SUPERIOR COURT OF NEW JERSEY LAW DIVISION, CIVIL PART UNION COUNTY, NEW JERSEY DOCKET NUMBER: UNN-L-0140-08

A.D. NO.:___________________ LEHIGH ACQUISITION, ET AL, : Plaintiff, : : TRANSCRIPT vs. : : OF TOWNSHIP OF CRANFORD, : : TRIAL Defendant. : Place: Union County Courthouse Two Broad Street Elizabeth, New Jersey 07207 Date: BEFORE: HONORABLE LISA F. CHRYSTAL, J.S.C. TRANSCRIPT ORDERED BY: CARL R. WOODWARD, III, ESQ. (Carella, Byrne, Cecchi, Olstein, Brody & Agnello) APPEARANCES: STEPHEN M. EISDORFER, ESQ. (Hill Wallack LLP) Attorney for the Plaintiff CHARLES R. WOODWARD, ESQ. (Carella, Byrne, Cecchi, Olstein, Brody & Agnello) Attorney for the Defendant BRIAN FENLON, ESQ. (Carella, Byrne, Cecchi, Olstein, Brody & Agnello) Attorney for the Defendant ELIZABETH MCKENZIE (Special Master)
DARCEL D. HART AUTOMATED TRANSCRIPTION SERVICES P.O. Box 2230 Laurel Springs, New Jersey (856) 784-4276

August 18, 2010

2 I N D E X August 18, 2010 WITNESSES Mr. Klein Ms. Dolan Dr. Kinsey EXHIBITS D-108 D-112 D-112a D-157 D-176 D-177 D-178 P-34 P-39a P-63a P-66 P-76 P-77 P-78 P-79 P-80 Ms. McKenzies report Mr. Kleins report Revised Trip Generation Summary Survey of property NJ State Development/Redevelopment Plan Mr. Kleins Curriculum Vitae Ms. Dolans report July 2009 certification of Dr. Kinsey Plaintiff's drawing of property Plaintiffs concept plan State Plan Dolans Curriculum Vitae Dept. Of Community Affairs RSIS clarification Climate Change Workshop Final Report on Greening Newark Workshop Photo of various portions of West Windsor taken aerially Direct 4 64 78 Cross 32 75 118 Redirect 52 134 Ident. Evid. 9 8 17 28 137 7 32 31 31 Recross 63

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107 30 14 136 66 69 87 88 98

67 74

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: So, the next witness? Yes, Your Honor. Just before

MR. WOODWARD:

we call our parking expert, Mr. Klein, -THE COURT: Okay. -- a bit of housekeeping. At

MR. WOODWARD:

the beginning of the trial, we had sent the Judge a letter objecting to a late received report which we got from the plaintiff's traffic expert, Ms. Dolan. The

basis of our objection was that the report was received on the eve of trial. The plaintiffs -- the Township

had submitted their traffic report within -- parking report within ten days of receipt of the Special Masters report in January of this year, and our expert was deposed on February 2nd. a, a late filed report. We have had the opportunity to review Ms. Dolans report. And just for purposes of the record, We believe that that was

the Township will, subject to her being admitted as an expert by the Court, we will not be objecting to the consideration of her testimony. THE COURT: Oh good. Thank you. You're

withdrawing your objection? MR. WOODWARD: THE COURT: Correct.

So I dont have to rule on it? You dont have to rule on it.

MR. WOODWARD:

Klein - 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 your -MR. FENLON: THE COURT: MR. FENLON: THE COURT: MR. FENLON: to the stand. L E E K L E I N, DEFENDANTS WITNESS, SWORN THE OFFICER: THE WITNESS: Please state your full name. Lee, middle initial D as in Yes, Mr. Klein. -- your witness first. Yes. Okay. Very well. record. THE COURT: You just want to place it on the

Thank you very much, because I'm searching far And in this

and wide for your letter objection.

massive tsunami of paperwork, I'm having trouble locating it. housekeeping. So, that's a very welcome bit of Thank you. So, Mr. Eisdorfer? I believe it's -- I think

MR. EISDORFER:

we're on the, we're back to the defendants case. THE COURT: Oh. Okay. So you're calling

So the Township calls Lee Klein

Daniel, Klein, K-L-E-I-N. THE OFFICER: Thank you. You can be seated.

DIRECT EXAMINATION (VOIR DIRE) BY MR. FENLON: Q Good morning, Mr. Klein.

Good morning. Q Could you tell the Court where you're

Klein - 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 presently employed? A I'm presently the Traffic Group Manager at T&M

Associates, 11 Tindall Road, Middletown, New Jersey. Q And, could you briefly describe your

educational history? A I have a Bachelor of Science in Civil Engineering

from Rutgers University, and I am a licensed professional Engineer in the State of New Jersey as well as Pennsylvania, New York, and Delaware. I am

also a nationally certified Professional Traffic operations Engineer, which requires me to take continuing education classes to maintain that certification. Q And, can you briefly describe your work

history starting with your employment in T&M Associates? A Sure. I've been employed at T&M Associates since And during my, my 20 -- almost 24, over

May of 2004.

24 years of experience, I've been associated with preparing traffic impact studies, parking analysis, traffic signal design, highway access permits; all things related to traffic engineering for developers as well as on the other side, reviewing those for Planning Boards and Zoning Boards throughout New Jersey, approximately 30, 30 plus municipalities.

Klein - 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 And, could you tell me where you were

employed before T&M Associates? A Prior to T&M Associates, I was employed at Volnar

(phonetic) Associates which is now known as Stan-Tech (phonetic). Q And that was from 2000 to 2004 --

And --

-- or 2001 to 2004. Q And what type of professional services did

you perform during your tenure at Volnar? A Similar services as well; traffic impact studies,

traffic analyses, parking analyses, also for developers as well as for, for private sector -- for the public sector for Planning Boards and Zoning Boards. Q And during your career, have you designed

parking layouts for residential developments? A Yes, I have. Q And, have you designed parking layouts for

mixed use developments, -A Yes, I have. Q -- including residential and retail?

Yes, I have. Q And, have you ever been accepted as an expert

witness before any Planning Boards or Zoning Boards of Adjustment in New Jersey? A Yes. I've been accepted as an expert witness both

Klein - 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 for an applicant and for the Board in over 30 Planning Boards throughout New Jersey and Zoning Boards throughout New Jersey. Q

And have -- during your career, have you ever

been accepted as a expert witness in any matters pending in the Superior Court? A Yes. In Bergen County Superior Court for Judge

Harris, and also in Middlesex County. MR. FENLON: And, Your Honor, at this time I

would ask the Court to accept Mr. Klein as a expert in professional engineering with an emphasis on traffic planning and parking analysis. MR. EISDORFER: THE COURT: this court. MR. FENLON: Thank you. No objection, Your Honor.

So he will be so qualified in

DIRECT EXAMINATION (CONTINUED) BY MR. FENLON: Q Now, Mr. Klein, just for the purpose -- I ask

you if you could identify this document which has been marked D-177 for identification? A Yes. Q That's my resume. Curriculum Vitae.

-- or professional Curriculum Vitae, right.

Professional -(side discussion)

Klein - 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 BY MR. FENLON: Q Now, Mr. Klein, did there come a point in

time in January of this year that you were asked to prepare a report in this matter for the Township of Cranford? A Yes. Q Could you tell me how that came about?

Stan Slachetka from my office was already working And it came about that someone was

on various reports.

asked -- they asked us to look at traffic and parking for the application. at that. So, I was asked by Stan to look

And I believe it was very early January to

look at traffic impacts and trip generation, parking numbers. Q And did you prepare a report on your findings

and conclusions? A Yes, I did. I prepared a letter report dated

January 14, 2010. Q Let me show you what's been marked as defense

Exhibit D-112 and ask you if you can identify that document? A Yes. Q That's the report I prepared. And, what data or information did you review

and assess in report D-112? A I reviewed concept plan, similar to the one here,

Klein - 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 what is that P-63a? Q P-63a, the one on the board? I looked at the parking

Right; similar to that.

numbers that they provided based on the number of units and the number of breakdown of bedrooms of each unit. I also looked at the traffic volumes that would be generated by the site, and also looked at the traffic volumes and estimated the traffic volumes along Birchwood Avenue. Q Did you review any other documents in

connection with the preparation of your report? A Yes. In order to prepare the trip generation, I

looked at the Eighth Edition of the Institute of Transportation Engineers Trip General Manual. order to look at the parking, I looked at the Residential Site Improvement Standards for New Jersey. I also looked at the third Generation of -- the Third Edition of the Parking Generation also by the Institute of Transportation Engineers. Q And did you review the recommendation report In

that was issued by Ms. Elizabeth McKenzie, the Special Master in this case? A Yes, I did. Q Let me show you a document which has been

marked Defense Exhibit D-108 and ask you if you could

Klein - 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 identify that document? A Yes, that's the report that I reviewed by Ms.

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McKenzie dated January 4, 2010. Q And, did you review any reports that were

issued by the, any planning experts of the plaintiffs? A Yes. Well, there was information in Ms.

McKenzies report that referred to Dr. Kinseys report. I don't recall if I actually looked at Dr. Kinseys report or just reviewed the information that was in Ms. McKenzies document. Q And, did you make any visits to the site in

question, which is 215 and 235 Birchwood Avenue, and the surrounding neighborhood? A Yes. I visited the site on three occasions, back One was

when I was preparing my letter report.

January 7th, the other date was January 11th, and January 12th. And I visited the site during the There is a school

morning peak period of the schools.

on Bloomingdale Avenue, and a school on Orange Avenue. And I was there during the, the peak rush between the one school and the other -- from Bloomingdale towards Orange Avenue school. Q Okay, Mr. Klein, let me take you through your

report which is D-112. A Sure.

Klein - 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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Do you, is there a standard under New Jersey

law which governs parking requirements for a development such as the one proposed by the plaintiff? A Yes. Q The Residential Site Improvement Standards. And, do you have an opinion as to whether the

RSIS parking standards as set forth in the New Jersey Administrative Code should govern the calculation of parking units for this project? A Yes, it should govern it. Q And what's the, the reason for your

conclusion in that regard? A Well, in the RSIS they, they give you

alternatives, alternative reasons why youd want to deviate from that, from those standards. And I don't

believe that this site is suited to meet those standards. There is not mass transit within the There is really not any

proximity of the site.

alternative parking in the area to be able to, to put some people off the site. setting. Q And it's in a suburban

It's not really an urban setting. And, did you, do you have an understanding of

the number of units, parking spaces, excuse me, which the plaintiffs are currently proposing? A The number I have was 673. But now I see this one

says 671.

So it's in the 670 range.

Klein - 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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And, under the standards in the RSIS, do you

have a, do you know whether what the -- what -MR. FENLON: BY MR. FENLON: Q Do you know what the number of parking units Withdrawn.

would be required by applying the calculations in the RSIS? A The numbers that I used, I ended up calculating a I think there's another way you can

number of 819.

calculate it depending on the numbers of bedrooms, you get a 12. So it depends on the, the bedroom count.

But it's certainly above 800 parking spaces. Q And can you briefly tell me what the parking

requirement numbers are that were set forth in the RSIS? Let me just show you the RSIS parking which is

set forth in N.J.A.C. 5:21-4.14, it's right in table 4.4 of the regulations. A Well, this is a midrise apartment, by definition,

by, at least by the Institute of Transportation Engineers definition. And midrise apartment uses the For a one bedroom, it's For a two bedroom, it's And for a three bedroom,

garden apartments numbers. 1.8 parking spaces per unit. two parking spaces per unit.

it's 2.1 parking spaces per unit. Q And to get the total number of parking spaces

Klein - 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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required, you calculate the number of -- or how do you reach number? A You, you take the, I think the numbers that I had, I multiply that by 1.8.

it was 144 one bedroom units.

Then I think the total was about 262 two bedroom units. Multiply that by 2. were three bedrooms. And I think it was 13 units that Multiply that by 2.1. Add those

all together, and think I ended up with 819 total parking spaces, according to our RSIS. Q parking? A Yes. Q Could you briefly describe that term, and And, are you familiar with the term banked

what that term means -A In, in my experience -Q -- in parking planning? In my experience in, in both preparing

Excuse me.

and reviewing residential sites as well as other site plan applications, we use a term called banked parking. In a situation where a particular user for a particular use thinks that they can deviate from a parking ordinance or a parking standard, they can show in their, on their site that they can meet the ordinance, but that they dont want to build all the parking spaces. So they usually put off to the side an area,

Klein - 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 usually at grade because it's easy to build if they have to, of parking spaces that meets that number. So, in other words, in this case, the

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difference between 819 and 671 or 73, would be an area that, the easiest way to do would be to put it at grade. And if they need that parking, then they can And if it turns out that the calculations

build it.

that they thought they were going to use for parking turn out, then they dont need to build it. least it's there just in case. Q And, did you reach a conclusion as to whether But at

there was sufficient area on the 2 sites at 215, 235 Birchwood Avenue, -A I -Q -- for banked parking at grade?

I looked at this exhibit P-63a, and I saw where And

the, the flood lines were, the flood hazard lines.

it really looks like, other than where the building is located, there's not much other area on the site for banked parking at grade. Q In connection with your report, you were

reviewing an earlier iteration of the plaintiff's concept plan which he prepared in September of 2008. This particular plan, P-63a, I think was dated July 30th, if I'm not mistaken. Based upon your review

Klein - 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 the original concept plan, did you reach a conclusion as to whether there was sufficient area on site to, to banked parking at grade? A Well, I think on the original site, the original

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concept plan, the buildings were a little bit more to the left. And there was, it looked to be, it looked to

be an area that could be built upon that was not in a flood area. Q And, are you aware that the plaintiffs have

proposed to build four levels in a parking garage and retain the right to add an additional level to the parking garage in attempting to meet the RSIS standards? A Yes. Q And theyve represented that the additional

level -- would that concept fall within the confines of banked parking as you understand it? A I'm not an expert in parking garages and the But,

construction of them or in the design of them.

it's just appears to be that if you were to add another level on top of an existing garage, youd probably have to take it out of service for a period of time while you're building the upper level, depending on how, how it's, built. So that would sort of defeat the purpose And also I think there was only

of banked parking.

Klein - 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 about 100 spaces. Q

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So they're still short of the RSIS.

And it's your conclusion that a development

of this nature should completely satisfy the RSIS standard, correct? A At least be able to show that they could, if and

when they do need to get to that level of parking. Q Now, in your report, did you reach a

conclusion as to the vehicle ownership on a pro residence basis that would take place if this project were completed and occupied? A Well, given the fact that it's , I think it's

about a mile and a half to the train station, I don't believe there's any public transit within a quarter mile within reasonable walking distance of the site. It's a suburban area. Thats all the reasons why you So, Id have to say

would stick with RSIS numbers.

that it needs to provide the amount of parking thats dictated in RSIS. Q And did Ms. McKenzie reach a conclusion or an

assumption as to the number of cars that would be owned per residence. A I believe Ms. McKenzie had indicated in her report

that she thought it would be the type of location, the type of site that would be two people living in a place that would have two vehicles.

Klein - 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 that. you? A A Q And you concur to that assessment?

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I agree with that. Q And, (pause) did you actually during one of

your inspections, measure the width of Birchwood Avenue? A Yes. Q And what was the width thats measured by

In the proximate location of where the site shows,

the site plan is showing, it's approximately 36 feet from curb to curb. Q Let me show you a document thats been marked

Defense Exhibit 112a. MR. FENLON: Your Honor, heres a copy of

I don't believe you have that one. THE COURT: Thank you.

