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CRANFORD DEVELOPMENT ASSOCIATES Plaintiff vs.

TOWNSHIP OF CRANFORD Defendant

SUPERIOR COURT OF NEW JERSEY LAW DIVISION CIVIL PART UNION COUNTY, NEW JERSEY DOCKET NO.: UNN-L-140-08 A.D. NO.: _____________ ) ) ) ) TRANSCRIPT ) ) OF ) ) TRIAL ) )

Place: Union County Courthouse Two Broad Street Elizabeth, New Jersey 07207 BEFORE: Date: August 16, 2010

THE HONORABLE LISA F. CHRYSTAL, J.S.C. TRANSCRIPT ORDERED BY: CARL R. WOODWARD, III, ESQ. (Carella, Byrne, Cecchi, Olstein, Brody & Agnello) APPEARANCES: STEPHEN M. EISDORFER, ESQ. (Hill, Wallack, LLP) Attorney for the Plaintiff CARL R. WOODWARD, ESQ. (Carella, Byrne, Bain, Attorney for the Defendant Gilfillan, Cecchi, Stewart & Olstein) REGINA CALDWELL

UTOMATED TRANSCRIPTION SERVICES


P.O. Box 1582 Laurel Springs, New Jersey (856) 784-4276 SOUND RECORDED Operator: G. Plummer

I N D E X August 16, 2010 DEFENSE WITNESS: DIRECT Mr. Slachetka EXHIBITS P-66 P-67 P-68 P-69 P-70 D-13 D-14 15 CROSS 67 IDENTIFIED 74 84 84 105 114 42 42 55 16 66 66 66 18 EVIDENCE REDIRECT RECROSS

Regulation 5:97-6.4 Regulation 5:97-3.13 Site Suitability Checklist Map of Cranford Township with marking around town center Map of proposed site with marking around site

Waiver Request - 10/25/01 Approval of Waiver Request 12/4/01 D-74 Redevelopment Agreement - 1/8/09 D-107 Center for Urban Policy Research Impact Assessment - 12/11/09

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 right. trial day. THE COURT: Cranford Development versus Welcome back, everyone.

Cranford Township matter. MR. WOODWARD: THE COURT:

Thank you.

Today is August 16th, our eighth Are we ready to proceed?

So, welcome back. MR. WOODWARD:

I think its our ninth trial

day, Your Honor. THE COURT: Is it? I have -- oh, youre 2nd, 3rd, 5th, 9th, Thank

The 2nd -- you are right.

10th, 11th, 12th, 13th and 16th, you are correct. you. Are we ready to proceed? MR. WOODWARD: Yes, Your Honor.

I -- Mr.

Slachetka is on the stand and Id like to call him. THE COURT: He can resume, yes. Your Honor, as we broke, --

MR. EISDORFER: THE COURT:

Yes. -- you had pending before you

MR. EISDORFER:

an objection to a line of questions concerning the projections prepared by Robert Burchell and that was the -- when we broke, you were -THE COURT: Yes. -- you were going to take

MR. EISDORFER:

that objection under advisement. THE COURT: reminding me. Yes, correct. Thank you for

How much do you think you have on that,

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Woodward? MR. WOODWARD: Frankly, not all that much.

mean we have -- and I just might say that we outlined what we proposed to present in our letter to the court of June 16, 2010, in which we talked about COAHs third round methodology and we talked about the Bloustein report, as we call it. And basically, my focus on this

was to see whether or not Mr. Slachetka -- certainly were offering this report, because there is specific data in that report related to Cranford. Every single

municipality in the state has a line item, a series of line items for different categories. And, you know, we

had presented this report back to the court in June, I believe it was, or even earlier, and we showed -- you know, and in our trial brief, in fact, we actually do the arithmetic, because thats really all it is -- to show that this report shows a very different set of facts related to the growth projections that Cranford is likely to undergo for the next 20 or so years. And

at that time, when the issue was raised by counsel, you ruled that this was appropriate to be considered by the court. We basically stated, in our June 16 letter, I didnt identify -- my

what we were going to do.

fault and I apologize for that -- that it would be Mr. Slachetka that we would be putting this in through, but

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hes our only planner.

Hes our only expert witness in

this area and so, theres no real surprise for counsel. I dont have that much to do with it. I want to finish

my direct examination of the witness in another area, but I do want to question -- ask him some questions about specifically what the Bloustein report means in regard to the work that hes done. MR. EISDORFER: Your Honor, let me read you It says the township

what the July 16th letter says.

will further argue that COAHs third round growth projections are so fundamentally flawed as to render them arbitrary and capricious and same should not be utilized by court in assessing Cranfords fair share obligation and in fashioning any prospective builders remedy potentially due to COAH. And so, in effect,

they are being simply offered to challenge the validity of COAHs methodology. And it seems to me that thats

a plan that this court cant entertain and its irrelevant to these proceedings. I have two further

concerns, which is,(A), although we have counsels representations set forth here as to what the partys intentions are. We have no report from Mr. Slachetka.

I point out that Mr. Slachetka filed -- submitted reports on July 1st and July 26th sandwiching this document, but none of his reports comment on the

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Burchell projections. Finally, the Burchell They are

projections themselves are not admissible.

hearsay and they are not subject to any hearsay objection. In particular, they are not subject to the

hearsay objection for statistical data under Rule 603(c)8 -- (c)6, which is limited to statistics gathered by a public official whose responsibility is to gather those statistics. public official. of thousands. Mr. Burchell is not a

Hes just a university professor, one

And its limited to statistics as to

existing facts, not opinions, projections, possible future stock. It is collection -- the classic example

is census data, where its a compilation of existing facts. So, on each of those grounds we believe that

this is objectionable. THE COURT: As to those two, Mr. Woodward? Well, first of all, Your

MR. WOODWARD:

Honor, in responding to a request for information, or providing discovery regarding an individuals report, you dont have to have a report from Mr. Slachetka written and signed by Mr. Slachetka. is tell you what hes going to say. the discovery rules in our court. All I have to do And that is under

I can say Mr. I didnt use

Slachetka will testify to the following.

his name here, but I told you what he was going to

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testify to and so did counsel. Counsel has known for

months exactly what goes into this report and exactly what it is and how we intend to use it. raised before the court. on that issue. The issue was

This court has already ruled

Now, with respect to hearsay, this is a These documents --

record that was contracted for.

this document was contracted for and prepared by Rutgers University, by the Center of Urban Policy Research, at Rutgers University, and it is trends and projections, planned projections and impact assessment of the New Jersey State Development and Redevelopment Plan by municipality and county. data. This relies on census

And if, for example, I may take a look at -- you But

dont -- do you have D -- you have D-107, I think.

I can provide this one to you, just so you can follow the argument. This is the original D-107. You can just -I have some

tabs on it, Your Honor. THE COURT:

Thank you. -- follow along. If you would

MR. WOODWARD:

take a look on page 16, Your Honor.

Page 16 shows the

census data for 2000 in the left-hand column opposite Cranford Township. If you see theres a column, or

category, Union County and the third town down is Cranford Township. And it says 2000 population in that Then it

column; it says 22,570 people -- 78 people.

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 says 2000 to 2004 change.

Theres additional data that

has been developed that shows that theres a loss of 270 people. And between 2004 and 2008 theres a loss So, that the 2008 population is

of another 413 people. 21,895 people. is 683.

The net loss for the 2000/2008 period

The net change calculated, according to the

type of analysis -- and I believe they use calculus to do this, Your Honor -- is a net gain by the year 2003 (sic) of 13, 25 more between 2013/2018, for a total 2018 population of 21,938. And then if you follow out,

it takes the projection beyond 2018, which really doesnt concern this case, but goes out to a total of 22,004 people. Thats the kind of data this report

contains and what it shows is, unlike the rather large population growth calculated by COAH, they have a different methodology and a different calculation which shows a net stable population thats basically unchanged. Now, with respect to Mr. Eisdorfers

objection regarding being hearsay and not a government writing, I would cite to you Rule 803(c)8, which says, among other things, entities employed by governmental entities and agencies for work to be performed in the public interest are considered, quote, public officials for purpose of admissibility under 803(c)8, State versus Malsbury, M-A-L-S-B-U-R-Y, 186 New Jersey

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Super. 91, Law Division 1982. So, theres authority These people

for the position that were taking here.

are public officials because theyre performing under contract with the government, doing work in the public interest because this is an evaluation of the New Jersey State Development and Redevelopment Plan, which is an official action of the State of New Jersey. MR. EISDORFER: respond to this. Your Honor, let me just

I think if you go and you look at the

table Mr. Woodward has showed you, okay, the first column is census data. THE COURT: to, page 16? MR. EISDORFER: the census data. Yes, the left-hand column of Every -The very table that he pointed

We have no objection to the Thats gathered by the Bureau

admissibility of that. of the Census.

The next columns are not census data. So, youre talking about the 2000

THE COURT: population?

MR. EISDORFER: THE COURT:

Thats right.

That you have no -Thats census data. The next

MR. EISDORFER:

two columns are not census data.

They are -- in the

beginning of this report there is a ten page explanation of where tho -- how those are calculated.

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 All the columns beyond that are projections and there is an extremely complicated -- its not simply calculus. process. Theres a very complicated iterative Its controversial.

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The history is these are

the folks who did the COAH counsels affordable housings data prior to 2004. In 2004 the Appellate

Division had rather nasty comments to -- about them in its opinion striking down the 2004 regulations. did not rehire them for the 2008 regulations. COAH

They are

now offering a competing set of projections to those in the COAH regulations. But the methodology is extremely The --

complex and full of assumptions and judgments.

it has not been -- there -- the state mission does, indeed, have the authority to adopt projections. has not adopted these projections. It is merely It

contracted for them and it has said, in its draft plan, this is merely one of five different sets of projections that were -- that we will consider in formulating our state plan. So, this is -- and its

all unofficial at this point. THE COURT: So, can I just ask you this I mean while my inclination

question, Mr. Woodward?

is, and I already ruled at one point that I would allow it and that the court could assess its credibility and make the appropriate finding as to its relevance at the

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the -THE COURT: time that I ruled.

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If, indeed, it hasnt been adopted

by COAH and its a competing set of statistics, so to speak, as Mr. Eisdorfer argues, then why should we waste our time with it? there any reason? MR. WOODWARD: THE COURT: Well, -Or should -- you know, is

What is the relevance? Heres -- Your Honor, heres

MR. WOODWARD:

What is the relevance of it then? Heres the problem. Mr.

MR. WOODWARD:

Eisdorfer says that well, this is a competing set to what COAHs determined. Well, what COAH determined,

through the reporting agency that they hired to do the round that they now are relying on, -MR. EISDORFER: MR. WOODWARD: Also Rutgers professors. I disagree. It also includes But we can

people from the University of Pennsylvania. argue about that at another time.

The fact remains,

Your Honor, that the COAH projections cull out as vacant developable land in Cranford the Garden State Parkway, the front lawn of the municipal building, the high school property. If thats not a gross Its fantasy

miscalculation, I have no idea what is. land.

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: this to know that. MR. WOODWARD: And that -THE COURT: Right? Well, that brings me -Well, I understand, Your

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Well, but the court doesnt need

MR. WOODWARD: THE COURT:

I dont need this to make that --

to come to that conclusion. MR. WOODWARD: Well, yeah, but on the other

hand, what were hearing from the other side is well, the towns got a growth share obligation of 328. And

that 328 is based on fundamentally flawed data, which includes the Garden State Parkway, the municipal building, the high school, a good part of the Rahway River. Thats the sort of fantasy land that were And what

dealing with in this particular situation.

were showing you here -- and, Your Honor, this brings me to another point. At the time that you declared

this towns ordinance unconstitutional under Mount Laurel, what that meant, as I understand the law, is that the court takes over the responsibility for zoning and planning for this property. It has divested the

planning board and the township committee of any responsibility and, indeed, input, other than in the form of a proceeding like this, as to what the zoning

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of that property should be. A decision ordinarily

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reserved for the legislative body is now being made by the court, and thats the law under Mount Laurel. the other hand, it would seem to me that the court would want to hear a variety of points of view. You On

know, the law says that the Mount Laurel -- excuse me, the COAH regulations apply to the extent possible. Well, if it doesnt make sense, or if theres something else, as part of the courts evaluation of this, that would weigh in the courts decision to making a determination as to what the zoning on this property was going to be, then it would seem to me the court would want to hear it. MR. EISDORFER: MR. WOODWARD: Your Honor, -But that, of course, is the I am saying this

determination that you have to make. is appropriately admissible.

It is significant

documentation that, frankly, tries to take into account information that the COAH regulations completely ignore. MR. EISDORFER: Your Honor, the counsel makes

a systemic argument about how this methodology is flawed. He says they look at the wrong pieces of land.

They use the wrong methodology for projecting growth. Thats an argument to be made to the Appellate

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Division. court. Thats not an argument to be made to this

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And it, in particular, puts the court, were the

court to follow along that line, it would put the court in violation of one of the fundamental principles of Mount Laurel II and of the Fair Housing Act, which is that there should be a single uniform methodology applicable to everybody. Counsel is saying to the

court that it should have an idiosyncratic methodology, different from what the Counsel on Affordable Housing has granted 60 substantive certifications under its regulations. Therell be those 60 certifications and

then whatever this court does, which will be based on different standards. THE COURT: So, but maybe he should put it in

the record for the purposes of the Appellate Division. MR. EISDORFER: Your Honor, the Appellate You know, this -- the

Division is hearing this case.

court has already ruled this is not the case in which to make a challenge to the COAH regulations. a case in which Cranford is a participant. THE COURT: A party, right. So, Your Honor, for all those There is

MR. EISDORFER:

reasons, we believe that this is -- this line of questioning should not be permitted to be pursued and this document should not be admitted into evidence.

Mr. Slachetka - 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 proceed? THE COURT: Yes. Thank you. THE COURT: All right.

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Im going to allow it

very briefly and Im going to entertain your argument at the end and -- in your trial brief at the end and in your summation about whether the court should disregard it. Okay, Im going to allow it briefly. MR. WOODWARD: THE COURT: Thank you, Your Honor.

You know, and as I said before, I

mean this is a court sitting without a jury and I can, after I hear it, assess your legal arguments as to why the court should be -- should disregard it. find that legally appropriate, will do so. MR. WOODWARD: Thank you, Your Honor. If I And if I

might have my original back. THE COURT: D-107 in my material? MR. WOODWARD: Yes. Yes, maam. May I Sure. And you say I have it as

MR. WOODWARD:

STAN SLACHETKA, DEFENSE WITNESS, PREVIOUSLY SWORN DIRECT EXAMINATION CONTINUED BY MR. WOODWARD: Q. Mr. Slachetka, Im showing you whats been Are you familiar

marked as D-107 for identification. with this document? A. Yes, I am.

Mr. Slachetka - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. Q. Could you tell us what it is?

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Its an impact assessment of the New Jersey State

Development and Redevelopment Plan and it was prepared by the Center for Urban Policy Research on behalf of the Office of Smart Growth, in the New Jersey Department of Community Affairs. December 11th, 2009. Q. And have you reviewed this document? And its dated

Yes, I have. Q. Now, with respect to this document -- and I

think before I asked -- started to ask you about this on Friday, I was inquiring about the vacant land adjustment and the housing element and fair share plan that you prepared for Cranford. A. Yes, I do. Q. All right. In that vacant land adjustment Do you recall that?

portion of your housing element and fair share plan did you reach a conclusion as to what you believe the vacant developable land in Cranford was? A. Yes. Q. And do you recall what that was?

