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

UNN-L-140-08 A.D. NO.:__________________ LEHIGH Plaintiff vs. TOWNSHIP OF CRANFORD Defendant ) ) ) ) ) ) ) ) )

TRANSCRIPT OF TRIAL

Place: Union County Courthouse Two Broad Street Elizabeth, New Jersey 07207 Date: August 3, 2010 BEFORE: THE HONORABLE LISA F. CHRYSTAL, J.S.C. TRANSCRIPT ORDERED BY: CARL R. WOODWARD, III, ESQ. APPEARANCES: STEPHEN M. EISDORFER, ESQ., (Hill & Wallack, LLP) Attorney for the Plaintiff CARL R. WOODWARD, III, ESQ. (Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein) Attorney for the Defendant BRIAN H. FENLON, ESQ. (Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein) Attorney for the Defendant

LYNN COHEN-MOORE

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P.O. Box 1582 Laurel Springs, New Jersey (856) 784-4276 Sound Recorded Operator G. Plummer

2 I N D E X August 3, 2010 WITNESS Direct DAVID NORTH KINSEY By Mr. Eisdorfer 3 Ident. 50 43 37 Mr. Kinseys CV Mr. Kinseys certification Mr. Kinseys certification Mr. Kinseys certificate 5 9,10,11 9,10,11,14 9,10,11 53 9,10,11 15,17,27 23 15,17 6 Evid. Cross Redirect Recross

EXHIBITS P-10C Wetlands document P-25 P-30 P-31 P-32 P-33 P-34

P-39A Map P-58 P-63A P-64 P-64A July 20, 2010 letter from Mr. Kinsey

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A A A A record. THE WITNESS: THE CLERK: David North Kinsey. D A V I D N O R T H K I N S E Y, PLAINTIFFS

WITNESS, SWORN: THE CLERK: Please state your name for the

Thank you.

DIRECT EXAMINATION BY MR. EISDORFER: Q Mr. Kinsey, would you state your full name?

David North Kinsey, K-I-N-S-E-Y. Q Yes. Q Where is that located? And you have a professional office.

14 Aiken Avenue, Princeton, New Jersey 08540. Q What is your profession?

I'm a Planner. Q Yes. Do you hold any licenses? I'm a prof, licensed professional planner

in New Jersey. Q Would you provide us with, with your

educational background? A Yes. I have a Bachelors of Arts Degree in

Government and Architecture from Dartmouth College, a Master of Public Affairs and Urban Planning from Princeton University and a Ph.D. in Public and International Affairs from Princeton University.

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Could you briefly out, outline for us your

professional employment history? A After finishing on my doctorate, Your Honor, I

began working in the New Jersey Department of Environmental Protection in 1975. I was the chief of

the Office of Coastal Zone Management for several years from 1975 to 79. And then I was the director of the

Division of Coastal Resources from 79 to 1982. Following that, I spent a year as the director of the Planning Group in DEP and then a six month assignment to the National Oceanic and Atmospheric Administration in Washington, D.C. where I served as a Coastal Resource Specialist. And then

essentially since 1984 to the present I've been a partner in the small firm of Kinsey & Hand as a Consulting Planner. Since 1998, I served as a, or I have been appointed a visiting lecturer of Public and International Affairs at Princeton University. since 2008, I've been a principal of Realty Innovations, LLC which is a New Jersey Focused Real Estate Investment Company. Q In your work at, at the Department of And

Environmental Protection, did, were mo, were evaluation of housing projects a part of your

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 responsibilities? A Yes, very much so. I was responsible for

designing and implementing New Jerseys Coastal Management Program. It rests on three main laws.

First, the Coastal Area Facility Review Act which applies to any residential development of 25 units or more in a land area equal to about 20 percent of the states land area. The second law is the Coastal Wetlands Act of 1970 which regulates practically all development in delineated coastal wetlands. And third the 1914

Waterfront Development Law which outside of the CAFRA area, for example, along the Hudson River Waterfront regulates all development within at least 100 feet of the uplands from the main high water line and it can extend as far as 500 feet as far as -THE COURT: Do I have a CV in this package? Yes.

MR. EISDORFER: THE COURT:

That might help me. Sure. Its marked as P-31.

MR. EISDORFER: THE COURT: BY MR. EISDORFER: Q

Thank you.

Dr. Kinsey, let me show you the document

we've marked as P-31 and can you identify this for us? A Yes. P-31 is a one page biographical summary

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. BY MR. EISDORFER: Q Dr. Kinsey, you were -THE COURT: BY MR. EISDORFER: Q You were describing the, the way in which Thank you. A followed by a six page CV followed by a one page summary listing of my various affordable housing planning assignments since 1985. Q Is, is this a document that you prepared?

It is. MR. EISDORFER: Your Honor, I would offer up

P-31 into evidence. THE COURT: I assume there's no objection. No objection, Your

DEFENDANTS COUNSEL:

your work with, at, at New Jersey Department Environmental Protection encompassed review of, of housing projects? A Yes. I administered these three laws under a

delegation from the commissioner so that I was the, the ultimate decision maker and made permanent decisions on development applications subject to those three laws and that included numerous residential development proposals throughout the coastal zone. Q Now in particular did that include projects

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that were inclusionary projects? A It did include, it did include inclusionary

projects using the definition of 100 percent affordable projects. And it did include projects that ultimately

did propose low and moderate income housing, yes, under Mount Laurel One. Q Now after you went into -- in, in, in

connection with your work at DEP, did that involve your, did that involve your reviewing sites for compliance with the various environmental standards? A It involved that completely. Of course, I had a

staff who prepared draft decision documents that I often conducted pre-applications conferences myself together with the staff and reviewed projects and application proposals throughout the course of a project particularly for the more significant ones. And ultimately when it came to the a, I often wrote, rewrote decisions documents and ultimately I made the decision as in the three year period when I served as director of the division. Q Now since entering private practice, have you

served as a court appointed master in Mount Laurel cases? A Yes. Your Honor, I've had I believe its 12 or 13

appointments as a special master in Mount Laurel

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 litigation since 1985. I served under Judge Pisansky

and Springfield Township and Berkeley Heights in this county and I've had other assignments throughout the state, one that has continued for in 22 years. Q And in, in that capacity did you review

proposed inclusionary sites? A Yes. Q Did you review sites that, that that were

proposed for builders remedies? A Yes. Q In how many of tho, how many of those

instances the, were you reviewing sites proposed for builders remedies? A In all but one of the cases where I served as

special master, the plaintiff was a builder plaintiff so in all but one case. And some of the cases had

multiple plaintiffs and interveners and hence multiple sites. Q Beyond your service as, as, as special

master, what kind of clients do you have? A I have several types of clients, Your Honor. I,

the bulk of my work is on affordable housing planning. I advise public interest plaintiffs. sector builder plaintiffs. I advise private

I advise objectors and I've

citizen groups and I advise municipalities.

