You are on page 1of 56

FINDINGS OF FACTS, CONCLUSIONS AND RECOMMENDED CONDITIONS OF APPROVAL BY THE COURT BASED UPON HEARINGS HELD ON AUGUST 8, 9, 21, 22 and

23, 2012, BEFORE DOUGLAS WOLFSON, HEARING OFFICER, AND IN THE PRESENCE OF ELIZABETH C. MCKENZIE, AICP, PP, SPECIAL MASTER November 10, 2012 SUBMITTED TO THE HONORABLE LISA CHRYSTAL, JSC, UNION COUNTY SUPERIOR COURT, in the matter of CRANFORD DEVELOPMENT ASSOCIATES, LLC, et al. vs. TOWNSHIP OF CRANFORD AND PLANNING BOARD OF TOWNSHIP OF CRANFORD, DOCKET NO.: UNN-L-003759-08 ________________________________________________________________________

BACKGROUND

On July 29, 2011, the Law Division of the Superior Court (The Honorable Lisa Chrystal, JSC, sitting), having previously ruled that defendant Cranford Township is in violation of its low and moderate income fair share housing obligations, determined that plaintiff, Cranford Development Associates, LLC, et al. (hereinafter collectively “CDA”) is entitled to a sitespecific Builder’s Remedy, namely the right to construct an inclusionary development consisting of 360 total housing units on its property located at 215-235 Birchwood Avenue and identified on the Cranford Township Tax Map as Block 291, Lot 15.01, and Block 292, Lot 2 (hereinafter “the Property”) that would include a 15 percent set-aside of low and moderate income units on terms specified by the Court. On December 9, 2011, the Court entered an Order embodying this decision.

In implementation of its Order granting the Builder’s Remedy, the Court designated and appointed Douglas Wolfson, a former Mount Laurel Judge (Middlesex Vicinage), as the Special Hearing Officer (the “Hearing Officer”) in this matter to assume jurisdiction over the site plan

review process in lieu of the Planning Board and to conduct public hearings consistent with the requirements of the Municipal Land Use Law (the “MLUL”) and Order granting the Builder’s Remedy, and, thereafter, to make a recommendation to The Honorable Lisa Chrystal, J.S.C. concerning the application.

By Order dated August 6, 2012, the Court also directed the Hearing Officer to make a recommendation to the Court, based upon facts adduced at the site plan hearing(s), on the issue of whether defendants, Township of Cranford, et al., should be required to take the necessary formal actions that would permit CDA, at CDA’s own expense, to regrade a stretch of Birchwood Avenue to elevate it to a level one foot above the flood hazard area design elevation in accordance with plans prepared by L2A Land Design, LLC, as part of its construction of the proposed inclusionary development of the Property in order to obtain NJDEP approval of the development.

A memorandum dated May 15, 2012 was circulated by Elizabeth C. McKenzie, AICP, PP, the Court-Appointed Special Master (the “Special Master”) outlining the procedures to be followed by the parties in submitting, reviewing and approving CDA'S site plan application.

THE APPLICATION

Consistent with the above-cited Orders and the procedural memorandum circulated by the Special Master, CDA (the “Applicant”) submitted an application for Preliminary and Final Site Plan Approval and requests for associated waivers and exceptions (the “Application”)

2

together with supporting reports, plans and other materials by letter of transmittal dated June 6, 2012 (collectively, the “Application Materials”), to permit development of the Property.

The Application Materials initially consisted of the following: a. Preliminary and Final Site Plan and Application for Individual Flood Hazard Area

Permit, M.E. Dipple, June 4, 2012 – 25 sheets (Ex. A-4) b. c. 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 documents: a. b. c. d. e. f. g. h. 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)

CDA’s site plan showed the proposed regrading of Birchwood Avenue. The application was reviewed by the Township prior to the Hearings. The Township’s review included not only reviews by the Township’s own professionals but also by outside traffic and engineering consultants retained by the Township in accordance with standard municipal

3

land use practice and paid for out of the escrow account established by CDA in accordance with the MLUL, the Township’s Ordinance and the recommended procedures of the Special Master.

In response to the Application, the Township of Cranford submitted the following review reports:

a. b. c. d. e. evidence) f.

Memorandum from Code Official R. Belluscio to P. Morin, 7-18-12 (Ex. D-1) Letter from Traffic Consultant J. Staigar 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-3) Memorandum from Municipal Engineer R. Marsden to P. Morin, 7-20-12 (Ex. D-4) 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, including its professional consultants, met with representatives of Cranford Township, including its Municipal Attorney, Municipal Engineer, Construction Code Official, Zoning Officer, and a representative of the Township Police Department, to jointly review the Application.

THE HEARINGS

Pursuant to an Order entered by the Honorable Lisa Chrystal on August 6, 2012, Open Public Hearings were held at the Union County Court House in Elizabeth, New Jersey, during regular Court House hours. The Hearings took place on August 8, 2012, August 9, 2012, August

4

21, 2012, August 22, 2012, and August 23, 2012, before the Hearing Officer and in the presence of the Special Master.

Although the Township of Cranford objected to the scope and sufficiency of the Notice provided by the Applicant in a letter dated August 3, 2012, which letter is part of the record before the Court, the Hearing Officer determined that the Applicant had provided adequate Notice via proof of publication of the Notice in the Official Newspaper for Cranford Township, as well as proof of service of Notice to all property owners within 200 feet of the Property as shown on the certified list of property owners dated June 1, 2012, provided by Peter Barnett, Tax Assessor for the Township of Cranford, on all utilities and cable television operators servicing the Property or having facilities located within 200 feet of the Property, on any military facility commander registered with the municipality, on the Union County Planning Board and on James Simpson, New Jersey Department of Transportation Commissioner, all as provided by N.J.S.A. 40:55D-1, et seq. (Ex. A-1).

At the Hearings, the Applicant, represented by Stephen M. Eisdorfer, Esquire, of the firm of Hill, Wallack, LLP, presented several witnesses, each of whom was then questioned by counsel for the Township, Philip J. Morin, III, Esquire, of the firm of Florio, Perrucci, Steinhardt and Fader, LLC, as well as by members of the public, including one attorney, Maria Anderson, of 662 Trenton Avenue, Kenilworth, representing herself. The Applicant was permitted to conduct a redirect examination, and the Township and members of the public were permitted to ask questions limited to topics addressed in the redirect examination. Special Master Elizabeth McKenzie and the Hearing Officer then asked questions. Finally, counsel for the Applicant and

5

the Township and members of the public were permitted to ask questions on topics addressed in the responses to the questions of the Special Master and the Hearing Officer.

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

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

The Applicant, the Township, and members of the public were permitted to offer documents into evidence, which were marked, and by stipulation were all moved into evidence. A list of the exhibits received into evidence is attached hereto as Appendix A.

CDA presented the testimony of the following witnesses: a. b. c. 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. 144-195) Peter Hekemian – Applicant (8/9 T. 154-160) Clay Emerson, PhD. – Engineering and Water Resource Engineering (8/23 T

The Township presented the testimony of the following witnesses: a. b. c. Richard Marsden – Engineering (8/22 T. 129-200, 8/23 T. 5-87) Joseph Staigar – Traffic Engineering (8/22 T. 105-129) Leonard Dolan – fire chief (8/23 T.103-143)

6

d.

Thomas Creelman – engineering and hydrology (8/23 T. 87-100)

The following members of the public testified: a. b. c. d. 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

The Application proposes the redevelopment of a 15.8-acre site consisting of two separate but adjoining lots designated on the Cranford Township Tax Map as Block 291, Lot 15.01, and Block 292, Lot 2. The lots are located at 215 and 235 Birchwood Avenue in Cranford Township. Site Plan (Ex. A-4).

The Property is currently developed with two office buildings and associated paved parking areas. The remainder of the Property includes mature woods, a mixture of evergreen and deciduous vegetation, and lawn. Casino Brook, a narrow stream that is a tributary of the Rahway River (also known as Rahway River Branch 10-24) forms the western edge of the site. The southeast corner of the site has another man-made ditch. Dipple, 8/8 T. 12-15; Site Plan, sht. C02 (Ex. A-4); Aerial Photo (Ex. A-8).

The Property contains regulated freshwater wetlands and wetlands transition areas, which have been delineated by the NJDEP in a formal Letter of Interpretation. Letter from A. Clark,

7

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

The surrounding uses include a health care facility to the east of the Property, an office building to the west of the Property, and an office building owned by Verizon, Inc., and a municipal composting and recycling center to the north of the Property on the other side of Birchwood Avenue. The nearest existing residential uses are single family houses on Wadsworth Terrace to the south of the Property, which homes have rear yards that back up to the Property. Lessard, 8/8 T. 34-35; Dipple, 8/9 T. 10-11; Aerial photo (Ex. A-8).

As amended by Ordinance No. 2012-11, Cranford Township’s Land Development Ordinance locates the Property in the Inclusionary Multi-Family Residential (IMR) zone. This zone was created by the Township in response to the Court's December 9, 2011, Order. The lands to the west, north and east are located in the Low Density Office District (I-O) zone. The lots to the south, along Wadsworth Terrace, are located in the R-4 Single Family Detached Residential zone. Site Plan shts. C-O1,C-04 (Ex. A-4).

THE PROPOSED DEVELOPMENT/REDEVELOPMENT

As set forth in the Application, the Applicant proposes to redevelop the site with two residential buildings, a garage structure, surface parking, walkways, lawns, open spaces, preserved woods, wetlands, wetlands buffers, and recreational amenities. In accordance with the

8

Court’s Order of December 9, 2011, CDA proposes to construct a total of 360 dwelling units, including 54 low and moderate income rental units. Site Plan, sht. C04 (Ex. A-4, A-14); Lessard 8/8 T. 35-36; Dipple, 8/9 T. 16-17.