Yes, that the township had a very limited amount

of vacant developable land that would contribute to the realistic development potential for the township. Q. And did you review, after you received it,

Mr. Slachetka - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. the Bloustein, or the D-107? A.

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After I received the D-107 I reviewed D-107, yes. Q. And did you look at D-107 in terms of the

data that was presented therein and the methodology used and apply that, or -- let me rephrase -- let me withdraw the question. Did you review it in connection

with the conclusions that you had reached with regard to the vacant land adjustment methodology that you had proposed in the housing element and fair share plan? A. Yes. Q. And what conclusions did you reach?

Well, that it basically confirmed my understanding

in terms of the limited developable -- limited development potential of the township, in terms of vacant developable lane, both in terms of the townships prior round obligation in establishing the realistic development potential, as well as in terms of the evaluation of the townships ability to obtain an adjustment in its growth share projections. In both

instances, the data presented here basically confirms the limited capacity of development within the township. MR. WOODWARD: Your Honor, Id like to offer

D-107 at this time into evidence. MR. EISDORFER: Your Honor, I renew my

Mr. Slachetka - 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. CONTINUED BY MR. WOODWARD: Q. prepared? A. Yes, it is. Q. Under the cover letter of course. I was going to say that Have you -- is this a report that you objections. THE COURT: All right. Subject to your

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objections, Im going to allow it. MR. WOODWARD: Thank you, Your Honor.

CONTINUED BY MR. WOODWARD: Q. Now, Im going to show you whats been marked

as D-40 in evidence, which is dated March 19, 2008, a letter to Lucy Voorhoeve, Executive Director of the Council on Affordable Housing, signed by Mayor Puhak, and attached to that is a response to COAH vacant land analysis, prepared by T&M Associates, dated March 20, 2008. Have you ever seen those -THE COURT: Thats D-40 did you say? D-40 in evidence, Your Honor,

MR. WOODWARD:

Yeah, under the cover.

under the cover letter, the response to COAH vacant land analysis is the report that I prepared. Q. document? Now, what was the purpose of preparing this

Mr. Slachetka - 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 for D-40? THE COURT: I have it. Oh, okay. I apologize. A.

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This is a report that was prepared as part of the

Township of Cranfords response and comment to COAHs proposed regulations, the ones that were proposed in December of 2007, that were under review at that point in time. There was an open public comment period and

the township submitted their comments and as part of that, the township engaged ourselves to prepare a report evaluating the report that was prepared by the National Center for Neighborhood and Brownfields Redevelopment on behalf of COAH with regards to projection of development within the -- within Cranford Township and throughout New Jersey. MR. WOODWARD: Your Honor, are you looking

MR. WOODWARD: THE COURT:

I have it.

CONTINUED BY MR. WOODWARD: Q. With respect to the document, the report that

you prepared, could you tell us what analysis you went through? A. Well, yes. First of which, I mean we reviewed the

methodology that was undertaken by the NC -- the NCNBR, which is the entity that did the work on behalf of COAH, the consultant that worked on behalf of COAH.

Mr. Slachetka - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And we also did an OPRA request for the datasets and specifically the vacant land layer in the GIS, or geographic information system, that NCNBR relied upon to do their analysis. And then we compared and

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contrasted that to our actual understanding of the vacant developable land within the township, specifically in relationship to the work that we had prepared previously with regards to the vacant land adjustment for the town. Q. Now, did you make a determination as to how

much vacant developable land there actually was in the township at the time of that report? A. Yeah. Actually, on page three of the report,

theres some references to the numbers that we had come up with. And specifically, that we determined that

there were 14 acres of vacant developable land within the township, after accounting for environmental constraints, deed restrictions, approvals and other encumbrances. And then -- and after accounting for

undersized noncontiguous lots in each of the various zone districts, we calculated that there was about 10.8 net developable acres within the township. And thats

specified, or presented, in the table on that page. Q. And what was the total amount of vacant

developable land that the NCNBR analysis provided?

Mr. Slachetka - 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.

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Id have to go find it in the report, if you give

me a second or two. Q. If you take a look at --

Yeah, if you have a specific reference. Q. -- just below that table on page three, or I dont think the page is actually

the third page. numbered. A. Mine is.

Yes, the difference between the NCNBR

analysis and the T&M analysis is approximately 208.2 acres. They, in essence, they identified about 20

times more vacant developable land than we had identified in our analysis. Q. Now, did you try to figure out what it was

that NCNBR considered to be vacant developable land? A. Yes. And I think we identified a series of things

that they identified, including, I think you mentioned in your arguments with regards to the motion, things like the fact that the Parkway right-of-way was identified, or portions of the New Jersey -- or the Garden State Parkway right-of-way was identified, the front lawn of the municipal building. Lawned areas of

developed property were identified as vacant and developable land within the township. Theres a

variety of other sort of odd usage of the term vacant developable land by the BNC -- NCNBR.

Mr. Slachetka - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. Q. Do you have an understanding of how NCNBR

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prepared this analysis of vacant developable land? A. Yes. Q. Oh. They basically have, as I said, -Well, first of all, how do you know that? Well, first of which, we know it in part by

reviewing and evaluating their report on behalf of COAH, which is one of the appendices of the COAH report, in terms of the methodology. But we also know

it based upon, as I mentioned, that we did an OPRA request and saw their -- or at least got that information, the datasets available for the land coverages that they used. Q. Now, is that -- are the results of that OPRA Look at Appendix A. That is correct.

request attached to your report? A. Yeah, I believe it -- yes. Q.

Could you take us through that?

Well, -Q. What was COAHs response to you?

They -- this was the va -- they provided us with a When

coverage and also they identified the coverages.

I say coverages, part of the GIS layers are called -sometimes called coverages. The coverages that were

used to calculate or identify vacant developable land within the township. Q. And did you prepare any charts that dealt

Mr. Slachetka - 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 with or show the areas that COAH had determined, or NCNBR had determined were vacant developable land within Cranford Township? A. Yes.

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Actually, the two maps that are attached in

Appendix B map out the lands that were identified. Q. Well, could you show -- could you talk to us

about the first map? A. Yeah. The first map -- actually, theyre

basically the -- they map out the same layer, or same coverage. maps. The first one is done with regards to tax

So, it may be a little clearer to see that. And the

Its based on parcel data from the GIS system.

second map is based on an aerial photograph of the township. Q. Well, lets look at the first map. Could you

locate the Garden State Parkway as it goes through Cranford on this map? A. line. Yes. Its the area -- its sort of a sinuous Its -- and

Its sort of irregularly shaped.

basically outlines the right-of-way of the Garden State Parkway would be with the -- it looks like its the cart way of the Garden State Parkway is taken out of the layer. But, basically, its a sort of red sinuous

line that kind of extends from top -- or from bottom to top in the eastern end of the township, or, in other

Mr. Slachetka - 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 words, on the right-hand side of the map.

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And you can

see the cart way line, which is basically where the road -- roads exist within the Parkway. a little bit more. Its probably

Its shown as an uncolored segment

and its surrounded on either side by corresponding red lines, which are portions of the Garden State Parkway right-of-way. THE COURT: So, just so were clear. The

right side of the map -THE WITNESS: THE COURT: Yeah. -- and that would be the Garden

State Parkway in the center, the white? THE WITNESS: THE COURT: Thats correct. Youre --

Okay. Youre pointing to exactly

THE WITNESS:

where -- what I was referring to on the map, Your Honor. And the white shading, or the white space

between -- sandwiched between the two red layers, is the proximate location of the roadway. The remaining

portions on either side of it, with the exception of adjoining parcels that may be privately owned, but for the most part, those red -- that red area consists of the right-of-way of the Garden State Parkway. CONTINUED BY MR. WOODWARD: Q. Now, if you would look above, in the north --

Mr. Slachetka - 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 I would say the upper right-hand corner of the northeasterly quadrant, if you will, theres a fair amount of red shaded area. properties? A. Yes. Can you identify those

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Actually, its in the proximate area of the

township that were talking about with regards to where the CDA site is located. In fact, you can identify a

portion of that -- well, just to orient everybody, the single family residential developments surrounding the area have been taken out and you see them. theyre shown in white. Basically,

Some of the other areas that

are shown in red are either wooded areas, areas of the stream corridor or other vacant land thats associated with existing developments, such as lawned areas of the rising development and other areas. Interestingly

enough, the portion that was clipped out that is shown in white, with regards to the CDA site, is the approximate limit of development or disturbance currently within the CDA site on either -- for either -- for both of the office buildings. Everything else,

including the areas of floodplains and flood hazard areas that weve been talking about, are actually shown in red and considered vacant developable land by the -by this analysis. Q. But is, for example, right on the upper

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

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right-hand corner, theres a fairly large area of red. Do you know whether thats municipally owned property? A. Yes, thats the recycling center, or a portion of

that is the recycling -- shown is the recycling center. Q. Now, in the center of this picture is a line

that runs and sort of snakes all the way to the bottom from the top. A. Could you tell us what that is?

Which line are you referring to? Q. In the center, theres blue and red mixed Do you see that? I mean those are areas -- the blue areas are

together. A. Yes.

areas that are within, I believe, if I can read the legend right, flood hazard and floodplain areas, primarily associated with the Rahway River. And then

the red parcels are also other parcels that were identified -- within that blue area are various red parcels that were identified as developable parcels, a combination of public and private parcels that were shown as vacant developable land in red from CDA. Im sorry, from the NBNBR (sic). Q. Now, when you submitted this report to COAH Or,

did you get a response? A. I dont know if I received a response or the

township received a response directly. Q. Have you ever seen a response?

Mr. Slachetka - 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.

27

I dont recall whether or not we received a direct

response, but if you have something that you want to show me. Q. With respect to the data that was used by

NCNBR to prepare the analysis for the Council on Affordable Housing, do you have comments on the quality of that data? A. Oh, yes. Q. I mean and theyre --

Could you tell us what they are?

Well, I mean, first of which, I mean I think this

is a gross misinterpretation in terms of the true extent and nature of the vacant and developable land within the township, with the understanding that the NCNBR consultants basically were charged with providing a statewide analysis of vacant developable land. So,

to do a job of that extent, they obviously had to rely on some gross data and information thats available at the statewide level. However, when you analyze it and

evaluate that data on a specific municipal-by-municipal basis, which I would anticipate would have been a very significant job for NCNBR to do. When you get to that

level and you actually know, based on practical experience and understanding, what the true nature of vacant developable land is in a community, both the land thats constrained by development, lands that not

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

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-- are really not practically developable, such as lawn areas, the Garden State Parkway right-of-way, you can see how unreliable that that data and information is to rely on making a -- making any reasonable projections of potential development within a community. So, we

feel -- you know, we felt that it was a lack of reliable data, a misinterpretation of the data that was used and available, and it really resulted in an overestimate in terms of the amount of developable land and then, in turn, the potential development capacity for the community. Q. And did you make any particular

recommendations at your end of the report to the Council on Affordable Housing as to how they should deal with these inaccuracies? A. Yes. Basically, we felt that the -- first of

which, the recommendation was that this data and information should be -- should not be relied on and that, basically, the townships and any municipalitys evaluation and analysis to develop a plan would be a much more accurate methodology and approach to make these projections. And in terms of the townships

overall recommendation, that, basically, COAH not rely on that data and information. Q. By the way, to go back to D-107 for a moment,

Mr. Slachetka - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. the Bloustein Report. Have you found in your

29

experience, since its been issued, that any in the planning community rely upon that? A. In what respect, Mr. Woodward? Q. For use in terms of making projections and

determining what a municipalitys affordable housing obligation should be? MR. EISDORFER: grounds of hearsay. MR. WOODWARD: Your Honor. Hes experienced in the field, Your Honor, object on the

Questions like that have been asked of Mr.

Kinsey just as well. THE COURT: Well, -Whats your professional

MR. WOODWARD: opinion, in terms -THE COURT:

Why dont we ask him first

whether he has any knowledge or experience? MR. WOODWARD: Fair enough.

CONTINUED BY MR. WOODWARD: Q. Do you have any knowledge or experience with

respect to the use of the Bloustein report since its come out? A. Yes. Q. And what is your experience?

Well, its -- it, again, the Bloustein report is

Mr. Slachetka - 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 specifically being used in terms of an evaluation of the state plan and growth projections in relationship to the state plan. However, again, it is -- its a

30

further indicator and understanding that -- and, really, sort of an indicator of the consistency of the approach, in terms of the nature of development la -developable land within communities and ultimately, in terms of the order of magnitude that -- of growth and development that is actually occurring or will be actually occurring within the state. So, to the extent

that, you know, certainly I, in my evaluation, will rely on it as really as a supporting piece of information. Its not that we rely on it specifically

to do any COAH analysis, but that, again, it just is -its an independent and further confirmation of information that were evaluating and weve presented. Q. Now, Im going to show you next whats been

marked as -MR. WOODWARD: Oh, Im sorry, Your Honor. Oh,

Id like to offer D-40 into evidence at this time. its in evidence already, right? MR. EISDORFER: MR. WOODWARD: MR. EISDORFER: THE WITNESS: D-40, yeah.

Your Honor, I believe -Its in evidence, Your Honor. I believe D-40 is in. Do you want it back, Mr.

Mr. Slachetka - 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. Woodward? MR. WOODWARD: THE COURT: Thank you.

31

In evidence, thank you. Yeah, yeah.

MR. WOODWARD:

CONTINUED BY MR. WOODWARD: Q. Next, I want to show you whats been marked

as D-158 in evidence, the planners report. A. Actually, Carl, could -- thats my bottle of water

on the floor right behind the -Q. Ill get it for you. Be careful. Thank you very much.

Thank you. Q.

Now, did you prepare this report, D-158?

Yes, I did. Q. And could you tell us what it is and what was

the purpose of preparing it? A. Yes. Its entitled Planners Report, as well as

subtitled Crediting Update and Prior Round Obligation, with reference to the current case. it was prepared on behalf of Cranford Township by myself and its dated July 1st -- excuse me -- 2010. Q. report? A. The purpose was to -- well, several purposes. And what was the purpose of preparing this And

First of which, it was to look at the -- and evaluate the potential for crediting that would be available to

Mr. Slachetka - 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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the township under the assumption that the township was not seeking a vacant land adjustment, if, in fact, it was the case that the township was not seeking a vacant land adjustment and needed to address fully its prior round obligation. And in evaluating the various

compliance mechanisms, that, either through credits or other compliance mechanisms, what would be the order of magnitude that the township would be in, or what status would the township be in, in terms of addressing its prior round obligation in the -- under COAH regulations. Q. Now, lets go back just for a second. You

previously worked for COAH, correct? A. Yes. Q. Yes. And you were a principal planner at that -Yeah, chief of planning services and then

principal planner. Q. And while you were there did you review

housing elements and fair share plans that were submitted to COAH? A. Yes, I did. Q. And did you also review crediting analyses

that were submit -- or, rather, vacant land adjustments that -- let me re -- withdraw the question. You

submitted -- you reviewed vacant land adjustment

Mr. Slachetka - 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. requests submitted by municipalities under the COAH regs? A. Yes, I did. Q.

