are areas that are typically Do I know the exact

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flooding when a storm occurs. number? Q No.

I want to know how you prepared the map.

Based upon the information Ive gotten from public

works, our engineering department, and police department on the streets that are typically barricaded during storm events that, you know, warrant that. it happens two, three times, four times a year. And

Last

year it happened -- its happened three times already since December. Q When you say three times, three times --

three times that one or more of these -- of these were barricaded? A Most of these are barricaded. Q Well, when you prepared the map, how many

times do they have to be barricaded before you said, Im going to put it on this map? A How many times? Q Yeah.

I didnt have a number of time limit, I just knew I didnt

that theyre frequent areas of barricading.

say, okay, how many times -- did it barricade, how many, two years or three years or four years or four

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 occurrences or three occurrences. These are things

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that do happen three, four times a year. Q When theres flooding, do they all -- do you

barricade them all? A When its flooding they -- depending on the type

of storm, some are not as critical as others and they do get -- some will not get barricaded. For example, I

dont know -- theres ones always barricaded down on South Union Avenue and James Street because its just floods. So that was one of the first ones theyre

always looking at. The later on flooding that would occur would be on Willow Street because its tied more into the Rahway River and it has less frequency of flooding but it is a major street where school systems are, where schools are and transportation systems to them travel, so that is the focus. The rest of them flood, depending on the nature of the storm and how it impacts the area. MR. EISDORFER: THE COURT: MR. FENLON: THE COURT: I have no objection to this. D-170 in evidence.

Okay.

Thank you, Your Honor. Let me just remind counsel that

at the end, I mean, I have four binders probably from defendants and one at least from plaintiffs. Im going

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A to ask you to arrange for me just the documents that are in evidence. So the rest of it -In a lighter format? I

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MR. EISDORFER: THE COURT:

Yeah, just pull them out.

mean, you could have mine, but otherwise Im going to be faced with a lot of superfluous, unnecessary documents. MR. FENLON: We will. We will shorten what

you have as much as possible, Your Honor. THE COURT: (Pause) BY MR. FENLON: Q Now, Mr. Marsden, with respect to the exhibit Thank you. Okay. Thank you.

D-170, are there culverts depicted on the map exhibit A which is in the bottom left hand corner of the exhibit? A Culverts? Q No. Q Are there any culvert crossings which impact Culvert crossings.

Birchwood Avenue? A Yes. Q Now in connection with the engineering review

that the township committee asked you to undertake, did you prepare a memorandum for the township? A The 2008 memo you are referencing?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Yes.

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Yeah, in October 20th, 2008 I prepared a memo to

go with my presentation of that conceptual review site plan. (Pause) Excuse me. THE COURT: I got a cramp. You need a break? No, I got a cramp. Maybe just a five-minute break,

THE WITNESS: MR. FENLON: Your Honor. THE COURT: MR. FENLON: (Recess) MR. FENLON:

Okay. Thank you.

Just before we pick up, I wanted

to do some housekeeping related work, moving in matters of the evidence. Im just thinking it might be easier if we also move into evidence each of the sub-maps that are on exhibit 170 which is now in evidence or individually mark, those are defense exhibits D-37, 45, 48, 49, and 50. They were in that -THE COURT: MR. FENLON: THE COURT: photographs. 37, 45, 48, and 50? 49 as well. Okay. They correspond to the

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 objection. MR. EISDORFER: be admitted -THE COURT: Yeah. So I have no objection of MR. FENLON: THE COURT: Yes. So -- so -Im sorry. These are the

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MR. EISDORFER: photographs? MR. FENLON: THE COURT: MR. FENLON: THE COURT: MR. FENLON: THE COURT:

No, no. No, no, no, maps. Theyre drawings. Theyre drawings. Yes. So D-50 is exhibit E, D-45 is And --

exhibit A, 48 is C, and 49 is D. MR. FENLON: THE COURT: MR. FENLON: THE COURT: 37 is B. 37 is B.

B as in boy. So I assume you have no

You know, they were going to

MR. EISDORFER: marking them separately. MR. FENLON:

And then, Your Honor, Id like

to move into evidence exhibit D-169 which is Township of Cranford for ordinance 2008 -THE COURT: I assume you have no objection,

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 handed me? MR. FENLON: THE COURT: Yes, that is, Your Honor. Okay. Your Honor, I have no Mr. Eisdorfer. MR. EISDORFER: THE COURT: MR. FENLON: I have no objection.

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D-169. And then, finally, Id like to

move into evidence two documents which together comprise Mr. Marsden, C.P. The first is exhibit D-136 And the next I

which is a September 2007 continuation.

had marked as for identification exhibit D-136A which is Mr. Marsdens CV through January of 03. THE COURT: MR. FENLON: 136 and whats the other one? 136A. 136 is in the binder;

that earlier CV is not, Your Honor. THE COURT: This is 136A, what you just

MR. EISDORFER: objection to any of those. BY MR. FENLON: Q

Now, Mr. Marsden, just before we broke I

think we were discussing whether or not you prepared any memorandums for the Township of Cranford committee concerning your assessment of the CDA concept plans and in October 2008 you indicated you had. correct? Is that

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Thats correct. Q Let me show you a document which has been

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marked as exhibit D-55 and ask you if you can identify that document. A This is the document that I wrote when I received Information in the document was

this -- concept plan.

based on my review of said concept plan. Q Was there any other -- were there any other

documents, reports, or the like, that were provided by the plaintiffs at the time you were doing this concept plan in October of 2008? A No, I believe it was just this concept plan. Q And was there any other reports or data that

you reviewed independently in connection with the preparation of your October 20th, 2008 memorandum? A Any documents I reviewed independently, meaning in I dont

reference to the site that I received? understand the question. Q

Did you look at any other information in

preparing exhibit D-55 besides the concept plan? A Well, the exhibits that I presented and thats

basically where all that information came from. Q Prior to preparing this memorandum had you

ever been on site at either 215 Birchwood Avenue or 235 Birchwood Avenue?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, I have. Q So you were familiar with the property when

39

you received these concept plans? A Yes. Q Now could you tell me what -- whether you

reached any conclusions regarding flooding in your memorandum? A In the October 20th, 2008 memorandum I -- I

questioned the site on the flooding issues pertaining to where the flood plain was, where the flood -- would be, and I pretty much stated that because Casino Brook is a very sensitive brook, it does flood already, that we have to focus on making sure no conditions will get worse due to this potential development. In reviewing the application, I felt that theyd have to get a New Jersey Department of Environmental Protection flood hazard permit because there was no flood plain shown in the maps we have. However, through my experience I knew there had to be some and it had to be impacted to this area. The other concerns would be the utilities, the sanitary sewer specifically because its an older area. The sewers may have been built in the 50s. So I Some

of these homes are built earlier than that.

highlighted, like I should do during any conceptual

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 review, those areas of concerns. another one. If I may. Utility infrastructure comes to Ive had involvement

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Unsanitary sewer was

light for water, for example. with I call mid-rise. garage.

We have a seven story parking

When I first came in the township, I It was submitted to go to construction,

questioned.

and I questioned sanitary sewer and the water pressure. They said they had adequate water pressure. However, when we went and tested the hydrants they found they did not. So obviously, based upon the experience Ive

had I says, well, you know, out here, residential, a lot of the systems in our community are low pressure systems. I think its something to be aware of that You may need to

its going to be a cost factor. upgrade the water systems.

Sanitary sewer, we did the study for the Cranford Crossing Garage and found it just met the conditions of existing sewer system. However, even

there I implemented and put into my stimulus package a lining program for that sanitary sewer cause it has inflow infiltration problems and it will be impacted by additional flows as opposed to what existed there prior to that. This is the same type of evaluation I did on

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this site conceptually, to say, well there would be sanitary sewers issues, there may be water issues. not the utility companies, but you should bring that

41

Im

to, you know, light in concern for development of this magnitude. Basically, like other developments, I refer to police or fire for fire zones and I just make sure that the councils aware that these are things that are going to have to be looked at in a development of this type. Q And thats basically the gist of this memo. Did you make any conclusion as to whether

there were areas within Casino Brooks drainage basin that served as natural detention systems? A Yes, I did. And that refers back to the exhibit D

I talked about there, where we have the green acres wetlands that are down stream of the site and the issue of upstreaming the site. And including on the site

where they have the wetlands and the lowland areas that arent wetlands because this is -- this is the concern I have about doing the stream encroachment application. They could find out where it was because we felt even in the builded -- built areas that have already been constructed, the offices, there are areas where there is water being stored outside the wetlands area. there is concern, there was a concern for that. So

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q And I think you indicated that one of the

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areas concerns was your inclusion that this project would require a flood hazard area permit. correct? A That is correct. Q And did you reach any conclusion whether the Is that

concept plan as proposed by the plaintiffs in September of 2008 would increase impervious coverage from the existing site? A I have to refer to this memo at that time. I

mean, yes, I believe there would be -- I mean, not a belief, but I felt that when I saw that there would be more impervious cover created. Q And what was the basis for that conclusion?

Well, the initial observations of this site showed

that not only was there flooding into the Birchwood roadway system but there was flooding on the property. The 235 site is to the west, is inundated at times, meaning flood -- flood completely along their parking lots. Plus the fact that we had noticed prior to that on this site that there was some type of storm water detention system put in the upper -- I call it the upper site or the site thats higher in elevation known as 215 in the parking lot. Im not sure. I

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 brought that up in detail with that memo. trying to find it quickly. THE COURT: Im just

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Mr. Fenlon, my memo just goes up

to Page 4, and then it gets redacted. MR. FENLON: THE COURT: MR. FENLON: THE COURT: Yes, Your Honor. Is that correct? That is correct. Okay. Thank you. It didnt look Yes.

like there was any kind of conclusion on it at all. THE WITNESS: THE COURT: No.

Okay. I mean, at that time I was

THE WITNESS: highlighting concerns. BY MR. FENLON: Q

And did you make any assessment or testaments

of whether the proposed project would be significantly increasing the sanitary sewer flows into the existing system? A Well, I did. I believe I did some quick

calculations based upon DEP standards and I felt that the sewer flows would double, and thats where I believe I would recommend that there would be a study for that. Q And did you reach any conclusions regarding

whether this concept of land -- project would be

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A required to comply with the storm water management regulations in the residential improvements -A Well, I mean yes. Based upon my observation of

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the site, what I know about the flooding in the area, I pretty much recommended that theyre going to need a flood hazard permit and theyre going to have to mitigate it based upon the resident site improvement standards because of increase of impervious cover. Q And at some point in October of 2008, did you

present your findings to the township committee? A Say it again. Q Well, your memos dated October 20th 2008. I presented this memo at that time

Okay, yes.

with this display, going over -Q Exhibit D-170?

These exhibits, yes. MR. FENLON: Your Honor, I would like to move

into evidence exhibit D-55 which is Mr. Marsdens October 20th 2008 memo. MR. EISDORFER: Your Honor, with quick

permission Id like to voir dire on this. THE COURT: Okay.

VOIR DIRE BY MR. EISDORFER: Q Mr. Marsden, D-55 was cast in terms of Isnt that correct?

recommendations.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: MR. FENLON: So D-55 in evidence. Yeah, Your Honor, in evidence A D-55 is -- yes, recommendations and concerns of

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what this -- this improvement would be. Q Yes. And these were recommendations for more

information to be provided by the property owner? A Thats correct. Q Do you know -- did you communicate these

recommendations to the property owner? A Its my responsibility to send it to the township They do what they

clerk, to the township committee. will with that. Q

Did you have an interactive process with Mr.

-- with the developers engineer? A Not at that time. Q Not at that time.

Do you know -- did you make a recommendation

to the township council when you presented it, that they seek information from the developer? A Thats what is in my memo. Q Okay. And did they -- did they communicate

that to -- to the developer? A I dont know. MR. EISDORFER: I have no objection, Your

for -- for the purpose of showing what the witness

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A opinions are. (Pause) BY MR. FENLON: Q

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Now, Mr. Marsden, I think you indicated that

you were familiar with the 215 and 235 Birchwood Avenue properties. A Thats correct. Q correct? A Thats correct. Q Yes. Q And Im going to show you three exhibits and Its D-153G, 153C. October 20th memo. Prior to preparing the October memo. Is that

ask you if you can identify them.

Mr. Marsden, can you identify these photographs for the Court? A You already gave them to me. 153G was taken -I

all three of these were taken around February 2007. had my technician whos in the township engineering

department for 28 years and we were out looking at the wetlands and the systems that go into the wetlands back there. And this was brought to my attention, so it was

the focus of this site. We found what you see on exhibit 153G, two chambers and a smaller chamber which is a -- a gate.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A How would you say, its an adjustable crank, like a

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steering wheel gate system that opens and closes a gate at the pipe. When we opened these up, we found that

there is a large pipe going into the big chamber, a small pipe leaving it, going into this gate chamber which has the adjustable valve. What youre seeing has

been hit, I assume through snow plowing or whatever in the past. That after the gate flowing downstream, the

pipe would discharge into the brook that was right in the distance where you can see the homes are right beyond -- beyond that. The photograph was taken from the parking lot, looking south, towards Wadsworth. Q On which property, 215?

On 215. Q The eastern most property?

Thats correct. Q And did you take these photographs? On D-153C, again, I

I took those photographs.

just took photographs showing the limits of the wetlands in the distance and how its buffered. It was

just informational for me to put this in a file that we had at that time. The best time to look at wetlands and those areas for hydraulic reasons are in the winter time

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A because theres less vegetation and you can see what you have in there. done. And basically thats what weve You can see a dark That was the

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You cant see the ditch.

depression which shows it on D-53B. intent of that extra review. Q

And these pictures were taken on February --

February 2nd, I believe, 2007. Q And they were taken at various locations in

the parking lot. A Basically, through the back of the parking lot.