Proposed Building A fronts on Birchwood Avenue. It consists of a 58 space parking level (“parking podium”) with three stories of residential units above it. It includes 60 residential units. Proposed Building B fronts on Birchwood Avenue and wraps around Proposed Building C (the parking structure). Building B is proposed to consist of four stories containing 300 residential units. Building C fronts on the internal driveway proposed along the east side of the Property. It is a four-level parking structure containing 520 parking spaces. There are an additional 89 surface parking spaces proposed along the internal drive. Lessard, 8/8 T. 36-37; Site Plan, sht. C-04 (Ex. A-4, A-14); Architectural Plan, sht. 5 (Ex. A-5); Dipple, 8/9 T. 17-19, 22-23.

At its nearest point, Building A will be approximately 545 feet from the rear property lines of the lots fronting on Wadsworth Terrace. Lessard, 8/8 T. 95. At its nearest point, Building B will be approximately 205 feet from the rear property lines of the lots fronting on Wadsworth Terrace and 70 feet from the side lot line of the health care facility to the east. Lessard, 8/8 T. 50.

Building A will have a height of 55 feet above grade, measured to the midpoint of the roof as mandated by Ordinance 2012-11§2(E)(6). Lessard, 8/8 T. 43; Architectural Plan, sht. 9 (Ex. A-5). Building B will have a height of 51.8 feet above grade, again measured to the midpoint of the roof in accordance with the Township's Ordinance. Lessard, 8/8 T. 49;

9

Architectural Plan, sht. 9 (Ex. 5). The top level residential units in each building will each include a loft level which will be open to the main level of the unit. These lofts will be within the level of the roof and will not add to the height of the building. Architectural Plan, sht. 9 (Ex. 5); Lessard, 8/8 T. 41-42,45-46. The parking structure (Building C) will have four levels, of which the top level will be open and unroofed. Lessard, 8/8 T. 93. The floor level of the fourth parking level will be 38 feet above grade. Architectural Plan, sht. 9 (Ex. A-5). The building heights are in conformance with the requirements of Cranford's Ordinance.

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

Access by residents and guests to Building A will be from the building entrance facing the internal driveway and from the ground floor podium parking area. Access by residents and guests to Building B will be from each level of the parking structure (Building C) and from the building entrance facing the internal driveway. Architectural Plans, shts. 1, 3 (Ex. A-5); Lessard, 8/8 T. 39-40.

As previously authorized by the Court in the December 9, 2011, Order, the project has been designed with a ratio of 1.85 parking spaces per unit. While not strictly in compliance with the RSIS, the exception had been approved by the Court based upon the testimony presented during the Builder's Remedy trial as to the types and sizes of dwelling units proposed and the potential availability of temporary on-street parking for visitors in Birchwood Avenue, weather

10

permitting. Architectural Plan, sheet 1 (Ex. A-5); Dipple, 8/21 T 156, 8/22 T. 52. The parking spaces for residents versus guests have not been separately designated on the plans. If all of the parking spaces in the podium level of Building A are occupied, residents and guests will be free to park in the surface level spaces between Building A and Building B, in the parking structure (Building C), or in the surface parking spaces to the east of Buildings B and C. Residents of units in Building A and their guests will have direct access to the spaces in Building C through the vehicular entrance and pedestrian walkway through Building B. Architectural Plan, sheet 1 (Ex. A-5). The parking spaces provided on the Property will include 14 designated handicapped spaces, of which two will be handicapped van spaces as required by the Uniform Construction Code. Lessard, 8/8 T. 64-65; Dipple, 8/9 T. 24-25, 123-124.

The drop off points for persons coming to the project would be inside the parking structure for Building B and inside the podium parking area for Building A. For anyone not wishing to go into the parking structure or the podium level of Building A, the drop off would be along the eastern driveway by the entrance to the parking structure for Building B and along the western driveway for Building A. Because there are no entrances into either of the buildings along the building facades facing Birchwood Avenue, persons would not normally be dropped off on Birchwood Avenue. Dipple, 8/9 T. 139 -40.

All parking spaces (except the handicapped and van spaces) will be 9 feet by 18 feet in accordance with the Residential Site Improvement Standards. Dipple, 8/9 T. 122.

Loading areas will be provided adjacent to the internal driveway near the entrance to Building A and near the entrance to the parking structure (Building C). Dipple, 8/9 T. 26.

11

Residents will be able to move furniture and personal possessions into and out of their residential units on carts using the elevator and proceeding through the parking structure or parking podium to these loading areas. Elevators and doorways are designed to be wide enough to accommodate such carts. Dipple, 8/22 T. 57-58.

Trash will be collected inside each building, stored inside the building, and taken outside in carts by building staff members to the driveway for pickup. Lessard, 8/8 T. 41.

Of the residential units, 54 units (15 percent of the total) will be reserved for occupancy by and will be affordable to low and moderate income households. Lessard, 8/8 T.35-36. In conformity with the Rules of the New Jersey Council on Affordable Housing, the Applicant proposes that 11 units will be three-bedroom units, 32 units will be two bedroom units and 11 units will be one bedroom or studio units. Lessard, 8/8 T. 141.

COMPLIANCE WITH STANDARDS IN ORDINANCE NO. 2012-11 AND THE COURT’S ORDER OF DECEMBER 9, 2011

The proposed structures comply with all the bulk standards set forth in Ordinance No. 2012-11 and the Court’s order of December 9, 2011: Required 15 acres 750 feet 25 feet 30 feet 55 175 31.21% (existing impervious coverage) 55 feet 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

<55 feet

12

Maximum height – Building A Maximum height – Building B Minimum distance between multi-family buildings Minimum buffer to eastern lot line Minimum buffer to rear lot line Minimum parking spaces

One parking level and three residential levels Four residential levels 25 feet 10 feet 175 feet 666

One parking level and three residential levels 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.

As presented, the proposed site plan contains an error. At the easternmost ingress/egress driveway, the internal driveway is drawn too close the eastern lot line, leaving only an eight foot buffer. Dipple, 8/9 T. 22; Site Plan, C-04 (Ex. A-4, Ex. A-14). The Applicant has agreed to straighten the driveway and move it two feet to the west, which will eliminate that error and bring the site plan into conformance with the bulk standards in Ordinance No. 2012-11 and the Court Order. Dipple, 8/9 T. 22.

Subject to two requested waivers, and the correction of the above-described site plan error, the Application conforms in all respects to the terms of Cranford’s Land Development Ordinance, as amended by Ordinance No. 2012-11, and the Court's Order of December 9, 2011. Dipple, 8/9 T. 148.

Issues as to compliance of the proposed structures with the Uniform Construction Code were raised in the report of Construction Code Official Belluscio. (Ex. D-1). These issues were addressed in the testimony of the Applicant's Architect. Lessard 8/8 T. 50-69. The Township did not present testimony by Belluscio or by any other witness on these issues. The Municipal Engineer testified that certain issues had been resolved by the testimony of Lessard. Marsden, 8/22 T. 143, 186. Counsel for Cranford Township has requested that the Township have the

13

right to address any non-site plan issues of Construction Code compliance at the time the Applicant applies for Construction Permits.

COMPLIANCE WITH RESIDENTIAL SITE IMPROVEMENT STANDARDS (RSIS)

Except for the parking ratio, which was previously addressed and specifically authorized by the Court, the Applicant has designed the project to comply with the Residential Site Plan Improvement Standards. Dipple, 8/9 T. 28, 121, 126, 8/21 T. 156, 8/22 T. 24, 98. The Township has not identified any violations of the Residential Site Plan Improvement Standards.

INFRASTRUCTURE

According to the testimony of the Applicant's traffic expert, the additional traffic generated by the project will not exceed the capacity of Birchwood Avenue. It will have only a small impact on the intersections of Birchwood Avenue with Cranford Avenue and Bloomingdale Avenue. Those intersections will continue to function at acceptable levels. The Birchwood Avenue northbound approach to Orange Avenue will operate at Level of Service “E” during the morning peak hour, which is a minimum level of acceptability. J. Staigar, 8/22 T. 111-112. No improvements were recommended, however, to enhance the Level of Service or increase traffic safety. E. Dolan, 8/8 T. 161-230; J. Staigar, 8/22 T. 105-129; E. Dolan, Traffic Impact Assessment (Ex. A-11); E. Dolan, Supplemental Traffic Impact Assessment (Ex. A-24); Staigar, Letter to P. Morin (Exs. D-2 and D-14).

14

Fire Chief Leonard Dolan, who was offered and accepted as an expert in the field of fire safety and design, expressed the following concerns about the layout of the site plan: a. the angle at which the internal driveway meets Birchwood Avenue at the

easternmost ingress/egress may impede access by Cranford’s fire equipment; b. the turning radius of the internal driveway around the south end of Building B

may impede access by Cranford’s largest fire truck; and c. during any flood event that restricts access to the project through the westernmost

ingress/egress, the width of the internal driveway may be too narrow to accommodate Cranford’s largest truck plus permit access by other vehicles to Building A. L. Dolan, 8/23 T. 107-125; L. Dolan Memorandum (Ex. D-17).

To address these issues, the Applicant has agreed to: a. b. B to 30 feet; c. d. provide mountable curbs along the internal drives; and provide turnouts at various points along the internal driveway. straighten the eastern ingress/egress; increase the turning radius on the interior drive around the south end of Building

In this regard, the Applicant has agreed to submit a revised Site Plan to the Township and to the Court evidencing compliance with all of these representations. Dipple, 8/9 T. 28-29, 125-126, 132; Truck Turning Diagram (Ex. A-15); Marsden, 8/22 T. 144-45; L. Dolan, 8/23 T. 130-131; L. Dolan, 8/23 T. 122-25.

Chief Dolan also expressed concerns about the adequacy of access to the site under severe flooding conditions that might make Birchwood Avenue impassable. He was particularly

15

concerned about the ability of emergency equipment to access the site during flooding conditions given the depth of the Property and its relatively limited roadway frontage, especially at times when the westerly driveway would be inaccessible. L. Dolan 8/23 T. 114-117. Elevation of Birchwood Avenue to one foot above the flood hazard design elevation as shown on the Site Plan (Site Plan, shts. C-04, C-19 (Ex. A-4)) would provide at least one point of access in a 100year flood event. L. Dolan, 8/23 T. 113. The elevation of Birchwood Avenue would satisfy the NJDEP regulatory requirements. Dipple, 8/9 T. 127.