BY MR. FENLON: Q Now, Mr. Klein, if you would, were there

tables that were attached to your January 14, 2010 report? A Yes. Q And could you briefly describe them?

D-112a that you handed me are the, are similar to However, during my

the tables that I had in my report.

deposition, I was asked to show the formulas or the

Klein - 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 average rates that we use to come up with the trip generation number. So the smaller type face within

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the table shows either an average rate, .14 times the number of beds. Thats the way I calculated the trip The average daily

generation for the assisted living.

traffic number for instance, 2.66 times the number of beds gives us the, the daily traffic generated by a 180 bed assisted living. So it's the trip generation table, but it shows how -- so you could take out a calculator and double check my math if you wanted to. Q And the initial tables one and table two,

trip generation summaries that were next to your report did not show the calculations? A They didn't, thats correct. Q And you provided my office with Exhibit

D-112a, which are essentially charts, but they have the formula? A Thats correct. Q And the formulas for a trip generation that

you utilized were taken -- how did you arrive at them? A I used the Eighth Edition of the Trip Generation

Manual prepared, published by the Institute of Transportation Engineers to determine trip generation. Q And did you reach a conclusion as to the

Klein - 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 approximate number of vehicle trips that would be generated during morning peak hours by the 419 unit project proposed by the plaintiff? A Yes.

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On Table Two, there's different formulas for

different times of day. The first row shows the peak hour of the generator. The second row shows the trip

generation rate during the 7:00 to 9:00 peak hour and the 4:00 to 6:00 evening peak hour. And then the third

row shows an average rate that I would use for the number of units to come up with trip generation. Q And did you reach a conclusion as to the

approximate number of vehicle trips which would be generated by this proposed project if it was constructed for evening peak hours? A Right. During the evening peak hour would be

approximately 211 trips in and out in one peak hour. And in the morning, the peak hour would be proximately 179 trips both in and out total during one peak hour in the morning. Q And did you reach a conclusion as to the

approximate amount of additional cars which would be utilizing Birchwood Avenue as a result of these calculations that you undertook? A On a daily basis, the 419 units would generate

approximately between 2100 and 2650 daily trips on

Klein - 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 Birchwood Avenue. Q And during your -- well, when did you

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undertake your site visits to 215 and 235 Birchwood Avenue, what dates? A January 7th, January 11th, and January 12th. Q And what traffic conditions did you observe

on Birchwood Avenue during your visits, and at what time? A I was there approximately, I believe it was 8:15.

Between 8:15 and 8:30 is when the, the peak period between the parents dropping kids at the Bloomingdale and heading -- either leaving or heading over to the Orange Avenue School to drop their older children off. Q And during those inspections, did you observe

any traffic lineups? A Yes, the three days that I was there, the traffic

queued up from Orange Avenue back past the site, Id say probably half to three quarters of the length of Birchwood Avenue for about a 10 or 15 minute period. Q Now, did you, in connection with preparing

your report, did you undertake to reach an estimation of what the, the, current traffic on Birchwood Avenue was in January of 2010? A Yes, I did. Q And how did you do that?

Klein - 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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Well, we didn't have enough time to, to go out and

do daily traffic counts, so I contacted the Township Engineer to find out how I would -- we get the number of beds at the assisted living facility. He gave me a

number of somebody to call, and I found out that there were 180 beds there. And then, Rick Morrison

(phonetic), the Township Engineer and I estimated, based on an aerial photograph, the square footage roughly of what the Verizon building across the street would be. And then I did the trip generation of both the, what we call assisted living, the healthcare center, and the single tenant office building across the street, Verizon, to come up with the trip generation numbers for those, and estimated that the daily trips for the assisted living with 180 beds would be approximately 479 trips per day. And for the single

tenant office building of approximately 62,500 square feet, the daily trip numbers would be approximately 899 trips per day. I added those trips together and thats approximately 1380, 1378 trips. And that would be the,

roughly the estimate of the daily trips along Birchwood Avenue just associated with these two uses; not just associated with just residential traffic driving along,

Klein - 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 and people going back and forth from the different schools. Q And, turning your attention back to Exhibit

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D-112a, Table Two, you reached, or you did three calculations as to what the total ADT would be if this project was actually completed. A Yes. Q And could you just tell the Court what does Is that correct?

ADT stand for? A ADT is average daily traffic. Q Okay. And in the far right column, you have What do

numbers 2,108, 2,646, and then again, 2,646. those numbers correspond to? A

Those are based on different formulas in the trip Those are different results of the

generation manual.

daily trip numbers based on 419 midrise apartments. Q And did you reach an estimate of what the

average daily trips would be if the plaintiffs proposed 419 unit development was constructed? A Right. If I took the 1378 trips from what I

calculated based on the healthcare facility and the Verizon building across the street, and I add either 2100 or 2600, I end up with over 4,000 trips, I believe, per day. Q In your report, you could take a look at page

Klein - 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 two, paragraph seven. In that report you indicated

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that the trip generation for 419 midrise units would be 2,305 vehicle trips. A Yeah, I believe I averaged the two numbers, the

2108 and the 2646. Q From, from Table Two on -From Table Two, thats correct.

Thats correct. Q

And do you have an opinion as to whether or

not Birchwood Avenue would be, would constitute a residential street under the RSIS if this project is actually constructed? A Well, Birchwood Avenue, even though there are non

residential uses along Birchwood Avenue, it conveys residential traffic, people going to and from different neighborhoods, people just getting around in Cranford. So, to me it's a residential street. residential traffic. It conveys

It's not an industrial street. There's people going to There's people

There's not a lot of trucks.

work that happen to be located here.

that are going to work that drive past here from a residential neighborhood. So, to look at the street as

a residential street, I thought this was, was perfectly adequate to do that. So I looked at the width of the street, the amount of traffic on my estimate of the daily traffic,

Klein - 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 and determined that it's a minor collector street, based on the AD, based on the ADTs, the width of it. Q

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Could you tell me what a minor collector is?

A minor collector street, according to RSIS, is a It

street that carries less than 3500 trips per day.

allows parking on both sides; approximately 36 feet wide. And it's eight foot parking or seven foot So it sort of, again,

parking lanes on either side.

meets the definition of that type of street. Q collector? A A major collector would be the next category And are you familiar with the term major

higher that would carry more than 3500 up to I believe 7500 trips per day. Q And, what's the difference besides the number

of vehicle traffic between a minor collector and a major collector? A Once you move up to a major collector, because

it's carrying that much more volume, you wouldnt permit parking on a street, even if it's 36 feet wide. Q And, do you have an opinion as to whether the

RSIS standards for a street would apply if this particular 419 residential unit was constructed? A Certainly. It's the numbers I calculated on Table

One, which are the non residential trips of 1300,

Klein - 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 almost 1400. Then you add in the, depending on which

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number you use from Table Two, 2600, 2100, or the average of them; then you're actually putting in more residential traffic on this street, then there would be non residential traffic. So then it would definitely

become a residential street. And then it would become a residential street with more than 3500 daily trips. And therefore, it It

would be a street that you wouldnt put parking on. would be a major collector. Q Now, are you aware that under the RSIS

standards that there is a provision for diminimous exceptions? A Yes. Q And assuming your calculation of 812 parking

spaces would be the RSIS requirement, and the parking spaces presently offered by the plaintiffs of 671, that would be approximately 138, 39 -A In that range. Q -- reduction of those spaces. Thats

approximately 17 percent -A Thats correct. Q -- of the parking. Do you have a

professional opinion as to whether a reduction in parking of that magnitude would constitute a, or fall

Klein - 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 within the RSIS diminimous exception. A To me that would be a larger deviation from

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parking rather than a diminimous. more in the range percent.

To me, diminimous is

To me, anything over ten For instance, in the

percent would be a major change.

site plan, if you're making a change of greater than ten percent, youd have to submit a new site plan. Q And, is there a provision in the section of

the RSIS specifically dealing with parking that allows for a, an alternative calculation or a downward reduction of parking under certain circumstances? A Right. Q And I think you previously testified that one

of those would depend upon whether the site was in an urban setting or a suburban setting, and if it was in a -MR. FENLON: BY MR. FENLON: Q If it was in an urban setting, would that Strike that.

militate in favor of a parking reduction? A Yes. Typically, an urban setting would have Youd

alternatives to the single occupant vehicle. have buses and trains.

So thats, thats why urban

would be -- would allow you to reduce the amount of parking versus suburban.

Klein - 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 In a suburban setting, most likely

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alternative services would not generally be available? A Thats correct. And in this case, they're not

available. Q Is one of the other standards that would

militate in favor of a downward reduction in parking under the RSIS be the availability of mass transit? A Thats correct. Q And you visited the site. Is there any mass

transit stops in the immediate vicinity of this particular property? A Not within the typical quarter mile distance. I

think the train station is about a mile and a half. Q And, is one of the other, I think you

mentioned that one of the other factors that can be reviewed by the Court in recommending a downward reduction of parking would be available off site parking. Is there any available off site parking in

the immediate vicinity of this particular property? Are there any public garages or the like? A No. Q So, would it be your professional opinion

that none of the factors that would warrant a downward reduction exists in connection with this proposed development?

Klein - 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 That would be my opinion, yes. Q Okay. Now, Mr. Klein, let me show what has

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been previously marked and is in evidence as Exhibit D-157, which is the survey, Alpha (phonetic) survey that was secured by the plaintiffs when they purchased the property. And it's dated June 11, 2008. Which, which -D-157, Your Honor, in evidence.

THE COURT: MR. FENLON: BY MR. FENLON: Q

And this depicts the property as it existed

in June of 2008, and I think it essentially depicts it as it stands today. Yesterday, I asked you to review

the survey and see if you could determine the number of parking spaces, which currently exist on site. A Yes. Q And did you, in reviewing the survey, reach a

conclusion as to what the current number of spaces provided on the site are? A Yes. On the survey in little triangles, they

indicate the number of parking spaces in each little grouping. I added up all the numbers in all the

triangles and came up with 372 parking spaces. Q And, if the project was constructed with the

parking requirements of the RSIS of approximately 812 units, that would represent a more than doubling of the

Klein - 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 existing parking on site, correct? A Thats correct. Q And, therefore, if it was full occupancy,

29

would represent, or more than double the number of cars, -A Correct. Q -- that would be on site, correct?

Correct. Q And, even at their, the plaintiff's proposed

number of 671, that would still be almost, represent almost a doubling of the existing parking spaces and, and number of vehicles assuming full occupancy. A Yes. Q And, I, I think you made reference in your

testimony that one of the sources that you reviewed was the Institute of Transit Engineers Parking Generation Publication. A Thats, thats correct, the Third Edition. Q Okay. And, do you have an opinion as to

whether the information contained in that particular publication is comprehensive or authoritative enough to be utilized in designing the parking requirements for development of the size that was proposed in Exhibit P-63a? A Not in New Jersey because we have the RSIS for

Klein - 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 BY MR. FENLON: Q parking. MR. FENLON: Just one minute, Your Honor. (Pause)

30

Now, Mr. Klein, I'm going to show an exhibit

thats in evidence which is Exhibit P-39a, which is an exhibit prepared by the plaintiffs engineering expert which basically delineates the property as it currently exists, and then calculates the extent of the floodway, which is this darker blue in between the solid red lines, and then the flood hazard area, which is a little bit lighter blue. And it's in between the solid

red line in the middle of the property and then the dotted red line to the right of that. A Yes. Q Yes. Q And, is it fair to say that essentially the And, it also depicts Birchwood Avenue. Do you see that?

entire frontage of the properties at 215 and 235 Birchwood Avenue are situated either within or neighboring a, a floodway? Birchwood Avenue. A Yes. Q And in your professional opinion, would it be This is 235, and this 215

appropriate or sound parking planning to propose to

Klein - 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: questions. THE COURT: MR. FENLON: Cross-examine? Oh, by the way, Your Honor, place on-street parking in an area that was either situated in a flood hazard area or a floodway? A No, it would not be good practice to tell people

31

to park on a street in an area that could flood. MR. FENLON: Your Honor, I have no further

could I just move some exhibits into evidence? (Pause) Your Honor, at this time, I would like to move into evidence Exhibit D-112, and 112a, which are, 112 is Mr. Kleins report, 112a is the Trip Generation Summaries showing the calculations, and D-177, which is Mr. Kleins CV. THE COURT: I assume there's no objection? No objection, Your Honor. (Pause) Judge, I just forgot one

MR. EISDORFER:

question that I would like to ask Mr. Klein, if I could ask the Courts indulgence and Mr. Eisdorfers indulgence? THE COURT: BY MR. FENLON: Q Mr. Klein, did my office provide you with a Sure.

Klein - 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 copy of Elizabeth Dolans July 29, 2010 report? A Yes. Q Yes. Q Let me just show you what's been marked Okay. And did you review it?

32

Exhibit D-178 for identification. identify that document? A Yes. Q

Tell me if you could

This is Ms. Dolans report. And, in that report, Ms. Dolan indicates that Is that

she undertook actual traffic calculations. correct? A Yes, thats correct. Q

And she reached a, or her calculations or

counts determined that there was approximately 1,900 vehicle trips on the days that she took counts. that correct? A Thats what it says. The automatic traffic count Is

data revealed a daily volume of approximately 1900 vehicles. Q And that number is significantly in excess of

the approximately 1380 number that you estimated in preparing your report, correct? A Thats correct. MR. FENLON: Your Honor. I have no further questions,

Klein - 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 site? A No, we just did trip generation numbers. Q So the only actual observations, the only CROSS-EXAMINATION BY MR. EISDORFER: Q Mr. Klein, you testified that youve done

33

many traffic impact analysis. a traffic impact analysis is? A

Would you describe what

A traffic impact analysis, according to industry

standards, is where we go out and we collect existing traffic volumes. We do trip generation of what the

proposed use is going to generate using the Institute of Transportation Engineers Trip Generation Manual. We project out the existing volumes to a future year, either with the background growth number or with specific volumes from other developments. Then we add

in the trips associated with the new development that we know of; distribute those trips throughout the roadway network that we're studying. And then we do

analyses of the no build and the build and compare the two using the Highway Capacity Manual to determine the impact of those new trips on the background, on the no build condition. Q Did you do a traffic impact analysis for this

data you actually collected was -- well, did you collect any actual data?

Klein - 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 No. Q You didn't do any counts at all?

34

Thats correct. Q Now, so, so you made observations of how much

the traffic stacked on, on Birchwood Avenue at the corner of -- of what corner? A Well, it came, the traffic stops at Orange

Avenue -Q Okay. So at the corner of --

-- and then it backs up towards Bloomingdale. Q Okay. At the corner of Orange and Birchwood.

Now, you made that observation during the period of 8:15 to 8:30. A Is that correct?

I was out there from before 8:00 until after 8:30,

but I noticed that the peak was between 8:15 and 8:30. Q And, did -- how, how steep a peak was it?

It was within that 15 minute period. Q Well, did -- was it just a little tiny peak,

or a was it a big peak? A A big peak. Q Yes. Q So the amount of stacking you got was very A big peak.

much greater during that, during that period than before or after?

Klein - 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 Absolutely. Q So, we have a very narrow 15 minute peak?

35

Thats correct. Q And, and did you do any afternoon, afternoon

counts? A No, I did not do any afternoon observations. Q But you, but would you expect that there

might also be an afternoon peak coinciding with discharge from school? A Yes. Q And what time would that be?

