1 COUNTY OF HUDSON PLANNING BOARD 2 _________________________ 3 : TRANSCRIPT MEETING OF THE COUNTY OF : OF 4 HUDSON PLANNING BOARD : PROCEEDINGS _________________________ 5 6:30 p.m. 6 Wednesday, February 18, 2009 567 Pavonia Avenue 7 Jersey City, New Jersey 8 9 B E F O R E: 10 MARY E. AVAGLIANO, CHAIRWOMAN DEMETRIO ARENCIBIA, COMMISSIONER 11 RENEE BETTINGER, COMMISSIONER DANIEL CHOFFO, COMMISSIONER 12 JUDE FITZGIBBONS, COMMISSIONER RUSHABH MEHTA, COMMISSIONER 13 KENNEDY NG, COMMISSIONER 14 15 A L S O P R E S E N T: 16 THOMAS P. CALVANICO, ESQ. Board Attorney 17 STEPHEN MARKS, PP, AICP 18 Planning Director 19 MARIO TRIDENTE, Development and Zoning 20 Compliance Official 21 22 23 24 25 2 1 CHAIRWOMAN AVAGLIANO: I would 2 like to call the meeting of the Hudson County 3 Planning Board to order. 4 Roll call, please. 5 DIRECTOR MARKS: Commissioner 6 Arencibia? 7 COMMISSIONER ARENCIBIA: Here. 8 DIRECTOR MARKS: Commissioner 9 Bettinger? 10 COMMISSIONER BETTINGER: Here. 11 DIRECTOR MARKS: Commissioner 12 Choffo? 13 COMMISSIONER CHOFFO: Here. 14 DIRECTOR MARKS: Commissioner 15 Dublin isn't. 16 Commissioner Fitzgibbons? 17 COMMISSIONER FITZGIBBONS: Here. 18 DIRECTOR MARKS: Commissioner 19 Holloway is absent. 20 Commissioner Mehta? 21 COMMISSIONER MEHTA: Here. 22 DIRECTOR MARKS: Commissioner 23 Munoz isn't here. 24 Commissioner Ng? 25 COMMISSIONER NG: Here. 3 1 DIRECTOR MARKS: And Chairwoman 2 Avagliano? 3 CHAIRWOMAN AVAGLIANO: Here. 4 DIRECTOR MARKS: We have a 5 quorum. 6 CHAIRWOMAN AVAGLIANO: Stand for 7 the salute to the Flag. 8 (All rise to salute the Flag.) 9 CHAIRWOMAN AVAGLIANO: 10 Counselor, has this meeting been properly 11 Advertised? 12 MR. CALVANICO: Yes, Madam 13 Chairlady, the meeting has been properly 14 advertised in accordance with the New Jersey 15 Public Meetings Act and advertised in the 16 Jersey Journal and has been posted on both the 17 bulletin boards of the Board of Chosen 18 Freeholders and the board of the County Clerk. 19 CHAIRWOMAN AVAGLIANO: Fine. 20 Is there anyone in the audience 21 that would like to speak on any matters or 22 there new items you would like to speak on? 23 Any questions? Okay. All right. 24 I would like a motion on the 25 minutes of the last meeting which was January 4 1 21st. 2 COMMISSIONER CHOFFO: I will 3 make a motion. 4 COMMISSIONER FITZGIBBONS: I 5 second. 6 DIRECTOR MARKS: Madam Chair, on 7 a motion to approve the minutes from January 8 21, 2009 made by Commissioner Choffo and 9 seconded by Commissioner Fitzgibbons, 10 Commissioner Arencibia? 11 COMMISSIONER ARENCIBIA: Aye. 12 DIRECTOR MARKS: Commissioner 13 Bettinger? 14 COMMISSIONER BETTINGER: Aye. 15 DIRECTOR MARKS: Commissioner 16 Choffo? 17 COMMISSIONER CHOFFO: Aye. 18 DIRECTOR MARKS: Commissioner 19 Fitzgibbons? 20 COMMISSIONER FITZGIBBONS: Aye. 21 DIRECTOR MARKS: Commissioner 22 Mehta? 23 COMMISSIONER MEHTA: Aye. 24 DIRECTOR MARKS: Commissioner 25 Ng? 5 1 COMMISSIONER NG: Aye. 2 DIRECTOR MARKS: Chairwoman 3 Avagliano? 4 CHAIRWOMAN AVAGLIANO: Aye. 5 DIRECTOR MARKS: Madam 6 Chairwoman, the motion passed. 7 CHAIRWOMAN AVAGLIANO: Thank 8 you. 9 DIRECTOR MARKS: Madam Chair, 10 the first item scheduled for public hearing is 11 the introduction of the Hudson County 12 Community Indicator Report for public comment, 13 and the Community Indicator Report was mailed 14 out to the Commissioners. 15 I propose and recommend 16 establishing a thirty-day public comment 17 period and not uniformly accepting the report 18 at the next meeting pending the public 19 comments received. 20 CHAIRWOMAN AVAGLIANO: Okay. 21 DIRECTOR MARKS: That is Item 5A 22 on the agenda, Madam Chair. 23 COMMISSIONER CHOFFO: I will 24 make a motion. 25 COMMISSIONER FITZGIBBONS: I 6 1 second. 2 DIRECTOR MARKS: Madam Chair, on 3 a motion made by Commissioner Choffo and 4 seconded by Commissioner Fitzgibbons, 5 Commissioner Arencibia? 6 COMMISSIONER ARENCIBIA: Aye. 7 DIRECTOR MARKS: Commissioner 8 Bettinger? 9 COMMISSIONER BETTINGER: Aye. 10 DIRECTOR MARKS: Commissioner 11 Choffo? 12 COMMISSIONER CHOFFO: Aye. 13 DIRECTOR MARKS: Commissioner 14 Fitzgibbons? 15 COMMISSIONER FITZGIBBONS: Aye. 16 DIRECTOR MARKS: Commissioner 17 Mehta? 18 COMMISSIONER MEHTA: Aye. 19 DIRECTOR MARKS: Commissioner 20 Ng? 21 COMMISSIONER NG: Aye. 22 DIRECTOR MARKS: And Chairwoman 23 Avagliano? 24 CHAIRWOMAN AVAGLIANO: Aye. 25 DIRECTOR MARKS: Madam Chair, 7 1 the motion passed. 2 CHAIRWOMAN AVAGLIANO: Thank 3 you. 4 DIRECTOR MARKS: Madam Chair, 5 the next item on the agenda is section 5B, 6 Memorialization of Applications heard at last 7 meeting beginning with Application 8 2008-026-SP/SD, City Lines Properties, LLC, 9 located at 1201-1217 Summit Avenue, Block 897, 10 Lots 7, 1B, 1A - 5A, A2, A3, B2, B3, and 6B in 11 the City of Jersey City. 12 And Application 2008-134-SP, SHG 13 Hoboken Urban Renewal Associates, located at 14 10 Park Avenue which is Block 1, Lot 1 in the 15 City of Hoboken. 16 CHAIRWOMAN AVAGLIANO: Motion, 17 please. 18 COMMISSIONER FITZGIBBONS: I 19 make a motion to approve. 20 COMMISSIONER BETTINGER: I will 21 second. 22 DIRECTOR MARKS: Madam Chair, on 23 a motion to approve made by Commissioner 24 Fitzgibbons and seconded by Commissioner 25 Choffo, Commissioner Arencibia? 8 1 COMMISSIONER ARENCIBIA: Aye. 2 DIRECTOR MARKS: Commissioner 3 Bettinger? 4 COMMISSIONER BETTINGER: Aye. 5 DIRECTOR MARKS: Commissioner 6 Choffo? 7 COMMISSIONER CHOFFO: Aye. 8 DIRECTOR MARKS: Commissioner 9 Fitzgibbons? 10 COMMISSIONER FITZGIBBONS: Aye. 11 DIRECTOR MARKS: Commissioner 12 Mehta? 13 COMMISSIONER MEHTA: Aye. 14 DIRECTOR MARKS: Commissioner 15 Ng? 16 COMMISSIONER NG: Aye. 17 DIRECTOR MARKS: Chairwoman 18 Avagliano? 19 CHAIRWOMAN AVAGLIANO: Aye. 20 DIRECTOR MARKS: Madam Chair, 21 the motion passed. 22 CHAIRWOMAN AVAGLIANO: Thank 23 you. 24 DIRECTOR MARKS: Madam 25 Chairwoman, if could skip ahead on the 9 1 applications to 5C, Application 2009-001-SP, 2 Manor Garden, NJ Corp. located at 113-117 3 Garden Street which is Block 88, Lots 9.1, 9.2 4 and 10 in the City of Hoboken. 5 In your packets this evening is 6 a letter from the law offices of Brian Kappock 7 on behalf of the applicant requesting that 8 the, they would like to got their municipal 9 approval before the county approval and they 10 are asking for an adjournment. 11 CHAIRWOMAN AVAGLIANO: All 12 right. Do we have a motion? 13 COMMISSIONER FITZGIBBONS: I 14 make a motion to adjourn. 15 COMMISSIONER BETTINGER: I will 16 second the motion. 17 DIRECTOR MARKS: Madam Chair, on 18 a motion to adjourn Application 2009-001- SP 19 made by Commissioner Fitzgibbons and seconded 20 by Commissioner Bettinger, Commissioner 21 Arencibia? 22 COMMISSIONER ARENCIBIA: Aye. 23 DIRECTOR MARKS: Commissioner 24 Bettinger? 25 COMMISSIONER BETTINGER: Aye. 10 1 DIRECTOR MARKS: Commissioner 2 Choffo? 3 COMMISSIONER CHOFFO: Aye. 4 DIRECTOR MARKS: Commissioner 5 Fitzgibbons? 6 COMMISSIONER FITZGIBBONS: Aye. 7 DIRECTOR MARKS: Commissioner 8 Mehta? 9 COMMISSIONER MEHTA: Aye. 10 DIRECTOR MARKS: Commissioner 11 Ng? 12 COMMISSIONER NG: Aye. 13 DIRECTOR MARKS: Madam Chair? 14 CHAIRWOMAN AVAGLIANO: Aye. 15 DIRECTOR MARKS: Madam Chair, 16 the motion passed. 17 CHAIRWOMAN AVAGLIANO: Thank 18 you. 19 DIRECTOR MARKS: Madam Chair, 20 the next application scheduled for public 21 hearing is -- actually there is a typo. 22 It is 2008-087, not 2008-082 SP/SD, Avak 23 Properties, LLC, and U&G Development, LLC, 24 located at 7301 and 7311 River Road, 7440 25 Boulevard East and 7401-7515 River Road in the 11 1 Township of North Bergen. 2 MR. OURY: Good evening, members 3 of the Board, Mr. Marks. 4 Dennis Oury appearing on behalf 5 of the applicant this evening. This 6 application is for a development along River 7 Road. It already has its municipal approvals 8 from the North Bergen Planning Board, and the 9 development calls for the construction of 10 three separate one-story buildings. One is a 11 Bank of America, one is a Starbucks. And one 12 is a Walgreen's. 13 There are issues involved in 14 this matter regarding steep slopes and a new 15 ordinance that the Freeholders have passed, I 16 think it was in October. 17 This evening I have Mr. Calisto 18 Bertin who is our engineer both at the local 19 level and who will be our engineer here for 20 the purposes of this application. 21 There are issues, as I said, 22 dealing with the steep slopes. 23 We have a geotechnical expert 24 Lisa Mahle who is not here tonight because of 25 the holidays, she is on vacation with her 12 1 children. 2 This is president's week as we 3 all know, but I think there will be enough to 4 fill up an agenda tonight. 5 I have spoken to Mr. Marks and 6 your attorney Mr. Calvanico about how I 7 intended to proceed. I understand there is a 8 representative from Medina who has been 9 working on this and after we got done with Mr. 10 Bertin which might take a little bit of time, 11 we can go into that and whatever we can 12 accomplish with the time allotted to us 13 tonight. 14 I don't recall how late you like 15 to go to, but we will finish up what we can 16 and I intend at the next meeting to have Ms. 17 Mahle and probably the North Bergen town 18 engineer also testify for us. 19 Unless there are any questions 20 from Mr. Marks or the Board, I would like to 21 have Mr. Bertin sworn and testify this 22 evening. 23 MR. CALVANICO: State your name 24 and spell your last name. 25 MR. BERTIN: Calisto Bertin, 13 1 C A-L-I-S-T-O Bertin, B-E-R-T-I-N. 2 (Calisto Bertin, was duly 3 sworn.) 4 CHAIRWOMAN AVAGLIANO: Director, 5 please. 6 DIRECTOR MARKS: Madam Chair, 7 before Mr. Bertin is qualified as a consulting 8 engineer I want to bring to the Board's 9 attention in your packets this evening are 10 transcripts from meetings conducted on January 11 17th, 2007 and February 21st, 2007. 12 I bring this to the Board's 13 attention because Mr. Bertin who is a 14 consulting engineer with the -- for the 15 Churchill Estates project which as I 16 understand it is a different site and it is a 17 different location and perhaps different 18 engineering methodology, but the Churchill it 19 was first heard on January 17th, 2007 and 20 continued to February 21st, 2007. Mr. Bertin 21 had testified before this Board that the 22 drainage would actually be improved for the 23 Churchill Estates development project. 24 And also within your packets 25 this evening is a series of photographs of 14 1 River Road below Churchill Estates where 2 development had triggered a mud slide. 3 MR. OURY: Mr. Marks, I 4 apologize, but I am objecting to testimony or 5 -- strike that. It is testimony from Mr. 6 Marks, the photos and a report on a different 7 piece of property, and I would ask that Mr. 8 Calvanico think about whether or not it is 9 appropriate to have that testimony or excerpts 10 from that testimony submitted to the Board 11 when we haven't had the first word of 12 testimony from Mr. Bertin on this project. 13 There is really no relevance 14 between the two. As Mr. Marks said, different 15 site, different project, different engineer, 16 and unless there is an engineering basis for 17 introduction of these documents which I have 18 not seen either from Medina or any or engineer 19 on behalf of the County, I would object to its 20 introduction at this time. 21 CHAIRWOMAN AVAGLIANO: 22 Counselor, why don't you speak at the 23 microphone instead of speaking there? 24 MR. OURY: That is fine. 25 MR. CALVANICO: Madam Chairlady, 15 1 if I can address the issue, I am not the judge 2 in this matter with respect to the issue and I 3 believe the material, but obviously Mr. Marks 4 believes the material to be relevant. I think 5 that is up to the Board to make that 6 determination how relevant it is. 7 Mr. Oury's objection is noted 8 for the record if this matter has to be 9 further adjudicated. 10 MR. OURY: The issue that you 11 have is once you go to a different piece of 12 property, different time, different place, 13 different engineer, that has to be done -- as 14 Mr. Marks pointed out and gives you a portion 15 of testimony, you now have to look at that 16 full application and we have to go through 17 that whole application again before this Board 18 because you can't, you can't just pick and 19 choose from another application what you want 20 the Board to hear. 21 So I think it is inappropriate 22 at this time. 23 Now, if there is an engineer 24 that is going to testify that there is some 25 relevance between that site and this site or 16 1 what happened at that site and this site, then 2 I might withdraw my objection and I will 3 cross-examine the engineer. 4 But to simply say in North 5 Bergen we had this occur a half a mile away 6 and give it to the Board without any 7 testimony, I think is inappropriate. You need 8 to have a basis from somebody that it is 9 relevant. 