The Township did not embrace the testimony offered by the Applicant as to the public safety efficacy of this solution, despite the fact that neither the Township nor Chief Dolan had raised any objection when the Township was reviewing and approving a similarly situated development known as the "Riverfront Redevelopment Project". That multifamily development had been approved by the Township despite the fact that the development itself and all of the surrounding streets lie within and remain below the elevation of the State-designated flood hazard area. L. Dolan, 8/23 T. 136-39; L. Dolan Review Reports on Site Plan Application for Riverfront Redevelopment Project (Ex. A-28); Dipple, 8/9 T. 86-89; Flood Hazard Area Permit for Riverfront Redevelopment Project (Ex. A-22). In its attempt to justify this obvious inconsistency, the Township argued that the Riverfront Redevelopment Project: a) is located only one quarter mile from the Cranford Fire Station while the Applicant’s Property is over a mile away; and b) the Riverfront Development has access from three public streets as compared to the Applicant’s Project, which has frontage on only one street and on which the developable area is exceptionally deep with limited exposure to the street frontage. L. Dolan 8/23 T. 142142, 116.

16

Water for domestic consumption and fire suppression will be provided through connection to Cranford Township’s public water system. Dipple, 8/9 T 29-32. The parties were in dispute at the Hearing as to whether the public water system will provide enough water to the site for fire suppression. If the existing system were to be determined to provide an inadequate supply of water for fire suppression purposes, possible solutions proposed by the Township included: a) replacing the existing water main along Birchwood Avenue with a 12 inch pipe extending from the hydrant at the east end of the Property to Bloomingdale Avenue and increasing the size of the looped water line on the site to 12 inches; and b) providing a second connection to the looped system on the Property from the adjacent nursing home property. L. Dolan, 8/23 T. 128, 133-34; Dipple, 8/9 T. 32. Providing a fire pump at grade level would assure sufficient water pressure for fire suppression at all levels in Buildings A, B and C. Lessard, 8/8 T. 86-87.

Sanitary sewage service is to be provided by connection to the Cranford Township sanitary sewer system. Treatment for this system is provided by the Rahway Valley Sewage Authority in Rahway, which has sufficient capacity. Dipple, 8/21 T. 172.

Cranford’s sanitary sewage conveyance system is old. Most of the line that runs between the Property and the Roselle Park border is 40 to 60 years old, and some stretches, constructed at the same time as the Garden State Parkway or earlier, are at least 64 years old. Marsden, 8/23 T. 27-30. As a result, the system suffers from a serious problem of inflow - surface water entering the system - and infiltration - groundwater entering the system. Marsden, 8/22 T. 158, 160. The system has had relatively few failures - four lines breaks within the entire municipality over the last eight years. Marsden, 8/23 T. 31-32. Two of these breaks, however, have occurred in the

17

past year in the stretch of line between the Garden State Parkway and the Roselle Park border, which is part of the system that would serve the project. Marsden, 8/23 T. 30-34.

Based upon the Sanitary Sewer Capacity Study, the Existing Sanitary Sewer Map (Ex. A-17) and measurement of existing flow through the pipes in the sanitary sewer system between the Property and the Roselle Park border, the system has sufficient existing capacity to provide service through simple gravity driven flow (open channel flow), except for three stretches of pipe. As shown on the Existing Sanitary Sewer Map (Ex. A-17), each of these three stretches is essentially flat; consequently, a mathematical analysis that assigns a value of zero to “slope” under a simple gravity flow (open channel flow) model shows these stretches as having no capacity. This "technical" lack of capacity is thus not a function of the sizes of the pipes but of the lack of slope in certain areas. The Applicant’s Engineer testified that a field survey indicated that one of these three stretches of pipe actually has adequate slope and functions properly and safely using gravity flow under both average and peak flow conditions, although the data supporting this conclusion were not presented at the Hearing. The two remaining stretches of pipe operate properly and safely under average and peak flow conditions using pressurized flow described as surcharged flow (in which the pressure created by the effluent itself actually carries the flow through the flat stretch of pipe). If the flow slows down, it backs up to a point that it eventually creates the pressure needed to force it through the pipe. Dipple, 8/9 T. 35-40; 8/21 T. 103-105; 8/22 T. 37-40; Sanitary Sewer Capacity Study, Tables 1 and 2 (Ex. A-14).

Based upon the original Project design - for 422 units - 83,850 gallons per day would have been added to the system, based on NJDEP design standards. Sanitary Sewer Capacity Study, Table 3 (Ex. A-14). At 83,850 gallons per day, the system would operate properly and

18

safely under average and peak flow conditions. The currently proposed Project, for 360 units, will generate lower flows than the original design would have generated. In the opinion of the Applicant’s Engineer, all of the stretches that currently operate through simple gravity flow will continue to do so properly and safely, and all of the stretches that operate through pressurized flow (under surcharged conditions) will continue to do so properly and safely. Moreover, it is the opinion of the Applicant’s Engineer that the additional flow from 360 units will not cause any stretch of pipe to transition from simple gravity flow to pressurized flow. Dipple, 8/9 T. 3540; 8/21 T. 103-105; 8/22 T. 37-40, 91-93; Marsden, 8/23 T. 39.

The Applicant’s Engineer testified that under a more sophisticated evaluation - known as a hydraulic grade line study -- it was determined that even where the system is currently operating under surcharged or pressurized conditions, the level of flow does not rise above the level of the pipes, i.e., it does not rise into the manholes above the pipes. Moreover, in the opinion of the Applicant’s Engineer, due to the depth of the sewer pipes, the backups that routinely occur in the stretches of sewer line that operate under surcharge or pressurized conditions will not result in the effluent rising above the levels to which it currently rises and into the manholes, even under peak conditions. Dipple, 8/22 T. 40-42, 91-93. It was the conclusion of the Applicant’s Engineer that the existing sewerage system will operate safely and effectively even with the additional flow. Dipple, 8/9 T. 137-38; 8/22 T. 37-42, 46, 91-93.

Cranford’s Engineer, Richard Marsden, expressed "concerns" that, given the age of the existing system, the additional flows from the project, which he characterized as substantial, when combined with the existing flows and the existing (unremediated) inflow and infiltration would create a potential risk of future line breaks, although he could not quantify the degree of

19

risk. Marsden, 8/22 T. 155-162; 8/23 T. 27. Marsden recommended that approximately 1,300 linear feet of off-tract sewer pipe be re-lined in order to reduce inflow and infiltration and to increase the integrity of the existing pipe, reducing friction and enhancing flow-through. In Marsden’s opinion, such measures would decrease the incidence of pressurized or surcharge flow. Marsden, 8/22 T. 161. Marsden opined that the Applicant would have substantial responsibility for this off-tract improvement, but was unable to specify the magnitude of CDA’s pro-rata share of such an improvement. Marsden, 8/22 T. 161-172.

In light of the unresolved issue concerning the extent, if any, of the Applicant’s responsibility for sanitary sewerage improvements under Section 136-27 of Cranford’s Land Development Ordinance, which addresses off-tract improvements, the Hearing Officer recommended that the parties meet to attempt to resolve the issue and report back to the Court and the Special Master as to whether or not the issue has been resolved.

COMPLIANCE WITH WETLAND, STORM WATER MANAGEMENT, AND FLOOD HAZARD AREA STANDARDS

The Property includes areas of State-regulated freshwater wetlands and State-regulated wetlands transition areas. Based upon the calculations provided by the Applicant’s experts, and subject to NJDEP review and approval, the Project has been designed to avoid any infringement on regulated freshwater wetlands. The Project will intrude into required freshwater wetlands transition areas, and, in accordance with NJDEP regulations, the Applicant has applied to the NJDEP for approval of a freshwater wetlands transition area averaging plan and will comply with all NJDEP regulations concerning construction within and in the vicinity of a wetlands transition area. Dipple, 8/9 T. 42-44, 46-47, 144-145.

20

Notice of the applications for both the Flood Hazard Area Permit and Wetlands Permit was provided as required by the NJDEP. Public Notices of CDA Application for Flood Hazard Area Permit and Wetlands Permit (Ex. A-19).

The Township’s Engineer (Marsden) suggested that construction of a short stretch of pipe will require approval of a permit by the NJDEP. Marsden, 8/22 T. 156, 187. The Applicant’s Engineer testified that if NJDEP determines that a general permit is required for that particular stretch of pipe, such a permit is routinely available under NJDEP’s regulatory standards for a General Permit 2 and would be requested. Dipple, 8/9 T. 44-45, 135-136.

Township Engineer Marsden expressed a number of concerns as to the impact of the Project on freshwater wetlands. All of these objections may appropriately be raised with the NJDEP prior to final approval of the application by the NJDEP, and Cranford Township and individual members of the public are entitled to voice any objections they may have to such application. Dipple, 8/9 T. 47. Indeed, Cranford has already participated in the NJDEP review process and has submitted its objections. Marsden, 8/23 T. 14-16; Letter from R. Marsden to Engineering Supervisor for Union County, NJDEP, January 3, 2012 (Ex. A-26); Memorandum from R. Marsden to V. Opara, NJDEP, August 2, 2012 (Ex. A-27).

As the Project will disturb more than one acre of land, it is subject to New Jersey’s Stormwater Management Regulations. Dipple, 8/9 T. 48. The NJDEP regulations are incorporated by reference into the Residential Site Improvement Standards. Dipple, 8/9 T. 48.

21

As part of its Flood Hazard Area Permit application, the Applicant has filed for NJDEP approval of the stormwater management plan for the Project. Dipple, 8/9 T. 43.

The State’s Stormwater Management Regulations encompass four areas of regulation: a. b. c. d. storm water quantity; storm water quality; infiltration to ground water; and nonstructural strategies or best management practices.

