SUPERIOR COURT OF NEW JERSEY UNION COUNTY - LAW DIVISION DOCKET NOS. UNN-L-0140-08 UNN-L-003759-08 LEHIGH ACQUISITION CORP.

, Plaintiffs, vs. TOWNSHIP OF CRANFORD and PLANNING BOARD OF THE TOWNSHIP OF CRANFORD, Defendants; and CRANFORD DEVELOPMENT ASSOCIATES, LLC, a limited liability company organized under the laws of the State of New Jersey, SAMUEL HEKEMIAN, PETER HEKEMIAN, JEFFREY HEKEMIAN, and ANN KRIKORIAN as trustee for RICHARD HEKEMIAN and MARK HEKEMIAN, Plaintiffs, vs. TOWNSHIP OF CRANFORD, MAYOR AND COUNCIL OF THE TOWNSHIP OF CRANFORD and the PLANNING BOARD OF THE TOWNSHIP OF CRANFORD, Defendants. PLAINTIFFS PROPOSED FINDINGS AND CONCLUSIONS FINDINGS The proceedings 1. The Law Division of Superior Court (L. Chrystal, JSC, sitting) ruled on July 31, Civil Action Implementation of Site-Specific Builders Remedy in the Form of Application by Cranford Development Associates LLC et al For Preliminary and Final Site Plan Approval, 215-235 Birchwood Avenue, Cranford Township, NJ, Block 291, Lot 15.01 and Block 292, Lot 2 And For An Order Compelling Cranford to Consent to Plaintiffs Regrading of a Portion of Birchwood Avenue

2011, that defendant Cranford Township is in violation of its fair share housing obligations and

that plaintiff Cranford Development Associates LLC et al (hereinafter collectively CDA) is entitled to a site-specific builders remedy, namely the right to construct an inclusionary development consisting of 360 housing units on its property located at 215-235 Birchwood Avenue, including low and moderate income units on terms specified by the Court. On December 9, 2011, the Court entered an order embodying this decision. 2. In implementation of its order granting the builders remedy, the Court designated

Douglas Wolfson, Esq. as Special Hearing Officer (hereinafter the Special Hearing Officer to hear CDAs application for site plan approval and to make a written report to the Court containing findings of fact and conclusions of law. 3. By order dated August 6, 2012, the Court also direct the Special Hearing Officer,

to conduct proceedings and make a written report to the Court containing findings of fact and conclusions of law on the issue of whether defendants Township of Cranford et al should be required to take all formal actions necessary to permit Cranford Development Associates LLC at its own expense to regrade a stretch of Birchwood Avenue to elevate it to a level one foot above the flood hazard area design elevation in accordance with the plans prepared by L2A Land Design, LLC as part of its construction of the proposed inclusionary development at 215-235 Birchwood Avenue. 4. On June 6, 2012, CDA, following the procedure outlined in a memorandum

prepared by Court-appointed Special Master Elizabeth McKenzie and dated March 15, 2012, submitted to the Special Hearing Officer the equivalent of an application for site plan approval. The application included the following supporting documents: a. Preliminary and final site plan and application for individual flood hazard area

permit, M.E. Dipple, June 4, 2012 25 sheets (Ex. A-4)

b. c. 5. a. b. c. d. e. f. g. h. 6. 7.

Architectural plan, Lessard Design, June 5, 2012 8 sheets (Ex. A-5) Engineering report, M.E. Dipple, Rev. June 4, 2012 (Ex. A-6). Subsequently CDA also submitted the following additional supporting documents Traffic impact assessment, E. Dolan, June 14, 2012 (Ex. A-11) Letter report, Lessard Design, July 31, rev. August 1, 2012 (Ex A-8) Code analysis, Lessard Design, Aug. 1, 2012 (Ex. A-9) Fire code analysis, Lessard Design, Aug. 1, 2012 (Ex. A-10) Letter report, M.E. Dipple, July 31, 2012 (Ex. A-11) Letter report, M.E. Dipple and C. Emerson, Aug. 6, 2012 (Ex. A-12) Sanitary sewer capacity study, M.E. Dipple, January 2009 (Ex. A-17) Supplemental Traffic Report, E. Dolan, August 23, 2012 (Ex. A-24) CDAs site plan included the proposed reqrading of Birchwood Avenue. The application was comprehensively reviewed by the Township. The review

included reviews by the Townships own professionals and by outside traffic and engineering consultants whom it retained at the expense of CDA. 8. In response to the application the Township of Cranford submitted the following

review reports: a. b. c. 3) d. 4) Memorandum from Municipal Engineer R. Marsden to P. Morin, 7-20-12 (Ex. DMemorandum from Code Official R. Belluscio to P. Morin, 7-18-12 (Ex. D-1) Letter from Traffic Consultant J. Staiger to P. Morin, 8-7-12 (Exs. D-2 and D-14) Memorandum from Cranford Police Traffic Division to P. Morin, 7-15-12 (Ex. D-

e. evidence) f. 9.

Memorandum from Zoning Officer R. Hudak to P. Morin, 7-18-12 (not in

Memorandum from Fire Chief L. Dolan to P. Morin, 7-18-12 (Ex. D-17) On August 1, 2012, representatives of CDA together with its professionals met

with representatives of Cranford Township, together its municipal attorney, municipal engineer, construction code official, zoning officer, and police department representative to jointly review the application. 10. In an Order dated August 6, 2012, the Court ordered Special Hearing Officer to

conduct hearings in the Union County Court House in Elizabeth, New Jersey, during regular court house hours. 11. On July 24, 2012, CDA served public notice of the application by certified mail,

return receipt requested, on owners of real property within 200 feet of Block 291, Lot 15.01 and Block 292, Lot 2 in the Township of Cranford as shown on the certified list of property owners provided by Peter Barnett, Township Assessor for the Township of Cranford dated June 1, 2012, on all utilities and cable television operators servicing the property or having facilities located within 200 feet of the property and any military facility commander registered with the municipality, and the Union County Planning Board and James Simpson, New Jersey Department of Transportation Commissioner. (Ex. A-1) 12. The hearing was conducted by the Special Hearing Officer on August 8, 9, 21, 22,

and 23, 2012, in the form of a public hearing on a site plan application under N.J.S.A. 40:55D10. The Special Hearing Officer and Special Master Elizabeth McKenzie were present and participated in the entire public hearing.

a.

The applicant presented witnesses, each of whom was then questioned by counsel

for the Township, and members of the public. The applicant was permitted to conduct redirect and the counsel for the Township and members of the public were permitted to ask questions limited to topics addressed in the redirect. Special Master Elizabeth Mckenzie and the Special Hearing Officer then asked questions. Finally, counsel for the applicant and the Township and members of the public were permitted to ask questions on topics addressed in the questions by the Special Master and the Special Hearing Officer. b. c. d. The Township then presented witnesses, following the same procedure. Finally, members of the public were permitted to present testimony under oath. The applicant, the Township, and members of the public were permitted to offer

documents into evidence, which were marked, and by stipulation all moved into evidence. A list of the exhibits received into evidence is attached as Appendix A. 13. a. b. c. CDA presented the testimony of the following witnesses: Christian Lessard architect (8/8 T. 31-160) Elizabeth Dolan, P.E. traffic engineering (8/8 T. 161-230). Michael Dipple, P.E. engineering and hydrology (8/9 T. 5-153 , 8/21 T. 7-173 ,

8/22 T. 5-129, 8/23 T. 101-103) d. e. 195) 14. a. b. The Township presented the testimony of the following witnesses: Richard Marsden engineering (8/22 T. 129-200, 8/23 T. 5-87) Joseph Staiger traffic engineering (8/22 T. 105-129) Peter Hekemian (8/9 T. 154-160) Clay Emerson, PhD. engineering and water resource engineering (8/23 T 144-

c. d. 15. a. b. c. d.

Leonard Dolan fire chief (8/23 T.103-143) Thomas Creelman engineering and hydrology (8/23 T. 87-100) The following members of the public testified: Laura Tarulli (8/23 T. 197-98) Rita LaBrutto (8/23 T. 198-214). Maria Anderson (8/23 T. 214-232) Liz Sweeney (8/23 T. 232-238) Existing conditions on the property

16.