10 And we are going to, as I said 11 to you before, I am not expecting a vote 12 tonight. In fact, it can't go to a vote 13 tonight because I have witnesses that aren't 14 available. So between now and the next 15 meeting if Medina wants to take a look at it 16 and is able to give engineering testimony that 17 there is a connection between those sites, I 18 will withdraw my objection and we will deal 19 with it. 20 At the moment we don't have 21 that. I can show you other transcripts from 22 other applications I have had in North Bergen 23 and what does that mean? 24 CHAIRWOMAN AVAGLIANO: 25 Counselor, not for anything, but he is the 17 1 Director of this department and if he just 2 wants to make a remark or advise us of 3 anything in the future or past it is in his 4 authority to do it. It won't throw us off. 5 MR. OURY: Madam Chairwoman, 6 this is a quasi-judicial Board and there is a 7 record being made and we have to anticipate a 8 judge will be reading this, and the for that 9 you got to make -- your decision has to be 10 relevant and there has been no proof of 11 relevance. 12 As I said, if someone is going 13 to got on the witness stand, testify under 14 oath that there us such a relevance and what 15 the connection is, I will have the ability to 16 cross-examine that person. 17 I might withdraw my objection. 18 But we haven't heard that. I haven't even 19 presented my case yet. So all I am saying is 20 at this point there shouldn't be any comment 21 on our project unless you have heard the 22 testimony on this project. 23 CHAIRWOMAN AVAGLIANO: I will 24 repeat, he is the Director of this department 25 and I think has the right to offer us any 18 1 information he would like to. Dennis, please. 2 MR. OURY: I disagree 3 respectfully but let him finish. 4 CHAIRWOMAN AVAGLIANO: Director. 5 DIRECTOR MARKS: The only reason 6 why I brought this to the Board's attention, 7 the Board should keep in mind when hearing Mr. 8 Bertin's testimony and ask the question how 9 does the proposed drainage improvements for 10 the proposed application differ from the 11 methodology, the engineering methodology used 12 with the Churchill Estates application. 13 Before he is qualified as a 14 witness, I want to bring this to the Board's 15 attention. 16 CHAIRWOMAN AVAGLIANO: Thank 17 you. Yes. 18 MR. CALVANICO: If I might just 19 add something, the application that is 20 referred to, and it is the full application 21 not just portions of it, am I right? 22 DIRECTOR MARKS: I provided to 23 the Board excerpts from the transcript in 24 their entirety related to the Churchill -- it 25 wasn't single quote or single quotation. I 19 1 didn't provide the entire testimony of the 2 entire evening which included other 3 applications, but the Board has in its packet 4 the excerpts from those two evenings related 5 to the Churchill Estates application. 6 MR. OURY: May I you ask which 7 application? Because there were two Churchill 8 applications. 9 MR. CALVANICO: 6906. 10 MR. OURY: Which is what year? 11 MR. CALVANICO: It is January of 12 2007. 13 MR. OURY: There was a previous 14 application which also might be relevant which 15 was a couple of years before that that this 16 Board voted on. 17 This is the door that you are 18 opening up. But if you deem it appropriate, I 19 obviously will have to abide by it, but it is 20 not even the entire record of the testimony at 21 that hearing. 22 MR. CALVANICO: One other thing, 23 Madam Chairwoman. These transcripts are all 24 public record, they are on our website and are 25 available. 20 1 As a practical matter, this is 2 the Board that heard that and these are all 3 the people that were part of that, so provided 4 there was a transcript of a meeting that you 5 were already part of, it is refreshing your 6 memories. 7 CHAIRWOMAN AVAGLIANO: Thank 8 you. 9 DIRECTOR MARKS: Also these 10 transcripts were the minutes from the meetings 11 and were accepted by the Planning Board at the 12 following meeting, so these transcripts were 13 taken by a professional court stenographer or 14 transcriber and were accepted by the Board 15 following those meetings. 16 CHAIRWOMAN AVAGLIANO: Okay 17 thank you. 18 COMMISSIONER FITZGIBBONS: I got 19 a question for our lawyer. Couldn't we just 20 let them proceed? Let them proceed and then 21 whatever we could, we could go back if we have 22 to, to Churchill. 23 MR. CALVANICO: Yes, yes. I 24 think that's what we are hoping to do. 25 MR. OURY: That's what I was 21 1 hoping for. Can I just make a comment, too. 2 I don't want to make it look like I have a 3 problem with Steve Marks. Steve is very 4 professional, very accommodating. In fact, 5 today I had two conversations with him and he 6 forwarded me the memo he gave to you with all 7 the attachments. 8 We work cooperatively with one 9 another. There is a different or difference 10 of opinion what the law says on this issue. I 11 stated my position and will abide by your 12 ruling, but I want to present my case first 13 then if there is -- Steve will have to 14 testify. 15 I don't know if you are from 16 Medina or not 17 MR. REIMON: Yes, I am. 18 MR. OURY: That gentleman will 19 have to testify, and you will get the concept 20 of this. 21 Mr. Marks isn't aware of certain 22 things like there was a previous application 23 probably 2002 on that same site, so I would 24 like to proceed with Mr. Bertin and then we 25 can go to some of the other material that has 22 1 been raised. 2 COMMISSIONER MEHTA: Madam 3 Chairwoman? 4 CHAIRWOMAN AVAGLIANO: Yes. 5 COMMISSIONER MEHTA: Can you 6 tell whether that is whatever the property you 7 are referring, it is the same owner or 8 different owner and other than the Calisto 9 engineer, what also he, in his capacity, was 10 working on. 11 DIRECTOR MARKS: If Mr. Oury 12 doesn't object, I would characterize both 13 sites as similar in that they are -- well, 14 first Mr. Calisto Bertin who was the engineer 15 for both sites was, to my knowledge -- had 16 prepared the site plans for both applications, 17 the one that is pending before you now and the 18 Churchill Estates back in 2007. January, 19 February, 2007. 20 In addition, it is my 21 recollection that Mr. Bertin's firm had 22 prepared both the traffic impact studies and 23 the drainage calculations, storm water 24 management reports for both the Churchill 25 Estates application and the application that 23 1 is pending before you this evening. 2 The sites have similar 3 characteristics in that both suits are to the 4 west of River Road along the Palisades ridge 5 and that's basically in a nutshell, similar 6 location, same roadway, same municipality. 7 I think the two applications 8 have a great deal in common. 9 Where this differs, the 10 Churchill Estates was proposing residential on 11 a steep roadway. This application is 12 essentially proposing strip mall development 13 along River Road but they are similar in that 14 they both proposed a great deal of disturbance 15 to Palisades cliffs and to the steep slopes. 16 I will get into the steep slope 17 findings that have come across in general 18 discussion items that I have uncovered from 19 the DEP later on. 20 But in my estimation, Madam 21 Chair, the site characteristics are very, very 22 similar. 23 MR. OURY: They are not the same 24 owners. 25 DIRECTOR MARKS: I never said 24 1 that. 2 MR. OURY: He asked the 3 question. 4 COMMISSIONER MEHTA: I think 5 Churchill Road was above the cliff or the 6 middle of the cliff between the ridge and 7 River Road, am I right? 8 DIRECTOR MARKS: So is this 9 application that is pending before you now. 10 COMMISSIONER MEHTA: And this 11 application right now currently present in 12 front of us, it is at the ground level of the 13 River Road? 14 DIRECTOR MARKS: Madam Chair, 15 no. This application goes from Boulevard East 16 -- essentially the hairpin turn at Boulevard 17 East where if you are traveling south from 18 Boulevard East from North Bergen it is a 19 couple blocks before you get to Guttenberg, so 20 it is essentially from Boulevard East down to 21 River Road. 22 The site has been developed by 23 -- to the east it is River Road and to the 24 west -- which is a County road -- and to the 25 west, Boulevard East which is also a County 25 1 road. It is bounded on two sides by roads. 2 MR. BERTIN: I am not doing 3 anything in the County jurisdiction, I am 4 questioning because it is at the ground level 5 and you know there is a back side that goes 6 towards the cliff and -- 7 DIRECTOR MARKS: That is not 8 true, Madam Chair. 9 MR. OURY: If I can interject, I 10 think what Mr. Mehta is saying, the property 11 in question tonight runs from River Road up to 12 Boulevard East. Churchill does not. 13 Churchill's property, if you are familiar with 14 that and you will see pictures later on, 15 Churchill Road runs from River Road up and 16 then across. 17 The Churchill Road development 18 starts at the -- at Churchill Road which is 19 probably how many, forty, fifty feet? 20 MR. BERTIN: Up to forty feet 21 above. 22 MR. OURY: The property starts 23 thirty feet or forty feet above River Road up 24 to the top of the cliff. So what Mr. Mehta is 25 saying is true, the Churchill Road property 26 1 doesn't front on River Road at all. 2 COMMISSIONER FITZGIBBONS: Does 3 it affect River Road? 4 MR. OURY: As the point is made 5 -- this is County jurisdiction, I am not 6 saying there is no County jurisdiction. 7 The point being made by Mr. 8 Mehta, and I don't know if Mr. Marks is 9 familiar with it, the Churchill Road property 10 does not front on River Road. It is still 11 under the jurisdiction, that is why they came 12 to the County Planning Board. 13 But his point is that it starts 14 thirty or forty feet above River Road. This 15 property fronts on River Road. 16 COMMISSIONER FITZGIBBONS: And 17 does it go up? 18 MR. OURY: Yeah, sure. I am not 19 denying that, but -- 20 COMMISSIONER FITZGIBBONS: Not 21 only fronts, but it goes up. 22 MR. OURY: It goes up to the 23 Boulevard East to the top of the cliff. 24 CHAIRWOMAN AVAGLIANO: Okay. 25 DIRECTOR MARKS: Madam Chair, I 27 1 agree with Mr. Oury. 2 MR. OURY: Just clarifying, 3 that's all. May I begin? 4 CHAIRWOMAN AVAGLIANO: He has 5 the right to ask the question. 6 MR. OURY: Okay. Madam 7 Chairwoman, I will qualify Mr. Bertin as a 8 professional engineer but he has testified 9 before this Board before. If you want to hear 10 the qualifications again I can go into them, 11 or would you like me to qualify him before 12 that? 13 CHAIRWOMAN AVAGLIANO: He spoke 14 to us before. He spoke here before. 15 Do the Commissioner have any 16 problem? No. 17 MR. OURY: Mr. Bertin, you are 18 the engineer as was pointed out by Mr. Marks 19 with regard to this particular project, is 20 that correct? 21 MR. BERTIN: Yes. 22 MR. OURY: Your firm presented 23 the engineering board plans that were 24 presented to the Hudson County Planning Board? 25 MR. BERTIN: Yes. 28 1 MR. OURY: And it is your firm 2 that prepared the applications to Soil 3 Conservation? 4 MR. BERTIN: Yes. 5 MR. OURY: And your firm 6 prepared the same drawings that have been 7 submitted to this Board for the hearing this 8 evening, is that correct? 9 MR. BERTIN: Yes. 10 MR. OURY: And can you tell me, 11 please, approximately when was the first time 12 that you were contacted by our client with 13 regard to this project. 14 Do you have your cheat sheet 15 there? 16 MR. BERTIN: I don't have my 17 cheat sheet. 18 MR. OURY: Got it. I want you 19 to be prepared in answering on dates. 20 MR. BERTIN: In August of 2004. 21 MR. OURY: At my request while 22 you are looking for it, you prepared a time 23 line to give, to testify to with regard to 24 what occurred, is that correct? 25 MR. BERTIN: Why don't we stand 29 1 here together and go off that. 2 MR. OURY: Is this the time line 3 I am showing you that you prepared? 4 MR. BERTIN: Yes. 5 MR. OURY: And it indicates you 6 first were contacted by the client in August 7 of 2004, is that correct? 8 MR. BERTIN: Yes. 9 MR. OURY: And what was it that 10 the client informed you of at that time? 11 MR. BERTIN: Well, our client 12 owned one of the properties in question that 13 we are working on tonight. The Hoffman 14 Beverage property which is on the south end of 15 this whole project. 16 MR. OURY: And the Hoffman 17 Beverage building was quite an old building as 18 you understand it? 19 MR. BERTIN: Yes, two old 20 warehouses. 21 MR. OURY: Obviously they sold 22 Hoffman soda from there? 23 MR. BERTIN: That's what I 24 assume, yes. 25 MR. OURY: How large a property 30 1 was that? 2 MR. BERTIN: Under ten thousand 3 square feet. 4 MR. OURY: Did they ask you to 5 perform any engineering services with regard 6 to that property? 7 MR. BERTIN: Yes, they asked me 8 to look into what they could do with the 9 property and they were not interested really 10 in residential because there was already a lot 11 of residential development. We are looking at 12 more of a commercial aspect to it. 13 MR. OURY: Did there come a time 14 directly after that that you assisted the 15 client with contacting North Bergen, the 16 administration in North Bergen? 