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Transcript of Transcript 8.12.10 Marsden
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SUPERIOR COURT OF NEW JERSEYLAW DIVISION, CIVIL PARTUNION COUNTYDOCKET NO. UNN-L-140-08
LEHIGH, ))Plaintiff,)
) TRANSCRIPT) OF
vs. ) TRIAL))
TOWNSHIP OF CRANFORD, ))
Defendant.)
Place: Courthouse2 Broad StreetElizabeth, New Jersey 07207
Date: August 12, 2010
BEFORE:
THE HONORABLE LISA F. CHRYSTAL, J.S.C.
TRANSCRIPT ORDERED BY:CARL R. WOODWARD, III, ESQ. (Carella Byrne)
APPEARANCES
STEPHEN EISDORFER, ESQ. (Hill Wallack LLP)Attorney for the Plaintiff
CARL WOODWARD, III, ESQ. (Carella Byrne)Attorney for the Defendant
BRIAN FENLON, ESQ.Attorney for the Defendant
AMY TOLENOAutomated Transcription Services
P.O. Box 2230Laurel Springs, New Jersey
(856) 784-4276
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I N D E X
WITNESSES Direct Cross Redirect RecrossRichard Marsden, Jr.By: Mr. Fenlon 4 157By: Mr. Eisdorfer 109 156By: Ms. McKenzie 137
EXHIBITS Ident. EvidenceD-169 Ordinance 15 37D-170 Map 17 34D-136 September Continuation 38D-136A Marsden CV 38D-55 Memo 46D-153B, C, G Photos 50D-98 51 92D-105 93D-157 93D-121A, C, D, I, J, M, P Photos 102D-171 Photo 102 106D-172 Photo 102106D-173 Photo 102 106D-121E,G Photos 107 109
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Colloquy 3
MR. FENLON: The townships next witness is1
Richard Marsden, the township engineer.2
THE COURT: Okay. I know -- thank you. I3
know you gave me a list of the exhibits that youre4
going to use, but those exhibits are not together5
anywhere. Theyre scattered --6
MR. FENLON: Theyre in the binders, Your7
Honor.8
THE COURT: -- scattered throughout the9
binders. Okay.10
Okay. Mr. Marsden, you can step up.11
MR. EISDORFER: This ones -- this ones12
mine, I think.13
MR. FENLON: Thats yours?14
MR. EISDORFER: This tall one.15
MR. WOODWARD: Yes, I gave that --16
R I C H A R D M A R S D E N, JR., DEFENSE WITNESS,17
SWORN18
COURT OFFICER: State your full name for the19
record, sir, and spell your last name.20
THE WITNESS: Richard Arnold Marsden, Jr.,21
M-A-R-S-D-E-N.22
COURT OFFICER: Please have a seat, keep your23
voice up.24
THE WITNESS: Thank you.25
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DIRECT EXAMINATION BY MR. FENLON:1
Q Good morning, Mr. Marsden. Could you2
tell the Court what your present job title is?3
A I work for the Township of Cranford, I am the4
director of engineering and public works.5
Q And in that capacity do you serve as6
municipal engineer?7
A I am their municipal engineer and I review8
planning board, zoning board applications.9
Q And how long have you held that position?10
A For over six years now.11
Q Okay. And could you briefly describe your12
educational background, college and graduate degrees?13
A I have a bachelor of science degree and civil14
engineering at NJIT. Back then it was NCE or college15
engineering. I have taken master programs pertaining16
to my interests in hydraulics. Ive taken special17
classes and programs in reference to storm water18
management and hydraulics. That was my interest.19
Q And you indicated you took a masters course20
and did you receive a masters degree in that field?21
A No, no. Business got good and we went on to22
business and we didnt need it at that time.23
Q Okay. Very good. And could you briefly24
describe your employment history from when you secured25
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your degree from NJIT?1
A Well, prior to that in I guess 1966, I was party2
employed for a civil engineering firm called Gloucester3
and Goriello Associates (phonetic). I was project4
manager, field survey chief. I was did site plans,5
subdivisions, and storm water issues. Back then we did6
storm modeling, for instance computer punch cards.7
I moved on to Giatech Associates (phonetic),8
where I was in charge of engineering, site plans,9
subdivision, road improvement works, including storm10
sewer designs for other municipalities. Then I moved11
back to Gloucester and Goriello for awhile. Again,12
still doing survey chief work, supervising, project13
management on site plans, subdivisions.14
I then went to K. Hubnany and Companies15
(phonetic) who started an engineering division called16
Negarry and Associates (phonetic) where we had six17
people. I spent about almost 12 years there. We grew18
to about 48 people and did -- about 90 percent of our19
work was for K. Hubnany and Companies. We did site20
plans, we did major development from multi-family21
housing, commercial, site evaluations.22
In those packages that we would design, we23
would do not only roads and drainage, but 99 percent of24
the time their environmental features. Streams,25
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rivers, we have to analyze those in order to get our1
site plans, you know, in working order and approved by2
DEP.3
Q So let me just interject for a minute. So4
during your work for Negarry and Associates and5
Hubnany, as part of your duties you had to prepare6
applications and secure various permits from the7
Department of Environmental Protection?8
A That is correct.9
Q And what type of permits were those?10
A They were stream encroachment, flood hazard11
permits. We would do investigations for, you know,12
wetlands because we had a wetlands division, other13
environmental issues. I remember, you know, bog turtle14
issues, blue salamander issues, things like that.15
Q Those issues that you just referred to, would16
those be with regard to threatened or endangered17
species?18
A Yes.19
Q And what were some of the larger projects you20
worked on for Negarry or K. Hubnany?21
A Oh, lets see. In the beginning, we had -- my22
term there, we had projects in East Brunswick. I dont23
know whether it was Society Hill One, Two, Three, or24
what. That was back in the early 80s.25
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I did projects for Lincoln Park, Society1
Hill, Lincoln Park, One and Two. We had projects in2
Mahwah, a 1300 unit development with a brook running3
through that also. Society Hill at Bernards which had4
the dead river running through it. Oh boy.5
I probably start in Wayne. We had projects6
in Wayne, off of Route 23 or 17. We had site7
evaluations where we did projects in Rockaway. Working8
my way down, we had industrial projects in Princeton9
for Route 1.10
Q In connection --11
A Ive had quite a -- I had a few out of state. We12
had Waterbury, Connecticut. I was licensed in13
Connecticut. And New York State we had, just over the14
river, Peakskill project.15
Q In those projects were you required to design16
and lay out sanitary sewer systems for these17
residential developments?18
A Yes.19
Q And were you required to design and lay out20
storm water management systems on those sites?21
A Yes.22
Q But after your service with Negarry and23
Associates, would you describe, briefly, your -- your24
career since then?25
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A After Negarry and Associates, I moved on to a1
full-time position as municipal engineer in Fanwood,2
New Jersey, but at the same time, because it wasnt3
really enough income to work, and I started my own4
company. I used the -- I did about one major project a5
year, a large development project, and a series of6
smaller projects, improving road -- including road7
improvement projects and any special projects that8
other people couldnt take on, I took on and solved.9
Q And have you served as municipal engineer for10
any other town besides Cranford?11
A The Township -- the Borough of Fanwood for close12
to 12 years, I believe.13
Q And since 2004 youve served as a township14
engineer for Cranford?15
A That is correct.16
Q Do you hold any professional licenses?17
A Im a professional engineer, professional land18
surveyor. I have a professional planners license,19
although I didnt renew it when I came into Cranford.20
And Im a certified municipal engineer. I guess21
theyre the major ones.22
Q And during your career as an engineer have23
you ever been called upon to testify as an expert24
before any municipal planning boards or boards of25
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adjustment?1
A Once, representing Giatech Associates.2
MR. FENLON: Your Honor, I would ask that the3
Court qualify Mr. Marsden as a expert in professional4
engineering.5
THE COURT: Any questions?6
MR. EISDORFER: Not at this point, Your7
Honor. Ill save it for my cross.8
THE COURT: Okay. All right. So he will be9
so qualified as an expert in, what did you say?10
MR. FENLON: Professional engineering.11
THE COURT: Professional engineering.12
Okay. So youre offering him as an expert13
not as a fact witness in this case.14
MR. FENLON: Well, actually both, Your Honor.15
THE COURT: Okay.16
MR. FENLON: Thank you.17
BY MR. FENLON:18
Q Now, Mr. Marsden, could you briefly describe19
your responsibilities as the township engineer for20
Cranford?21
A As township engineer Im responsible for22
infrastructure, for roads, sidewalks, curbs, storm23
water, sanitary, sewer issues. Because Cranford is a24
community that floods often, a large part of my25
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activities are monitoring the river and the storm sewer1