33

And did you also review requests for credits

that would be sought by municipalities for affordable housing, that it either was constructed or about to be constructed? A. Yes. Q. Now, could you tell us -- could you take us

through generally the report, what it does and what it shows? A. Sure. Q. What conclusions you drew?

And again, the report evaluated the townships

potential available credits that it had, as well as evaluated some of the compliance mechanisms that had been discussed as part of the court case and as part of the townships attempt to address its affordable housing obligation. And again, as I said, it was

really the evaluation was presented under the assumption or in the context of trying to, I guess the best -- probably the best way to categorize it would be filling the bucket, the prior round bucket initially before going into any other component. And with the

intent of establishing and evaluating the order of

Mr. Slachetka - 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 magnitude that, one, the township was -- would be in compliance; two, evaluating the compliance planner,

34

because ultimately the court is going to be responsible for undertaking and completing the compliance plan. And then, ultimately, looking at that and really using this as a foundation to evaluate what would be needed, if anything, within either the CDA site or other parts of the townships compliance plan to fully address its -- the townships obligation. things. So, we looked at several

We looked at the townships rehabilitation Wed look at opportunities for crediting

obligation.

that the township had, including looking at supportive and special needs housing on behalf of the township. We evaluated the prior round obligation and some credits that were available to the township via the prior round obligation. Theres various appendices

that are attached that provide supporting information and data with regards to that analysis. Q. And tell us about what you did with respect

to the rehabilitation obligation and how that was determined and what the results of your study were. A. Sure. Just to kind of set the context, the -- as

we talked about previously, the rehabilitation obligation is sometimes commonly called the rehabilitation share by COAH and COAH assigns or has

Mr. Slachetka - 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 page two.

35

assigned a rehabilitation share to municipalities based on various census data surrogates that it uses to estimate the amount of units, the number of units that are in need of rehabilitation within a community. for Cranford Township COAHs estimate of the rehabilitation share was 55 units. And the surrogates, And

you know, include overcrowded units built prior to 1950. They look at units that lack complete plumbing

facilities and units lacking complete kitchen facilities. And again, those are three pieces of

census information COAH uses as surrogates to make a determination on that rehabilitation share. THE COURT: Then --

Are you referring to -- youre

referring to page two of your report? THE WITNESS: Yes, I am, Your Honor. Yeah,

The second paragraph summarizes that

information. BY THE WITNESS: A. Basically, COAH is not going out and doing an

assessment of each individual municipalitys actual rehabil -- number of rehabilitation units, or units in need of rehabilitation, because, again, they are doing this on a statewide basis. They have to rely on some

reasonable surrogates and theyve continually relied on these and similar surrogates, depending upon the census

Mr. Slachetka - 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. information. In 1990 they used a series of surrogate

36

-- census surrogates and established a rehabilitation obligation for communities in 1990. When they adopted

their regulations in 2004, they updated that and created a new set of rehabilitation share numbers corresponding to the 2000 census. Q. And what was it that you did to either

confirm or distinguish the actual rehabilitation share that Cranford had versus the number that COAH had? A. Under COAH regulations the -- they permit a

municipality to actually go out and do an exterior survey of units within the community to make a determination, in fact, whether or not there are units in need of rehabilitation. And we went out with

Richard Ballucsio, I believe his name is pronounced, the construction -Q. Belluscio. With a name like ??, I, you

Belluscio, sorry.

know, I should be more attentive to how peoples last names are pronounced. The -- we did go out and we did We being COAH -- excuse me,

an actual exterior survey.

T&M staff went out and did a survey of the units within Cranford Township. Q. And what were the results of that survey?

The results indicated that -- ultimately, the

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

37

results indicated that the township was eligible for an adjustment downward from 55 to actually a 53 unit rehabilitation component or rehabilitation share. Q. And how was that determined?

Based on the exterior survey, we made a

determination that there was about 74 units within the township that had some level of -- based on an exterior examination, some level of need for rehabilitation. And COAH has a survey form that we followed and evaluated the -- we evaluated the units, along with Mr. Belluscio, with regards to whether or not those conditions, those exterior conditions would suggest that the unit would be in need of rehabilitation. We

dont do -- you dont do an interior survey and its separate and different than the surrogates that COAH uses, which is the plumbing and kitchen and overcrowding surrogates. Q. So, what was the total number of units that

you determined needed rehabilitation? A. It was 74 units. And then what we did was, based

on the COAH methodology, applied what -- whats called a PUMS multiplier and actually its developed by Mr. Burchells office, we were just talking about, the -Mr. Burchell from the Center of Urban Policy Research. That multiplier is established and theres different

Mr. Slachetka - 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 PUMS multipliers throughout the state. But its done

38

on a regional basis and Cranfords within a region that the multiplier is identified as 0.714, which means about, you would anticipate that within Cranford Township, 70 percent, approximately, or 71 percent, approximately, of the units that were in need of rehabilitation have a low and moderate income household. Again, its an assumption based on the data

and based on the PUMS data or the, its called, I think, Public User Micro-data Sample. Q. And using the PUMS multiplier what did you

come out with in terms of the rehabilitation share for Cranford? A. Well, 52.8, or approximately 53, units in need of

rehabilitation that potentially would be occupied by low and moderate income households. Q. Now, did you make a determination as to

whether there were any rehabilitation credits that Cranford was entitled to against that rehabilitation share of 53? A. Yes. We had contacted the Union County and the

County Home Improvement Program and asked for a listing of units that had been rehabilitated by the county within Cranford Township since 2000. And that program

is administered by a private consulting group,

Mr. Slachetka - 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

39

Development Directions, LLC, who works for the county. And they provided us with a list of 15. So, we

identified 15 potential credits that the township would be eligible to receive but for rehabilitation activity within the township. Q. And was all the documentation under COAH

requirements complete as of the time you prepared your report? A. No. I mean we got the listing of -- from the

county, which is included in one of the appendices of the report. And we understand that there needs to be

some additional information and data, particularly the time of the -- when the units were rehabilitated and some other information that needs to be compiled, to fully determine whether or not the units are -- would be credit worthy for the township. Q. Now, Mr. Kinsey, in his testimony, claimed

that the program that Union County runs for rehabilitated -- rehabilitating premises, properties, which Cranford uses, is not compliant with COAH regulations. A. Yes. Do you know particularly about that?

COAH has not certified the Union County

program as being eligible as a program that a municipality would be able to use moving forward to undertake a rehabilitation -- to address its

Mr. Slachetka - 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 rehabilitation share, or be the administrative entity that would be responsible to address a municipalitys rehabilitation share, for two reasons.

40

First of which,

the county program does not offer its services or does not offer rehabilitation opportunities for landlords for rental property. And then there was a -- theres

also the length of controls have to be consistent with the COAH standard. Q. Now, do you know, however, whether COAH,

nonetheless, has given credits for the Union County program or programs like the Union County program, even though they dont technically comply with the regulations? A. And I -- this is an important distinction between

-- we can talk about program eligibility, because, basically, from the COAH perspective, when theyre addressing and evaluating the rehabilitation share, whats important, from COAHs perspective, is that the -- a municipality, or township, or borough, or whatever, have in place or at least engage in whats called an administrative entity thats responsible for undertaking the program. They have to be qualified and

theres certain requirements that they have to have in place, including meeting all of COAH standards, as I said, for length of controls, addressing both rental

Mr. Slachetka - 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

41

and non-rental properties, as well as having the -- all the various administrative support, such as an operative and approved rehabilitation manual. So, from

COAHs perspective in the rehabilitation share, its important to have a program in place moving forward. And COAH has never really said, at any one point in time, that you have to fully address your rehabilitation share within the confines of a -- of the period of substantive certification, but you have to have at least have an opportunity in place for a property owners tenants who are interested in participating in the program in rehabilitating units to get -- have those rehabilitated. But thats a separate

and distinct requirement or issue from COAHs perspective than whether or not a unit is creditworthy. Even if the Union County program or other programs that may not necessarily be eligible to be that administrative entity, how -- if they, in fact, have rehabilitated a unit and it meets COAHs criteria for being a rehabilitation credit, that that unit that has been rehabilitated is creditworthy. So, theres a real

important distinction that COAH places between the programmatic requirements as to whether or not a unit is creditworthy or not for rehabilitation purposes. Q. Now, do you know whether Cranford has

Mr. Slachetka - 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. previously sought and obtained waivers, or a waiver, from COAH regarding operation of a previous noncompliant with the regulations rehabilitation program? A. Yes. Q.

42

Im going to show you what has been marked as

D-13 and D-14 for identification and Im going to ask you if you can identify these documents. A. Yes. Q. What is D-13?

D-13 is a letter to Shirley Bishop, who was the

Executive Director of the Council on Affordable Housing at that time, which is October -- the letter is dated October 25th, 2001, requesting a waiver in relationship to the townships rehabilitation program. Q. And what was the substance of that letter?

Basically, the letter requested a specific waiver.

At the time Cranford Township was under COAHs jurisdiction. It had petitioned COAH for substantive

certification of its fair share plan in June of 2000. And thats the cycle one and cycle two plan, the prior -- theyre commenting on the prior round plan. had, at the time, an actual rehabil -- local rehabilitation program that the township was running. However -- in fact, it had rehabilitated 170 units And it

Mr. Slachetka - 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. within the township. And as part of that cycle one,

43

cycle two plan the townships rehabilitation share, at the time they called it the rehabilitation component, was 104 units. So, what the township was seeking was

credits for units that had been actually rehabilitated within the township, but because the townships program, again, did not meet all of COAHs criteria, in terms of being an eligible program, the township had to prove certain that -- certain facts, such as the actual length of time that a tenant or a property owner lived -- an actual low and moderate income household lived in that unit. And the request of the waiver was, based on

the documentation that the township had, the township was requesting a waiver of those actual limits, because in actuality, the low and moderate income household had, in fact, resided for an appropriate term. Q. And do you know whether COAH granted the

request for the waiver? A. Yes. Q. Yes. Q. Do you recognize that document? Take a look at D-14.

Yes, I do. Q. What is it?

Its the actual decision by -- and a variety of

Mr. Slachetka - 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

44

other supporting documents that are attached, including the original request and some correspondences between COAH and the township. But its the approval of the Its dated December 4th,

townships waiver request.

2001, prepared by Sean Thompson, who was the principal planner at the time. And theres a report, a COAH

report, which specifies the framework in which COAH approved that waiver request, and the resolution of COAH -- the actual COAH resolution is dated December 12, 2001, which approved the waiver request. Q. Now, do you have an opinion, based upon your

experience and knowledge of the Council on Affordable Housing, and your experience in this field as a professional planner, as to whether or not the units, the rehabilitation units that have been involved with Union County, the 15 that are sought, should be credited? A. Yeah. Assuming that we have the full information

that we need from the county with regards to those 15 units, that its my opinion that the township could seek a similar waiver, if we were under COAHs jurisdiction, a similar waiver from COAH or a similar approval from the court for those units that in actuality met all the credit requirements for a unit in need of rehabilitation.

Mr. Slachetka - 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.

45

And now, one other thing that was proposed by

the Plaintiffs here is that -- let me back up a second. So, whats the basis for your opinion, if you could state that? A. Im sorry? Q. The basis for your opinion that you just gave

regarding whether or not they should be credited. A. Well, again, because the units -- assuming that

the units meet all the criteria, in terms of length of -- the length of time that the units occupied by the low and moderate income household, the amount of money spent, the nature of the rehabilitation, that it addresses a major system, and all the other elements of the -- of COAHs criteria for a unit in need of rehabilitation, that, in fact, the township would be eligible for that credit. Again, drawing a very

important distinction between the actual eligible credit as versus a -- the eligibility of the administrative agent for any rehabilitation program moving forward. Q. Now, with respect to affordable housing, its

been proposed -- or, rather, rehabilitation housing. Its been proposed by the Plaintiffs that the construction of new affordable housing can be used to satisfy the rehabilitation obligation of a

Mr. Slachetka - 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. municipality. A. Do you understand that?

46

I understand the concept. Q. Do you agree with it?

Well, in actuality, I think the -- from my Yes, you can.

perspective, you know, can you do that?

But in -- from a prac -- very practical perspective, really its not fully addressing the rehabilitation obligation or really addressing the needs of those low and moderate income households that occupy a unit in need of rehabilitation. In essence, if youre just

creating a new affordable housing unit someplace else, its not addressing the actual low and moderate income household that resides in the existing unit in need of rehabilitation. So, basically what you have is, youve

got the creation of a new affordable housing unit and then youve got the units that are still in need of rehabilitation. And when it comes around for the next

round, or next cycle, or evaluation of the rehabilitation obligation, which will probably be coming -- were now into 2010, were in the 2010 census, those units that re -- those units in need of rehabilitation, based on the census surrogates that COAHs used and COAH may be using in the future, are going to be there. So, youve got the creation of a

new unit, but youre really not fundamentally

Mr. Slachetka - 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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addressing in practice, or in a very practical way, the unit thats in -- the units that are actually in need of rehabilitation. Q. Now, moving on to the next area of your

report, supportive and special needs housing crediting. Can you tell us what you did there? What you

evaluated, what you discovered and what your conclusions are? A. Right. In our evaluation and review we became

aware that, in fact, the township -- within the township there were four, whats commonly known as group homes, but what COAH categorizes as supported -supportive and special needs housing, within the township. There were four and on the top of page four

there are four of those, not commonly -- Ill call them group homes, Your Honor, for the sake of our discussion. Q. Those group homes are listed on page four.

And can you describe what it was -- what your

evaluation of these group homes were and whether or not you have an opinion as to whether they should be credited? A. Yes. Q. And when they should be credited? We did two things. We did, in evaluating

Right.

the potential creditworthiness of those group homes, or

Mr. Slachetka - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. the special needs housing, we contacted at the state

48

level the various state agency regulating entities for the group homes. We also received information from the

tax assessor, the townships tax assessor, with regards to the status of the group homes. In fact, in two

cases, I believe, that they -- the tax assessors office found -- provided us with the licensing information that was on file. And then we contacted

the group home providers to obtain additional information. Q. And is -- how many group homes did you find?

There are four separate group homes and within

each -- within those group homes theres a total of 20 bedrooms and as noted previously to the court, that the unit of credit is the bedroom for a group home. Q. Now, do you have an opinion as to whether

these units would -- these special needs housing units would satisfy or would receive credit from the Council on Affordable Housing? A. Yes. Q. Yes, I do have an opinion as to -And can you tell us what it is? The -- its my opinion that

Yeah, sure.

ultimately all four of the group homes will be creditworthy from the townships perspective. There

are some additional information that needs to be

Mr. Slachetka - 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. provided by the providers and to have a complete, a full assessment of that, but from the information at least that weve seen to date, in my mind it suggests that all -- and based on my experience, suggests that all four of those group homes will be found to be creditworthy. Q. operation? A. Yeah. Theres, at least in some of the cases, Now, do you know when these units went into

49

theres -- there are -Q. And I direct your attention to Appendix C. And theres -- excuse me, this is just all So, Ill try to --

Right.

folded up in here. Q.