17 MR. BERTIN: Yes. I knew that 18 the adjacent property, the Hoffman Beverage 19 Building is on Lot 10, the adjacent property 20 which is the next property to the north was 21 Lot 11 and so I knew that property was owned 22 by the town and I knew that the town, North 23 Bergen, was selling off property, so I 24 approached the municipality about the 25 possibility of selling that lot to our client. 31 1 MR. OURY: Did you describe at 2 that time to the administration of North 3 Bergen what the client had in mind to do? 4 MR. BERTIN: Yes. I suggested 5 that more in the lines of a commercial 6 development rather than a residential 7 development. 8 MR. OURY: And was there a 9 positive response to that? 10 MR. BERTIN: Yes. 11 MR. OURY: What was the next 12 thing that happened with regard to the 13 property, with regard to our client and the 14 municipality? 15 MR. BERTIN: Well, we actually 16 had a meeting with members of the municipality 17 in February of 2005 to discuss this site and 18 the possibility of doing commercial 19 development given that there was a lot of 20 residential development that had occurred but 21 there wasn't a lot -- there wasn't sufficient 22 commercial to support the residential. You 23 had to drive up to Edgewater. 24 MR. OURY: And that was in 25 February of 2005? 32 1 MR. BERTIN: Correct. 2 MR. OURY: Were you advised by 3 the municipality officials that in order for 4 our client who was an adjacent property owner 5 at the time to purchase the property, it had 6 to go up for a public auction? 7 MR. BERTIN: Yes. 8 MR. OURY: Did you also discuss 9 with the representatives of the municipality 10 that the property would need to be rezoned to 11 allow commercial use? 12 MR. BERTIN: Yes. 13 MR. OURY: At the time that you 14 met with the North Bergen officials, what was 15 the zoning for this property? 16 MR. BERTIN: It was a 17 residential zone, I think it was P-2 which 18 allowed mid-rise construction. 19 MR. OURY: And mid-rise in North 20 Bergen is approximately seven or eight 21 stories, correct? 22 MR. BERTIN: I believe it was 23 eight stories. 24 MR. OURY: And we were asking 25 that the municipality consider adding to the 33 1 zoning to be a permitted use, commercial 2 enterprise, is that correct? 3 MR. BERTIN: Correct. 4 MR. OURY: And they were 5 amenable to that, correct? 6 MR. BERTIN: Correct. 7 MR. OURY: At that time did the 8 municipality engage the municipal planner to 9 accomplish this? 10 MR. BERTIN: Yes. 11 MR. OURY: Who was that? 12 MR. BERTIN: Borgis Associates. 13 MR. OURY: Did our office and 14 you and Mr. Borgis work together to come up 15 with a commercial, an amendment to the 16 ordinance which would allow commercial use? 17 MR. BERTIN: Yes. We worked for 18 several months with the planner. 19 MR. OURY: And at the same time 20 did the municipality embark on a course which 21 would allow them to put the property up for 22 public bid? 23 MR. BERTIN: Yes. But in the 24 meantime we discovered that in addition to Lot 25 11, there were the adjoining lots, 12 through 34 1 16. 2 MR. OURY: Going north, is that 3 right? 4 MR. BERTIN: Heading north. 5 Actually we should describe -- this property, 6 if you know, there is the sewerage treatment 7 plant on River Road, then there is a car wash, 8 and so the Hoffman Beverage building is the 9 next building north of the car wash and the 10 property we are discussing continues north to 11 Palisades Hospital, signalized intersection on 12 River Road, so we were talking about the 13 properties that are all along River Road on 14 the west side of River Road opposite the 15 hospital. 16 MR. OURY: Okay. And -- 17 MR. BERTIN: I am sorry, to 18 finish my sentence, that those properties were 19 also public property and could be acquired. 20 MR. OURY: Could be sold by the 21 municipality? 22 MR. BERTIN: Could be sold. 23 MR. OURY: And approximately in 24 December of 2005 isn't it a fact that North 25 Bergen hired an appraiser to evaluate the 35 1 market value of these properties? 2 MR. BERTIN: Yes. 3 MR. OURY: And then it was put 4 up for public auction, is that correct? 5 MR. BERTIN: Yes. 6 MR. OURY: And our client bid on 7 the property, is that correct? 8 MR. BERTIN: It was around in 9 July of 2006. 10 MR. OURY: All right. 11 MR. BERTIN: Then it went to 12 public auction and our clients purchased the 13 property. 14 MR. OURY: And just immediately 15 before that the municipality had accomplished 16 the zone change which then would allow 17 commercial use? 18 MR. BERTIN: Yes. The 19 municipality wanted to implement the zone 20 change so that whoever bought the property 21 knew what they were buying. 22 MR. OURY: Is it fair to say 23 that North Bergen was encouraging the use of 24 this property for commercial purposes to, as 25 you say, augment the residential properties 36 1 that had been constructed around it? 2 MR. BERTIN: Yes. 3 MR. OURY: Now, at that time 4 after our client purchased Lots 11 and 12 5 through 16, did you embark on preparing 6 additional plans? 7 MR. BERTIN: Yes. Now that we 8 knew that our client controlled the entire 9 parcel, we went and modified -- prepared 10 additional concept plans. 11 MR. OURY: And once those plans 12 were prepared, did you -- strike that. 13 Once those plans were prepared, 14 did my office prepare an application to the 15 Planning Board for a site plan approval? 16 MR. BERTIN: Yes. 17 MR. OURY: And if you just give 18 me a moment. 19 DIRECTOR MARKS: Just for 20 clarification, when Mr. Oury said planning 21 board, did he mean the municipal planning 22 board or -- 23 MR. OURY: Municipal. 24 Sometime prior to August of 2008 25 hearings were held before the local planning 37 1 board, is that correct? 2 MR. BERTIN: Yes. There were 3 two hearings held early 2008. And the second 4 hearing was in June. 5 MR. OURY: And at those hearings 6 you testified with regard to a certain plan 7 that had been submitted to the local planning 8 board, is that correct? 9 MR. BERTIN: That's correct. 10 MR. OURY: Do you have a copy of 11 that plan here? 12 MR. BERTIN: Yes. 13 MR. OURY: Can you put that up 14 on the tripod, please. 15 Can you give me the date of that 16 plan, of the original plan? 17 MR. BERTIN: Yes, the original 18 plan. 19 CHAIRWOMAN AVAGLIANO: Excuse 20 me. Is that drawing marked? 21 MR. OURY: Not yet. 22 CHAIRWOMAN AVAGLIANO: Please 23 mark it before we speak on it. 24 MR. OURY: Now, you have put up 25 on this tripod a plan which is a portion of 38 1 the property, is that correct? 2 MR. BERTIN: Yes, that's 3 correct. 4 MR. OURY: What was the date of 5 that plan? 6 MR. BERTIN: This plan was last 7 reviewed March of 2008. That is the plan, 8 that is the plan that was first submitted to 9 -- this is a portion, the north portion of the 10 property that was submitted to the North 11 Bergen Planning Board. 12 MR. OURY: And that is where the 13 Walgreen's is intending to go, is that 14 correct? 15 MR. BERTIN: Yes. 16 MR. OURY: And can you just 17 describe very briefly that plan? 18 MR. BERTIN: Yes. This shows 19 Lots 12 through 16 that you mentioned. There 20 was a Lot 11 and Lots 12 through 16. 21 In the lower left corner is the 22 traffic light opposite the Palisades Hospital 23 and so what we show here is a Walgreen's 24 building, about 14,000 square feet, and a 25 parking lot on the south side of the 39 1 Walgreen's and parking along the east side of 2 the Walgreen's, what is shown in dark brown 3 are the exposed cliff phases of the Palisades. 4 MR. OURY: Now, the full plan 5 that was presented to the Planning Board 6 included, if you are looking at this to the 7 left or to the south, a building for Bank of 8 America? 9 MR. BERTIN: Yes. 10 MR. OURY: And a building for 11 Starbucks? 12 MR. BERTIN: Starbucks or a 13 coffee shop-like structure. 14 MR. OURY: Did either of those 15 two buildings have park in front of the store 16 along River Road? 17 MR. BERTIN: Yes. 18 MR. OURY: Were there comments 19 made by the Planning Board at the first 20 hearing when this plan was unveiled to them? 21 MR. BERTIN: Yes. 22 MR. OURY: And what were some of 23 those comments with regard to the locations of 24 some of the buildings? 25 MR. BERTIN: They asked that -- 40 1 they asked my office to go back and talk to 2 the tenants and the property owner about 3 moving the Walgreen's building closer to River 4 Road, eliminating the parking between it and 5 River Road so that we could minimize any 6 disturbance to the Palisades. 7 MR. OURY: And there were also 8 some aesthetic conditions, is that correct? 9 MR. BERTIN: Yes. By doing that 10 it also created a steep slope. 11 MR. OURY: And did in fact you 12 do that? 13 MR. BERTIN: Yes. 14 MR. OURY: And we went back to 15 the Board afterwards, is that correct? 16 MR. BERTIN: Yes, we went back 17 to the Board. 18 MR. OURY: And there was an 19 amendment plan submitted to the Board? 20 MR. BERTIN: Yes. 21 MR. OURY: Do you have that 22 amended plan tonight? 23 Before we got to that, can we 24 mark this as -- I have premarked some exhibits 25 and I don't want to use those numbers, so can 41 1 we mark this as Exhibit 19. Eighteen more 2 exhibits that I have. 3 MR. BERTIN: But I am going to 4 put today's date on it which is 2-18-09. 5 (Exhibit marked A-19.) 6 MR. CALVANICO: Before we begin, 7 let's just be clear since we are going to have 8 a whole bunch of documents here, is this 9 something that has already been submitted to 10 this Board? 11 MR. OURY: No. 12 MR. BERTIN: Not this. 13 MR. OURY: This was not the plan 14 ultimately approved. I am showing by 15 background what has been accomplished. 16 MR. CALVANICO: As we go forward 17 with respect to documents that have already 18 been submitted to this Board, please also 19 reference the plan number, page number, that 20 sort of thing, so we can coordinate them in 21 addition to having them marked. 22 MR. BERTIN: I marked A-19 with 23 today's date. I labeled it partial site plan 24 and 3-10-08. 25 DIRECTOR MARKS: Okay, it is 42 1 marked. 2 MR. OURY: You have on the 3 tripod now an additional plan, is that 4 correct? 5 MR. BERTIN: Yes. 6 MR. OURY: What is the date of 7 that plan? 8 MR. BERTIN: Well, this plan is 9 actually November 13, 2008. 10 MR. OURY: And that plan was the 11 plan that was approved by the planning board 12 in North Bergen, is that correct? 13 MR. BERTIN: Yes. 14 MR. OURY: And it was colorized 15 by your office? 16 MR. BERTIN: Yes. We took the 17 site plan and/or the landscape plan and 18 cleaned it up to prepare this exhibit. 19 This is called landscape 20 rendering. The date happens to be -- well, 21 the date is what I said, November 13. Yeah, 22 November 13, '08. 23 MR. OURY: Can you mark that 24 please as 20. Applicant 20 with today's date. 25 (Exhibit marked A-20.) 43 1 MR. OURY: Now, can you explain 2 to the Board the difference between Applicant 3 20 and Applicant -- A-19. 4 MR. BERTIN: Yes. We did not 5 show in A-19 the south portion of the site 6 which is shown in A-20 and the south portion 7 we show a coffee shop which was something -- 8 supposed to be something like a Starbucks, the 9 Bank of America building and to the north, the 10 larger portion is the Walgreen's drug store. 11 The difference between the two 12 plans is that the Walgreen's drug store has 13 been moved closer to River Road and you can 14 see by the cliff line above where the position 15 of the cliff line is in relation to the 16 parking lot in the building in the two 17 drawings. 18 So the cliff line in A-10 19 actually came into the driveway where the 20 cliff line now is outside of the driveway and 21 outside of the rock fall catch bin area. 22 MR. OURY: And the area of the 23 disturbance, right? 24 MR. BERTIN: Yes. 25 MR. OURY: Ultimately this is 44 1 the plan, A-20 was the plan that was approved 2 by the Board, is that correct? 3 MR. BERTIN: Yes. 4 MR. OURY: Now, I would like to 5 take you through a chronology of events and 6 enter some documents into evidence that I 7 talked to Mr. Calvanico about. 8 If you don't mind, Madam 9 Chairwoman. 10 I am going to show you a 11 document which appears to be the application 12 for soil erosion made to the soil erosion 13 commission, is that correct? 14 MR. BERTIN: Yes. 15 MR. OURY: What is the date of 16 the that document? 17 MR. BERTIN: It was signed by 18 the applicant on September 6, 2007. 19 MR. OURY: And submitted by your 20 office, is that correct? 21 MR. BERTIN: Yes. 22 MR. OURY: Now, can you explain 23 to the Board, please, in general terms what 24 the Soil Conservation Commission is. 25 MR. BERTIN: Well, the Soil 45 1 Conservation Commission, their main purpose is 2 to really control -- well, implement controls 3 during construction to minimize site run-off 4 and control drainage and form water during 5 construction and to have a stabilization plan 6 once construction is completed. 7 MR. OURY: And that is a State 8 agency, is that correct? 9 MR. BERTIN: Yes. 10 MR. OURY: And the application 11 was made September of 2007 which is almost a 12 year before local approval was obtained, is 13 that correct? 