The application concerns a 15.8-acre property located at 215 and 235 Birchwood

Avenue in Cranford Township, a property designated Block 291, Lot 15.01 and Block 292, Lot 2 on the Townships tax map. Site Plan (Ex. A-4). 17. The site is currently developed with two office buildings and associated paved

parking areas. The remainder of the site is mature woods, a mixture of evergreen and deciduous vegetation, and lawn. Casino Brook, a narrow stream that is a tributary of the Rahway River (also known as Rahway River Branch 10-24) forms the western edge of the site. The southeast corner of the site has another man-made ditch. Dipple, 8/8 T. 12-15; Site Plan, sht. C-02 (Ex. A4); Aerial Photo (Ex. A-8). 18. The site contains regulated freshwaster wetlands and wetlands transition areas,

which have been delineated by the NJDEP in a formal Letter of Interpretation. Letter from A. Clark, Northeast Region Supervisor, Bureau of Inland Regulation, NJDEP to Michael Rehman, July 20, 2009 (Ex. A-18); Site Plan sht. C-02 (Exs. A-4, A-14); Dipple, 8/9 T 13, 42-44. It also contains areas within the regulated floodway and flood fringe area of Casino Brook. Site Plan sht. C-02 (Exs. A-4); Dipple Engineering Report, Sheet FS-01, Dipple, 8/9T 13-14.

19.

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

building to the west of the site, and an office building owned by Verizon, Inc. and a municipal recycling center to the north of the site on the other side of Birchwood Avenue. The nearest existing residential units are single family houses on Wadsworth Terrace to the south of the site, which back up to the site. Lessard, 8/8 T. 34-35; Dipple, 8/9 T. 10-11; Aerial photo (Ex. A-8). 20. As amended by Ordinance No. 2012-11, Cranford Townships zoning ordinance

locates CDAs property in the Inclusionary Multi-Family Residential (IMR) zone. The properties on the west, north and east are located in the Low Density Office District (I-O) zone. The properties to the south are located in the R-4 Single Family Detached Residential zone. Site Plan shts. C-O1,C-04 (Ex. A-4) The proposed development 21. As set forth in the application, CDA propose to develop the site with two

residential buildings, a garage structure, surface parking, walkways, lawns, open spaces, preserved woods, wetlands, wetlands buffers, and recreational amenities. In accordance with the Courts Order of December 9, 2011, CDA proposes to construct a total of 360 dwelling units. Site Plan, sht. C04 (Ex. A-4, A-14); Lessard 8/8 T. 35-36; Dipple, 8/9 T. 16-17. 22. As proposed, Building A fronts on Birchwood Avenue. It consists of a parking

level (parking podium) with three stories of residential units above it. It includes 60 residential units and 58 parking spaces in the parking podium. Building B fronts on Birchwood Avenue and wraps around Building C (parking structure). It would consist of four stories of residential units. It includes 300 residential units. Building C fronts on the internal drive on the east side of the site. It is four-level parking structure with 520 parking spaces. There are an additional 89

surface parking spaces along the internal drive. Lessard, 8/8 T. 36-37; Site Plan, sht. C-04 (Ex. A-4, A-14); Architectural Plan, sht. 5 (Ex. A-5); Dipple, 8/9 T. 17-19, 22-23. 23. At its nearest point, Building A is approximately 545 feet from the rear property

line of the houses facing on Wadsworth Terrace, Lessard, 8/8 T. 95, and 70 feet from the lot line of the health care facility to the east, Lessard, 8/8 T. .. At its nearest point, Building B is approximately 205 feet from the rear property line of the houses facing onto Wadsworth Terrace. Lessard, 8/8 T 50. 24. Building A will have a height of 55 feet above grade, measured to the midpoint of

the roof as mandated by Ordinance 2012-112(E)(6). Lessard, 8/8 T. 43. Architectural Plans, sht. 9 (Ex. A-5). Building B will have a height of 51.8 ft, measured to the midpoint of the roof. Lessard, 8/8 T. 49; Architectural plan, sht. 9 (Ex. 5). The top level residential units in each building will each include a loft level which will be open and look down on the main level of the unit. These lofts will be within the level of the roof and will not add to the height of the building. Architectural plan, sht. 9 (Ex. 5), Lessard, 8/8 T. 41-42,45-46. The parking structure (Building C) will have four levels, of which the top level will be open and not roofed. Lessard, 8/8 T. 93. The floor level of the fourth level will be 38 feet above grade. Architectural Plans, sht. 9 (Ex. A-5). 25. A two-way internal driveway will form a loop through the project, providing

ingress and egress onto Birchwood Avenue at two separate points. Site Plan, sht. C-04, Dipple, 8/9 T. 16. In conformity with the Residential Site Improvement Standards, the width of the cartway of the driveway will be at least 24 feet at all points. Site Plan, sht. C-04, Dipple, 8/9 T. 28..

26.

Access by residents and guests to Building A will be from the internal driveway

and from the ground floor podium parking area. Access by residents and guests to Building B will be from each level of the parking structure (Building C) and from the internal driveway. Architectural Plans, shts. 1, 3 (Ex. A-5), Lessard, 8/8 T. 39-40. 27. In conformity with the RSIS as determined by the court, the project provides 1.85

parking spaces per unit. This includes .5 guest spaces per unit. Architectural Plans, sheet 1 (Ex. A-5); Dipple, 8/21 T 156, 8/22 T. 52. The parking spaces for guests are not separately designated. If all the parking spaces in podium level of Building A are occupied, residents and guests will be free to park in the surface level spaces between Building A and Building B, in the parking structure (Building C), or in the surface spaces to the east of Buildings B and C. Residents and guests of units in Building A have direct access to the spaces in Building C through the entrance and pedestrian walkway through Building B. Architectural Plans, sheet 1 (Ex. A-5), The parking spaces will include 14 designated handicapped spaces, of which two will be handicapped van spaces as required by the Uniform Construction Code. Lessard, 8/8 T.64-65; Dipple, 8/9 T. 24-25, 123-124. 28. The drop off point for persons coming to the project would be inside the parking

structure for Building B and in the podium parking area for Building A. If someone did not want to go into the parking structure or podium parking, the drop off would be on the eastern driveway by the entrance to the parking structure for Building B and on the western driveway for Building A. Because there are no entrances into the buildings on the sides facing Birchwood Avenue, persons would not normally be dropped off on Birchwood Avenue. Dipple, 8/9 T. 139 -40. 29. All parking spaces (except the handicapped van spaces) will be 9 feet by 18 feet

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

30.

Loading areas are provided adjacent to the internal driveway near the entrance to

Building A and near the entrance to the parking structure (Building C). Dipple, 8/9 T. 26. Residents may move furniture and personal possessions into and out their residential units on carts through the elevator, and parking areas to these loading areas. Elevators and doorways are designed to be wide enough to accommodate such carts. Dipple, 8/22 T. 57-58. 31. Trash will be collected inside each building, stored inside the building, and

wheeled outside in carts for pickup at the driveway. Lessard, 8/8 T. 41. 32. Of the residential units, 54 units15 percentwill be reserved for, and

affordable to, low and moderate income households. Lessard, 8/8 T.35-36. In conformity with regulations of the New Jersey Council on Affordable Housing, 11 units will be three-bedroom units, 32 units will be two bedroom units, and 11 units will be one bedroom or studio units. Lessard, 8/8 T. 141. Compliance with standards in Ordinance No. 2012 and the Courts Order of December 9, 2012 33. The proposed structures comply with all the bulk standards set forth in Ordinance

No. 2012-11 and the Courts order of December 9, 2012: Required 15 acres 750 feet 25 feet 30 feet 55 175 31.21% (existing impervious coverage) 55 feet One parking level and three residential levels Proposed 15.86 acres 825.84 feet 25 feet 44.36 62.37 196.75 31.1%

Minimum tract area Minimum lot frontage Minimum front yard setback Minimum average front year setback Minimum side yard setback Minimum rear year setback Maximum impervious coverage

Maximum height Maximum height Building A

<55 feet One parking level and three residential levels

10

Maximum height Building B Minimum distance between multifamily buildings Minimum buffer to eastern lot line Minimum buffer to rear lot line Minimum parking spaces

Four residential levels 25 feet 10 feet 175 feet 666

Four residential levels 57.71 feet 10 feet 175 feet 667

Site plan, sht. C-04 (Ex. A-4); Dipple, 8/9 T. 19-21. 34. As presented, the proposed site plan contains an error. At the easternmost

ingress/egress, the internal driveway is drawn too close the eastern lot line, leaving only an eight foot buffer. Dipple, 8/9 T. 22; Site plan, C-04 (Ex. A-4, Ex. A-14). Straightening the drive and moving it two feet to the west will eliminate that error and bring the site plan into conformity with the bulk standards in Ordinance No. 2-012-11 and the Court Order. Dipple, 8/9 T. 22. 35. Subject to the two requested waivers, the application conforms in all respects to

the terms of Cranfords land use ordinance as amended by Ordinance No. 2012-11 and the Court order of December 9, 2012. Dipple, 8/9 T. 148. 36. Issues as to compliance by the proposed structures with the Uniform Construction

Code were raised in the report of Construction Code Official Belluscio. (Ex. D-1). The issues were all addressed in the testimony of CDAs architect Lessard. 8/8 T. 50-69. The Township did not present testimony by Belluscio or by any other witness on these issues. The municipal engineer testified that these issues had been resolved by testimony of Lessard. Marsden, 8/22 T. 143, 186. Compliance with the statewide Residential Site Plan Improvement Standards 37. The application was designed to comply with the Residential Site Plan

Improvement Standards, as construed by the Court in its Order of December 9, 2012. Dipple, 8/9 T. 28, 121, 126, 8/21 T. 156, 8/22 T. 24, 98.