Take your time.

Ill try. THE COURT: Youll just have to tell me which

one is Appendix C, because I cant -THE WITNESS: MR. WOODWARD: THE WITNESS: as page eight. Appendix C -Page eight, Your Honor. Its on page -- yes, identified

Its after the rehabilitation -- the

list of rehabilitation units from the county and after the -MR. WOODWARD: Your Honor. This is what it looks like,

Your Honor, here, I have an extra copy.

Mr. Slachetka - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Maybe -- is this it? Yes, thats --

50

MR. WOODWARD: THE COURT:

Thats -- okay.

CONTINUED BY MR. WOODWARD: Q. All right. So, can you tell us what dates

these units went into -- or are considered to have been in operation? A. Sure. I also want to look at the table, too.

Okay, for the -- just kind of working down through the crediting information thats provided. For the first

of the group homes, which is the Surf Center of New Jersey, which is the 6 Hollywood Avenue group home, which has -- excuse me, its located at Block 514, Lot number 3. Excuse me, sorry. The CO date, or the date

of occupancy, is not available on that group home as of yet. Going to the -THE COURT: right thing. I still dont think I have the

Yeah, I dont have that one. You dont?

MR. WOODWARD: THE COURT:

I mean Im not on the right page. All right. I have another

MR. WOODWARD:

copy if youd like to use it. THE COURT: is that what you -MR. WOODWARD: Yes. It says Hollywood Okay. Surf Center of New Jersey,

Mr. Slachetka - 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 Avenue. THE COURT:

51

Okay, Number 6 Hollywood Avenue. Yeah.

THE WITNESS: THE COURT:

Sorry, I have it. Oh, thats okay. And these are

THE WITNESS:

the forms that are -- theyre typical, the COAH survey information forms with regards to the information for each of these facilities. THE COURT: BY THE WITNESS: A. And for this one -- and Surf Center of New Jersey The first one is Okay, I have it.

runs two facilities in the township.

being at 6 Hollywood Avenue, and as I indicated, that we dont have the actual CO date from that -- for that information. We do have -- have been in contact with

Pauline Simms of Surf Center, with regards to information that we have requested and have provided them that, this form as well. The second is the second

Surf Center of New Jersey Group Home, which is the one at 125 Dietz Street, which is Block 569, Lot number 8, and that CO date is identified as June 10th, 2010, and had been a previously purchased back in 2005, but it had been on -- undertaking -- or they had been under -Surf Center of New Jersey had been undertaking renovations between 2007 and 2010. And theres a tax

Mr. Slachetka - 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. assess -- a tax record associated with that property and its identified. Theres also a property

52

description thats attached showing the tax assessment information from 6 Hollywood Avenue, in Cranford, identifying it as a nonprofit and charitable property. And -Q. Slachetka. A. Yes. Q. Avenue. A. Yes. Q. You mentioned an attachment from the You mentioned -- thats the one on Hollywood By the way, going back to the first one, Mr.

assessors office. A. Right. Q. And thats what I was just getting into.

Would you take a look, theres an assessment Do you

data column that talks about exemption granted. see that? A. Yes. Q. What was the date of that?

Exemption granted was -Q. Yeah. Q. Well, let me put it this way. Well, yeah, -How long has Surf Center owned it? And

Yeah, thats from 1990 -- August 24th, 1998.

Mr. Slachetka - 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. theres also a license attached as well. I think the

53

problem is, Your Honor, that the attachments may be a lit -- may be out of order on this. Q. Well, in any event, in terms of determining

when the certificate of occupancy was issued, -A. Yeah. Q. -- that can be obtained from the

municipality, correct? A. Thats -- yes, that can be obtained from the But its my opinion that, in fact, this

municipality.

facility would ultimately meet the full COAH criterion. Q. Avenue. A. Yes. Q. The third one. And theres, by the way, Now, moving on to this one at 48 Johnson

Ill pull that out.

theres also a tax assess -- the tax assessment data for the Dietz property as well thats attached to that as well. The 48 Johnson Avenue property, which is run

by Community Access Unlimited, thats -- that CO was filed -- the CO date is February 11th, 1999. Q. So, this has been operating as a facility, a

special needs facility for that length of time, is that correct? A. Yes. And theres a license and -- a license

Mr. Slachetka - 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. attached, a copy of a license attached, and also the tax information, tax data, tax assessment data thats attached to that as well. Q. Now, the last one of these is located at 54

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Johnson Avenue, correct? A. Thats -- that is correct. Thats owned and

operated by the -- again, the sponsor is identified as Creative Property Management and it is 54 Johnson Avenue, and its CO date is August 25th, 1999. Q. So, --

And again, theres a license attached as well and

also the similar tax assessment data thats attached as part of that facility. Q. Now, turning to next to your Appendix D, was

there an affordable housing unit created by the variance issued by the board of adjustment? A. Yes, that is correct. Q. Could you tell us about that?

This was an applicant for a mixed use development

proposed and ultimately it was accepted and approved, in February of 2009, a, again, a mixed use development with one affordable housing unit in -- as part of the -- that approval. Q. And do you have an opinion as to whether this

qualifies under COAH regulations as a creditable unit?

Mr. Slachetka - 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. Yes, this would definitely qualify as a

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creditworthy unit. Q. And I want to show you -- oh, youve attached Okay. Im going to show you

that to your report.

whats next been marked as D-74 for identification. Its a letter dated January 8, 2009, with, below it, a redevelopment agreement between Cranford Redevelopment. Have you ever seen this document before? A. Yes, I have. Q. What is it?

This is the redeveloper agreement between the

Township of Cranford and whats identified as Riverfront Developers, LLC, with regards to the redevelopment of the, whats commonly known as the Riverfront Redevelopment Plan Area within Cranford Township. Q. And what are the details of that particular

development, particularly in respect of the provision of affordable housing? A. Again, this is a mixed use redevelopment, which is

located across the street from the train station, in Cranford Township. And its one of the projects we

were involved in reviewing the various proposals for this project. And it basically provides for, as part

of the redeveloper agreement, it provides for the

Mr. Slachetka - 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. creation of 16 affordable nonage restricted family rentals as the -- as part of the project. Q. And would these be creditworthy under the

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COAH regulations? A. Yes, they would be clearly creditworthy under COAH

regulations. Q. And when would they be creditworthy?

Well, we have -- because we have a redeveloper

agreement in place, both the rental units would be immediately creditworthy. Any eligible rental bonus

credits would be creditworthy as well. Q. Now, as part of your exercise which you

conducted in this report, and if all of these units were applied to the prior round obligation of the township, what sort of conclusion do you draw in terms of what obligations for prior round remain -- would remain? A. Yes. Q. Yeah. Assuming that this was to be applied. And thats -- my conclusions are listed in

the table on page five in the report. Q. Sure. Could you take us through them? As we know, Your Honor, we have a prior And the various

round obligation of 148 units.

compliance mechanisms that weve talked about -- excuse

Mr. Slachetka - 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 me -- included the special needs housing that we discussed, the 20 units of credit that would be available to the township for those four group homes. We have the Lincoln Apartment senior rental units. Now, in this instance its a slightly different calculation, if we assume that we are not accepting a vacant land adjustment. And again, for the sake of

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argument, under the assumption that we had as part of this analysis, the formula is a slightly different one. Typically it would be 25 percent of the realistic development potential or 25 percent of the prior round. In this instance its a prior round obligation, plus the rehabilitation share, minus any rehabilitation credits. So, we assume the 53 and we took the 15 So, we had a -- we

credits, rehabilitation credits.

allowed for 46 units, rather than the 37 that we had been talking about. The interesting thing about this

is that, just for the sake of argument, if the township wasnt eligible for a certain amount of rehabilitation credits against its actual obligation, then the actual amount of senior credits, the rental credits that they would -- the township would be able to take would actually be larger. So, its going to -- its an

interesting relationship that COAH has established with this. The same thing as if the rehabilitation share

Mr. Slachetka - 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 was determined to be 55 instead of 53, again, the

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township would be eligible to take more senior credits for the prior round. 555 South Avenue, we -- which was

based on a settlement agreement, the proposed settlement agreement as part of this case, we identified as 24 nonage restricted family rental units. The Riverfront Redevelopment Project, as part of the redevelopment -- redeveloper agreement, with 16 affordable nonage restricted rental units. The rental

bonus credits that the township would be able -eligibly receive for those two family rental projects would be 37 renter bonus credits. And that is up to

the maximum, as I mentioned before, that you could only take up to 25 percent of your obligation as bonus credits under COAH regulations. And then the

additional affordable unit approved by the zoning board was one -- another additional credit. So, there had

been a total of 144 potential credits, assuming all the various components of the credits, the affordable housing activities undertaken by the township to date were assigned to the prior round obligation. So, there

would be a remaining prior round obligation of four units. Q. Now, with respect to -- and Im sorry, you

mentioned the settlement of Lehigh Acquisition, which

Mr. Slachetka - 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. would create 24 units. that. I neglected to ask you about

59

What is your understanding of where those 24

units come from? A. Again, its based on the proposed settlement

agreement, which is based on the set aside that was agreed to, or is agreed, or proposed to be agreed to by the plaintiffs in that case. Q. All right. And your assumption for credits

assumes that that settlement goes through and is ultimately approved by the court. A. Yeah, with the understanding that the court has

the responsibility for the full compliance plan, based on its, you know, based on its responsibility in this case. Q. And assuming that all of that goes through,

would Cranford, under COAHs regulations, be entitled for credit for those 24 units? A. Oh, certainly they would be entitled to credit for

those units. Q. And would those 24 units be eligible for

prior round credit, credit in rounds one and two, in the absence of this litigation? A. In the absence of the litigation? Q. Yeah. If Cranford so desired. If you were under COAH jurisdiction and

Oh, yeah.

Mr. Slachetka - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you had a settlement agreement, or an agreement, COAH allows you to basically place these units within the prior round obligation or the growth share, depending upon the nature of the townships or municipalitys program.

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COAH is very flexible in terms of how youre

able to -- within certain parameters, how youre able to frame out you fair share plan. So, yes, you would

be able -- be eligible to, if they were COAH eligible credits, youd be able to, for this type of project in particular, youd be able to place them in the prior round as well as the growth share, depending upon how you wanted to structure your plan. Q. Now, Im going to direct your attention to Are you

another matter, which relates to set aside.

aware of the following language from Mount Laurel II, quoting at page 279 to 280. What is a --

What is substantial in a particular case as to affordable housing will be for the --, which is my insertion, -- for the trial court to decide. The court

should consider such factors as the size of the plaintiffs proposed project, the percentage of the project to be devoted to lower income housing (20 percent appears to us to be a reasonable minimum), what portion of the defendants

Mr. Slachetka - 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. municipalitys fair share allocation would be provided by the project, and the extent to which the remaining housing of the project can be categorized as least cost. Are you familiar with that quotation? A. Yes, I am. Q. And do you have an opinion as to whether or

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not this project should have a 20 percent set aside or the 15 percent set aside as proposed by the Plaintiffs? A. I do have an opinion on that. Q. And what is your opinion?

And my opinion is that a 20 percent set aside

should be applied to this project, not the 15 percent that is being proposed by the Plaintiff in this case. Q. And why is that?

Well, Your Honor, its based on -- and it kind of

goes hand-in-hand in terms of the evaluation of the credits in terms of the order of magnitude of need. From my perspective, what we need, what -- and from a straight planning perspective, again, relating it back to this whole issue of whats sound planning in this area. One of the -- and actually, Mr. Woodward, maybe

if we -- could we see the chart thats the four elements of the -- of sound planning? Q. Sure.

Mr. Slachetka - 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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From my perspective, whats critical here is that

I think if, under the assumption that the court makes a determination that this site is suitable in some part for affordable housing, whats critical is to strike the appropriate balance and to maximize the provision of affordable housing, to minimize the adverse impacts on the -- that this project would engender to the community, and overall, from the standpoint of a -from a planning perspective. So, that in that respect,

I think what we need to do is, to the extent practical, maximize the number of units, which I think is the number of affordable units, which would be a 20 percent set aside. And to the extent that the court made a

determination that this site was suitable, minimize the number of units that are provided at this site. I

think its important to, and I think this is a good important sort of point to make. And that is that if

this was not part of any Mount Laurel litigation, if we werent -- you know, if we were just doing this in the context of comprehensive planning for the community and for Cranford Township, understanding its role in the region and understanding its role as a transit village, there is no way, no absolute way that this site would ever be considered for multi-fam -- a high density multi-family residential development. Taking the Mount

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

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Laurel issue and taking affordability, the questions of the affordable housing litigation off the table, we would not be planning this for multi-family residential development. Wed not be providing this area as a high

density residential project, because it basically turns everything that we know about sustainability in planning on its head. Were not -- were locating this

far away from the town center, far away from the train station. So, in that respect, Im viewing this from

the standpoint of what -- if, in fact, were going to be addressing affordable at this location, affordable housing at this location, what is the proper balance. And from my perspective that if youre going to be doing any consideration of affordable housing at this location, the intent here is to maximize as much as possible the provision of affordable housing and thats consistent with what the statement that you read, Mr. Woodward. That thats the reason why its my opinion

that 20 percent -- a 20 percent set aside is an appropriate set aside. Q. Now, does this project as proposed, at a 15

percent level set aside by the Plaintiffs, create an additional growth share obligation for the town? A. Yes, to the extent that -Q. How is that? Can you explain it?

Mr. Slachetka - 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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Under the current growth share methodology that we

talked about previously, that you provide one unit for every five total number of units, or basically a 20 percent set aside, four market rate units, one affordable housing unit. So, if you use those ratios

in establishing the obligation, basically 20 percent of these units should be affordable, to basically counteract all the market rate units, or to address all the market rate units that are being provided as part of this project. At a 15 percent set aside, in Theres more

essence, what gets created is a gap.

market rate units than are created in relationship to the corresponding affordable housing units that are provided within this project. Therefore, that gap for

those additional market rate units engender their own growth share obligation and their own growth share potential that needs to be assigned to the township. Q. And do you know how many -- in this case,

what that gap is, how many units? A. Its about approximately 104 market rate units, if

you apply the corresponding ratio. Q. So, if this ratio is applied, the township,

at the end of the day on the construction of this project, does it have to provide for additional affordable housing?

Mr. Slachetka - 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. Yeah, approximately another 20 or so -- a little

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more than 20 affordable housing units, based on the 20 percent, or the one to -- one out of five of those 104 units should be affordable units. Q. If the Plaintiffs proposal goes forward,

would those units be provided on this site? A. No, they would not. Q. Where would they be provided?

The township would have to make -- to apply, as

part of their compliance plan, they would have to somehow incorporate and address those units as part of their compliance -- total compliance plan. MR. WOODWARD: Thank you, Your Honor. I have

no further questions of the witness at this time. THE COURT: A good time for a break? All

right, well take about -(Off record. MR. WOODWARD: Back on record.) I had neglected to move three

documents into evidence and I just wanted to get them in before he starts his cross. And those documents are

D-13, which is the letter dated October 25, 2001, to Shirley Bishop; D-14, which is Marlena Schmidt, from the Council on Affordable Housing, dated January 9, 2002, and the executed redevelopment agreement between the Township of Cranford and Riverfront, which is D-74.