I'm not sure, but exactly probably in the 2:30 to

3:30 hour, somewhere in that vicinity. Q So, assuming that the release time in the

local schools is 2:40, -A Okay. Q -- when would it be?

It would probably be, depending on which school

got out at which time, it may be the same direction as I saw in the morning or the opposite direction, but somewhere between let's say 2:45 and 3:00 or 2:30 and 2:45. Q Okay. Youve done trip generation data for What, what,

peak a.m. and p.m. times for other uses.

what period is the peak p.m. time that you used?

Klein - 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 used? A Between 7:00 a.m. and 9:00 a.m. Q Okay. with -MR. EISDORFER: BY MR. EISDORFER: Q Okay. A A Some -- one hour between 4:00 p.m. and 6:00 p.m. Q Okay. So a different period from when the,

36

when the peak school traffic would be? A Correct. But, my table doesnt have the, the --

when I did my trip generation, -Q I'm just trying -- it's a different --

It's different, -- yes, it's a different,

different period. Q -- different period of time. MR. FENLON: badgering the witness. THE COURT: Why dont you just go ahead Objection, Your Honor. Hes

And, what's, what's the peak a.m. period you

So, so, only 15 minutes of that period

is, is the peak school period? A According to my observations, yes. Q Now, you can't tell us what, anything about

what the actual volume, based on, on your analysis of what the actual volume of traffic on the street is? You didn't do any counts?

Klein - 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 that. A A I did not do any counts personally. Q And so you can't tell us, you can't tell us

37

what percentage increased in the volume of, of traffic that would go onto the street from, from this project that's filled out in accordance with this concept, the concept on P-63a? A Ms. Dolan -Q Well, I'm asking for your observations.

Oh, based on observations, no. Q No. So you said that, that you can't tell us

Incidentally, in doing your, your traffic

generation data, did you subtract the traffic that would be generated by the, the office buildings on the site? A No, because I was just determining what the 419

apartments would generate, what the Verizon building might be generating and what the healthcare center might be generating. the existing volumes. I wasnt trying to, to recreate I was just trying to estimate

what the daily numbers might be on Birchwood Avenue. Q Okay. So, you can't tell us what the net

impact would be? A Thats correct, I can't, right. Q Now based on, based on your traffic, your

trip generation analysis of -- well, let's go back just

Klein - 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 fine. BY MR. EISDORFER: Q a minute. Okay.

38

So, in, in doing your trip generation project, you used

analysis for, for this site, the CDA the IT -- ITE Trip Generation Manual? A

Thats correct, the Eighth Edition. Q Okay. And let me just understand, because

I'm seeing this for the first time now, D-112a. MR. FENLON: Just for the record, Your Honor,

that was produced to Mr. Eisdorfer in May personally by me, -MR. EISDORFER: MR. FENLON: Okay. Very, very well.

-- by his request. Very well. Thats, thats

MR. EISDORFER:

Let me just understand what youve done here.

I'm going to ask you to look at Table Two of D-112a. Now, first of all, I noticed that here you didn't use, you didn't use the ADTs in the RSIS? different kinds of uses. A RSIS has ADTs for

You didn't use those?

Thats correct, I, I did not. Q And so you didn't use the RSIS ADTs. You

used the ADTs from the, from the International Transportation -A The Institute of Transportation Engineers Eighth

Edition of the Trip Generation.

Klein - 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 this? A A Q -- instead of the RSIS?

39

Thats correct. Q Okay. Let me, let me ask you to look at the And, tell me what, what the Look, it says, What is .46?

first set of numbers.

formula, what that formula signifies? and further, and then youve got .46. A

Thats the average rate per unit, average trip

rate per unit. Q And, and where does that number come from?

From a series of studies that are a compilation of

the, what's in the Institute of Transportation Engineers Trip Generation. Q studies? A No. Q No. The, the Traffic Engineers, the people Now, did you independently verify those

who do traffic planning rely on that data as, as reliable data? A Right. It's data from actual counts from various And then they compile it

studies that have been done.

together and mathematically come up with an average rates and formulas so that others could use it to develop similar trip generation for similar type uses. Q Do you know how many studies were involved in

Klein - 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 sure. Q You dont have any idea how many studies A Off the top of my head, no. But, I believe the

40

res -- something like residential, I think there's hundreds of studies; residentials, offices. Q But this, but this is midrise, midrise

apartments. MR. FENLON: Your Honor, hes interrupting

the witness continuously. BY MR. EISDORFER: A Well, Id have to look in the book to see if we

did -Q You, you dont know? -- 20, right, 20 studies or 100 studies; I'm not

there were? A Correct. But there's no other way of determining

trip generation other than using the ITE. Q Okay. Now, you opined, if I understand it,

that, and I'm looking of paragraph 5 of P-112; -A Yes. Q -- that, that during the, during the peak

hour based on your analysis, based on the ITE data, that that would add approximately -- put three additional cars on Birchwood Avenue every minute? A On average, correct.

Klein - 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 Okay. Now, did you make, did you make a

41

determination as to what the impact of that would be on the functioning of Birchwood Avenue? A Yes. Q Did you make a determination of what the

impact of that would be during the 15 minute peak, the peak period of school traffic between 8:15 and 8:30? A I didn't include it in my report, no. Q Did, did you make a determination?

Well, in talking about it now, if somebody was to

try to make a left out of the site, and there's that long queue, it may be difficult for them to get out there in that 15 minute peak. Q Now, and, and are there -- when this kind of,

kind of situation occurs, are there, are there improvements that one could make to, to the intersection that would mitigate those tests? A Typically not for a 15 minute spike in, in Youd normally be looking at traffic signal

traffic.

warrants, and multi-way stop warrants, the manual uniform traffic control devices to determine if there is something that you could to mitigate. But it's, majority, I think, of the people are trying to make a left turn from Birchwood onto Orange, and they have to wait for the Orange traffic,

Klein - 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 gaps in the Orange traffic in order to make that left turn. Q

42

Well, suppose it weren't 15 minutes, suppose

it were hours, -A Right. Q -- are, are there, are there engineering

things that one could do to, at that sort of intersection? A Yes. Q What sort of things?

They could widen the approach of Birchwood at

Orange to put in an exclusive left and an exclusive right turn lane. They could do the, the warrants to Multi-way stops There's several

see if a traffic signal is warranted. might be a way to do it; a roundabout. different ways. Q

Are these issues that would typically be

dealt with at the local Planning Board review? A During the design and the preparation of all the

plans and, and reports, yes. Q Now, but, but you said that for the a 15

minute, a 15 minute period, it simply wouldnt be worth doing those things? A Not that it wouldnt be worth it; it's just that

there wouldnt be -- there's not enough volume to

Klein - 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 justify some major improvements. Q Now on, in connection with parking, you

43

talked about the concept of banked parking. A Um-hmm. Q And I just want to understand the, explain to This is vocabulary

me the concept of banked parking.

I'm not, I'm not quite familiar with. A In my experience, when I've worked for applicants

on site plans, and we're putting in a particular use that's deviant from the, let's say it's an office building, but they know it's going to be a single tenant and that tenant is only going to occupy it with a much less amount of employees than a normal office of that size, size would do. In that case, I would follow

the ordinance and develop a plan that shows we can build all the parking to satisfy the parking requirements of that local jurisdiction if the building was occupied by just general office. However, we think

we are going to, only going to occupy, let's say, half of the parking. So we're going to show you how we can

lay out the parking, build half, and then if some day down the road that tenant leaves and somebody else comes in, we can continue to build the rest of the parking and that building can by fully occupied by normal general office use.

Klein - 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 It's the same in, in residential. the same type of thing with residential.

44 You can do

If for

whatever reason, if a tenant says, well, I know that I'm going to have senior housing. And I know that

these people aren't only going to have one, one and a half cars, not two, then you can say, well, if we were to meet the ordinance or meet RSIS, we would build all this parking, but because of what we think our tenants are going to be like, we're only going to build, let's say, three-quarters of the parking. So we -- as they are starting to occupy the building, they realize, oh, guess what, they really are coming in with two cars per unit. We've got to start

to fill in the parking, they can go ahead and build the rest of the parking. Q So the premise of the banked parking is that

actual utilization might turn out to be lower than the standard? A That's correct. Q Now, in, in -- now, did you review the ITE

Parking, Parking Generation Report to determine what the actual utilization for midrise apartments would be? A Yes. I don't have it handy in my head. But I did

look at that and there are ranges that are 87 percentiles, 95th percentiles, maximums. There's a

Klein - 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 whole, a lot of different data to look at. Q Okay. You think it's lower than the New

45

Jersey RSIS? A I don't recall if they were lower or close or how Id have to look at the book again. So, but did that make any impact in

much lower. Q

Okay.

your analysis? A When I do resident -- no. When I do residential,

I use the RSIS in New Jersey. Q Um-hmm. Okay. Now, did you, did you take

into account any features of the demograph -- in assessing the alternatives, the possibility of alternative parking standards, did you consider demographic characteristics of the residents of this project? A No. (Pause) Now, from the point of view of safety, would

it be unsafe to have parking, on-street parking on Birchwood Avenue? A If the site were to be fully developed, according

to RSIS, street -Q I'm ask -- I'm asking for --

I'm getting to that. Q Okay.

Klein - 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'm getting to that. RSIS wouldnt recommend,

46

recommend not putting on-street parking on a street of this width with an ADT greater than 3500. And that's

what the ADT would end up being if you fully develop the site. So the answer would be it would be unsafe to

put on-street parking. Q moment. We're going to talk about the RSIS in just a But do you have a professional opinion as a

Traffic Engineer whether it would be unsafe to put parking on that site? A Well, based on the flood information, I would say If I'm going to

that it's not a good location to park.

park on the street, and it -- I get flooded once, I'm going to know not to park there anymore if it's going to rain. So, as far as flooding goes, I would say it's

not good parking, a good parking location. Q But, in terms of public safety, do you have

an opinion on that? A I mean, Birchwood is wide enough to have an 8-foot

lane -- I'm sorry, two 12 foot lanes and two 7 foot parking lanes. Q So, physically, it could fit.

And how many parking spaces would fit on

either side? A I think they took the full length of 800 and

divided it by 25, but I don't think they included the

Klein - 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 space for the, the driveway. So, the calculation I It

47

think I saw somebody said was 32 parking spaces.

would probably be a little bit less than that, maybe 28. Q Okay. It's 28 on either side? Right.

No, no.

Oh, on either side of the street?

That's correct? Q Okay. Now, is it your opinion, is it your

opinion that as a matter of law, the RSIS governs the use of existing public streets? A I really wasnt using it in that way. I was just

saying that it's a residential street. something new on that street.

We're building

So I went to the RSIS to

look at ADTs and the design of that cross-section. Q streets? A In my mind, even if it didn't govern it, it was a So, -But does it govern the use of existing public

good guidance. Q

Does it govern them?

I don't know. Q You dont know. MR. FENLON: You dont know.

It's a question of law, Your

Honor; objection. BY MR. EISDORFER: Q Well, does the RSIS prohibit, prohibit

Klein - 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 that? A It had something to do with a cul-de-sac as I But I don't remember it having to do with A A A parking in Birchwood Avenue? A Today it doesnt, no. Q Okay.

48

Correct. Q Would it prohibit it if the project were

built as proposed? A I'm not sure if it's prohibited or if it's as I'm not --

guidance, or if it's the standards. Q Are you sure --

I think if it's standards, I'm saying it would

prohibit it. Q Are you sure it has any application at all?

(No verbal response from the witness) Q Have you seen any documents issued by the

Department of Community Affairs that addressed this issue? A Only the document in the back of Ms. Dolans

report. Q Okay. And, and then did you, did you read

remember.

the particular, this type of a street. Q Okay. Now, do you have an opinion as to

whether it would be feasible to add an additional, an

Klein - 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 additional level to the parking garage? A I'm an Engineer, but I'm not an Engineer who To me, while you're adding

49

designs parking garages.

that extra level, it seems like for safety reasons, youd want to empty the parking garage. So, I'm not

sure how long it takes to add the level, weeks, a month, months, I'm not sure. But during that time, I

would think at a minimum, youd have to at least empty out the garage. Q So, there might be some, some temporary, some

temporary disruption? A Temporary, that's the way to put it, sure. Q A month, not years?

I would say, yeah, I would say months not years, Correct. Well, let me just ask you one more question.

right. Q

Sure. Q Did you -- while you were there, did you look

at some of the cars that were in the Verizon parking lot? A No. Q Could you tell whether it was full?

I don't think the parking lot was full, just

remembering just glancing over. Q How about the parking lot at the healthcare

Klein - 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 facility? A That I couldnt see while observing. Q Okay. I don't remember that being

50

I just drove past.

there. Q So we can assume that the number of spaces in

the parking lot is the actual number of cars that would actually park there, can we? A You're saying can we assume -Q Can we assume that the number of spaces equal

the number of cars that would be parked there? A Not always. There's usually, you know, there's They're out to meetings. But at

people on vacation.

some times theyll be, you know, 90, 95 percent occupancy. Q Well, actually in well designed parking lots,

there's always a few extra spaces, isn't it? A Sure. Q You always to have, have fewer cars there Isn't that right?

than you actually have spaces. A That's correct. MR. EISDORFER: THE COURT:

I have no further questions. I think well take a break

Okay.

and then well have -(Judge handles another matter)

Klein - 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 (Tape off - tape on) MS. MCKENZIE: Your Honor, I have no

51

questions of this witness. THE COURT: Okay. Very good. Okay.

Anything further anyone else? MR. FENLON: questions on redirect. REDIRECT EXAMINATION BY MR. FENLON: Q Now, Mr. Klein, on cross-examination, I think Yes, Your Honor. Just a few

you indicated that you didn't make any actual traffic counts on Birchwood Avenue. A That's correct. Q And when you were preparing your report in Is that correct?

January of 2010, you were asked by the Township of Cranford to turn that report around in a fairly quick timeframe. A Is that correct?

That's correct. Q And is it your understanding that there was a

time, a trial scheduled in this matter for April 19, 2010? A I believe that was the date, yes. Q And, let me ask you this. We discussed it a

little bit the, Institute of Transportation Engineers, Trip Generation Publication. I think in your direct

examination, you indicated that that was a publication

Klein - Redirect 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 that is utilized in the traffic planning field within the State of New Jersey. A Yes. Q And do professionals in your field rely on Is that correct?

52

that publication in calculating and estimating vehicle trips? A Yes. Q Now, Id like to show you Exhibit P-112a And that's the revised

again, which is in evidence.

Trip Generation Summary that shows the calculations? A Yes. Q And, in May of this year, I actually sent you

a request from Mr. Eisdorfer for certain documentation that he requested at your deposition. A That's correct. Q And you prepared this document at my request. Is that correct?

Is that correct? A That's correct. Q Now, in calculating or estimating the average

daily trips for Birchwood Avenue, you calculated the number of trips which would be generated by the assisted living facility, which is on the, to the east of the 215 Birchwood Avenue site. A That's correct. Q And the Verizon property which is directly to Is that correct?

Klein - Redirect 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 north of the site. A That's correct. Q Is that correct?

53

And those are the only two current uses that Is that correct?

you used to estimate. A That's correct. Q

And there are other present uses on the site.