11

38.

The Township did not identify any violations of the Residential Site Plan

Improvement Standards. Infrastructure 39. The additional traffic generated by the project will not exceed the capacity of

Birchwood Avenue. It will have only a small impact on the intersections of Birchwood Avenue and Orange Avenue, Cranford Avenue, and Bloomingdale Avenue. Those intersections will all continue to function at acceptable levels. No improvements at any of those intersections are required or would increase traffic safety at any of those intersections. E. Dolan, 8/8 T. 161-230; J. Staiger, 8/22 T. 105-129; E. Dolan, Traffic Impact Assessment (Ex. A-11); E. Dolan, Supplemental traffic impact assessment (Ex. A-24); Staiger, Letter to P. Morin (Exs. D-2 and D14). 40. Fire Chief Leonard Dolan expressed a number of concerns about the layout of the

site plan: the angle at which the internal driveway meets Birchwood Avenue at the easternmost ingress/egress may impede access by Cranfords fire equipment; the turn radius of the internal driveway around the south end of Building B may impede access by Cranfords largest truck, and if, during a flood event that restricts access to the project through the westernmost ingress/egress, the width of the internal driveway may be too narrow to both accommodate Cranfords largest truck and permit access by other vehicles to Building A. Dolan, 8/23 T. 107125, Dolan Memorandum, (Ex. D-17). The issues can be addressed by straightening the eastern ingress/egress as proposed by CDA, Marsden, 8/22 T. 144-45; by increasing the turn radius on the interior drive around the south Building B to 30 feet and reducing the height of the curb, Dipple, 8/9 T.28-29, 125-126, 132; Truck turning diagram (Ex. A-15); Marsden, 8/22 T. 144-45; L. Dolan, 8/23 T. 130, providing mountable curbs along the internal drive, L. Dolan, 8/23 T.

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130-131, and providing turnouts at various points along the internal driveway L. Dolan, 8/23 T. 122-25. 41. Fire Chief Dolan also expressed concerns about access to the site under severe

flooding conditions which might make Birchwood Avenue impassable. Elevation of Birchwood Avenue to one foot above the flood hazard design elevation as shown on the site plan. Site Plan, shts.. C-04, C-19 (Ex. A-4), would assure at least one safe street access even in a 100-year flood event. L. Dolan, 8/23 T 113. This is adequate for public safety purposes as determined by NJDEP. Dipple, 8/9 T. 127. The force of Dolans expressed concern is diminished by evidence that Dolan did not express a similar objection to the municipalitys Riverfront Development, Dolan, 8/23 T. 136-39; L. Dolan. Review Reports on Site Plan Application for Riverfront Redevelopment Project (Ex. A-28), even though that development includes multifamily housing and the development and all the surrounding streets lie within the state-approved flood hazard area. Dipple, 8/9 T . 86-89; Flood Hazard Area Permit for Riverfront Redevelopment Project (Ex. A-22). 42. Water for domestic consumption and fire suppression will be provided through

connection to Cranford Townships public water system. Dipple, 8/9 T 29-32. While the parties are in dispute as to whether the public water system provide enough water to the site for fire suppression. If the existing system does not provide enough water to the site for fire suppression, replacing the existing water main along Birchwood Avenue from the hydrant at the east end of the property to Bloomingdale Avenue with 12-inch pipe would provide sufficient water. L. Dolan, 8/23 T. 128, 133-34; Dipple, 8/9 T. 32. Providing a fire pump at grade level would, if necessary, assure sufficient water for fire suppression at all levels for Buildings A, B and C. Lessard, 8/8 T. 86-87.

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43.

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

sanitary sewer system. Treatment for this system is provided by the Rahway Valley Sewerage Authority in Rahway, which has sufficient capacity. Dipple, 8/21 T. 172. 44. Cranfords sanitary sewer conveyance system is old. The line that runs between

the property and border with Roselle Park is at least 40 to 60 years old and some stretches, which were constructed at the same time as the Garden State Parkway or earlier must be at least 64 years old. Marsden, 8/23 T. 27-30. The system suffers from a serious problem of inflow surface water entering the system--and infiltrationgroundwater entering the system. Marsden, 8/22 T 158, 160. The system has had relatively few failuresfour lines breaks within the entire municipality within the last eight years. Marsden, 8/23 T. 31-32. Two of those breaks, however, have occurred in the stretch of line between the Garden State Parkway and the border with Roselle Park, which is part of the system that would serve the project, in the past year. Marsden, 8/23 T. 30-34. 45. Based upon review of the municipal sewer system map, Sanitary Sewer Capacity

Study, Existing Sanitary Sewer Map (Ex. A-17) and measurement of existing flow through the pipes in this system between the property and the border with Roselle Park, the system has sufficient existing capacity to provide service through simple gravity driven flow (open channel flow), except for two stretches of pipe. Because, as shown on the sewer system map, each of these stretches is essentially flat, analysis under simple gravity flow (open channel flow) shows it as having no capacity. This is not a function of the size of the pipes but of the lack of slope. A field survey indicated that one of these stretches of pipe actually has adequate slope and functions properly and safely under simple gravity under both average and peak flow conditions. The two remaining stretches operate properly and safely under average and peak flow conditions

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under pressurized flowso-called surcharged flow. The pressure created by energy of the effluent flowing into the stretch carries it through. If the flow slows down, it backs up and creates additional pressure that forces it through. Dipple, 8/9 T 35-40; 8/21 T 103-105, 8/22 T. 37-40 Sanitary Sewer Capacity Study, Tables 1 and 2 (Ex. A-14) 46. Based upon an early designfor 422 unitsthe project would have added 83,850

gallons per day to the system. Sanitary Sewer Capacity Study, Table 3 (Ex. A-14). The present design for 360 units would add significantly less flow. Even adding 83,850 gallons per day, the amount that would be generated under NJDEP design standards by 422 units, the system operates properly and safely under average and peak flow conditions. All of the stretches that currently operate through simple gravity flow will continue to do so properly and safely; all of the stretches that operate through pressurized flow (under surcharged conditions) will continue to do so properly and safely. The additional flow will not cause any stretch of pipe to transition from simple gravity flow to pressurized flow. Dipple, 8/9 T. 35-40, 8/21 T. 103-105; 8/22 T. 3740, 91-93; Marsden, 8/23 T 39. A more sophisticated evaluationa so-called hydraulic grade line study-- indicates that even where the system is currently operating under pressurized conditions, the level of flow for the most part does not go above the level of the pipes, i.e., it does not rise in the manholes above the level of the pipes. Moreover, because of the depth of the pipes, the backups that routinely occur in the stretches of the sewer line that operate under pressurized conditions would not cause the effluent to rise to any significant degree in the manholes above the levels to which they currently rise, even in peak conditions. Dipple, 8/22 T 40-42, 91-93. The system will operate safely and effectively with the additional flow. Dipple, 8/9 T. 137-38; 8/22 T. 37-42, 46, 91-93.

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47.