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -MR. WOODWARD: THE COURT: Yes, it is. D-8? MR. WOODWARD: already, Your Honor. THE COURT: Did you move that in? I think that was in evidence MR. EISDORFER: those documents. THE COURT:

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I have no objection to any of

Okay, no objection D-13, D-14 -D-74. And what about Plaintiffs

MR. WOODWARD: THE COURT:

D-74.

MR. EISDORFER:

Your Honor, I believe it was

Okay. -- it had already been moved

MR. EISDORFER:

in for the purpose of showing what the experts opinion is. THE COURT: Okay, wait. Hang on one second.

So, we have D-8, yes, that was in evidence on Friday. MR. WOODWARD: THE COURT: Yes. And then so today its D-

Okay.

13, D-14 and 74, right? MR. WOODWARD: THE COURT: Correct, Your Honor.

Okay, thank you. Thank you, Your Honor.

MR. WOODWARD: THE COURT:

Mr. Eisdorfer.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. MR. EISDORFER: Thank you, Your Honor.

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CROSS-EXAMINATION BY MR. EISDORFER: Q. Mr. Slachetka, you described Cranford has a

stable population, isnt that correct? A. Generally. Q. It has grown in jobs, hasnt it?

If you could show me some figures, I -Q. Well, let me show you D-66. You dont know

-- you dont have your own knowledge of this? A. Well, I know that theres some figures, but lets

see what they -Q. Well, why dont you give us the figures in

the report that you prepared? A. Sure. Q. D-66. What page is that?

This is table number seven, its page eleven. Q. Sure. THE COURT: All right, just let me find it. Im sorry, what page was it? D-66. Page eleven? Page eleven. Im looking at the narrative right there.

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

CONTINUED BY MR. EISDORFER: Q. So, now have you looked at D-66, --

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. Sure. Q. Yes. Q. -- page eleven?

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And would it be fair to say that between 2004

and 2006 the number of jobs in Cranford grew by 1400? A. May I see the -Q. Oh, youve forgotten it already?

No, I just want to look at the table. Q. Thats not in the table. Its in the

paragraph. A. More specifically it says that the Department of

-- lets see, with regard to the number of jobs that are located within the township, the New Jersey Department of Labor indicates that there was an average of 14,144 jobs located within the municipality in 2006, which is the latest available data. And it said that

this is up 1411 jobs, eleven percent, over the 2004 average of 12,003 -- 12,703 jobs. Q. So, its gone up. So, even in that two year

period it went up 1400 jobs, is that correct? A. Yes. But if you read a little bit further in that

paragraph, youd note that, based on our evaluation and analysis, that we were anticipating only about 400 and so jobs -- a subsequent increase of only about 400 and so jobs.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Im asking not about your projections, Im These are facts, right?

69

asking about facts. A.

Its information from the Department of Labor,

thats correct. Q. Okay. Now, has -- Cranford has zoned to

foster growth in jobs, hasnt it? A. Its zoned a variety -- its done a lot of

different types of zoning, some for nonresidential, some for residential zones. Q. Its created a large nonresidential zone.

And Im going to show you once again D-66 and ask you to look at Attachment DLAE, which is labeled Land Use Map. it? A. Yes, it is. Q. And the commercial and industrial are marked And this map is marked in various colors, isnt

in red and grey? A. Thats correct. Q. And it shows a big area of industrial and

commercial adjacent to the Garden State Parkway? A. Yes, that is correct. Q. And are you familiar with that? Are you

familiar with what that area is? A. Yes, its -MR. WOODWARD: Your Honor, hes injecting --

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it? A. Oh, yes, it is. A. A. hes interrupting the witnesss answer.

70 Perhaps there

should be a little slow down in the question and the answer response. MR. EISDORFER: Your Honor, I dont think the

witness is feeling like Im intruding on him. THE COURT: But I didnt hear his answer -Okay.

MR. EISDORFER: THE COURT: question and --

-- before I heard your next

CONTINUED BY MR. EISDORFER: Q. Okay. So, is -- theres an area of red and

grey thats shown on this map? A. Yes, there is. Q. And thats an area thats industrial and

commercial? A. Thats -- yes, it is. This is the existing --

youre referring to the generalized land use, or existing land use map. Q. Yes. Q. Yes. Q. Thats a big industrial office park, isnt And are you familiar what that area is? Thats right.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. A. Q. Created by Cranford zoning?

71

Yes, it -- yes, it was. Q. Now, lets go back and look at the housing

that -- the affordable housing thats actually been created in Cranford. A. Okay. Q. Lets go through your list. Now, tell me

which units are senior citizen units? A. The Lincoln Apartment units. Q. Now, how many of them are -- are there?

One hundred units. Q. Now, are there any others that have actually

been created in Cranford? A. The -- I mentioned the group homes previously, the

special needs housing that -Q. Okay. So, those are all for people who are

handicapped? A. Yes, theyre -- well, no, Im not sure if theyre Some theyre licensed for the Division of

handicapped.

Developmental Disabilities. Q. Yes. Q. Thats the handicapped. You know what developmental disabilities are?

I dont know if the term handicapped is being

used, but thats okay.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. Q. Okay. So, now, you also said that in 1979 What

72

the town had created some affordable housing. kind of housing was that? A. That was age restrict, or senior housing. Q. Yes. Q.

That was also senior citizen housing?

So, is any of this housing that has been

created since 1979 housing for families? A. The -- youre talking about the actual produc -Q. Actual production of houses.

The actual units themselves. Q. Actual units that have been produced.

Yeah, not that Im aware of, no. Q. Okay. So, we have a large produc -- creation

of jobs, but no housing thats actually available to families, is that correct? A. Well, except that to the extent that the

rehabilitation program actually rehabilitated units that were occupied by low and moderate income households and which COAH had made a determination that they actually were, so. Q. But those were households that were already

living there, right? A. need. That was addressing the townships indigenous

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think? MR. EISDORFER: That would be fine, but he Q. Thats right. So, those were hou -- thats

73

indigenous need, those were households that are already living there. So, when we talk about new stuff, were Now,

only talking about housing for senior citizens. you talk about the net density.

Is net density a term

thats defined in the Municipal Land Use Law? A. No, its not. Q. Is it defined in -- is it a defined term in

the regulations of the Council on Affordable Housing? A. No, but as I mentioned that the -Q. Is it a defined term in the regulations of

the Council on Affordable Housing? MR. WOODWARD: interrupting the witness. THE COURT: It would be helpful for me to get Objection, Your Honor,

the answer to your question, -MR. EISDORFER: THE COURT: Okay.

-- Mr. Eisdorfer, dont you

wants to answer a different question, not the one Ive asked. THE COURT: Well, but until we hear his

answer we dont know that. MR. EISDORFER: Okay. Yes, Your Honor.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 document. CONTINUED BY MR. EISDORFER: Q. A. A. CONTINUED BY MR. EISDORFER: Q. Go ahead.

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To the extent that its lis -- the term net

density is listed in the definition section, no, its not listed in the definition. It is a concept, as I

mentioned, as part of the vacant land adjustment process, Your Honor. Q. Now, when the Council on Affordable Housing

defines what are the criteria for how many housing units should go on an affordable housing site, in a section on inclusionary zoning, it defines it in terms of gross density, doesnt it? A. If youre going to show me the section, I -Q. Well, do you know?

Im not sure of the specific language youre

referring to, because theres a lot of regulations in the COAH regulations. Q. Okay. Well, lets mark this, since you dont

seem to know it. MR. WOODWARD: MR. EISDORFER: I believe its P-66. Oh, P-66. Its a two page

So, let me ask you to look at the document we

marked as P-66 for identification and look specifically

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. exhibits. THE COURT: Sorry about that. Oh, I thought yours were white. book. A. at the middle of the page 5:97-4.4. A. Four? Q. 6.4, rather.

75

Yeah, 6.4. THE COURT: What page? Okay. So, this is not in the

MR. EISDORFER:

And Im going to give the Court -THE COURT: Oh, I thought it was 66. Thats Defendants exhibits.

MR. EISDORFER: Were back on Plain -THE COURT:

Oh, this is different? Were back on Plaintiffs

MR. EISDORFER:

Its your P-6 -P-66.

MR. EISDORFER: THE COURT:

P-66 is not in your book -Thats correct.

MR. EISDORFER: THE COURT:

-- binders at all? Thats correct. Thank you.

MR. EISDORFER: THE COURT: THE WITNESS:

Okay.

5:97-6.4.

CONTINUED BY MR. EISDORFER: Q. Okay. Are you familiar with this?

Yes, generally familiar.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. A. A. Q. Okay. This is the regulation that governs

76

inclusionary zoning, isnt it? A. Yes, under COAHs third round regulations. That

is correct. Q. Uh-huh. So, let me look -- ask you to look

at the next page and ask you to look at paragraph three. Ill let you loo -- okay. No, actually, look Can you look at

down at the bottom of the first page. it? A. When you say first page, page 52? Q. Okay. Q. Sure. Q. Okay. Q. -- I. Q. Little i. Look at B-2 1. Page 52.

Why dont you read that, actually? When you say B-2 -B-2 --

Yeah, little i.

Inclusionary zoning and planning

area one shall permit residential development at a presumptive minimum gross density of eight units per acre and a presumptive maximum affordable housing set aside of 25 percent of the total number of units in the development.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Okay. So, now can you answer the question?

77

Does the Council on Affordable Housing define the number of units to go on inclusionary zoning sites in terms of gross density? A. Yes, in this context, certainly. Q. Now, the -- you defined net density and let

me make sure Im getting it right. A. Sure. Q. You define net density as you take the gross

density and you subtract out various kinds of environmentally constrained lands. A. That is correct. Q. Okay. So, and on this site you did, you gave

us various numbers, but basically you said Im going to divide the total number of housing units, of apartments, by the remainder of the non-environmentally sensitive land, as youve defined it. A. Is that correct?

That was one of the calculations I provided. Q. Isnt that the def -- the -- your definition

of what net density is? A. Yes. My initial calculation was that I took out

the various environmental constraints, the floodplains and the flood hazard areas, yes. Q. Okay. So, now --

And wetland areas.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. Okay. And so you get a figure for net

78

density thats very much higher than your figure for gross density doing it that way. A. Yes, it is. Q. And so, is this defined in the land use

ordinances of Cranford Township, that definition of net density? A. I dont believe so, but I would -- Id have to

double check to see. Q. Yeah. Q. So, now, lets make an assumption. Lets Okay. So, you dont think so?

make an assumption.

These developers happen to like to Thats actually something that

build midrise housing. theyre good at.

Lets assume that they make a

voluntary decision, a design decision, a marketing decision to build -- to design midrise housing just like this -A. Right. Q. -- on a site that is exactly the same size as

this, but has no environmental constraints. A. Sure, okay. Q. What would the net density be?

Well, if theres no environmental constraints, the

net density would be -- would correspond to the gross

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. density. Q. So, if there were no environmental

79

constraints, the net density and gross density would be exactly the same. A. Thats correct. Q. So, the net density doesnt depend upon the It depends upon the

characteristics of the units.

characteristics of the part of the site theyre not using, is that right? A. It de -- its dependent on the characteristics of

the site, yes. Q. Now, incidentally, from the point of view of

sound land use planning as you have defined it, doesnt -- dont high -- doesnt concentrated development, high net densities, have virtues? conserve open space? A. It certainly conserves open space, yes. Q. Okay. And it encourages energy efficiency? For example, doesnt it

Well, depending, but it -Q. Because it means you have fewer -MR. WOODWARD: Objection, Your Honor. The

witness is in the middle of his answer. CONTINUED BY MR. EISDORFER: Q. Okay, go ahead. I mean it depends on the nature of

It depends.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. the building design and whether or not youre, quote, conserving energy or not. Q. It has fewer outside walls for residents.

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Well, it depends.

I mean in this instance if you

take a look at your building, there is -- there are -theres a number of different articulations in the building that adds up to a greater surface area than if it was just a square building. Q. Now, from your planning perspective, you end

up with various figures for net density, ranging from 50 something to 80 something, isnt that right? A. The first calculation, as I indicated, was just

looking at it straight, taking out the environmental constraints, which included the flood hazard areas in its entirety. The second assumed that the ap -- that

the Plaintiff could construct a portion of the site within the flood hazard area and, therefore, thats what -- thats why there was a different net density calculation. Q. You assumed various figures, ranging from the

50s to the 80s, is that right? A. There was actually not various. There was

actually two specific.

There was one that was 80 and

there was -- approximately 82, and then there was another one that was approximately 54.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Now, are -- do you have an opinion as to

81

whether those densities, housing built at those densities, are intrinsically unsound planning? A. No. The context of -- the reason why I suggested

it was unsound planning was for a variety of different factors. I mean one was the total number of auto-

dependent units that were being introduced in an area that was not appropriate for it and a design and an approach that was not consistent with the concepts of sustainability as defined in various state statutes and plans and regulations, and a development that was going to be developed far away from the rail transit center and the transit village of the community. So, it was

really a much more comprehensive and nuanced analysis. Q. Well, lets go back and lets answer the Is -- from your perspective,

question Ive asked you.

is -- are those net densities intrinsically unsound planning? A. No. Again, the context in which we presented the

issue of net density was the nature of how somebody living in the community would relate to the development itself. Q. Lets try once again. Are they intrinsically

unsound planning? A. Again, its contextual. It depends on the

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. circumstance and the situation. Q. Well, are they never sound planning?

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Its a question of -- again, its a much broader-Q. Well, no, answer the question. Is it -- are

buildings of this density never sound planning? A. If this development was located in a mixed use

environment, in an area that -- where there was existing high density development, where there was a train station, where there was other transit, where there are basic services, clearly, this would not be -this would -- that would be significantly more of a sound plan than whats being presented here. Q. So, its not the building itself thats Its the location that you dont

unsound planning. like? A.

Its a variety of factors I think Ive outlined to

the Court. Q. Okay. Its not the building you dont like.

Its the location, right? A. Well, I did say that the building had a

significant mass and size that was pretty significant for the area. Q. Now, you talked about -- okay. So, you And you

talked about sustainability, sustainability. talked about it in your testimony today.

I ask you to

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. look at the last report that you prepared. A. Sure. Q. D-161. Show me where you talk about

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sustainability in that report. A. Actually, this was not the report that addressed It was, I believe the issue was raised

sustainability.

in my first report with regar -- in October of 2009. Q. Do you use that vocabulary, sustainability?