Were looking at the wetlands in the back there. Q And do these photographs accurately depict

what you observed when you took the photographs on that date? A Yes. MR. FENLON: Your Honor, Id like to move

into evidence exhibits D-153B, C, and G. MR. EISDORFER: dire on these. THE COURT: Sure. Your Honor, if I could voir

VOIR DIRE BY MR. EISDORFER: Q Yes. Q Did you have -- did you have the consent of This property is privately owned, isnt it?

the owner to go onto the property?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A it? A No. Q Now there was an application pending at the There was no application for re-

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time, wasnt there? zoning. A

Is that correct?

I dont recall. Q Did you go onto the site specifically to make

-- in connection with that application? A was. See, I dont recall when the application timing I dont recall. I know I went out in the site

due to my technician saying that we have -- there are structures out there. I wanted to see them. And I

said while were out there, well go in the wintertime and check it. Could it have been Woodmont that triggered I dont recall. Q I really dont.

You dont recall at this point. Im sorry. I have no objection. 153 --

No, I dont.

MR. EISDORFER: THE COURT: MR. FENLON: THE COURT: (Pause) BY MR. FENLON: Q

Okay.

B, C, and G. In evidence.

Now, Mr. Marsden, I think on one of the voir

dires counsel for the plaintiffs asked you if you had

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A any communication or interactions with the plaintiffs or their representatives.

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Do you recall whether at any

time you had any meetings or communications with the engineer for Cranford Development Associates, Mr. Michael -A After that memo in October 2008, yes. Q Do you recall when the first contact you had

was with Mr. Dipple (phonetic)? A I dont recall whether it was a meeting and then I

we decided to go out and look at the site together. believe thats how it went. at this time. Q Now did there come a point in time when my

But I dont know any dates

law firm for -- well, strike -- withdraw the question. Did you become aware that at some point in time the plaintiffs of this action filed a builders remedy lawsuit against the Township of Cranford? A Yes. Q that fact? A Time-wise, dates, no. Q Okay. Do you recall when you first became aware of

It was later. Q Did there -- I will represent to you for the

record that their complaint was filed on November 12th

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of 2008. Did there come a point in time during the pendency of the litigation that my office as counsel for the Township of Cranford asked you to prepare a

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memorandum or report in connection with the litigation? A Yes. Q I show you exhibit D-98 and ask you if you

can identify that exhibit? A Well, as per the township attorneys request, I

prepared a more detailed document of my side assessment of this project that was being proposed, and that was on October 21st, 2009. Q And subsequent to the townships service of

this document, you were deposed by both sets of plaintiffs. A Is that correct?

Thats correct. Q And could you briefly describe what exhibit

D-98 is? A Its a more detailed project site assessment

review based upon the concept plan that was presented at that time which I believe is the same plan thats on the board as exhibit C there. It highlights in a

little more detail and makes conclusions on certain areas based upon my experience in the field of engineering, site evaluation, and the multi-family

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A development.

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The flooding, as I said in the original memo, of Casino Brook is something we have to be very sensitive to. Q And why is that?

Because Casino Brook, when it rains hard and not

have to be a 50-year or 100-year storm, we have flooding in the roadway, the brook is -- traverses the front, the sides, and the backs of homes downstream. We do barricade areas. Any additional development

along in that flood plain has to be looked at carefully and make sure we dont make the conditions worse. Actually, I say in there, I mention streets that flood for lack of capacity of storm sewer system through the years of development upstream that created that problem. I dont want to make it worse. Thats

my job as engineers, to not allow that to get worse. So I reviewed that as a project impact. At that time I mentioned not only the fact that the -- I felt the sites were in the flood plain or flood way, it had to be delineated, but I also mentioned the fact that there were two chambers that indicated and confirmed to me that the site that contained 215 had detention systems already in place in it for the parking lot.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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And I felt that that was an issue that cannot be ignored because right now with the existing flow that we use that site includes the hydraulic design of those detention features which is flooding the parking lot, the pipes, and with the regulated gate valve outflow and which is not uncommon for a design that would be done in the 70s. As I mentioned earlier, we

have done parking lot detention, meaning we flood the parking lot and make it like a dish so people still can get out, that theyre not inundated above their driveways. Its usually maximum of six inches. The piping systems But

there is a regulated outflow.

collects the water, a big pipe goes into a chamber, small pipe goes out. If the flows are greater than

what the small pipe allows out which is the control, then the parking lot begins to flood out. Then theres a point where it would spill over which maximizes its storage capacity. this site and thats what I saw. Q I think you indicated that you saw some -Could you describe them? I look at

some other detention basins. A Thats correct.

Along with the property of 215 to

the western property line, the common boundary line of 235 and 215, there were manmade rectangular not cavities but swells that were there. At the time we

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A were trying to figure out why they were there.

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We checked against the building, just looking at that time to see if we had some type of drainage system that would go to it. We couldnt observe any

real piping system going to it other than those covered little grates that show there is a direction of flow, the pipe that goes in that direction. It was wet at

the time, there was water in it at times Ive been there. These are features which I actually use now It controls the velocity of

when I did my golf course. water and -Q

Let me just interject for clarity of the

record, you refer to the golf course, is that the Rigid Back Brook. A The Rigid Back Brook. Q Which you engineered.

Along the edge of wetland areas we would collect

water and swales and then had a little berm to hold it, and then the next one would drip down. appeared to be at that point. Thats what it

I couldnt find an

actual daylight piping system, but then again it doesnt mean its not in there underneath, acting as a recharge area. Meaning that its underground with

opening to let it out. Q Let me just interrupt you for a minute. If

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you take a look at the date of this memo, its October 21st of 2009, I had asked you a bit earlier if you had had some meetings or phone conversations with Mr. Dipple, the plaintiffs engineer. Does seeing the date

of this memo refresh your recollection as to when the first communications you wouldve had with Mr. Dipple regarding this site? A it. No, I cant say whether it was before it or after I mean, thats -- maybe Mr. Dipple -- I dont I know we out to the site and we showed these

recall.

elements to, you know, Mike, the swales, questioning why are they there, is it something to be concerned about. I also showed him the front where the trees were, where the -- setback, where theres a shallow there where I says, you know, in storm water management you would consider -- you look at the site two dimensionally. You look down and say, okay, this grass

or this is woods and -- and you put in an impervious cover factor to it. One of the things that its difficult to determine is the site specific issues like in the front of 215 theres like a dish, and water will sit there first. and go. And then eventually go underground or spill out So it has its own natural detention. And,

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being treated fairly so that we make sure we get the proper outflow to it that doesnt make the condition worse. We dont -- you know, we dont increase the

flow into that brook. This site has, in my opinion, detention in the parking lot already, it has detention in the front in the small form of recharging into the ground, and on the side there was some reason why there were three rectangular structure, ground depressions that were created there. And highly suspicious. It looks like

it was some type of correction system to slow the flow of water down. Q Youve reached that conclusion --

Ive reached that conclusion. Q -- in your professional capacity as an

engineer from your experience? A Yes. Q In your October 2009 memorandum, exhibit D-

98, did you reach or reaffirm any conclusions as to whether the September 2008 concept plan would represent an increase in impervious coverage? A At that time I came to the conclusion that it

would increase impervious cover because they werent talking about mitigating for the existing storm water

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 detention or retention that was there. the parking lot.

57 They were using

Strictly impervious cover with the

existing building and saying, Listen, my development is a little less than that. But I have to incorporate the

existing hydraulic condition that was there which includes the storage that that parking lot was

designed for and those rectangular features on the side, at a minimum. The intent of not releasing more water is -the -- regulations is not to release more water on -off the site into our system. If you ignore the

detention thats there, its just like having -impervious cover, you know, go through the site into the brook, into Casino Brook. Q Now based on the concept plan, what

structures are being proposed to be corrected on the existing parking lot and the area where the existing building on 215 are presently situated? A I dont know if the numbering system -- I think

building B which is the large building that goes down, what, four, 500 feet, it looks like a reverse E at the bottom, thats the area where the parking lot is. a little further into the main structure. Thats the area that becomes all building, all roof, with driveways around it. Thats the area And

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foot long building thats approximately -A I dont know if its 500 foot. Q I mean, its long.

And its between 55 and 60 feet in height is Correct?

what theyre proposing. A Thats correct. Q All right.

If you replace the existing -

parking lot with a structure of that size, does that - would that structure have any direct impact on storm water flow? A Of course if its not mitigated. What Im saying

here is you build a large structure in a restricted upland area that already has distension features and you strip that of that and just build another building, its just like putting impervious cover on top of the site that did not have impervious cover. You have to understand, that parking lot at one time, if that parking lot was not there, the parking lot was put in and somebody say youve got to detain the water for all that asphalt you put in there. So they made the parking lot into a ditch. They had

the collection system, and they said, okay, what were

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going to do is detain that water in the parking lot as though its still a wooded site. And thats what it

appears to be, and thats what I see has happened to the existing site. At some point the parking lot was put in. Maybe the entire building in the mid 70s. They went to

put the parking lot in, they said youve got to detain that impervious coverage going in my wetlands undetained, please, you know, mitigate it. So they designed a system that water would go into the parking lot, fall out at a slower rate than it would without having any detention. The parking lot

impervious water would go from one end of the parking lot quicker for asphalt or concrete than it would through grass or a forested area. The idea is to hold that water back so it only flows out at the same rate it did prior to development. And thats why the parking lot was

designed as a dish with collecting systems, two piping systems. outflow. It went in the chambers, it had reduced pipes Added onto that were eight valves that And thats why Im

regulate even that outflow.

convinced that this design thats there today has detention features. Now what you do when you look at the

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evaluation of hydraulics on a site, you say what is the hydraulics. detention. Well, the hydraulics on the site include Therefore, they assume that in the

beginning, in order to make this detention work, that it was a wooded site. my report. And thats what I referenced in

That because of the -(Tape 195-10 ends; Tape 196-10 begins) They had to detain that water from where

there was woods before, or fields, and thats why they designed that system. So that feature right now, in my opinion, represents a wooded site because waters being released at the same rate it was when it was a wooded site. Q Now do you have a assessment of what the

impact on -- in the event this building B was actually constructed as proposed, would have on if a significant rainfall occurred? Would it be different and more

severe than the site as its presently constituted? A As its presently proposed, yes. Q What would that impact be?

Well, there would be an increase of runoff down Therefore, the flow

the stream going into the brook.

rate would increase, the downstream area would get water sooner and therefore have a larger volume sooner in that storm event. Im not sure I got that clear,

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case, it may be up there at the point where Kenilworth is. We establish a time of concentration. And by the

time that water gets down to a certain point other waters start coming in. -- and flow occur. Now if you take that upper reach and pave it like a flume, that water will fly down there. And Thats how we develop how much

because its the furthest point, the other water along the perimeters will also meet at a sooner time, therefore creating a greater volume in a shorter time which is whats been creating our flooding in our intersection because our storm water systems were designed initially not to accommodate that additional impervious cover. This is my whole reason why we increased our storm water management plan for impervious cover mitigation. This is why we have to monitor

intersections because we, in the past, have not considered impervious cover as a major issue. And now

we started to in the -- you know, in the 70s we started doing that, but mostly for industrial, not residential.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Later on it became more residential. Now

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its in my town that Im engineer in, Ive included single family residential that wants to build large additions in the 200 to 450 square feet or more, they have to mitigate it. distance. By themselves thats not a great

And the council agrees that, you know, the

town residents are going to have to pay three or $4,000 more for seepage pits or ways to mitigate it because in the long run if everybody gets to increase their more, my storm sewer piping system cant contain that. And

thats going to cost a lot more to fix than holding it in bay. And this is why, you know, I strongly feel at this site I cannot accept the fact that we cannot consider this sites existing detention features as deemed nonrelevant. Q And is it your professional opinion that the

-- well, strike that. You reached a conclusion that the proposed concept plan existed in September of 08 was going to represent an increase in impervious coverage. correct? A Thats correct. Q And the basis for that conclusion? Is that

Is based upon the fact that they did not mention

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that opinion notwithstanding the fact that the -- the numerical number of impervious coverage that exists may be slightly reduced in the concept plan? MR. EISDORFER: Its leading. THE COURT: BY MR. FENLON: Q Are you aware of what the plaintiffs Why dont you just rephrase. Object to the form of the

position is with respect to impervious coverage in this case? A Yes. The planner indicates that their proposed And thats

impervious cover is less than what exists.

solely based upon the surface area of the existing asphalt and the building thats there. Q And your professional opinion is that the

impervious coverage is actually increased and this is because of the failure to address and mitigate the existing -- what you find -MR. EISDORFER: Leading. THE COURT: question yet. Well, he didnt even finish his Object to the form of the

So why dont we let him finish his

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question before we can judge whether or not its objectionable. MR. FENLON: THE COURT: BY MR. FENLON: Q Youve just testified to the fact that the Ill rephrase, Your Honor. Thank you.