Cranford engineer Richard Marsden expressed concern that, given the age of the

existing system, the additional flow from the project, combined with existing flows and existing unremediated inflow and infiltration, will create potential risks of future line breaks. Marsden, 8/22 T. 155-162, 8/23 T. 27. He recommended that 1,300 linear feet of off-site sewer pipes be relined to reduce inflow and infiltration. Marsden, 8/22 T. 161. He did not specify the magnitude of the potential risks. Nor could he apportion the risk between the age and condition of the existing system and the impact of the additional flow. Marsden, 8/22 T. 161-172. Compliance with wetland, stormwater, and flooding hazard standards 48. The property includes areas of state-regulated freshwater wetlands and state-

regulated wetlands transition areas. The project will not involve any intrusion into regulated freshwater wetlands. Dipple, 8/9 T. 43. It will involve small intrusion into freshwater wetlands transition areas. Dipple, 8/9 T. 43-44. With notice to Cranford, Public Notices of CDA Application for Flood Hazard Area Permit and Wetlands Permit (Ex. A-19), CDA has made applications to the NJDEP for approval of a freshwater wetlands transition area averaging plan, as permitted under NJDEP regulations and will comply with all the NJDEP regulations concerning construction in the vicinity of a wetlands transition area. 8/9 T. 42-44, 46-47, 144145. 49. Marsden has suggested that construction of a short stretch of pipe will require

approval by the NJDEP. Marsden, 8/22 T 156, 187. CDAs engineer testified that if NJDEP determines that a general permit is required for that pipe, such a permit for that disturbance is routinely available under the NJDEP regulatory standards for a NJDEP General Permit 2. Dipple, 8/9 T. 44-45, 135-136.

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50.

Municipal engineer Richard Marsden has expressed various other concerns as to

the impact of the project on freshwater wetlands. All of these objections can be raised before the NJDEP in connection with the pending application. 51. The proposed project will disturb more than one acre and is therefore subject to

regulation under New Jerseys stormwater regulations. Dipple, 8/9 T. 48. The stormwater standards are incorporated into both the uniform Residential Site Improvement Standards and NJDEP regulations. Dipple, 8/9 T. 48. As part of its flood hazard area permit application, CDA has filed an application for approval by the NJDEP of its stormwater management plan. Dipple, 8/9 T. 43. 52. CDA filed this flood hazard area permit application with public notice to Cranford

Township and nearby residents. 8/9 T. 42-44, Public Notices of CDA Application for Flood Hazard Area Permit and Wetlands Permit (Ex. A-19). Cranford Township and individual members of the public are entitled to submit objections to this application. Dipple, 8/9 T. 47. The Township of Cranford has participated in the NJDEP review process by submitting objections. Marsden, 8/23 T. 14-16 ; Letter from R. Marsden to Engineering Supervisor for Union County, NJDEP, January 3, 2012 (Ex. A-26); Memorandum from R. Marsden to V. Opara, NJDEP, August 2, 2012 (Ex. A-27). 53. The state stormwater regulation imposes four principal standards: storm water

quantity, storm water quality, infiltration to ground water, and nonstructural strategies or best management practices. The proposed project is specifically designed to meet each of these standards to the extent applicable. Dipple, 8/9 T. 48. 54. The water quality standard is not applicable because it only applies to projects

that increase the amount of impervious coverage. It does not apply to the proposed project

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because the project will reduce impervious coverage from 31.21 percent to 31.1 percent. Site plan, sht. C-04 (Ex. A-4); Dipple, 8/9 T 19-21, 49. 55. The groundwater recharge standard does not apply to sites within the so-called

Metropolitan Planning Area (PA-1). The present site is within the Metropolitan Planning Area. Dipple, 8/9 T. 49-50. 56. To comply with the stormwater quantity standard, the project is designed to

reduce the peak rate of run-off below that for existing conditions for two-year, ten-year, and onehundred-year storm events. The run-off for the two-year storm must be reduced by 50 percent, the ten-year storm by 25 percent, and the hundred-year storm by 20 percent. The project is designed to satisfy these standards by providing for stormwater storage in a large underground detention basin under the eastern surface parking area, which holds stormwater and then releases it slowly over an extended period of time. Dipple, 8/9 T. 51-52, 8/21 T. 122-24; Site Plan sht. C05 (Ex. A-4). As modeled by CDAs engineer in accordance with NJDEP standards, the project will reduce peak stormwater run-off in cubic feet per second as follows: Storm event Existing conditions peak runoff rate 17.89 24.59 37.03 Proposed conditions peak runoff rate 3.66 11/86 28.16 Reduction Proposed rate as percent of existing rate 20% 48% 76%

2 10 100

14.23 12.73 8.87

Dipple, 8/9 T. 53-54, 8/21 T. 117-118; Engineering Report, Table E-1 (Ex. A-6). 57. In accordance with NJDEP standards, the rate of runoff was modeled based upon

existing conditions, including existing buildings, parking lots and existing drainage structures in the its current state. Dipple, 8/9 T. 56-57, 127-28; Site Plan, sht. C0-2 (Ex. A-4).

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58.

Cranford engineer Marsden raised various technical concerns about the

stormwater management plan and calculations upon which it is based, including claims that CDAs engineer failed to properly account for existing drainage structures, improperly calculated time of concentration, and did not consider so-called tail water effects. R. Marsden, 8/22 T. 134-137; 190-199, Memorandum from R. Marsden to P. Morin, 7-20-12 (Ex. D-4). 59. These concerns were effectively rebutted by CDAs experts Dipple and Emerson.

The drainage structures were modeled in their existing condition. Dipple, 8/9 T. 56-57, 127-28,. 145-47, 8/23 T. 101-103. Marsdens critique of the time of concentration analysis was based upon a methodology not used in CDAs study and not permitted by NJDEP. Emerson, 8/23 T. 166-67. Under NJDEP regulations, tail water effects must be dealt with by incorporating a mechanical backflow preventer in the detention basin, which CDA has done. Emerson, 8/23 T. 168. 60. These objections can be made to the NJDEP, which has jurisdiction over

stormwater management plans in the context of CDAs application for a flood hazard area permit, and have been made by Marsden on behalf of Cranford in his objection letters. Marsden, 8/23 T. 14-16 ; Letter from R. Marsden to Engineering Supervisor for Union County, NJDEP, January 3, 2012 (Ex. A-26); Memorandum from R. Marsden to V. Opara, NJDEP, August 2, 2012 (Ex. A-27). 61. The property includes areas within the state regulated floodway and the state

regulated flood fringe. Site Plan, sht. C-02; Dipple, 8/9 T. 58. Flooding is not due to conditions on the site, but from waters flowing from developed areas north of the site and backing up from an undersized culvert under Wadsworth Terrace to the south of the site. Dipple, 8/9 T. 58-59; Marsden, Flood hazard map (D-15).

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62.

The flood hazard area consists of the entire area that would be flooded in a state-

defined flood hazard area flood eventa 100-year storm plus an additional flow rate of 25 percent. It is the area contiguous to the stream which lies below the flood hazard area elevation--the maximum elevation of flood waters in a flood hazard area flood event. The floodway is the portion of the flood hazard area which would actually carry the downstream flow of water during a flood hazard area flood event. Its boundaries are determined using a model approved by the NJDEP. The flood fringe is the remainder of the flood hazard area and consists of areas where waters pond and are stored during a 100-year flood event and which do not actually carry the downstream flow. Dipple, 8/9 T. 65-68, 72; NJDEP flood hazard area diagram (Ex. A-20). 63. As part of its flood hazard are permit application, CDA has modeled Branch 10-

24, determined its flood hazard area elevation and delineated its floodway boundary and flood hazard area boundary based upon existing conditions on the site in accordance with the NJDEP approved methodology. Dipple, 8/9 T. 59-65, 72; Dipple Engineering Report, sht. FS-01 (Ex. A6); Site Plan, sht. C-02 (Ex. A-4). As required by the NJDEP approved methodology, this model includes an existing office building and parking lot at 235 Birchwood Avenue which are located in the floodway. Dipple, 8/9 T. 64-65; Emerson, 8/23 T. 150-151. The flood hazard area elevation is at a level of 78.6 feet (above the level of the basepoint). Dipple, 8/9 T. 72. The floodway boundary and the flood hazard area boundary are shown in the site plan. Site Plan sht. C-04 (Exs. A-4, A-14); Dipple, 8/9T 13-14. 64. Cranford engineer Marsden expressed concerns about the correctness of the

methodology for determining the location of floodway boundary, including, among other things, that it did not follow existing topographic contour lines, was improperly affected by the existing

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office building at 235 Birchwood Avenue, and did not split the flow of flood waters coming from north of Birchwood Avenue between the stormwater pipes under the street and surface flow across the street. Marsden, 8/22 T. 138-140, 8/23 T. 61-72; Marsden memo to P. Morin (Ex. D4). 65. These objections can be made to the NJDEP, which has jurisdiction over the flood

hazard area permit, and have been made by Marsden on behalf of Cranford in his objection letters. Marsden, 8/23 T.14-16, 72-75; Letter from R. Marsden to Engineering Supervisor for Union County, NJDEP, January 3, 2012 (Ex. A-26); Memorandum from R. Marsden to V. Opara, NJDEP, August 2, 2012 (Ex. A-27). 66. These concerns were effectively rebutted by the testimony of CDAs experts Mr.