Im not sure if I used the term sustainability,

but I think if you read through that, youll see that the concepts, in terms of the community connectivity and locational determinants, were about the same. Q. So, the first time youve actually used

sustainability as a criteria, actually is in your testimony here, isnt that right? A. Id have to look back at all my reports, but I

believe that the first time I used the term sustainability was in testimony. But the con -- the

basic concepts were presented right from the very beginning. Q. Okay. Now, youre familiar with the criteria

of the Council on Affordable Housing for approving affordable housing sites, arent you? A. Yes. Q. And --

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Thank you. (Off record. Back on record.) THE COURT: Mr. Eisdorfer, I wonder if this

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would be a good time to break for lunch. MR. EISDORFER: the court likes. THE COURT: Okay. So, well see you at 1:30. Whatever you like, whatever

CONTINUED BY MR. EISDORFER: Q. Mr. Slachetka, you are familiar with the

regulations for the Council on Affordable Housing concerning site suitability for inclusionary projects? A. Generally familiar with them, yes. Q. Let me show you the document that weve

marked as P-67 and ask you if those are the regulations. And Ill specifically point -- direct you

to 5:97-3.3 -- 3.13. A. Yes, these appear to be the regulations

referencing site suitability criteria and consistency with the state development redevelopment plan. Q. And are you aware that the Council on

Affordable Housing has a checklist that municipalities have to submit to document site suitability? A. I believe so, yes. Q. Well, let me show you this document that

weve marked as P-68.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. A. Sure. Q. And ask you if that is the checklist? I know

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I believe this is the latest checklist.

theyve changed things from time-to-time, but I think this is the latest one. Q. Now, do you know when these regulations were

adopted, the regulations weve marked as P-67? A. The 5:97? Q. Yes.

The -- my understanding is that the regulations

through the latest iteration of amendments were adopted in September of 2008 and then published and registered in 2000 -- in October of 2008, I believe. Q. Okay. So, these are late fall 2008

regulations? A. That is correct. Q. And they are the current regulations.

That is true. Q. Now, those regulations extend over two pages

and Im going to ask you just to take a look at them, just to re-familiarize yourself with them. A. Sure, not a problem. Q. Okay. I read through them.

These regulations dont speak of

sustainability as a criteria, do they? A. No, theres no reference specifically to

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. sustainability. Q. Now, let me show you the list of criteria

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that Dr. Kinsey testified to. 33 in evidence.

This is Exhibit F of P-

And I ask you if these -- if the COAH

standards correspond to these standards? A. When you say correspond, in what respect? Q. Are they substantively the same?

There are some components in Dr. Kinseys list

that correspond to the language in the COAH criteria, yes. Q. Are there any of the COAH criteria that are

not on this list? A. No, I believe they correspond, you know, pretty

closely to COAHs list. Q. Okay. So, these criteria correspond to the

2008 COAH standards, is that correct? A. Generally. Q. Now, the -- you spoke -- you -- let me show

you the document that Mr. Woodward put up. MR. EISDORFER: to want to mark this. it down -THE COURT: Just for the record, I guess this It was from Mr. Your Honor, I think Im going

I dont know if you want to pull

is Mr. Woodwards handwriting. Slachetkas testimony.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. A. MR. EISDORFER: Slachetkas testimony. THE COURT: Right. Okay, and its en-

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Mr. Woodwards summary of Mr.

captioned Sound Planning. MR. EISDORFER: THE COURT: Right.

And there are four points. Four criteria. Now, let me

MR. EISDORFER:

-- Im going to ask him questions and then Im going to pull it down and mark it. THE COURT: youre referring to. MR. EISDORFER: Yes. I just wanted to identify what

CONTINUED BY MR. EISDORFER: Q. Now, is this a fair summary of your criteria?

In -- with reference to sound planning? Q. Yes.

As pursuant to the various court cases? Q. Well, as per your understanding.

Yes, it is. Q. So, --

I mean its a very brief paraphrasing of the -- of

my testimony, but if -- in terms of looking at it as headings, I guess the -- I guess you could categorize it as accurate headings of the various components of my testimony.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. Now, you, in your testimony about

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sustainability, you focused on automobile dependence, isnt that right? A. Thats one part of sustainability, but a critical

part of sustainability I focused in on. Q. Now, looking at D-67, is automobile

dependence one of the criteria in the COAH standards? A. No. In fact, actually what I was referring to is

sound planning in the construct of various court cases. Theres no discussion of sound planning in the site suitability criteria. However, there are references to So, I was

sound planning in the various court cases.

referring in my testimony in -- within that context. Q. Now, the standards that are set forth in P-67

and P-68, those are the standards that COAH auspices, arent they? A. Well, in terms of looking at specific site

suitability criteria and their focus in -- on site suitability focuses on a combination of factors that also reflected in Mr. Kinseys presentation of his 14 criteria; infrastructure issues, looking at specifics with regards to the availability of adequate infrastructure; making sure that the development does not impede on any environmental factors that have been identified in various state regulatory frameworks. So,

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. in that respect its looking on a very specific, very focused area with regards to site suitability. Q. Now, these -- but these are the standards

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that COAH uses when they approve housing plans? A. Yes, when theyre looking at sites, various sites.

Its these and, in part, other factors, other criteria. Q. And COAH has granted substantive

certification based on these standards to what, 60 housing plans, under the 2008 regulations? A. Oh. In various contexts, yes, theyve used site

suitability standards for that. Q. Uh-huh. And theres another 300 odd

petitions pending before COAH? A. I dont know the exact number, but theres -Q. Theres that order of magnitude?

Theres a lot of petitions pending, yeah. Q. And they, too, will be evaluated based on the

standards that are in P-67 and P-68, is -A. Well, I dont know all 300 plans that are being

submitted to the -- to COAH, but I would imagine that in some parts that they may be using this standard. Q. Now, automobile dependence -- whats a good Lets look at -- well, lets start Lets refer to it, because its here.

one to look at? with this one.

Lets look at -- Im going to show you the exhibit that

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. CONTINUED BY MR. EISDORFER: Q. So, heres the one that has the original -exhibit? MR. EISDORFER: Well, this is useful. That A. was marked as D-176. The picture just doesnt show

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what I want it to show, what I wanted to look at.

So,

lets look at -- Im once again going to show you D-66, which is the -- your housing plan, D-66. A. Yes. Q. Which is the housing plan that you prepared?

Yeah, this doesnt have the exhibit marked on it.

It just has handwritten D-66. Q. size maps. Thats correct, because this one has the full And Im going to ask you to look at the

generalized -MR. WOODWARD: Do you want the original

doesnt have the full size maps and I -MR. WOODWARD: Well, but you may want to You can show him

refer to the original at some point. the -MR. EISDORFER: Sure.

I have no problem with

the stamp on it. A. Thank you. Q. And Im going to show you the map that Mr.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Woodward produced in my -- in response to my request for the full size maps. use map, in D-66. A. Yeah, the existing land use map. Q. Yeah. Existing land use map? Its entitled Generalized Land Use Map, Thats the generalized land

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but basically thats -- it corresponds to existing land use. THE COURT: Can I just -Yeah. Is

MR. EISDORFER: THE COURT:

-- see which one that is?

that the DLAE in this exhibit? MR. EISDORFER: THE COURT: Yes.

Land use map DLAE. Yes. Okay, thank you.

MR. EISDORFER: THE COURT:

Gotcha.

MR. EISDORFER:

Im going to leave this up

here, because you may find it helpful to have the big one. THE COURT: Sure. Thank you. Thanks.

CONTINUED BY MR. EISDORFER: Q. Now, do you see on this map, holding it

lengthwise, with the block on the lower right-hand side as youre holding it. A. Okay.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. Q. In the upper right-hand corner there is Do you see that?

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Birchwood Avenue. A. Yes, I do. Q.

All the way in the upper right-hand corner.

That is correct. MR. EISDORFER: THE COURT: Okay? Thank you.

Yeah, I see it.

CONTINUED BY MR. EISDORFER: Q. Okay. So, now, so the existing use on this

site is two office buildings, with a great big parking lot, isnt that correct? A. That is correct. Q. Is that an automobile dependent use?

Yes, to an extent it is. Q. People are going to have to drive to get to

that office building. A. Oh, certainly, yes. Q. And thats why it has a big parking lot.

I would assume that that parking is provided to

meet the needs of the office use, yeah. Q. planning? A. Well, I think the key here is that its an And from your point of view, is that sound

existing land use. Q. Suppose it was an existing -- suppose it

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wasnt an existing land use. site it there. A.

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Suppose you were going to

Well, I think thats -- its a very good question, I think that we would have to evaluate

Mr. Eisdorfer.

it in terms of its -- if we were looking at this from a straight zoning perspective and the area was not commercially zoned and there were no commercial uses, I think we would need to evaluate whether or not we would -- that would be a proper location for office uses. notice that theres a lot of the areas that are open space elements or public uses. If you look at the I

development form that surrounds the area, its a very low density residential development form, most of it existing for a number of decades. And its fairly far If we were

away from the core of the community.

looking at it as a straight zoning perspective, I would -- may have some questions as to the intensity of development that we would want to have located there. Q. What about the issue of auto dependence? Is

it auto dependent? A. Well, thats part of the problem. I mean I think

that, you know, the idea of, at least the way they were planning into -- in the first part of the 21st century, is looking at communities and seeing how we can maximize the sustainability of the land use patterns

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. within communities. Q. I mean, but --

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So, if were dealing with a blank canvas, we would

probably be dealing with a different land use distribution that we would see as -- see typically. But -- however, if you take a look at Cranfords land use pattern that developed over -- historically over time, the focus, as you can see, is primarily most of the intensity of development are -- is around the downtown and the railroad station. So, to a certain

extent, Cranford has developed a framework that at least provides the opportunity to plan soundly. If we

were looking at the environs or the periphery of the township, we might have made -- we might be making different decisions than we have made in the past, ten years ago, 20 years ago, or 30 years ago, when some of these land uses took place. I think the whole You

construct of planning has changed significantly. know, as I mentioned, recognizing the state plan, recognized in a variety of different statutory enactments, and we could do something very, very different here than exists now. Q.

But we are faced in this case between the

choice of the existing office building and residential uses, is that right?

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

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Well, its right only to the extent that were -And so --

we have -- were in the Mount Laurel case. Q. Yeah. Go ahead, please.

And to that extent, were looking at this

and as I mentioned to the Your Honor before, that basically, you know, if we were looking at this as a straight land use planning exercise, theres no way, as a professional planner, that I would be recommending a high density multi-family residential development at this location. If we were looking at this as

completely vacant undeveloped land, I would say -- I would discuss to the community the level of intensity and development that we would want to locate here and whether we want to push towards an auto dependency. Q. Well, is this a matter of a community -- of

community choice? A. No, no, its not actually a matter of community In fact, plan --

choice, Mr. Eisdorfer. Q.

Well, are there --

Well, Mr. -Q. Are there state standards --

Mr. -Q. -- for what is auto dependent?

Yes, actually there are. MR. WOODWARD: Your Honor, I object. The

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 finish. BY THE WITNESS: A. Yeah. And in fact, there are various standards witness was in the middle of his answer. THE COURT: Yeah, let him answer. Let him

96

and a lot of the -- a lot of very factual information about the relationship of land uses, auto dependency, vehicle miles traveled. Both the DEP and DOT, state

agencies, have issued a significant amount of data and reports making that connection over the course of the last decade or so. So, yes, there is -- theres a

great body of work and its recognized very thoroughly within the planning community as being a critical tenant of sound planning moving forward in the remainder of the 21st century. Q. Well, let me go back. Mr. Woodward

distracted.

I asked you two different questions. You said it would

Lets separate out the questions.

depend upon the communitys desire -A. No, I didnt actually say -- thats

mischaracterizing what I said. Q. Well, you said it would depend upon to what

extent the community desires that it be a -A. No. Actually, you misinterpreted what I was I said if, in --

saying.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. Well, explain it to us.

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In fact, if a community -- if we were doing

this as a straight land use planning exercise, out of the context of a Mount Laurel case, and we were dealing with vacant developable land that there was no existing land use pattern, part of my responsibilities as a professional planner would be to make recommendations to the community as to what would be the appropriate -the land uses. I mean, certainly, you can locate a

land use that can -- that you can provide infrastructure to and can avoid all the environmental constraints. You can -- and you can buffer it so you You basically can create these

dont even see it.

pods, if you want to, all the way out in various parts of the community. But that, in my mind, is not sound

planning and its not consistent with the concept of sustainable planning and sustainable development. So,

as a planner, my recommendation to the community would be, if we were dealing with a blank canvas here, is to evaluate what the appropriate land uses would be, given the fact that the township is a transit village and we have a role and responsibility, we being the Cranford Township, a role and responsibility both from the standpoint of encouraging sustainable development and also a role and responsibility in encouraging transit

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. oriented development, because we have in Cranford

98

Township one of the few regional train stations located in the region. So, it goes back to the heart and if

you go back to the exhibit, if you can -- if you see those four items I think you referred to, Mr. Eisdorfer, if the Judge can see that again. Q. Im sorry. What do you want me to do?

The four items of sustainability. Q. Sure.

Where were balancing goals and objectives -- I

mean, first of which, you know, sustainability is an important and critical tenant of sound planning, as we recognize it, we being the planning community, recognize it in the year 2010. We also recognize the

need to balance goals and objectives, and thats the whole point here. The idea here is that, you know,

Cranford has, as I mentioned, very compelling and competing role -- responsibilities and goals and objectives. Providing affordable housing, but also

serving the community -- the regional community in a broader perspective by providing a sustainable development form and encouraging a development form that, in turn, encourages transit oriented development and that type of development. The reason why were

doing that is because the state, both the DOT and the

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

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DEP, recognize that as a critical and important tenant of planning. As I said before, this high density

multi-family development turns that on its head and its completely violative of all those concepts. Q. Okay. So, lets consider whats next to this

So, next to this site we have a healthcare

facility, is that correct? A. Theres an assisted living facility. Q. it, too. A. Yes, it does. Q. Is that automobile dependent development? Okay. And that has a big parking lot next to

To a certain extent, yes. Q. All the employees drive there.

I dont -- I cant say that specifically, but I

would imagine that a good portion of the employees drive there. Q. nearby. A. Thats correct. I dont know if anybody carpools Youve told us that theres no public transit

or not, but -Q. Okay. There, across the street, theres the And that has a big parking lot,

Verizon building. doesnt it? A.

Thats -- that is correct.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. D-66. A. Q. Is that automobile dependent development?

100

Yes, it is. Q. Now, let me ask you to look, once again, at Now,

And again, look at the northeast corner.

my understanding of this is that the yellow is residential developments? A. The light yellow is, yes, single family

residential. Q. Okay. And you see Wadsworth Avenue?

Yes, I do. Q. Okay. And its single family homes along

Wadsworth Avenue? A. Yes. Q. Yes, they are. Is that automobile dependent development? And as I said, that those

Well, yes.

developments, those residential developments that exist in those areas, are developments that occurred, its probably, you know, several decades. If you take a

look at the residential development form along Wadsworth Avenue, most of it is split and Cape Cod types of development. Yeah, its low density

residential development, but auto dependent. Q. Now, looking on this map to the east, to the

right of Birchwood Avenue, we have a block of yellow, which has Cherry Wood Avenue and Roselle Avenue. Do

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. you see those? A. Yes, I do. Q. Okay. And are those single family

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residential developments? A. Yes, it is. Q. Again, --

And is that automobile dependent development?

Well, again, you know, as youre saying, yes, of And in fact, thats one of the inherent

course it was.

problems of a more suburbanized residential development pattern. I mean youre talking about a single family

detached -- again, albeit its a low density residential development. I dont know, Your Honor, how But it --

many residential units are located in there.

for the most part, those -- the people who live in those houses are going to, for the most part, be using the automobile for their daily needs. Q. What Id like you to do is take my pen here

-- let me see if Ive got something prettier than a pen. A. Prettier than a pen? Q. Yes, I do. I have a green magic marker. So,

I want you to take this green magic marker and -- first of all, point out to us on the map where the town center is. A. Just point it out with your finger.