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plaintiffs included that their concept plan has a smaller impervious coverage that exists. A Thats correct. Q And your -- you testified that your Correct?

professional opinion is that actually the proposed concept plan is increasing impervious coverage. Correct? A Thats correct. Q And could you tell me or tell the Court what

factors and criteria you assessed in reaching your professional opinion that impervious coverage is actually being increased by this proposed project. A As I said, the parking lot as a minimum cannot be

considered impervious coverage at this point because there is a storm water detention system put in place that mitigated its impervious cover to the state of a wooded site. I dont know if you understand. Im trying

to make it -- lets see, how do we make it simpler.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A The site at the parking lot at a minimum which is about 300 by 400 feet, say. square feet of grasslands. Thats 120,000

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You put a parking lot in

there and you say, I cant just put the parking lot there, Ive got to hold back that water that that parking lot now shoots off the property. So it gets All

back to the precondition of that wooded area. right.

Meaning that the time of concentration or any -

- flow down because its held on the property or in the parking lot. So when everything is built and said and done, the waters being released from the property at the same rate that it was prior to development. So when you take that parking lot, just looking at it as a surface feature and say, okay, thats my impervious cover, thats not true because the parking lot was designed to act like it was a wooded site because of the detention measure. Q And --

And thats my conclusion of why theres actually

less impervious cover because Im not analyzing just the pavement, Im analyzing the hydraulic features of that parking lot. Q And is there any requirement under -- by

municipal ordinance that would support your conclusion?

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ordinance and yes, the ordinance which I found does address that. The verbiage, I dont know offhand

directly, but it says the hydraulic condition has to be analyzed -- should be analyzed and included if its five years or more it would be utilized as the factor of impervious or runoff coefficients for that site. If you want I can find it on the -You were referring to an ordinance. Is that

ordinance 2008-41 which you testified earlier that you prepared for the township committee? A Yes. Q Exhibit D-169 in evidence. Would you find

the provision in the ordinance which you were just speaking about? A Under Section 136-42, calculation of storm water

runoff and groundwater recharge, section A, entitled storm water runoff shall be calculated in accordance with the following. Paragraph two, halfway into that

paragraph it states that a runoff coefficient or ground water recharge land cover for an existing condition may be used on all or a portion of the site if the design engineer verifies the hydraulic condition. Thats the

key to what Ive been talking about on this parking lot.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cover. THE COURT: where you are, 169 -THE WITNESS: THE COURT: paragraph two. THE COURT: Thank you. Okay. Again, a runoff Im sorry. Page 10. Would you just tell me again

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Okay.

Middle of Page 10,

THE WITNESS:

coefficient or a ground water recharge land cover for an existing condition may be used on all or a portion of the site if the design engineer verifies that the hydraulic condition has existed on the site or a portion of the site for at least five years without interruption prior to the time of application. Now its not saying that just the impervious Its saying the hydraulic condition which is

something, is an insight to what we have seen because now that we have had since the 70s methods of detaining water on sites, this is a way to evaluate the site properly, hydraulically, to determine what is the true existing runoff from that site. Q To your knowledge, does the Department of

Environmental Protection have any regulation that is similar in nature or analogous to the provision in ordinance 2008-41? A Actually, I -- I went to, with my model ordinance

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Of the DEPs model ordinance. Q But are you aware of whether theres an

existing regulation in the administrative code thats of similar nature to that? A Yes, yes. Q Where is that located?

I dont know what section it is, NJ -Q Would it be in the residential site

improvement standards? A I cant -- I cant tell you specifically. Im not

one of those who remembers. Q In your October 2009 memorandum in connection

with this litigation, did you reach a conclusion of whether the plaintiffs would be required to back out and delineate the flood hazard area and the flood way on this site? A Yes, yes. Q And was that similar in nature to a

conclusion that you set forth in your October 2008 memorandum of the township committee? A That is correct. Q In essence they have done that.

Now in connection -- did you reach any

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sanitary sewer in connection with the proposed concept plan? A Yes, I believe at that point the developers Its

engineer prepared a sanitary sewer report.

highlighted -- like I said, its highlighted in the L2A report. Q I have no date. I show you whats been marked as exhibit D-13

which is a January 2009 sanitary sewer capacity study issued by Mr. Dipples firm L2A Land Design, and ask you if thats the document you were just referring to? A Yes. Q And did you review that report from Mr.

Dipples firm in connection with preparing exhibit D-90 -A Yes. MR. FENLON: (Pause) MR. FENLON: All right. Im sorry, Your Im looking for my copy.

Now in the body of the report is there an --

was an assessment undertaken by Mr. Dipple with respect to the existing sewage pipes on -- on site? A Yes. On Page 1, Table 2, called Summary of

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coefficients, capacity, and the velocity flow, and its going half full. Thats the report I was -- that I

looked at and evaluated, that there were about, I believe, ten sections of piping that were less than what we considered a minimum velocity. In accordance to New Jersey Administrative Code, the minimum recommended design velocity is 2.5 feet per second. A lot of times were -- we go down to The reason for that is that the

two feet per second.

solids in the sewer flow have to have enough velocity to keep them moving so they will continue downstream. If you get less velocity, it would begin to hold up and then start clogging the system. So when we design systems we look at it in that nature of what velocities do we have that will be predictably going through these systems so that the system will flow uniformly. This chart breaks down the existing system - existing sections of pipe between the various manholes that are numbered on that chart and they measure the depth and the length and they determine the velocity of the actual pipe in areas the velocity is less than two feet per second which I consider -

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something youre going to have to seriously question to see if there is going to be a problem. And as director

of public works, we would then have to be responsible for maintaining a system or unclogging and area which never seemed to be a problem before. Does the flow rate work now? Ive had no

issues of cleaning the systems that are part of this. However, when youre doubling the flow youre also increasing the solids. It will flow it down and there

is a big change that there could be a problem. In addition to that, the town is an old town, it has old pipes. We have what we call inflow

infiltration, I&I issues, throughout the township. That was highlighted in this report and its also a condition that we have to be aware of. event we will have heavy flows. During a storm

If theres a potential

for clogging there can be a point where we have to run out there and clean these areas quickly. We already have areas in town we have to deal with on that basis. Thats part of our mobilization

and management of our entire infrastructure system when we get these type of storm events. Q Mr. Marsden, I could point your attention to

table 2, Summary of Existing Sanitary Sewer System. Its on Page 1 of Exhibit P-13 in evidence.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A In the table, the far left column says Upstream MH and then it has 16 numbers. that? A Yes, yes. Q Do you know what MH refers to? Do you see

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Manhole. Q So those are 16 different sewer system types

secured on these two properties? A Theyre -- yes, theyre two different -- theyre

16 sections of pipe that go from one manhole to the next. Q And your testimony was that the recommended

velocity was two minimum -A Well, in our designs and working with the state

DEP works approval people down there at the state, we at times, because I have done many projects as multifamily housing and restricted conditions, we accept 2.0 feet per second. criteria. Taking the velocity and analyzing that down in the last column on the right, I just highlighted those which were less than two feet per second. I did And thats what Im using as a

ignore the one that was 1.95 because its borderline. Q And based upon that from review of the

plaintiffs sewer capacity study, you concluded that at

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Were not meeting the minimum slope design standard

and that new and additional flows could impact that. There are pipes there that are -- have a velocity of 1.6, 1.7, 1.60, meaning that its flat, 1.8, 0.57 as opposed to 2, 1.5, 1.6, 0.147. These are all

velocities that are less than recommended design flow. Q And the numbers that you were referring, just

for purposes of the record for the Courts convenience, is in the far right hand column of Table 2 on Page 1 of that report? A Yes. (Pause) MR. FENLON: Judge, do you think this would

be a good time to do the lunch break? THE COURT: MR. FENLON: THE COURT: Yes. Thank you, Your Honor. Yeah. Okay. Well see you at

(Lunch Recess) MR. WOODWARD: Your Honor, I just have one When we

housekeeping matter that Id like to address.

left yesterday, we talked about whether Mr. Slachetka (phonetic) should come back this afternoon. But

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 possible. UNIDENTIFIED: MS. MC KENZIE: the morning as well. UNIDENTIFIED: THE COURT: At the moment, yes. Well have -looking at sort of the way things are right at the

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moment, Mr. Fenlons got about another 45 to minutes to an hour, Mr. Eisdorfer tells me he has maybe an hours worth of cross. Ms. McKenzie. Im thinking if I have him come up here, you know, maybe we get a half an hours worth of testimony. I just assume not break it up that much. THE COURT: Tomorrow morning. Yeah, well I know theres a few questions from

work just in the morning tomorrow, right? MS. MC KENZIE: THE COURT: Yes, please, Your Honor.

Yeah. If thats -- thats the best

MS. MC KENZIE:

But you have somebody else in

We have clearance from Judge

Carry to work all next week. MS. MC KENZIE: MR. FENLON: Okay. You got me next week. Thank you, Judge.

Thank you.

MR. WOODWARD: housekeeping.

Judge, just another bit of

I dont know if the Courts aware, but

we did get the decisions, written orders, from the

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Okay. then -THE COURT: Thank you. MR. FENLON: Or interlocutory appeal. I guess I saw the stay order. Appellate Division.

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Our motion for leave to appeal was

denied, as was the application for our expedited consideration. THE COURT: I saw just the order with the box Is that what youre

checked off that it was denied. talking about? MR. WOODWARD: mm-hmm, yeah. MR. FENLON: THE COURT:

Yeah, thats how they -- yeah,

Thats what I saw. Oh. I saw it on Monday. So

thats why I proceeded. MR. FENLON: THE COURT: Yeah. I assumed you did, too. We did, but theres no

MR. WOODWARD:

indication of who gets it and who -MR. FENLON: Judge, yeah, what hes saying is

not only was the stay denied, but the Court has decided not to -- not to hear the interlocutory appeal. THE COURT: yeah, I saw the -MR. FENLON: First the stay order came -Oh, I didnt see that. I --

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And you can proceed, Mr. Fenlon. Thank you.

break we were going through exhibit D-98 which was your October 21st, 2009 memorandum report that you prepared in connection with this litigation. And in your report

you made reference in paragraph 113 to ground water recharge. Would you describe for the Court what that Actually, on the bottom of

term means and encompasses?

Page 3 and top of Page 4 exhibit. A Yes. There are, as I said earlier, there are

pockets of land which are ditched so that that storm water, the prevalent ones are the ones that are rectangular and manmade features that were dirt on the common property line between 215 and 235 buildings. Theyre not so prevalent but are there, are in the front of the buildings and even in the other building which is really in the flood plain. doesnt matter appreciably. It

But the front of the

building on 215 has a treed, park-like area, but the ground is very flat. Actually, it is dish, of dish.

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And thats, you know, thats what Im It lets the

saying about the ground water recharging. water get into the ground.

The rectangular ditches

correct the water, let the water get into the ground. That helps the groundwater table, keeps our streams and rivers to have more water longer during the dry spell. It regulates temperature because it cools

the water down to 50 something degrees usually when it gets into the ground water table. So it basically is helpful to the environment. In fact, DEP now has been looking at, you But then

know, recharge has been like the keyword.

trying to bring everything back to a natural state where -- where finding the impervious cover and building has not allowed that. So some of the rivers

and streams have not been getting that general supply of water as we go. seriously. Q And did you reach a conclusion as to whether So they -- they look at that

the proposed concept plan of the plaintiffs which you were given in connection with this report would affect groundwater recharge on the site? A Yes, I did. When you look at the larger building

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with, you know, the leaf cover in the front of Building 215. The buildings now a lot closer to the roadway

and its actually -- so you would be losing those areas that were holding the water. Q Now, Mr. Marsden, Id like to point your

attention to an exhibit which we have marked D-157 which is the June 11th, 2008 survey prepared for the plaintiffs by Control Point Associates, Inc. here on this report. THE COURT: MR. FENLON: What exhibit is it? D-157, Your Honor. Im sorry. I believe Its up

its in a glassine envelope folded up in the exhibit book. (Pause) THE COURT: MR. FENLON: BY MR. FENLON: Q Now, Mr. Marsden, could you come up and take First, tell us whether youve Okay. Okay. I have it. Very good.

a look at this exhibit.

ever reviewed it previously. A Yes, I have reviewed this exhibit. Q Okay. And can you point out on the portion

of this, just for clarity of this survey depicts both

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 properties. A Correct? 215 and 235 Birchwood Avenue.

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That is correct. Q And could you point out on the survey map the

pertinent areas of swales and recharge areas and potential related systems that youve seen on site for your own observation? A Yes, I can. The building 215 lot, I can pencil

the path for you, it follows along this line from the northeast corner down to the southeast. across where we have -- Union Avenue. It comes And then it

makes a curve along the runup close to the driveway of Verizon. Thats encompassing Building 215. The other lot is the remainder. If you go

back down that curving linear, go back along the residential homes -- come up along the center of the brook back to Birchwood Avenue, encompasses building 235. The areas in observation were the areas that I considered main wetland areas which would be concerned for recharge. When theyre -- the flood

plain pretty much is the entire, you know, flooded area which recharges. Those areas that dont get into the flood plain are the areas that are up in front of the building. With lesser storm events that water collects

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canopy, but you would notice that there is a flat area in here. The other area is defined like rectangular depressions that run along the common line to 215 and 235 that have a rectangular depression here, although its not shot as a secondary. Theres a secondary,

rectangular depression and then theres the remainder that goes into the wetlands. These areas of water, Ive been out there to see that, this area holds water. In this area here,

although the front of your flood plain pretty much runs a pattern like this, there are lesser storms that still flood the area, still impound water that act as recharge for lesser storms which helps feed our water table. When theres less rain, theres lesser storms; And

however, we still need to feed our water table. thats what these are doing right now.