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

assisted municipalities in obtaining COAH certification of housing elements and fair share plans. I've advised

participants in both the COAH process, to petitions for subsequent certification as well as court proceedings under the Mount Laurel doctrine. Q Yes. Do you have any professional affiliations? I have been a certified planner, a member of

the American Institute of Certified Planner for at least 25 years and in 2006, I was honored to be elected a Fellow of the College of Fellows of the American Institute of Certified Planners. Q How many Fellows are there in New Jersey?

There are I believe four currently active planners

who are Fellows. MR. EISDORFER: Your Honor, I offer this

witness as, as an expert witness in planning and affordable housing. MR. WOODARD: THE COURT: expert in this court. BY MR. EISDORFER: Q Now Dr. Kinsey, have you prepared any, any No objection.

So he will be admitted as an

reports in, in this case? A Yes, I prepared three certifications and one

letter report.

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A (Pause) THE COURT: 32, 3, 33 and 34? And 58.

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MR. EISDORFER: THE COURT:

Okay.

(Off the record; on the record) BY MR. EISDORFER: Q Dr. Kinsey, I'm gonna show you the documents

that we marked for identification as P-32, P-33, P-34 and P-58. documents? A Yes. Q And can you tell us what they are? Now have you had a chance to examine those

They are in sequence my initial certification on

the issue of whether the Township of Cranford was in compliance with its constitutional housing obligations under the Mount Laurel Doctrine. certification is on -MR. WOODWARD: May we know the date of that, The second

Your Honor, just so we can follow along? THE WITNESS: The footer is dated January,

2009 and the signature is January 29, 2009. MR. WOODWARD: THE WITNESS: Thank you. Thats P-32. P-33 is my

certification on site suitability. 31, 2009.

It is dated July

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19, 2010. 2010. DEFENDANT'S ATTORNEY: THE WITNESS: MR. WOODWARD: P. THE COURT: July certification, 30, P-34? P-33, I'm sorry. Okay, 33 is -- I'm sorry.

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THE WITNESS: THE COURT: What was that? THE WITNESS: THE COURT:

Oh.

P-33 is my certification.

On site suitability. On site suitability. The

THE WITNESS:

footer date is July, 2009. 31, 2009. THE COURT:

The signature date is July

Thank you. P-34 is my certification on The footer

THE WITNESS:

rebuttal on aspects of site suitability.

date is October, 2009 and the signature date is October 26, 2009. F-58 (sic) is a letter report dated July 20,

I'm sorry, P-58. I have something dated July May

I dont have anything dated July 20th.

I see it, counsel? (The attorneys talk amongst themselves.) BY MR. EISDORFER: Q Now do these, youve now looked at, at P-, Do these accurately

P-32, P-33, P-34 and P-58.

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 represent your opinions? A Yes. MR. EISDORFER: Your Honor, I would,

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consistent with The Court, the way The Court has been handling these, I would move these into evidence as, as the witness reports. MR. WOODWARD: I, I know were pretty

flexible in this particular area here, Your Honor, but just to say well, this is my report and it expresses my opinion and therefore its admissible in evidence, I dont think that's enough foundation. Objection. THE COURT: Are you -- yeah. I'm gonna -Thank you.

MR. EISDORFER: THE COURT:

Are you gonna testify about that? I'm gonna have him testify to

MR. EISDORFER: everything. THE COURT:

So why dont we do that first? Okay, okay.

MR. EISDORFER: THE COURT:

And then maybe Mr. Woodward will

not have an objection at that time. MR. EISDORFER: Your Honor, I'm, I'm happy to

handle this anyway The Court want, wants to handle it. THE COURT: Why dont we do it that way then

maybe Mr. Woodward will not object.

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Tape 184-10 ends; tape 185-10 begins.) BY MR. EISDORFER: Q Mr. Kinsey, Dr. Kinsey in, in your work

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evaluating affordable housing projects, do you have an opinion as to what the appropriate criteria for evaluating the site suitability and affordable housing project is? A Yes. Q And, and how have you, how have you come to,

to formulate such an opinion? A By first reading Mount Laurel Two in January,

1983, second, serving as a Special Master in Montgomery Township and simultaneously or shortly thereafter beginning serving as a Master in Denville Township in the summer, I guess beginning in January, 1985 when as, in my first two assignments as Master a key issue is site suitability. And a number of Masters were working

to develop appropriate site suitability criteria derived from a starting point of the standards the Supreme Court spelled out in Mount Laurel Two. Then as

the Fair Housing Act was enacted in the summer of 85 and then the counsel on affordable housing began its work, it eventually adopted a standard that cites for first the term was inclusionary development and then in more recent rules it said inclusionary development and

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 affordable housing developments must be approvable, developable, suitable and available and COAH rules defined each of those four terms.

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And what I had begun

doing in 1985 and continued to refine to the present day is a check list of various site suitability criteria based on the COAH standards of approvable, developable, suitable and available plus an additional standard COAH adopted which is that such projects and sites should be consistent with the New Jersey State Development and Redevelopment Plan. Q And, and have you written those, tho, those

criteria down? A Yes. Q And are, are they, are they shown in, in P-33

in your site suitability report? A Yes, they are in exhibit, Exhibit F to my July,

2009 certification. MR. EISDORFER: Your Honor, for everybodys

convenience we, we have blown up Exhibit F so we can all follow along. BY MR. EISDORFER: Q Dr. Kinsey, I just put up a board. Is that

identical to, to Exhibit F? A It is. Q Now in developing criteria, what's the

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on? A I have first relied upon the concept plan itself I've also

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relationship between the criteria that youve developed and what we, what, what criteria might be used by a planning board? A They are very different. A planning board is

evaluating fundamentally whether they, an application complies with the appropriate municipal land use ordinances, whether it complies with the zoning ordinance, site plan ordinance and typically a subdivision ordinance all as applicable to a particular development proposal. These are criteria that

articulate, in my opinion in some specificity, a standard the Supreme Court established in 1983 for the review of projects proposed by builder plaintiffs and a municipality challenged such a site and project. Q Now in, are these the criteria that you have

used in evaluating the concept plan that we've marked as P-63A? A Yes. Q What, what information are, are you relying

but the site plan has lost the sections.