14 MR. BERTIN: That's correct. 15 MR. OURY: Why was that done at 16 that time? 17 MR. BERTIN: Well, we wanted to 18 -- we wanted to start the application process 19 with Soil Conservation to work out the details 20 on how this site would be constructed. And 21 part of the application package are the sheets 22 that we prepared for the Soil Conservation 23 Department and there is five -- 24 MR. OURY: Go ahead. 25 MR. BERTIN: There are five or 46 1 six sheets where normally we have one sheet to 2 describe the erosion control measures during 3 construction. 4 Mr. Marks mentioned the 5 Churchill project. Neither we nor Soil 6 Conservation wanted similar incidents to 7 happen so we spent a lot of time preparing 8 phasing plans so the contractor, once started, 9 would implement proper control soil measures 10 during construction of this project. 11 MR. OURY: And I would like to 12 have this document marked as Applicant 1. 13 Unfortunately my office did not premark it so 14 I am going to have to give it -- can you mark 15 that, Mr. Bertin, as Applicant 1. 16 (Exhibit marked A-1.) 17 MR. OURY: I will hand a copy to 18 Mr. Marks -- one for each of you. And I have 19 extra copies for the Board, a couple copies. 20 After that, how long was it that 21 you worked with Soil Conservation before you 22 got some action on their part? 23 MR. BERTIN: We worked for 24 several months. 25 MR. OURY: And after working 47 1 with them for several months, did you receive 2 an approval? 3 MR. BERTIN: Yes. 4 MR. OURY: I am going to show 5 you a document dated February 20th, 2008. Do 6 you recognize that document? 7 MR. BERTIN: Yes, that's the 8 Soil Conservation approval for the program we 9 developed for this property. 10 MR. OURY: And is this in 11 keeping with the usual manner in which Soil 12 Conservation does business? You got an 13 application, they review it, work with the 14 engineers and then they issue an approval? 15 MR. BERTIN: Correct. 16 MR. OURY: Could you mark that 17 with the Board's permission as Applicant's 18 Exhibit 2, please. 19 (Exhibit marked A-2.) 20 MR. BERTIN: Yes. 21 COMMISSIONER FITZGIBBONS: I got 22 a question. 23 MR. OURY: Yes. 24 COMMISSIONER FITZGIBBONS: That 25 is an approval from? 48 1 MR. OURY: Heyer? 2 MR. BERTIN: The Hudson Essex 3 Passaic Soil Conservation District. 4 MR. OURY: Did you tell them 5 what you were going to put there? 6 MR. BERTIN: Yes, they had the 7 same set of plans that North Bergen had. 8 COMMISSIONER FITZGIBBONS: Did 9 you tell them what you were going to do there? 10 MR. BERTIN: Absolutely. 11 MR. OURY: Just to follow up on 12 Mr. Fitzgibbons, explain to them in detail 13 what type of plan you give them. 14 MR. BERTIN: Well, in this case 15 what we eventually developed was a series of 16 grading plans with erosion control measures in 17 it on the plans -- not in the plans -- on the 18 plans. 19 How we were first going to 20 excavate on the site, the proper installation 21 of a detention basin, the construction of a 22 berm along River Road, phasing on how the 23 drainage would come off the cliff side onto 24 the property and be controlled to get to a 25 detention basin and then discharged to the 49 1 municipal drainage system without causing 2 excess siltation on the road or siltation into 3 the drainage system. 4 I was very involved in this case 5 and also how we were going to come down, come 6 down when we excavate along the cliff. 7 MR. OURY: Now, to make it 8 clear, Soil Conservation has no zoning 9 authority, is that correct? 10 MR. BERTIN: That's correct. 11 MR. OURY: Their only interest 12 is run-off, soil conservation, that kind of 13 thing, is that correct? 14 MR. BERTIN: Yes. And to a 15 certain extent, drainage review. 16 MR. OURY: Okay. Now, 17 thereafter application was made to this Board 18 for a site plan approval, is that correct? 19 MR. BERTIN: Yes. 20 MR. OURY: Let me show you a 21 document dated June 25th and ask you if you 22 recognize that document. 23 (Witness perusing.) 24 MR. BERTIN: Yes. This is a 25 letter prepared by my office transmitting the 50 1 site plan application to Hudson County. 2 MR. OURY: And that was June 3 25th? 4 MR. BERTIN: To the Hudson 5 County Planning Board, to be specific. 6 MR. OURY: The date? 7 MR. BERTIN: June 25th. 8 MR. OURY: The enclosing letter 9 indicates you submitted to the Board three 10 application forms, plans that were revised as 11 of April 14th, 2008, drainage analysis dated 12 1-2-08 and copies of a traffic impact study 13 dated 4-23-08, is that correct? 14 MR. BERTIN: Yes. 15 MR. OURY: And it also indicated 16 the size of the two stores that were being 17 contemplated, correct? 18 MR. BERTIN: Correct. 19 MR. OURY: Mark that as 20 Applicant's 3, please. 21 (Exhibit marked A-3.) 22 MR. OURY: Madam Chairwoman, to 23 make it easy I am going to make a package for 24 each Board member later on after the meeting 25 and submit it to you before the next meeting 51 1 otherwise you are going to be -- you are not 2 going to have a chance to read them all 3 tonight anyway. 4 After that application was 5 submitted, did you receive a response dated 6 July 22nd from Mr. Marks on behalf of the 7 Hudson County Planning Board? 8 MR. BERTIN: Yes. 9 MR. OURY: And can you tell me 10 what the substance of that letter was? 11 MR. BERTIN: Indicating that the 12 application was incomplete because we did not 13 submit application fees. And just in 14 recalling the facts behind this, we were not 15 sure what the application fees were. 16 We submitted the application so 17 that Mr. Marks' office could have a chance to 18 review it and then we would determine what the 19 fees were. 20 MR. OURY: So thereafter on July 21 29th, did you submit the checks that were 22 required? 23 MR. BERTIN: Yes, so the -- 24 MR. OURY: I will show you a 25 letter dated July 29, 2008 and ask you to mark 52 1 that as A-5. 2 MR. BERTIN: You gave me two 3 copies. 4 (Exhibit marked A-4.) 5 MR. BERTIN: The July 22, 2008 6 letter from Mr. Marks to my office is Exhibit 7 Applicant 4, and the July 29, 2008 letter from 8 my office with the checks back to the Planning 9 Board is A-5. 10 (Exhibit marked A-5.) 11 MR. OURY: And three checks were 12 enclosed, correct? 13 MR. BERTIN: Correct. 14 MR. OURY: Were those checks 15 enclosed with the knowledge of the Director of 16 the Hudson County Planning Board? 17 MR. BERTIN: Yes. 18 MR. OURY: Now, I am going to 19 show you a letter, it is a transmittal letter 20 with copies of three checks. 21 Can you tell me the date of 22 that? 23 MR. BERTIN: There is a 24 transmittal letter from my office dated August 25 29, 2008. 53 1 MR. OURY: And that enclosing 2 letter indicates three more checks were sent, 3 is that correct? 4 MR. BERTIN: Yes. 5 MR. OURY: And what were they 6 for? 7 MR. BERTIN: To supplement the 8 checks previously sent. 9 MR. OURY: And that was at the 10 request of the Hudson County Planning Board 11 representatives? 12 MR. BERTIN: Yes. And that is 13 A-6. 14 MR. OURY: Mark that as A-6, 15 please. 16 (Exhibit marked A-6.) 17 MR. OURY: I am going to show 18 you a letter dated September 25, 2008 19 addressed to Mr. Marks from Medina 20 Engineering. 21 Do you recognize that letter? 22 MR. BERTIN: Yes. 23 MR. OURY: Did you receive a 24 copy of that letter at some point in time? 25 MR. BERTIN: Yes, I was copied 54 1 on the letter so you got it directly. 2 MR. OURY: What was the purpose 3 of that letter? 4 MR. BERTIN: It was to 5 acknowledge that Medina Associates received 6 the engineering documents that we submitted 7 and then they had a general comment that -- 8 their only comment on the plan was that the 9 proposed project includes disturbance to the 10 Palisades steep slopes. 11 MR. OURY: So that letter dated 12 October 7th from Medina indicates that they 13 had received site plan application form, 14 plans, storm water drainage calculations and a 15 traffic impact study, is that correct? 16 MR. BERTIN: Yes. 17 MR. OURY: And the only comment 18 at that time was a reference -- was run-off -- 19 I take that back. 20 That was -- the date of that 21 letter was September 25th, and the only comment 22 at that time was a general comment that the 23 proposed project includes disturbance to the 24 Palisades steep slope and references NJAC 25 7.15, is that correct? 55 1 MR. BERTIN: Yes. 2 MR. OURY: And as a result of 3 receiving that already, what if anything did 4 you or your office do? 5 MR. BERTIN: Are we at A-7? 6 MR. OURY: Yes. 7 MR. BERTIN: We went looking 8 through the DEP regulations to find some 9 reference to the steep slopes 10 (Exhibit marked A-7.) 11 MR. OURY: What did you find? 12 MR. BERTIN: We found a section 13 in water quality management about steep slopes 14 and how sewerage disposal systems shouldn't be 15 positioned on steep slopes and references 16 regarding water quality and construction on 17 steep slopes. 18 MR. OURY: Did you come to a 19 conclusion or did you derive an opinion as to 20 whether or not those DEP regulations applied 21 to this property? 22 MR. BERTIN: It was my opinion 23 that they did not. 24 MR. OURY: And did you transmit 25 that opinion to Medina either in writing or 56 1 verbally? 2 MR. BERTIN: Yes. Well -- yes. 3 My office sent a letter to Medina Consultants 4 -- well, really asking for more clarification, 5 but then I wrote a letter to Mr. Marks. 6 Eventually I wrote a letter to Mr. Marks 7 giving the reasons why it was my opinion that 8 it didn't apply to this site. 9 MR. OURY: And that already -- I 10 am going to show you a letter that is dated 11 October 21st, 2008 authored by Jennifer 12 O'Donnell. 13 MR. BERTIN: O'Donnell. She is 14 from my office. 15 MR. OURY: Take a look at that 16 letter. That is addressed to Edwin Reimon who 17 works for Medina Consultants? 18 MR. BERTIN: Yes. 19 MR. OURY: Can you tell us what 20 the substance of that letter is. 21 MR. BERTIN: At that time we did 22 not find reference, we were trying to find a 23 specific citing on what would prohibit 24 disturbance of the slopes for this project so 25 we were asking for more clarification. 57 1 MR. OURY: In fact, what you say 2 in your letter is you were unable to find the 3 reference contained in the Medina reference of 4 7.15, correct? 5 MR. BERTIN: Correct. 6 MR. OURY: Could you mark that 7 as 9, please. 8 (Exhibit marked A-9.) 9 MR. OURY: I am going to show 10 you a letter dated October 27th, 2008 11 addressed to Mr. Reimon and authorized by 12 yourself, is that correct? 13 MR. BERTIN: Yes, but this 14 letter, although it says Mr. Reimon, it really 15 was addressed to you. 16 MR. OURY: Okay. Did Mr. Reimon 17 got a copy of it? 18 MR. BERTIN: In a subsequent 19 response what is written in this letter was 20 written to them, yes. 21 MR. OURY: And this letter 22 indicates what? 23 MR. BERTIN: Well, again, we 24 found a citation in the DEP regulation on 25 water quality management planning and the 58 1 reference to steep slopes. 2 MR. OURY: And was it your 3 opinion that citation applied to this 4 property? 5 MR. BERTIN: Well, the section 6 we found, and I will give you the citation was 7 7:15 - 2.25 which dealt with the evaluation 8 criteria for waste water management plans and 9 amendments, and that didn't seem to apply to 10 this site. 11 MR. OURY: In addition, in this 12 letter you indicate to me that even if the DEP 13 regulations applied to this property, there 14 was a hardship provision written into the 15 regulation by the DEP in the State, is that 16 correct? 17 MR. BERTIN: Yes. 18 MR. OURY: Can we mark that as 19 10, please. 20 (Exhibit marked A-10.) 21 MR. OURY: Now, by the time we 22 are writing these letters back and forth 23 between you and Medina and Mr. Marks in that 24 area of September and October, the Planning 25 Board in North Bergen had already voted to 59 1 approve this application, is that correct? 2 MR. BERTIN: Yes, I believe that 3 was in June of '08. 4 MR. OURY: I am going to show 5 you what appears to be the resolution of 6 approval from the North Bergen Planning Board. 7 You have seen that document 8 before? 9 MR. BERTIN: Yes. 10 MR. OURY: Can you mark that as 11 Applicant's 11, please. 12 (Exhibit marked A-11.) 13 MR. OURY: I will refer you to 14 the last page, the very last page which 15 indicates that the Board voted on this 16 application on August 27th, 2008, is that 17 correct? 18 MR. BERTIN: Yes. 19 MR. OURY: Okay. 20 MR. BERTIN: And they voted to 21 approve the resolution. 22 MR. OURY: And the resolution 23 itself was voted on and passed by the Board on 24 November 6th, 2008, is that correct? 25 MR. BERTIN: Yes. 60 1 MR. OURY: And we will mark that 2 as A-11 if you haven't done that already. 3 MR. BERTIN: I have. 4 MR. OURY: And that resolution 5 included the amendment to the plans which is 6 to move the building forward? 7 MR. BERTIN: That's correct. 8 MR. OURY: That is the 9 Walgreen's building? 