Those depressions are within this parking lot area in here and that was the wooded area between the two buildings that had trees in them. Theres little

areas that occurred between the driveway and the parking lot. And of course youve got the woodland --

the wetlands which is a natural recharging area. Q And I think you indicated earlier in your

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 inches. testimony that its your opinion that the existing parking lot on 215 Birchwood Avenue is a detention basin. A Is that correct? And, actually, in looking at

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That is correct.

this map when I had that opportunity, I followed the storm water system out in the center of the lot that has building 215. There are catch basins, there are

inlets that collect storm water. Our survey information showed they were 12 Theyre shown here I think at ten -- ten inch Our survey shows that

concrete channel they call it.

they go down here, just like his does, to 15-inch pipe. And then it continues down to a chamber which is at the very end of the lower parking lot. That is the one

with the steel plate that shows the 18-inch pipe coming in, and our survey showed a 12-inch pipe coming out but going into another concrete chamber which is the valve for -- you would turn and adjust it halfway flow, full flow, and flow. Down towards the end of the parking lot, towards what would almost be the natural downgrade of the site that was not -- would be these inlets, collection points for storm water. Thats a separate

system from that but functions in the same way. We measured 12 inches on these pipes to go to

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ability. a 15. For some reason this is showing the 15 going

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directly to the brook bypassing that box there. not correct. does.

Thats

It goes into the box like the other one Then that

And then it goes into a smaller pipe.

smaller pipe connects to the next gate valve which adjusts the outflow. Looking at this and saying, well what if my system was -- what if the system was closed, whats the parking lot grading like? for. What would it be designed

What I was looking for was something to show me

this parking lot just had a general -- it was normal off-flow in that direction. So that would say, well,

you know, that may not be necessarily a area for -this may have been a coincidence. Although the

structures down here made my opinion very unlikely that it is because it has restricted outflows. But I viewed the grades from this plan all along the perimeter and what I found is if you shut these gate valves on these pipe and allowed no water through here, that entire parking lot would fill up with water and then begin to spill out through this driveway, that driveway, and then with another half an inch of water would come out down there. So it is a flat parking lot. It has storage

If those valves were shut completely, thats

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A what would happen. partially. These systems are functioning. Water comes Ive witnessed that on the sites,

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out of those 12-inch pipes when -- when its raining. Q where? A It takes the water to a manmade ditch that And that system eventually takes the water to

parallels the back of the parking lot in the corner on the edge of the wetlands all the way down, eventually, into Casino Brook. Q Now, Mr. Marsden, let me show you a document It

which we have marked for identification as D-105.

is a November 11, 2009 letter report from Mr. Dipple to CDA. Id ask you if youve ever seen this document

before? A Im sorry, ask me what? Q Have you ever seen this document before?

Yes, I have. Q Can you identify it?

Its a document prepared by L2A, the land

development addressed to Cranford Development Associates, dated November 11th, prepared by Michael E. Dipple. Q And were you provided a copy of this report

from Mr. Dipple?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A Yes, I had received -Q Yes. Q Yes. Q And Id like to point your attention to And you reviewed it? Contemporaneously with this issuance?

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paragraph 1.11, impervious culvert, and to the second paragraph where Mr. Dipple comments on your recommendation that the site be considered wooded was contrary to DEP regulations. MR. EISDORFER: Do you see that?

Your Honor, Im going to We havent received If he

object to this line of questions.

any report from Mr. Marsden since October 2009.

has -- he has some expert opinions in response to this, there was ample time for him to provide them. that this is inappropriate at this point. We think

This is

going beyond any -- any report that he has given. MR. FENLON: Your Honor, we were required by

the case management orders to serve all of our expert reports first. Then the plaintiffs went.

Mr. Dipple, this document that were talking about, was a rebuttal report to our report from Mr. Marsden. Mr. Marsden was deposed in discovery many

months after these reports were issued by both of the plaintiffs. I dont think theres any surprise and I

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Fenlon. think he should be able to be questioned on what his view of Mr. Dipples rebuttal to his position is. MR. EISDORFER: what his position is. havent seen anything. year ago. MR. FENLON: Judge, with due respect to Mr. Your Honor, I have no idea

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It will come as a surprise.

We

His last report was almost a

Eisdorfer, this report contains the commentary of the plaintiffs with respect to my client and my experts report. Hes able to comment on whether it has merit

or doesnt have merit, it would seem to me. THE COURT: If he was deposed after -- after I mean, was

this report, how could this be a surprise?

he asked to comment on this report at his deposition? MR. EISDORFER: the basis of his opinions. THE COURT: Well, let me ask you this, Mr. Your Honor, I asked him for

Is this a change in his opinion or in any way Are you eliciting from

a modification of his opinion? him? MR. FENLON: THE COURT: be a surprise? MR. EISDORFER:

I do not believe so, Your Honor. So how can it be a -- how can it

Well, well see.

You know,

is it a change in his opinion?

I dont know what his

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this -THE COURT: Ill allow it and if I find or opinion is. I have only this at this point Mr.

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Fenlons assertion.

Thats what -- and it seems to me

that if its not a change in his opinion then its redundant and we dont need it. If it is a change in

his opinion, then its beyond the scope of any report the defense has given us. THE COURT: Okay. I mean, arguably theres a

lot in this case thats redundant because weve heard opinions about the same four -- three or four issues from a lot -- several different experts. Im going to allow it. Excuse me.

And if I find

afterwards when you argue and persuade me that its a change of his opinion that caused you surprise that youre unable to meet in your rebuttal case or havent met already, then Ill strike it and disregard it. can do that. do that. So Ill allow it. MR. FENLON: I have very few questions about Im not a jury. I

I think Ill be able to

you persuade me, as I said, that its a change in his opinion, then I will disregard his testimony. MR. EISDORFER: BY MR. FENLON: Thank you, Your Honor.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. THE COURT: rephrase the question. MR. FENLON: I was trying to short circuit I would agree with that. Q

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Mr. Marsden, in your testimony earlier today,

you indicated that its your professional opinion that with respect to the destruction of what you believe are storm water storage and retention systems on the 215 Birchwood Avenue site that -- which would be undertaken if the concept plan was developed as proposed by the planners, its your opinion that they would be required to restore areas on site to their prior condition which wouldve been wooded when that parking lot was constructed in the late 1960s. MR. EISDORFER: Object to the form of the

You can

not having to repeat all of his testimony. THE COURT: MR. FENLON: THE COURT: BY MR. FENLON: Q Mr. Marsden, do you have an opinion Well, you know, rephrase that. Ill rephrase it. Thank you. Thank you.

concerning the requirement of this particular project applied with the DEPs present storm water management regulations? A Is that in connection with 1.11, Impervious Cover,

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A in this letter? Q Yes. In this letter, basically Mr. Dipple

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All right.

actually highlighted the Storm Water Management Rule Act, NJAC 7:8 in accordance with NJAC 7:8.5.6.2. On the same paragraph thats in my storm water regulation and part of DEPs model ordinance, and Ill read it again, he has in quotes here, The runoff coefficient or groundwater recharge land cover for an existing condition may be used on all or a portion of the site if the drainage and if the design engineer verifies that the hydraulic condition has existed on the site or portion of the site for at least five years without interruption prior to time of application. Hes using that statement saying, Contrary to Mr. Morrisons statement, the above referenced consequence has not proposed any additional impervious surface. And hes referencing that paragraph saying But my concern is the key words And as I testified

well thats the case.

here, the hydraulic condition.

earlier, the hydraulic condition is not just the pavement thats put down there, it was the design of the storm water management that had to be incorporated for that pavement to be put down there so that runoff would not -- more runoff -- not more runoff -- runoff

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would not leave the site faster than it did in its existing state.

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And this is why I say that the existing state prior to this parking lot was wooded. Q And in paragraph 1.1.2, flood plain, on page

2 of this exhibit, Mr. Dipple responded to your prior opinions from October of 2008 and October of 2009, that the plaintiffs should be required to delineate and map out the full extent of the flood hazard area and the flood way on this property. A Correct?

Im sorry, could you -- the first part of that,

Im not sure I caught it. Q Yeah. I was just saying that this particular

paragraph of Mr. Dipples rebuttal report, 1.1.2, responds to your prior -A Prior letter, yes. Q -- findings, that they would have to map out Correct? They say in their report that

the flood hazard area. A That is correct.

they could use methods, what is it, three, method three which is utilizing the flood hazard map based on the FEMA flood insurance maps. They further state that

basically its an acceptable method, the map shows no area of flood plain. My argument, though, has been that youve got

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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a flood plain above it, youve got a flood plain below it, my observations of the site, the grades, and the terrain tell me that there is a flood plain and a flood hazard line that goes through that. So I dont agree with that cause I feel that it would go to the State at this point. have to look at that. Q And are you aware of whether the plaintiffs They would

expert has retracted that position and acknowledged that a mapping of the flood hazard area would have to take place and in fact has undertaken that mapping? A Yes, after this letter, yes. MR. FENLON: Your Honor, at this time I would

like to move into evidence exhibits D-98, Mr. Marsdens 2009 report, D-105, Mr. Dipples November 11th, 2009 rebuttal, and plaintiffs purchase survey which is exhibit D-157. MR. EISDORFER: Your Honor, I have -- I have

no objection to D-158 as the statement of Mr. Marsdens opinion. MR. FENLON: THE COURT: Thats 98, Your Honor. Yeah. Im sorry, D-98.

MR. EISDORFER: MR. FENLON: THE COURT:

Thats correct. You said its 98? Okay. No

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the other? MR. FENLON: THE COURT: (Pause) BY MR. FENLON: Q Now, Mr. Marsden, in your capacity as 98. 98 in evidence. Thank you. apologize. evidence. THE COURT: MR. FENLON: D-105 is already in evidence? If it is, Your Honor, I It objection. In evidence. MR. EISDORFER:

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D-105 is actually already in

My recollection was that it was not.

may have been marked. (Pause) MR. EISDORFER: marking it again. THE COURT: 11th, 2009 report. MR. EISDORFER: THE COURT: MR. FENLON: Thats correct. And 157? D-105 is Mr. Dipples November But I have no objection to

Right.

Is the plaintiffs survey from

September to June of 2008 which is on this report. MR. EISDORFER: THE COURT: No objection, Your Honor. So 105, 157, and what was

Okay.

township engineer, have you from time to time visited

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the exterior portions of commercial properties within the Township of Cranford that contain storm sewers, ditches, brooks, structures or systems of such a nature? A Yes. Not only this site, but we have an

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industrial area that has open ditches, pipes running through them because Im also in charge of public works. Sometimes prior to a storm event we will look

at these structures and make sure theyre clear. Public works do it. I go out there to observe. The

State requires now elicit connections, mandates that we have to look at these structures and see if water comes out, waters coming out of them during dry periods. On these areas where theres parking lots and, you know, sitting areas for the employees at lunch time and whatnot, we do go out and look at these sites. Q And on at least one or two occasions since

2008, have you been invited to the site by plaintiffs engineer to visit the site and walk the site with Mr. Dipple? A Yes. Q Now earlier in your testimony we went through

a few photographs that you took of the two properties in 2007. Now Im going to show you some later

photographs.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A (Pause) Mr. Marsden, Im going to show you a series of photographs, seven photographs, that have been

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marked, pre-marked for identification, exhibit D-121A, C, D, I, J, N and P. those exhibits. A Yes. Q What are those documents? Ill ask you if you can identify

Theyre photographs of flooding that occurred on

Birchwood Terrace on the adjoining sites to flooded area of Birchwood Terrace. Q And did you take those photographs?

Yes, I did. Q Do you remember what date you took those

photographs? A This past December 9th, 2008 -- 9. Q photo. And Ill take you through them photo by The first exhibit is D-121A. Can you tell me

what -- why you took that photograph? A I took that photograph to show that between the

two buildings of 115 and 125, 215 and 225 (sic), Im sorry, there was area flooding occurred on that date for that storm. Im standing pretty much. the lower right hand corner. You can look at

You can see the

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reflection of the sidewalk. sorry. You can see the -- Im Sorry.

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I was not on the mic.

The photograph shows flooding that has occurred in the wooded area between building 215 and 225 (sic). I was standing pretty much between the You can see in the lower right

common property lines.

hand corner the reflection of the sidewalk thats submerged to give you the direction. And Im looking In the

down Birchwood Terrace, panning to the left.

distance you can see the sign of that other building way in the distance between the trees. This shows that its a low area pockets even with that -- not as much rain you would have pockets of water sitting in there that would act as recharge. Q And now with exhibit D-121C, can you describe

that photograph, why you took it? A I took the photograph to show that flood water

does occur on Birchwood Terrace and crisscrosses from the Verizon parking lot located to the left, and then goes -- located to the right. Im sorry. The Verizon

parking lot located to the right and then goes to the left and a further distance to approach the river. And thats going through the 225 (sic) house number -- lot number site, and you can see Im standing at the first driveway at 215 taking that shot.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q

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In the bottom right hand corner of the photo

theres also a -A Theres a yellow barricade. And as I said

earlier, this is -- by the time I got there, that one barricade was up, theyre monitoring it. They were

probably going around the other side to put the other one up at that time. Q And when roads are barricaded due to flooding

in the township, who -- who barricades them, is that the police? A Its, in this case, lets see, sometimes the This happens to be

police have their own identifiers. the public works barricade. one up. Q

So they probably put that

But police put theirs up also. Just for clarify of the record, I think a

couple of times you made reference to 225 Birchwood. You were referring to 235 Birchwood? A Im sorry, I was referring to 235. Q Now lets turn to D-121D, and can you

describe that photograph and why you took it? A I took it to show that the flow is coming through

the Verizon parking lot pretty much at the entrance driveway. Although they have those twin elliptical,

large pipes that are underneath the driveway further to the left, the terrain is such that to the right in the

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: MR. FENLON: sign that thats on. THE COURT: across the street? THE WITNESS: THE COURT: This is across the street. So is this on the property or Okay. Its got the Verizon parking Right? MR. FENLON: Thats that one, correct, Your wooded areas are the wetlands which are filling up -are filled up with water and that water gravitates, leaves that site to go into Birchwood Avenue, cross over into the 215, 235 site. UNIDENTIFIED: MR. FENLON: Whats that? The one without the --

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121D.