You did not calculate the average daily trips of the existing office building on 235 Birchwood Avenue. A That's correct. Q And that office building is currently

occupied, correct? A From -- during my observations, I remember seeing

cars parked in that parking lot, yes. Q And you didn't calculate the traffic or trip

generated by the property to the west of the site, which is a construction area, correct? A Correct, yes. Q All right. So you, basically you reached a

very conservative estimate of what the current traffic on Birchwood Avenue was from in order to prepare your report. A A low number based on just a couple of uses along

the street, not, not taking into account traffic that would be just be using Birchwood to cut across. Q And that number doesnt, did not include

Klein - Redirect 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 school traffic -A School traffic, correct. Q -- or other residential traffic.

54

That's correct. Q And, and we're aware now, because of the

counts prepared by, undertaken by Ms. Dolan, that in, at least at the end of July, the average daily trips were approximately 1900, correct? A That's correct. Q And that's significantly an increase of your

estimation, correct? A That's correct. Q Now, I think Mr. Eisdorfer asked you on

cross-examination whether flooding was a, a safety consideration. MR. EISDORFER: question was asked. MR. FENLON: Well, Your Honor, I think the Objection. No such, no such

record will reflect he asked whether, he asked questions related to the public safety relating to the street, and one of them pertained to flooding. MR. EISDORFER: I did not ask any such

The question goes beyond the question. MR. FENLON: THE COURT: Well, it's on-street parking. Okay. Ill allow him to testify

Klein - Redirect 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. flooding. either. about the on-street parking that you did cover. THE WITNESS: on-street parking. MR. FENLON: parking in terms of -MR. EISDORFER: I didn't ask that question I This is related to on-street On-street parking; safety of

55

I asked about public health and safety.

didn't ask about flooding. THE COURT: I don't think the question now is

I think you did ask him about on-street

parking and the recommendations of RSIS with reference to on-street parking. MR. EISDORFER: MR. FENLON: Okay.

Let me ask it this way, Your

Ill disregard the inquiry and the record will

reflect what it is. BY MR. FENLON: Q From your professional opinion as a traffic

and planning expert, parking expert; would a street that is partially in a floodway and partially in a flood hazard area present a public safety issue when you are considering whether to site on-street parking on that street? A Yes. And also just to add to that, access from

the site in and out of this flood area is going to be

Klein - Redirect 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 problematic. Q I've seen -- well --

56

I think on cross-examination Mr. Eisdorfer

asked you whether you had calculated the average daily trips under certain standards that are contained in the RSIS. A Is that correct? That's correct. Q And, I had previously asked you on direct

where you, or how you reached the number of 2,305 vehicle trips per day, which is referenced on page -paragraph seven of your January 14, 2010 report, D-112. A Correct. Q Is that the number that, of daily trips that

would be reached if you had calculated using the RS -standards set forth in the RSIS? A Yes, the standard for midrise apartments is 5.5 And that works out to be 2,304.5. I

trips per unit.

rounded it off to 2,305. Q Now, let me ask you another question.

Assuming the, the RSIS standard would, of minor collector or major collector did not apply to an existing street, if you took the average daily trips counted by Ms. Dolan of 1900 and you added to them the average daily trips that you have calculated using the ITE Trip Generation formulas and the RSIS, those numbers would, the average daily trips, if this project

Klein - Redirect 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

57

was completed and occupied would be approximately 4300 trips. A Is that fair to say?

That's correct. Q And do you have a professional opinion as, as

to whether on-street parking should be allowed on such a street in connection with the approval of this project? A It would be my opinion that putting parking on the

street that carries such a volume would not be, would not help that volume flow through that street. In

other words, the parking maneuvers, people parking, unparking on the street inhibits the flow of traffic. And, therefore, the, the volume that's trying to get through there is inhibited by the, the parking. So

it's not, when it gets to a certain volume, it's better to not have parking. Q And do, do you have an opinion as to whether

the, there is a differential between the parking utilized by residential developments as opposed to commercial retail or office developments? A Yes. They each have characteristics per square, There's

per thousand square feet or per unit.

different ratios for parking for those different uses, yes. Q Would, would the parking utilization by

Klein - Redirect 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 residential development be greater in number than an office building? A No. You're not talking about parking. You're

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talking about trip generation or your talking about -because, the parking ratio for -- it's per unit for an apartment regardless of the square footage. It

would -- if it's a two bedroom or three bedroom, the square footage would be probably bigger. But it's And

really -- parking is per unit for residential. it's per thousand square foot for an office. generation characteristics are different. Q And, how would the trip generation

The trip

characteristic be different? A Typically for an office, youve got people coming They may go out at lunchtime,

in at a certain time.

come back at lunchtime and then leave at the end of the day. If the site is residential, youve got people

coming and going all different times of the day. So that's why when you look at the daily numbers, you know, for 419 units, youve got 2305 trips, according to RSIS, or anywhere up to 2600 trips from the ITE. It's because people have a lot of

different things to do throughout the day; go to work, pickup children, go shopping, run errands. There's a

lot more trips associated with a car parked at a

Klein - Redirect 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 residential site, then there is a car parked at an office. Q One final question. During your cross-

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examination, Mr. Eisdorfer asked you if you had assessed demographic characteristics with respect to this proposed project, and I think your testimony was that you had not. If I was to represent to you that the plaintiffs are, had indicated that they intend to market this as a luxury apartment complex to empty nesters, or, or young couples without children, would that change your opinion as to the fact that you believe that the occupants of these residences will have two cars? MR. EISDORFER: I object to, to the question.

This is asking for an opinion that, that is not in the witness' report. And, and he has testified that he

hasnt, hasnt formulated, something that he hasnt formulated. (phonetic) MR. FENLON: Your Honor, this is an area that

Mr. Eisdorfer brought into question on direct examination. On direct, Mr. Klein testified that he

reached a conclusion that the occupants of these residences would have two vehicles, and that he agreed with Ms. McKenzie in that regard. He has asked a

Klein - Redirect 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 about demographics, and I think it's fair to ask that question. THE COURT: about demographics. MR. EISDORFER: Your Honor, the question I You know, what's the question

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asked was had, had he considered demographics, and his answer was no. THE COURT: follow-up question? into the -MR. EISDORFER: THE COURT: No. I'm going to allow Okay. Was there any kind of a

I mean, you didnt specifically go

All right.

you -- if you want to ask a follow-up question on demographics, Ill allow you to rephrase your question. But, I don't know what -- you're actually giving him a hypothetical question eventually? MR. FENLON: Well, I, I -- it's a

hypothetical question based on the representations of the plaintiff as to what this development is going to be. THE COURT: All right. Ill allow you -- why

dont you rephrase your question. BY MR. FENLON: Q Mr. Klein, am I correct in indicating that on

your direct testimony, you -- and in your report, you

Klein - Redirect 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 reached a conclusion that the occupants of these residences which the plaintiffs are proposing would, each would own two vehicles. A Right. Is that correct?

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My number three in my January 14th letter,

in my last sentence it says ownerships two adults living, two adults living in a unit could very well own two cars. Q And, if, if these units were occupied by a

couple with no children, would that change your assessment? A No. And, and can I add one thing? We were

talking before about the alternative parking standards. To me, the more important ones are mass transit and urban suburban, because those are the, those are the factors I believe in my opinion that would make it more likely for someone not to have a second car in a, in a two adult home. In other words one per -- we're living in this location because one of us takes a train to work and the other one drives to a suburban office, so that's why we want to live here. In a location like this, it's difficult for, just thinking personally, if I'm going to take the train to New York City from this location, I'm either going to have to get some kind of transportation to the

Klein - Redirect 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 train, whether it's a shuttle, or -- and then during

62

the week when I need a -- or during the weekends when I need a second vehicle, I don't have it to go shopping and, and different places. So the urban area gives you alternatives to shopping that you can walk to. And then the mass

transit gives you the alternatives for commuting to work. So those two factors are more important, I

think, in my opinion, than the demographics of the actual tenant, which could change over time. Q One final question. The RSIS standards set

forth a minimum requirement for parking, correct? A The section -- looking at Table 4.4, it really

says parking requirements for residential land uses, parking requirements per dwelling unit. It doesnt

really indicate actually if it's a maximum or a minimum. Q On cross-examination, you were asked the

question that in good parking planning, you would have more spaces than might be required. A You recall that?

Mr. Eisdorfer, I think, said that to me in, I

think in the last question. Q Yes. And you concur to that assessment, correct? When I do, when I do shared parking

analysis, let's say, we need to have some ability for

Klein - Redirect 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: Anything else? Just a few questions.

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people to be able to find a spot while other people are leaving. You can't just have exactly the number of

parking spaces that you theoretically think you need. You do need a little extra for overflow for peaking when there's, you know, spikes in usage, whether someone in the developments going to have a party, a lot of visitors coming; things like that. little bit of extra. And I believe RSIS includes in their numbers, for each of the different bedroom counts, a half of space per visitor is included in those numbers. MR. FENLON: No further questions, Your Youd need a

MR. EISDORFER: RECROSS BY MR. EISDORFER: Q

Now, is it your understanding that the flood,

the flood hazard area shown on this map represents a hundred flood event? A Actually I'm not sure. I just know that it's a

floodway limit, and the buffers that go along with the other floodway areas. of the flooding is. Q it is. Okay. So you dont know what, what frequency I'm not sure what the frequency

Klein - 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 lunch. questions. THE COURT: McKenzie, no? MS. MCKENZIE: THE COURT: No. Thank you, Your Honor. So we will break for Okay. Anything else, Ms. A That's correct. Q Does frequency, does frequency make a

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difference in terms of your assessment of whether it's good or bad parking? A Sure. Q An event that occurs once in a lifetime is of

different significance than an event that occurs every third day? A Sure. MR. EISDORFER: I don't have any further

Okay.

And well see you ... (Judge handles another matter)

E L I Z A B E T H SWORN

D O L A N, PLAINTIFF'S WITNESS,

THE OFFICER: THE WITNESS: THE OFFICER:

Please state your full name. Elizabeth Dolan, D-O-L-A-N. Thank you.

(Pause - Side discussion) DIRECT EXAMINATION (VOIR DIRE) BY MR. EISDORFER: Q Ms. Dolan, would you state your full name?

Dolan - 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 Elizabeth Dolan. Q What is your profession? And for

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I am a licensed professional Engineer.

the past 24 years, I've practiced in the field of traffic and transportation engineering. Q And can you describe for us your educational

background? A I have a Bachelor of Science degree in Civil

Engineering from Rutgers University. Q And what is your employment history?

I am currently co-owner of Dolan & Dean Prior to that, I had my own firm, Prior to that, 12 years And, originally,

Consulting.

Elizabeth Dolan Consulting.

with Atlantic Traffic and Design.

right out of school with Abbington May (phonetic) Associates. Q What kind of work do you do?

The majority of the work is traffic impact studies

for land development or redevelopment, associated parking lot layouts, parking efficiency studies, Master Plan updates for traffic circulation, NJDOT permitting, and I provide testimony before Planning and Zoning Boards routinely. And, I also have represented

Planning and Zoning Boards in reviewing applications, focusing on the areas of traffic and parking and

Dolan - 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 circulation. Q Do you have any professional memberships?

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I am a member of the American Society of Civil

Engineers, and the Institute of Transportation Engineers. Q I'm going to show you a document that we've

marked as P-76, and ask you to identify that document. A This is a copy of my professional profile that

summarizes my education, experience, and license in New Jersey as well as Pennsylvania, Delaware, and New York. Q At, at page 3 of P-76, there is a list of Could you tell us what that list

some municipalities. is? A

That is a list of municipalities for which I have

reviewed traffic studies, parking studies, DOT permitting for Planning and Zoning Boards. So, when

the applications are filed, the Board then would retain me to review the traffic parking aspects of the application. Q On page, page five of your CV, there's

another list of municipalities? A This is a list of municipalities where I have been

accepted, qualified as an expert in traffic Engineering. It's roughly 150 or so municipalities

throughout New Jersey where I've testified.

Dolan - 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 evidence. A Q Have you also testified in Superior Court?

67

Yes, I have, in Ocean County. MR. EISDORFER: Your Honor, I would offer

P-76 into evidence. THE COURT: Any objection? No objection, Your Honor. And I would offer this

MR. WOODWARD: MR. EISDORFER:

witness as an expert in Civil Engineering, and particularly in traffic and parking matters. MR. WOODWARD: Your Honor. THE COURT: Okay. Very well. P-76 in The Township has no objection,

And she will so qualified in this court. (Pause)

DIRECT EXAMINATION (CONTINUED) BY MR. EISDORFER: Q Ms. Dolan, were you present this morning when

Mr. Klein testified? A Yes. Q And did you hear the opinion that, that he

expressed concerning the applicability of residential site improvement standards to parking on Birchwood Avenue? A Yes. Q Is that a matter on which you have a

professional opinion?

Dolan - 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 I do. Q Would, would you tell us what your

68

Professional opinion is? A Yes. In my reading of the Residential Site

Improvement Standards, the minor collector roadway that was discussed this morning, that definition in RSIS is applicable only to local residential streets. from RSIS. The minor collector is further defined in RSIS as limited to motorist in the immediate area, and a minor collector does not carry regional traffic. So That's

my opinion is that the classification does not apply to Birchwood, because the land uses along Birchwood would certainly cater to regional traffic, not local neighborhood traffic. And they are uses, of course,

along the street, which are not residential. Q Now, do you have an opinion on whether the

RSIS regulates parking on existing public streets? A The existing conditions do not come into play

where the new application is using the existing street. So the RSIS would apply in this particular case to the parking, but it would not apply to the street, to Birchwood. Q So it applies to parking onsite?

That's correct, onsite parking.

Dolan - 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 P-77? A A Q But not to parking on the street?

69

That is correct. Q Now, let me show you the document that we've Now, can you tell us what P-77 is?

marked as P-77. A

P-77 is from the Residential Site Improvement It's entitled Clarification on Development This is a statement

Standards.

Proceeding June 3, 1977, RSIS.

that explains that RSIS standards do not require that developments built before the rules became effective need to be improved to meet the standards, which is what I was saying a moment ago; is that this development would not require any modification to the existing street. If we were extending the street, the RSIS would be applicable to the extension of the street only. So the existing street is not part of the RSIS However, we could be

review in the new application.

able to use on-street parking if it's proximate to our development. Q Now who, do you know who issues, who issued

This is approved by the State Improvement Advisory And I believe it's through the Department of

Board.

Community Affairs. Q And do you know what the State Improvement

Dolan - 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 Advisory Board is? A Not specifically? Q Okay. Is this, is this a document that

70

Traffic Engineers rely on professionally? A This is a appended clarification within the RSIS.

So it is something that, yes, I've been familiar with for a couple of years now. Q Now youve heard, youve heard Mr. Kleins

testimony, whether in his professional opinion he thought it was appropriate or inappropriate to have onstreet parking on Birchwood Avenue. Assuming that this

were guest parking for a development on 215, 235 Birchwood Avenue, do you have an opinion as to whether it would be appropriate or inappropriate to have, from a professional point of view, to permit parking on Birchwood Avenue? A I believe -MR. WOODWARD: Objection, Your Honor. This

line of questioning is beyond the scope and contents of Ms. Dolans report. MR. EISDORFER: Your Honor, Mr. Klein in his

testimony testified differently than he testified in his deposition. In his deposition, he said there were He has now

no public health and safety issues. testified differently.

We're entitled to respond to

Dolan - 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. EISDORFER: that change in testimony. THE COURT: Well, -Well, Your Honor, I mean, I

71

MR. WOODWARD:

don't have Mr. Kleins deposition with me. line and citation, we could look it up.