The Applicant's Engineer testified that the Project is specifically designed to meet the applicable standards within each of these areas to the extent applicable and subject to NJDEP approval of the methodology and resulting calculations. Dipple, 8/9 T. 48.

The Applicant's Engineer testified that the NJDEP water quality standards do not apply to the Project; the water quality standards only apply to projects that will increase the existing impervious coverage. The Project will actually reduce impervious coverage from 31.21 percent (existing) to 31.1 percent (proposed). Site plan, sht. C-04 (Ex. A-4); Dipple, 8/9 T. 19-21, 49.

The NJDEP groundwater recharge standards do not apply to sites within areas designated on the State Plan as the “Metropolitan Planning Area (PA-1).” The Property is within PA-1, the Metropolitan Planning Area. Dipple, 8/9 T. 49-50.

With respect to the stormwater quantity standard, the Project has been designed in accordance with NJDEP regulations to reduce the peak rate of run-off below existing conditions for the two-year, ten-year, and one-hundred-year storm events. The rate of run-off for the two-

22

year storm must be reduced by 50 percent, the ten-year storm by 25 percent, and the hundredyear storm by 20 percent. The Project will satisfy these standards by providing for stormwater storage in and controlled discharge from a large underground detention basin to be constructed under the surface parking area on the east side of Buildings B and C. Dipple, 8/9 T. 51-52 and 8/21 T. 122-24; Site Plan sht. C-05 (Ex. A-4). The Applicant’s Engineer testified that, based on the modeling that was undertaken in accordance with NJDEP standards, the Project will reduce peak stormwater run-off (in cubic feet per second) as follows:

Storm event

2 10 100

Existing conditions peak runoff rate 17.89 24.59 37.03

Proposed conditions peak runoff rate 3.66 11.86 28.16

Reduction

14.23 12.73 8.87

Proposed rate as percent of existing rate 20% 48% 76%

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

As required by the NJDEP, the rate of runoff for each storm was modeled taking into account all existing conditions, including existing buildings, parking lots and drainage structures. Dipple, 8/9 T. 56-57 and 127-28; Site Plan, sht. C0-2 (Ex. A-4).

Cranford Engineer Marsden raised various technical concerns about the stormwater management plan and the calculations upon which it is based, claiming that CDA’s Engineer failed to properly account for existing drainage structures, improperly calculated the time of concentration, and did not consider "tail water" effects. R. Marsden, 8/22 T. 134-137, 190-199; Memorandum from R. Marsden to P. Morin, 7-20-12 (Ex. D-4).

23

These concerns were rebutted by CDA’s experts, Dipple and Emerson, both of whom stated that the drainage structures had been modeled in their existing condition. Dipple, 8/9 T. 56-57, 127-28, 145-47; 8/23 T. 101-103. According to Emerson, Marsden’s critique of the time of concentration analysis was based upon a methodology not used in CDA’s study and not permitted by NJDEP. Emerson, 8/23 T. 166-67. Further, under NJDEP regulations, "tail water" effects must be dealt with by incorporating a mechanical backflow preventer in the detention basin, which CDA has done. Emerson, 8/23 T. 168. Emerson acknowledged that he is not licensed as a Professional Engineer in the State of New Jersey and that he had not viewed the subject property during a storm event.

The NJDEP has jurisdiction over CDA's stormwater management plan in the context of CDA’s application for a flood hazard area permit, and objections to the Applicant's storm water management plan (if any) can, and should, be directed to the NJDEP, which, in fact, Township Engineer Marsden has already done on behalf of Cranford. Marsden, 8/23 T. 14-16 ; Letter from R. Marsden to Engineering Supervisor for Union County, NJDEP, January 3, 2012 (Ex. A-26); Memorandum from R. Marsden to V. Opara, NJDEP, August 2, 2012 (Ex. A-27).

The property includes areas within the state regulated floodway and the state regulated flood fringe. Site Plan, sht. C-02; Dipple, 8/9 T. 58. Flooding conditions on the site are largely due to stormwater flowing from developed areas north of the site and also due to stormwater backing up from an undersized culvert under Wadsworth Terrace, which lies to the south of the site. Dipple, 8/9 T. 58-59; Marsden, Flood Hazard Map (D-15).

24

As described by the Applicant's Engineer, the flood hazard area consists of the entire area that would be flooded in a state-defined “flood hazard area flood event” - a 100-year storm plus an additional flow rate of 25 percent. It is the area contiguous to the stream which lies below the “flood hazard area elevation” - the maximum elevation of flood waters in a “flood hazard area flood event.” The floodway is that portion of the flood hazard area which would actually carry the downstream flow of water during a “flood hazard area flood event.” Its boundaries are determined using a model approved by the NJDEP. The flood fringe is the remainder of the flood hazard area and consists of areas of little or no velocity where storm water "ponds" and is stored during a 100-year flood event; the flood fringe areas do not actually carry the downstream flow. Dipple, 8/9 T. 65-68, 72; NJDEP Flood Hazard Area Diagram (Ex. A-20).

As part of its flood hazard area permit application, the Applicant's experts modeled Branch 10-24, determined its flood hazard area elevation, and delineated its floodway boundary and flood hazard area boundary based upon existing conditions on the site, all in accordance with the NJDEP-approved methodology. Dipple, 8/9 T. 59-65, 72; Dipple Engineering Report, sht. FS-01 (Ex. A-6); Site Plan, sht. C-02 (Ex. A-4). As required by the NJDEP-approved methodology, the model included the existing office building and parking lot at 235 Birchwood Avenue, both of which are located in the floodway. Dipple, 8/9 T. 64-65; Emerson, 8/23 T. 150151. The flood hazard area elevation is at a level of 78.6 feet (above the level of the base point). Dipple, 8/9 T. 72. The floodway boundary and the flood hazard area boundary are shown on the site plan. Site Plan sht. C-04 (Exs. A-4, A-14); Dipple, 8/9 T 13-14.

Cranford Engineer Marsden expressed concerns about the correctness of the methodology used for determining the location of the floodway boundary, including that it did not follow

25

existing topographic contour lines, that it was improperly affected by the existing office building at 235 Birchwood Avenue, and that it did not split the flow of flood waters coming from the north side of Birchwood Avenue between stormwater piping under the street and surface flow over the street. Marsden, 8/22 T. 138-140, 8/23 T. 61-72; Marsden Memo to P. Morin (Ex. D-4).

The NJDEP has sole and exclusive jurisdiction over the issuance of flood hazard area permits and is thus the proper forum for these kinds of technical objections. Objections have already been made in the form of letters from Engineer Marsden to the NJDEP on behalf of Cranford Township. Marsden, 8/23 T.14-16, 72-75; Letter from R. Marsden to Engineering Supervisor for Union County, NJDEP, January 3, 2012 (Ex. A-26); Memorandum from R. Marsden to V. Opara, NJDEP, August 2, 2012 (Ex. A-27).

Notwithstanding the absence of any local jurisdiction over such matters, Marsden's concerns were addressed and contradicted by CDA’s experts, Engineer Dipple and Dr. Emerson, both of whom testified that according to NJDEP standards the floodway boundary is required to be determined utilizing existing conditions, including the existing structures, and cannot lawfully be determined any other way. Further, since the determination of the floodway is based upon a conceptual computer model of the area required for the flow of floodwaters, the floodway need not, and typically does not, follow existing topographic contour lines. Finally, the computer model expressly splits the flow between the storm water conduits under Birchwood Avenue and surface flow. Dipple, 8/9 T. 129-130; Emerson, 8/23 T 147-157; Letter Report, M.E. Dipple and C. Emerson, Aug. 6, 2012 (Ex. A-13).

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

26

a.

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

summer of 2010; b. c. d. he had an opportunity to request the underlying data from Dipple at that time; he had testified on the floodway boundary issue at the Builder's Remedy trial; he had reviewed the floodway boundary determination again in December, 2011,

in connection with CDA’s flood hazard area permit application to the NJDEP; e. f. he had filed objections to that application; and while he had the knowledge and experience to run the standard computer model

himself to determine the floodway boundaries, he did not actually do so. Marsden, 8/23 T. 6-18, 64. As a result, he could not testify that the floodway boundary as determined by Dipple and Emerson was actually incorrect nor could he quantify the magnitude of any alleged error. Marsden, 8/23 T. 18, 64. Finally, Marsden conceded that NJDEP regulations require the floodway to be determined based on existing conditions at the time of application and not based on proposed changes to those conditions. Marsden, 8/23 T. 82-83.

Consistent with NJDEP regulations, the Project does not involve any construction in the floodway as determined by the Applicant's Engineer and delineated on the Site Plan. 8/21 T. 89; Site Plan, sht. C-04 (Ex. A-4). Rather, the Applicant proposes to demolish and remove the existing office building and parking lot currently located within the floodway. Dipple, 8/9 T. 65; Site Plan, sht. C-03 (Ex. A-4). According to the Dr. Emerson, this will improve the functioning of the floodway and actually reduce the area of flood flow. Emerson, 8/23 T. 151.

The Project, as proposed and as submitted to the NJDEP in connection with the flood hazard area permit application, includes construction in the flood fringe area, including Building

27

A and a portion of the internal driveway adjacent to Building A. Buildings B and C and the remainder of the internal driveway are entirely outside of the flood fringe area. Site Plan, sht. C04 (Exs. A-4, A-14).

Under NJDEP standards, construction is permitted in the flood fringe provided the State's regulatory standards are met: a. b. 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 area design elevation; c. to the extent possible, all required parking for residential units within the flood

fringe area must be at least one foot above the flood hazard area design elevation; and d. for all public buildings within the flood fringe, the roadway must provide at least

one emergency exit route that is at least one foot above the flood hazard area design elevation. Dipple, 8/9 T. 72.