elements that are there. I am involved because of2
being the township engineer, I have to keep the maps3
updated, tax maps, all the other records we have,4
review planning, zoning, construction permits. Theyve5
tacked on -- they meaning the township, has tacked on6
buildings and grounds where we have maintenance tied7
into that in the engineering department.8
I go to council meetings on the request. I9
usually go once a month to a workshop. I cant -- I10
mean --11
Q Thats fine. Now you mentioned you have your12
own engineering firm. Could you tell me what the name13
of that company was?14
A It was called JEM Engineering, J-E-M, capital J,15
capital E, capital M.16
Q And what was the largest project you --17
engineering project you handled at JEM?18
A The last one was the Rigid Back Brook. It was a19
golf course of about 300 acres. It had Back Brook20
running through it, plus a tributary. Eighteen hole21
golf course.22
Q And what type of engineering work did you23
have to do in connection with the Rigid Back Brook golf24
course?25
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A Well, we did what we had called the side1
engineering, and Im trying to remember who the golf2
course architect was. He was in North Carolina. It3
started with Fabio. But we did the layout, the terrain4
for the various homes, we did the storm water5
management. We had to get the stream encroachment6
permits. We had to find the flood plain.7
We developed two lakes that we used for8
irrigation. Ones about a seven acre lake. We had9
about nine detention basins of various types, swales,10
everything we needed to make the golf course pass the11
DOT -- DEP standards.12
Q And during your initial years of design work13
and with K. Hubnany, did you design any storm water14
management systems say in the 1970s or 80s?15
A In the 80s I went with Hubnany, since 83 I16
believe. And the answer is yes. I mean, most of our17
projects require storm water management of some size18
because they were large development projects that we19
had to mitigate, you know, the development, the20
impervious cover to try to keep the site in21
precondition as the storm water is released from the22
site.23
Q What type of systems were customarily24
utilized in the 1970s and early 80s.25
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A Well, in the 70s, I mean, when I worked for1
Giatech or Luster and Goriello, we were allowed then to2
what we called 20 percent -- encroach in a stream 203
percent. But we still had to, you know, mitigate the4
fill in some areas by creating detention basins.5
Actually, yesterday I was talking to a6
gentleman. We had -- I had a project on Route 22,7
Steak and Ale. And he used to do Steak and Ale. So he8
was telling me, Well my Steak and Ale is a detention9
basin and then a recharge -- not a recharge system but10
a piping system underground with stone wrapped around11
it. And he says, Well, I did one of those up in North12
Jersey somewhere.13
And we were saying that, you know, back then14
things needed parking lot storage, meaning there was -15
- the one I can think of only is in Fanwood before I16
became an engineer there, was a funeral home on South17
Avenue where we did parking lot storage. Strictly two18
basins on either end with a big pipe between them,19
stone in it, and an overflow.20
The parking lot would fill up partially as21
part of the storage. The pipe itself would act as22
storage. And that would be what we would mitigate.23
Our mitigation measure were when the water came down,24
now we have a parking lot there instead of an open25
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area. That water is stored on the site and released1
slowly. And thats the method, simple method, as best2
management practices they even use today.3
Q And you indicated that part of your work as4
Cranford engineer as related to issues of flooding. Is5
that correct?6
A Yes.7
Q And what type of activities have you8
undertaken as township engineer with respect to the9
flooding conditions in Cranford?10
A Well, one of the things that I pushed hard for, we11
rewrote out storm water ordinance and we modeled it on12
the New Jersey Department of Environmental Protection13
best management practice, model ordinance. However, I14
incorporated into it restrictions for residential15
development impervious cover. Because what you find in16
old communities is that the piping systems were done in17
the 50s or the 60s and eventually people started18
doubling the width of their driveways, adding patios.19
And the question comes to an engineer that works in20
municipal governance says how come the streets are21
flooding, how come its gotten worse.22
My experience in Fanwood I have found, for an23
example, in 72 I designed a 42-inch piping -- 42-inch24
pipe. It was called the 25-year design. I had, when I25
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was engineer in the 80s there, we had a project, it was1
just down the stream, and I had the consulting firm2
evaluate what capacity that pipe was. That pipe went3
from a 25-year storm capacity to a four-year storm4
capacity.5
And that enlightened me to say, well this6
little bit of development or these little lots alone,7
which are not part of the requirements of the state or8
anything else, do impact your community in storm water9
management.10
So, in Cranford I put a restriction on this11
ordinance saying you can -- any -- 450 square feet or12
better, you have to mitigate the storm water due to the13
impervious cover.14
The other projects I did where we had15
consultants that were part of that before I got there,16
but we implemented and moved ahead a pumping station17
project -- five million. We had what I call a phase18
one express storm sewer project which took storm water19
that was upstream of our community and expressed it to20
the river so it wouldnt flood along our river, our21
homes that are along the river earlier, at an earlier22
time frame of a storm event.23
Other than that, were always drawing plans24
up, were trying to mitigate where we can. We have25
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five phases in this what we call the northeast quadrant1
storm order management program. We have the Army Corps2
working with us and doing a study for dikes. We had3
existing dikes there that just breached in 2007. It4
just breached this year, in March, and did breach in5
2007.6
MR. FENLON: Id like to have an exhibit7
marked.8
Your Honor, could I have this exhibit marked9
D-169 for identification.10
THE COURT: Okay. So this is a new exhibit.11
MR. FENLON: A new exhibit, Your Honor. This12
is the ordinance that the witness referred to.13
(Pause)14
BY MR. FENLON:15
Q Now, Mr. Marsden, let me show you an exhibit16
that was marked for identification, D-169, and take a17
look at that and see if you can identify that document.18
A Okay. This is the storm water management19
ordinance that we adopted in 2008, I believe. Yes.20
THE COURT: When was it adopted?21
THE WITNESS: The township meeting held22
November 25th, 2008.23
BY MR. FENLON:24
Q And this is the ordinance that you say you25
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prepared as township engineer.1
A Thats correct.2
Q And based it off a --3
A A New Jersey --4
Q -- draft --5
A Yeah. New Jersey Department of Environmental6
Protection model ordinance.7
Q Now as township engineer have you been8
involved in responding to street flooding issues within9
the township during your tenure?10
A Yes. We have -- actually Cranford, due to their11
experiences, their flooding, have created a very good12
protocol system. We have gage stations we monitor. I13
developed a map that shows areas based upon police, the14
public works, and the engineering records that show15
areas in the town that flood in intersections so we can16
put up barricades or be aware of them.17
When a gage station hits a certain number, we18
send out the notices for our emergency management19
operation team to get in place, which Im part of. The20
barricades are set in positions in lieu of the21
flooding. Its quite a bit of storm water we do in22
Cranford.23
MR. FENLON: Your Honor, Id like to have24
this exhibit marked as D-170 for identification.25
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(Pause)1
BY MR. FENLON:2
Q Now, Mr. Marsden, Im going to show you a3
document which we marked exhibit D-170 for4
identification and ask you if you can identify this5
exhibit for the Court?6
A This is an exhibit I prepared to present to the7
township council when I was requested to look at this8
site back in 2008, and I prepared a memo to go along9
with it.10
Q And Im going to take you through each of the11
drawings, but with reference theres a map in the12
bottom left corner which was marked as exhibit 3A of13
your deposition. A moment ago you made reference to a14
map that you prepared regarding streets. Could you15
come up here and describe this exhibit for us and how16
you prepared it?17
THE COURT: And can you keep your voice up a18
little bit?19
THE WITNESS: Oh, I can project.20
This, 3A?21
BY MR. FENLON:22
Q Yeah, this one here.23
A Exhibit 3A is a map that my engineering department24
prepared and completed on September 2nd, 2008. It25