If he has a

But the point

is, this report was presented by Mr. Eisdorfer when we initially objected to it as fairly numerical counts. Yes. And he could have impeached Mr. Klein with his

deposition testimony, and he elected not to. MR. EISDORFER: Your Honor, my choice is

whether to impeach or offer rebuttal testimony, it seems to me, is, is my discretion. THE COURT: I, I understand. I know. Let's

see what, what you're referring to. (Pause) Yes. Your Honor, I show the

Court page, page 59 of Mr. Kleins deposition testimony. And, the question was, Can parking be And the answer was,

permitted on that street safely? As things are today, yes. THE COURT: this witness is? MR. EISDORFER: Okay.

And so your question for

Is, does -- Mr. Klein has And I

given a different answer to that question today. want to pose the same question to her.

Dolan - 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 allow it. is? MR. WOODWARD: THE COURT: All right. And your objection

72

My objection is that Mr. Klein

indicated that flooding was a public safety condition. And that was brought up by Mr. Eisdorfer on crossexamination. THE COURT: Well, Ill make the conclusions So, I'm going to allow I mean, given that I'm

about what the testimony was. this, Ill allow the question.

the fact finder, Ill conclude what it was that his testimony was. MR. WOODWARD: Understood, Your Honor. And

the Township did not object to this witness being presented to the Court or to a report. But I think, in

fairness, her testimony today should be limited to what she opined on in her report. Mr. Kleins report was

issued on January 14, 2010, and we served it immediately upon the plaintiffs. And we got this report. And he was deposed.

They had six months to respond

to Mr. Kleins report and to his testimony. MR. EISDORFER: As I've indicated, we have

had different testimony today than we had during the deposition. THE COURT: Okay. For that reason, Ill

And, also, I thought you withdrew your

Dolan - 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 to Ms. Dolans testimony. MR. WOODWARD: THE COURT: of your objection, -MR. FENLON: THE COURT: BY MR. EISDORFER: Q Ms. Dolan, do you have a, do you have a Thank you, Your Honor. -- Ill allow it. I did. So, --

73

But, --

I think I understand the nature

professional opinion as to whether it's appropriate or inappropriate to permit on-street parking on Birchwood Avenue? A I believe it was a 36 foot paved width that onParallel parking along

street parking can be provided. the curb can be provided, yes. Q

And, do you have an opinion whether that

would impact public health and safety? A I don't believe there would be any negative A 36 foot roadway could actually accommodate And so the 22 foot cartway

impact.

parking on both sides.

which RSIS says, does say it's appropriate for two-way traffic flow. On-street parking also helps to reduce speed, because the drivers are visually seeing a narrower cartway, so it can have a benefit of helping to keep the speeds at an appropriate level.

Dolan - 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 questions. THE COURT: Cross-examine. Q

74

Now, do you have an opinion as to, as to the

impact as to the effect of, of this being in a hundred, hundred area -- hundred year flood hazard area on the appropriateness of on-street parking? A I don't know that I necessarily have an opinion I

with regard to the, the potential for flooding.

think if there is a potential for flooding, it's going to impact any user or user groups whether they are parking on a site or on the street. MR. EISDORFER: Your Honor, I have no further

MR. EISDORFER:

Your Honor, let me offer, let

me offer P-77 into evidence. THE COURT: Any objection? What is P-77? That's the RSIS

MR. EISDORFER: MR. EISDORFER: clarification. MR. WOODWARD:

I think it might be better for

the Court if, if Mr. Eisdorfer admitted her report into evidence. MR. EISDORFER: MR. WOODWARD: I'm not intending to do that. If that's the standard

permitted by the, or created by the Department of Community Affairs, I have no objection to it.

Dolan - 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 COURT: Okay. P-77 in evidence.

75

(Pause) So P -- we have P-77 in evidence, if I didn't already say that. Yes, you can proceed. Yes.

MR. WOODWARD:

CROSS-EXAMINATION BY MR. WOODWARD: Q Ms. Dolan, I just have a few questions for I think you just testified

you on cross-examination.

that it was your opinion that the fact that the frontage on 215 Birchwood Avenue and 235 Birchwood Avenue is situated near a flood hazard or a floodway would not effect your conclusion that on-street parking for, for this proposed development could be placed on Birchwood Avenue. A Is that correct?

That's correct. Q And, are you aware of how often this

particular street is required to be blocked off by the Police Department of Cranford on a yearly basis due to flooding? A No. Q Now, I think it was your testimony that

because the RSIS standards do not apply to Birchwood Avenue because it's an existing street. correct? A That's my testimony, yes. Is that

Dolan - 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 Q And, you believe that Birchwood Avenue is

76

presently a minor collector? A No. I did not say that. We had been

discussing -- Mr. Kleins testimony this morning talked about the minor collector definition from RSIS. And I

provided further definition from RSIS that that would be a roadway carrying residential traffic from the immediate neighborhood, not carrying regional traffic. Q And your opinion that this particular roadway

carries regional traffic? A I would think with offices that we are having

vehicles from outside of the immediate neighborhood. So, yes, I would think that this would not meet RSIS definition of a minor collector, which is a residential street. Q And, did you undertake any traffic counts

with respect to Birchwood Avenue? A Yes. Q secured? A We performed an automatic traffic recording to And what were the traffic counts that you

correct hourly and daily traffic flows, and we recorded approximately 1900 as the total average daily volume to a flow on Birchwood. We also performed manual counts

at the intersections to the north and south, and at the

Dolan - 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 adjacent driveways to the extended healthcare and at the Verizon driveway and 235, which is the occupied office building.

77

And those were performed on a weekday

from 7:00 to 9:00 and 4:00 to 6:00. Q And I, I -- did you hear Mr. Kleins

testimony earlier, that based on the RSIS calculations, he estimated that if this project was constructed and occupied, there would be an additional 2,305 trips? A Yes. And I had confirmed that calculation with

the RSIS data. Q Is it your opinion that if that number of

additional trips were added to Birchwood Avenue, that that would have no impact on whether on-street parking for this development should be allowed on Birchwood Avenue? A Well, I think there's a couple different factors.

It's not a straight, a straight correlation, because that 2300 number is a 24 hour volume. Over the course

of an hour, we're seeing volumes of approximately 100 vehicles, and that's two way. Now, granted, our data was taken in the summertime, so it could be a little bit light. But

with that level of volume combined with the width of the street, I believe that on-street parking could be provided.

Dolan - 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 please? THE WITNESS: THE OFFICER: K-I-N-S-E-Y. Thank you. MR. EISDORFER: Okay. Honor. MR. EISDORFER: THE COURT: No redirect, Your Honor. MR. WOODWARD: No further question, Your

78

Ms. McKenzie? No, questions, Your Honor. You can step down.

MS. MCKENZIE: THE COURT:

Okay.

THE WITNESS: THE COURT:

Thank you.

Thank you for coming in. (Pause)

Mr. Eisdorfer, were you planning to

call Dr. Kinsey -MR. EISDORFER: THE COURT: I am.

-- for rebuttal? I am.

MR. EISDORFER: THE COURT:

Okay. (Pause) Your Honor, I call

Dr. David Kinsey on behalf of, of the plaintiffs. D A V I D K I N S E Y, PLAINTIFFS WITNESS SWORN THE OFFICER: THE WITNESS: THE OFFICER: Please state your full name. David North (phonetic) Kinsey. And spell your last name,

You may be seated.

Kinsey - 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 object. A DIRECT EXAMINATION BY MR. EISDORFER: Q Dr. Kinsey, welcome back.

79

Now you have, you

heard the testimony of Mr. Slachetka A Yes. Q Mr. Slachetka gave us extensive testimony on

the meaning of the term sound land use planning? A Yes, he did. Q And did you hear that?

I did. Q Now put that in context. Are there different

kinds of planning tests that Planners perform at the municipal level? A Yes. MR. WOODWARD: Your Honor, I'm going to

Your Honor, I'm going to object to any Mr. -- Dr. Kinsey He had

testimony on sound planning.

testified about sound planning on his direct. plenty of opportunity to explain it then. rebuttal. testimony. MR. EISDORFER:

This is not

This is just a restatement of his direct

Your Honor, this -- we had a

whole, we had hours and hours of idiosyncratic testimony on the subject. to rebut that. THE COURT: I didn't -- I mean, I dont even I think we're entitled to,

Kinsey - 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 know where it's going yet. question yet. MR. WOODWARD: THE COURT: Sorry, Your Honor. I didn't even hear the

80

But, the -I heard the word sound

MR. WOODWARD: planning -THE COURT:

I know. And there was a lot of

MR. WOODWARD:

testimony from both, from both Mr. Slachetka, but also from Mr. Kinsey about sound planning. THE COURT: All right. And this is not for re --

MR. WOODWARD: THE COURT:

Well, but I don't know -- that

was just the first question. MR. WOODWARD: THE COURT: All right.

So let's see what this line of

questioning is going to be. BY MR. EISDORFER: Q Okay. Can you describe to us the different

kinds of tests that Planners perform at the municipal level? A Certainly. Your Honor, at the municipal level,

Planners, public Planners working for a municipality, are engaged two broad, different kinds of tests at different scales. First there is municipal-wide

Kinsey - 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 planning. Typically, in the preparation of a Master

81

Plan, the Master Plan and its various elements, particularly a land use element and a housing element. And then that often leads, typically leads to the recommendations for the zoning ordinance to implement the Master Plan. And then a very different scale is a site specific scale that is used, that comes into play when a development application is submitted to a Municipal Planning Board or a Municipal Board of Adjustment. And

in that context, the Planner is reviewing a specific application for the specific site, comparing what's proposed to the applicable standard that has been adopted by the municipality in the zoning ordinance. Q Now, are the, are the standards and the

considerations that a Planner utilizes in forming his or her professional functions the same or different in those different planning tests? A They are different for the different scales and

different kinds of tests, whether it's municipal or site specific. Q Now are these, are there other tests that

Planners might perform in connection with the site of affordable housing? A Yes.

Kinsey - 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 And can you describe those tests?

82

A municipal Planner involved in preparing a

municipal Housing Element and Fair Share Plan has the responsibility of first identifying the municipal Fair Share Housing obligation, and then secondly, developing recommended ways to address that obligation. The Fair Housing Act of 1985 specified certain minimum requirements for the contents of the Housing Element and Fair Share Plan in part of an amendment to the Municipal Land Use Law. COAH rules

also specify the required components of the municipal Housing Element and Fair Share Plan. Q Now, does this involve applying different

standards and criteria from those of general planning, such as formulating a Master Plan? A Yes. Q In what way?

The Master Plan, Your Honor, is guided by the

broad statements of intent and purpose in the second section of Municipal Land Use Law. In comparison, when

preparing a municipal housing element in the Fair Share Plan, one has the, the benefit of a more specific requirement of COAH rules and regulations, both as to the components of the Housing Element in the Fair Share Plan. And then, depending upon the compliance

Kinsey - 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 mechanism, or mechanisms that are used, there are different very specific standards in COAH rules for each of those mechanisms.

83

For example, if the municipal housing element and Fair Share Plan proposes inclusionary development combining market rate housing and affordable housing, there is a well-developed COAH standard that says sites must be suitable. They must be -- and meet the COAH

definition of suitable, to which I've testified before. Q Now, is, now are these tests the same as or

different from the test of, of assessing the suitability of a site that is proposed, that is proposed for builder's remedy? A That is yet again a third different type of

planning test, Your Honor. Q In what ways is it different from the

planning test that you previously described? A It is different because of the standards. The

starting point for the site suitability planning evaluation of a proposed builder's remedy site and project is Mount Laurel II. MR. WOODWARD: The standards --

Your Honor, I'm going to This is beyond It's beyond cross.

object to any further testimony. rebuttal. This is beyond direct.

It is not rebuttal.

It's merely a restatement of his

Kinsey - 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 prior testimony. And that's not rebuttal. Your Honor, Mr. Slachetka

84

MR. EISDORFER:

gave us a whole theory of what the standards are. I think that we're entitled rebut that theory. THE COURT: Yeah.

And

But, I mean, he doesnt

really have to go back to the beginning of his testimony again. So let's direct it. But, Mr. Slachetka said there And, and

MR. EISDORFER:

is one standard that governs all planning.

the thrust of Dr. Kinseys testimony is no, there is not one standard. There are different kinds of And this is

standards for different kinds of tests.

specifically rebutting to Mr. Slachetkas claim that there is but one standard that applies everywhere. Q Your Honor, I specifically asked Dr. Kinsey

on the stand, whether there was, it was the same or different. And he said they were different. We are Having

entitled to put on our case to contest that.

Dr. Kinsey come back and say the same thing that he said on direct is not rebuttal, and it's inappropriate, and it should be terminated. THE COURT: just direct him to -MR. EISDORFER: Okay. I've got one more All right. Well, why dont you

question to ask along this line, and then I'm going to

Kinsey - 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 change my focus. THE COURT: Okay. Okay.

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MR. EISDORFER: BY MR. EISDORFER: Q

So, Dr. Kinsey, you want to finish the answer

to the question that was interrupted by Mr. Woodward? I asked you whether, whether the test of assessor, the suitability of the site that's proposed as a builder's remedy site are the same or different from the other kinds of planning tests that you had previously described? A Yes. It is different, Your Honor. It is site

specific.

But the standards that one is evaluating at

the specific site scale stem from Mount Laurel II and its standards to which I have previously testified. And as I also previously testified, the checklist of 14 site suitability criteria that I developed based on the 2008 revised COAH Third Round Rules provided specific point by point approach to evaluating a specific site and a specific builder's remedy proposal for such a site. Q Now, are you familiar with the concept of

sustainability? A Yes. Q Now is this a realm in which you have

Kinsey - 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? A Yes. knowledge and experience? A Yes. Q Is this an area in which you have actually

86

taught, taught students? A Yes. Q Can you describe what youve done in this

In the past three years, Your Honor, I have

created and taught two graduate policy workshops in the broad area of sustainability at Princeton University. In the fall of I believe it was 2007, I created a workshop on Climate Change, State Initiatives, and Coastal Hazard Mitigation and Adaptation. The client

for the graduate students was the New Jersey Department of Environmental Protection, its Division of Science and Research. And then in the fall of 2009, I created and taught a graduate workshop with the title of Greening Newark. And there the client was the City of Newark,

and specifically the Citys Sustainability Officer. And the assignment was to prepare a framework for a Sustainability Action Plan for the City of Newark. In both of these workshops, the graduate students under my direction prepared, roughly 100 page, very detailed reports with their recommendations,

Kinsey - 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 BY MR. EISDORFER: Q Now let me show you a document that's been findings, analyses, research based on field visits across the country; all and which they then presented

87

in an oral manor to their clients with a give and take lively discussion. And the final report is publically

available to the world on the website of the Woodrow Wilson School. Q Now did -(Pause)

marked as P-78 and ask you if you can identify that document? A Yes. This is a Climate Change Workshop that ran

in the fall, I misspoke; the fall of 2006, the fall of 2006 semester. January 2007. Q And was -- is this the document that you That's why the final report is dated

referred to where the client was the New Jersey Department of Environmental Protection? A Yes. Q And was this, in fact, submitted to the New

Jersey Department of Environmental Protection? A Yes. Q And do you know what the Department of

Environmental Protection did with the document?

Kinsey - 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. In this case, Your Honor, the

88

recommendations point to steps that the State government could take to deal with climate change. Shortly after this report was submitted, the client, specifically Jeanne Herb, the Director of that State Office was charged with drafting an Executor Order on Climate change. And shortly thereafter, many of the ideas and recommendations in this draft, in this report found their way into the Governor -- into the Executive Order on Climate Change, which Governor Corzine issued, I believe, in late January 2007. MR. EISDORFER: BY MR. EISDORFER: Q I'm going to show you a document marked as Mark this as P-79.