I cant use the pen?

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. different. A. Okay. Generally, the town cen -- if were No.

102

I want you to use the pen for something

defining it as a town center, it would be primarily around the downtown and the train station. This is

also the business improvement district area as well. Q. So, I want you to draw a half mile radius

around that town center. A. Yeah. Q. Well, I would need a scale for -Can I provide you one? Oh, youve got one

there, okay. A. Yeah, I have a scale. Unfortunately, I brought my So, its -- I

architect scale, not my engineer scale.

only can use the -- I guess Ill have to use it as a reference point. MS. MC KENZIE: THE WITNESS: appreciate that. THE COURT: Thank you. And, Your Honor, I dont know I have one. Thank you, Ms. McKenzie. I

THE WITNESS: if it helps.

It may be clearer, because I have a

radius and actual specific reference on the exhibit that we had marked in during my direct testimony. Im -- Im trying to match the scales here and -because Im not sure. What

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. CONTINUED BY MR. EISDORFER: Q. because -A. No, I -Q. Okay. -- I want a picture of the whole town. Thats fair enough. Lets see here. Well, I want you to do it on this map,

103

Let

me find a good reference that corresponds to this. Lets see, its about -- if I recollect its 14.9. Actually, do you have a calculator? Q. Okay. Im sorry, I dont. Im trying to get one/fourth of 5200, just I just want to --

so I -- it can correspond exactly. Q. One/fourth of what? Its a --

Approximately 5200 linear feet. Q. 1300 -MR. WOODWARD: THE WITNESS: 1320. About 13 -No, 1300.

MR. EISDORFER: cards to a -THE WITNESS: MR. WOODWARD: its more than -MR. EISDORFER: THE WITNESS:

Its 52 cards, 13

Yeah, maybe the one inch -A mile is 5,280 feet. So,

Yeah, but he asked -Do you want -- yeah. Its kind

of an odd scale on this, because of the way that -- the

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. A. -A. Sure. Q. -- around the town center. size of the map. around? CONTINUED BY MR. EISDORFER: Q.

104

What do you -- what am I drawing it

I want you to draw a half mile radius around

And actually Ill use, if its okay, Mr.

Eisdorfer, Ill use the train station, generally, is a -Q. Okay. Q. What Im trying to understand is where the Whatever seems appropriate to you.

limits of auto dependence lie. A. Uh-huh. Lets see, my kingdom for a protractor.

If I dont do this correctly, Im going to try to do this and my apologies here if its not. -- no, Im sorry, a quarter. Okay, thats

Im sorry, Mr. Eisdorfer,

you wanted a half mile or a quarter mile? Q. Half mile. My apologies. I drew the quarter

Oh, half mile.

mile, so. Q. Well, draw a bigger one. And you had to make me do it, right? I think I got it. It

I will.

Okay, my apologies to the court.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 didnt turn out as bad as I thought it might. Q. Okay. Now, lets mark this so we can talk Lets mark this as P-69.

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about it extensively.

Now, I

want to show you the document weve marked as P-69 and explain to us what youve done. A. As you requested, I drew the half mile radius and,

unfortunately, I also drew the quarter mile radius. So, we have a quarter mile radius around the approximate location of the train station in Cranford and then a half mile radius around the train station in Cranford. Q. Now, you previously testified that a half

mile is as far as one can reasonably expect people to walk? A. Yeah, and thats -- that half mile walking

distance is recognized in a variety of different, you know, planning references. references that I used. I mentioned the LEED

Its also the limit thats

established pursuant to the State NJ Transit Village Program as well. Typically the transit village is

about a half a mile, or defined as half a mile around the train station. Q. So, everything outside this half mile radius

is automobile dependent? A. Not necessarily. There could be some locations

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that are proximate to bus stations. However, the

106

standard that I was using in evaluating this is -- was the LEED standard, which is both the LEED in the -LEED the general standards, as well as in the LEED in neighborhood development standards, which talks about a half mile from the -- from a residential development or any kind of development, mixed use, residential or otherwise, and how many basic services and how many bus stations and train stations are located within a half mile. So, in terms of walk-ability, in terms of

sustainability, it has to do -- theres a -- there are a variety of different factors that are associated with that. So, its not just saying its a half mile radius

and its walk-able, therefore, its sustainable. Q. Well, so, lets look up here. Is this stuff

all -- okay, Im looking at all the residential development between your circle and Wadsworth Avenue. Is all that automobile dependent development? A. In -- actually, in generality, most of that

development form will be primarily automobile development. I mean it -- most of our -- and actually

its -- and Mr. Kinseys own report recognizes the suburban development pattern has been primarily an auto dependent pattern for the most part. Cranfords a

little different because it does have a town center and

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. a train station. Q.

107

So, were working our way around the circle.

Is the yellow development to the northeast, is that automobile dependent development? A. Well, again, you know, these are all development

forms that were put in place, you know, decades ago and with the focus primarily in the more suburban auto dependent pattern. The point being that that Its not intro -- were not

development form exists.

introducing or have not introduced new single family residential development forms in those areas or higher density residential development. So, its recognizing

an existing development pattern, -Q. Well, lets --

-- not introducing something new. Q. Okay. So, lets answer the question. Is

this automobile dependent development? A. I thought I said that it was generally automobile

dependent, yes. Q. And how about down to the southwest, is that

automobile dependent development? A. Well, again, it depends on the factors that I

mentioned before, in terms of what is it -- are there bus lines proximate to it; are there basic services that are proximate to the -- to that development. You

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 could have smaller neighborhood centers that have a

108

variety of different basic uses and maybe a bus station or two. Actually, the standard under the LEED standard

is having two bus stops within a half mile distance. So, there could very well be areas outside of those two concentric circles that you talked about in Cranford Township that might have a neighborhood area. For

example, if were looking at, I think it was at Centennial Avenue. Centennial Avenue has a small Its located a little bit half --

neighborhood center.

a little bit outside of the half mile, that area over there. Theres some shops and services there and I

dont know if a bus line runs down Centennial or not, but potentially, you know, you could have little areas, little cores located within Cranford Township that might have -- or any municipality, that might be less auto dependent than others, or that might, in fact, meet the LEED standard of having the ten basic services, the two bus lines and the one train station within a half a mile. Q. Now, does -- youre the consulting planner

for Cranford Township? A. Yes, I am. Q. Does Cranford Township have an ordinance that

prohibits automobile resident -- automobile dependent

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 residential developments? A. Oh, no. Q. No. Youve just done a master plan, isnt

109

that correct? A. Yes, I have. Q. Does your master plan recommend that the

municipality adopt an ordinance that prohibits automobile res -- dependent residential developments? A. Actually, the master plan focuses a significant

amount on the need for sustainability in development. In fact, actually, the township received a grant from the Association of New Jersey Environmental Commissions to prepare a conservation plan element which is part of the adopted master plan. And that element talks a good

deal about sustainability as a concept and a design focus within the -- within Cranford. Obviously,

Cranford is a generally built community, as we talked about, almost fully developed. And therefore, the

existing land use pattern, for the most part, is fixed. So, we try to work in sustainability within the confines of a comprehensive approach which focuses on land use decisions such as redevelopment, trying to locate new residential development proximate to the downtown, closer to the train station. So, in a sense

that youre recommending we say something about auto

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

110

dependent or not auto dependent, the whole framework of the master plan is a comprehensive plan that addresses land use in a comprehensive way, recognizing that Cranford is almost a fully developed community. And in

those areas where we can make a difference, in terms of the decisions that we make, whether its not to encourage redevelopment of the downtown or prevent development in those limited areas that are developable within the community, thats where Cranford can make the difference. Thats the issue here. Its looking

at those areas where Cranford can make the difference and to the extent that we make any land use decision that affects any area that has any kind of level of develop -- development -- develop-ability, I should say, thats critical and thats crucial. Its working

-- it may be working around the margins, but its, at the same time, an important way in which Cranford can address this concept and further the concept of sustainability. And thats what the master plan does.

It may not say were going to prevent auto dependent usage, but it does look at the community in a comprehensive way, does -- it addresses it in a sound planning perspective. You know, we -- how were

balancing the goals and objectives here to -- and what is -- what goals and objectives are we advancing,

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. plan? A. In the way -Q. No, no, answer the question.

111

including the goals and objectives of sustainability. Q. Lets go back to my question. In your master

plan did you recommend that the town adopt an ordinance that prohibits automobile dependent residential development? A. And I thought I answered the question. But no, it

does not specifically say that in the zoning ordinance. Q. Well, do you recommend it in your master

Does the master

plan recommend that the township adopt an ordinance that precludes -- that prohibits automobile dependent residential development? A. What the master plan does, and as you know, the

master plan provides -Q. answer. A. This is a question that takes a yes or no Does it or doesnt it?

If youre asking for a specific ordinance, does it

recommend an ordinance? Q. Yes, does it recommend an ordinance?

No, it does not recommend a specific ordinance. Q. Do you recommend that existing automobile

dependent residential development be deemed a nonconforming use, so we ultimately do away with it?

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. No, but thats not what a master plan does. Q. Thats not what your master plan does?

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Thats not what a master plan does. Q. Now, you have -- you told us that the

standard you used for how far people can tra -- people can walk is a half a mile. Are you aware of any legal

standards that specify how far people who dont have cars can walk? A. I dont think I understand the question. Q. Well, are you aware of any legal standard

that specifies, tells us how far we can expect people who dont have cars to walk? A. Again, Im not sure I understand the question. Q. Well, lets try something else. What Id

like you to do is take the document that you have in front of you, which is -- whats the number of -A. This one? Q. number? MR. WOODWARD: MR. EISDORFER: the various circles. MR. WOODWARD: MR. EISDORFER: MR. WOODWARD: The (indiscernible) one? Yes. P-69. Which map? The map on which hes drawn Yeah, of the map with the little radius. The

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 him. MR. WOODWARD: that in just a second. Oh, all right. D-175. Hold it. MR. EISDORFER: MR. WOODWARD: P-69. No, no. Wait, wait, wait.

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Are you referring to the one that I showed

him, or the one you showed him? MR. EISDORFER: No, the one that you showed

Well get you

CONTINUED BY MR. EISDORFER: Q. Okay. What Id like you to do is you drew

concentric circles -A. Do you want me to refer to the marking? Q. No, Im -- well, you can look at the marking,

but Im going to want you to mark this one up. A. Okay, sure. Q. So, you drew concentric circles around 215-

235 Birchwood Avenue? A. That is correct. Q. What Id like you to do is take your little

rule and my green pen and draw a two mile radius. A. Two mile radius? Q. Yes, a two mile radius. THE COURT: binders, right? MR. WOODWARD: No, its one we added. We D-175 thats not in any of the

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 70. CONTINUED BY MR. EISDORFER: Q. To confirm Ill show you a document weve Is that the map youve just marked? A. gave to you Friday, I believe, Your Honor. one thats in evidence. BY THE WITNESS: A. A two mile radius would take a good portion of

114 Thats the

that circle off the map. Q. Well, draw whatever you can on the map. Id need, actually -- again, I might I need four times 2.6. Four times what? Four times 2.6. 104. 104. 2.6? Four times 2.6 is 104?

All right.

need the calculator.

MR. WOODWARD: THE WITNESS:

MR. EISDORFER: MR. WOODWARD: THE WITNESS:

MR. WOODWARD: 2.6 is 10.4. THE WITNESS: six, sorry. here. Oh, 10.4. The 2.4 -- I mean

The two mile radius is this green area

For the most part that two mile radius is off

that -- off the graphic. MR. EISDORFER: Okay, lets mark this as P-

marked as P-70. A. Yes, it is. Q.

With a line showing a two mile radius around

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you -THE COURT: Is that P-70? -A. Thats correct. Q.

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Now, in a world without cars peoples ideas

of how far they could walk would be different than in a world with cars. A. Am I right?

I would imagine so, yes. Q. Now, we have a population in New Jersey of

people who dont have cars, dont we? A. Yes, I would imagine theres some people who dont

have cars. Q. How about children? Children dont have

cars, do they? A. No, they dont. Q. Okay. Let me ask you to read NJSA 18A:39-1,

which governs provision of transportation -THE COURT: statute again? MR. EISDORFER: THE COURT: Yes. NJSA 30 -- 18A:39-1. What -- can you just give me the

18A:30 -39-1. And Ill represent to

MR. EISDORFER:

MR. EISDORFER: but I will. THE COURT:

This I havent marked it yet,

Oh, didnt you just mark

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. copies? MR. EISDORFER: I do. A. something as P-70? MR. EISDORFER: THE COURT: I marked his map as P-70.

116

Oh, okay.

CONTINUED BY MR. EISDORFER: Q. Okay. Why dont we ask you to read the first

paragraph of that statute? A. Under -- the first paragraph directly under NJSA

18A:39-1? Q. Okay. MR. WOODWARD: Excuse me. Do you have extra Thats right.

CONTINUED BY MR. EISDORFER: Q. Now, would you read that out loud, please? Its whenever in any district

Oh, yeah, sure.

there are elementary school pupils who live more than two miles from their public school of attendance, or secondary school pupils who live more than two and a half miles from their public school of attendance, the district shall provide transportation to and from school for these pupils. Q. So, this map shows how far we can expect high

school students who dont have cars to walk, isnt that correct?

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is? MR. EISDORFER: And so my question is does MR. WOODWARD: Objection, Your Honor.

117 That

is not the conclusion to draw from this. THE COURT: Well, let me --

Go ahead.

MR. WOODWARD: THE COURT:

Withdraw the objection.

I mean you can -I dont think its relevant.

MR. WOODWARD: THE COURT:

Im going to allow you to Because when you refer to

rephrase your question.

this, I dont even know what youre referring to anyway. Youre talking about the statute, or are you

talking about the map that he drew the radius on, or -MR. EISDORFER: Well, what the statute says

is school districts arent required to provide transportation -THE COURT: I got that. -- for students --

MR. EISDORFER: THE COURT:

Right. -- for secondary school

MR. EISDORFER:

students who live within -- whose walk is no more than two miles. THE COURT: I understand. So, your question

this map show how far secondary school students -THE COURT: Okay.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. CONTINUED BY MR. EISDORFER: Q. -- could be required to walk from 235-215

118

Birchwood Avenue? A. I am -- if I understand the statute to --

correctly, this is the statute that regulates the -where mandatory bussing is required. Q. Uh-huh.

I wouldnt draw that conclusion from that I dont believe we can draw that conclusion

reference. at all. Q.

Okay.

Now, your first criterion of sound

planning is no adverse impact, is that correct? A. Yeah, generally as a reference. Again, these are

titles, or these can be considered subtitles to the -and a general paraphrasing of what I said. Q. Well, when one builds a single family house

one adds impervious cover, one puts a certain amount of heat in the atmosphere. A. Arent those adverse impacts?

Well, any development has impacts, I mean I mean you build a You

regardless of what they might be.

single family home, right, you put coverage.

probably, if its a virgin area in terms of development form, you may be knocking down some trees. development has impacts. Any

That doesnt necessarily mean

those impacts are adverse.