reviewed I guess many of the documents that I've heard introduced in, in, into evidence by the, by the plaintiffs and through the plaintiffs engineer. For

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 example, I reviewed his site investigation report. reviewed his sewer report. area studies and, and maps. I

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I reviewed his flood hazard I also reviewed

municipally prepared information, various housing elements and fair share plans, areas I guess master plans. I revisit draft of the land use element, other

such documents prepared by the Township of Cranford or, and its planning consultants. Q In, in, in expressing your opinion today, is

your opinion also informed by the testimony youve heard over the past two days? A Yes. Q Now what do you understand, based on your

review, to be the proposed, the use of this site? A The proposal is to develop an inclusionary

development, one that includes market rate housing and housing affordable to low and moderate income households and indeed housing restricted to low and moderate income houses for a total of I believe its 419 units together with associated at-grade surface parking plus two parking structures, one as a podium for Building A, a second as a freestanding parking deck structure plus whatever else is necessary for the improvement of the site in terms of on-site utilities, drainage facilities, re-grading flood storage, all that

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 now? MR. EISDORFER: I'm looking at Exhibit F. turns out to be kind of necessary and appropriate as the design process continues and engineer drawing are prepared. Q Now did the, is, is the use for which you,

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you evaluated the site, is that the same use that's shown in P-63A and P-64A? A Yes. Q And have you reviewed prior iterations of

these plans as well? A Yes. Q Now Dr. Kinsey what I'm gonna do is I'm gonna

essentially what I'm gonna do is, is take you down to your criteria and ask you to, to explain what, what your analysis of this site is under each, each of these criteria. The first criteria is control of the site. Is that correct? A Yes. Q And, and -THE COURT: You're talking about Exhibit F

Were gonna, were gonna walk our way down Exhibit F. THE COURT: Okay. I'm gonna ask him the next

MR. EISDORFER:

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. BY MR. EISDORFER: Q Dr. Kinsey, can you explain to us what you,

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what, what, what first criteria means? A The first criteria is more than simple control of Its cl, a site has clear title and is free

a site.

of any encumbrances that would preclude the development of affordable housing so that its free of any deed restrictions or some other factor that might preclude such housing. And to satisfy myself that this criteria

is met, I consulted with my client hence, particularly its general counsel who was aware of title searches and deeds and of that type of research having done the transaction and I was advised that a site, that type -COUNSEL: THE COURT: Objection, hearsay. Okay, yeah. Your Honor, is -- I'm sorry.

MR. EISDORFER: BY MR. EISDORFER: Q

Dr. Kinsey, is this the type of, of

information that planners typically use in, in, in making these type of evaluations? A Yes. Q So what was the, what was the, what was the

source of, of your information? A The general counsel of the S. Keenan (phonetic)

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Group. Q So do you have an opinion as to, based on

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that information, as to whether the, the site satisfies that criteria? A Yes. Q I believe it does satisfy that criteria. What's the second criteria?

The second criteria, Your Honor, is whether the

site is adjacent to compatible land uses. Q Exhibit B. A Now in, in your report you have the, you have Can you tell us what Exhibit B is?

Exhibit B is an aerial image of this site which I It shows the site and the

took from Google Earth.

surrounding area extends to the Garden State Parkway and the southeast. Q Now can, can you walk us around Exhibit B and

explain what, what the adjacent uses are? A Yes. Immediately across Birchwood Avenue to the

north is the parking lot and then the office building occupied by Ver, by Verizon. Q Hold on just a moment. MR. EISDORFER: THE COURT: Judge, do, do you have this?

What, yeah, where is Exhibit B?

I'm looking at Exhibit E which are the criteria -- oh, okay. MR. EISDORFER: P, P, P-33, Exhibit B, the

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 next page. THE COURT: Okay. The next page. Thank you.

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MR. EISDORFER: THE COURT:

Thank you.

THE WITNESS:

The site is outlined in white

with a black dotted line and the north is to the top of the page. BY MR. EISDORFER: Q Okay. So would you first, first of all,

point out the, the existing uses on, on, on the site? A The existing uses are the two office buildings;

one to the, on the eastern side with a large parking lot that's visible and then a smaller one more to the north of west corner. Q Now if you, if you while using this as an

aid, can you walk us around and describe the, the, the adjacent uses? A Yes. Your Honor, to the north is the parking lot To the west or left is a

and Verizon office building. small office building. that small building.

I believe a contractor occupies

To the, further to the west and

southwest, one sees the, a row of single family detached houses along Wadsworth Terrace. To the

southeast or right of the site is the Cranford Extended Care Facility which I believe is a subacute care

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 extended care and assisted living facility. And then

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finally to the northeast across Birchwood Avenue is the townships composting recycling facility. Q Now in, in, in evaluating, in evaluating the

compatibility, what did you look at? A Well, first I defined the term compatibility and I COAH rules do not

find that to be very important.

define the term compatible uses but the Department of Environmental Protection does have a rule that defines compatible, compatibility of uses which is defined as the ability for uses to exist together without aesthetic or functional conflicts. So then my inquiry

is to examine whether there are any aesthetic or functional conflicts between this proposed residential use and the existing diverse collection of land uses that surround the site. Q You know, so, so what, what, what potential

conflicts did, did you identify? A Well, first lets take the, the, the functional I first considered well, how will this Residents will come to

conflicts.

residential complex function?

this complex by automobile, shuttle bus if provided by the developer as proposed, some by bicycle and probably some as pedestrians. Avenue. Theyll be using Birchwood There are

Theyll be using its sidewalk.

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 likely to be some trucks making deliveries and pick ups.

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They will use the driveways to Birchwood Avenue.