P-79 and ask you if you can identify that document? A Yes. This is the final report of the fall 2009 It's the

workshop entitled Greening Newark.

document -- the final report entitled Sustainability Action Plan Framework, A Plan for Greening Newark, New Jersey, dated January 2010. Q And is this the report that you described

where the client was the City of Newark? A Yes. And its, specifically its Sustainability

Officer.

Kinsey - 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 them? A I do not know. Q Now, now in light of your knowledge and Q

89

And, and do you know what the City of Newark

did with this report? A I know certainly at the final presentation, there

was not only the Sustainability Officer, but several Division Directors who were quite attentive and asked eager questions indicating that there were certainly things that they were planning to do the next day in their offices to carry out some of these concepts. Q But you dont know if they ever actually did

experience, to what extent, to what extent is sustainability an appropriate criteria for assessing sites that are proposed for builder's remedy? A In my opinion, Your Honor, sustainability

itself -MR. WOODWARD: Objection, again. Your

Honor -- objection, again, Your Honor.

I specifically

asked the witness questions about sustainability and whether he considered them, or whether they could be or should be. This is nothing more than an elaboration of

his direct testimony, not rebuttal. MR. EISDORFER: Your Honor, we had an entire We're entitled

day of testimony by, by Mr. Slachetka.

Kinsey - 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 questions. to respond to that. THE COURT: Im going to look at my notes.

90

I'm want to see if he testified about sustainability. (Pause) It looks like there was cross-examination on sustainability. But it was rather brief, actually.

How much, how much do you -MR. EISDORFER: I have a handful of

I have, I have less than five minutes of

questions on this. THE COURT: I think it would help me to So, I'm

clarify his testimony on cross-examination. going to allow it. BY MR. EISDORFER: Q

Now, do you have an opinion as to whether

sustainability is an appropriate criteria to be used by a Planner in evaluating sites that are proposed for builder's remedies? A Yes. Q And what is that opinion?

My opinion, Your Honor, is the term sustainability And it is not an appropriate

is not a criterion.

criterion for evaluating sites proposed for a builder's remedy. Q What do you mean it's not, it's not a

Kinsey - 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 term. A criterion? A Sustainability is a very broad concept, Your

91

Honor, with many potential components, depending upon the situation, the scale, the jurisdiction, and the use of the term. Q And, and are there considerations that

militate against using sustainability as a criteria? A In the context of the builder's remedy? Q Yes. Yes, yes. The circumstance, Your Honor, is to, that in use of site

there should be replicability suitability criteria.

I use the color base criteria, They've been tested over And they're adopted

because they are specific. time.

Theyve evolved over time.

as a rule by a State Agency, by the State agency charged with carrying out the Fair Housing Act and the Mount Laurel doctrine in the Executive Branch. The term sustainability by itself, is subject to all kinds of definitions that do not. And that fact

lends itself to not being useful as a criterion for evaluating whether a builder's remedy site and project are acceptable. Q Now, Mr., Mr. Slachetka used a, a narrower He used the term, auto dependence. Do you have

an opinion as to whether auto dependence is an

Kinsey - 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 BY MR. EISDORFER: Q Dr. Kinsey, are you, are you familiar with A A appropriate criteria to evaluate sites which are proposed for builder's remedies? A Yes. Q And what's your opinion?

92

My opinion, Your Honor, is that the simple fact of

auto dependence or not is not an appropriate criterion for evaluating a proposed builder's remedy site. Q And why is that?

It is because it does not comport with the

standards expressed by the Supreme Court in Mount Laurel II for evaluating a builder's remedy site. And

furthermore, simply the pattern of settlement of our State of New Jersey over the past 200 years have led to many, many roads and much traffic and settlement that relies upon using those roads in motor vehicles. That's they way we've developed our State. And so that

many of the appropriate residential development sites are long roads and not in proximity to transit, neither bus or rail, or light rail. MR. EISDORFER: some documents here. (Pause) Your Honor, I'm going to mark

inclusionary housing sites that have been approved by

Kinsey - 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 Courts in the context of exclusionary zoning litigation -A Yes. Q -- which are, which dont meet Mr.

93

Slachetkas standard automobile dependence? A Yes, I am. Q Okay. And so I'm going to ask you to But I understand that youve

describe some of those.

prepared some, some aerials that show the location of those. I'm going to ask you to identify each of them.

Let's talk about, identify P-80. A Yes. P-80, Your Honor, is a -MR. WOODWARD: no idea what P-80 is. MR. EISDORFER: when he identifies it. one copy at the moment. MR. WOODWARD: Your Honor, usually you show I'm going to show it to you I'm sorry, Your Honor, I have

I dont have -- we only have

it to Counsel before you show it to the witness. MR. EISDORFER: THE COURT: I have no objection to that.

Well, you should just take five

minutes and show them to Counsel, all of them, because I noticed that you marked a number of documents. Ill be back. (Tape off - tape on) And

Kinsey - 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. question. THE COURT: Oh, okay. Excuse me. first. BY MR. EISDORFER: Q Did you identify sites in a number of towns

94

that you are familiar with in which the Courts have approved housing developments that would not correspond to Mr. Slachetkas -MR. WOODWARD: MR. EISDORFER: Then, then -THE COURT: Withdrawing the question? Are Objection. Well, let me ask the question

you going to rephrase the question? MR. EISDORFER: No, I haven't finished the

MR. WOODWARD:

I apologize, Your

I thought he was done.

BY MR. EISDORFER: Q Dr. Kinsey, have -- are you familiar with

towns in which Courts have, have approved sites that are outside the standards proposed by Mr. Slachetka as affordable housing sites? MR. WOODWARD: Objection, Your Honor. First

of all, that question is incredibly broad.

Secondly, I

think it's going to refer to the photographs that he is showing us. And, I think, under the circumstances,

since Mount Laurel talks about case by case

Kinsey - 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. determinations, that any questions about other sites,

95

which are, frankly, not even been considered or appear in this case before are totally inappropriate and irrelevant. Certainly, you know, we received no

advance notice of any of this. MR. EISDORFER: Your Honor, Mr. Slachetka

testified extensively that he understood based on other, other decisions that he couldnt identify for us, that, that sound planning would establish these standards. We're entitled to that by showing the

Courts have indeed approved sites and to explain what those, what those characteristics are. Dr. Kinsey is singularly in a seemingly good position to testify because he was Special Master in a number of those cases. You know, we could do it with The photographs help

or without the photographs.

because it actually shows graphically what he testified to verbally. MR. WOODWARD: Your Honor, I, I continue my

I think the question of Mr. Slachetka was

were you aware of any reported or unreported decisions in which this was done? photographs. We have -And I think he said no. And he said he couldnt We have a bunch of

THE COURT:

MR. WOODWARD:

Kinsey - 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 remember any specific ones off the top of his head. THE COURT: Right. Right.

96

MR. WOODWARD:

So what's the relevance of

this, of this line of questioning? MR. EISDORFER: In fact, there, in fact, lots

and lots of instances where -THE COURT: All right. Let's -- why dont

you just -- I mean, I'm going to allow it to the limited extent that it goes to the credibility of Mr. Slachetka, and Ill allow it briefly. But why dont

you rephrase your question, and, and do it that way? MR. EISDORFER: BY MR. EISDORFER: Q Dr. Kinsey, are you familiar with, with sites Okay.

that were approved as housing, housing sites in West Windsor? A Yes. Q I'm going to show you -- and have you, have

you assessed whether there were housing sites that were approved by the Courts in Windsor that were outside, beyond, a half mile beyond, beyond train stations or other transportation? A Yes. Q I'm going to show you a document that will be Can you tell us what this is?

marked as P-80.

Kinsey - 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. A Yes, P-80, Your Honor, is an aerial image from

97

Google Earth which I took this morning that shows generally various portions of West Windsor -MR. WOODWARD: Let me just interrupt, Your I have a

I don't want to prolong this.

continuing objection to this entire line of questioning. THE COURT: Yeah, I -And I'm not going to continue

MR. WOODWARD:

to make objections, but I want my objection on the record. This is totally irrelevant to this proceeding. THE COURT: Mr. Eisdorfer, these photographs

that hes now testifying about he took this morning on Google Earth, why dont you ask him the question that you want to ask him, rather than enhancing it with -- I guess you marked 80 through 85. If they're all

photographs that were taken this morning off of Google Earth, clearly, they haven't been provided. I've really allowed a lot of latitude in this case, because, you know, if it was relevant, I wanted to hear it if it might assist me in rendering my decision. If it might be valuable and useful to the

Special Master, I want it to be in the case. But I, I really do think that at this point maybe we're, we're getting, you know, we are violating

Kinsey - 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 question. the Evidence Rules and the Best Practices Discovery

98

Rule by trying to introduce photographs that were taken on Google Earth this morning on the 11th trial day. MR. EISDORFER: THE COURT: Your Honor, --

So, why dont you ask him the

I think his answer will suffice at that, and

let's, let's move on. MR. EISDORFER: BY MR. EISDORFER: Q So, can you identify for us sites that, a Okay.

couple sites that were approved for affordable housing by the Court in the West Windsor case -A Yes. Q -- that were outside the half mile radius for

public transit? A Yes. And the site, Your Honor, is to the

southwest of the Princeton Junction train station far beyond the one half mile radius that was developed by Toll Brothers. And it was the subject of proceedings

in the Law Division, Appellate Division, and Supreme Court. Q How about in Bedminster Township?

Yes, another such case. Q Okay. And do you know what case that was?

Allan-Deane v. Bedminster.

Kinsey - 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 can you tell us what site that was?

99

This is a site known as The Hills, Your Honor, in

the northeast quadrant essentially at the intersection of I-78 and I-287. Q And how close is that to public transit?

There is no rail transit within, certainly within

a half mile, and probably several miles. Q that site? A The total development is more than 1,000 units I And do you know how many units that was at

believe. Q How about Montgomery Township?

Montgomery Township in Somerset County is where I And there too, there are two sites that

was a Master.

were approved by the Court in 1985, one to the north, one to the south. Neither is in proximity to rail

transit -- passenger rail service. On my aerial, I also marked the location of the so-called Griggs (phonetic) Farm site in northern Burling -- excuse me, northern Princeton Township in Mercer County, which is also far from rail service. Q Incidentally, is Bedminster a town that

actually has a rail station? A Bedminster? Q I do not believe so.

How about Far Hills?

Kinsey - 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 Far Hills?

100

They have, I believe there's a train

station there. Q How about West Windsor? Is there a train

station there? A Yes, Princeton Junction. Q Okay. How about in Mount Laurel Township?

In Mount Laurel Township, what I've marked are two One is referred to as Tricia Meadows, This was a builder's remedy granted by the

sites.

(phonetic).

Court to Davis Enterprises, who was a plaintiff who joined the case of NAACP of Southern Burlington County v. Mount Laurel after the initial trial. And I've also

shown the location of Ethel Lawrence Homes, which is the housing built by the successors to the plaintiffs. And neither is within many miles of rail transit. And

I know there is no bus service to the access road to, of the Lawrence Homes. Q How about Berkley Heights Township?

Berkley Heights Township in Union County is a case Here, there is And

where is served as a Special Master.

rail service, the Berkley Heights train station.

I've marked the location of the train station as well as the adjacent train station in New Providence to the east. And, within a half mile radius, I note two

Kinsey - 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 inclusionary developments that were approved by the

101

Trial Court, one on Glenside Avenue to the south -- no, east of the intersection of 78 and Diamond Hill Road. That is often known by it's -- the name of its location, the Glenside Avenue site or the -- it was either a plaintiff an intervener by the name of Gator Snoop (phonetic) LP. And then there's a second site on Springfield Avenue in Berkley Heights or the project known as Park Edge that was developed by an intervener. And it is

about at least three quarters or almost a mile from the Berkley Heights train station. approved by the Court. Q And, finally in Wall Township? And both sites were

In Wall Township, I was and am still the Mount Wall itself has no rail They headline

Laurel Special Master. service.

There is New Jersey Transit.

service to bel -- adjacent Belmar and adjacent Spring Lake. I have shown on this map the location of the

Spring Lake Garden Apartments, an inclusionary development, that is perhaps three quarters of a mile from the Spring Lake train station. I've also shown

the Baremore (phonetic) Mobile Home Park, which was developed in part by the Township. beyond a half mile radius. And it too is

Kinsey - 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 finally, I've shown the location of the Collingwood Mews, 100 percent affordable housing project developed by the Township in partnership with a private developer that is many miles from those train stations or any adjacent bus service to my knowledge. Q Now, if, if the criteria identified by Mr.

Slachetka were generally applied to the suitability of sites for the builder's remedies, would that have an impact on the number of towns against whom Mount Laurel obligation could be enforced? MR. WOODWARD: Your Honor, object to the form I don't know what

of the question, criterion. criterion hes referring to. MR. EISDORFER: dependency criteria. MR. WOODWARD: THE COURT: question again. BY MR. EISDORFER: Q

Your Honor, the automobile

Thank you.

Why dont you -- let me hear your

If the automobile dependency criteria

identified by Mr. Slachetka were generally applied to sites proposed for builder's remedies, would that have an impact on the number of towns that -- against who Mount Laurel could be enforced.? A Yes.

Kinsey - 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 In what way?

103

Well, there would be a few such enforcement

actions taken, given the locations in New Jersey that are within the half mile radius of train stations or light rail stations or, or bus terminals, and where there is vacant developable land that perspective builder plaintiff could acquire, or where there is sufficient property that could be acquired for private sector redevelopment and seek rezoning through the Mount Laurel complaint process. Q Now, Mr. Slachetka also talked about a LEED, Did you hear that testimony?

L-E-E-D criteria. A Yes. Q

He, he addressed two such criteria. Tell us what those, tell us what those

criteria were? A One is referred to as Leed, simply, L-E-E-D, And,

Leadership For Energy and Environmental Design.

that, Your Honor, is a set of building standards mostly for architecture, for the construction of buildings, office, residential. It talks about the building

materials and some aspects of the location of such buildings. And then -- and that's been around for, for It's a nationwide advisory of, set of,

several years. of guidance.

The second one is newer vintage, it's

Kinsey - 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 L-E-E-D, dash N-D, where the N-D stands for Neighborhood Development. I believe it was finally adopted by the LEED, the LEED Council in 2009. And

104

it's applicable to residential development, mixed use developments, things larger than the individual building scale. Q Now, do you have an opinion as to whether

either of those LEEDs criteria are appropriate criteria in determining the suitability of the site proposed for a builder's remedy? A Yes. Q What is that opinion?

My opinion, Your Honor, they are not appropriate

for use in determining the suitability of a site for a builder's remedy? Q Why, why is that?

Well, they are, they were developed for another They are broad. They are advisory. They are

purpose.

in many ways, aspirational.