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shows in red the locations of flooding that occurred in1
our entire community of Cranford and areas that are2
circled show where we usually have to put barricades3
up.4
When I mentioned about the part of my5
responsibility with this flooding is to keep an eye on6
it, oversee some of the operations being done involving7
public works. Public works involves the police8
departments.9
When we do get a call or when we decide that10
the storm is getting to a point were going to have to11
get ready for this, those are usually areas we hit12
first with the barricades and preparation. When the13
storm gets to that point, then the police go out there,14
the public works go out there and they place the15
barricades.16
So its very difficult say from here, but17
those circled areas are areas where barricades have18
been placed. The red areas are water -- where water19
and flooding occur, where we have to be cautious that20
they can, and at sometimes may be barricaded. You can21
see the site is -- Birchwood is up -- Birchwood Avenue22
is up here. That circle is there because it does flood23
and it gets two, three foot of water in there.24
If you go down you can see the next street is25
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Wadsworth. Wadsworth. Right? Wadsworth. Ive been1
six years and I still cant remember. Wadsworth. And2
then we have Casino Road which the brook meanders. The3
one side is piped out, the other side -- fronts and4
backyards. That street is a river. And Ive seen it5
in my six years three, four times, run like a river6
when the Casino Brook gets inundated. And its a big7
concern of ours.8
We have other tributary brooks that are big9
concerns. Orchard Brook. We have a detention basin10
that dealt with another brook. This flooding here is11
due to the Rahway River directly because the Rahway12
River floods takes in an area that goes all the way out13
to here, all the way out to the east to the Noma Haven14
Park and then comes out in here to the high school and15
the grammar school and comes back in.16
The north side is where our major flooding17
does occur. The south side is not as much. We have18
over 280 homes. Or the 100 year flood plain on the19
north side, and some of them get basements full of20
water.21
So this is why this community, and I think22
one of the reasons I was hired is because my ability to23
understand storm water management.24
Q And what sort of data did you have in order25
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to create this exhibit and mark the streets that were1
ordinarily blockaded and --2
A The police had a list. I talked with the officers3
involved in it. I think they -- they just know which4
streets to go to back when I first came on board.5
Public works, in talking to them, what streets being6
there. For the, what, almost four years prior to that7
I got to know those areas myself and I questioned them8
and the barricades. So it was a corroboration of9
pieces of information put together.10
MR. FENLON: Your Honor, there is a folder in11
volume one that has each one of those exhibits12
separately as 40 --13
UNIDENTIFIED: Its actually A is 40 --14
MR. FENLON: 37, 45, 48, 49 exhibit.15
THE COURT: Say it again.16
MR. FENLON: 37, 45, 48 and 49 and 50, and17
theyre in a clear, plastic folder in the beginning of18
Volume 1.19
THE COURT: Oh.20
MR. FENLON: And this particular drawing,21
Your Honor.22
THE COURT: Thank you.23
MR. FENLON: A is exhibit D-45.24
THE COURT: Let me see.25
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BY MR. FENLON:1
Q And so this map you prepared on September 2nd2
of 2008, is that a distillation of historical data3
within possession of the Township of Cranford?4
A Yes.5
Q And during your tenure as township engineer6
have you ever witnessed flooding on the site which is7
the subject of this litigation, 215 and 235 Birchwood8
Avenue and/or on Birchwood Avenue itself?9
A Yes.10
Q On how many occasions have you --11
MR. EISDORFER: Object to the question. On12
the site. On Birchwood Avenue. On both of them. On13
one or the other.14
THE COURT: Okay. So you just want him to be15
more specific.16
MR. EISDORFER: Yes, please.17
THE COURT: Okay. Im sure he can do that,18
right?19
MR. FENLON: Okay. Well take -- well take20
it --21
BY MR. FENLON:22
Q The street Birchwood Avenue, have you ever23
seen that public street in a flooded condition?24
A Yes.25
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Q And on how many occasions?1
A Gee, on many occasions. I mean, I dont get to go2
-- I dont go there for every storm event, but Ive3
probably been there five, six times going through the4
community.5
Q Now were you -- now with respect to the6
property located at 215 Birchwood Ave., have you ever7
observed that particular property in a flooded8
condition?9
A 215 is the one to the east. Is that correct?10
Q Yes.11
A Okay. Yes.12
Q On how many occasions have you observed that?13
A It would be about the same. As I say, I drive --14
you can drive through Birchwood and you can stop and15
see up Verizon Property, down the other side to see the16
limits of the flooding.17
Q And the same question with respect to 23518
Birchwood Avenue. Have you ever seen that property?19
A It would -- it would be the same answer, yes.20
Q And did you have occasion to be on the -- on21
Birchwood Avenue or either 215 or 235 Birchwood Avenue22
during the rainfall that occurred on April 15th of23
2007?24
A The tax day storm?25
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Q Yes.1
A Yeah. I was there. I didnt spend any time2
there. I was trying to get around to another area, but3
I did see the site, yes.4
Q And let me just show you some photographs5
which are attached as exhibits C, D, E, and F and G to6
what has been marked as defendants exhibit 113 which7
is the January 14th, 2010 report of Thomas Kramer8
(phonetic).9
MR. EISDORFER: Mr. Fenlon, are these the10
same exhibits weve previously marked as D-25?11
MR. FENLON: No. I dont think so.12
THE COURT: Are you talking about these13
photographs? Are we talking about these photographs14
again?15
MR. FENLON: No, Your Honor. These are --16
photos are attached to Exhibit D-113.17
THE COURT: Okay.18
(Pause)19
BY MR. FENLON:20
Q Again, Im going to point your attention to21
Exhibit C through G of exhibit D-113 and ask you if22
these photographs accurately reflect the conditions on23
Birchwood Avenue and the CDA site which you observed on24
April 15th, 2007, the so-called tax day storm?25
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A Yes.1
Q Now, Mr. Marsden, I think you indicated that2
at some point in 2008 you were asked to review a3
development proposal submitted to the township by the4
plaintiffs in this case.5
A Did I? Yes.6
Q Do you recall when you were asked to7
undertake this engineering review?8
A It was in October 2008, I believe.9
Q And in that regard what documents were you10
requested to review by the township committee?11
A Well, I had a concept plan to review that was12
presented from the applicant to the township committee.13
I prepared a concept -- a conceptual review of that14
concept plan which is the one thats shown in the15
exhibit that I was looking at before.16
Q And the -- what was the nature of the review17
that the township committee asked you to undertake with18
respect to the CDA concept plan?19
A Well, it was -- it was basically I do reviews for20
them and other properties. Its a standard review.21
Check out the drainage, check out any utilities, check22
out what could be impacting to our community. So its23
-- I mean, I look at the drainage, I look at the24
utilities conceptually, and I advise so that if they do25
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go further they can look into what other reports1
theyre going to need, you know, traffic,2
environmental. Its a conceptual review that3
highlights what I think the concerns should be based4
upon my experience of these type of evaluations.5
Q And as part of the -- your review, did you6
prepare the four drawings or sub-drawings on Exhibit D-7
170 which are sub-marked Exhibit B, C, D, and E?8
A Yes.9
Q And you prepared those exhibits in connection10
with a presentation that you were going to make to the11
township committee?12
A Yeah, a presentation I made to the township13
committee, yes.14
Q Why dont you take us through the -- youve15
already discussed the flooding map streets which is16
Exhibit A. Why dont you start with Exhibit B and take17
us through the three drawings that you prepared?18
A The set exhibit B is an overall drainage area for19
Casino Brook. I found that and its part of a key map20
in the county design for a culvert close to the21
confluence with the Rahway River where the brook would22
meet the Rahway River. Just to show that the total23
drainage area for this brook is quite large and that24
the development is in the middle of it and the25
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estimated drainage area above the development is at 2421
acres.2
I show the line of the Rahway River in blue.3
I show the lines where the Casino Brook traverses4
through the center of that yellow area. Any water that5
falls within that yellow area eventually goes to the6