And then I examined and considered that these movements of people and vehicles are not likely to conflict with the existing mix of uses, the nursing home, office building, composting facility that also use the same Birchwood Avenue and sidewalk. In addition to these movements, therell be sounds but the sounds from the proposed new residential complex are not likely to be intense or, or adverse in my opinion and will not adversely affect the adjacent land uses. Sometimes often planners consider other

possible impacts of, of a development upon areas off site that might be traffic, wastewater and, and flooding that might affect adversely adjacent uses and those are considered under other criteria on Exhibit F. And I ultimately concluded in terms of functioning that this residential complex, Your Honor, will not adversely affect the functioning of the adjacent uses and, and vice versa. And they will be able to continue

to function in an unimpaired manner by the replacement of the existing office uses with a residential land use at this site. And then my next inquiry is the

aesthetic question. What is proposed here are four and five story

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

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residential buildings and in my opinion, they will not create any aesthetic conflict with the adjacent, existing adjacent land uses. And I base that opinion

on an analysis of the section drawing which is one of the exhibits. is. Q P-64A. That helps me to understand first the I'm not sure what exhibit number that

P-64A.

height of the trees that are along the eastern edge of the property and I can compare those trees to the heights of the proposed buildings and I'm aware, having walked along the site and taking photographs along that eastern edge, of the height and scale and mass of the Extended Care Facility to the east and it is lower, most of its one story, a portion of its two story, but it is essentially well screened by the tall, mature trees. Yes, they are deciduous but they are certainly

green and leafy for much of the year and indeed there are trees that are of different heights along that, that edge. And so that provides a helpful buffer along

that eastern edge. And then much of the property itself to the south is wooded and that provides a area of perhaps about 150 feet of buffer between what will be the developed portions of the site and the existing houses

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A on Wadsworth Terrace so there is another important

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buffer; its woods and wetlands that provide the buffer. Q Do you know how wide that buffer is?

Its about, maybe its about 150 to 200 feet, 250

feet in depth so it, its significant. There's also the, the small office building to the west across the, the small creek and it too will be located probably, maybe its 200 feet from the proposed Building A, its probably more than 200 feet from the proposed Building A so again there too there's, there's a buffer. And in terms of the Verizon

building across the street I see no conflict, no aesthetic conflict there. Its, its far across the

street and similarly where the townships property which has woods directly across the site and then the entrance to the composting recycling facility, I see no aesthetic conflict of, from that vantage point either. So in my opinion, I, I include, I conclude that there's no aesthetic conflict between the low rise and the nursing home and the proposed adjacent mid-rise apartment building or from any of the other adjacent existing land uses. Q Now you indicated in your testimony that you,

that you took some photographs as part of your evaluation.

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. They're included in as Exhibits H and I of And then Exhibit J,

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my certification of July, 2009.

Your Honor, is a copy of the site survey of the existing conditions of the site on which I've drawn in green the view shed that what, in other words, what one sees when one stands at the apex of that V shape as one looks at the sites. So Exhibit H is the view from

standing at the entrance to the existing driveway looking essentially to the southeast. One sees the

mature vegetation on the left and a full run of that vegetation down to the woods to the, what is called the back of the site. And then Exhibit I is taken from standing in the southeastern corner of the existing parking lot and looking back towards the office building and the driveway where the first photograph was taken. Here

too one can see the mature vegetation that this, the engineer surveyed as rising to up to 79 feet. can see, the vegetation is still in. tall canopy. As you

Its not just a

There are deciduous trees of different

heights and dimensions providing a leafy border much of the full run of, of this eastern edge of the property. Q Now are the Exhibits H and I, are those

photographs that you took? A Yes. They taken as indicated on the exhibits on

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A July 15, 2009. Q

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And do these photographs accurately represent

what you saw at, at, at that time? A Yes. Q And does, does, does Exhibit J actually por,

accurately portray where you stood when, on the site where, when you took those photographs? A Yes. Q And, and the Vs that open out, that shows the

direction in which you faced? A It shows the direction and my best approximation,

Your Honor, of the extent of what one can see in the photograph. Q Now what was your third criteria?

The third criterion is access to appropriate

streets. Q And what, what, what is, what, what do you

mean by that? A This is the language verbatim I believe from the

COAH rule and I interpret this to mean that the site physically adjoins an appropriate street or there can be an easement through whatever property necessary of the appropriate width to provide direct physical access to appropriate streets. In this case, the site has about 825 feet of

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 frontage on Birchwood Avenue which is a fairly wide street. I believe its 36 feet wide and that's wide

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enough, Your Honor, for two lanes of travel plus two, plus parking on both sides. This site is located about

halfway between two intersections with Birchwood Avenue. One is Orange Avenue which is something

planners or traffic engineers would classify as a minor arterial and that's to the northwest. And then there's

Cranford Avenue to the local street which is to the southeast. Q Now can you, can you show us on, on P-30, P-,

P-63A, can you step down and point out to us where the ingress/digress on to Birchwood Avenue is? A Your Honor, the concept plan proposes One, between

ingress/digress in two locations.

Buildings A and B at the center of the sites, 325 foot frontage and the second is along, very close to the eastern edge of the property, close to the Extended Care Facility site. Q Thank you. Now in, in connection with your,

in, in connection with making your evaluation, did you do a traffic study? A I did not do a detailed traffic study. I did

visit the site and considered the traffic that, that I observed.

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Why not do a traffic study at this point?

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I'm, first I'm not a traffic engineer and

secondly, Your Honor, this is something that is typically done in my experience before a planning board where there's a site plan application and a developer will often do a, a traffic impact study particularly if there's an intersection nearby as is the case here with the Orange Avenue intersection. And the traffic study

will analyze how well that intersection functions in terms of traffic standards and if its found to be needing improvements, those improvements are typically then proposed and then under the Municipal Land Use Law, the developer is required as a condition of approval to make its pro rata share to, to pay for its pro rata share of the cost of improvements as necessary to that intersection. Q Typically are, are, are, do planning boards

turn down projects because of, because of off-site traffic? MR. WOODWARD: BY MR. EISDORFER: Q To what extent can or do pl, planning boards Objection, leading.

turn, turn down projects because of off-site traffic condition? A I'm not aware of many cases where a planning board

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has rejected an application solely because of off-site traffic considerations. Q So do you have an opinion as to whether this,

this project has, has adequate road access? A Yes. Your Honor, I, I conclude that this site

complies with the COAH criterion on access to appropriate streets. Q criteria? A The fourth criterion is access, is adequate sewer That is to say that there's adequate waste What was your, what, what is your fourth

capacity.

water, conveyance and treatment capacity available to the site to connect to whatever the appropriate system is. And in this case there is a township owned

conveyance system and a regional treatment system and here I've heard and rely upon the, Mr. Dipple, the, the plaintiffs engineers analysis, modeling and determinations that the existing sewers will function properly with the anticipated peak, waste water flow and that furthermore that treatment capacity is more than available at the Rahway Valley Surge Authority Treatment Facility. So therefore its, I conclude that

this project, this site complies with the COAH criterion on sewer capacity. Q What is your, what is your fifth criteria?