Dipple and Dr. Emerson. They explained that under NJDEP standards, the floodway boundary must be determined utilizing existing conditions, including the existing structures, and cannot lawfully be determined any other way. Because it is based upon a conceptual computer model of the area required for the flow of floodwaters, the floodway need not be, and usually does not, follow existing topographic contour lines. The computer model expressly splits the flow between the storm water conduits under Birchwood Avenue and surface flow. Dipple, 8/9 T. 129-130; Emerson, 8/23 T 147-157; Letter report, M.E. Dipple and C. Emerson, Aug. 6, 2012 (Ex. A-13). 67. The force of the concerns expressed by Marsden is diminished by the fact that,

although he reviewed floodway boundary determinations made by Dipple before the trial in the present case in the summer of 2010, had an opportunity to request for the underlying data from Dipple in August 2010, testified as to this issue at the trial, reviewed the floodway boundary determination again in December 2011 in connection with CDAs flood hazard area permit application to the NJDEP, filed objections to that application, and had the knowledge and

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experience to run the standard computer model to determining the floodway boundaries himself, he did not actually run the computer model. Marsden, 8/23 T. 6-18, 64. As a result, he could not testify based upon any actual data as to whether the boundary determined by Dipple and Emerson was incorrect or the magnitude of any purported error. Marsden, 8/23 T. 18, 64. Moreover, Marsden himself conceded that under NJDEP regulations the floodway had to be at the time of application based upon existing conditions and would not be determined again based upon a change in those conditions. 8/23 T. 82-83. 68. Consistent with NJDEP regulations, the project does not include any construction

in the floodway. 8/21 T. 89; Site Plan, sht. C-04 (Ex. A-4). Rather, CDA proposes to demolish and remove an existing office building and parking lot located within the state-regulated floodway. Dipple, 8/9 T. 65; Site Plan, sht. C-03 (Ex. A-4). This will improve the functioning of the floodway and actually reduce the area of flood flow. Emerson, 8/23 T. 151. 69. The project includes construction in the flood fringe area, including Building A

and a portion of the internal driveway adjacent to Building A. Buildings B and C and remainder of the internal driveway are entirely outside of the flood fringe area. Site Plan, sht. C-04 (Exs. A-4, A-14). 70. Under NJDEP standards, construction is permitted in the flood fringe provided

state regulatory standards are met. Specifically, the project may not reduce the amount of flood storage in the flood fringe area; all residential units within the flood fringe area must be at least one foot above the flood hazard design elevation; to the extent possible all parking for residential units within the flood fringe area must be at least one foot above the flood hazard design elevation; for public buildings within the flood fringe, the roadway must provide at least one

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emergency exit route that is at least one foot above the flood hazard design elevation. Dipple, 8/9 T. 72. 71. The project was designed to comply with NJDEP standards for a flood hazard

permit. Dipple, 8/9 T. 72. The design included a calculation showing the amount of flood storage within the flood fringe under existing conditions. Engineering Report, sheet FS-1 (Ex. A6). It also included a grading plan designed to assure that the project does not reduce the amount of flood storage within the flood fringe area during any of the relevant potential flood events including a flood hazard area flood event. Dipple, 8/9 T. 70-71. This plan includes providing for crawl spaces under Building A to provide additional flood storage within the flood fringe area as permitted by NJDEP regulations. Dipple, 8/9 T. 74-74; Architectural Plans, sht. 9 (Ex. A-9). The project will increase the amount flood storage during a 100-year storm event from 318,182.9 cubic feet to 321,838 cubic feet. Dipple, 8/21 T. 129-130, Site Plan, shts.. C-10, C-14. 72. The project design provides that all the residential units in Buildings A are

elevated to a level at least 11 feet above the flood hazard elevation and there satisfy the requirement that they be at least one foot above the flood hazard design elevation. Lessard, 8/8 T. 37, 45; Architectural Plans, sht. 9 (Ex. A-5). 73. All of the parking is elevated to a level at least one foot above the flood hazard

design elevation, Lessard, 8/8 T. 44; Architectural Plans, sht. 9 (Ex. A-5). An ingress/egress is available even during a flood hazard area flood event via the driveway to the eastern ingress/egress which lies outside the flood fringe area. Dipple, 8/9 T. 72 ; Site Plan, sht. C-03. 74. This plan was submitted to the NJDEP as part of its flood hazard area permit in

December 2011. NJDEP issued a deficiency notice on February 8, 2011 requesting more information and changes in the design of the underground detention basin. Dipple, 8/9 T. 76-77,

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8/22 T. 94-97. CDA provided the requested information and made the requested revisions. Dipple, 8/9 T. 76-77, 8/22 T. 94-97. 75. On March 8, 2012, NJDEP issued a new deficiency notice. Dipple, 8/9 T. 78-79,

NJDEP deficiency notice, March 8, 2012 (Ex. A-21). The notice required additional documentation, Dipple, 8/9 T. 81-83. It also identified one substantive deficiencyviolation of N.J.A.C. 7: 13-11.5(h) (Ex. A-23) and advised CDA that the application, as submitted, would require a hardship waiver under N.J.A.C. 7:13-9.8. Dipple, 8/9 T. 83-85. 76. In a telephone communication and a subsequent meeting, NJDEP specified that

the alleged deficiency involves N.J.A.C. 7:13-11.5(h) (2). That regulation provides: (h) The Department shall issue an individual permit to construct or reconstruct a public building only if the following requirements are satisfied: *** 2. For a new building in a fluvial flood hazard area, the applicant demonstrates that the building is served by at least one roadway, the travel surface of which is constructed at least one foot above the flood hazard area design flood elevation. NJDEP specified that the problem is not with the design of the project itself. Rather the deficiency is that Building A, which is a deemed to be a public building under the NJDEP regulations and which is located in the flood hazard area, lacks a roadway that lies at least one foot above the flood hazard area design flood elevation. The NJDEP deems the portion of Birchwood Avenue fronting on the property to be part of the roadway. Both driveways that serve this building exit onto portions of Birchwood Avenue that lie at elevations lower than the flood hazard area design flood elevation. Dipple, 8/9 T. 79-81, 84-85. 77. This deficiency came as a surprise to CDA because it differed from the NJDEPs

policy in other projects, including a project constructed by the same developer in Englewood and a project in Cranford, known as the Riverfront Redevelopment Project, for which the NJDEP had

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granted a flood hazard area permit in February 2010 even though NJDEP expressly noted in the permit that all the surrounding streets are located in the flood hazard area. Dipple, 8/9 T. 86-89; Flood Hazard Area Permit for Riverfront Redevelopment Project (Ex. A-22). 78. In response, CDA explored various options to comply with N.J.A.C. 7:13-11.5(h)

(2) as construed by the NJDEP. It considered extending an emergency access from the back of the property on North Union, It reject that option because that access would not be one foot above the flood hazard elevation for its full length and would itself therefor violate NJDEP regulations. Dipple, 8/9 T. 100-101. It attempted to secure the consent of the owner of the health care facility to construct an ingress/egress on its property, which would have been entirely outside the flood hazard area, but the owner did not respond to any of CDAs repeated inquiries. Dipple, 8/9 T. 100; P. Hekemian, 8/9 T. 155, 156-157. The most promising means to comply with N.J.A.C.:13-11.5(h) (2) as construed by the NJDEP was to elevate Birchwood Avenue in the vicinity of the easternmost driveway of the project. Dipple, 8/9 T. 101. 79. As shown in the site plan application, CDA proposes to regrade Birchwood

Avenue at its sole cost and expense so that when it crosses in front of the projects easternmost driveway as it goes downhill toward Orange Avenue, it is approximately one foot above the flood hazard elevation. This changes the level at that point by 1.28 feet. The regrade will affect about 300 feet of the street. As regraded, the road will still run steadily at a downward slope toward Orange Avenue and the change in the slope will be so small that it probably will not even be noticeable. Dipple, 8/9 T. 90-93, 8/21 T. 86, 132-33; Site Plan, pp.C-05, 18, 19 (Ex. A-4). The regrade will require the replacement of driveway aprons for one driveway for the healthcare facility and one for the driveway for the municipal recycling facility and also a portion of the sidewalk in front of the health care facility. All of these improvements will be within the