brook, into the Rahway River. That was the intent of7
showing council.8
MR. FENLON: For the record, Your Honor,9
thats defense exhibit --10
THE COURT: Is it B? B-170.11
MR. FENLON: Thats a part of it, actually.12
THE COURT: Part of 170.13
MR. FENLON: In the folder I believe its D-14
37.15
THE COURT: Okay.16
BY MR. FENLON:17
Q And why dont we address the next drawing18
which is exhibit C on D-170.19
Q Exhibit --20
A Tell me what that drawing is.21
Q Exhibit C is -- it was a black and white copy22
of the concept plan that was presented to the town23
council at that time. I colored it to make it easier24
for the council to see what elements are on the plan.25
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The orange are the proposed buildings. The yellow1
represented pavement, parking, driveways. The green,2
heavy green line, represented the 50-foot wetlands3
buffer limit line. The lighter blue line I believe is4
the actual wetlands limit line that was delineated5
previously.6
The property is bordered by, it looks like,7
pink from here. And that shows the --8
Q Pink or purple.9
A Pink or purple. Okay. That showed the proposed10
development as it would sit on the entire site in11
relationship to the other elements there at that time.12
Mostly wetlands and the stream.13
Q And then the next drawing is Exhibit D.14
Could you tell us how you prepared that?15
A Exhibit D came from our -- our green acres or16
Rossi maps. They show land that is either township17
owned, open space, or green acres land. The purpose of18
this map is to show in this area there is a large area19
of wooded areas, you see theyre upstream and20
downstream of the development.21
I was trying to impose a connection between22
the region, showing that there are wooded areas, there23
are wetland areas that are part and contiguous with24
Casino Brook, that are important to the -- the25
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hydraulics of Casino Brook. Meaning that these help to1
keep more flood waters from coming down faster and I2
just wanted that to be given some attention.3
Its more of a heads-up, this is what we have4
there right now. Its township property, but as many5
of you know whove been to this site, right across from6
this site was all woods too, and it was wetlands, and7
that was part of the Verizon property.8
So its almost contiguous if you look at the9
nature of the existing construction with the park10
atmosphere where wildlife Ive seen go across one11
street to the next to transit themselves through the12
community.13
Q And the shaded in black area, can you14
identify that?15
A That is our conservation center. The majority of16
that is wetlands and forested. The perimeters are17
buffered. Thats where we have our recycling center, a18
small portion of it is located to the lower right.19
Q And again, the square or trapezoid thats20
either in purple or pink, could you identify what21
property that is?22
A Thats the Birchwood property. It had 215, 235.23
Q And the green area, could you identify that24
for the record?25
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A The green area is the approximate wetlands area1
that has been delineated for that property.2
Q And theres a blue dotted line also depicted3
on this map. Could you identify that?4
A Yeah. The dotted section shows where the Casino5
Brook is piped. The solid blue line shows where its6
an open brook. So where you see it dotted is where7
its underground. Theres a double elliptical pipe8
that goes through the Verizon property and it opens up9
into the wetlands of the township conversation center.10
You can see the tip of the blue line leaves11
the site off into Kenilworth. Thats also part of the12
drainage area. Off to the far right.13
Q The area youre referring off to the far14
right?15
A Yeah. Yes.16
Q So Kenilworth is to the north of the17
township?18
A To the northeast, yes.19
MR. FENLON: Just for the record, Your Honor,20
thats in that glassine folder, D-49, sub-exhibit D.21
BY MR. FENLON:22
Q And then the final drawing, exhibit D-170, is23
exhibit E. Could you identify it as far as that24
exhibit goes?25
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A Exhibit E is an aerial that is taken from our1
sanitary sewer maps where weve marked down our2
sanitary sewer lines. I superimposed in black dash3
lines the sanitary sewer region, which is sewer 24
series of lines, which are shown I guess in blue it5
looks like there.6
Its to give an idea of how many units, how7
much land developed properties do go into the existing8
sanitary sewer system. You can see the Birchwood9
property is in the middle. It was highlighted in10
purple. There is a six-inch line that comes from that.11
And it continues, the flow would continue down to the12
southeast, or in this map showed it lower, lower right.13
Up -- up stream of that is a school, pool, residential.14
And that all drains through the main part of the15
sanitary sewer system that eventually crosses where the16
six-inch line from the Birchwood property comes to and17
then drains again down to the lower right into Roselle18
Park.19
Q And could you identify what the --20
A Pink?21
Q -- pink line is?22
A The pink line is the township border line.23
THE COURT: Is the what?24
THE WITNESS: Township border line.25
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MR. FENLON: And for purposes of the record,1
Your Honor, that sub-exhibit E was marked as exhibit D-2
50.3
(Pause)4
MR. FENLON: Your Honor, Id like to offer5
exhibit D-170 into evidence.6
MR. EISDORFER: -- voir dire, Your Honor.7
THE COURT: Im sorry, you just have some8
questions?9
MR. EISDORFER: Yes, I want to voir dire him.10
VOIR DIRE BY MR. EISDORFER:11
Q If you look at the map marked A of D-170, is12
this a map that you prepared?13
A Yes.14
Q How many times did one of these intersections15
have the flood to be put on the map?16
A Well, they flood regularly, a hundred or more17
times.18
Q How many times do they have to be flood to be19
put on the -- put on the map?20
A How many times they flood. They only have to21
flood -- they flood regularly, two, three times a year.22
Q How many times do they have to be flood for -23
-24
A There is no criteria for that. We have criteria25
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for what -- what areas of intersections that require1
the barricades. These are areas that are typically2
flooding when a storm occurs. Do I know the exact3
number? No.4
Q I want to know how you prepared the map.5
A Based upon the information Ive gotten from public6
works, our engineering department, and police7
department on the streets that are typically barricaded8
during storm events that, you know, warrant that. And9
it happens two, three times, four times a year. Last10
year it happened -- its happened three times already11
since December.12
Q When you say three times, three times --13
three times that one or more of these -- of these were14
barricaded?15
A Most of these are barricaded.16
Q Well, when you prepared the map, how many17
times do they have to be barricaded before you said,18
Im going to put it on this map?19
A How many times?20
Q Yeah.21
A I didnt have a number of time limit, I just knew22
that theyre frequent areas of barricading. I didnt23
say, okay, how many times -- did it barricade, how24
many, two years or three years or four years or four25
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occurrences or three occurrences. These are things1
that do happen three, four times a year.2
Q When theres flooding, do they all -- do you3
barricade them all?4
A When its flooding they -- depending on the type5
of storm, some are not as critical as others and they6
do get -- some will not get barricaded. For example, I7
dont know -- theres ones always barricaded down on8
South Union Avenue and James Street because its just9
floods. So that was one of the first ones theyre10
always looking at.11
The later on flooding that would occur would12
be on Willow Street because its tied more into the13
Rahway River and it has less frequency of flooding but14
it is a major street where school systems are, where15
schools are and transportation systems to them travel,16
so that is the focus.17
The rest of them flood, depending on the18
nature of the storm and how it impacts the area.19
MR. EISDORFER: I have no objection to this.20
THE COURT: Okay. D-170 in evidence.21
MR. FENLON: Thank you, Your Honor.22
THE COURT: Let me just remind counsel that23
at the end, I mean, I have four binders probably from24
defendants and one at least from plaintiffs. Im going25
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to ask you to arrange for me just the documents that1
are in evidence. So the rest of it --2
MR. EISDORFER: In a lighter format?3
THE COURT: Yeah, just pull them out. I4
mean, you could have mine, but otherwise Im going to5
be faced with a lot of superfluous, unnecessary6
documents.7
MR. FENLON: We will. We will shorten what8
you have as much as possible, Your Honor.9
THE COURT: Thank you. Okay. Thank you.10
(Pause)11
BY MR. FENLON:12
Q Now, Mr. Marsden, with respect to the exhibit13
D-170, are there culverts depicted on the map exhibit A14
which is in the bottom left hand corner of the exhibit?15
A Culverts?16