The Applicant's Engineer testified that the project was designed to comply with NJDEP standards for a flood hazard area permit. Dipple, 8/9 T. 72. The design includes a calculation of the amount of flood storage within the flood fringe under existing conditions. Engineering Report, sht. FS-1 (Ex. A-6). It also includes a grading plan designed to assure that the project would not reduce the amount of flood storage within the flood fringe area during any of the relevant potential flood events including the flood hazard area flood event. Dipple, 8/9 T. 70-71. The plan includes providing for crawl spaces under Building A to provide additional flood storage within the flood fringe area consistent with NJDEP regulations. Dipple, 8/9 T. 74-75; Architectural Plans, sht. 9 (Ex. A-9). According to Dipple's calculations, the project will

28

increase the amount of flood storage during a 100-year storm event from 318,182.9 cubic feet under existing conditions to 321,838 cubic feet under proposed conditions. Dipple, 8/21 T. 129130; Site Plan, shts. C-10, C-14.

The project design provides that all the residential units in Buildings A will be elevated to a level at least 11 feet above the flood hazard elevation, thereby satisfying the requirement that the units all be at least one foot above the flood hazard design elevation. Lessard, 8/8 T. 37, 45; Architectural Plans, sht. 9 (Ex. A-5).

All of the parking is proposed to be elevated to a level at least one foot above the flood hazard area design elevation. Lessard, 8/8 T. 44; Architectural Plans, sht. 9 (Ex. A-5). Ingress/egress to and from the Property will is available even during a flood hazard area flood event via the easternmost driveway, which is proposed to be elevated one foot above the flood fringe area. Dipple, 8/9 T. 72; Site Plan, sht. C-03.

The Site Plan was submitted to the NJDEP as part of CDA's flood hazard area permit application in December, 2011. NJDEP issued a deficiency notice on February 8, 2011, requesting more information and changes in the design of the underground detention basin. Dipple, 8/9 T. 76-77, 8/22 T. 94-97. The Applicant made the changes requested by the NJDEP and submitted the revisions along with the required additional information. Dipple, 8/9 T. 76-77; 8/22 T. 94-97.

On March 8, 2012, NJDEP issued a new deficiency notice. Dipple, 8/9 T. 78-79; NJDEP Deficiency Notice, March 8, 2012 (Ex. A-21). The new deficiency notice requested additional

29

documentation and also identified a substantive deficiency - a violation of N.J.A.C. 7: 13-11.5(h) (Ex. A-23). It advised that the application, as submitted, would require a hardship waiver under N.J.A.C. 7:13-9.8. Dipple, 8/9 T. 81-85.

Dipple reported that he had been informed via a telephone communication and a subsequent meeting with NJDEP representatives that the deficiency was with respect to N.J.A.C. 7:13-11.5(h)(2), which provides in part:

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

According to Dipple's testimony, NJDEP informed the Applicant that the deficiency lies with the fact that Building A, which is a “public building” under the NJDEP regulations and is located in the flood hazard area, lacks a “roadway” that is elevated "at least one foot" above the flood hazard area design flood elevation. The NJDEP deems the portion of Birchwood Avenue on which the Property fronts to be the “roadway" to which this requirement applies, and both driveways that serve Building A exit onto portions of Birchwood Avenue that lie at elevations lower than the flood hazard area design flood elevation. Dipple, 8/9 T. 79-81, 84-85.

Dipple indicated that this determination was unexpected as it differed from the NJDEP's historical interpretations as evidenced by its determinations in two other projects, including a project constructed by the same developer in Englewood and another project in Cranford, the Riverfront Redevelopment Project, for which the NJDEP had granted a flood hazard area permit

30

in February, 2010, while expressly noting in the permit that all of the surrounding streets are located in the flood hazard area. Dipple, 8/9 T. 86-89; Flood Hazard Area Permit for Riverfront Redevelopment Project (Ex. A-22).

Upon cross-examination, Dipple acknowledged that his knowledge of the Riverfront Redevelopment Project was based on a review of file material and not from any direct involvement with that project, and he also acknowledged that the permit for the Englewood project had been a stream encroachment permit (the precursor to the flood hazard area permit) that had been issued in 2003, prior to the adoption of the current NJDEP flood hazard area regulations. Dipple, 8/21 T. 13-14. Further, Dipple admitted that he had not discussed this aspect of the new regulations with NJDEP prior to submitting the flood hazard area permit application for the CDA Project and that he had initially been of the opinion that a flood hazard area permit would not even be required for the Project. Dipple, T. 16, 20-23.

According to Dipple, upon learning of NJDEP's position, the Applicant explored various options for complying with N.J.A.C. 7:13-11.5(h)(2). The Applicant first considered extending an emergency access from the back of the property onto North Union, but rejected this option because the North Union access would likewise not be one foot above the flood hazard elevation for its full length and, therefore, would also violate NJDEP regulations. Dipple, 8/9 T. 100-101. Dipple indicated that the Applicant also attempted to secure the consent of the owner of the health care facility to construct an access drive to that property, which access drive would have been entirely outside of the flood hazard area, but that the owner had not responded to CDA’s repeated inquiries. Peter Hekemian, a principal of CDA, also testified as to the efforts to contact the owner of the health care facility. Dipple, 8/9 T. 100; P. Hekemian, 8/9 T. 155, 156-157.

31

According to Dipple, CDA concluded that the most promising means of complying with N.J.A.C.:13-11.5(h)(2) and avoiding the necessity of seeking a hardship waiver (the approach that had been recommended by the NJDEP), would be to elevate Birchwood Avenue in the vicinity of the easternmost driveway of the project. Dipple, 8/9 T. 101.

As shown on the site plan application, CDA proposes to regrade a portion of Birchwood Avenue at CDA's sole cost and expense so that it will be one foot above the flood hazard elevation at the point the road crosses in front of the Project’s easternmost driveway. This will require the level of the roadway to be raised by 1.28 feet in that location. To effect a transition between the proposed elevation at the easternmost driveway and the existing elevation of Birchwood Avenue in the direction of Orange Avenue, about 300 linear feet of the roadway will need to be included in the regrading. Dipple stated that, after the regrading, the road will run gradually downhill toward Orange Avenue, as it does now, and opined that the resulting change in elevation would be slight and probably unnoticeable. Dipple, 8/9 T. 90-93; 8/21 T. 86, 132133; Site Plan, shts. C-05, C-18, C-19 (Ex. A-4). The regrading will require the replacement of driveway aprons at one of the driveways to the health care facility and at the driveway to the municipal recycling facility; additionally, a portion of the sidewalk in front of the health care facility would need to be replaced. All of these improvements would be undertaken within the municipal right of way. Dipple, 8/9 T. 99; 8/22 T. 64. Dipple also stated that the scope of the proposed improvements would include the addition of three new storm drains along Birchwood Avenue, which could be expected to improve drainage for properties along Birchwood Avenue. Dipple, 8/9 T. 96-97, 8/21 T. 134-36; Site Plan, pp.C-05 (Ex. A-4).

32

According to Dipple, the proposed regrading of Birchwood Avenue will add fill within the flood fringe, thus requiring the Applicant to compensate for the loss of flood storage due to the additional fill. Accordingly, the Project has been redesigned to provide the additional flood storage elsewhere on the site in order to comply with NJDEP requirements. Dipple, 8/9 T. 9394.

Dipple testified that the proposed regrading will also cause the flood hazard area boundary to be adjusted to a point west of the easternmost driveway. However, he determined that this would not affect the flood hazard elevation, because any flood storage lost by the regrading of Birchwood Avenue would be offset by newly created flood storage on the Property. As a result, there will be no increased flooding on the upstream properties (to the north of Birchwood Avenue) or on properties to the west along Birchwood Avenue that are in the flood hazard area, and there will be no impact on properties to the east along Birchwood Avenue (which will continue to be outside of the flood hazard area). Dipple also opined that the regrading of Birchwood Avenue would not negatively affect drainage, because there would be no increase in the amount of impervious coverage; in fact, drainage would be improved by virtue of the additional storm drains proposed in Birchwood Avenue. Dipple and Dr. Emerson both concluded that the proposed regrading of Birchwood Avenue would have no detrimental effect on other properties or residents of Cranford. Dipple, 8/9 T. 84-100, 149-150; Emerson, 8/23 T. 163.

Dipple's conclusions as to the absence of any upstream impact were questioned by Cranford Engineer Marsden and later by Cranford Consulting Engineer Creelman since the Township had not been provided with any of the calculations or modeling upon which Dipple

33

presumably relied in reaching his conclusions. Marsden, 8/22 T. 145-152; Creelman 8/23 T. 9099. Marsden and Creelman were both concerned that moving the flood hazard boundary further west on Birchwood Avenue would increase the flood hazard elevation and generally increase flooding along Birchwood Avenue. Creelman opined that there were insufficient cross-sections to enable a valid evaluation of the upstream impact. Creelman, 8/23 T. 90-98. Marsden agreed, and noted that neither Dipple nor Emerson had accounted for the fact that floodwater flows into the area north of Birchwood Avenue from Kenilworth to the northwest. As such, Marsden stated his belief that flooding would increase on properties north of Birchwood Avenue. Marsden, 8/22 T. 145-154; Memorandum from R. Marsden to P. Morin, 7-20-12 (Ex. D-4); E-mail from P. Morin to D. Cohen, 8-3-12 (Ex. D-9).

In light of NJDEP's sole and exclusive jurisdiction over the flood hazard area permit, these objections must be adjudicated by the NJDEP. Marsden has, in fact, made Cranford's objections known to the NJDEP by way of multiple letters objecting to the issuance of the flood hazard area permit. Marsden, 8/23 T. 14-16 ; Letter from R. Marsden to Engineering Supervisor for Union County, NJDEP, January 3, 2012 (Ex. A-26); Memorandum from R. Marsden to V. Opara, NJDEP, August 2, 2012 (Ex. A-27).