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

119

Well, is adding impervious cover and putting

heat in the air not an adverse -- not adverse impacts? A. Well, again, its -- you know, any development

form is going to have some impact on the environment depending upon how you define the environment in place. Its a question of looking at it from a little bit more of a kind of a comprehensive set of criteria and focus -- focusing in on the nature of the development, the actual impacts that are taking place, and the cum -cumu -- cumulative -- excuse me, Your Honor -cumulative impacts of those -- the cumulative effect of those impacts, I should say. Q. So, your second criterion is public good. Is

there a verb that goes with this? A. Well, more specifically, it relates to the -- what

aspects of the public good are being advanced by the development. Q. Under the --

So, it advances the public good?

Well, yeah, to the extent that, like say for

example, under the construct of Municipal Land Use Law and we talk -- in zoning cases. We talk about the some

way, shape or form advancing the intents and purposes of the Municipal Land Use Law. I did also reference

that there are other state enactments and other goals and objectives that are being advanced. So, yes, it

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

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sort of stands in association with the adverse impact issue. Its what benefits are we advancing by the

nature of the development and the plan. Q. Does building a single family house advance

the public good? A. Well, you know, again, you know, youre talking

about it in a -- you take one single, single family home. Lets just say one -- you may have one single

family home thats developed, you know, as an in fill residential within an existing neighborhood and clearly, you know, developing a single family home consistent with the character of the community and the character of the neighborhood would certainly be an advancement -- can be argued being an advancement of the public good. You know, when youre dealing with

other issues and dealing with hundreds of homes, or hundreds of residences, there are different standards to eval -- we use to evaluate that. Q. Give me --

So, its context driven. Q. Yeah. Give me some examples of what advances

-- what public goods might be advanced by residential development. A. Well, appropriate population densities. In fact,

theres a specific intents and purposes in the

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

121

Municipal Land Use law that talks about that in terms of uses with regards to the respective environmental requirements. So, again, using that example that

youve just cited, you know, single family home in a residential neighborhood. Say, for example, we have

the existing residential neighborhoods around Birchwood. As we talked about, you know, they tend to However, you know, if

be generally auto dependent.

were talking about putting -- adding in a single residence or two thats consistent with the neighborhood character, the overall impacts -- while it has an impact, the overall impacts are relatively minimal overall. But the advancement -- the good

thats being advanced is the development of a residential use thats consistent with the character of the neighborhood, consistent with the population densities in that area. So, youve got minimal

impacts, advancing the public good, you go back into the third element of that, which is the balancing of these goals and objectives, and you say yes, thats appropriate, thats sound planning. And any other

residential form, or any other development form, may have different standards in terms of how we would evaluate them in terms of their impacts, both in terms of the scale of the development thats being introduced

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and the nature of the development thats being introduced. Q.

122

Let me make -- see if Im understanding what So, youre saying in a development in

youre saying.

an area that is most predominantly single family residential, adding more single family attached houses advances the public good? A. Well, as I said, its within the context. Its

within -- were looking at an in fill residential neighborhood. However, it may turn out that if youve

got -- if you want to introduce a new residential subdivision of several hundred new residential homes in an area that might extend out an existing residential neighborhood, then we have to think and evaluate it a little bit more differently in terms -- or you have to evaluate it differently than you would in looking at that single one family home in the existing residential neighborhood. Because, obviously, the magnitude and

order of impacts are going to be -- is going to be significantly larger. Two, the nature of the -- as we

talked about auto dependency of the use, it may be that extending the infrastructure out into that area might not be appropriate to support that generally nonsustainable type of residential development form that theyre looking to introduce that development into.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. So, let me understand.

123

So, if I were to --

so -- but the key here for -- in your context thing is its consistent with the existing character, is that right? A. Well, part of it in that, again, in that context. Q. In that context.

Were using -Q. Thats the context in which Im --

Were using that example for a single fam -- as a

single family home being introduced into an existing single family neighborhood, yes. Q. But a housing type thats very different from

that would not advance the public good, is that right? A. No, I didnt say that. What I said is that you

would need to have appropriate care and consideration of the actual nature of the impacts of that proposed development. Q. Im a little confused. You talk about

advancing the public good. A. Yes. Q. You said the public good in this context is

development consistent with the existing character of the neighborhood. A. No, no. You were using it in the context of the

example that I used the single family residence being

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. one? A. Well, again, I think what you -- we can look at A.

124

introduced into an existing single family neighborhood. Q. Well, what other kinds of public goods are we

talking about? A. Well, again, as I mentioned, the public goods can

be established pursuant to the intents and purposes of the Municipal Land Use Law. Q. You know, maybe --

Give me some examples.

Well, I can list the intents and purposes of the And as I said, that there are

Municipal Land Use Law.

other statutes and other public goals and objectives that are well established. And I think I also cited So,

state and regional planning documents as well. theres a whole variety of different goals and objectives that you would want to consider. Q. examples. A. Well, again, -Q. Give me some examples. Give me some

How would I recognize a public good if I saw

the intents and purposes section of the Municipal Land Use Law as being a -- as a good starting point from that. Q. So, what does it say? If you wanted --

Well, I cant --

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 good? A. Yes. Yeah, actually, if I had the Section 2 -A. Q. Well, what does it say?

125

I dont remember -Q. Can you cite me any examples of local public

and I actually have a copy of the Municipal Land Use Law if youd like me to refer to them specifically. Q. Well, just do a -- without searching through

the statute. A. Ill -- in this -- I dont think I can memor -- I

havent memorized everything. Q. Okay. So, you -- so, without the statute

then you cant name any particular public goods? A. Well, again, I mentioned population densities, But I think for this

appropriate population densities.

-- the nature of the discussion here, I think its probably more appropriate and probably would be a little bit more clear if we had the specific references that were talking about and Id be glad to go through them with you. Q. Well, lets -- so, this is a community that Is

has, at the moment, no family low income housing. producing family low income housing a public good? A. Oh, yes, it is. Q. Oh, good.

Is removing a building from the

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. A. floodway a public good? A. It could very well be a public good, yes. Q. Yes. Q. Is this? It could be?

126

Which building are we talking about? Q. Were talking about the office building on

the site that is in the floodway, this building right here, and its parking lot. floodway a public good? A. Oh, yes, it could very well be a public good, yes. Q. It could be. Is it? Would it be? Is moving that from the

Well, it depends on the other issues and concerns But yes, obviously, if removing it

of the community.

from -- strictly from an environmental perspective, strictly removing it from the floodway would be a public good. Q. Were those pub -- in your reports, in the

report -- written reports youve done, did you identify those as public goods? A. At the time that we were addressing it we were

looking at the site in its entirety and the development that was being proposed. Not necessarily anything that We were looking

was going to be removed from the site. at the residential --

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Well, in your reports did you identify the

127

production of affordable family housing, in a municipality that had none, as being a public good? A. Yes, and I -- and again, we talked about it in the As I said, its --

context of the need for balancing.

you know, if were looking at the issue of doing -- of introducing a fairly substantial auto dependent use in this area, a very high density multi-family residential development, the benefits that you have is, obviously, youre providing a certain amount of affordable housing. that. The real critical issue here is balancing

What kind of order and magnitude scale that we We know

should have for the -- for such a development.

that the development is auto dependent and we know that the development is going to have a specific impact on vehicle miles traveled and a specific impact in terms of the greenhouse gases that are generated. We know

that thats a concern and we know that thats a problem. benefit. We also know that we have -- there is a We have a benefit in terms of the affordable The real critical Where do we draw

housing that is being provided.

question is striking that balance.

the line and how can we sustain both development -both objectives in a well balanced, sustainable manner that advances the public good and doesnt have any

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 adverse impacts?

128

And thats, I think, the real -- and

thats the real critical issue that we have in evaluating this. Q. So, again, context is critical.

Now, once again, I hear you say doesnt have Is that your standard? And again, it goes

any adverse impacts. A.

No, no, I didnt say that.

back to the issue of balancing that we talked about. Q. Now, under your plans, under the housing

plans that youve drawn up, if the 63 low and moderate units is not provided on this site, will it be provided somewhere else in the municipality? A. And it could potentially be provi -Q. In your plans have you provided for --

provided somewhere else in the municipality? A. If you review the plans that we had prepared, we We also

do address the growth share obligation.

provide an overlay within the downtown area for -- or propose an overlay within the downtown area to address on that need. Q. Would -- where would those 63 units go? Do

you have a site? A. Well, again, you know, our plan focuses on the

fact that the township is a -- has limited vacant developable land and the real opportunities, in a more sustainable manner, would be to provide for that

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

129

residential development in those areas that -- where -which are proximate to the train station, through the residential overlay, through the redevelopment activities that are proposed in the plan and the municipally sponsored projects. So, that I felt was a

much more balanced and appropriate approach. Q. Actually, your plan doesnt make any specific

provision for that number of housing units at all. A. Yeah. Q. You said we are -- were adjusting our

housing obligation down so we dont need this. A. Yeah. And again, this was based on the vacant

land adjustment that we had prepared in 2008. Q. So, these units that -- they arent provided

here in your plan at all? A. Those 60 -- specific 63 units? Q. Yes.

No, theyre not -- those specific 63 units are not

included in the plan. Q. Now, if you adjust your projection, does that

reduce the state need? A. The state need for what? Q. housing. A. Im not sure I understand your question. The state need for low and moderate income

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

130

Well, the Council on Affordable Housing has

determined that there is a statewide need for affordable housing. A. Thats correct. Q. And it has allocated that need among various

municipalities using the index of projected growth, isnt that right? A. Thats correct. There was growth projections that

they had provided in their latest version. Q. Okay. So, -Your Honor, hes interrupting

MR. WOODWARD: the witness again. THE COURT:

Okay, let him finish his -Id like to hear the answer.

MR. WOODWARD: THE COURT: BY THE WITNESS: A. Yes.

Let him finish his answer.

The projections that were provided that we

referenced before were by the consultants that worked for COAH. Q. And if you reduce your projections, your

housing obligation, does that reduce the state need? A. Well, actually, I think theres two very important The first of which is that COAH itself So, it allows for

points to that.

provides for the adjustment process. the adjustment process.

And in part, the adjustment

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

131

process that COAH has provided in the growth share was in response to the volume of the comments that it had received previously from a variety of different sources with regards to concerns about the methodology and the source data used -- the reliability of the source data used. If we assume that the source data that COAH used

is correct, then you have a much more substantial need in the township and throughout the State of New Jersey. However, if you find that the source data and you see that, based on the information thats generated in both in terms of the Burchell report in analysis, that the actual information that the consultants that created that data relied on, in terms of erroneous methodology and approach that it took to generate those numbers, I mean youre not reducing down the housing need, because the housing needs that were -- were clearly over projected based on unreliable source data. Q. It was the vacant land, they asserted

nonexistent vacant land in Cranford that caused poor people not to have housing? A. Thats not -- thats a permutation of -- or a

distortion of what I just said. Q. Well, has Dr. Burchell, in his report,

recomputed the statewide housing need? A. No. As we said -- indicated, his purpose was to

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 address the growth projections pursuant to the state plan.

132

I just used it as a frame of reference and sort

of a point that indicated that, in fact, the projections for growth that were presented in COAHs regulations, which COAH itself allows an adjustment to for those communities to demonstrate a lack of vacant developable land. And COAH itself recognizes that

ability for the township to make the adjustment and recognizes the fact that ultimately the actual obligation, from the townships perspective, is going to be the actual growth that occurred in that 2014 and 2018 period. But to the extent that your question was

whether or not youre -- by doing that adjustment you are, in fact, lowering the statewide obligation, thats not my understanding of the process, the process that COAH allows in its regulations. Q. So, the statewide need remains to be

unchanged -- remains unchanged, isnt that correct? A. First of which, you have to have the appropriate And the

defining point for what that state need is.

second is that COAH recognizes that each municipality is going to be different. Even if you do an overall

projection based on statewide data, theres going to be unique circumstances and situations related to any one specific municipality. COAH allows for that with --

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

133

both in its prior round of vacant land adjustment and also in the second round, in terms of the growth share adjustment. Q. Well, is the need that Cranford adjusts out

of its existence, is that reassigned to some other municipality? A. In what -- again, Im not sure I understand your

question. Q. Well, if you say our real housing obligation Twelve units?

is only -- how many units did you say? A.

The realistic development potential? Q. Yeah.

On that need I think we had indicated 99 units. Q. So, is that reassigned to somebody else?

No, thats not -- as we talked about, the unmet

need is a need that the township has to address in certain ways that are somewhat different and specialized in addressing the realistic development potential. The growth share is a different story. The

growth share is based on an ultimate actual obligation will be based upon the actual growth that occurs within communities. Q. So, does that get assigned to somebody else? Thats why --

Well, theres not an assignment. Q.

Well, but the statewide need still exists.

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The statewide need doesnt go away. A.

134

Again, to the extent that youre talking about it

in terms of an assignment, thats the reason why I dont understand the question, because its not really a question of assigning it somewhere else. Its a

questioning -- its a question of the need being generated by the growth that occurs and that growth may be greater in some communities, it may be lesser in others. Overall the final end gain, in terms of the --

from COAHs perspective, is providing the affordable housing comparable to the growth that occurs. Q. Let me show you the document weve marked D-

107, which is Dr. Burchells report, and ask you to point out to me where he re-determines the amount of vacant developable land in Cranford. A. Again, I mean were talking about the projections

on census demographic -Q. Well, does he re-determine the amount of

vacant developable land in Cranford? A. I dont believe so. Not in his methodology or

approach. Q. Okay, thank you. Now, you indicated that you

submitted P-40 to the Council on Affordable Housing and that they didnt write you a letter back, is that correct?

Mr. Slachetka - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No, I had said I didnt recall what was the

135

response, or whether the township received a response or not. Q. Now, did -- are you aware that state agencies

prepare comment response documents which are published in the state register? A. Yes, I do. Q. Did you review the comment response document

published in September 2008? A. Not in relationship to this case, no. Q. And did you -- so, you didnt determine

whether the P-40 was acknowledged by COAH or responded to? A. As I indicated, its my understanding that in part

the amendments that were proposed was, in essence, a response. Because the original COAH proposed The

regulations did not have an adjustment procedure.

amended regulations that were proposed at the time that they adopted the first set of regulations, in 2008, included that methodology and approach. Q. Now, let me show you -MR. EISDORFER: THE COURT: you think you need? MR. EISDORFER: I have another half hour to Lets mark this as P-71.

Mr. Eisdorfer, how much time do

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Date: By: Regina Caldwell Regina Caldwell September 13, 2010 _357_____________ A.O.C. Number please. (End of recorded proceedings in this matter) * * * * * * * * * * * * CERTIFICATION 45 minutes. THE COURT: Yeah. Just go off the record,

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I, Regina R. Caldwell, the assigned transcriber, do hereby certify that the foregoing transcript of proceedings in the matter of CRANFORD DEVELOPMENT ASSOCIATES V. TOWNSHIP OF CRANFORD, heard in the Union County Superior Court, Law Division, Civil Part, on August 16, 2010, Tape #200/10, Index #1422 to the end, Tape #201/10, Index #0001 to the end, and Tape #202/10, Index #0001 to #0908, is prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate non-compressed transcript of the proceedings as recorded. AUTOMATED TRANSCRIPTION SERVICES