Q Culvert crossings.17
A No.18
Q Are there any culvert crossings which impact19
Birchwood Avenue?20
A Yes.21
Q Now in connection with the engineering review22
that the township committee asked you to undertake, did23
you prepare a memorandum for the township?24
A The 2008 memo you are referencing?25
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Q Yes.1
A Yeah, in October 20th, 2008 I prepared a memo to2
go with my presentation of that conceptual review site3
plan.4
(Pause)5
Excuse me. I got a cramp.6
THE COURT: You need a break?7
THE WITNESS: No, I got a cramp.8
MR. FENLON: Maybe just a five-minute break,9
Your Honor.10
THE COURT: Okay.11
MR. FENLON: Thank you.12
(Recess)13
MR. FENLON: Just before we pick up, I wanted14
to do some housekeeping related work, moving in matters15
of the evidence.16
Im just thinking it might be easier if we17
also move into evidence each of the sub-maps that are18
on exhibit 170 which is now in evidence or individually19
mark, those are defense exhibits D-37, 45, 48, 49, and20
50. They were in that --21
THE COURT: 37, 45, 48, and 50?22
MR. FENLON: 49 as well.23
THE COURT: Okay. They correspond to the24
photographs.25
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MR. FENLON: Yes.1
THE COURT: So -- so --2
MR. EISDORFER: Im sorry. These are the3
photographs?4
MR. FENLON: No, no.5
THE COURT: No, no, no, maps.6
MR. FENLON: Theyre drawings.7
THE COURT: Theyre drawings.8
MR. FENLON: Yes.9
THE COURT: So D-50 is exhibit E, D-45 is10
exhibit A, 48 is C, and 49 is D. And --11
MR. FENLON: 37 is B.12
THE COURT: 37 is B.13
MR. FENLON: B as in boy.14
THE COURT: So I assume you have no15
objection.16
MR. EISDORFER: You know, they were going to17
be admitted --18
THE COURT: Yeah.19
MR. EISDORFER: So I have no objection of20
marking them separately.21
MR. FENLON: And then, Your Honor, Id like22
to move into evidence exhibit D-169 which is Township23
of Cranford for ordinance 2008 --24
THE COURT: I assume you have no objection,25
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Mr. Eisdorfer.1
MR. EISDORFER: I have no objection.2
THE COURT: D-169.3
MR. FENLON: And then, finally, Id like to4
move into evidence two documents which together5
comprise Mr. Marsden, C.P. The first is exhibit D-1366
which is a September 2007 continuation. And the next I7
had marked as for identification exhibit D-136A which8
is Mr. Marsdens CV through January of 03.9
THE COURT: 136 and whats the other one?10
MR. FENLON: 136A. 136 is in the binder;11
that earlier CV is not, Your Honor.12
THE COURT: This is 136A, what you just13
handed me?14
MR. FENLON: Yes, that is, Your Honor.15
THE COURT: Okay.16
MR. EISDORFER: Your Honor, I have no17
objection to any of those.18
BY MR. FENLON:19
Q Now, Mr. Marsden, just before we broke I20
think we were discussing whether or not you prepared21
any memorandums for the Township of Cranford committee22
concerning your assessment of the CDA concept plans and23
in October 2008 you indicated you had. Is that24
correct?25
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A Thats correct.1
Q Let me show you a document which has been2
marked as exhibit D-55 and ask you if you can identify3
that document.4
A This is the document that I wrote when I received5
this -- concept plan. Information in the document was6
based on my review of said concept plan.7
Q Was there any other -- were there any other8
documents, reports, or the like, that were provided by9
the plaintiffs at the time you were doing this concept10
plan in October of 2008?11
A No, I believe it was just this concept plan.12
Q And was there any other reports or data that13
you reviewed independently in connection with the14
preparation of your October 20th, 2008 memorandum?15
A Any documents I reviewed independently, meaning in16
reference to the site that I received? I dont17
understand the question.18
Q Did you look at any other information in19
preparing exhibit D-55 besides the concept plan?20
A Well, the exhibits that I presented and thats21
basically where all that information came from.22
Q Prior to preparing this memorandum had you23
ever been on site at either 215 Birchwood Avenue or 23524
Birchwood Avenue?25
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A Yes, I have.1
Q So you were familiar with the property when2
you received these concept plans?3
A Yes.4
Q Now could you tell me what -- whether you5
reached any conclusions regarding flooding in your6
memorandum?7
A In the October 20th, 2008 memorandum I -- I8
questioned the site on the flooding issues pertaining9
to where the flood plain was, where the flood -- would10
be, and I pretty much stated that because Casino Brook11
is a very sensitive brook, it does flood already, that12
we have to focus on making sure no conditions will get13
worse due to this potential development.14
In reviewing the application, I felt that15
theyd have to get a New Jersey Department of16
Environmental Protection flood hazard permit because17
there was no flood plain shown in the maps we have.18
However, through my experience I knew there had to be19
some and it had to be impacted to this area.20
The other concerns would be the utilities,21
the sanitary sewer specifically because its an older22
area. The sewers may have been built in the 50s. Some23
of these homes are built earlier than that. So I24
highlighted, like I should do during any conceptual25
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review, those areas of concerns. Unsanitary sewer was1
another one.2
If I may. Utility infrastructure comes to3
light for water, for example. Ive had involvement4
with I call mid-rise. We have a seven story parking5
garage. When I first came in the township, I6
questioned. It was submitted to go to construction,7
and I questioned sanitary sewer and the water pressure.8
They said they had adequate water pressure. However,9
when we went and tested the hydrants they found they10
did not. So obviously, based upon the experience Ive11
had I says, well, you know, out here, residential, a12
lot of the systems in our community are low pressure13
systems. I think its something to be aware of that14
its going to be a cost factor. You may need to15
upgrade the water systems.16
Sanitary sewer, we did the study for the17
Cranford Crossing Garage and found it just met the18
conditions of existing sewer system. However, even19
there I implemented and put into my stimulus package a20
lining program for that sanitary sewer cause it has21
inflow infiltration problems and it will be impacted by22
additional flows as opposed to what existed there prior23
to that.24
This is the same type of evaluation I did on25
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this site conceptually, to say, well there would be1
sanitary sewers issues, there may be water issues. Im2
not the utility companies, but you should bring that3
to, you know, light in concern for development of this4
magnitude.5
Basically, like other developments, I refer6
to police or fire for fire zones and I just make sure7
that the councils aware that these are things that are8
going to have to be looked at in a development of this9
type. And thats basically the gist of this memo.10
Q Did you make any conclusion as to whether11
there were areas within Casino Brooks drainage basin12
that served as natural detention systems?13
A Yes, I did. And that refers back to the exhibit D14
I talked about there, where we have the green acres15
wetlands that are down stream of the site and the issue16
of upstreaming the site. And including on the site17
where they have the wetlands and the lowland areas that18
arent wetlands because this is -- this is the concern19
I have about doing the stream encroachment application.20
They could find out where it was because we felt even21
in the builded -- built areas that have already been22
constructed, the offices, there are areas where there23
is water being stored outside the wetlands area. So24
there is concern, there was a concern for that.25
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Q And I think you indicated that one of the1
areas concerns was your inclusion that this project2
would require a flood hazard area permit. Is that3
correct?4
A That is correct.5
Q And did you reach any conclusion whether the6
concept plan as proposed by the plaintiffs in September7
of 2008 would increase impervious coverage from the8
existing site?9
A I have to refer to this memo at that time. I10
mean, yes, I believe there would be -- I mean, not a11
belief, but I felt that when I saw that there would be12
more impervious cover created.13
Q And what was the basis for that conclusion?14
A Well, the initial observations of this site showed15
that not only was there flooding into the Birchwood16
roadway system but there was flooding on the property.17
The 235 site is to the west, is inundated at times,18
meaning flood -- flood completely along their parking19
lots.20
Plus the fact that we had noticed prior to21
that on this site that there was some type of storm22
water detention system put in the upper -- I call it23
the upper site or the site thats higher in elevation24
known as 215 in the parking lot. Im not sure. I25
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brought that up in detail with that memo. Im just1