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The fifth criterion, Your Honor, is adequate water

capacity again to assure that there's adequate protable water available to the site from appropriate sources. And here too I've had the benefit of the engineers research and analysis. There is a utility, New Jersey

American Water Company which owns and operates a water main in Birchwood Avenue. adequate supply. The site has proximity to an

I understand from the engineers

report that a hydrant flow test may be appropriate and that typically again takes place at the site plan stage to establish whether the flow rate is adequate and there's adequate pressure and if not, the engineer advised that there could be a booster pump provided inside the residential development and, and that's normal and something again typically happens in the site plan application process. And so I conclude that

the site can comply with a COAH criterion on adequate water capacity. Q What is your next criteria?

The next criterion is again this is the COAH

language that the project is and site are developable under the residential site improvement standards often referred to as RSIS or R-S-I-S which are the, as determined indicates the site improvement standard established on a uniform basis statewide by state law

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A with rules adopted by the Department of Community Affairs and the concern and requirement is that these rules be met as applicable and essentially they apply to five major site improvement aspects of residential developments. First streets, second water supply, third, sanitary sewers, fourth, storm water management and fifth, parking. Q Before you, before you proceed to finalize

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each of those, let me ask you that, that are you, are you familiar with, with the, the RSIS standards? A Yes. Q And how are they formulated?

They are formulated using a starting point of a

research project performed for the State Department of Community Affairs by the Rutgers University Center for Urban Policy Research which spent a number of years with the assistance of practicing engineers, planners, I believe municipal attorneys and planning board attorneys in developing what would be considered the best practices and most appropriate practices for New Jersey residential development. That research report

then became the starting point for the rule making once the municipal land use law was amended by the adoption of the, the statute that authorized and required the

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apply uniformly throughout the state? A Yes. Q Now are, are municipalities permitted to

impose more, stricter standards, higher standards? A No. Q Can they accept something less, less than the

RS system, RSIS standards? A Yes, Your Honor. There are, there are waiver

provisions and special area standard provisions and other provisions recognizing that local conditions may make some modification from the standard to be appropriate in a specific site. Q At this point, is it possi, possible to do a

full evaluation of compliance of this project with the RSIS? A No, because the, the site has not been engineered. Q Where, where, where would that evaluation

typically take place? A Again, its something that's reviewed at the site

plan or subdivision plan stage before the municipal planning board. Q point? What kind of evaluation can you do at this

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different levels of detail. Q Will you be able to formulate opinions as to,

as to, as whether, whether its feasible to meet the RSIS? A Yes, consistent with practice under COAH rules in

evaluating the compliance of sites and projects with this COAH rule. Q The, the first item you listed was streets.

How, how do you evaluate, how do you evaluate the site in terms of RSIS criteria concerning streets? A The simple answer, it doesnt apply because here

the developer is not proposing any streets only driveways so the RSIS does not apply. Q Avenue? A No. Q Your second, your second, your second item Does, does the RSIS govern usage of Birchwood

was sanitary sewers. A Yes. Q How did, how do you analyze the, the site on

the sanitary sewer service to the site under the RSIS? A Here, Your Honor, RSIS basically has engineering

design standards and that is something that will happen later on in the process. The engineer will be

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responsible that and I'm confident that he will design the sewers and on-site sewers to comply with these standards. Also as I explained earlier, the site has

adequate sewer capacity so that's an important part of the RSIS standard that is met. Q The third item was water supply.

And, Your Honor, water supply is a similar Here too its the engineer

analysis and, and opinion.

who will be designing the, the pipes and whatever is necessary in terms of pumps for, for, for water flow and pressure but that has not happened yet. Thatll

happen in the normal course of events at the site plan stage. As I've testified, there's adequate water

capacity at this site and so in my opinion it complies with this RSIS criteria as well. Q Your fourth, your fourth system you indicated

was, was governed by RSIS was storm water management. A Yes. And, and here too the detail storm water

management plan for this site has not yet been engineered but it will be at the appropriate time. I heard Mr. Dipples testimony on this point in the various approaches that he is contemplating to address the standards which are a combination of the RSIS standards which then embody the applicable standards from NJDET. So here too its my opinion that the site And

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list was parking.

determine compliance with, with RSIS for parking? A The first step, Your Honor, is to calculate the

requirements. (The Judge sneezes.) DEFENDANT'S ATTORNEY: THE COURT: Excuse me. RSIS specifies different Bless you.

THE WITNESS:

parking standard for different bedroom types and housing types. And so one must first classify the

proposed residential development and then calculate the number of parking spaces required based on the bedroom mix. That I have done in a chart that's in my

certification which was based on of the concept plan at some point before July of 2009. I have also prepared a handwritten chart based on the concept plan that's before The Court and the answer is the same that under RSIS, the bottom line is the same. RSIS would require a total of 811 parking

spaces for the configuration of 419 units that are proposed in the July 30, 2010 concept plan. And I'm

aware of the number of parking spaces that are provided

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Now the, in general what, what are, what are

the R, RSIS -- well, in general, if one did the calculation, what ratio would the, would RSIS require of parking spaces to dwelling units in this project? A Your Honor, it would require a 1.9 parking spaces That's because its not a round

per dwelling unit.

number of two because for a one-bedroom unit RS (sic) a one-bedroom unit in a mid-rise structure which is how this project is classified, RSIS would require 1.8 spaces per unit. And then for a two-bedroom unit it And in a threeAnd these

would require two spaces per unit.

bedroom unit it would require 2.1 spaces.

ratios include both residents as well as their visitors. THE COURT: Is there a chart for me to see

what you're looking at? MR. EISDORFER: THE WITNESS: Yes.

Yeah, I, I have a chart. Your Honor, there, there is a

MR. EISDORFER:

chart in the report at paragraph 26. THE WITNESS: certification. Page nine of the July, 2009

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THE WITNESS:

chart that has the same bottom line of 811 required parking spaces, spaces provided and surplus or in this case deficit although the, the three lines above are slightly different because the number of one-bedroom, two-bedroom and three-bedroom units is slightly different in their current concept plan. BY MR. EISDORFER: Q Now that 1.9 ratio, is there, is, is there an

actual data as to parking usage, parking utilization in (inaudible) structures? A Yes. Q And well, what is the source of that be?