MR. EISDORFER: MR. FENLON: BY MR. FENLON: Q Okay. Lets --

The one --

The one without the marker.

THE COURT:

Oh, that would be that one.

Okay. This is the Verizon property.

THE WITNESS:

I was showing that this is where the water comes from naturally through the geology of the area. lot is the Verizon parking lot. The parking

You see the cars in

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the back. Its a fenced in area. Its a secure area

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for their vehicles. BY MR. FENLON: Q Still with respect to exhibit 121B, where

were you standing when you took that photograph? A Pretty much at that point of the first exhibit I just pivoted and took

where I showed the sidewalk.

the shot into the Verizon parking lot. Q Thank you. Now with respect to exhibit D-121I, can you describe that photograph and why you took it? A Well, this shows that the flooding in the lot or

building 215 is, it shows that the water comes from the front to the back, floods along the back of the curb, and in -- does not clearly show here, but as we see when we go to the site that it will drain through openings in the curb into the ditch on one side, into the brook on the other. water. It shows positive flow of

As you can see, the site has been draining at

that point already. Q Now with respect to exhibit D-121, would you

describe the photograph and why you took it? THE COURT: MR. FENLON: THE WITNESS: Youre on J now? Yes, J, Your Honor. J. This is a photograph, I was

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 standing in the driveway to parking lot for building 215.

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Basically, the last photo would be the back view If I turned 180 degrees from the view I have

of this.

now, you would pretty much see the parking lot that I took in the previous photo. area. This is a little upland

I had to sneak through the woods and get a

little wet to get to this highland to just take some photographs. What this shows me is again theres pocketing of water and ponding in there. Even close off the curb

to your far right in the photo, you can see water just ponding there. recharging. Thats part of the issue with

Thats the part thats difficult when you

do the calculation design in perfect flat areas, wooded areas. These are the areas that Im concerned about or

they lose their integrity for recharge. BY MR. FENLON: Q Now exhibit D-121M. Can you describe the

photo and why you took it? A Its pretty much the same direction but I got off

of the driveway and moved to the right and panned the area where standing water was in the -- in the wooded area. Q And can you describe the location as to which

property youre looking at?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A

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Im still on the -- in the wooded area between the Looking across

two lots, two buildings, 215 and 235.

the street is again the parking lot of Verizon. So Im close to the borderline of those two properties, looking through forest -- the wooded area and the park type area, onto the Verizon parking lot. Q And the last of these exhibits, D-121P, can

you describe that photo and why you took it? A Well, in the last position where I was standing I

turned about 90 degrees to the west, to the left, and took the picture of the standing water alongside of building 215, just to show additional coverage of flood water. Q And you took these seven pictures or -- on

December 9th, 2009? A Thats correct. Q And do they accurately reflect the conditions

and what you saw when you took each of the various pictures? A Yes, they do. Q And are you aware of whether the rainfall

depicted in these photographs on December 8th or December 9th of 2009 constituted the 100-year flood? A It did not constitute a 100-year flood. Q Are you aware of whether it constituted a 50-

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: MR. FENLON: What is it, one -First will be 171. MR. FENLON: THE COURT: MR. FENLON: These you dont have. Yeah. year flood? A It did not constitute a 50-year flood. MR. FENLON: Your Honor, I would move for

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these exhibits, D-121A, C, D, I, J, M, and P into evidence. MR. EISDORFER: Your Honor, Im going to

reserve my questions on this to cross. THE COURT: Fine. So no objection?

MR. EISDORFER: THE COURT: and P in evidence. (Pause) MR. FENLON: photographs.

I have no objection. So 121A, C, D, I, J, M,

Okay.

Your Honor, I have three more

I asked that they be marked for We left off at 170. Yes.

identification.

UNIDENTIFIED: MR. FENLON: THE COURT:

171, 172, and 173. You threw me off here with your -

Im going to give them to Your

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. FENLON: THE COURT: (Pause) BY MR. FENLON: Q And 72 and 73? Yes. Okay.

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Take a look at these exhibits and tell me if

youve ever seen them before? A Yes, Ive seen them. I took these photos on

Sunday, August 1st. Q Now with respect exhibit D-171, can you

describe whats depicted in the photograph and why you took that picture? A This photograph shows water ponding in the upper

parking lot, the parking areas thats close to the building of 235. Q D-172. A Its just a couple views trying to show the Again, same question with respect to exhibit

expanse of the ponding that has occurred in the parking lot. Im standing close to the western driveway entrance into the parking lot just past the building where the driveway starts to turn, where Im taking these photographs. Q D-173, what does that depict?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A

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Again, it depicts the water that was flooding in Actually, if I may go back, D-1 --

the parking lot.

171 depicted the water at the time I first got there. I then shot over to another site to do a comparison to see what theres flooding on. The second two

photographs were taken a little later because the water did begin to recede I believe. THE COURT: And this was August 1st, 2010? Yeah. Thats a Sunday morning.

THE WITNESS:

We had about two inches of rain, Your Honor, and I figured, I have a couple of sites that I wanted to see how badly they would flood, and I figured well -THE COURT: How many inches of rain fell? Two inches of rain. It was a

THE WITNESS:

short duration storm but an intense storm. MR. EISDORFER: THE WITNESS: THE COURT: MR. FENLON: THE WITNESS: BY MR. FENLON: Q And these photographs, exhibit D-171, 172, August 10th or August 1st?

August 1st.

August 1. Of 2010. Of 2010.

and 173, do they accurately depict the conditions you observed when you took those photographs? A Yes.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A A A MR. FENLON: Your Honor, I would ask that

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these exhibits, 171, 172, 173 be admitted into evidence. THE WITNESS: BY MR. FENLON: Q Yeah. For clarification of the record, Mr. Should I say that again?

Marsden, could you please tell us again which particular property, 215 Birchwood Avenue or 235 Birchwood Avenue that you took those photos? A 235 is the one to the far right here in this -Q Yes? Q No? Q The parking lot is 215. No. No. Yes?

215, Im sorry. Q 235 is to the west.

215, the one with the parking lot. THE COURT: These are photographs of 235 or

theyre -- you were standing on 235? BY MR. FENLON: Q This is 215 and thats 235. I was standing in the entrance If you can follow the big square You can come down

I apologize.

driveway to 215.

which is building 215, rectangle.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. that west driveway. Right where it begins it turns Thats

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pretty much where I shot those photos.

alongside the -- just past the building, looking -THE COURT: These are pictures of 215. yes.

THE WITNESS: THE COURT:

Okay. I apologize again. I have been

THE WITNESS:

having trouble keeping track of which number which I flip them. THE COURT: So 215 is into the West Jersey

side, and thats where you were standing. MR. FENLON: To the easterly side, Your

The property with the large parking lot. THE COURT: Oh. If I may, heres the parking

THE WITNESS:

lot, thats the area that youre seeing the photos of the flooding. THE COURT: Okay. I was standing right in here.

THE WITNESS: THE COURT:

And that was -Thats still -Thats 215? Okay. Thats 215.

THE WITNESS: THE COURT:

Thats 235.

THE WITNESS: THE COURT: supposed to be.

Thats 215?

Thats where building B is

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FENLON: Correct, Your Honor. Thats

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this area of the property on the concept plan, P-63A. With that clarification, Your Honor, Id like to move these exhibits into evidence. 172, and 173. MR. EISDORFER: Your Honor, with that Exhibits 171,

clarification has foreseen and -- and dealt with the objection I was about to make. THE COURT: I have no objection.

So 172, one, two, and -- 171,

172, and 173 in evidence. MR. FENLON: Okay, Your Honor. And I just

have two more photographs to show Mr. Marsden and Im completed with my direct. BY MR. FENLON: Q These are two additional photos that you took

on -- well, Ill ask him the questions, Your Honor. MR. FENLON: We didnt have -- Your Honor, Each of

but theres a copy of all the 121 photographs.

them are designated in the corner where the exhibit under P -THE COURT: MR. FENLON: This is 121? 121. The previously marked

photos with the 121 -- that were in the exhibit binders. THE COURT: So these are new ones.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 areas. MR. FENLON: THE COURT: BY MR. FENLON: Q These are new ones. Okay.

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Now, Mr. Marsden, Im going to show you what

has been previously marked as exhibit 121E and 121G, and Im going to ask you if you can identify those exhibits? A Yes, I took those photographs. This was the

December 9th, 2009. Q Okay. And can you describe first what

exhibit D-121E, can you describe what that photograph depicts and why you took the picture? A I took the picture to -- I took the picture to

show that rectangular depressions were retaining water. Theyre the depressions I earlier testified to that appear between the two properties, that go down alongside the entrance road to the westerly entrance road to building 215. Photograph E shows the two lower depression And you can see theres a slight ridge between Thats

the two and the water wasnt going over that. that picture.

The other picture is the depression area thats closest to Birchwood Avenue. That has more

water in it, it was a deeper depression, and it shows

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. MR. FENLON: Your Honor, at this time the there is standing water that occurs on that -- that location. Q

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And do these two photographs, exhibit D-121E

and 121G accurately depict the conditions you observed when you took those photographs on December 9th, 2009? A Yes. MR. FENLON: Your Honor, I would request that

these two exhibits, 121E and 121G, be admitted into evidence. MR. EISDORFER: I have no objection, Your

township has no more questions for Mr. Marsden. THE COURT: Okay. So just so were clear, we

have 171, 172, 173 in evidence, 121A, C, D, I, J, M, and P, 121E and G in evidence, and -MR. FENLON: THE COURT: theres no objection. MR. EISDORFER: THE COURT: (Pause) CROSS-EXAMINATION BY MR. EISDORFER: Q Mr. Marsden, I want to just understand where So Im going to ask you Thats correct, Your Honor. Thats it for today. I guess thats it. Right? And

Thank you.

these photographs were taken.

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I was standing actually at that time in the

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to step down and look at the photographs and show us where on this map these photographs that are marked as D-121A to P were taken? A Give them to me one at a time and Ill -Q Okay. So there is D-121A in evidence. Show

us where you were standing. A I was standing right in this area taking the

photograph in this area. Q So you were looking -- looking west toward Is that correct?

the flood way. A

Thats correct. Q Okay. Let me show you whats been marked as

D-121C in evidence and ask you where you were standing?

street, probably around here, looking down the street into the flooding. Q Okay. And so can you point out for us where

-- where you were standing on the street? A Right here. Q of you. A Now there appears to be a dry area in front Is that correct? This -- is a crown in the road. You see

Yeah.

how the water crowns like that?

So it pretty much at

that part of this the water was pretty much in this --

Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A A this area. Q Okay. I show you the exhibit -- the photo

109

weve marked as D-121D in evidence, and ask you where you were standing? A I was standing right, again, in that sidewalk area

where I took that first one we just talked about. Q Mm-hmm.

But this time Im looking up into the Verizon The sign was there, the submerged

parking lot.

driveway standing off to the left of that sign. Q Mm-hmm. So youre standing here and looking

across the street into the floodway? A Yeah, right into the flood -- floodway. Q Now you indicated that this is upstream?

Thats correct. Q And so the water flows upstream onto

Birchwood Avenue? A Yes. Q And continues onto the site?

Correct. Q Yes. Q Now in general, does the water on Birchwood Off the plaintiff site From upstream.

Avenue come from off the site? here?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A A

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No, the majority of the flood waters because the

site is only 16 acres and part of its wetlands down here. This water thats coming from here, the majority

comes from the 242 acres that is above that. Q Okay. So its not this site thats bringing

the waters onto Birchwood Avenue? A No. Q No. Q Okay. Let me show you what weve marked as No.

D-121D in evidence and ask you where you were standing. A I just did that. Q Sorry. You are quite right.

Let me show you D-121I and ask you where you were standing? A That was back in here. To the west, at this lower

parking lot. Q Okay. So youre standing --

Right in -Q -- on the driveway, right next to the --

Right where it starts to turn you can see the

island here in the photograph. Q Okay. So youre standing roughly right next

to the roadway. A Right in the roadway.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q

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Right there, right next to the solid -- and

youre looking west into the floodway. A Thats correct. Q Okay. Let me show you D-121J in evidence and

ask you where you were standing? A Basically, I was standing in the same location

looking up the driveway, showing the water thats in this area. Actually, you can see the contour lines of Thats why at that

the 76, 76 represented high point. time its out of the water. lower. Q

It drops in this area

So you can see that in the photograph. So the area where -- where the water has

occurred, youve shown -- youve show this is -- this is -- in the dark blue area in the floodway. looking north towards the floodway. A Correct. Q Let me show you D-121M in evidence and ask Youre

you where you were standing. A These -- the higher grass areas, the pictures -76 is a little over now. This is

these are all here.

the area that was -- water, in the tree areas. Q Where were you standing?

From the looks of that, I was probably standing on

the edge of the driveway taking a shot to the side of that. That area.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A Q Okay.

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So youre standing approximately here

on the driveway. A Correct. Q And looking north. And you see the driveway --

Thats correct. Q So what --

So looking over -- taking the shot this way. Q So you can see the Verizon parking lot in the

background. A Thats right. Q Birchwood Avenue and this part of the site.