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municipal right of way. Dipple, 8/9 T. 99, 8/22 T. 64. As part of the regrade, three additional storm drains to the municipal storm sewer system will be added along Birchwood Avenue. This will improve drainage for properties on Birchwood Avenue. Dipple, 8/9 T. 96-97, 8/21 T. 13436; Site Plan, pp.C-05 (Ex. A-4). 80. The regrade has been designed as part of the project as a whole to comply with

NJDEP requirements. In particular, because the regrade will add fill within the flood fringe (i.e., reduce flood storage), additional storage volume must be provided elsewhere on the site. The project has been designed to satisfy that standard. Dipple, 8/9 T. 93-94. 81. The regrade will move the location of the flood hazard area boundary to a point

west of the easternmost driveway. It will not have any effect on the flood hazard elevation because all the lost flood storage will be offset by newly created flood storage on site. As a result, it will not increase flooding on the properties upstream of the road (i.e. north of Birchwood Avenue) or on other properties west of the CDA site along Birchwood Avenue that are in the flood hazard area. It will not affect flooding on properties east of the CDA site because they will remain outside the flood hazard area. Regrading the street will not have any effect on drainage, since the amount of impervious cover will remain unchanged, but drainage will be improved by the addition of additional storm drains. Dipple, 8/9 T. 84-100. 82. The proposed regrading of Birchwood Avenue would have no detrimental effect

on other residents of Cranford. Dipple, 8/9 T. 84-100, 149-150; Emerson, 8/23 T. 163. . 83. Cranfords engineers Marsden and Creelman expressed concerns that moving the

flood hazard boundary on Birchwood Avenue further west would increase the height of the flood hazard elevation and increase flooding along Birchwood Avenue. Creelman expressed concern that CDAs engineer had not generated sufficient cross-sections to enable the impact to be

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evaluated. Creelman, 8/23 T. 88-98. Marsden further expressed concern as to the impact of the regrading on properties north of Birchwood Avenue, including concerns that Dipple and Emerson had not performed the correct calculation, that they had not correctly accounted for the fact that the flood waters flow into the area north of the Birchwood Avenue from Kenilworth in the northwest, and that flooding would increase on properties north of Birchwood. Marsden, 8/22 T. 145-154; Memorandum from R. Marsden to P. Morin, 7-20-12 (Ex. D-4); E-mail from P. Morin to D. Cohen, 8-3-12 (Ex. D-9). 84. These objections can be made to the NJDEP, which has jurisdiction over the flood

hazard area permit, and have been made by Marsden on behalf of Cranford in his objection letters. Marsden, 8/23 T. 14-16 ; Letter from R. Marsden to Engineering Supervisor for Union County, NJDEP, January 3, 2012 (Ex. A-26); Memorandum from R. Marsden to V. Opara, NJDEP, August 2, 2012 (Ex. A-27). 85. These concerns were effectively rebutted by the testimony of CDAs experts Mr.

Dipple and Dr. Emerson. They testified that, among other things, even in a flood hazard area flood event, the flow of the flood travels within the floodway. A change in the boundary of the flood hazard area at a considerable distance from the floodway and involving a relatively small amount of fill, would have no effect on flood hazard elevation. Because the entire flood fringe area is hydraulically interconnected and is dominated by the effect of the undersized conduit under Wadsworth Terrace, the whole flood fringe area functions as a single lake, i.e., flood waters throughout the area are all at the same level. Although flood waters that cannot flow downstream through the floodway will temporarily be stored in the flood fringe area, they are not trapped there but, in due course will flow downhill into the floodway. Elevating the road does not change this. For the same reason, the geographic source of the flood waters has no effect and

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there is no justification for treating it as geographically divided. Dipple, 8/9 T. 132-33, 8/21 T. 45-46, 49-50, 93-96,142, 8/22 T. 88-89; Emerson, 8/23 T. 157-163; 165-68, 174-75, 180; Letter report, M.E. Dipple and C. Emerson, Aug. 6, 2012 (Ex. A-13). The additional cross-sections demanded by Creelman would provide no additional information, do not contribute to the analysis of the effect of regrading the road and are not utilized the computer model cited by Creelman. Emerson, 8/23 T.163-64. 86. The force of the concerns expressed by Marsden and Creelman is diminished by

the fact that neither of them ran models of the effect of the regrading Birchwood Avenue. Marsden, 8/23 T. 18, 64; Creelman, 8/23 T 95. As a result, neither could testify based upon any actual data as to effect of regrading Birchwood Avenue or as to the magnitude of any purported error by Dipple. Marsden, 8/23 T. 18, 64; Creelman, 8/23 T. 88-99. 87. Regrading Birchwood Avenue as proposed would foster public safety by assuring

that there is at least one access for fire access and emergency vehicles, even in the event of a flood hazard area flood event. L. Dolan, 23. T. 113; N.J.A.C. 7:13-11.5(h)(2). 88. If the proposed regrading of Birchwood Avenue were not permitted and the

proposed project did not get a hardship waiver from the NJDEP and , it would be impossible for CDA to construct the project because it would not be able to secure a obtain a flood hazard area permit from the NJDEP, which is essential to the project. Dipple, 8/9 T. 152-153, 8/21 T. 142143. Landscaping, tree replacement, requested waiver of tree removal site design standard 89. The site plan includes a complete landscaping and tree replacement plan. Site

Plan, sht. C-07 (Ex. A-4,A-14). In accordance with the terms of the Court order, it provides for a 10 foot wide landscaped buffer between the driveway and the lot line for the health care facility

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which will be landscaped with a dense row of arborvitae in addition to the existing deciduous trees. Also in accordance with the terms of the Court order, it provides for a dense buffer of evergreens along the south side of the buildings between the buildings and single family houses on Wadsworth Terrace. More street trees will be planted along Birchwood Avenue in addition to the existing street trees. There will foundation plantings along the foundations of the buildings and ornamental trees in the court yards and near the entrances. Dipple, 8/9 T. 102-3. 90. Existing trees will remain undisturbed in the wetlands areas, in the wooded areas

at the south end of the site, in the buffer along the eastern edge of the site, and on the street in front of the buildings. These include mature trees with heights of 30 feet and diameters of 16, 18, 24, and 36 inches and some trees as high as 79 feet. Dipple, 8/9 T. 104-107. 91. Nonetheless, approximately 72 existing trees will have to be removed to make

way for the proposed structures. Dipple, 8/21 T. 160-61, 8/22 T. 14-17; Site Plan, sht. C-07. Under the terms of tree replacement provision of the Cranfords site plan ordinance, CDA would have to replace these trees with 295 new trees. CDA proposes instead to plant only approximately 180 new trees108 more tree than will be removed. It seeks a design waiver from the tree removal standard. Dipple, 8/9 T. 107-108; Site Plan, sht. C-07. 92. As proposed, the landscaping plan provides for full and extensive landscaping on

the propertya much greater extent of landscaping than currently exists. The only open area of lawn proposed is in the floodway where the existing building and parking is currently located. Planting additional trees in the floodway has the potential to impede the flow of waters through the floodway and to trap branches and other detritus which could further block the floodway. Dipple, 8/9 T. 108.

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93.

Cranford has offered no proofs as to why the planting of 223 trees in excess of the

number already on the property is necessary to protect public health and safety and why planting only 108 trees in excess of the number already on the property will not suffice. Bicycle racks, request for waiver of bicycle rack design standard 94. The design standards of the Cranford site plan ordinance require racks that

provide spaces for 394 bicycles. As proposed the plan provides for bicycle racks that would accommodate 40 bicycles exterior to the buildings and additional storage on each level of the residential building or parking structure (Building C). Dipple, 8/9 T. 109-110; Site Plan, sht. C04.. It seeks a design waiver from the bicycle rack standard. 95. Requiring racks for 394 bicycles is exorbitant, greatly in excess of any likely

usage, for this type of midrise apartment building at this type of location. Dipple, 8/9 T. 109-110. 96. Cranford has offered no proofs as to why requiring racks for 394 bicycles is

necessary to protect public health and safety and why racks for 40 bicycles on the exterior and additional racks in the residential buildings or parking structure totaling a lesser number is not sufficient. CONCLUSIONS Site Plan Approval 97. Subject to the two requested waivers, the proposed project as described in

Exhibits A-4, A-5, and A-6 (including the proposed regrading of Birchwood Avenue) conforms in all respects to the terms of Cranfords land use ordinance as amended by Ordinance No. 201211 and the Courts Order of December 9, 2012. 98. The Court need not determine whether the proposed project conforms to the

stormwater management provisions of the Residential Site Plan Improvement Standards,