Well, the Institute of Traffic, excuse me, the

Institute of Transportation Engineers publishes such data on, on parking demand and has done at least I believe two additi, three additions of it that the tone is entitled Parking Generation. MR. EISDORFER: this as P-30, P-30. BY MR. EISDORFER: Q Let me show you the document that we have Your Honor, I'd like to mark

marked as P-30 and ask you if you can identify that. A Yes. This is the --

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I dont know this has ever been If it has, I stand corrected. I'm sorry. If it --

THE COURT:

MR. WOODWARD:

I dont think this document

has ever been produced before. MR. EISDORFER: its P-30 and -MR. WOODWARD: MR. EISDORFER: I, I understand what -And its, and its made, and Your Honor, the, the, its,

reference was made to it in his report and, and it was provided in response to your request for, for, for documents in connection with his deposition. MR. WOODWARD: If, if we got it, then I stand

I just dont remember ever seeing it before

and well have to check it and I will continue my objection if -THE COURT: it in evidence. I, I dont even think he offered

He just showed it to the -Well, he's gonna have the

MR. WOODWARD:

witness testify from it and if we haven't seen it before then I think its inappropriate. THE COURT: Well, he says its in his report. Its --

MR. EISDORFER: THE COURT:

You want to just refer to where

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And you're sure it was produced

in connection with his deposition? MR. EISDORFER: MR. WOODWARD: could be wrong. THE COURT: Okay. Why dont you just, so we He was, he was deposed on it. But by the way, I'll check. I

dont leave it hanging out there for the record, why dont you just, if you could, Mr. Eisdorfer, clear it up for us. MR. EISDORFER: BY MR. EISDORFER: Q The, the, this -- Dr. Kinsey, would you take Okay.

us to paragraph, paragraph 33 of, of your report? A Yes. This is my July, 2009 certification at pages I have a sentence that says,

10 and 11, paragraph 33.

The most recent nationwide research published by the Institute of Transportation Engineers reports an average peak parking period demand for low/mid-rise apartments (maximum of four stories) of 1.2 vehicles per dwelling unit. Then I have a footnote which is,

Far fewer than the plaintiffs proposal at Cranford. And my footnote is to the document identified as P-30 which is a Parking Generation book, third edition,

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A published by the Institution of Transportation Engineers. I have one correction, in my footnote I

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indicated its Institute of Traffic Engineers. of traffic, it should be Transportation. Q

Instead

There's a footnote 14 in, in your report? Footnote 14 of my certification of

Thats right.

July, 2009. THE COURT: Okay. I assume you're

withdrawing your objection, Mr. Woodward. MR. WOODWARD: excuse me, Your Honor. At this point, I would -At this point, I would have to

go back and actually look in my files to find out whether this was ever produced before. At this point,

I'm gonna reserve my right to object to the testimony, moved that it stricken if it wasnt produced. THE COURT: Okay. But in the meantime, in the He

MR. WOODWARD:

meantime, you know, just to allow it to go forward. can ask the questions but I reserve my right on that subject to my checking it. THE COURT: Very well. Thank you.

MR. WOODWARD: THE COURT: BY MR. EISDORFER: Q

Thank you.

Dr. Kinsey, is, is, so is, is, is this

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document you referred to for a source of information as to the national data on parking utilization in mid-rise apartments? A Yes. Q Is this, is this the type of, of, of

information that planners and traffic engineers typically rely on for this purpose? A Yes. Q What's in, in, in the profession, what's the

status of, of this document? A Highly revered and respected. Q Now what, what, what conclusions did you draw

from this document? A Well, Your Honor, I find it interesting that this

national data suggests that 1.2 vehicles per dwelling unit is the average peak parking demand presumably at 3 AM, 4 AM, 5 AM in the morning when everybody is at home. And that's far fewer than the 1.6 parking spaces

per dwelling unit proposed by the plaintiff. Q Now are you familiar with the concept of cost

increasing requirements and, and, under Mount Laurel? A Yes. Q means? A Yes. Your Honor, one of the Supreme Courts Can you tell us what, what, what that term

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to satisfy municipal fair share housing obligations and particularly to make it realistically possible for the private sector to do that. Site improvement standards

and other municipal requirements on development that had un-costs that are not necessary for public health and safety are viewed as cost generative and are prohibited under the Mount Laurel doctrine. Q Can, can, can park, excessive parking be, be

a cost or increase in requirement? A Yes. Q Why is that?

Well, Your Honor, if one is required to build more

parking than is reasonably likely to be used based on national standards and other credible studies, then that's a cost of X thousands of dollars per parking space that is not necessary and is therefore by definition cost generative and not related to public health and safety. Q Now in light of, of, of the national data, do

you have any, do, is there any New Jersey data that corroborates in your opinion with the national data? A Yes, Your Honor. I became aware of my clients

related projects in Englewood, New Jersey, the brownstones at Englewood South and the Sheffield at

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Englewood South that I've heard testimony on in this court yesterday and today. mid-rise structures. These are both four story

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Neither has close convenient There is a bus line, New

access to public transit.

Jersey Transit line 166 that provides convenient service to New York City, just one hour to and from. Its on a bus stop that's a short distance, about a half mile east of these two complexes, half a mile east on Route 4 but its not an easy place to walk. its, its not pedestrian friendly. I asked my client for information on the number of parking spaces in these two complexes and particularly how many were used, what's the utilization rate for both the residents and, and visitors and found, and, and obtained that data and turned it into a table that's my Exhibit J to my July, 2009 certification, which I believe was previously introduced into evidence as a plaintiffs exhibit separately. Q Was that Exhibit J or Exhibit K? And so

Excuse me, exhibit K to my certification. MR. EISDORFER: Your Honor, Your Honor, this

exhibit will be previously marked as P-25. BY MR. EISDORFER: Q And, and what conclusions do you draw from,

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I was struck, Your Honor, that at the brownstones

the occupied parking spaces amounted to 1.31 spaces per dwelling unit and at the Sheffield, the occupied spaces amounted to 1.37 spaces per unit which was a bit more than the national data reported by -- the average national data reported by the Institute of Transportation En, Engineers and still less than that proposed by the plaintiff at the Cranford site. Q Now based on, on the national data and the

New Jersey data, were you able to form an opinion as to whether the 1.9 parking unit per, per, per dwelling is a cost increasing requirement for planning purposes? A Yes. And in my opinion, the 1.9 at this site

given the bedroom mix and the likely clientele or residences would be a cost generative requirement. Q Now does the RSIS pro, pro, provide for

alternative standards for parking? A Yes, it does explicitly. Q And what are the criteria for, for using

alternative standards? A The term under RSIS is, Alternative parking

standards and those may be sought if they, Better reflect local conditions and the RSIS enumerates four factors that may be evaluated.