Thats correct. Q Thats correct. So youre looking north into

the floodway. A Correct. Q And, finally, let me show you D-121P, and ask

you where you were standing? A Pretty much in the same location, but I took a

shot in this direction that I -- you see the building face on the photo. You can see the water that came up

beyond that point before it got dry, and you can see the water that was across -- front of the building. Q correct? A Actually, a little further north. So youre standing just about here. Is that

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Yeah. Q Okay. And youre looking west into the Right there?

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floodway and at the small office building. A Thats correct. Q Okay. Thank you.

(Pause) MR. EISDORFER: Your Honor, let the record

show that Ive been asking the witness to locate themself in relationship to P-39A which is the flood hazard area map which is marked in light blue and dark blue. THE COURT: appreciate it. BY MR. EISDORFER: Q I put up P-10, the wetlands map. And what I show you Thank you. It was helpful; I

Id like you to do is once again step down.

D-172 and -- and tell us where you were standing when you took D-172 in relationship to P-10C. A If you look at D-172, you see I was standing in

this area taking a photograph in this direction of the first -- the first island in. You can see the yellow So it

light -- thats the direction I was shooting in. pans out over this area. Q And now there are trees in this photo.

Where

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A back? A were those trees? A Where are those trees?

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Those trees are in the existing islands that occur

in the parking lot that delineate the separation of the parking stalls. Q And how about the trees all the way in the

Its the same thing, you have island delineations,

so you put your parking up against it. Q But they are green trees?

The dark green trees. Q Yes. Thats, if

No, thats in -- thats in the back.

you look in this direction -- and you follow this all the way through here, youre looking into this forested area. Q Okay. So one can see the entire extent of Is that correct?

the parking lot. A Almost. Q Okay.

So now I see there are dry spots, and

are those dry spots up here at the northern end of the parking lot? A Yeah, theres dry spots up here because the grade

is higher according to your survey, and theres dry spots down there because it goes up and down, up and down.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A Q Okay. So there are -- theres a wet area.

115

You point it out.

Instead of my doing it, you do it.

Theres a wet area up here? A This -- this, basically, is the wet area. In

order to drain -- you had to raise the parking lot to get the water to go down. this direction. The high point of the parking lot is about probably down here, according to -- survey information. And then the rest of this water would drain to this lower system. The one that was pocketing up here when The same thing happened in

I took the picture. Q And you can see that theres a dry area. A

In the high end. Q Down at the lower -- the lower --

You can see water down there because I -- way down You may not be able to see it. But

there is a low.

theres a dark line across the curb. difficult to see in that photograph. deeper into the site. Q Theres a dry area here?

That may be I didnt go any

Yeah, theres a dry area -- in the parking lot. Q And this area would be drained by these

inlets here? A This water would go into there and fill up the

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A you? A pond as it did and then spill out. Q Okay. Let me ask you to look at D-173.

116

Once

again, tell us where you were standing. A I was standing back a little further to try to get You can see the island now more

the easterly side. prevalent.

I was probably standing shooting out in

this direction. Q We can see all the way down to the lower

right hand corner of the parking lot in the picture. A I really -- I recall cant. I mean, I see the

lights in the third island which is here, but you cant depict whats behind the road in that place. Q Well, you can see the trees back here, cant

Show the judge. Im sorry. The third island shows the lighting What the counsel is asking is can I I can see the

that was there.

see all the way down in the corner.

forested area, but I cant see the pavement back there with this photo. Q What is right in the middle of the picture?

You mean talking about this? Q All the way down here. What is that?

Those are the same street lights that are on the

islands. Q So --

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A A A A A

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There would be a street light here, possibly here,

and down there. Q Okay. So you could see all the way --

You could see all the way to this side. Q All the way to that side.

Correct. Q Yeah. Q And theres a dry area? And that depicts the same dry area. All the way down there.

No, not down there, up here. Q Okay. And this dry area would be draining

into these inlets. A Thats correct. Q You may resume the stand.

Thank you. Q Now let me understand. Its your -- its

your -(Tape 196-10 concludes; Tape 197-10 begins) -- as a detention system. Thats correct. Q And not -- operates as a drainage system. Is that correct?

Simply -- that this simply doesnt move the water down into the creek. A Its intended to hold the water.

Thats correct. Q And let me understand how the drainage system

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would work. So when -- when its going to rain, one

118

goes down here, closes these valves to retain the water? A No, those valves are for regulating the flow of They were probably set at some level. The

the water.

water goes down to the piping system, through an 18inch pipe, our surveys found, into that first open chamber which exits a 12-inch pipe which is a lot smaller. That in itself has the storage backup because

an 18-inch flow cannot effectively get into a 12-inch pipe unless it starts backing up and being stored. The -- that was put in at that time was about to regulate that 12-inch pipe. That design was a

reduction in the 12-inch pipe as a regulated flow. Water still flowed through the pipe but -- valve restriction. every time. Im sure it wasnt set to be dealt with It was automatically set. It could be set

there because smaller pipe requirement requires something less than a 12 and it had a gate valve there and you can open it up and maintain it better by blowing the debris through it once its open wide, and it would be easier to get clean easier. But the gates,

in my opinion, arent regulated -- didnt stop it, it wasnt intended to stop the flow. It was just intended

to reduce the outflow to meet what the precondition of

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A the site was. Q

119

Now and the opinion that these gates were not

intended to protect the parking lot from flow back from the ditch? A Thats correct because if you look at your The 100-

previous map it had the 100-year flood plain.

year flood plain doesnt go into that parking lot. Q Now you have -- you have conjecture, am I

correct, that there was a conversation when this parking lot was constructed. A Is that correct?

Conjecture that there was a conversation. Q That resulted in this design?

Im not sure -Q You said someone said, lets do this, lets

do that. A Oh, I was being hypothetical to defining what the

design was. Q So --

My observations are strictly observations and what

you see there. Q So all that stuff -- they said this and they

said that, thats imaginary? A The discussion that they said this and they said What I

that, I dont recall where that came into play.

was describing is is that a detention system done in

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the 70s at that time could be done very like this system. Q

120

Now to confirm that, did you go back and look

at the building plans? A I dont have the building plans. I looked for

them, I couldnt find building plans for this site. Q Your conjecture, maybe this came from some Did you go back and look at --

county requirement. A

I asked the county -Q Okay. Did you go back to look at the site

plan approval by county? A No. Q Now in terms of retentional water, one The opposite extreme is a

extreme is a paved surface. forested woodland, isnt it? A Thats correct. Q

And in between there are other things in

there, ponds and meadows and stuff like that. A Thats correct. Q Now its your definite opinion that -- that

the detention system here is so effective that it functions as if this was a forested woodland? A What I refer to when I do forested woodland is DEP

-- you cannot define what was out there and it was a prior to condition. You assume its a forested

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this? A A A A condition.

121

The hydraulics were not calculated because

theres not enough information to determine the actual storage ability of that system. So I could not say

whether it truly is forested or its -- wouldnt be -be worse for you, it would be grass. Q Okay. So you dont know how effectively this

functions as a detention system. A Well, as a detention system I can see that it has Have I

a tremendous amount of storage potential, yes. seen it?

Only in the photographs you see of what Ive

seen stored. Q No. Q So your magnitudes are just impressionistic? Have you done any calculations?

Well, with observation, based upon experiences and

other science. Q science. A Other sites. Q Other sites. Well, Im not sure what you mean by other

Sites that I have been involved in. Q Are there other sites being -- that are like

Well, theres other sites I have designed that are

similar in parking -- storage and parking lots, yes.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 site? A Other than the latest plans, it showed profile A site. A Well, I had done -- my survey team had done site. A Not for this site. Q You havent done any measurements of this Q

122

But you havent done any calculation for this

measurements for this site for the storm sewer, yeah. Q Well, did they do measurements of how much

water was involved? A For volume, no. Q No. You dont know how much volume.

No, but I do know that parking lots can be full of

water. Q Now is it your opinion that theres storage

under the parking lot? A That I dont know. Q And have you seen any -- all youve seen is Is that correct?

conceptual plan. A

Yeah, thats correct. Q So you havent seen any engineering on this

showing storage under the buildings. Q When you rendered those opinions, when you

rendered the opinions that you previously testified to,

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A all you had seen was concept plans. A Thats correct. Q So you hadnt see any engineer plans?

123 Is that correct?

As far as I knew there were no engineer plans. Q And you hadnt seen any grading plans?

Grading? Q No. Q No. So but you were able to form an opinion Isnt that Yeah.

that its impossible to engineer the site. correct? A Well, based upon my experience, I am a

professional surveyor, I can go out into a site and see which way the ground pitches, I can tell where theres pockets and theres holes. water stands. Photographs show where

Going out to the site during storm

events and seeing water -- where water lays, I get a good feel for what goes on on a site. Q Well, you didnt answer my question. You

formed an opinion that it would be impossible to engineer the site to conform to DEP requirements. Isnt that -- wasnt that your opinion? A I didnt -- I dont think I wouldve said

impossible. Q Unfeasible.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A A Yeah, its unfeasible. Q Unfeasible. It cant be done.

124

It would be unfeasible based upon the information I dont know that structural monies are

I had.

available to do the job at the phase it was done in. So I couldnt tell you. Q expensive? A Thats probably -Q Okay. Oh, so unfeasible meant it would be too

Based upon my experience. Q Now did you know how much the cost would be?

Not at all. Q Not at all. So youve determined it was

unfeasible without knowing anything about the costs? A Well, no. I have other sites I evaluated and done

site evaluations where weve had restrictions on them, where the -- extremely confined. In my opinion, based

upon those evaluations, where we did and where we didnt develop, when I was working for Negarry and Associates, a subsidiary of K. Hubnany, thats what I based my experience on. Youve got a very small upland Thats going to

site that has serious concerns in it.

cost more money than a standard development. Q Well, incidentally, when you were with

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A

125

Negarry, were you involved in any mid-rise structures? A Mid-rise structures with Negarry, no. Q No. Any sites that had structured parking?

Structured parking, not with Negarry, but I have

had it in the Township of Cranford. Q Now let me show you -- let me show you the That

ordinance that you -- that weve marked as D-169. was an ordinance that you prepared, isnt it? A Thats correct. Q Okay.

And let me ask you to read on Page 3

the definition of impervious surface. A Impervious surface means a surface that has been

covered with a land material so that it is highly resistant to infiltration by water. Q Okay. And thats -- you took that from the

DEP regulations. A Pretty much, yes. Q Okay. Now have -- have you determined what

the impervious coverage is under that definition for the existing uses? A Well, no. I did the comparison of an earlier

rendition of your concept plan for what was given. Q Did you --

But I didnt do an analysis of all the impervious

cover on the site.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A had. Q And what was that? Q You didnt do a calculation of what the

126

existing -A What an existing is? Q No. No.

You previously testified that this is Did you do a calculation of

the September 2008 plan.

the impervious coverage for this plan using this definition? A I did the proposed and checked the proposed. Q And what was that?

That came very close to what the design engineer

I dont remember the number. Q Okay. So and you made a determination that

this number was greater than this number, using the definition in your ordinance? A Yes. Q How did you do that since you didnt know

what this number was? A I used a number that was given to me from the He has an existing

contractor, from the developer. conditions there. conditions. Q

All I did was check the proposed

And his existing conditions says this ones

approximately 22,000?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A A little less. Thats right. I dont know the

127

number. Q Okay. Q And this ones approximately 212,000. Yes. That would be less.

So this one is actually less than --

Thats correct. Q Now on your ordinance, changing the

impervious coverage under that definition is a threshold condition, isnt it? A A threshold condition? Q Yes, a condition that triggers coverage of

your ordinance? A Yes. Q Increase of 1,000 feet and 1,000 square feet

of impervious coverage is a special condition. A Okay. Q Yes. Okay. I dont have it memorized. So under that threshold condition

would this be regulated by your ordinance? A Well, Im saying yes because later on in the

ordinance it says that you have to evaluate all the hydraulic conditions of the existing site. And thats

where I come in to discussing the storm water detention that is in that existing parking lot. Q So but for the threshold condition one wants

that impervious coverage as defined in your ordinance.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 used. A

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Impervious coverage as defined in detail measuring

it relates to the hydraulic condition. Q again. A Well, let me ask you to read the definition Read the definition again.

The definition of impervious cover defines the

element of impervious material -Q again. A Impervious cover means a surface that has been No, it says -- heres what it is. Read it

covered with a layer of material so that it is highly resistant to infiltration by water. driveway, a parking lot. Q surface. A So the area of that is just the area of that Is that correct? Its defined as a

Thats impervious cover. Q Uh-huh. You had a different definition. You

testified to a different definition, one thats not in the ordinance. A Is that correct?

No, its in the ordinance. Q Well, show me the definition that -- that you Heres the definition section. Show me the

place where the definition -A It will not be in the definition section. Its in Its

the section how you develop the impervious cover.

in section 135 -- calculation of storm water runoff and

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A groundwater recharge.

129

That supposes the calculation,

the coefficient of recharge based upon the criteria land, impervious cover, and in there, as we read before, it talks about verifying that the hydraulic condition has existed on the site. Q For five years.

For five years. Q Right. Has the building existed on the site

for five years? A Yes. Q Has this building existed on the site for

five years? A The other one next to it? Q Yes. Q So all these conditions have existed on the Is that correct? Yes.

site for five years. A Yes. Q

So theyre --

For more than five years. Q Its more than five. So theyre all factors

that one would take into account. Now have you -- based on your definition of impervious cover, have you done a calculation as to what the impervious cover is?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A No. Q No. So you cant tell us exactly what the

130

magnitude of the impervious coverage is, can you? A The information wasnt available to me to do that

and I didnt do that. Q Okay.