In response, CDA’s experts, Engineer Dipple and Dr. Emerson, both explained that, even in a flood hazard area flood event, floodwater flows within the floodway. In their view, the proposed change in the boundary of the flood hazard area (at a considerable distance from the floodway, and involving a relatively small amount of fill) will have no effect on the overall flood hazard area elevation. The entire flood fringe area is hydraulically interconnected and is dominated by the effect of the undersized conduit under Wadsworth Terrace. Thus, the flood

34

fringe functions as a single “lake”. All of the floodwater throughout the entire flood fringe area is stored at the same elevation. Floodwater that is temporarily unable to flow downstream through the floodway is stored in the flood fringe area until it can, in due course, be released into the floodway. Elevating the road will not change this. Since the geographic source of the floodwater is immaterial to the function of the flood fringe area, there is no scientific justification for a geographically divided analysis. Dipple, 8/9 T. 132-33; 8/21 T. 45-46, 49-50, 93-96, 142; 8/22 T. 88-89; Emerson, 8/23 T. 157-163, 165-68, 174-75, 180; Letter Report, M.E. Dipple and C. Emerson, Aug. 6, 2012 (Ex. A-13). The Hearing Officer finds the analysis by CDA's experts to be credible and accepts this testimony as valid.

As to fire safety, the Applicant did not provide any testimony from an expert of its own, but, instead, relied on the conclusions of the Township's fire safety expert, Chief Dolan, that elevating Birchwood Avenue at the eastern entrance to the Property will provide a safety benefit because it will assure at least one point of access for fire fighting and other emergency vehicles in the event of a flood hazard area flood event. L. Dolan, 23. T. 113; N.J.A.C. 7:13-11.5(h)(2).

Dipple acknowledged that if the proposed regrading of Birchwood Avenue were not approved by Cranford and the Applicant is unable to obtain a hardship waiver from the NJDEP, it will be impossible for CDA to build the proposed Project, due to its inability to obtain the necessary flood hazard area permit from the NJDEP. Dipple, 8/9 T. 152-153; Dipple 8/21 T. 142-143. ______________________________________________________________________________
1 1

It is the Township's position that the Applicant should seek the hardship waiver recommended by the NJDEP before seeking permission to regrade Birchwood Avenue. The Township does not believe it has sufficient information on which to base a decision to allow the grade of Birchwood Avenue to be altered nor does it accept

35

LANDSCAPING, TREE REPLACEMENT, REQUESTED WAIVER OF TREE REMOVAL DESIGN STANDARD

The Site Plan includes a complete landscaping and tree replacement plan. Site Plan, sht. C-07 (Ex. A-4,A-14). In accordance with the Court's Order of December 9, 2011, the Site Plan provides for a 10 foot wide buffer between the driveway and the lot line for the health care facility which will be landscaped with a dense row of deer-resistant arborvitae (or other suitable deer-resistant species) in addition to the existing deciduous trees, which will remain. Also in accordance with the terms of the Court December 9, 2011, Order, the Site Plan provides for a dense buffer of evergreens to the south of the buildings between the development on the Property and the single family homes along Wadsworth Terrace. Additional street trees will be planted along Birchwood Avenue to supplement the existing street trees. There will foundation plantings along the foundations of the buildings and ornamental trees in the court yards and near the entrances. Dipple, 8/9 T. 102-3.

Existing trees in the wetlands areas, in the wooded areas at the south end of the site, in the buffer along the eastern edge of the site, and on the street in front of the buildings will be left in place. Many of these trees are mature trees having diameters of 16, 18, 24, and 36 inches and heights ranging from 30 feet to as high as 79 feet. Dipple, 8/9 T. 104-107.

______________________________________________________________________________
that, in the context of a Builder's Remedy lawsuit, the site plan application is an appropriate forum for granting the relief sought by the Applicant. Instead, it is the Township's position that this issue should be cause for reconsideration of the award of the Builder's Remedy by the trial court. For reasons set forth in the Conclusions section, the Hearing Officer disagrees with the Township's position and strongly recommends that the Court order the regrading to be permitted to occur.

36

Approximately 72 existing trees will have to be removed to make way for the proposed structures. Dipple, 8/21 T. 160-61; Dipple, 8/22 T. 14-17; Site Plan, sht. C-07. Under the tree replacement provisions of the Cranford’s site plan regulations, the Applicant would have to replace these 72 trees with 295 new trees. The Applicant proposes instead to plant 180 new trees - 108 more trees than will be removed. Consequently, the Applicant seeks a design waiver from the tree replacement standard in Cranford's Ordinance. Dipple, 8/9 T. 107-108; Site Plan, sht. C07.

As proposed, the landscaping plan provides for extensive landscaping on the property much more than the landscaping that exists there currently. The only open lawn area proposed is in the floodway where the existing building and parking lot at 235 Birchwood are located now and will be removed. The Applicant's Engineer testified that the planting of additional trees in the floodway could potentially impede the flow of water through the floodway and trap branches and other detritus that might build up and block the floodway. Dipple, 8/9 T. 108.

REQUEST FOR WAIVER OF BICYCLE RACK DESIGN STANDARD

The design standards of the Cranford site plan regulations require the installation of bicycle racks based on a ratio that will require the Applicant to provide racks accommodating 394 bicycles. The Site Plan proposes to provide bicycle racks accommodating 40 bicycles out of doors with additional bicycle storage to be provided on each level of the residential buildings or in the parking structure (Building C). Dipple, 8/9 T. 109-110; Site Plan, sht. C-04. A design waiver is sought from the Township's standard for the provision of bicycle racks on the grounds

37

that 394 bicycle rack spaces is an exorbitant requirement, far in excess of any likely usage. Dipple, 8/9 T. 109-110.

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

CONCLUSIONS

1.

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

described in Exhibits A-4, A-5, and A-6 conforms in all respects to the terms of Cranford’s Land Development Ordinance as amended by Ordinance No. 2012-11 and the Court’s Order of December 9, 2011.

2.

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

water management provisions of N.J.A.C. 5:21-7, et seq., and the Residential Site Improvement Standards, since CDA has already filed an application for approval of its storm water management plan with the NJDEP, and NJDEP will be reviewing that application for compliance with applicable standards. With respect to all other site improvements, the Project conforms to the requirements of the Residential Site Improvement Standards, except as to the reduced parking requirement, which was approved as part of the Court's December 9, 2011, Order.

3.

Development of the proposed project with fewer outdoor bicycle racks than

mandated by Cranford Ordinance §136-23(G)(5) will not create a substantial detriment to public health or safety. Residents are more likely to store their bicycles within the building or Parking

38

Garage overnight, and provisions for this will need to be made in the design of the buildings and Parking Garage. Granting a waiver for fewer outdoor bicycle racks than the number mandated by the Ordinance will thus remove an unnecessary cost-generating requirement while better addressing the needs of the residents of the Project. Subject to the conditions set forth below, a waiver of Cranford Ordinance §136-23(G)(5) is justified in this particular case.

4.

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

tree replacement provisions of §136-23(L)(1)-(3) of Cranford's Ordinance will not create a substantial detriment to public health or safety or to the appearance of the Property. The Property is proposed to be well-landscaped in all areas that will be disturbed for development. Other areas will be left in their existing natural state. Permitting the tree replacement requirement to be reduced to a number that can comfortably be accommodated within the areas slated for redevelopment will remove what would otherwise be an unnecessary cost generating requirement, with no documented corresponding public benefit associated with requiring more trees to be planted. The waiver sought from §136-23(L)(1)-(3) of Cranford's Ordinance to limit the tree replacement requirement to only those trees shown on CDA’s landscaping plan is, therefore, justified.

5.

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

Project as proposed will provide adequate ingress and egress to Birchwood Avenue, sanitary sewer service and public water service.

6.

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

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

39

applications with the NJDEP for the approvals and permits needed in each of these areas and has acknowledged that it cannot commence construction unless it receives all of these permits and approvals. The Township of Cranford is permitted to participate in the proceedings before the NJDEP and has elected to do so. Under these circumstances, and consistent with N.J.S.A. 40:55D-22(b), it is recommended that any approval granted by the Court be expressly conditioned on CDA’s securing all required permits and approvals from the NJDEP, or waivers or exceptions therefrom, if available, as well as required permits and approvals from all other outside agencies.

7.

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

elevate the Project's easternmost entrance drive above the flood hazard elevation, it is duly noted that the Township is opposed to the approval of this proposal in connection with the Court's approval of the site plan. Nonetheless, this matter has been referred to the Hearing Officer for consideration by the Court, and it is, therefore, appropriate for the Hearing Officer to make findings and recommendations to the Court on this issue.

The Hearing Officer is satisfied, from both a legal and an engineering perspective, that the proposed elevation of Birchwood Avenue should be ordered by the Court as a necessary component of its grant of a Builder's Remedy to CDA, subject, of course, to whatever permits and approvals are required by the appropriate governmental agencies and authorities. There is simply no credible evidence to suggest any detriment will ensue, either from a planning, environmental or flood protection perspective, if the regrading of Birchwood Avenue is permitted to occur. Moreover, given the municipality's obligation to take such affirmative steps as are reasonably necessary to facilitate and make realistically possible the construction of

40

affordable housing, there seems little reason for the Court to refrain from so ordering. In addition to the lack of credible evidence that any detriment will ensue, there is sufficient credible evidence that the regrading of a section of Birchwood Avenue as proposed by the Applicant will promote public safety, ensure compliance with NJDEP's most recent interpretation of its regulations, and ensure that a substantial amount of affordable housing can be built in the context of the Project.

The Hearing Officer therefore unreservedly recommends to the Court that it authorize the elevation of Birchwood Avenue to be performed by CDA, at its sole cost and expense, as an integral component of the Builder's Remedy.

8.

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

construct or contribute its pro rata share to the cost of constructing certain off-tract improvements, as authorized by N.J.S.A. 40:55D-42. This provision of the Municipal Land Use Law permits municipalities to adopt ordinances providing regulations by which developers may be required to contribute their pro rata share of reasonable and necessary off-tract improvements pertaining to street improvements, water, sewerage and drainage facilities, if such improvements are necessitated or required by construction or improvements within the development. The Law requires such ordinances to be based upon circulation and comprehensive utility service plans prepared as part of the municipal Master Plan. It was not clear from the testimony offered by the Township at the hearing whether such Ordinance, in fact, exists. If it does, the Township may require the Applicant to contribute only its pro rata share of such improvements as have been deemed necessary to the construction of the Project. If such an Ordinance does not exist, the Township has no authority to require contributions for any off-tract improvements.