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The first is the household characteristics of the anticipated residents. In, in this case, the, the

plaintiff anticipates that the market rate units will be admittedly luxury rental apartments that will be predominately rented to one or two person households most likely with very few children even with the 65 percent two-bedroom units. The plaintiff is proposing a greater percentage of one-bedroom units in Cranford compared to the experience in Englewood so the average household size maybe comparable or it might even be less. So the

extent of motor vehicle ownership by these, these tenants particularly the market rate tenants is likely to be less than even the 1.6 parking spaces per unit. But I caution and this is just based on this one set of examples from Englewood, there's another extensive data base that planners typically use in New Jersey in examining these kind of demographic questions. called Who lives in New Jersey? It was commissioned by the New Jersey Department of Community Affairs and several other organizations. It too was prepared by Rutgers The Its

University Center for Urban Policy and Research.

principal author, the lead author is David Plisterkin (phonetic) but unfortunately this data does not analyze

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 persons per unit for three-bedroom units but rather kind of lumps them together with two and three so it can't really tease out and be more precise as to the likely household size in, in this facility. the first one; household characteristics. Second is the availability of mass transit but here this is really not applicable, Your Honor, because no public transit is available close to the site. The, there is frequent New Jersey rail service

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So that's

in Cranford but that's about one and a half miles away by the closest pattern of streets that one could take by car, walking or bicycle. The third factor under On the

RSIS is urban versus suburban location.

continuum, I would make a urban/suburban rural and exurban. This site has a suburban location. Its

really automobile dependent. And the fourth factor is what's called available off-site parking. The resources on Birchwood

Avenue does have the capacity for about 32 parallel parking stalls along just the sites frontage. It has

capacity on the other side of the street so off-site parking could be available particularly during the day for visitors, people pulling up to, to meet with someone who lives in this complex. first four factors. Those are the, the

And I testified earlier to what I

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think is the most important factor which is nationwide data and research on parking demand. Q Now based on, on your analysis of the

alternative parking standard factors, in your opinion would, would use of an alternative parking standard be appropriate and, as to this project? A Yes. In my opinion, Your Honor, that an approp,

the appropriate parking standard for this project at this site and its configuration, its location, its likely demographics is an alternative parking standard that respects the, the national data for this housing type and the developers experience, real world experience with the Englewoods projects. Q It -And approximately what would that be? the 1.6 spaces per unit would be an

appropriate approach. Q Now have you given any consideration to, to,

to how the, how the project might, might deal with if this turns out to be too low a number? A Yes. A concerted approach, Your Honor, would be

to say 1.6 is appropriate but lets make sure and one could evaluate the actual parking usage in this apartment, these apartment buildings once they are fully rented up perhaps six months or a year of full occupancy and find out with real facts how much parking

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that could be taken. First, as I said earlier, residents could be encouraged to use, excuse me, visitors could be encouraged to park on adjacent Birchwood Avenue. People park on streets when visiting peoples home all the time. Second, as Mr. Hakim (phonetic) testified today, the developer could provide a convenient van shuttle between the site and the Cranford train station and perhaps other appropriate points in Downtown Cranford on a regular basis particularly during the peak morning and evening commuting hours. And third,

as was also testified to today, third could be another level of parking structure added to the building, be a parking deck with the appropriate number of spaces based on the design of the structure. If its one half If its

of a, of a level, that's perhaps 50 spaces.

the full two levels or two halves, that's perhaps 100 spaces. And if 100 spaces were added, that would

increase the parking ratio as I calculate it to 1.85 spaces per unit. So these options provide additional

flexibility and, in my opinion, provide more justification for my conclusion that this project

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currently permitted on, on Birchwood Avenue in front of, of this site? A I believe it is. Q Yes.

If it weren't, would that be an appropriate

change in the, in the local regulations? A Yes, it would be appropriate. Q You're the -- in light of, of your testimony,

do you have an opinion as to whether the, the site complies with the, the proposed concept complies with RSIS standards based upon the kind of evaluation you have described? A Yes. Your Honor, its my opinion that this

proposed development can and will be designed to be compliant with RSIS and will meet this COAH criteria. Q Well, your next, your next criterion is

compliance with regional, regional planning standards? A Yes. This is one of the easiest ones to address Cranford is

today because this one is not applicable. not in the Meadowlands district. Pinelands area.

Its not in the

Its not in the Highlands region and

its not in the coastal area under CATHRA so this criterion does not apply.

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Your next criterion is -(Mr. Eisdorfer and his client speak amongst themselves.) BY MR. EISDORFER: Q Okay. So were, were up to, to item eight

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in Exhibit F. criterion is? A Yes.

Describe to us what that, what that

Your Honor, the next criterion is compliance

with the New Jersey Freshwater Wetlands Protection Act. In particular, compliance with any wetlands and wetlands transition area constraints. Q And how did you evaluate this site based

under that criterion? A First, I reviewed the letter of interpretation

from DEP that confirmed the delineation of wetlands and resource value of the wetlands as identified by the plaintiffs engineer and environment consultants and I reviewed the associated map which DEP approved. Its

one of the exhibits in evidence with two tones of, of green. A darker green for the wetlands area itself and

then in certain areas adjacent to the intermediate resource value wetlands, there's a 50-foot wide wetlands transition area. Q I'm gonna show you the document we have Is this the wetlands document you're

marked as P-10C.

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A referring to? A Yes, it is. Q Yes. Please proceed. So that the, the area where the darkish,

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khaki wetland area and the cross action are the designated intermediate resource value wetlands and then 50 feet beyond them, is an area of a, of a bright green. That's the wetlands transition area. Then to the southeast corner of the site or the right of the, of the panel is a narrow ditch of wetlands designated as ordinary resource value wetlands. And then finally, the stream itself to the

west side of the site is classified by DEP as state open waters. Q And, and how, in light of this information

how did you assess the, the compliance with the proposed concept with the wetland standard? A My approach is to take the concept plan and

compare it to the wetlands constraints, both the wetlands constraints and the wetlands transition area constraints. Some of those lines are shown as well on

the concept plan and since this site plan respects by avoiding the wetlands area that assures compliance with that part of the criterion. And then for the wetlands

transition areas, as I believe Mr. Dipple testified,

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A DEP rules allows for modifications of the wetlands

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transition area so that one can have a narrower than 50 foot transition area in some places. That's called the

reduction provided there's a compensation area, an increase to larger than 50 feet somewhere else on the site. And then DEP as part of that regulatory process

of granting a transition, what's called a transition area averaging waiver, DEP requires that that transition area be the subject of a conservation easement so that its quite firmly protected to serve that purpose for a very long time. And so I've

reviewed the concept plan and find that it is designed in a manner that will comply with the requirements of the Freshwater Wetlands Protection Act and this COAH criterion. Q In looking at this, did you see an actual

transition area averaging plan on this, on this site? A No. One has not yet been prepared and, and

that's, that's understandable given this stage of the design development for this project. Q At what point would that be prepared?