10 MR. BERTIN: Yes. 11 MR. OURY: And there was a lot 12 of testimony at the hearing not only from 13 yourself but someone from Johnson Soils, is 14 that correct? 15 MR. BERTIN: Yes. 16 MR. OURY: Lisa Mahle? 17 MR. BERTIN: Mahle. 18 MR. OURY: Who intended to 19 testify here in the future. She is a 20 geotechnical engineer? 21 MR. BERTIN: Yes. 22 MR. OURY: And she addressed 23 many of the concerns Rick McGrath had with 24 regard to this property, correct? 25 MR. BERTIN: Yes. She discussed 61 1 in detail the Palisades and the methods for 2 cutting the rock and explaining what the 3 composition of the Palisades was, and the 4 site. 5 MR. OURY: I am going to show 6 you a letter dated November 13th from you to 7 Ed Reimon. 8 Did he get this one or did you 9 get this one? He got this one? 10 MR. BERTIN: He got this one. 11 MR. OURY: That is good. 12 What was the purpose of that 13 November 13th letter being sent to Mr. Reimon? 14 MR. BERTIN: This was in 15 response to a review letter, a second review 16 letter dated October 7th that came from Mr. 17 Reimon's office, again addressed to Steve 18 Marks and copied to my office with more detail 19 about the site plan application. More detail 20 review on the site plan application. 21 MR. OURY: So, on October 7th, 22 Medina sends a letter in a more detailed 23 nature pointing out different issues that have 24 to be addressed which isn't usual in these 25 types of applications? 62 1 MR. BERTIN: Correct. There was 2 reiteration of the comment regarding steep 3 slopes and then there were questions about 4 traffic and questions about drainage. 5 MR. OURY: Now, to get into more 6 detail with regard to this letter -- okay? -- 7 on Page 1 of the letter his comment, your 8 comment back to him, has to do with the steep 9 slope water management planning from the DEP, 10 is that correct? 11 MR. BERTIN: Right. But is a 12 paraphrase of the letter that I wrote to you 13 that has already been marked. 14 MR. OURY: And you reiterate 15 again your opinion in the citation given to 16 you by Medina you felt was not applicable to 17 this property because it dealt with waste 18 water management and had no bearing on this 19 property, is that correct? 20 MR. BERTIN: Yes. 21 MR. OURY: Okay. In addition to 22 that, there are -- it looks like at least 23 twenty or twenty-five items that you addressed 24 line by line, item by item with regard to 25 Medina's letter to you, is that correct? 63 1 MR. BERTIN: That's right. We 2 normally give a point by point response, makes 3 it easier for the review engineer to see what 4 we did. 5 MR. OURY: Okay. 6 COMMISSIONER FITZGIBBONS: I got 7 a question. These are your opinions, right? 8 MR. BERTIN: Right. 9 COMMISSIONER FITZGIBBONS: 10 Medina has their opinion, right? 11 MR. OURY: That is a fair 12 question. That is my next question. 13 Did you ever receive -- let me 14 just ask you the question. 15 MR. BERTIN: This is Exhibit 12 16 now? 17 MR. OURY: Yeah, mark it. 18 Excuse me, 13. No, I take that back. I think 19 it is 12. 20 It is 12. 21 (Exhibit marked A-12.) 22 MR. OURY: Did you ever receive 23 from Medina Engineering in writing anything 24 that indicates that this differed from your 25 opinion with regard to the applicability of 64 1 the New Jersey Administrative Code sections 2 that were referred to you? 3 MR. BERTIN: No, we did not get 4 any writing from Medina Associates on that 5 subject. 6 MR. OURY: Did you ever have a 7 verbal discussion with a representative of 8 Medina with regard to your opinion that the 9 regulations of the DEP applied to this 10 property? 11 MR. BERTIN: Not to my 12 recollection, no. 13 MR. OURY: To keep things in 14 context, by the time we were talking in 15 November and December, we were alerted, were 16 we not, during that time frame to the 17 ordinance that Hudson County had passed with 18 regard to steep slopes, is that correct? 19 MR. BERTIN: Yes. 20 MR. OURY: And you think we were 21 made -- do you know who made you aware of 22 that? 23 MR. BERTIN: Mr. Marks did. 24 MR. OURY: And to the best of 25 your recollection, that ordinance was passed 65 1 by the County in October? 2 MR. BERTIN: Yes, of 2008. 3 MR. OURY: Now -- 4 COMMISSIONER FITZGIBBONS: I got 5 a question. Did the DEP approve this? 6 MR. OURY: They don't need to. 7 They were never submitted anything. They 8 don't have jurisdiction. 9 MR. CALVANICO: Let me 10 interrupt. 11 CHAIRWOMAN AVAGLIANO: Excuse 12 me. 13 MR. CALVANICO: That is a 14 question that needs to be determined. The 15 applicant's position is that the DEP doesn't 16 have jurisdiction. That is not our opinion. 17 MR. OURY: Well, with all due 18 respect to Mr. Calvanico, I have not received 19 from Medina Engineering anything in writing 20 saying they don't agree with that opinion. 21 That is why I am going through this. 22 Now, if there is something that 23 they have that they can refer to I will be 24 happy to review it, have my witness review it 25 and if necessary we will contact DEP. 66 1 We did the review, we sent two 2 or three letters and we have not received any 3 type of a response from Medina. 4 CHAIRWOMAN AVAGLIANO: Director 5 Marks, please. 6 MR. OURY: If we are going to 7 hear from Mr. Marks I will ask that he be 8 sworn in because he is a witness and I have a 9 right to cross-examine him. And I expect he 10 has quite a bit to say and I have no problem 11 with that, but I think it has to be done in an 12 orderly fashion. The court would require he 13 be sworn in as a witness. 14 CHAIRWOMAN AVAGLIANO: Go ahead. 15 MR. OURY: I don't know if you 16 want to do it now or you think it would be 17 better to do it after the testimony. 18 CHAIRWOMAN AVAGLIANO: 19 Counselor? 20 MR. CALVANICO: As to when we do 21 it, Madam Chairlady, that is up to you. 22 Certain issues are coming up, I don't know we 23 want to wait, especially since this hearing is 24 likely to go over for another month. 25 We need to wait a month or two 67 1 months for Mr. Marks for a response to one 2 particular issue. We can swear Mr. Marks in 3 at any time. 4 CHAIRWOMAN AVAGLIANO: Go ahead. 5 (Stephen Marks, was duly sworn.) 6 MR. CALVANICO: He has been 7 sworn. 8 DIRECTOR MARKS: Madam Chair, 9 just to follow up or clarify something that 10 Mr. Oury had said, there was a telephone 11 conversation with Mr. Bertin going back to -- 12 either by myself, not Medina -- going back to 13 either November, December laying out my 14 understanding of the DEP's water quality 15 management regulations and Mr. Bertin, as well 16 as the applicants and attorney, it wasn't Mr. 17 Oury, had come to the Planning Board's Site 18 Plan and Subdivision meeting on or about 19 January 7th at which time a document, 20 essentially what you have received with the 21 actual citations. Both the County land 22 development regulations and the DEP water 23 quality management regulations were given to 24 -- there wasn't a formal transmittal letter, 25 they were handed to Mr. Bertin as well as the 68 1 applicants and the applicants' attorney. I 2 fail to remember the name of the attorney who 3 was representing the applicant here. 4 MR. OURY: I would like to 5 cross-examine him. 6 CHAIRWOMAN AVAGLIANO: Go ahead. 7 MR. OURY: Mr. Marks, you don't 8 disagree with my assessment that we never 9 received anything in writing from Medina 10 objecting to the opinion of Mr. Bertin's 11 office, is that correct? 12 MR. CALVANICO: Let's try to 13 rephrase the question. It is difficult to 14 know what -- for Mr. Marks know what you 15 received. 16 MR. OURY: I think he should. 17 As the Director of Planning he hired Mr. 18 Medina and whatever comes out to Mr. Medina's 19 office or any engineering firm copies are sent 20 to Mr. Marks, so maybe I will ask a more basic 21 question. 22 As Director of Planning, do you 23 oversee the hiring of consulting engineers or 24 any other professionals with regard to 25 applications? 69 1 DIRECTOR MARKS: Mr. Oury, the 2 Planning Board itself generates the request 3 for qualifications which are then reviewed and 4 approved by the County Administration and it 5 is the Planning Board, through its Site Plan 6 and Subdivision Review Committee and the 7 County Engineer's office which reviews the 8 qualifications of consulting engineers who 9 respond to advertisement and circulation of 10 the RFQ and it is the County Engineer and the 11 Site Plan and Subdivision Review Committee who 12 make a recommendation to the full Planning 13 Board on who should be hired as the consulting 14 engineer. 15 I myself, I don't have that 16 authority to hire the Consulting Engineer. 17 MR. OURY: Do you make 18 recommendations on particular projects from 19 the list as to who should get hired? 20 DIRECTOR MARKS: For this past 21 year, no. That was done by the County 22 Engineer along with two Planning Board 23 Commissioners who furnished a recommendation 24 to the entire Planning Board. 25 MR. OURY: After an engineer is 70 1 retained, do you get copies of whatever 2 reports are generated by the engineer or 3 whatever professional is retained? 4 DIRECTOR MARKS: I am supposed 5 to. 6 MR. OURY: So if a report was 7 issued, normally as I understand it in my 8 experience, the report is issued to you with 9 copies to the applicant, and I don't recall 10 whether the engineer sends it directly to us 11 or whether you do, I don't recall that 12 exactly, but it is directed to you? 13 DIRECTOR MARKS: I am normally 14 copied on correspondence from the consulting 15 engineer. 16 MR. OURY: Do you recall 17 receiving any correspondence report, anything 18 in writing from Medina with regard to this 19 application which indicated that Medina 20 disagreed with the opinion of Mr. Bertin with 21 regard to the applicability of the regulation 22 of the DEP on steep slopes? 23 DIRECTOR MARKS: I don't recall. 24 MR. OURY: Did you ever put in 25 writing any reference to a disagreement with 71 1 Mr. Bertin's opinion that the DEP regulations 2 did not apply to this application? 3 DIRECTOR MARKS: In writing, no. 4 Verbally by telephone and in person, yes. 5 MR. OURY: You have come to the 6 conclusion, I take it, that the DEP 7 regulations that have been referred to here 8 this evening are applicable to this property? 9 DIRECTOR MARKS: It is my 10 understanding, yes. 11 MR. OURY: Where do you receive 12 that understanding from? 13 DIRECTOR MARKS: In consultation 14 with the DEP and there are other documents. 15 If you would like to have them submitted, they 16 have already been furnished to the Planning 17 Board Commissioners. 18 MR. OURY: Who did you speak to 19 at the DEP? 20 DIRECTOR MARKS: Numerous 21 people. One particular person is Clay Sherman 22 with the Borough of Storm Water Management. 23 MR. OURY: And did he tell you 24 that the State regulations -- strike that. 25 Did you tell him which property 72 1 specifically you were asking about? Did you 2 give him a description, an address? 3 DIRECTOR MARKS: No. 4 MR. OURY: So when you asked 5 this gentleman whether or not the DEP 6 regulations applied, he didn't know which 7 property you were talking about? 8 DIRECTOR MARKS: No. He 9 described the DEP's water quality management 10 planning rules and said the rules were 11 applicable to steep slopes which are defined 12 in the DEP's regulations as anything other 13 than twenty percent grade. 14 MR. OURY: Is it your 15 understanding that any steep slopes in the 16 State of New Jersey, steep slopes being 17 anything over twenty percent, in those 18 regulations, DEP has jurisdiction over? 19 Whether it is in proximity to a stream, river, 20 or any waterway. Is that your understanding? 21 DIRECTOR MARKS: Let me qualify 22 it. 23 It is my understanding the DEP 24 for the last several years from my own direct 25 personal experience in 2004 through the 73 1 present has basically been deputizing each 2 county to review and enforce and enact its 3 regulations. 4 First in 2004 the DEP passed the 5 storm water management regulations which are 6 cited as NJAC 7:8. 7 It essentially deputized each 8 county to review and approve each county -- it 9 gave each county planning board or each county 10 the review authority to review each municipal 11 storm water -- municipal storm water 12 management plan. 13 In furtherance, it is also my 14 understanding that this set of rules which 15 were -- my recollection is they were first 16 advertised by the DEP on or about June 2007, 17 they were enacted by the DEP on or about July, 18 2008, also -- I don't want to say deputized, 19 that is probably not the best word, but they 20 designate each county as an agency to enforce 21 those water quality management regulations. 22 MR. OURY: And in your mind -- 23 and I agree with you deputizing is probably 24 not the right word, but make the county the 25 enforcing agency -- 74 1 DIRECTOR MARKS: Giving the 2 county jurisdiction, that is my understanding. 3 MR. OURY: But that jurisdiction 4 would be based on whether or not DEP has 5 jurisdiction in the first instance, am I 6 correct? They can't deputize you to enforce 7 something they don't have jurisdiction over, 8 is my point. Am I correct? 