41

The following off-tract improvement contributions were discussed at the Hearings: a. increasing the size of the existing 8 inch water line between the Project and

Bloomingdale Avenue to 12 inches; b. connecting the proposed water line in the easternmost driveway of the Project to

the water main in the service road of the adjacent health care facility; and c. relining approximately 1,300 linear feet of sanitary sewer lines.

For reasons discussed in the next few paragraphs, only this last proposed off-tract improvement contribution remains at issue.

9.

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

water service level of 2,000 gallons per minute is desirable to assure sufficient water for fire suppression at the Project. During the Hearings, the parties were in dispute as to whether Cranford’s existing public water system currently provides this level of service or if additional water service needs to be created at the Property. Fire Chief Dolan had testified that, if a water service level of 2,000 gallons per minute is not currently available at the Property, it could be provided by replacing the existing 8 inch water main between the easternmost hydrant in front of the Project and the water main in Bloomingdale Avenue with a 12 inch main. Furthermore, if the water service level is insufficient at the hydrants served by the water main on Birchwood Avenue in front the Project but is determined to be available elsewhere in the area, such as at the water main in the service driveway of the health care facility just east of the Project, then connecting the water line that will loop through the Project to another line with sufficient service would be another way to create the additional water service level needed for the Project.

42

There is no question that CDA is responsible for assuring that there is adequate water service for the Project. Consequently, the Applicant offered to arrange for an independent test of the water service level at the hydrants in front of the Project to be conducted either by the water company or by another entity agreed upon by CDA and the Township, which test would be undertaken in accordance with the relevant national standard, NFWA 291, and paid for by CDA. If the test showed that the water service level at these hydrants is significantly below 2,000 gallons per minute, then CDA would either construct the 12 inch water line or elect to reimburse Cranford for its pro rata share of the reasonable cost of the Township’s performing this upgrade. The second remedy proposed by Chief Dolan, which was the connection to the water main in the driveway to the health care facility, would require an easement to be obtained from the health care facility. Cranford has not offered to acquire such an easement through the exercise of its powers of eminent domain. Consequently, approval of the Project cannot be conditioned on that particular connection, although CDA agreed to make a good faith effort to attempt to secure the property rights necessary to construct such a connection, if necessary.

Subsequent to the Hearings, on October 12, 2012, an independent test of the level of water service available at the hydrants in front of the Property was conducted by New Jersey American Water Company in the presence of representatives of both Cranford Township and the Applicant. The results of the test indicate that, at a pressure of 20 pounds per square inch, the flow at the two hydrants in front of the Property was 2,778 gallons per minute and 2,887 gallons per minute, respectively. Since Fire Chief Dolan had indicated that an acceptable level of flow at a pressure of 20 pounds per square inch is 2,000 gallons per minute, there is no need to upgrade the 8 inch line in Birchwood Avenue between the easternmost hydrant in front of the Property and Bloomingdale Avenue, as initially proposed by the Township.

43

Also subsequent to the Hearings, at a meeting held between the parties on September 28, 2012, the map of the municipal water system was reviewed and it was learned that the Birchwood Avenue water main does not extend to Cranford Avenue; instead, it runs up Birchwood Avenue to the driveway of the health care facility just east of the Property, runs down that driveway, around the health care facility building and then out to Cranford Avenue. Consequently, the water main in the health care facility driveway is not a separate water main, as initially assumed, but is in fact the very same water main that serves the Property. Consequently, there is no need to provide a second connection to the water main in the driveway to the health care facility from the Property.

Accordingly, there is no reason to require any off-tract improvement contributions with respect to the water system as a result of the Project.

10.

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

even if the existing sanitary sewer system has the capacity to accept the additional flows from the Project, such additional flows will increase the risk of future breaks in the system. To address this potential problem, the Township has proposed that CDA be required to either re-line, or contribute its pro rata share of the cost of re-lining, approximately 1,300 linear feet of sanitary sewer lines at unspecified locations.

The parties both agree that the existing sewerage system is very old, suffers from serious unremediated inflow and infiltration, and is already subject to breaks. There is substantial disagreement, however, about whether and to what extent sewage flows from the Project will increase the likelihood of additional breaks and the extent to which the Project should be

44

required to contribute toward necessary improvements to the sewerage system to correct existing problems. This is an issue that may well need to be resolved by the Court, if the parties cannot come to an agreement as to the need for improvements to the sewerage system and as to the need for the Applicant to pay a pro rata share of the cost of such system improvements or what that pro rata share should be.

Nothing herein is intended to suggest that the Township is precluded from making whatever improvements to the system it believes are necessary and assessing each of the beneficiaries of the improvement, including CDA, for a fair share of the costs, in the manner provided by law.

RECOMMENDED CONDITIONS OF APPROVAL

During the course of the Hearings, the Applicant voluntarily agreed to a number of conditions requested by the Township’s experts, the Special Master and/or the Hearing Officer, all of which conditions are recommended to be incorporated into any Preliminary and Final Site Plan Approval ordered by the Court. There are also a number of other conditions, to which the Applicant has not agreed, but are being recommended by the Hearing Officer (with the concurrence of the Special Master) to be imposed by the Court as part of its approval of the Site Plan for this Builder's Remedy Project.

THE HEARING OFFICER (WITH THE CONCURRENCE OF THE SPECIAL MASTER) HEREBY RECOMMENDS THAT PRELIMINARY AND FINAL SITE PLAN APPROVAL, ALONG WITH TWO WAIVERS OF TOWNSHIP DESIGN STANDARDS

45

(ONE PERTAINING TO THE NUMBER OF TREES REQUIRED TO BE PLANTED TO REPLACE TREES BEING REMOVED FOR DEVELOPMENT AND THE OTHER PERTAINING TO THE NUMBER OF REQUIRED OUTDOOR BICYCLE RACKS) BE GRANTED FOR THE PROJECT. THIS RECOMMENDATION IS BASED UPON AND SUBJECT TO THE REPRESENTATIONS MADE BY THE APPLICANT AND ITS WITNESSES IN ITS SUBMISSIONS AND EXHIBITS AND IN TESTIMONY DURING THE HEARING, AND IS SUBJECT TO ALL OF THE FOLLOWING CONDITIONS:

1.

Final Approval shall be conditioned on the Applicant obtaining all required

permits and approvals from any and all agencies having jurisdiction over the Project, including but not limited to the Union County Planning Board, Union County Soil Conservation Service, and the NJDEP.

2.

The 54 low and moderate income units shall be specifically designated on the site

plan, shall be deed restricted as affordable rental units for at least 30 years, beginning with the issuance of a Certificate of Occupancy for the building, and shall in all other ways conform to all of the Rules of the New Jersey Council on Affordable Housing (N.J.A.C. 5:97-1, et seq.) and the Uniform Housing Affordability Controls (N.J.A.C. 5:80-26.1, et seq.), including but not limited to accessibility, access to common facilities and amenities, use of the same types of heating systems as the market units and dispersal throughout the development. 8/8 T. 140. In addition, the bedroom mix shall conform to COAH's requirements, and shall include a maximum of 10 (NOT 11) one-bedroom or studio units, a minimum of 11 three-bedroom units, and a minimum of 17 two-bedroom units. At least 50 percent of the low and moderate income units (or 27 units) shall be low income units, and the rest shall be moderate income units. Pursuant to N.J.A.C.

46

5:97-6.4(b)6.i., a minimum of 10 percent of the low and moderate income units (the equivalent of 20 percent of the low income units, or, in this case, 6 units) shall be affordable to households earning 30 percent or less of median income. At least 50 percent of the units in each bedroom distribution shall be low (or very low) income units.

3.

Common areas within the development shall be available for use only by residents

and their guests. No retail amenities shall be provided on the site, and no memberships shall be required for any of the recreational facilities. 8/8 T. 152.

4.

The easternmost driveway shall be realigned to maintain a 10 foot setback/buffer

from the eastern side lot line and to straighten the angle at which the driveway enters Birchwood Avenue. 8/9 T. 22.

5.

The Site Plan shall be revised to conform to the changes shown in the Truck

Turning Diagram (Ex. A-15) and also to include the three emergency by-pass areas described in Condition 32, along with any other Site Plan modifications listed among the conditions of approval. 8/9 T. 28-29, 125-26, 132.

6.

No fewer than one-half (.5) parking spaces per unit or a minimum of 180 parking

spaces shall be physically available for guest parking. These spaces may be located in the surface parking area, the podium parking area of Building A, or the parking structure (Building C), or any combination thereof. If located within the podium parking area of Building A or the parking structure (Building C), signs indicating the availability of visitor parking shall be posted at the entrances to these parking areas. Any parking spaces that are to be available for guest

47

parking within either the podium parking area of Building A or Building C must not be within any gated areas. 8/22 T. 56. All parking spaces shall be hairpin-striped. All portions of the internal driveway that are required as a condition of approval to remain open and unobstructed shall be appropriately striped and marked to indicate that parking is prohibited.

7.

Portions of the site bordering the internal driveway shall at all times remain

unobstructed so as to permit access and turning movements by emergency vehicles and may not be utilized for snow storage. 8/22 T. 59.

8.

Two exterior bicycle racks shall be provided to accommodate a total of 40

bicycles out of doors. Secure storage shall be provided in Building A (which may be at the podium parking level) and on each level of Building B (or on the associated level of the parking structure, Building C) for another 20 bicycles per storage area. The Architectural Plans shall be revised to show how such bicycle storage areas will be accommodated.

9.