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N.J.A.C. 5:21-7 et seq., since CDA has filed an application with the NJDEP, which will review the proposed project for compliance with those standards. In all other respects, the proposed project conforms to the requirements of the Residential Site Plan Improvement Standards as construed by the Courts Order of December 9, 2012. 99. Development of the proposed project with fewer bicycle racks than mandated by

Cranford Ordinances 136-23(G)(5) would not create a substantial detriment to public health or safety. Permitting development of the proposed project with fewer bicycle racks than the number mandated by the ordinance would remove an unnecessary cost and impediment to the inclusionary development of 360 units as authorized by the Court order of December 9, 2012. Subject to the conditions set forth below, a waiver of Cranford Ordinances 136-23(G)(5) is justified. 100. The specific landscaping provisions of the Courts Order of December 9, 2011

and of Ordinance No. 2012-11 supersede the general tree replacement provisions of Cranford Ordinances 136-23(L)(1)-(3). 101. Even if Cranford Ordinances 136-23(L)(1)-(3) were applicable, development of

the proposed project with the planting of fewer additional trees than mandated by the ordinance would not create a substantial detriment to public health or safety. Permitting development of the project with fewer additional trees than the number mandated by the ordinance would remove an unnecessary cost and impediment to the inclusionary development of 360 units as authorized by the Courts Order of December 9, 2012. A waiver of Cranford Ordinances 136-23(L)(1)-(3) to require only the trees provided in CDAs landscape plan is justified.

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102.

Subject to the conditions outlined below, the proposed project that will provide

adequate infrastructure, including ingress and egress to Birchwood Avenue, parking, sanitary sewer service, and public water service for domestic use and fire suppression. 103. CDA has proposed definite, specific feasible plans to address storm water

management, flood control, and protection of wetlands. These matters are ultimately governed by regulatory standards established by the NJDEP. CDA has filed applications to the NJDEP for approvals or permits as to each of these matters and has acknowledged that it cannot commence construction unless it receives these permits and approvals. The Township of Cranford may participate in proceedings before the NJDEP and has elected to do so. Any decision by the Court, standing in place of the Planning Board, on these issues would at the very least be redundant. Under these circumstances, the proper course under N.J.S.A. 40:55D-22(b) is to condition any approval granted by the Court on the CDAs securing all required permits and approvals from the NJDEP prior to drawing building permits. 104. To the extent that the Court, standing in place of the Planning Board, must rule on

whether CDAs plans to address storm water management, flood control, and protection of wetlands satisfy the governing regulatory standards, the opinion testimony of CDAs expert witnesses that the plans satisfy the relevant standards is credible. To the extent that the Townships expert opinion conflicts with that opinion testimony of CDAs expert witnesses, it less credible and the Court should reject those opinions. Regrading Birchwood Avenue 105. CDA has no feasible means of complying with NJAC 7: 13-11.5(h), as construed

by the NJDEP other than by regrading Birchwood Avenue as proposed in Exhibit A-4.

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106.

The opinion testimony of CDAs expert witnesses that proposed plan to regrade

300 feet of Birchwood Avenue will not cause any significant harm to residents of Cranford credible. To the extent that the Townships expert opinions conflicts with the opinion testimony of CDAs expert witnesses, they are less credible and the Court reject those opinions. 107. The proposed regrading of Birchwood Avenue will not cause any significant harm

to residents of Cranford and will have a significant public safety benefit. 108. In the absence of (i) a hardship exception from NJAC 7: 13-11.5(h) granted by the

NJDEP or (ii) a successful appeal from the NJDEPs construction of the regulation, CDA cannot construct the project unless it is permitted to regrade of Birchwood Avenue as proposed in Exhibit A-4, because it would not be able to secure a obtain an indispensable flood hazard area permit from the NJDEP. Permitting the proposed regrading of Birchwood Avenue would remove a substantial impediment to the inclusionary development of 360 units as authorized by the Courts Order of December 9, 2012. 109. While CDA might seek to construct the project without complying with this

regulation either by applying for a hardship exception under N.J.A.C. 7:13-9.8 or filing an appeal from the NJDEPs construction of N.J.A.C. 7: 13-11.5(h), there are sound reasons to permit CDA to regrade Birchwood rather pursuing either of those other options. a. First, if CDA were successful in either of those options, the portion of Birchwood

Avenue that would cross in front of both of entrances into the project from that street, as constructed, would still lie within the flood hazard area. In a flood hazard area flood event-however rare that may be--that portion of Birchwood Avenue might be flooded for some period of time. Neither party has offered any evidence in this proceeding as to whether if so constructed, the flood water level in Birchwood Avenue in front of the easternmost driveway

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during a flood hazard area flood event would impede entry onto the site by fire or emergency vehicles. The testimony of Fire Chief Dolan, although generalized and not addressing this specific issue, at least raises this as a potential problem. It is undisputed that if CDA is permitted to comply with the NJDEP regulation by regrading Birchwood Avenue, there will be at least one entrance into the project from Birchwood Avenue that will lie outside the flood hazard area and will lie at least one foot above the flood hazard design elevation. Thus, permitting CDA to comply with the NJDEP regulation by regrading Birchwood Avenue avoids a potential public safety problem. b. Second, requiring CDA to apply for a hardship exception or to appeal from the

NJDEPs interpretation of N.J.A.C. 7: 13-11.5(h) would needlessly add uncertainty and delay to the project. This is antithetical to the mandate by the Supreme Court in the Mount Laurel decisions that opportunities for the construction of low and moderate income housing be made realistic. 110. The Court therefore should permit CDA to regrade Birchwood Avenue as

proposed in Exhibit A-4 at its own expense and should order Cranford Township to take all formal actions necessary to permit CDA to do so. Off-site Improvements 111. In addition to the regrading of the Birchwood Avenue proposed by CDA, the

Township has recommended that CDA be required to construct or, contribute its pro rata share of the cost of, three off-site improvements under N.J.S.A. 40:55D-42: upgrading the public water line between the project and Bloomingdale Avenue; connecting proposed water line running down the easternmost driveway to the water main in the service road in the adjacent health care facility; and relining 1,300 linear feet of sanitary sewer lines.

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112.

Fire Chief Dolan testified that providing water service at a level of 2,000 gallons

per minute at the hydrant is desirable to assure sufficient water to the project for fire suppression. The parties are in dispute as to whether Cranfords public water system currently provides this level of service. Fire Chief Dolan testified that, if this level of service is not currently being provided, it can be provided by replacing the existing 8 inch water main between the easternmost hydrant in front of the project and the water main in Bloomingdale Avenue with a 12 inch water main. Approval of the project by the Court should be conditioned on performance at CDAs expense of an independent test of the level of water service available at the hydrants in front of the project by the water company (or some other third party agreed upon by both parties) in accordance the relevant national standard, NFWA 291. If the test shows that water service at the hydrants is significantly below 2,000 gallons per minute, then CDA shall construct this upgrade or reimburse Cranford for its pro rata share of the reasonable cost of the Townships performing this upgrade, at CDAs discretion. 113. There are conceivable circumstances, however unlikely, in which public water

services might not be available from either of the hydrants served by the water main on Birchwood in front the project but would be available from the water main in the service road of the adjacent health care facility just to the east of the project. Connecting the water line looping around the project to the water main in the service driveway of the health care facility would provide at least some degree of redundancy in the provision of public water for fire suppression for the project. This off-site improvement, however, would require an easement across the property of the health care facility. Cranford has not offered to acquire the easement through exercise of its powers of eminent domain. Under these circumstances, approval of the project cannot lawfully be conditioned on CDAs constructing, or reimbursing the Township for

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construction of, this link. It should be conditioned on CDAs making a good faith effort to secure the consent of the owner of the health care facility to connect a water line from the proposed project to the water main on the health care facility and to secure the property rights necessary to construct the connecting line at a reasonable cost and, if it succeeds in doing so, constructing, or reimbursing the Township for the reasonable cost of construction of, this link. 114. The Township urges that, even if the existing sanitary sewer system can safely

accept the additional flow from the project, the additional flow increases the risk of future breaks in the system. To address this problem, it proposes that CDA be required to reline, or contribute its pro rata share of the cost of relining, 1,300 linear feet of sanitary sewer lines at unspecified locations. The Township, however, has no offered any evidence that relining the 1,300 linear feet has any real nexus with the threatened future risks to the system caused by the project. Nor has the Township offered any evidence as to magnitude of the risk of future breaks in the system, the increase in risk that would be caused by the additional flow from the project, or how that risk should properly be allocated between the existing condition of the system--which the parties agree is very old, suffers from serious unremediated inflow and infiltration, and is already subject to breaks--and the additional burden that would be placed on the system by the flow from the project. In the absence of such evidence, there is no basis for determining that there is a sufficient nexus between the project and the proposed off-site improvements or that some share the cost of the proposed improvements to the project. The Court should, therefore, not condition any approval on CDAs constructing, or reimbursing the Township for any portion of the cost of constructing, this improvement. Nothing said here, however, is intended to impair the power of the Township to make this improvement and assess each of the beneficiaries of the improvement, including CDA, for their fair share of the costs, as otherwise provided by law.