9 DIRECTOR MARKS: I don't know. 10 MR. OURY: You don't know the 11 answer to that. So if DEP doesn't have 12 jurisdiction over a particular piece of 13 property, you on behalf of DEP can enforce 14 some legislation? 15 DIRECTOR MARKS: Mr. Oury, I 16 could read the citations and the text which 17 was furnished by DEP, a general description of 18 the steep slopes provisions related to the 19 water quality management regulations and it 20 provides a pretty sound rationale why steep 21 slope development or disturbance on steep 22 slopes should be prohibited. 23 MR. OURY: You have been very 24 kind. I wouldn't disagree. 25 COMMISSIONER FITZGIBBONS: I 75 1 would like you to read that. 2 MR. OURY: What is he going to 3 read? 4 COMMISSIONER FITZGIBBONS: The 5 section he just said. 6 MR. OURY: I want to -- let me 7 just -- 8 COMMISSIONER FITZGIBBONS: Wait. 9 MR. OURY: I don't doubt -- I 10 accede to the fact there is a regulation. My 11 point is, we don't believe it applies to this 12 property. 13 Now, there has been an 14 intervening event -- that is the County passed 15 its own ordinance which we have to deal with, 16 but Mr. Marks has given an opinion to you that 17 a DEP regulation which is on the books and 18 sent to me months ago, applies in some way. I 19 am asking him now on cross-examination what 20 leads him to that conclusion, that's all. 21 We can argue about the law later 22 on, but he is giving his opinion as an expert 23 and I need to cross-examine him to find out 24 because I have received nothing in writing. 25 As Mr. Marks just said, we 76 1 received nothing in writing from North Bergen 2 saying you are wrong, Mr. Bertin, it does 3 apply in some way. 4 I am learning now what the basis 5 of his opinion is, but I don't want it spread 6 across the record before we even determine 7 whether or not these regulations apply, what 8 is in the regulations. 9 COMMISSIONER FITZGIBBONS: I got 10 a question. You said the DEP told us that we 11 are more or less the enforcement authority. 12 DIRECTOR MARKS: That is my 13 understanding both with regard to the storm 14 water management regulations as well as the 15 water quality management regulation. 16 Just to follow up on Mr. Oury's 17 question, the County has what is called an 18 NJPDES Program. New Jersey Discharge -- well, 19 basically the County, each County which has 20 the storm water outfalls which go into lakes, 21 rivers and streams, must get a permit from the 22 New Jersey Department of Environmental 23 Protection. 24 It is the discharging related to 25 this particular application. It is the storm 77 1 water -- from my understanding, it is the 2 storm water from this site and from River Road 3 which goes into the County's catch basins 4 which go through our facilities out to the 5 Hudson River which governs the DEP's New 6 Jersey DEP permit and the County's requirement 7 to abide by the DEP storm water management 8 rules and water quality storm water 9 regulations. 10 That is my understanding. So in 11 answering your question, yes, it is my 12 understanding that the County, I guess the DEP 13 does have jurisdiction through its NJPDES 14 program and the County must abide by the DEP's 15 water quality management rules through the 16 NJDEPS project. 17 MR. OURY: You are familiar with 18 the fact that the administrative code 19 provisions, if they do apply, and I am not 20 conceding they do. If they do apply, has a 21 hardship provision in them? 22 DIRECTOR MARKS: -- yes. 23 MR. OURY: The State of New 24 Jersey determined that there are certain 25 conditions, hardships, that would require a 78 1 variance, waiver, however you want to phrase 2 it, correct? 3 DIRECTOR MARKS: Yes. 4 MR. OURY: Does your ordinance 5 -- yours, the County's ordinance on steep 6 slopes when it adopted that ordinance, provide 7 for such a hardship? 8 DIRECTOR MARKS: No, it does 9 not. 10 MR. OURY: So the ordinance that 11 we are also dealing with here by the County, 12 they didn't copy a hundred percent the DEP 13 regulations? 14 DIRECTOR MARKS: Right. 15 MR. OURY: Through the efforts 16 of Mr. Calvanico and myself, and you have to 17 give my client some credit for this, we found 18 a general provision in the development code 19 for the County which allows the Board to grant 20 variances, and I don't want to put words in 21 Mr. Calvanico's mouth, but we talked about 22 this, it is that reason we are here tonight. 23 If there is an application -- 24 because we do concede there is an ordinance 25 and we are looking to the Board for a waiver 79 1 whether the State applies or not, the State 2 does have in its requirements that there be a 3 hardship provision, true? 4 DIRECTOR MARKS: True. 5 MR. OURY: I don't want to go 6 any further because I haven't heard any of 7 this tonight, I have to prepare myself. 8 What I would ask Mr. Marks to do 9 either -- probably be better in writing, 10 Steve, but I would like to know in a memo who 11 you spoke to and some of the information you 12 just imparted to us tonight how you came to 13 the conclusion that it applies, and then I 14 would be prepared at the next meeting to go 15 forward. 16 If I agree with you, it is over 17 with regard to that issue. If I don't agree, 18 at least I know where you stand, that's all. 19 DIRECTOR MARKS: Madam Chair? 20 CHAIRWOMAN AVAGLIANO: Yes. 21 DIRECTOR MARKS: If I could 22 follow up on what Mr. Oury said and include 23 the no escape clause, the provisions for 24 hardships, it is on Page 77 of the DEP's rules 25 and it is Paragraph 6, ii, New disturbance 80 1 necessary to protect public health, safety or 2 welfare, to provide an environmental benefit, 3 to prevent extraordinary hardship on the 4 property owner peculiar to the property, or to 5 prevent extraordinary hardship, provided the 6 hardship was not created by the property owner 7 that would not permit a minimum economically 8 viable use of the property based upon 9 reasonable investment. 10 From my understanding, the DEP 11 rules allow for waivers to be granted for 12 those purposes. 13 MR. OURY: And I thank you for 14 that. And I would tell the Board, Mr. Marks, 15 in a memo to you tonight recites the fact that 16 seventy-one percent of the property is subject 17 to your steep slope ordinance and if I 18 conclude that the DEP regulations apply the 19 same thing, that leaves twenty-nine percent of 20 the property that is not subject to steep 21 slopes. 22 We intend to show that the 23 property, if not given away, is undevelopable 24 which raises another issue Mr. Calvanico and I 25 -- I assume will be talking about the law with 81 1 regard to this. It is kind of a unique issue. 2 I have never run across it before. 3 We did have conversations over 4 the Christmas holidays about this waiver 5 provision which got us here. I think we are 6 probably going to have more discussions, but I 7 agree with Mr. Marks that that provision is in 8 the DEP regs, but it was not written into the 9 ordinance, and -- go ahead, I am sorry. 10 DIRECTOR MARKS: In terms of the 11 actual paragraph, Madam Chair, within the 12 County's development regulations, it is not 13 specifically on that page, but Mr. Oury and 14 Mr. Calvanico did allude to the fact that 15 waivers may be granted for various and sundry 16 reasons. 17 MR. CALVANICO: If I might just 18 do a little bit of housekeeping here. We keep 19 talking about the DEP regulation and you 20 haven't heard the full citation for that 21 regulation. I want to get that on the record 22 so you know what we are all talking about. 23 NJAC -- New Jersey Administrative Code 24 7:15-5.25(g)6, Paragraph G, Subparagraph 6, is 25 the steep slope regulation, the one Mr. Marks 82 1 just read is the -- is the waiver provision, 2 is (g)6, Paragraph 2(e)2. I just wanted to 3 make sure so we know exactly. 4 MR. OURY: Thank you. We will 5 be getting a copy of the transcript. I will 6 give a copy to Tom so he has the references. 7 COMMISSIONER MEHTA: Just two 8 questions. 9 CHAIRWOMAN AVAGLIANO: Go ahead. 10 COMMISSIONER MEHTA: I think we 11 discussed about the State DEP regulation, but 12 did Mr. Marks inform Calisto either in writing 13 or in conversation that this particular thing 14 may be applied? 15 MR. BERTIN: Well, when we first 16 got the review letter that we marked from 17 Medina Associates first notifying us of the 18 DEP regulation. 19 MR. OURY: Which was what date 20 approximately, October? 21 MR. BERTIN: I think it was 22 October letter, yes. 23 MR. OURY: And it was after that 24 letter that you wrote your letter that you 25 said you believed it did not apply? 83 1 MR. BERTIN: Yes. 2 MR. OURY: And you received no 3 written communication? 4 MR. BERTIN: Not from Medina. 5 Mr. Marks and I had communications. 6 MR. OURY: Written response? 7 MR. BERTIN: No, not really. 8 MR. OURY: The first time Mr. 9 Marks raised it to you was when? 10 MR. BERTIN: After it came up in 11 the Medina letter then we started having 12 conversations because it was something that 13 was new. 14 MR. CALVANICO: Madam Chair, I 15 want to got something clear on the dates here. 16 The County regulation took 17 effect -- 18 DIRECTOR MARKS: October 23. 19 MR. CALVANICO: -- October 23, 20 2008. The State regulation which the County 21 based it upon took effect on what date? 22 DIRECTOR MARKS: I believe it 23 was enacted by the DEP July 7, 2008. It was 24 first published by the DEP in or around June 25 of 2007. A full year, thirteen months before. 84 1 MR. OURY: That is what my 2 understanding is, too. 3 COMMISSIONER MEHTA: Just one 4 more question. 5 When Calisto tried to apply for 6 Soil Conservation in January or February 2008 7 -- 8 MR. OURY: Actually the 9 application to Soil Conservation was 2007. 10 MR. BERTIN: Correct. 11 COMMISSIONER MEHTA: So at that 12 time and after this conversation with Mr. 13 Marks and Medina's letter, did your office or 14 you can say your office or his office, contact 15 the DEP and try to find out whether the DEP's 16 regulation applied to this particular thing or 17 not? 18 MR. OURY: Mr. Bertin can 19 address that. 20 MR. BERTIN: We tried, but we 21 did not got the satisfactory -- we did not got 22 the right person to talk to and our 23 conversations just stayed here. 24 But now that we know who Mr. 25 Marks talked to, we have someone we can talk 85 1 to and get more information. 2 We did make phone calls, but the 3 people we talked to were not helpful. You go 4 to a lot people and you go to storm water 5 management, everyone has got their own small 6 expertise. 7 COMMISSIONER MEHTA: And if you 8 remember, you recall North Bergen Township has 9 its own storm water management and special 10 regulation for it, right? 11 MR. BERTIN: Yes. And all the 12 applications that we have done in Hudson 13 County and North Bergen for quite some time 14 including the State storm water regulations 15 regarding quality of run-off, quality of 16 run-off and recharge. 17 Yes, North Bergen has that and 18 the County -- it is the same although the 19 review engineer might be a little different, 20 have different opinions. 21 MR. OURY: Following up on that 22 question, with regard to this particular 23 application, Medina's letter which you think 24 is the October letter which has a list of 25 items they wished you to address, most of 86 1 those items dealt with storm water management 2 and drainage, is that correct? 3 MR. BERTIN: Drainage and 4 traffic and it was items like what curb number 5 we used or you know -- 6 MR. OURY: Did the letter 7 concern itself with storm water management and 8 drainage? 9 MR. BERTIN: Yes. 10 MR. OURY: Did you address each 11 of those issues that were raised by Medina 12 with regard to storm water management and 13 drainage? 14 MR. BERTIN: Yes. 15 MR. OURY: Did you ever receive 16 in writing or verbally, and I think Medina was 17 at the meeting, I think it was January 7th, 18 did you ever receive from Medina either in 19 writing or verbally, a disagreement with how 20 you were handling, engineering-wise, the storm 21 water drainage and management on the site? 22 MR. BERTIN: Verbally, yes. 23 When we had the work session in January we 24 came to the County Planning Board work 25 session. There was a general comment that I 87 1 don't want to say everything was fine, but our 2 design was acceptable. 3 MR. OURY: Your engineering 4 design was acceptable? 5 MR. BERTIN: Yes. 6 MR. OURY: To handle the storm 7 water management and drainage issues that were 8 raised in their letter, correct? 9 MR. BERTIN: Yes. 10 MR. OURY: Now, if we can move 11 along I will show you a letter dated December 12 24, Christmas Eve. 13 MR. BERTIN: Yes, I was working. 14 MR. OURY: Addressed to Mr. 15 Marks who was obviously at his post that day. 16 Can you tell us what the sum and 17 substance of that letter was. Put your 18 glasses on to make it easy. 19 (Witness perusing.) 