trying to find it quickly.2
THE COURT: Mr. Fenlon, my memo just goes up3
to Page 4, and then it gets redacted.4
MR. FENLON: Yes, Your Honor. Yes.5
THE COURT: Is that correct?6
MR. FENLON: That is correct.7
THE COURT: Okay. Thank you. It didnt look8
like there was any kind of conclusion on it at all.9
THE WITNESS: No.10
THE COURT: Okay.11
THE WITNESS: I mean, at that time I was12
highlighting concerns.13
BY MR. FENLON:14
Q And did you make any assessment or testaments15
of whether the proposed project would be significantly16
increasing the sanitary sewer flows into the existing17
system?18
A Well, I did. I believe I did some quick19
calculations based upon DEP standards and I felt that20
the sewer flows would double, and thats where I21
believe I would recommend that there would be a study22
for that.23
Q And did you reach any conclusions regarding24
whether this concept of land -- project would be25
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required to comply with the storm water management1
regulations in the residential improvements --2
A Well, I mean yes. Based upon my observation of3
the site, what I know about the flooding in the area, I4
pretty much recommended that theyre going to need a5
flood hazard permit and theyre going to have to6
mitigate it based upon the resident site improvement7
standards because of increase of impervious cover.8
Q And at some point in October of 2008, did you9
present your findings to the township committee?10
A Say it again.11
Q Well, your memos dated October 20th 2008.12
A Okay, yes. I presented this memo at that time13
with this display, going over --14
Q Exhibit D-170?15
A These exhibits, yes.16
MR. FENLON: Your Honor, I would like to move17
into evidence exhibit D-55 which is Mr. Marsdens18
October 20th 2008 memo.19
MR. EISDORFER: Your Honor, with quick20
permission Id like to voir dire on this.21
THE COURT: Okay.22
VOIR DIRE BY MR. EISDORFER:23
Q Mr. Marsden, D-55 was cast in terms of24
recommendations. Isnt that correct?25
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A D-55 is -- yes, recommendations and concerns of1
what this -- this improvement would be.2
Q Yes. And these were recommendations for more3
information to be provided by the property owner?4
A Thats correct.5
Q Do you know -- did you communicate these6
recommendations to the property owner?7
A Its my responsibility to send it to the township8
clerk, to the township committee. They do what they9
will with that.10
Q Did you have an interactive process with Mr.11
-- with the developers engineer?12
A Not at that time. Not at that time.13
Q Do you know -- did you make a recommendation14
to the township council when you presented it, that15
they seek information from the developer?16
A Thats what is in my memo.17
Q Okay. And did they -- did they communicate18
that to -- to the developer?19
A I dont know.20
MR. EISDORFER: I have no objection, Your21
Honor.22
THE COURT: So D-55 in evidence.23
MR. FENLON: Yeah, Your Honor, in evidence24
for -- for the purpose of showing what the witness25
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opinions are.1
(Pause)2
BY MR. FENLON:3
Q Now, Mr. Marsden, I think you indicated that4
you were familiar with the 215 and 235 Birchwood Avenue5
properties.6
A Thats correct.7
Q Prior to preparing the October memo. Is that8
correct?9
A Thats correct.10
Q October 20th memo.11
A Yes.12
Q And Im going to show you three exhibits and13
ask you if you can identify them. Its D-153G, 153C.14
Mr. Marsden, can you identify these15
photographs for the Court?16
A You already gave them to me. 153G was taken --17
all three of these were taken around February 2007. I18
had my technician whos in the township engineering19
department for 28 years and we were out looking at the20
wetlands and the systems that go into the wetlands back21
there. And this was brought to my attention, so it was22
the focus of this site.23
We found what you see on exhibit 153G, two24
chambers and a smaller chamber which is a -- a gate.25
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How would you say, its an adjustable crank, like a1
steering wheel gate system that opens and closes a gate2
at the pipe. When we opened these up, we found that3
there is a large pipe going into the big chamber, a4
small pipe leaving it, going into this gate chamber5
which has the adjustable valve. What youre seeing has6
been hit, I assume through snow plowing or whatever in7
the past. That after the gate flowing downstream, the8
pipe would discharge into the brook that was right in9
the distance where you can see the homes are right10
beyond -- beyond that.11
The photograph was taken from the parking12
lot, looking south, towards Wadsworth.13
Q On which property, 215?14
A On 215.15
Q The eastern most property?16
A Thats correct.17
Q And did you take these photographs?18
A I took those photographs. On D-153C, again, I19
just took photographs showing the limits of the20
wetlands in the distance and how its buffered. It was21
just informational for me to put this in a file that we22
had at that time.23
The best time to look at wetlands and those24
areas for hydraulic reasons are in the winter time25
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because theres less vegetation and you can see what1
you have in there. And basically thats what weve2
done. You cant see the ditch. You can see a dark3
depression which shows it on D-53B. That was the4
intent of that extra review.5
Q And these pictures were taken on February --6
A February 2nd, I believe, 2007.7
Q And they were taken at various locations in8
the parking lot.9
A Basically, through the back of the parking lot.10
Were looking at the wetlands in the back there.11
Q And do these photographs accurately depict12
what you observed when you took the photographs on that13
date?14
A Yes.15
MR. FENLON: Your Honor, Id like to move16
into evidence exhibits D-153B, C, and G.17
MR. EISDORFER: Your Honor, if I could voir18
dire on these.19
THE COURT: Sure.20
VOIR DIRE BY MR. EISDORFER:21
Q This property is privately owned, isnt it?22
A Yes.23
Q Did you have -- did you have the consent of24
the owner to go onto the property?25
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A No.1
Q Now there was an application pending at the2
time, wasnt there? There was no application for re-3
zoning. Is that correct?4
A I dont recall.5
Q Did you go onto the site specifically to make6
-- in connection with that application?7
A See, I dont recall when the application timing8
was. I dont recall. I know I went out in the site9
due to my technician saying that we have -- there are10
structures out there. I wanted to see them. And I11
said while were out there, well go in the wintertime12
and check it.13
Could it have been Woodmont that triggered14
it? I dont recall. I really dont.15
Q You dont recall at this point.16
A No, I dont. Im sorry.17
MR. EISDORFER: I have no objection.18
THE COURT: Okay. 153 --19
MR. FENLON: B, C, and G.20
THE COURT: In evidence.21
(Pause)22
BY MR. FENLON:23
Q Now, Mr. Marsden, I think on one of the voir24
dires counsel for the plaintiffs asked you if you had25
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any communication or interactions with the plaintiffs1
or their representatives. Do you recall whether at any2
time you had any meetings or communications with the3
engineer for Cranford Development Associates, Mr.4
Michael --5
A After that memo in October 2008, yes.6
Q Do you recall when the first contact you had7
was with Mr. Dipple (phonetic)?8
A I dont recall whether it was a meeting and then9
we decided to go out and look at the site together. I10
believe thats how it went. But I dont know any dates11
at this time.12
Q Now did there come a point in time when my13
law firm for -- well, strike -- withdraw the question.14
Did you become aware that at some point in15
time the plaintiffs of this action filed a builders16
remedy lawsuit against the Township of Cranford?17
A Yes.18
Q Do you recall when you first became aware of19
that fact?20
A Time-wise, dates, no.21
Q Okay.22
A It was later.23
Q Did there -- I will represent to you for the24
record that their complaint was filed on November 12th25
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of 2008.1
Did there come a point in time during the2
pendency of the litigation that my office as counsel3
for the Township of Cranford asked you to prepare a4
memorandum or report in connection with the litigation?5
A Yes.6
Q I show you exhibit D-98 and ask you if you7
can identify that exhibit?8
A Well, as per the township attorneys request, I9
prepared a more detailed document of my side assessment10
of this project that was being proposed, and that was11
on October 21st, 2009.12
Q And subsequent to the townships service of13
this document, you were deposed by both sets of14
plaintiffs. Is that correct?15
A Thats correct.16
Q And could you briefly describe what exhibit17
D-98 is?18
A Its a more detailed project site assessment19
review based upon the concept plan that was presented20
at that time which I believe is the same plan thats on21
the board as exhibit C there. It highlights in a22
little more detail and makes conclusions on certain23