That would be prepared as, -- when the engineering

starts for the plan because then one of the considerations is where's the most appropriate place from a logical perspective as well as overall

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Kinsey - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A improvement of the site for the compensation area that's gonna have a deed restriction. Q Yes. Your next category was Category One Waters. That's, category -- the, the criterion is

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compliance with Category One Water Body constraints. Q What is, what is a Category One Water?

Category One Waters, Your Honor, is a very high

quality classification DEP has assigned to certain water bodies in this state. The site is not within the

watershed of any such waters and therefore this criterion does not apply. Q Your next criterion is, is compliance with

flood water hazard constraints? A Yes. Q How did you assess this, this site on the

basis of that criterion? A Here its the same inquiry as the wetlands

analysis which is to review, in this case, the floodway delineation and flood fringe area delineation prepared by Mr. Dipple and to compare that with the conceptual site plan and review the sections, the conceptual sections that show opportunities for flood, flood storage as part of the structures and listening to Mr. Dipples testimony as a professional engineer who has interacted with DEP on flood hazard area questions has,

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All of that body

of information leads me to conclude that this site can comply with the COAH criterion on flood hazard areas. Q And when you, when you, when you refer to

the, the map of flood hazard, the flood hazard map showing floodway and the flood fringe, I'm putting up the board marked P-39A. referring to? A Yes, it is. Q Your next criterion is, its steep slope Can you, can you describe what that's Is that the document you're

constraints. about? A

This is another criterion taken straight from the It refers to areas of a site as mapped on

DEP rules.

the U.S. Geological Survey Typographic Quadrangles which are a scale of one inch equals 2000 feet and if the slopes are 15 percent or more, then that's considered a steep slope. There are no such areas on And, and even

this generally very, very flat site.

the, the ditch on the western side of the site would not qualify as a steep slope under the DE (sic), under the COAH criterion because it doesnt show up on the USGS maps as steep slopes. Q The, the next criterion is providing buffers

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criterion is that appropriate buffers be provided for both sites and districts that are listed on the state or national registers of historic places. There are no

such properties either on the site or adjacent or even near, in close proximity to the site and therefore this criterion does not apply. Q Your next criterion is consistency with the Is that

state development and redevelopment plan. correct? A Yes. Q

First of all, can you tell us what state

development and redevelopment plan is? A Yes. Your Honor, in nine (sic), 18, 1985 or

perhaps with an effective date of January 1, 86, the State Planning Act was enacted. It was the second law

that was really an offspring of the Mount Laurel Two decision. It created a state planning commission which

was charged, composed, composed of members of the governors cabinet, some ex, designated exaficio, others designated by the governor plus various public members in the various categories appointed by the governor, confirmed by the state senate. Its principal mandate was to prepare the

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first state development and redevelopment plan for the state. The mandate to classify areas of the state and

prepare appropriate policies for the state but not just for state government both the process of preparing the plan and its implementation were to involve various levels of government, state, county and municipal. a sense, working towards vertical integration of planning as well as horizontal integration across state agencies. It took the state planning commission a number of years to develop the first state plan. a large document that has a one map in particular that's referred to as the policy map. Its the one Its In

that classifies the land areas of the state into five principal categories. First -- and they're all called

planning areas one through five. One is the Metropolitan Planning Area. is the Suburban Planning Area. Planning Area. Two

Three is the Fringe

Four is the Rural Planning Area and

five is the Environmentally Sensitive Planning Area. There's some refinements on the last two as well. And

then there are specific goals, strategies, policies, objectives and rationales for each of those policy areas. After several years of implementation and in

response to the statutory mandate to re-examine and

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effect with its policy map depicted in typically in two fashions. One, there's a map the size of the, the state highway map that the Department of Transportation prepares and hands out for free. That's a scale of 100

to 250,000 but the officials maps are the scale of inch equals 2,000 feet and those are prepared on the same base and grids as the U.S. Geological Surveys Topographic Quadrangle maps and that's the official state plan policy map for an area. Q Now did, did you examine the state policy

plan map that encompasses Cranford Township? A Yes. Q And, and can you tell us what, what planning

area this site is located in? A This site -- all of Cranford Township is in

planning area one, the Metropolitan Planning Area. Q And what is the, what, what is the policy

significance of, of designating an area as being within the Metropolitan Planning Area? A Let me answer in, in two ways. First, to read a

policy statement that's included in the state plan for

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It is that state policy in this area to quote, Provide a full range of housing choices through redevelopment, new construction, rehabilitation, adaptive reuse of residential buildings and the introduction of new housing into appropriate non-residential settings. That's at page 191 of the current state plan. paragraph 30, excuse me, 43 from my July, 2009 certification. policy. So that's the broad statement of That's

And then there are other provisions in state

agency rules that build upon the state plan and its planning area designations. One in particular concerns storm water management and the DEP rule that has differentiated the standards that must be met based on whether a site is in a planning area one or not. Q Do you recall what the, what the, the

substantive differences in the NJDEP equal? A I believe the difference is that storm water

management need not include water quality measures if the site is in planning area one and that's in part because planning area one is, is heavily developed already. Q Does that also affect infiltration measures?

It may.

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Now were you able to assess whether, whether

the proposed concept is consistent with the state development, redevelopment plan? A Yes. It is consistent with the planning area

location as well as this broad statement of state policy. Q Okay. What's, what's you're next criteria? But before we get into that,

THE COURT:

maybe its a good time to break for the day. MR. EISDORFER: THE COURT: Okay? That would be fine.

Before we get into the next

So I guess were are we off the

Are we off? (Off the record; on the record)

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60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Dated: CERTIFICATION I, Lynn Cohen-Moore, the assigned transcriber, do hereby certify that the foregoing transcript of proceedings in the matter of LEHIGH vs. TOWNSHIP OF CRANFORD, heard in the Union County Superior Court, Law Division, on August 3, 2010, Tape Number 184-10, Index Number 5555 to end, and Tape Number 185-10, Index Number 001 to 4920, is prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate noncompressed transcript of the proceedings as recorded. AUTOMATED TRANSCRIPTION SERVICES BY: Lynn Cohen-Moore Lynn Cohen-Moore August 15, 2010 __________________ A.O.C. #368

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