20 MR. BERTIN: Yes. Mr. Marks had 21 pointed me to the Hudson County land 22 development regulations. I reviewed the land 23 development regulations and this letter of 24 December 24th was my attempt to address water 25 quality issues which is how I interpreted the 88 1 steep slope provision and the land development 2 regulation affecting the property. 3 So what we trying to show is 4 that we worked a great deal with the Soil 5 Conservation District long before we knew 6 about this attempt to control storm water 7 runoff during construction. 8 After construction the designs 9 are fine. It is during construction when the 10 contractor has control of the site that we 11 have problems and that is on the other 12 project, not this. When it is done it will be 13 exactly as I said it would be, much better. 14 MR. OURY: Would you mark this 15 as Exhibit 14, please. 16 MR. BERTIN: Yes. And again the 17 reason for this, I was trying to give 18 justification if a variance or a waiver to the 19 steep slope ordinance, if there was one, I was 20 trying to provide some justification for 21 granting that waiver. 22 This is A-14? 23 MR. OURY: Yes. 24 (Exhibit marked A-14.) 25 MR. OURY: Looking at the date 89 1 of that letter, is it fair to say sometime 2 immediately before that that we became aware, 3 through Mr. Marks, of this new ordinance? 4 MR. BERTIN: Yes. 5 MR. OURY: Now, I am going to 6 show you a letter dated January 2nd, again to 7 Mr. Marks from yourself, and ask you to take a 8 look at that and tell me what the sum and 9 substance of that letter is. 10 (Witness perusing.) 11 MR. BERTIN: I was providing Mr. 12 Marks with more information on the 13 application. We had sent him a copy of the 14 Johnson Soil report. 15 A report had been prepared for 16 the North Bergen Planning Board. Mr. Marks 17 had raised some questions and maybe Demetrio, 18 as well, about stability of Boulevard East. 19 That was added to the report. And so we 20 transmitted that report along and I just 21 summarized some of the comments in the Johnson 22 Soils report. 23 MR. OURY: Would you mark that 24 as 15, please. 25 (Exhibit marked A-15.) 90 1 COMMISSIONER CHOFFO: Madam 2 Chair, I have a question. 3 CHAIRWOMAN AVAGLIANO: Go ahead. 4 COMMISSIONER CHOFFO: The soil 5 conservation report, who was that submitted to 6 again, Mr. Bertin? 7 MR. BERTIN: The Hudson Essex 8 Passaic Soil Conservation Committee. 9 COMMISSIONER CHOFFO: Do they 10 come out to the site? 11 MR. BERTIN: They have been 12 doing regular reviews of the site. They come 13 out to the site and I had a conversation with 14 them today and we will got into it. 15 MR. OURY: In telephone and 16 on-site the gentleman that runs that, what is 17 his name? 18 MR. BERTIN: Andrew Greybush. 19 MR. OURY: Has he indicated 20 whether or not he has any issues with the soil 21 conservation aspect of this project? 22 MR. BERTIN: No. As a matter of 23 fact, without putting words into his mouth, he 24 said he was very satisfied with the way 25 erosion control has been maintained on this 91 1 property. 2 Again, because of issues with 3 the last project which everybody is unhappy, 4 including myself, because I keep on getting 5 associated with things I had no control over. 6 We wanted to make sure this project ran 7 smoothly. 8 As a matter of fact, this 9 project -- and I insisted to my client we have 10 a representative as -- an owner's 11 representative on the site during construction 12 -- not full time, but visiting the site, and 13 they agreed to it. 14 But Mr. Greybush has been 15 satisfied, has been out there on a regular 16 basis as well as Boswell Engineering, the 17 township engineer, to review what they have 18 done and is happy with the, with the sequence 19 that the erosion controls have been put in and 20 how they have been put in. 21 MR. OURY: Mr. Bertin, at some 22 point in time you are probably going to be 23 asked this question. 24 Have you studied this site from 25 the standpoint of if relief is not granted by 92 1 this Board to the seventy-one percent of the 2 site that is covered by the ordinance, steep 3 slope ordinance, as to whether or not the 4 balance of the property is developable? Have 5 you done such a study yet? 6 COMMISSIONER CHOFFO: Excuse me, 7 Madam Chair. 8 CHAIRWOMAN AVAGLIANO: Yes. 9 COMMISSIONER CHOFFO: Before he 10 answers that question, I have one more 11 question. 12 MR. OURY: Sure. 13 COMMISSIONER CHOFFO: You just 14 referred to the last project meaning what 15 project? 16 MR. OURY: Churchill. 17 MR. BERTIN: Churchill Road. 18 COMMISSIONER CHOFFO: I wasn't 19 sure. 20 MR. OURY: The poster child for 21 all that goes bad. 22 COMMISSIONER CHOFFO: This way 23 the record is clear. 24 MR. BERTIN: That is under 25 control. 93 1 MR. OURY: Have you done a study 2 as to whether or not the twenty-nine percent 3 that is apparently not covered by this 4 ordinance on steep slopes, whether or not that 5 would be developable under the ordinances in 6 North Bergen? 7 MR. BERTIN: No, I haven't 8 looked at the ordinance and the setback 9 requirements and the lot size to see if we 10 could meet, put a viable commercial 11 development on that piece of property because 12 it is only the small portion on the south tip 13 of the property. 14 MR. OURY: At my request will 15 you be ready at the next meeting to offer any 16 testimony with regard to that? 17 MR. BERTIN: Yes. 18 MR. OURY: Okay. 19 COMMISSIONER FITZGIBBONS: Can I 20 ask you question? 21 CHAIRWOMAN AVAGLIANO: Yes. 22 COMMISSIONER FITZGIBBONS: I 23 have a question. When you did the zoning -- 24 what was the date of the zoning, zone changing 25 the use of North Bergen changing the property? 94 1 MR. OURY: It was the summer of 2 '06. 3 COMMISSIONER FITZGIBBONS: So 4 you just made a statement that North Bergen 5 said they have I guess it is a zoning 6 ordinance. 7 MR. OURY: They amended the 8 zoning ordinance to allow commercial use. 9 COMMISSIONER FITZGIBBONS: You 10 are saying North Bergen amended their 11 ordinance for another use there? 12 MR. BERTIN: The question was if 13 we didn't develop -- if we could not develop 14 on the full property and we are just limited 15 to the twenty percent or twenty-nine? 16 MR. OURY: Twenty-nine. 17 MR. BERTIN: Twenty percent that 18 was not steep slopes, can we develop it. So 19 without talking off the top of my head and 20 getting myself into trouble, I would rather 21 review it to see what can be developed in 22 accordance with the township regulations. 23 COMMISSIONER FITZGIBBONS: If 24 the township can grant you, do they have to 25 change their zoning ordinance to grant you 95 1 permission to build what you want to build 2 there? 3 MR. OURY: No, because you have 4 jurisdiction over the property and the point 5 is if you don't grant a waiver from the steep 6 slopes ordinance, the question becomes, no 7 matter what North Bergen does, is it 8 developable in any fashion, in a viable 9 fashion, keeping in mind if Mr. Marks is 10 correct that the administrative code, the DEP 11 regulations apply, it has in it a hardship 12 provision which deals with economic viability 13 of the property so we are going to do a study 14 of that and give you the proper answer, but if 15 you don't grant the waiver on the steep 16 slopes, the point we are making is we have 17 twenty-nine percent, I don't know what that 18 translates into the footage, but we need to be 19 able to say to you is it developable pursuant 20 to the DEP regulation which may not apply. 21 COMMISSIONER FITZGIBBONS: I am 22 talking about the twenty-nine percent. 23 MR. OURY: So am I. I am 24 talking about the twenty-nine percent. We 25 need to know whether or not it is developable 96 1 or has the County in fact condemned the 2 property, which is another issue. 3 And I don't want to get into it 4 tonight, Mr. Marks was kind enough to send me 5 this afternoon his memo. I haven't studied 6 it. I will be prepared at the next meeting, 7 but one of the things referenced in the memo 8 is the open space ordinance that the County 9 has passed. 10 My position is if the County 11 wants to take somebody's property for open 12 space or park land, you got to pay for it. 13 If that's something that is 14 going on here, I got no problem with that. We 15 have an approval from North Bergen and we've 16 got three tenants. 17 So my point to you is this. At 18 this juncture there are a lot of issues that 19 not only the Board has to deal with, but Mr. 20 Calvanico and myself and Mr. Marks from a 21 legal standpoint has to deal with. Those will 22 be coming to a head tonight. 23 COMMISSIONER FITZGIBBONS: Big 24 time because North Bergen changed the zoning 25 laws to fit the criteria to build what the 97 1 owners -- they even sold the property, changed 2 their zoning ordinance. They had the Planning 3 Board approve the plans. 4 MR. OURY: They didn't have the 5 Planning Board approve the plans, they make 6 their own decisions like you do. 7 COMMISSIONER FITZGIBBONS: But 8 without concurring with the Hudson County 9 Planning Board, they did all this stuff. 10 MR. OURY: That is not true. 11 That is not true. 2006 was when -- the zone 12 change amendment didn't take place. You 13 didn't have an ordinance on the books, you 14 weren't thinking about one in 2006. 15 No. 2, any amendment to the 16 zoning ordinance for any municipality is filed 17 with Mr. Marks. 18 COMMISSIONER FITZGIBBONS: Wait. 19 2006, but you still -- in order to -- you 20 submitted a plan but there was no plan to come 21 across which affects the County roads. 22 MR. OURY: There was nothing to 23 bring to you, that's the point. But the 24 change to the zoning ordinance is filed with 25 the County once it is made. 98 1 CHAIRWOMAN AVAGLIANO: Excuse 2 me. 3 MR. OURY: Just let me finish 4 this one point. 5 But in fairness to the County 6 and to Mr. Marks, in 2006 the State hadn't 7 passed the DEP regulation and the County 8 hadn't passed its steep slope ordinance. 9 CHAIRWOMAN AVAGLIANO: Director. 10 DIRECTOR MARKS: Madam Chair, 11 just for clarification, the County Board of 12 Chosen Freeholders in March, I believe 2005, 13 had adopted the Hudson County Open Space and 14 Recreation Plan and it was -- so the plan was 15 enacted. It just doesn't govern open space. 16 It was adopted as an amendment to the Hudson 17 County 2002 Hudson County master plan and it 18 is the 2005 open space plan which first makes 19 references to previewing steep slopes, 20 critical Environmental areas including 21 wetlands, flood plains, steep slopes, wild 22 life habitat, open waters, et cetera. That's 23 from Page 12. 24 And with regard to steep slopes 25 on Page 105 of the plan which was adopted by 99 1 the County several years before the applicant 2 either bought the site or received municipal 3 Planning Board approval, the steep slope 4 section of the open space plan states that 5 disturbance to steep slopes can affect plant 6 life and drainage patterns, increase the 7 amount and speed of run-off and can cause 8 erosion to soil creep, slumping, sections of 9 soil shifting down and outward in the slope, 10 and landslides. Run-off carries eroded 11 sediments to lowland areas, to wetlands, 12 ponds, lakes and streams where the resulting 13 turbidity and siltation can damage or destroy 14 aquatic life and disrupt the ability of 15 wetlands to filter and purify water. 16 Next paragraph down to steep to 17 moderate slopes are found in the northern half 18 of the County primarily along the extent of 19 the Palisades that snake down the length of 20 the Hudson. 21 The following page is a map 22 which is created by Heyer Gruel & Associates 23 entitled Hudson County Open Space Plan, Steep 24 Slopes dated April 2004 at which point we were 25 cognizant of the fact that the New Jersey 100 1 Department of Environmental Protection had 2 enacted its storm water management rules and 3 the County was the recipient or a permit 4 holder of a New Jersey discharge elimination 5 system permit. 6 So those negative environmental 7 impacts that were prefaced in the steep slopes 8 section are directly related to the County's 9 NJPDES permit. 10 MR. OURY: I have some questions 11 of Mr. Marks, if I may. 12 COMMISSIONER BETTINGER: Excuse 13 me, Madam Chair, I just have one question. 14 MR. OURY: Sure. 15 CHAIRWOMAN AVAGLIANO: Sure. 16 COMMISSIONER BETTINGER: Did 17 anyone start any work on this property? 18 MR. OURY: Soil stabilization 19 pursuant to the Soil Conservation permit, yes. 20 Mr. Marks -- 21 CHAIRWOMAN AVAGLIANO: Wait. Is 22 this your equipment on this property on River 23 Road? 24 MR. OURY: I don't know what you 25 are looking at. 101 1 CHAIRWOMAN AVAGLIANO: I have 2 pictures of equipment on this road removing 3 stones. 4 MR. OURY: Yes. 5 CHAIRWOMAN AVAGLIANO: Do you 6 have a permit for doing this? 7 MR. OURY: The Soil Conservation 8 permit. 9 COMMISSIONER FITZGIBBONS: Do 10 you have a permit to do work on the road? 11 CHAIRWOMAN AVAGLIANO: You are 12 doing work you don't have a permit for? 13 MR. OURY: I have a permit from 14 Soil Conservation. 