areas based upon my experience in the field of24
engineering, site evaluation, and the multi-family25
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development.1
The flooding, as I said in the original memo,2
of Casino Brook is something we have to be very3
sensitive to.4
Q And why is that?5
A Because Casino Brook, when it rains hard and not6
have to be a 50-year or 100-year storm, we have7
flooding in the roadway, the brook is -- traverses the8
front, the sides, and the backs of homes downstream.9
We do barricade areas. Any additional development10
along in that flood plain has to be looked at carefully11
and make sure we dont make the conditions worse.12
Actually, I say in there, I mention streets13
that flood for lack of capacity of storm sewer system14
through the years of development upstream that created15
that problem. I dont want to make it worse. Thats16
my job as engineers, to not allow that to get worse.17
So I reviewed that as a project impact.18
At that time I mentioned not only the fact19
that the -- I felt the sites were in the flood plain or20
flood way, it had to be delineated, but I also21
mentioned the fact that there were two chambers that22
indicated and confirmed to me that the site that23
contained 215 had detention systems already in place in24
it for the parking lot.25
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And I felt that that was an issue that cannot1
be ignored because right now with the existing flow2
that we use that site includes the hydraulic design of3
those detention features which is flooding the parking4
lot, the pipes, and with the regulated gate valve5
outflow and which is not uncommon for a design that6
would be done in the 70s. As I mentioned earlier, we7
have done parking lot detention, meaning we flood the8
parking lot and make it like a dish so people still can9
get out, that theyre not inundated above their10
driveways. Its usually maximum of six inches. But11
there is a regulated outflow. The piping systems12
collects the water, a big pipe goes into a chamber,13
small pipe goes out. If the flows are greater than14
what the small pipe allows out which is the control,15
then the parking lot begins to flood out.16
Then theres a point where it would spill17
over which maximizes its storage capacity. I look at18
this site and thats what I saw.19
Q I think you indicated that you saw some --20
some other detention basins. Could you describe them?21
A Thats correct. Along with the property of 215 to22
the western property line, the common boundary line of23
235 and 215, there were manmade rectangular not24
cavities but swells that were there. At the time we25
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were trying to figure out why they were there.1
We checked against the building, just looking2
at that time to see if we had some type of drainage3
system that would go to it. We couldnt observe any4
real piping system going to it other than those covered5
little grates that show there is a direction of flow,6
the pipe that goes in that direction. It was wet at7
the time, there was water in it at times Ive been8
there. These are features which I actually use now9
when I did my golf course. It controls the velocity of10
water and --11
Q Let me just interject for clarity of the12
record, you refer to the golf course, is that the Rigid13
Back Brook.14
A The Rigid Back Brook.15
Q Which you engineered.16
A Along the edge of wetland areas we would collect17
water and swales and then had a little berm to hold it,18
and then the next one would drip down. Thats what it19
appeared to be at that point. I couldnt find an20
actual daylight piping system, but then again it21
doesnt mean its not in there underneath, acting as a22
recharge area. Meaning that its underground with23
opening to let it out.24
Q Let me just interrupt you for a minute. If25
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you take a look at the date of this memo, its October1
21st of 2009, I had asked you a bit earlier if you had2
had some meetings or phone conversations with Mr.3
Dipple, the plaintiffs engineer. Does seeing the date4
of this memo refresh your recollection as to when the5
first communications you wouldve had with Mr. Dipple6
regarding this site?7
A No, I cant say whether it was before it or after8
it. I mean, thats -- maybe Mr. Dipple -- I dont9
recall. I know we out to the site and we showed these10
elements to, you know, Mike, the swales, questioning11
why are they there, is it something to be concerned12
about.13
I also showed him the front where the trees14
were, where the -- setback, where theres a shallow15
there where I says, you know, in storm water management16
you would consider -- you look at the site two17
dimensionally. You look down and say, okay, this grass18
or this is woods and -- and you put in an impervious19
cover factor to it.20
One of the things that its difficult to21
determine is the site specific issues like in the front22
of 215 theres like a dish, and water will sit there23
first. And then eventually go underground or spill out24
and go. So it has its own natural detention. And,25
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again, it goes back to my concern. The Casino Brook1
being treated fairly so that we make sure we get the2
proper outflow to it that doesnt make the condition3
worse. We dont -- you know, we dont increase the4
flow into that brook.5
This site has, in my opinion, detention in6
the parking lot already, it has detention in the front7
in the small form of recharging into the ground, and on8
the side there was some reason why there were three9
rectangular structure, ground depressions that were10
created there. And highly suspicious. It looks like11
it was some type of correction system to slow the flow12
of water down.13
Q Youve reached that conclusion --14
A Ive reached that conclusion.15
Q -- in your professional capacity as an16
engineer from your experience?17
A Yes.18
Q In your October 2009 memorandum, exhibit D-19
98, did you reach or reaffirm any conclusions as to20
whether the September 2008 concept plan would represent21
an increase in impervious coverage?22
A At that time I came to the conclusion that it23
would increase impervious cover because they werent24
talking about mitigating for the existing storm water25
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detention or retention that was there. They were using1
the parking lot. Strictly impervious cover with the2
existing building and saying, Listen, my development is3
a little less than that. But I have to incorporate the4
existing hydraulic condition that was there which5
includes the storage that that parking lot was6
designed for and those rectangular features on the7
side, at a minimum.8
The intent of not releasing more water is --9
the -- regulations is not to release more water on --10
off the site into our system. If you ignore the11
detention thats there, its just like having --12
impervious cover, you know, go through the site into13
the brook, into Casino Brook.14
Q Now based on the concept plan, what15
structures are being proposed to be corrected on the16
existing parking lot and the area where the existing17
building on 215 are presently situated?18
A I dont know if the numbering system -- I think19
building B which is the large building that goes down,20
what, four, 500 feet, it looks like a reverse E at the21
bottom, thats the area where the parking lot is. And22
a little further into the main structure.23
Thats the area that becomes all building,24
all roof, with driveways around it. Thats the area25
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that if you rip up the parking lot and placed a1
building, youre also ripping up that existing storm2
water detention feature.3
Q Right. And with the construction of a 5004
foot long building thats approximately --5
A I dont know if its 500 foot. I mean, its long.6
Q And its between 55 and 60 feet in height is7
what theyre proposing. Correct?8
A Thats correct.9
Q All right. If you replace the existing10
parking lot with a structure of that size, does that -11
- would that structure have any direct impact on storm12
water flow?13
A Of course if its not mitigated. What Im saying14
here is you build a large structure in a restricted15
upland area that already has distension features and16
you strip that of that and just build another building,17
its just like putting impervious cover on top of the18
site that did not have impervious cover.19
You have to understand, that parking lot at20
one time, if that parking lot was not there, the21
parking lot was put in and somebody say youve got to22
detain the water for all that asphalt you put in there.23
So they made the parking lot into a ditch. They had24
the collection system, and they said, okay, what were25
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going to do is detain that water in the parking lot as1
though its still a wooded site. And thats what it2
appears to be, and thats what I see has happened to3
the existing site.4
At some point the parking lot was put in.5
Maybe the entire building in the mid 70s. They went to6
put the parking lot in, they said youve got to detain7