They represent good

standards that should be striven for both in individual building design as well as the design of communities of different scales where possible, where feasible. But they do not, at least in New Jersey, have the force of law or regulation. They certainly have not

been adopted by the Council on Affordable Housing as

Kinsey - 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 part of its body of site suitability criteria. Q

105

Now, would, would the use of either of those

LEED criteria as a criterion, meet standards as a criterion or site suitability or site suitable for builder's remedies have an impact on the number of towns against which Mount Laurel could be enforced in the courts? A Yes. Q In what way? (phonetic)

The same manner as my previous testimony about Because again, one of the criteria in

auto dependency.

the LEED standards is the reference of mass transit, fully transit in proximity of rail or bus service. the limitations in our State geography of such areas would limit the possible places builder plaintiffs could seek to acquire sites and then bring Mount Laurel litigation, if that, those standards were a absolute requirement that must be met. Q Now, Mr. Slachetka testified at some length So

on the significance of density, as a suitability criterion. Have you done any analysis of the density

of this property as compared to other developments in Cranford Township? A Yes. Q And, and can you tell us -- did you actually

Kinsey - 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 Okay. BY MR. EISDORFER: Q Okay. So, tell us what you did. A write down the information on this? A Yes. Q Yes. Q

106

And, you have in front of you Exhibit P-33?

And can you point out to us where, where in

that exhibit you have done this analysis? A Yes. P-33, Your Honor, is my certification of I'm -THE COURT: Hold on a second. (Pause) Let me get it.

July 2009.

Yes, I'm referring, Your Honor, to Exhibit B at

the end of the certification, which is entitled, Cranford Multifamily Densities. And it's in quotes,

because what I did was take a listing from Mr. Slachetkas Planners Report of October 15, 2009, which listed various properties in Cranford by block and lot number. And I believe some indication of density and

called these all multifamily properties. What I then did, Your Honor, is with the block site, or the block and lot numbers, then I

determined what the actual street address was for each property. I then determined the site area, the gross

Kinsey - 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 on mine. MR. EISDORFER: I'm sorry. It's said D. site area. I then determined the number of units at

107

that location and then calculated the gross density in units per acre. THE COURT: THE WITNESS: THE COURT: That's not Exhibit D is it? B, B as in boy. I'm sorry. I thought you

Oh B.

B, I have an aerial image. MR. EISDORFER: Have we perhaps given the

wrong exhibit number? THE COURT: 33, Exhibit B is an aerial image

Exhibit -- or is it a different certification perhaps? This was actually P-34. THE COURT: You mean P-34? P-34. Sorry about that.

MR. EISDORFER: THE COURT:

Okay.

MR. EISDORFER: THE COURT: Exhibit B, okie doke.

My, my fault. So now we're on 34, P-34,

Okay.

I have it now. Okay.

MR. EISDORFER: BY MR. EISDORFER: A

Now, for computing the gross density, Your Honor,

I then added comments where I had additional information about the property, such as its building

Kinsey - 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 type. Some I found were townhouses. Others were

108

apartments where I knew the age. names such as Cranford Towers.

And others had common

And I computed the average gross density of the so-called multifamily properties that Mr. Slachetka have identified. acre. Q Now, how does that compare with gross density And that average was 23 units per

of the CDA site? A I believe our proposed gross density is 26.4 units

per acre. Q Now, you computed the average. Were there

projects that were higher or lower than that average? A Yes. And there were projects that were really of

different building types, such as townhouses which typically would have a gross density lower than that average of 23 per acre, that were included on Mr. Slachetkas list. Q Now, can you highlight for us, some of the

projects that, the existing projects in Cranford that you identified that have higher densities. A Yes. There's one called Cranford Towers on That has a

Springfield Avenue, 18 Springfield Avenue. density of 59.9 units per acre.

Another one that's That has

significant is English Village Condominiums.

Kinsey - 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 gross density of 36.9 units per acre.

109 That's at 217

Prospect Avenue, is the street address that occupies the northern half of a, of a block. And another significant one would be the Riverside Apartments at 1218 Riverside Drive has a gross density of 58.2 units per acre. Q Now, did, did you actually visit these sites?

I did, in the course of preparing for, preparing

this table back in 2009. Q Can you describe for us what Cranford Towers

looks like? A Cranford Towers is a red brick building. It, I

believe it has four stories fronting on Springfield Avenue. And then it, the site slopes to the north to And I believe there are five stories

the Rahway River.

on the rear faade. Q How about English Village?

English Village Condominiums is a, it's a large It too is red brick. And, on the Prospect

structure.

Avenue elevation, there is a, a formal gate, wroughtiron gate. And I believe it's four stories on that But if one goes to the

elevation of the building.

north, there are five stories; again, because of the slope. And there are many garages on the first floor

level on that north elevation.

Kinsey - 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 And how about Riverside Apartments?

110

Riverside Apartments, Your Honor, is on the north That

side of the Rahway River along Riverside Drive. building has somewhat of a U configuration.

It too has

a sloping site, so that portion of it I believe has four stories. Another portion has three stories, but

with a pitched roof that approximates the height of a standard four or five story structure. brick. Q Now, Mr. Slachetka, if I understood his It too is red

testimony, testified that if this were developed with a set aside of 15 percent that that would impose on Cranford an additional housing obligation. recall that testimony? A I do. Q Do you have an opinion as to whether that Do you

testimony is correct? A I do. Q And what is that opinion?

I believe it's incorrect, Your Honor. Q Okay. And explain to us, how, how Cranfords

housing obligation is, is determined by COAH, and why your opinion is that's an incorrect opinion. A Your Honor, and Ill cover this very quickly.

Cranfords Fair Share Housing Obligation is three

Kinsey - 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 object. components. discussed. obligation. The rehabilitation share has been The second component is the prior round That component was calculated by COAH,

111

which calculated and estimated the statewide need for affordable housing for a 12 year period, 1987 to 1999, and then allocated it to every municipality in New Jersey, including a portion to Cranford, namely, 148 units. MR. WOODWARD: Your Honor, I'm going to

Your Honor, I'm going to object, because this

is testimony that this witness gave on his direct. MR. EISDORFER: Your Honor, Mr. Slachetka I think we're entitled to

offered a specific opinion.

respond to that specific opinion and to provide the explanation to explain why that opinion is wrong. THE COURT: Well, how far into what he

testified about already does he have to go? MR. EISDORFER: Your Honor, I think he has

just about hit the main point. THE COURT: BY MR. EISDORFER: A The third component, Your Honor, is called the Thereto, that was a Let's proceed to that.

projected growth share obligation. two step process by COAH.

First COAH estimated,

calculated the statewide need for affordable housing

Kinsey - 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 the period 1999 to 2018.

112

Then COAH allocated that

statewide need to all the municipalities of the State. And in that allocation process, Cranford was allocated an obligation of 328 affordable units. Q Now, does that obligation depend upon any

particular, any particular development? A No. Q Why not?

Because, Your Honor, that is the allocation from

the State agency charged with developing Fair Share housing need estimates and then allocating those, that need to regional and municipal levels. develops need and allocates it. obligation arises from. Q Now under the COAH regulations, other than That's how COAH

And that's where the

through a vacant lands adjustment, can, does that, does that obligation change based on how much or how little the town develops? A Yes. Q In what way?

Under the third round rules, Your Honor, COAH

requires a municipality to keep track of how much actual growth takes place in a municipality, and requires that affordable housing be developed in a commensurate proportion to actual residential and non

Kinsey - 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 residential development.

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If more growth takes place than would require the development of Cranfords allocated 328 affordable units, then Cranford is responsible for whatever additional affordable housing is triggered by the actual growth that takes place in Cranford. Q Well, suppose the growth is less than the

growth projected by COAH? A Then, Your Honor, under that circumstance, the

COAH third round rules require that the municipality nevertheless, still maintain in place in it's Housing Element and Fair Share Plan realistic opportunities for the full third round obligation as allocated by COAH. Q So, suppose, suppose Cranford always remains

during the third round, below its projected growth? Does -- what happens? Does any particular project

affect its housing obligation? A No. Q And why not?

Because the allocation of 328 unit allocation is a It's not driven by or derived from

COAH allocation.

any particular development residential or nonresidential that may take place in Cranford. Q Now, Mr. Slachetka indicated that as to prior

round need, where there is, when the municipality seeks

Kinsey - 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 objecting. A a downward adjustment of its compliance plans by, by

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determining a realistic development potential, and that downward adjustment takes it below its entire allocated need, something is left over. A Yes. Q And are you familiar with the vocabulary COAH Do you recall that?

uses to describe that something that's left over? A Yes. Q And what is that?

COAH now calls that the unmet need. Q And what are the, what are the towns

obligations vis-a-vis that, under that need? MR. WOODWARD: Your Honor, I hate to keep

But this is again a repetition of what this

witness already testified about. MR. EISDORFER: Slachetka got it wrong. respond and explain -THE COURT: specifically ask that? think -MR. WOODWARD: You know, Your Honor, the way I think -- well why dont we Why or how did he? I mean, I Your Honor, I think Mr. And I think we're entitled to

I understand trials go, is the plaintiff puts in their case, we put in our case. he testifies to X. They put their expert on and

We on our expert and he testifies

Kinsey - 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 I agree with X or I disagree with X. They dont

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then get to come back and say, oh, now we, we have something different we want to say. goes last? rebuttal. It's like well who

And as far as I'm concerned, this is not It's just a repetition. MR. EISDORFER: Your Honor, in the best of

all possible worlds, we would have had the defendants go first, where the burden of proof lies. it that way. We didn't do

And so we're in the situation of -All right. Counsel, I can't keep

THE COURT:

going back and forth about, you know, -- it starts getting really to the heart of the way the trial has been conducted. And I'm sure, you know, I'm sure I know

youll raise that at the appropriate forum.

I've tried to make it fair and unbiased, and to hear all the information that's necessary to render a wellreasoned decision in the case. And, you know, if, if my fault was taking witnesses out of turn or not strictly sticking to who had the burden of proof, you know, then perhaps I could be criticized for that. However, what I'm trying to get at is, what is the important information for deciding this case? And that's been my, really, my guiding principle. A

non-jury case, I've said this before, I can make the

Kinsey - 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 assessments of what's relevant, what's repetitive, what's redundant and attribute that testimony the appropriate weight. So, but I mean, really, you dont need to rehash what you said on direct examination. And the

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truth is, I mean, Mr. Woodwards point is well taken. How many times can you go back and forth and back and forth? And that's been -- you know, I mean, I dont

even want to say it, because I feel the request coming. So, let's limit it to what would be true rebuttal, okay? BY MR. EISDORFER: Q The -- in his testimony, Mr. Slachetka

indicated that the Town met this unmet need, proposed to meet this unmet need through the adoption of an overlay ordinance. A Yes. Q Do you have an opinion as to whether that's Do you recall that?

an adequate response under COAH standards to me that unmet need? A It's not an adequate response to simply say ones

going to have an overlay ordinance, and a development ordinance, which is what the 2008 plan said. Q And given the -- under the facts of, the

circumstances of this case, what would have been the

Kinsey - 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 appropriate response? A

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To identify potential sites that could have been

developed, likely to be developed or redeveloped, for example, the plaintiffs site; and assign an appropriate density to provide an appropriate incentive for private sector inclusionary development. Q Now, the, as to the third, the third

round prospective need, what is the municipalitys obligation if it has, if it has determined that it's entitled to adjust its housing obligation? A A municipalitys responsibility, Your Honor, is to

address the full fair share obligation that's allocated by COAH. Q Yes. In this case it's 328 units. Does COAH have a vocabulary for that? COAH has a provision called identifying And that's where

potential growth share opportunities.

COAH says those municipalities that seeks such an adjustment of it's projected growth share obligation must also take this next step and have the duty to identify areas that are likely to develop or redevelop and then assign appropriate compliance measures to, to capture affordable housing opportunities in order to address fully the allocated third round obligation. Q Now, you heard Mr. Slachetkas testimony as Do

to how Cranford addressed that, that obligation.

Kinsey - 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 you recall what that testimony was? A I recall the testimony. Q

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Do you have an opinion as to whether, as --

thats Cranfords response as described by Mr. Slachetka, satisfied its obligations under the Council on Affordable Housing regulation? A It did not to my understanding, Your Honor. Q What should, what should Cranford have done

to comply with the Council on Affordable Housing standards? A Simply follow the COAH rules, which is to identify

and prepare inventory of sites that are likely developed or may redevelop. And there when one has

private sector interests expressed to municipality, that's an indicator of where that path might, might follow -- which path one may follow, and then develop appropriate compliance mechanisms, such as rezoning that appropriate density, that appropriate set aside to encourage that private sector activity that will create affordable housing opportunities and get closer towards the municipality being able to create realistic opportunities to address fully its allocated Fair Share Housing obligation. MR. EISDORFER: questions of this witness. Your Honor, I have no further

Kinsey - 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 COURT: Anything on cross? Thank you.

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MR. WOODWARD:

CROSS-EXAMINATION BY MR. WOODWARD: Q Now, I think you said or were asked in

response to Mr. Eisdorfers question whether the overlay ordinance proposed in the Housing Element and Fair Share Plan was an adequate response and you said no, correct? A Yes. Q was it? A No, but the develop -Q It was a development to the ordinance That wasnt the only thing that was proposed

proposed wasnt there? A Yes. Q And I just testified to that. And other properties were identified The Myrtle Avenue streets, were they

specifically.

included in the Housing Element and Fair Share Plan? A Yes. Q So when you said it was inadequate, you were

only talking about whether only an overlay ordinance was adequate, weren't you? A What is your question? Q Let me repeat myself, sir. Your testimony

was that only the overlay ordinance was inadequate.

Kinsey - 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 question. Isn't that correct? A No. Q Well, what were the elements of compliance

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put forth in the Housing Element and Fair Share Plan? A There were -MR. EISDORFER: Your Honor, I object to the

The question was -- the issue that Dr.

Kinsey specifically addressed was what was the Township going to do beyond meeting it's realistic development potential? And Mr. Slachetka testified on that. And I

think Mr. Woodward here is mischaracterizing Mr. Slachetkas testimony on that subject. MR. WOODWARD: Slachetkas testimony. testified to. THE COURT: BY MR. WOODWARD: Q Tell me what the elements are of compliance I'm going to allow it. It has nothing with Mr. That's what this witness

in the Housing Element and Fair Share Plan, overlay district, right? A The 2008 Housing Element and Fair Share Plan? Q Overlay district?

That was one item mentioned, yes. Q Development and redevelopment ordinance.

That was mentioned as well.

Kinsey - 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 Q Myrtle Avenue property?

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Myrtle Avenue, yes. Q Riverfront property?

I believe so. Q 555 South Avenue East?

That was mentioned as well. Q So it wasnt only an overlay ordinance, was

it sir? A The -Q Was it? Yes or no?

Please define it then. Q The proposed compliance? In the Housing

Element and Fair Share Plan, it was not only the overlay district, was it. A That's correct. Q Thank you. The -Now, you described some

development in Cranford some housing development, I think Riverside Apartments, Cranford Towers, and English Village Condominiums. testimony. A Yes. Q All right. Would you tell me when the Do you recall that

English Village Condominiums were constructed? A Some decades ago. Q Maybe 30 years ago?

Kinsey - 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 It could be. Q Okay. I don't know the precise date. How about the Riverside Apartments?

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When were they constructed? A Probably also several decades ago. Q How about the Cranford Towers Apartments?

Probably also several decades ago. Q The Cranford Tower Apartments is how far from

the train station? A I haven't measured it. Q Within a couple blocks, isn't it?

It is close. Q How about the Riverside Apartments? That's

within a quarter of a mile, isn't it, of the train station? A I haven't made, made that measurement, Your Honor. Q How about the English Village Condominiums?

That's within a half mile, isn't it? A It could be. I don't have that measurement in

front of me. Q The bottom line is, you dont know, do you?

I haven't made that measurement. Q Now, on the Cranford Towers, you talked about Do you

the gross density of 59.9 units per acre. recall that? A Yes.

Kinsey - 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 Q Whats the size of the property?