What I did is observe that is a parking lot that It had a detention system in it as And you have to ask yourself why was

can retain water. it exists today. it put there.

It was put there to mitigate what that

parking lot impervious cover that was placed there lost in forest cover. Meaning that if it was made over

woods, that parking lot was put there and then the detention system was put in place so that the runoff from that lot would not be any different than the existing condition of that lot. Q Now that -- your conjecture. You dont know

how it got designed. A Well, I can look at it and say theres water in

the parking lot and theres restrictions in the outflow which is very typical and common to a detention system. Q But youre conjecturing as to the mental Is that

processes of the people who designed it. correct? A You werent there.

No, I wasnt there.

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A Q

131

Now weve had testimony about what you called

the Tax Day storm. A Yes. Q event? A April 15, 16, 2007 was 100-year storm event in the Was that approximately a 100 year flood

north end of town, and about an 80-year storm event in the south of the town. Q Yes. Q Okay. So the conditions we observed then Is this the north of the town?

would be approximately what one would see in a 100 storm event. A Is that correct?

For this area? Q Yeah.

Directly for this tributary, it would be close.

The tributaries act different depending on where the total amount of rainfall falls. The Rahway River was This storm was

what I was determining that flood from.

an immediate storm, meaning it was immediately over our area. The total, we had over I think 9.7 inches of At the time

rain that fell in the immediate area.

those tributaries filled up first and then the Rahway River crested at the 100-year storm, later. Q Now if the system were -- you testified that

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A the plaintiffs here are going to have to get a flood hazard area permit. A Correct. Q And a flood hazard permit, DEP is going to Is that correct?

132

review the storm water management. A Yes, they will. Q Yes. Q And DEP wont approve it unless it does not Is that correct?

increase the amount or rate of flow of water off the property? A Thats correct. Q And thats correct. So if its compliant

with -- if its compliant with DEP standards, its not going to increase the rate or the amount of water that flows off the property downstream. A Thats correct. Q Thats correct. Now youve opined that based Is that correct?

on your review it would be impossible to meet that standard. A Is that correct?

Well, it would be very difficult to meet the

standard because youre having a more restrictive upland buildable area based upon your flood plain and your floodway. already there. And the parking lot storage thats

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this. A No, no, not at this point. I wouldnt do that Yeah. Can I say it cant be done?

133 Im an engineer. Is

It could be done if theres a lot of money. Or a doable site? Based upon my

it manageable?

experience with K. Hubnany, this site would be something we would drop. Q Okay. So youre saying if youre willing to In that sense --

spend the money you could do it. A Yes. Q be met. It is a doable site.

Those standards could

Now youve spoken about groundwater recharge. Have you done any calculations as to groundwater recharge? A No. Q No. Now have you looked at threatened and

endangered species on this site? A Have I looked at them, have I done the studies for

them? Q Well, have you looked at DEP? DEP records on

anyway.

I would hire a consultant at the time if it

would be needed. Q Have you seen any, any threatened or

endangered species on this site?

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. A A A I havent, no. Q No. Have you seen any threatened or

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endangered species on the site that you manage across the street? A I have not done any studies on either sites across

the street or downstream. Q You havent seen any.

Havent seen any. Q You havent had any reports of any?

Not that I recall in my six years there. Q I believe you testified, correct me if Im

wrong, you testified that the sanitary sewer systems that would be served by -- that would serve this property all the way downstream, down flow, to -A To Roselle Park. Q -- to Roselle Park, its not something that

you had problems with thus far. A Thats correct. Q All right. Okay. I have no further questions

MR. EISDORFER: of this witness. THE COURT:

Thank you.

Anything from you? MR. EISDORFER: Your Honor, I have one more

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Marsden - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A THE COURT: Okay.

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MR. EISDORFER: BY MR. EISDORFER: Q

I do have one more question.

All the opinions you have -- you have

rendered have been on the basis of the September 22nd, the concept plan. A Is that correct?

That is correct. Q Okay.

I had to review with other very recently. MR. EISDORFER: MR. FENLON: I have no further questions.

I have no questions on redirect,

Your Honor, unless the master has any questions. MS. MC KENZIE: I have a couple, Your Honor,

and Ill try not to go over -- all around. CROSS-EXAMINATION BY MS. MC KENZIE: Q Mr. Marsden, do you recall ever being on the

site and observing whether there was any flooding in areas that were basically outside of the floodway -and Im not talking about detention or the storms -the storm water sitting there, but any flooding that wouldve come sort of as a backup in this direction -A Coming back -Q -- outside of the area generally delineated

as the floodway and flood hazard area? A Were just talking about specifically on this

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A site, though. Q Okay. Q Yes, on this site. No. Okay.

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Not as a through flow from the upstream coming

through, no. Q Okay. And second, have you ever had any

reports of the building on -- to 215 having had flooding problems within the building? A I have had no reports and I havent asked, but,

you know, public works, fire department, I dont know. Q Okay. Have you observed any evidence of

flood levels around the building on either side? A Yeah, there are flood stains on that building, on

the sidewalls. Q So do you know if this building was

constructed as a flood proofed building? A No, I dont believe it is and I dont know,

actually. Q So that its conceivable that that building

actually displaces a certain amount of flood water that might otherwise be occupying the floodway. A Even when it was built at that time it probably

didnt incorporate regulations that would require that. Q Okay. That leads to my next question

Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A actually but it concerns storm water management regulations.

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Do you know what storm water management

regulations would have been in effect in the 1970s when these buildings were constructed? A In the 70s I believe what we call the 20 percent We establish the floodway line, the stream If

rule.

encroachment line which is what we called it then.

you see the information on that map, it says floodway limit. Q Yes.

What we were able -- what we were required to do

was hypothetically fill in until we got to a point where the water would not raise more than two-tenths of a foot, either upstream or downstream for impact to downstream or upstream residents. Q But that would affect -- that would be flood

plain regulations. A That the flood hazard regulations -Q Right.

No, -Q What about storm water management

regulations? A Well, storm water management regulations, we were

looking to store the difference in the runoff so that not more water would leave the site. That was the

Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A intent.

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There were no real water quality regulations

that I recall back then. Q It was just a question of installing the --

But its strictly storm water runoff, yeah. Q Okay. Thank you.

Let me ask you cause I think Mr. Eisdorfer covered some of the questions that I wanted to ask, although I guess one question is do you know how much maintenance is required to make certain that the storm water management structures on this property function as they were designed, hypothetically designed to function. I guess we dont know exactly how they were

designed to function. A We write requests for other projects that have

measures like this and we suggest that after a major storm event they go in and check their structures and clean them out and maintain them. structures that go into the river. would require to do. We do that to our So thats what we No, I

Is it monitored as much?

wish it was monitored more. Q You were present at the on-site when we

opened up one of the structures -A Oh yes. Q Oh yes.

-- and noticed leaves that have accumulated -

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A Through the duration. Q -- in the structures.

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Thats correct. Q Would you say that the presence of those

leaves would impair the ability of that drainage system or storm water detention system to function as originally intended, whatever that intention was? A It could to some degree, yes. But if theres

pressures, I dont know whether it was compacted that bad. We have inlets that fill up quickly in town. If

we get a flash rain its sucked right out. Q From an overall engineering and planning

perspective, I guess what Im trying to understand is your overall position about the development of this property. I noticed -- first of all, let me just go back up for a second. I notice in your report which

was I think D-98, you had indicated that the other two properties that function as major detention areas in this particular drainage system, a larger regional drainage system, are both publicly owned. A The upstream, a large part of it is publicly

owned, but Verizon owns whats pretty much directly across the street from building 215. Q Okay. But partly -- there is a little

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 portion thats privately owned. A But that is -- thats designated wetlands.

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That

wont be -- that wont be touched. Q So this is informally operated to provide a

certain amount of detention but it was never -- do you know if it was designed for that purpose as part of a public works project in -A Oh no, its not part of a public works project.

Its just it was there because thats where the wetlands were. We have other sites throughout the town Most of them we now own

that have pockets like this.

and theyre green acres properties that we pretty much preserve to try to keep that way. Q Okay. Assuming this property is not going to

be green acres but is going to have some development on it, what would your recommendation be in terms of the way the development should occur so that you can maintain the sites hydraulics. And I want to back up

into how you might calculate what the hydraulics of the site would be, but so that you can maintain that kind of hydraulic condition that you were hoping to maintain here. A Well, Im not the design engineer. As I stressed

throughout the day and the morning is that Im concerned that this site would not incorporate whats

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being stored there now, and then look at the impervious cover as though there is no actual detention. So when

you assume they develop it that way, theres a volume of water that was not accounted for. And that would be

basically the displacement or that would be running directly downstream adding more congestion to our system. Incorporating that in storm water detention stored somewhere so that that added detention facility that was in the parking lot when you tore it out is recovered and kept on the site in some other fashion would probably satisfy DEP and would satisfy myself, as long as you can show that theres no increase in water running off that site and theres no displacement of water that you crunch that drainage area. no problems with it. Q Is there a way to calculate or to measure if Then I have

you cant calculate it, is there a way to measure the amount of -- or what the hydraulic impact is of the depressions and drainage structures and drainage system on that site? Is there a way to go out in the storm,

for example, in 100-year storm, and actually measure the amount of water, the rate of the -- on that site? A Well, I do actually when we get our 2007 100-year

storm, part of my job with my staff is to go around and

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the gates? A tag where the limits of the flood occurred. That

142 and

getting an elevations reading our gage stations help us to determine how much water, you know, was pushed to the flood limits and how -- the flood plain areas. This here, the area thats open and not in blue, is considered the uplands area. Q Mm-hmm.

That wouldnt be impacted other than an

observation, like I said when you look at the parking lot, found either through the gates that are maybe not functioning properly but, you know, we still saw were functioning. And the restriction outflow pipes show That But you

that water is being stored in the parking lot. can be measured based upon survey information.

have to assume that the entire parking lot was a detention facility if the pipes were spilled over. Do we know what the regulated outflow is at No. I wish I had the plan to show, well

you have to make the gates halfway and you get comparable to a six-inch pipe. And thats what they

are going to say, other than maintenance. Professionals whove worked in DEP, not in DEP but work doing projects for DEP, there was always a concern about our outflow pipes being too small, being difficult to maintain because if you get a small

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A outflow pipe, itll clog up quicker and itll defeat

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the purpose, over store, and they wouldnt be terribly surprised or unhappy about that. But what we have done

in the plan, we tried regulating the flow through different means. Through like gates or weirs. In this

case, some code them through and say, well, you know, if we put the gate in there we can always open it up and clean it out and maintain it because now you have a flush pipe that runs through it. to its halfway level. That information is not available. know it exists. Q Do you even know -- Im sorry. I didnt mean But I And then shut it back

to interrupt you. A But I know that that structure, the chamber thats

right before the gate valve has a reduced pipe size. Big pipe comes in, small pipe goes out. They wouldnt

have done that if they werent using it for anything else. Q That wouldnt have been done. Do you know who manages the gate valve? I imagine the residents -- the operation

No clue.

of the site, you know, the site managers super intended -- would manage the gate valve when he needs to clean the site or clean the system out. Q Could you go out in a storm and actually

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 measure whats coming out of that 12-inch pipe? A

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From the looks of the wetlands and the flood plain

limit line there I bet you can with a fluid gate or something similar to what we mention sanitary sewer with, maybe. Q Would that give you the ability to address

the difference between the -- whats actually happening hydraulically on the site and what would be calculated to happen just based on impervious coverage? A What youre assuming here is that the gates are

set to where they were designed to be set, and the answer to that would be yes. actual -- the gate -Q But Im talking about -- well, all right, I But the gate -- the

guess theres a question about what was it designed to do and how is it functioning today. A What was it designed it do and how is it Correct.

functioning today. Q

But if youre looking at not making it worse

than its functioning today, would it be possible to go out and make some measurements of whats actually coming out of those pipes today? A Yes, -Q And prepare that in terms of the rate. I

mean, you could do it over --

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A A A You could do it over a sanitary sewer now. Q

145

And then compare that to what -- and if your

assumptions based on, you know, just the impervious coverage would yield. engineer the site. A So that might be a way to

Youd start with that and -You would start with that

Thats the good point.

information. Q And then figure out how to --

Because it may not -- figure out why and how the

system did work. Q And then back into the plan.

You would have to back into a plan that showed

what the storage wouldve been there. Q Where you could try to match that.

Right. Q All right. So it is achievable, but you

dont have all the information -A Thats right, and it gives you the hypothetical

that and where its set now is what it functioned as. You know. Those gates, whether those steering wheel

parts were locked at the time in the position, whether they were vandalized or moved, I dont know. Q Have you ever tried moving them?

Theyre broke and theyre bent. Q Okay. So they dont move today.

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A They dont move today, no. Q Okay. So we could assume -- we could at

146

least for the purposes of evaluating how the site is functioning today in its pre-development condition today -A That its okay, today. Q -- and compare it to the theoretical rate of

runoff from just using the impervious coverage calculation. We could actually figure out how to

engineer the site and back into -A And the storage. Q -- at least not making it worse.

And the storage that goes into that parking lot,

yes, thats due to the gate valve regulation. Q Exactly. So somehow, I mean, if you just

keep that water back at the same rate, you could actually achieve the same -A And thats -- thats the key to saying how was And my -- I have to fall back on what I

this designed.

see and the size and the way the structure -- structure I call it, the way the parking lot was built. parking lots. We have

We dont want to flood an entire parking Okay.

lot if we dont have to when we do that. Q I understand.