that impervious coverage going in my wetlands8
undetained, please, you know, mitigate it.9
So they designed a system that water would go10
into the parking lot, fall out at a slower rate than it11
would without having any detention. The parking lot12
impervious water would go from one end of the parking13
lot quicker for asphalt or concrete than it would14
through grass or a forested area.15
The idea is to hold that water back so it16
only flows out at the same rate it did prior to17
development. And thats why the parking lot was18
designed as a dish with collecting systems, two piping19
systems. It went in the chambers, it had reduced pipes20
outflow. Added onto that were eight valves that21
regulate even that outflow. And thats why Im22
convinced that this design thats there today has23
detention features.24
Now what you do when you look at the25
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evaluation of hydraulics on a site, you say what is the1
hydraulics. Well, the hydraulics on the site include2
detention. Therefore, they assume that in the3
beginning, in order to make this detention work, that4
it was a wooded site. And thats what I referenced in5
my report. That because of the --6
(Tape 195-10 ends; Tape 196-10 begins)7
They had to detain that water from where8
there was woods before, or fields, and thats why they9
designed that system.10
So that feature right now, in my opinion,11
represents a wooded site because waters being released12
at the same rate it was when it was a wooded site.13
Q Now do you have a assessment of what the14
impact on -- in the event this building B was actually15
constructed as proposed, would have on if a significant16
rainfall occurred? Would it be different and more17
severe than the site as its presently constituted?18
A As its presently proposed, yes.19
Q What would that impact be?20
A Well, there would be an increase of runoff down21
the stream going into the brook. Therefore, the flow22
rate would increase, the downstream area would get23
water sooner and therefore have a larger volume sooner24
in that storm event. Im not sure I got that clear,25
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but when you look at an overall drainage basin area,1
just like in the yellow shown in exhibit B, when it2
rains we analyze the furthest point of the drop -- of3
the drop of the rain thats in that basin. In this4
case, it may be up there at the point where Kenilworth5
is. We establish a time of concentration. And by the6
time that water gets down to a certain point other7
waters start coming in. Thats how we develop how much8
-- and flow occur.9
Now if you take that upper reach and pave it10
like a flume, that water will fly down there. And11
because its the furthest point, the other water along12
the perimeters will also meet at a sooner time,13
therefore creating a greater volume in a shorter time14
which is whats been creating our flooding in our15
intersection because our storm water systems were16
designed initially not to accommodate that additional17
impervious cover.18
This is my whole reason why we increased our19
storm water management plan for impervious cover20
mitigation. This is why we have to monitor21
intersections because we, in the past, have not22
considered impervious cover as a major issue. And now23
we started to in the -- you know, in the 70s we started24
doing that, but mostly for industrial, not residential.25
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Later on it became more residential. Now1
its in my town that Im engineer in, Ive included2
single family residential that wants to build large3
additions in the 200 to 450 square feet or more, they4
have to mitigate it. By themselves thats not a great5
distance. And the council agrees that, you know, the6
town residents are going to have to pay three or $4,0007
more for seepage pits or ways to mitigate it because in8
the long run if everybody gets to increase their more,9
my storm sewer piping system cant contain that. And10
thats going to cost a lot more to fix than holding it11
in bay.12
And this is why, you know, I strongly feel at13
this site I cannot accept the fact that we cannot14
consider this sites existing detention features as15
deemed nonrelevant.16
Q And is it your professional opinion that the17
-- well, strike that.18
You reached a conclusion that the proposed19
concept plan existed in September of 08 was going to20
represent an increase in impervious coverage. Is that21
correct?22
A Thats correct.23
Q And the basis for that conclusion?24
A Is based upon the fact that they did not mention25
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anything about the existing detention system thats1
there already.2
Q And you hold that opinion and have offered3
that opinion notwithstanding the fact that the -- the4
numerical number of impervious coverage that exists may5
be slightly reduced in the concept plan?6
MR. EISDORFER: Object to the form of the7
question. Its leading.8
THE COURT: Why dont you just rephrase.9
BY MR. FENLON:10
Q Are you aware of what the plaintiffs11
position is with respect to impervious coverage in this12
case?13
A Yes. The planner indicates that their proposed14
impervious cover is less than what exists. And thats15
solely based upon the surface area of the existing16
asphalt and the building thats there.17
Q And your professional opinion is that the18
impervious coverage is actually increased and this is19
because of the failure to address and mitigate the20
existing -- what you find --21
MR. EISDORFER: Object to the form of the22
question. Leading.23
THE COURT: Well, he didnt even finish his24
question yet. So why dont we let him finish his25
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question before we can judge whether or not its1
objectionable.2
MR. FENLON: Ill rephrase, Your Honor.3
THE COURT: Thank you.4
BY MR. FENLON:5
Q Youve just testified to the fact that the6
plaintiffs included that their concept plan has a7
smaller impervious coverage that exists. Correct?8
A Thats correct.9
Q And your -- you testified that your10
professional opinion is that actually the proposed11
concept plan is increasing impervious coverage.12
Correct?13
A Thats correct.14
Q And could you tell me or tell the Court what15
factors and criteria you assessed in reaching your16
professional opinion that impervious coverage is17
actually being increased by this proposed project.18
A As I said, the parking lot as a minimum cannot be19
considered impervious coverage at this point because20
there is a storm water detention system put in place21
that mitigated its impervious cover to the state of a22
wooded site.23
I dont know if you understand. Im trying24
to make it -- lets see, how do we make it simpler.25
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The site at the parking lot at a minimum1
which is about 300 by 400 feet, say. Thats 120,0002
square feet of grasslands. You put a parking lot in3
there and you say, I cant just put the parking lot4
there, Ive got to hold back that water that that5
parking lot now shoots off the property. So it gets6
back to the precondition of that wooded area. All7
right. Meaning that the time of concentration or any -8
- flow down because its held on the property or in the9
parking lot.10
So when everything is built and said and11
done, the waters being released from the property at12
the same rate that it was prior to development.13
So when you take that parking lot, just14
looking at it as a surface feature and say, okay,15
thats my impervious cover, thats not true because the16
parking lot was designed to act like it was a wooded17
site because of the detention measure.18
Q And --19
A And thats my conclusion of why theres actually20
less impervious cover because Im not analyzing just21
the pavement, Im analyzing the hydraulic features of22
that parking lot.23
Q And is there any requirement under -- by24
municipal ordinance that would support your conclusion?25
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A I did do the research on that and I went to my1
ordinance and yes, the ordinance which I found does2
address that. The verbiage, I dont know offhand3
directly, but it says the hydraulic condition has to be4
analyzed -- should be analyzed and included if its5
five years or more it would be utilized as the factor6
of impervious or runoff coefficients for that site.7
If you want I can find it on the --8
Q You were referring to an ordinance. Is that9
ordinance 2008-41 which you testified earlier that you10
prepared for the township committee?11
A Yes.12
Q Exhibit D-169 in evidence. Would you find13
the provision in the ordinance which you were just14
speaking about?15
A Under Section 136-42, calculation of storm water16
runoff and groundwater recharge, section A, entitled17
storm water runoff shall be calculated in accordance18
with the following. Paragraph two, halfway into that19
paragraph it states that a runoff coefficient or ground20
water recharge land cover for an existing condition may21
be used on all or a portion of the site if the design22
engineer verifies the hydraulic condition. Thats the23
key to what Ive been talking about on this parking24
lot.25
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