Separate and additional secure storage areas shall also be provided in Building A

(which may be at the podium parking level) and in Building B (or in the parking structure, Building C) for strollers and tricycles and the like, and such storage areas shall be reserved for use by the occupants of the low and moderate income units. These latter secure storage areas shall be located in common areas of the buildings and shall not diminish the habitable floor area available to the low or moderate income units. The storage area(s) in Building A (which may be at the podium parking level) shall be large enough to accommodate a total of at least 8 strollers, tricycles and the like. The storage areas in Building B (or Building C) shall be large enough to accommodate a total of at least 36 strollers, tricycles and the like. This condition is not intended

48

to limit the Applicant, in the exercise of its discretion, from providing additional secure storage for strollers, tricycles and the like for use by the occupants of the market units. 8/22 T. 65-67. The Architectural Plans shall be revised to show how all required and optional secure storage areas will be accommodated.

10.

Maintenance access easements shall be granted to the Township of Cranford and

its departments and agencies, for all proposed or existing municipally-owned pipes, including sanitary sewers and storm sewers. 8/9 T. 131; 8/22 T. 143-144.

11.

Arborvitae located along the east side of the easternmost driveway shall be kept

trimmed so as to prevent interference with the proposed exterior lighting. 8/9 T. 13; 8/22 T. 17476. Alternatively, so as to avoid a conflict with landscape plantings, the eastern parking lot may be lit with building-mounted gooseneck lamps.

12.

All trees and shrubs planted pursuant to the Landscaping Plan approved as part of

the Site Plan shall be deer-resistant and shall be properly maintained and replaced at the beginning of the next growing season in the event of death or disease. 8/22 T. 181.

13.

Trash shall be stored inside the structures and shall be collected from the site at

least twice per week. 8/8 T. 67-68.

14.

Loading areas shall be provided adjacent the internal driveway near the entrance

to Building A and near the eastern entrance to the parking structure (Building C). 8/9 T. 26. Moreover, pedestrian access from these loading areas through the parking podium or parking

49

structure to the elevators and to the units in each building shall be no less than 48 inches wide and otherwise designed to accommodate hand carts. 8/22 T. 57-58.

15.

There shall be 14 designated handicapped parking spaces, of which two (2) shall

be van-accessible. 8/8 T. 64-65; 8/9 T. 24-25. These spaces shall all be shown on the revised Site Plan and appropriately marked and signed on the site.

16.

The Applicant shall install an additional exterior light fixture to increase the level

of lighting of the surface parking lot at the south end of Building B (as identified on Page 3, Comment 2 of the Zoning Officer’s report) to 1.5 foot-candles. 8/9 T. 122.

17.

The existing storm sewer identified in Comment 3 of Marsden’s memorandum

shall remain and shall not be removed during or after construction. 8/9 T. 131-32; 8/22 T. 140.

18.

Construction fencing shall be provided around all areas of the site that are

proposed to be disturbed, per Comment 4 of Marsden’s memorandum, and shall be located and noted on the Site Plan. 8/9 T. 131; 8/22 T. 140-41.

19.

Areas that will remain as and/or are to be planted and maintained as open lawn

shall be labeled on the Site Plan, per Comment 5 of Marsden’s memorandum. 8/9 T. 131; 8/22 T. 142.

20.

The Site Plan shall be revised to include a snow storage plan. The snow storage

plan shall designate with striping and appropriate markings those areas on the site where snow

50

will and will not be permitted to be stored. The applicant shall contract with a snow removal service to remove snow from all parking areas and access drives, including the areas adjacent to the internal access drives that are required to be kept free of snow to accommodate truck turning movements (see Condition 7. above), and the contract shall provide for snow to be removed from the site in the event of a snowstorm that exceeds the on-site snow storage capacity. 8/9 T. 134135; 8/22 T. 154-55.

21.

Cutoff walls shall be constructed within the trench for the sanitary sewer pipe that

will be located near the wetlands to prevent water from the wetlands draining into the trench, per Comment 13 of Marsden’s memorandum. 8/9 T. 136; 8/22 T. 155.

22.

In the two locations on the site where sanitary sewer pipes and storm water pipes

are proposed to cross one another, the pipes will be at different depths, per Comment 14 of Marsden’s memorandum. 8/9 T. 136-37.

23.

Additional exterior lighting shall be placed in the breezeway facing Birchwood

Avenue, per Comment 19 of Marsden’s memorandum. 8/9 T. 140-41; 8/22 T. 177-78.

24.

During construction, silt fencing shall be placed at least 15 feet away from the

buildings, per Comment 21 of Marsden’s memorandum. 8/9 T. 142; 8/22 T. 185.

25.

During construction, all topsoil stockpiles shall be located at least 5 feet away

from the buildings, per Comment 22 of Marsden’s memorandum. 8/9 T. 142; 8/22 T. 186.

51

26.

The plan shall show the details of the sanitary sewer pipe to demonstrate that it

can withstand the pressure of damp soil at a depth of 12.5 ft. below ground surface, per Comment 23 of Marsden’s memorandum. 8/9 T. 142-143; 8/22 T. 186. All new sanitary sewer manholes installed on the site shall be provided with waterproof manhole covers.

27.

The volume of the columns and structural walls supporting Building A shall be

included in all flood storage calculations submitted to the NJDEP. 8/9 T. 143; 8/22 T. 186-187.

28.

The plan submitted to the Union County Soil Conservation Service shall include

calculations for the outflow rip rap apron for the storm water pipe, per Comment 25 in Marsden’s memorandum. 8/9 T. 143; 8/22 T. 187.

29.

Additional detail shall be provided on the plan regarding the backflow prevention

device in the detention basin, per Comment 26 of Marsden’s memorandum. 8/9 T. 143; 8/22 T. 187.

30.

During construction, fencing shall be placed along the wetlands transition area

boundary, as modified by the NJDEP-approved transition area averaging plan, to prevent any intrusions into the protected area, per Comment 29 of Marsden’s memorandum. 8/9 T. 145; 8/22 T. 187-88.

31.

Corrections to the storm water management maintenance manual shall be made,

per Comments 32 through 36 of Marsden’s memorandum. 8/9 T. 145; 8/22 T. 188-89.

52

32.

At least three by-pass areas shall be provided along the internal driveway, one on

the east side of Building C, one on the south side of Building B, and one on the west side of Building B. The turnouts shall be wide enough for a standard-sized automobile to pull aside and permit an emergency vehicle to pass and to permit a standard-sized automobile to get around a parked emergency vehicle. The by-pass areas may be constructed of permeable pavers, which shall not be counted as impervious coverage for purposes of complying with Ordinance 2012-11 and the Court’s Order of December 9, 2011. 8/23 T. 122-25.

33.

Mountable curbs shall be provided along all of the internal driveways except

where a retaining wall or perpendicular parking is proposed. 8/23 T. 130-131.

34.

To the extent that the Applicant's pro rata share of the responsibility for off-tract

sewerage system improvements cannot be resolved between the parties, the parties shall inform the Court, and the Court shall make the ultimate determination of the nature and extent of the Applicant's responsibility for off-tract sewerage system improvements. The Court may, in its discretion, request a recommendation from the Special Master or from such other expert(s) as the Court deems appropriate, prior to making its determination on this question.

35.

While it has been recommended that the Court grant the Applicant a waiver from

the tree replacement provisions of Cranford's Ordinance (Section 136-23(L)(1)-(3), it is also recommended that additional trees be shown on the Landscaping Plan and planted on the Property consistent with the recommendations of Township Engineer Marsden, except where such plantings are specifically prohibited by the NJDEP.

53

36.

At the September 28, 2012, meeting between the parties, the issue of the

resurfacing of Birchwood Avenue following construction was discussed, and as a result of that discussion, the Applicant has agreed, and the Hearing Officer hereby recommends, that the Applicant shall resurface Birchwood Avenue following construction from curb to curb in front of the Property (currently identified as 215-235 Birchwood Avenue) and shall repair any damage caused during the course of construction to the surface of the cartway of Birchwood Avenue between Orange Avenue and Cranford Avenue.

37.

The Applicant and its successor(s) in interest shall comply with the requirements

of N.J.S.A 40:55D-53.1, et seq. regarding the establishment of appropriate escrow accounts.

38.

It is the intention of the Hearing Officer that the foregoing recommendations shall

be binding upon the Township and the Applicant and any successors in interest to the Applicant.

____________________________________________________________________ APPROVAL, SUBJECT TO THE ABOVE CONDITIONS, RECOMMENDED BY:

______________________________________________ Douglas K. Wolfson, Hearing Officer Date

With the concurrence of

______________________________________________ Elizabeth C. McKenzie, AICP, PP, Date Special Master

54

FINAL DISPOSITION

This matter having been referred to the Hearing Officer for the conduct of a Hearing and recommendation to the Court regarding approval of a proposed Preliminary and Final Site Plan Application in accordance with the Order entered by this Court on December 9, 2011; and a Public Hearing having been conducted by the Hearing Officer on August 8th, 9th, 21st, 22nd and 23rd, 2012, at the Union County Courthouse, in the presence of the Court-Appointed Special Master, at which time all aspects of the Preliminary and Final Site Plan Application were reviewed, expert testimony was presented and public comment was received; and the Hearing Officer and the Special Master having considered the matter and having recommended approval of the Preliminary and Final Site Plan, with associated waivers, subject to Conditions, based upon the evidence presented as embodied in the foregoing Findings of Fact, Conclusions and Recommended Conditions; and the Court having reviewed the Findings of Fact, Conclusions and Recommended Conditions submitted by the Hearing Officer and the Special Master and having determined that good cause exists for the entry of this Order; and the Court having reviewed the transcripts of the proceedings and having independently reviewed and considered all of the testimony of each of the witnesses, as well as all Exhibits entered into evidence, along with the comments of the members of the public, it is on this ___ day of ____, 2012:

ORDERED that the Court hereby adopts/rejects/modifies the recommendations of the Hearing Officer and the Special Master and approves/rejects/modifies the Preliminary and Final Site Plan as presented at the Hearing with all accompanying Application

55

Materials and Exhibits as individually identified during the course of the Hearing for the development of 215-235 Birchwood Avenue, Block 291, Lot 15.01, and Block 292, Lot 2, otherwise known as the Cranford Development Associates Property.

______________________________________________ The Honorable Lisa Chrystal, JSC Date

56