123

According to my table, this is Exhibit B, it is

0.618 acres. Q So it's 37 units, correct? THE COURT: Which one are you talking about? Cranford Towers, Your Honor.

MR. WOODWARD: THE COURT: BY MR. WOODWARD: Q Yes. Q Yes. Q Yes. Q All right.

Okay.

It's 37 units, correct?

Built on 0.618 acres, correct?

That's about maybe 30,000 square feet?

The English Village Condominiums

are how many units? A 101 units. Q correct? A Yes. Q But it's only one quarter as large as the Isn't that correct? Now you said that was a very large structure,

proposal that's for the CDA site. A

I haven't measured the volume of the structures. Q Well, if youve got 101 units in an apartment

building and youve got 419 in another, doesnt it

Kinsey - 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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stand to reason that the 419 is probably about 4 times as large as the 101? A It's probably, yes, it's certainly a much larger

building. Q And as a matter of fact, if this apartment

complex was constructed maybe 30 years ago, the units are probably smaller than the units that are proposed for the CDA site, correct? A Perhaps. I don't recall the specific square

footage of the units proposed in the CDA site. Q And, and the CDA site, if the units are

larger, it could be a lot more than four times larger than this English Village Condominium project, correct? A It depends upon the bedroom mix in the English

Village project. Q Okay. But you dont what that is, do you?

I do not know how many three bedroom units that

are there. Q In fact, how large is the acreage of the

English Village Condominium project? A 2.74 acres, Your Honor. Q Yes. Q All right. Now, how about the Riverside So you have 101 units in 2.74 acres, correct?

apartments.

How many units are there?

Kinsey - 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 MR. WOODWARD: few more questions. CROSS-EXAMINATION (CONTINUED) BY MR. WOODWARD: Q site? A About 15.7 acres, I believe. Q And if you subtract the floodway and the A A A (No verbal response from the witness) Q Yes. Q And it's on 0.845 acres, correct? 48, correct?

125

I believe it's 0.825 acres. Q Okay. And what's the acreage of the CDA

flood hazard area, how large is the remaining area? A I haven't made that calculation. Q Now, -MR. WOODWARD: Your Honor, I think this would Thank you.

be a good time to take a few minutes. THE COURT: I would agree. (Recess)

Thank you, Your Honor; just a

Mr. Kinsey, you testified on direct to some

projects that you were familiar with that you thought were outside the half mile radius of the train stations or other mass transit, correct? A Yes. Q And just so I want to make sure I have the

Kinsey - 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 correct ones. A Yes. Q Okay. And what was the year of that case? Supreme Court? I'm

126

One was Toll Brothers in West Windsor?

The case? Q

Well, I mean, when this -- go ahead. I interrupted. I apologize. Go ahead.

sorry. A

If by case you mean the Supreme Court decision, I

believe that was in 2002. Q Okay. And, the Bedminster Township matter,

what was the period of time that that one took place? A 1971. I believe the litigation was initially filed 71, But Judge Circumtelli, (phonetic) as the Trial

Judge made the builder's remedy decision, I believe, in 80, 1984. Q And, Montgomery Township, I think you said

was in 1985. A That was in 1985, those proceedings. Q Okay. And Berkley Heights?

Berkley Heights was a multi-year process that The judgment, the initial

began probably in 1987.

judgment of repose may have been entered in 1989. Q Yes. Q Township. Okay. And, I think you mentioned Wall Okay. So, in the late 80s?

Kinsey - 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 Wall Township. Q When was that?

127

That litigation began also in 1987.

The initial

judgment of repose was probably early 1990s. Q Okay, the early 90s. Was there any other

that I, maybe I missed? A Mount Laurel-Q Oh, right.

-- Township. Q You mentioned Mount Laurel Township. And

when was that, because that's been a (inaudible) right? A It was, the initial, initial complaint was filed And after Mount Laurel II, there was a remand And the, a builder's remedy that I

in 1971.

to the Trial Court.

mentioned to Davis Enterprises, was, I believe, granted in, if not by the Supreme Court itself, then shortly thereafter 1983, 1984. Q Okay.

And there was also a, there was a judgment of

compliance and repose settlement agreement with the parties, I believe in 84 that provided the authorization for Ethel Lawrence Homes, the other project I mentioned. Q Now, now under Mount Laurel, every

municipality in the State has some sort of Mount Laurel

Kinsey - 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 question. MR. WOODWARD: question, Your Honor. All right. Withdraw the A obligation, correct? A That's correct. Q All right.

128

So a town that has public transit

has, you know, one set of criteria -- one set -MR. WOODWARD: BY MR. WOODWARD: Q So some towns that would have an obligation Withdraw the question.

would have public transit, correct? A Yes. Q Yes. Q I mean, say in, you know, Sussex County or And some would not?

something like or -- you might not have any public transit available, correct? A That's, that's a broad question as what one might.

I mean, there certainly are bus routes through parts of Sussex County. Q Right. But when we're talking about location

of a project, of an affordable housing project, of a builder's remedy site, we're not, we're not just talking about access to public transit are we? MR. EISDORFER: Object to the form of the

It was not well worded.

Kinsey - 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 question. question. BY MR. WOODWARD: Q BY MR. WOODWARD: Q

129

When we have a site, access to public transit

is not the only consideration. A By whom? MR. EISDORFER: Object to the form of the

In terms -- access to public transit is not

the only criterion in terms of siting or the suitability of a site for an affordable housing project, correct? MR. EISDORFER: Object the form of the

This witness has testified that it's not the

only, it isn't criterion at all. THE COURT: the question? MR. EISDORFER: Well, because if he answers Okay. Well, why can't he answer

the question as stated, the record is, it would indicate that, that he did recognize it as, as one of the criteria. THE COURT: Let me hear your question again.

I guess hes objecting to the form of the -- Mr. Eisdorfers objecting really to the form of the question. MR. WOODWARD: Withdraw the question, Your

Kinsey - 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 Honor. Ill rephrase it.

130

BY MR. WOODWARD: Q So you dont consider access to public

transportation a criterion in terms of evaluating whether a site is suitable for affordable housing? A It is not one of my 14 COAH based siting criteria,

Your Honor. Q And you dont consider whether a facility, a

proposed site as part of your criteria is easily accessible to stores or municipal services? A No, it is not one of the COAH based siting

criteria? Q Okay. Or a supermarket?

No, it is not one of the COAH based siting

criteria. Q And I take it you dont think sustainability

is a, an appropriate criteria for consideration when you're evaluating a project, an affordable housing project to see whether or not its site is suitable for affordable housing? A No, it's not a COAH based siting criteria. Q But, dont the COAH rules and regulations

require that a site designated to produce affordable housing shall be consistent with the State Development and Redevelopment plan, --

Kinsey - 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 is one, -Q -- among other things?

131

That is one of the requirements and one of my COAH

based siting criteria. Q And doesnt the State Development and

Redevelopment Plan describe sustainability as something to be considered in siting and developing projects? A I am not aware of a specific provision on siting

linking the concept, the broad concept of sustainability with the siting of projects for affordable housing. Q Well, okay. So you're talking about broad

concept of sustainability, but the COAH regulations specifically say that the site shall be consistent with the State Development and Redevelopment Plan, correct? A The rules have that requirement and have specific

provisions, Your Honor, by planning area in the State Plan. Q And you limit your concept just to the

planning area and not anything else contained in the, in the State Development and Redevelop Plan? A That's how I understand the proper interpretation

of the COAH rules. Q So all of the discussion in the State Plan That's your

about sustainability can be ignored?

Kinsey - 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 testimony? A Ignored in what context? Q In determining whether or not a site is

132

suitable for affordable housing? A Yes. Q It's not a COAH based siting criterion. Okay. So we can take the State Redevelopment

Plan and only consider planning area one, which Cranford is in, and we dont consider any of the other language in the State Redevelopment Plan about its goals of achieving sustainability? We dont include

that in terms of evaluating whether a site is suitable for affordable housing? is? A I believe the proper evaluation and use of a State That's how the rules are Is that what your testimony

Plan is by planning area.

spelled out, Your Honor, the COAH rules. Q Can you answer my question yes or no.

Sustainability is not to be considered? A The broad concept of sustainability is not

something to be considered in that siting process. Q How about the specific concept of Should that

sustainability regarding a specific site? be considered? A

Please define specific concept of sustainability

for me?

Kinsey - 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 Honor. A Q

133

Well, a specific site, this site, any other

site that's recommended for affordable housing should not consider sustainability as respect to a specific project that's recommended. A That's your testimony?

I don't know what you mean by sustainability in

your question. Q Have you read the State Development and

Redevelopment Plan, sir? A I have read many parts of the State Development

and Redevelopment Plan, both editions. Q Have, have you read the parts that talk about

sustainability? A I may have read them? Q But you dont recall those?

I do not recall. Q All right. MR. WOODWARD: Wait a minute. No further questions, Your Hold it.

BY MR. WOODWARD: Q Dr. Kinsey, on the sites that we went over

before, Toll Brothers, West Windsor, Bedminster Township, Montgomery Township, Berkley Heights, Mount Laurel Township, and Wall Township, I think you testified, at least as to some of them, you were the Special Master, correct?

Kinsey - 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 COURT: please. MR. EISDORFER: Honor. THE COURT: A A That's right. Q

134

So which ones were you the Special Master in?

I was the Special Master in Montgomery

Township, -THE COURT: BY MR. WOODWARD: A For Judge Circumtelli; Berkley Heights Township, And I continue to serve as Special Wait. Hang on a second.

for Judge Pisansky.

Master in Wall Township. Q So these are three sites where it's your

specific recommendations that are having an influence on how these properties are being developed, or were developed? A These are sites where I participated in the

process and did make recommendations to the Trial Court. MR. WOODWARD: No further questions, Your

Mr. Eisdorfer, is there anything,

I have a couple of questions.

I need a copy of the State plan exhibits, the exhibit in evidence? You have the exhibit in evidence? (Pause) Mr. Eisdorfer.

Kinsey - Redirect 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. MR. EISDORFER: Okay.

135

REDIRECT EXAMINATION BY MR. EISDORFER: Q Dr. Kinsey, I want to recall you to the 2008 And did that plan,

project plan prepared by Cranford.

do you recall if that plan distinguished between housing that was to meet the Towns realistic development potential and things that were to address its unmet needs? A Yes. Q Okay. Let me show P-66, and I'm pointing you

to page 17. A Okay. Q And, and can you point out to us there where

the, that place where the plan makes that distinction? A Yes. Your Honor, on this table, the plan

indicates that, this is page 17, that the -THE COURT: P-66? D-66.

MR. EISDORFER: THE COURT: THE WITNESS: THE COURT: THE WITNESS: THE COURT: Thank you.

And where, where are you in P-66. Page 17, Your Honor, table 10. All right. 17. Thank you. Okay. I have What page?

Okay.

BY MR. EISDORFER:

Kinsey - Redirect 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 need? A Not in the table. Q heading. A Well, how about continuing to the next Q Okay. Can you start with the distinction

136

made in, in the plan? A The plan begins in this table by indicating the Then the plan

prior round obligation is 148 units.

deducts 37 credits for existing units at the Lincoln Senior Apartments. It then indicates what the need

after credits is, the sum of 111 units. Then if I jump a line, it calculates that the realistic development potential is 12 units. And so

arithmetically, that produces the simple vacant land adjustment of 99 units, which is labeled in parenthesis, unmet need. Q Does it then go on to talk about the unmet

The next heading is Addressing of Unmet Needs. Q And can you tell us how the Town proposes to

address that unmet need, as set for in the plan? A What the plan says, Your Honor, is that the

Township will address the unmet need through first adoption of a mandatory development fee ordinance. And

second, the application of a mixed use overlay in the downtown to encourage the development of affordable

Kinsey - Redirect 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 housing in mixed buildings, and the conversion of single story commercial buildings into two or three story mixed use buildings with affordable housing. Q And was the section of the plan you were

137

referring to in your testimony? A Yes. Q Okay. Let me show you the New Jersey State

Development and Redevelopment Plan which has been marked D-176. And do you recall it having a section

that tells how this plan is to be used? A Yes. Q Okay. Let me show you the page that has that

heading, which is page, page six. A Yes. Q And based on that, based on that page, how

was COAH to use the State Development and Redevelop plan? A There's an explicit provision, Your Honor, on page

six entitled Council on Affordable Housing that says that COAH coordinates the allocation of affordable housing needs with a State Plan policy map as required by statute and encourages the location of affordable housing in centers. Plan policy map. Q And is that consistent with the explanation So the reference is to the State

Kinsey - Redirect 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 step down. that you have given of the COAH standards? A Yes. MR. EISDORFER: THE COURT:

138

I have no further questions.

Anything else? Oh, I'm sorry. Hes done. No

MR. WOODWARD:

further questions, Your Honor. MS. MCKENZIE: THE COURT: Okay. I have none, Your Honor. Dr. Kinsey, you can

Thank you.

So we are at the close of business Do we have a witness for tomorrow? No. We are, my understanding And, and I

for today, Counsel.

MR. EISDORFER:

is, is -- our witnesses are the Engineers.

don't know what the status of Mr. Creelmans report is. THE COURT: September 7th? MR. WOODWARD: Correct, Your Honor. We will So well see you on

be exchanging reports, and we will be doing that promptly. I dont have any further information at the

moment, other than I had left a message for him earlier. I haven't spoken with him yet. THE COURT: is my Law Clerk? Why dont we plan to do -- where

Maybe we can plan to do a telephone

conference call on the 31st or the 1st of August? MR. EISDORFER: THE COURT: Very good.

How does that sound.

Kinsey - Redirect 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: THE COURT: In the afternoon.

139

I'm thinking -What day is the 31st? Yeah. Or

MR. WOODWARD: THE COURT:

The 31st -- actually.

maybe well do it on the 1st. MR. EISDORFER: Your Honor, I think the first

works, works better for us. THE COURT: Can -- yeah. I'm going to, I'm

thinking -- I want to try to schedule a telephone conference call on this case on September 1st. THE CLERK: THE COURT: You need you book? Yeah. Thank you.

MR. WOODWARD:

Well, I'm just saying the 2nd Is the 2nd okay, Your

will be better for me actually. Honor? MS. MCKENZIE:

The 2nd works better for me

than the 1st as well, Your Honor. MR. WOODWARD: for a few days. THE COURT: September 2nd? Yes, please. Is that Thursday? Yes. I anticipate being out of town

MS. MCKENZIE: MR. WOODWARD: MS. MCKENZIE: MR. FENLON:

That's a Thursday. Yeah, I'm good that day.

MR. WOODWARD:

Kinsey - Redirect 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 Dated: BY: Darcel D. Hart Darcel D. Hart September 19, 2010 A.O.C. #538 CERTIFICATION I, Darcel D. Hart, the assigned transcriber, do hereby certify that the foregoing transcript of THE COURT: 11 o'clock in the morning. Conference call 11:00 a.m.

140

MR. WOODWARD: September 2nd. Okay.

(Whereas proceedings of 8/18/10 were concluded) * * * * *

proceedings in the matter of LEHIGH ACQUISITION, ET AL, VS. TOWNSHIP OF CRANFORD, heard in the Union County Superior Court, Law Division, Civil Part on August 18, 2010, Tape Number 207-10, Index #0714 to Index #5652, and Index #6359 to Index #7001; Tape Number 208-10, Index #0001 to Index #0779 to Index #0842, and Index #1116 to Index #7024; Tape #209-10, Index 0001 to Index #2037, 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. AUTOMATED TRANSCRIPTION SERVICES