What we do is we flood it to the limit where it

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A

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would have to be to meet the criteria of holding back that certain volume of water that is created by the indifference in the impervious cover. spillover. Now if youre asking me if I designed this site, I would say, well the natural terrain is for this water to drain from the building -Q Mm-hmm. I would Then wed have a

-- down through the parking lot and out.

regulate that outflow at that point so that when the parking lot fills up to the limit the rest of the water would spill out. Now thats when I looked at the survey plan and I said okay, where is that point on this plan. when I looked it -Q What you said is it comes up to a certain So

point and then goes out that way. A It comes out a certain point. It seems to come

out the driveways first, and then slightly thereafter in the lower corner. Q point. A Well, it reaches a point where I would say -Q And then it goes wherever it can. That -

It reaches a level point, I guess, at some

And if I would design it so it didnt have to be

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A that large, I would design it so it would have more surface gravity flow and the outlet point somewhere else or it wouldnt be a completely flooded parking lot. Q

148

Do you think that is something that could be

done in a manner obviously subject to a lot of engineering, Im not saying theyve gotten to that point yet, is that something that you think could be done in a way that you would feel comfortable with? A Well, you could -- you could measure the total

storage of the parking lot easily enough because you know the 100-year -- the spillover elevation occurs -when I looked at the survey, I was finding -- I dont remember the number, but I was finding a number that would be the highest number this parking lot would fill up with water before it spills over. Q Mm-hmm.

That would be your cutoff point, the top of the And then the rest of it you would calculate And that way

flood.

what is underneath that, the parking lot.

you can determine the total volume of water that was stored in that parking lot. Q Thats already being stored.

Thats already being stored. Q Okay.

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A And if that was mitigated, then

149 you would have no

problem, in my opinion, and/or DEP, of, you know, letting this project go through if it meets that criteria. Q Okay. Thank you. That is my question on

that subject.

I now want to go to anther subject and

that is the sewer issue. A Okay. Q I understand that you had testified that Does the Township of Cranford

there are INI problems.

have a -- an off track improvement section of their Land Development Ordinance? A Good question. I dont know the answer to it

right now. Q Do you think you could, like, get one?

Because -A I mean, I dont -- I have not had the privilege of Other communities

any projects to implementing that.

have that off-site contribution and its in the -- Im sure its something thats practiced, but for me to say right now, do we have it in Cranford, I dont recall. Id have to look it up when the time comes to see what the options are. Q Are you aware that the municipal land use law

though authorizes municipalities to --

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A Yeah, okay. Q Okay. Yeah.

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Thats right. Q And in view of that, how would you handle --

how would you handle the determination that there were the need -- there was the need for certain improvements to correct infiltration -A Well, youd have to analyze the troubled areas. I

mean, theres ways, if the system has more of a pitch upstream and less of a pitch downstream, and then it equals out, you can change two sections of pipe to average that velocity, to improve it, that we analyzed. Q All right. Im still talking about INI. havent

Ill talk about that. A Oh, INI. Okay. Well, in INI, I mean, what were

doing now and I have a stimulus package request in for, is for lining, you know, piping system and abandoning another sanitary system and connecting it to a newer system. There are methods depending on where you are, what youre up against in your piping system. make this, you know, work better for you. Q Okay. So that is something that at the time You can

of site plan approval or preceding site plan approval

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could be looked into and then a proposal could be made by the developer and approved by council. A Thats right. And thats part of what the off-

site costs would keep adding to this site. Q Well, I -- thats a separate issue, but there

is a mechanism for protecting public -- the general welfare. A I mean too, ultimately yes. I mean, the ultimate

and the worse case scenario is that you replace the system with a harder piping system down into its terminus point, you know. Q Okay. Let me ask you another question on the When you were talking in your

velocity issue.

testimony about the fact that some of the sewer pipes had velocity of less than two cubic feet per second. A Yeah, two feet per second. Q Two feet per second.

Thats the velocity, yeah. Q When you -- Im not an engineer, so forgive

my misspeaking in terms of -A No, thats okay. Q -- the statistical aspect of it, when you --

when you stated that, were you talking about theoretical velocity based upon the design of the system or actual velocity based upon observations of

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A what was moving through the pipe? A Based upon their report that showed their

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observations that were actually -- by the pipe measurements what was flowing through there. remember the exact detail. reference it. Q the pipe. A The capacity of that piping system. The velocity But measuring the actual stuff going through I dont

I guess we have to

were in the pipe.

The velocities are not based on

actual stuff going through it; its with the half full calculations would be based upon the pipe size, the pipe -Q So youre talking about theoretical velocity.

Yeah, Im talking about -Q Okay. Because the reason for my question is

just that I know in West -- where I was a master there was an issue with one of the sites about the fact that the sewage didnt actually move very well through the pipes because this pipe system was designed for a lot more sewage than was actually flowing through it. I didnt know if in this neck of this woods where youre getting close to the perimeter of Cranford whether youve got a system that actually more volume would have a higher velocity. And

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Marsden - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Id have to go back to their report.

153 I dont

-- their report was based upon -- I feel like Im in -I was about to ask the engineer the question about where it came from. That chart was based upon, as I recall, based upon just the physical measurements of the pipe. Q Okay.

The flow capacity I do know that the pipes now This

have certain rate of flow that goes through it. development would double it.

But it would be beyond Thats the concern I

the limit of the design capacity. have.

When you talk about slopes that are flat, right off the bat, youre going to say they are the first ones youre going to want to look at. Q But it seems to me thats something that it

could be determined whether there is a design problem A Oh, it can be determined, yes. Q -- in the system once you determine what is

the actual amount of flow going through there now -A Actual going through the system, right. Q And what -- what is -- is that causing a

problem or is this a problem with the design of the system itself which needs to be corrected.

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Marsden - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A Well, its partial both.

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The design of the system Whether it settled

itself has those flat areas.

through time or it was a misconstruct. Q Mm-hmm.

The inflow infiltration issues are added to that

due to the age of the pipe and the fact that through the age of the pipe the friction factor along the pipe becomes more Ill say stiffer, grabs the water more and slows down the velocity more which slows down the particular matter which is what begins to cause our problems. Q Okay. MS. MC KENZIE: appreciate it. THE COURT: MR. FENLON: Anything else? Your Honor, I have a few more Okay. Thank you. I Understood.

questions stimulated by Ms. McKenzies questions. THE COURT: Sure.

RECROSS-EXAMINATION BY MR. EISDORFER: Q We talked about public works. Has Cranford

taken any -- any steps to mitigate the flooding through public works in -- in this drainage basin? A Well, mitigate the flooding wouldnt necessarily It would be a capital

be through public works.

Marsden - Recross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A this? A Not at this time. Q project. Q

155

It would have to be designed to do that. Okay. And has Cranford done anything like

Has Cranford entered into any negotiations

with Kenilworth to -A No. Q -- to do upstream detention, for example?

Right now were focused on another stream called

Orchard Brook which is a problem area for residents. Money is not available to even analyze this to that detail at this time. Q Has Cranford made any -- made any application

to the county for a capital project done by the county? A No. MR. EISDORFER: MR. FENLON: Your Honor. REDIRECT EXAMINATION BY MR. FENLON: Q Mr. Marsden, has the Township of Cranford, I have no further questions.

I have just a few questions,

during your tenure as engineer, undertaken any capital projects that were intended to mitigate or remedy flooding conditions outside of the Casino Brook drainage area? A Yes. Our focus are on our worst conditioned areas

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which is the areas basically the Rahway River where people flood, 280 people. We have constructed in my term a bypass system to the tune of about 2.1 million dollars to help get the flow that comes from Kenilworth just up --

just up the drainage basin, one area from that yellow, to get the water out of the system before the flood waters from the Rahway River come in. Weve also included a five million dollar pump station because in the area just upstream we have dikes. When the river starts to get high, the dikes

close, any water that comes from our immediate areas has nowhere to go. And it floods the homes up to seven So we had to spent

feet at times and flood basements.

close to 9.2 million dollars in doing storm water -storm water protective measures. And its ongoing.

We have another project where hopefully were going to get the rest of the easements on a tributary which has flooding of roadways and flooding. It

creates public safety from getting through the western end of town in a brook called Orchard Brook. When that

is done, the 100-year flood plain will be contained in that brook. Thats probably to the tune of $700,000.

They have done many projects in the past. Theyve created the brookside detention basin which is

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testimony. MR. EISDORFER: Herman in tomorrow? MR. FENLON: Not tomorrow, no. Okay. Okay. another tributary that was a major problem for them back in the 70s and 80s. Theyve had other bypass

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storm sewer systems theyve done to try to get the water that comes through from another town, getting it through our town without stopping when the river rises and backing up. This township and one of my major interests when I was here is because of what the flood plain measures and interest they have in solving their problems. MR. FENLON: Your Honor. THE COURT: Nothing else? Thank you for coming in. I have no further questions,

You can step down. THE WITNESS: MR. FENLON: witness today. here. THE COURT: MR. FENLON: Okay.

Thank you. Your Honor, we have no other

Tomorrow morning Mr. Slachetka will be

And we will continue his

So youre not bringing

MR. EISDORFER:

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Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: week, right? MR. FENLON: THE COURT: MR. FENLON: THE COURT: Continue Monday, yes. Yes. Continuing on Monday.

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And well be set with -- for next

Yes, absolutely. Okay. And we should be able to

go through till completion next week? MR. EISDORFER: Im a little unclear because

things are changing and I just need to understand whats being proposed about -MR. WOODWARD: What I said is that Mr.

Slachetka will be on tomorrow and hell continue Monday. I dont think well necessarily finish him

because we only have -THE COURT: The morning. I thought you just said to

MR. EISDORFER:

the judge Mr. Creelman was going to testify on Monday. MR. WOODWARD: will continue on Monday. Oh no no no no. Mr. Slachetka

We will have Mr. Kline on As respects Mr.

Tuesday, our traffic/parking expert.

Creelman, the fact is that I dont have any report from him, his people are still working, he has told me, as I represented before, that he expects to get me his report by Thursday of next week. Thursday of -- I

mean, his -- as I talked to him against today about

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Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this, he said, Look, he said we -- we got the

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documentation from Mr. Dipple and the methodology and so on and we have to -- we just dont take it and plug it into our computer, we have to check it and recreate it so that we can verify that what we are doing is accurate. So that takes a certain period of time. And

he told me that work he expected to have completed by Tuesday, and then he needs a couple of days to finish his report and get it to me. right now. So thats his schedule

And I have to rely upon his engineering This is what the man does for a

expertise, Your Honor. living. THE COURT:

Right.

So then you think hell

be able to testify on Thursday? MR. WOODWARD: I dont know that because if I

just get his report on Thursday and I need to talk with him and I need to give it to Mr. -- and then the other thing would be the way in which it would be done because my idea would be Mr. Dipple would go first and put in that report he had submitted. testify based on Mr. Dipples report. would testify based on that. MR. FENLON: I have a prior question. Before And then we would Mr. Creelman

we get to that, I had understood that Mr. Ferminick was

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Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testimony. MR. EISDORFER: MS. MC KENZIE: another one. UNIDENTIFIED: next Tuesday. MS. MC KENZIE: MR. WOODWARD: not call Mr. -THE COURT: You will not call him at all. Probably not. Oh, he is. Thats right. Kline. Marsden just testified. Right. as well. THE COURT: MR. FENLON: Yes. Werent there witnesses? on -- had to testify tomorrow because he was on vacation thereafter. MS. MC KENZIE:

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And theres another man too

Well, Mr. Marsden finished his

I thought there was

Mr. Klines available

So the likelihood is we will

MR. WOODWARD: THE COURT:

Okay. But right now were not

MR. WOODWARD: calling him tomorrow. MR. FENLON:

Thats definite. Okay. I need to know before Mr.

Hemkemian is coming in to present rebuttal testimony to that. If youre not putting him in, I will -MR. WOODWARD: MR. FENLON: I will advise you tomorrow. So the --

Okay.

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Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. EISDORFER: I took agree that once we

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have Mr. Creelmans report, the rational way to handle this is to have plaintiffs to present their testimony on this issue. compensation. The issue of flood hazard creating a And have Mr. Creelman testify in

response to that and then well see what happens thereafter. MS. MC KENZIE: motion day? THE COURT: Yes. So we will not be here. Your Honor, is next Friday a

MS. MC KENZIE: THE COURT:

Its not a motion day but I am

using it as a motion day because Im not going to be in on the 27th which is a motion day. motion day. MS. MC KENZIE: THE COURT: Okay. So Friday is out. So next Fridays a

So its out. So we have to go Monday Im trying to figure it out. Your Honor, if I get the

MS. MC KENZIE: through Thursday. Okay.

MR. WOODWARD:

report sooner than that, I will obviously distribute it immediately. But right now -I certainly dont want to, you

THE COURT:

know, pressure your witness to compromise your case, but if you could do that it would be appreciated.

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Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Dated: AUTOMATED TRANSCRIPTION SERVICES BY: Amy Toleno Amy Toleno 9/16/10 him. MR. WOODWARD:

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Believe me, Ive already told Thank you very much.

Hes under pressure enough. THE COURT: * Okay. * *

See you in the morning.

CERTIFICATION I, Amy Toleno, the assigned transcriber, do hereby certify the foregoing transcript of proceedings on Tape Number 195-10, from Index Number 001 to end, Tape Number 196-10, from Index Number 001 to end, and Tape Number 197-10, from Index Number 001 to end, is prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate non-compressed transcript of the proceedings as recorded.

__________________ A.O.C. #466

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