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CONDITIONS TO SITE PLAN APPROVAL 1. The applicant may not receive building permits until it has received all necessary

permits and approvals from the New Jersey Department of Environmental Protection. 2. The low and moderate income units will be designated on the site plan, will be

deed restricted and will conform to the rules of the Council on Affordable Housing on bedroom mix and dispersal throughout the development. 8/8 T. 140. 3. 152. 4. The easternmost driveway will be realigned to maintain a 10 foot buffer from the Common areas will be available for use only by residents and their guests. 8/8 T.

lot line and to straighten the angle at which it enters Birchwood Avenue. 8/9 T. 22. 5. The site plan will be revised to conform to the changes shown in the Truck

Turning Diagram (Ex. A-15). 8/9 T.28-29, 125-26, 132. 6. No less than .5 parking spaces per unit will be physically available for guest

parking. These spaces may be located in the surface parking, the podium parking area, or the parking structure, or any combination thereof. The parking spaces physically available for guest parking that are located in the parking structure (Building C) shall not be within the gated areas of the parking structure. 8/22 T. 56. 7. Pedestrian access from the loading area in front of the parking structure (Building

C) through the parking structure and the elevators into the Building B will be designed to accommodate hand carts and will be no less than 48 inches wide. 8/22 T. 57-58. 8. The portions of the site bordering the internal driveway that must be unobstructed

to permit access by emergency vehicles will be not be utilized for snow storage. 8/22 T. 59.

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9.

Exterior bicycle racks will be provided to accommodate 40 bicycles. Secure

storage will be provided at Building A (which may be at the podium parking level) and each level of Buildings B (which may be at the associated level of the parking structure (Building C)) for 20 bicycles. Secure storage areas will also be provided in Buildings A (which may be located in the podium parking level) and in Buildings B (which be in the parking structure (Building C)) for strollers for occupants of the low and moderate income units. The secure storage areas will be in common areas and will not diminish the floor area of the low or moderate income units. The storage area in building A (which may be at the podium parking level) will be large enough to accommodate at least 5 strollers. The storage area in buildings B or C will large enough to accommodate at least 23 strollers. 8/22 T. 65-67. 10. Maintenance access easements will be granted to the municipality for municipally

owned pipes, sanitary sewers, and storm sewers. 8/9 T. 131, 8/22 T. 143-144. 11. The arborvitae along the east side the driveway will be trimmed whenever

necessary to prevent them from interfering with the exterior lighting. 8/9 T. 13; 8/22 T. 174-76.. 12. If any trees planted under the terms of the landscaping plan die within two years

of planting, they will be replaced. 8/22 T. 181. 13. Trash will be stored inside the structures and will picked up at least twice per

week. 8/8 T. 67-68. 14. Loading areas will provided adjacent the internal driveway near the entrance to

Building A and near the entrance to the parking structure (Building C). 8/9 T. 26. 15. There will 14 designated handicapped parking spaces, of which two will be

handicapped van spaces. 8/8 T.64-65; 8/9 T. 24-25.

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16.

CDA will place an additional exterior light to bring lighting of the portion of the

surface parking near the southern property identified in page 3, comment 2 of the Zoning Officers report to 1.5 foot-candles. 8/9 T. 122. 17. The existing storm sewer identified in Comment 3 of Marsdens memorandum

will not be removed. 8/9 T. 131-32, 8/22 T. 140. 18. Construction fencing will be provided as per Comment 4 of Marsdens report and

will be noted on the plan. 8/9 T. 131; 8/22 T. 140-41. 19. Grass areas will be labeled on the site plan as per Comment 5 of Marsdens

report, 8/9 T. 131; 8/22 T. 142. 20. The site plan will include a snow storage plan. The plan will show areas on the

site on which snow can be stored. The applicant will contract with a service to remove snow from the site and store it offsite if a snowstorm exceeds the on-site storage capacity. 8/9 T. 134135; 8/22 T. 154-55. 21. Cutoff walls will be constructed in the trench for the sanitary sewer pipe that is

located near the wetlands to prevent water from the wetlands draining into the trench as per Comment 13 to Marsdens report. 8/9 T. 136, 8/22 T. 155. 22. At the two places on the site where sanitary sewer pipes and stormwater pipes

cross, they will be designed to be at different depths as per Comment 14 to Marsdens report. 8/9 T. 136-37. 23. Additional exterior lighting will be placed in the breezeway facing Birchwood

Avenue as per Comment 19 in Marsdens report. 8/9 T. 140-41, 8/22 T. 177-78.. 24. During construction, silt fencing will be placed at least 15 feet away from the

buildings as per Comment 21 in Marsdens report. 8/9 T. 142, 8/22 T. 185.

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25.

During construction the topsoil stockpile will not be located within 5 feet of

Building B in the breezeway as per Comment 22 in Marsdens report, 8/9 T. 142, 8/22 T. 186. 26. The plan will show the details of the sanitary sewer pipe to demonstrate that it can

withstand the pressure of damp soil at 12.5 ft. below ground surface as per Comment 23 in Marsdens report. 8/9 T. 142-143, 8/22 T. 186. 27. The volume of the columns and structural walls supporting Building A will be

included in the flood storage calculations. 8/9 T. 143, 8/22 T. 186 -187. 28. When submitted to the Union County Soil Conservation Commission, the plan

will include calculations for the outflow rip rap apron for the stormwater pipe as per Comment 25 in Marsdens report. 8/9 T. 143, 8/22 T. 187. 29. Additional detail will be provided in the plan for the backflow prevent device in

the detention basin as per Comment 26 in Marsdens report. 8/9 T. 143, 8/22 T. 187. 30. During construction, a fence will be placed along the wetland transition area

boundary, as modified by the approved transition area averaging plan, to prevent intrusion into the protected area as per Comment 29 in Marsdens report. 8/9 T. 145, 8/22 T. 187-88. 31. Corrections to the stormwater management maintenance manual will be made as

per Comments 32 through 36 in the Marsdens report. 8/9 T. 145, 8/22 T. 188-89. 32. At least three turnouts will be provided on the internal driveway, one on the east

site of Buildings C. one on the south side of Building B, and one on the west side of Building B. The turnouts will be wide enough for a standard-sized automobile to pull aside to permit an emergency vehicle to drive past. The turnouts may be paved with permeable pavers, which shall be deemed not to constitute impervious cover for purposes of the Ordinance 2012-11 or the Courts Order of December 9, 2012. 8/23 T. 122-25.

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33.

Mountable curbs shall be provided on the side of the internal driveway toward the

adjacent buildings and, where there is no retaining wall or perpendicular parking, on the side of the internal driveway away from the adjacent buildings. 8/23 T. 130-131. 34. An independent test of the level of water service available at the hydrants in front

of the project will be conducted by the water company (or some other third party agreed upon by both parties) in accordance the relevant national standard, NFWA 291. If the test shows that water service at the hydrants is significantly below 2,000 gallons per minute, then CDA will replace the existing 8 inch water main from the easternmost hydrant on the property to the water main in Bloomingdale Avenue with a 12 inch water main. It may elect to construct this improvement itself or to reimburse Cranford for its pro rata share of the reasonable cost of the Townships constructing this improvement. 8/9 T. 32, 8/23 T. 128, 133-34. 35. The applicant will make a good faith effort to secure the consent of the owner of

the health care facility to connect a water line from the proposed project to the public water line in the service road of the health care facility and to acquire the property rights necessary to construct the connecting line. If it can this consent and property rights at reasonable cost within 90 days after entry of the order granting site plan approval, it will construct an 8 inch water line from the water line in the eastern driveway of the project to the public water main in service road of the health care facility. If it cannot do so, this condition will terminate. 8/23 T. 127-28, 13436.

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