15 COMMISSIONER BETTINGER: You 16 don't need to come before this Board? 17 MR. OURY: We are here -- 18 COMMISSIONER BETTINGER: You 19 started work before it is approved? 20 CHAIRWOMAN AVAGLIANO: Before it 21 is approved? 22 MR. OURY: We started -- 23 COMMISSIONER FITZGIBBONS: Was 24 there a stop work order given by the City? 25 MR. OURY: No. 102 1 CHAIRWOMAN AVAGLIANO: Never? 2 MR. OURY: No. 3 COMMISSIONER FITZGIBBONS: 4 Never? 5 MR. OURY: Not that I am aware 6 of, no stop work order was ever directed. 7 DIRECTOR MARKS: Madam 8 Chairwoman? 9 CHAIRWOMAN AVAGLIANO: Director 10 Marks. 11 DIRECTOR MARKS: Mario Tridente 12 in my office who is the building inspector and 13 zoning officer for the Planning Board issued a 14 request to stop work on December 9. He had 15 subsequent conversations with Mr. Bertin or 16 people with Mr. Bertin's engineering firm. 17 MR. OURY: That was not a stop 18 work order. 19 DIRECTOR MARKS: Only 20 municipalities, municipal construction code 21 officials can issue a stop work order, but 22 both the Hudson County Site Plan and 23 Subdivision Review Resolution from 1989, and 24 the Hudson County Land Development Regulation 25 which were enacted in 2008 prohibit 103 1 development or clearing of sites along County 2 roads or impacting County drainage facilities 3 until such time that the applicant gets a 4 development application approval from the 5 Planning Board. 6 So Mr. Tridente's request to 7 stop work was sent by certified mail to both 8 the municipal construction code official as 9 well as Mr. Bertin. I am not sure if it went 10 to Mr. Oury's law firm. 11 MR. OURY: Probably the people 12 on the site. 13 DIRECTOR MARKS: By certified 14 mail. The applicant ignored our request to 15 stop work. 16 MR. OURY: I am going to have to 17 address that. We had a meeting on the site 18 Mr. Marks with Mr. Tridente. We had a 19 meeting. It is not like we ignored you. I 20 can show you my billing records. 21 In any event, without getting 22 into that, I want to cross-examine Mr. Marks 23 on this issue of the County Planning Board. I 24 think it is rather important since you brought 25 it up. 104 1 CHAIRWOMAN AVAGLIANO: Why don't 2 we complete the questions on the equipment. 3 Is that equipment still in that 4 area? 5 MR. OURY: Yes. 6 CHAIRWOMAN AVAGLIANO: When 7 there was a stop order? 8 MR. OURY: There was not a stop 9 ordered issued, no. 10 COMMISSIONER FITZGIBBONS: I 11 have to ask my attorney something. 12 MR. CALVANICO: Yes. 13 COMMISSIONER FITZGIBBONS: The 14 County Planning Board requests a municipality 15 to make a stop work order on a County Road. 16 Isn't it his duty under the -- 17 CHAIRWOMAN AVAGLIANO: CC code 18 -- you have that expertise. 19 MR. TRIDENTE: I can clear that 20 up for you, Commissioner. 21 Madam Chair, I have spoke with 22 Ed Blakeslee from the North Bergen Building 23 Department and Brian Rubarro. Being that 24 there were no actual construction permits 25 issued, that the work that was being done was 105 1 considered site work, he said based on that he 2 was not able to issue a stop work order. 3 COMMISSIONER FITZGIBBONS: But 4 the -- 5 MR. TRIDENTE: If that clears it 6 up. The work they were supposed to be doing 7 was only supposed to be prepatory site work. 8 Just clearing -- 9 COMMISSIONER FITZGIBBONS: I 10 don't know. I am a licensed official myself, 11 but I don't know. I see a lot of work going 12 on over there in these pictures here. 13 COMMISSIONER BETTINGER: That 14 was my question. 15 MR. OURY: We are going to get 16 to this in my case. I am not hiding anything. 17 We had meetings on the site. This is not a 18 big secret to anybody so I will get to that 19 during the presentation of my case. 20 I have no problem with that. I 21 just want to cross-examine Mr. Marks on this 22 issue that was brought up regarding this 23 because he is leaving you with an impression I 24 think that is not exactly correct vis-a-vis 25 the enforcement of this ordinance. 106 1 If I could have five, ten 2 minutes to speak with him about that. 3 CHAIRWOMAN AVAGLIANO: One more 4 question to Director Marks. 5 Go ahead, please. 6 MR. OURY: Mr. Marks, you have 7 referenced in your letter to us -- your memo, 8 by the way, is dated February 11, 2009, is 9 that correct? You referenced the Open Space 10 Recreation and Historical Preservation Plan 11 which is an amendment to the Hudson County 12 master plan of 2002, is that correct? 13 DIRECTOR MARKS: Correct. 14 MR. OURY: And what is the 15 master plan generally? 16 DIRECTOR MARKS: A master plan 17 is a document which should guide the 18 development, should guide the processes and 19 enlighten Planning Board Commissioners and/or 20 local officials on the pace and scope of 21 development within their jurisdiction. 22 MR. OURY: You also reference 23 the open space plan which you again -- I take 24 that back. 25 You reference the open space 107 1 plan which again is an amendment to the master 2 plan. 3 DIRECTOR MARKS: Correct. 4 MR. OURY: And those things, the 5 open space plan and that kind of thing is 6 mandated by statute for municipalities and for 7 the counties? 8 DIRECTOR MARKS: Correct. 9 MR. OURY: And it is a blueprint 10 for zoning, is that correct? 11 DIRECTOR MARKS: It is a 12 blueprint for, with regard to municipalities. 13 It should be a blueprint for the municipal 14 zoning ordinance. 15 With regard to counties, it 16 should be a blueprint and a guide for action 17 with regard to the county's development 18 regulations. 19 MR. OURY: And in this 20 particular case it was prepared by -- "it" 21 being the amendment to the -- the 22 re-examination of the master plan which was 23 prepared by Heyer Gruel. 24 DIRECTOR MARKS: Correct. 25 MR. OURY: And they made certain 108 1 recommendations? 2 DIRECTOR MARKS: Correct. 3 MR. OURY: It makes 4 recommendations to the governing body, that is 5 in the case of the County Freeholders. In the 6 case of the municipality the governing body, 7 correct? 8 DIRECTOR MARKS: Correct. 9 MR. OURY: And the only way 10 those recommendations get implemented is 11 through legislation, is that correct? 12 DIRECTOR MARKS: That's correct. 13 MR. OURY: That would be by 14 passage of an ordinance in the case of a 15 county and also in the case of a municipality, 16 is that correct? 17 DIRECTOR MARKS: That's correct. 18 MR. OURY: And recommendations 19 were made and we can all read the language 20 with regard to steep slopes and open space, 21 but it took Hudson County three or four years 22 to implement the steep slope provision, until 23 October of 2008 to implement those 24 recommendations, is that correct? 25 DIRECTOR MARKS: That's correct. 109 1 MR. OURY: Now, since the open 2 space amendment which was I think 2005 -- 3 DIRECTOR MARKS: Correct. 4 MR. OURY: -- you have had a lot 5 of applications before this Board for River 6 Road, correct? 7 DIRECTOR MARKS: Correct. 8 MR. OURY: Some of them mine? 9 DIRECTOR MARKS: Correct. 10 MR. OURY: One of them 11 Churchill? 12 DIRECTOR MARKS: Correct. 13 MR. OURY: Did you enforce the 14 steep slope recommendation and could you have 15 enforced the steep slope recommendation 16 contained in the master plan review as a 17 matter of law? 18 DIRECTOR MARKS: Well -- 19 MR. CALVANICO: He is a planner. 20 MR. OURY: He is testifying as 21 an expert, Tom. You got to give me a break 22 here. 23 MR. CALVANICO: He can give his 24 opinion. 25 MR. OURY: That's all I am 110 1 suggesting. He knows what a master plan is. 2 DIRECTOR MARKS: Can you restate 3 the question. 4 MR. OURY: Sure. 5 Isn't it a fact that the 6 recommendations by Heyer & Gruel which goes 7 back to 2004 amendments to the master plan 8 regarding steep slopes were not enforceable by 9 this Board or the County until such time as 10 the Freeholders adopted an ordinance to 11 implement it? 12 DIRECTOR MARKS: That's correct. 13 MR. OURY: So up until October 14 of 2008 which is this past October, this Board 15 did not have the authority to enforce the 16 steep slope provisions of the master plan 17 recommendation? 18 DIRECTOR MARKS: That is not 19 entirely true. The Hudson County Site Plan 20 and Subdivision Review regulation which were 21 adopted by the Hudson County Board of Chosen 22 Freeholders in 1989 discouraged, discouraged 23 development on steep slopes. 24 After -- 25 MR. OURY: What date was that? 111 1 DIRECTOR MARKS: 1989. 2 MR. OURY: Can you tell me, 3 please, since 1989 how many applications has 4 this Board heard with regard to properties in 5 Weehawken, West New York, Guttenberg and North 6 Bergen, all along the river, on the west side 7 of River Road. A lot? 8 CHAIRWOMAN AVAGLIANO: Well -- 9 DIRECTOR MARKS: In North 10 Bergen, yes. I could tell you in Weehawken, 11 West New York and Guttenberg, probably none. 12 MR. OURY: Well, I will supply 13 you with the ones that I represented clients 14 on in some of those towns, but let's talk 15 about North Bergen. 16 Wasn't Churchill 2005? 17 DIRECTOR MARKS: Well -- 18 MR. OURY: Yes or no. Was 19 Churchill brought before this Board pursuant 20 to your report in 2005? 21 DIRECTOR MARKS: Madam Chair? 22 MR. OURY: Madam Chair, he is a 23 witness. He is under oath and I am asking a 24 simple question. 25 DIRECTOR MARKS: But it isn't a 112 1 yes or no question. 2 MR. OURY: You can explain the 3 answer, but I want an answer to my question. 4 I am entitled to that. 5 DIRECTOR MARKS: I will gladly 6 give you an answer but it is not a yes or no 7 answer. 8 MR. OURY: I will rephrase the 9 question. 10 Was Churchill Estates an 11 application to this Planning Board in the year 12 2005? 13 DIRECTOR MARKS: It came up for 14 approval in I think it was received by this 15 Board in 2006 and it was scheduled for public 16 hearing in January 2007, continued to February 17 2007. 18 MR. OURY: Okay. 19 DIRECTOR MARKS: And 20 memorialized I believe in March 2007. 21 MR. OURY: You will agree with 22 me that 2007 is way after 1989, is that 23 correct? 24 DIRECTOR MARKS: That's correct. 25 MR. OURY: During that 113 1 application, did the Hudson County Planning 2 Board enforce the steep slope provision of the 3 1989 site plan resolution? 4 DIRECTOR MARKS: At the time 5 maybe the urgency or the detrimental qualities 6 or detrimental impact on steep slopes I don't 7 believe was really apparent to the Planning 8 Board and the applicant's engineers, and 9 Churchill Estates had testified to the fact 10 that the disturbance of steep slopes was 11 basically fine. 12 The Churchill Estates' 13 application would actually improve storm water 14 run-off and drainage and was basically sold a 15 bill of goods. The photographs from River 16 Road in North Bergen just below Churchill 17 Estates demonstrates I think pretty remarkably 18 why steep slopes should be preserved. 19 The development at Churchill 20 Estates created a mud slide which had a severe 21 impact on River Road and for -- 22 MR. OURY: Did your office 23 investigate that mud slide? 24 DIRECTOR MARKS: The County 25 Engineer's office reported that slide. 114 1 MR. OURY: Was there ever a 2 report, letter, memo issued after that mud 3 slide as to what caused that mud slide? 4 DIRECTOR MARKS: There was 5 e-mail correspondence and Mr. Tridente had 6 prepared a report with regard to his findings 7 on the Churchill Estates application. 8 MR. OURY: Did Mr. Tridente in 9 his report indicate what he felt the cause of 10 the mud slide was? 11 DIRECTOR MARKS: I don't recall, 12 and Mr. Tridente would have to answer that. 13 MR. OURY: So to answer my 14 original question, this Board and your office 15 in 2007 when Churchill Estates came, did not 16 raise the issue of steep slopes? 17 I could check all the reports, 18 Mr. Marks, and I was the applicant's attorney 19 on that case and it is my recollection that 20 there was never a reference to a steep slopes 21 provision for either that application or any 22 other application that you have had on River 23 Road and I can tell you that there is another 24 piece of property in between this property and 25 Churchill, Mirabel, which also would have been 115 1 covered by steep slopes that was not raised by 2 the Board then. 3 I say this to you only to make 4 the following point: I don't want the Board 5 left with the understanding that back in 1989 6 or in 2005 when these master plan 7 recommendations were made it became law just 8 because they made them. 9 It is -- under the land use act, 10 and I know that Mr. Calvanico will advise you 11 as I am doing tonight, under the land use act 12 every so many users the municipality and the 13 County have to pass a master plan. 14 Recommendation are made on various issues such 15 as zoning, and the Planning Board may 16 recommend to the council let's make this piece 17 of property for high-rise use. 18 It doesn't become law until the 19 governing body implements it through an 20 ordinance. That was done here in 2008, 21 October, not back in 2006, and to answer Mr. 22 Fitzgibbons's question, when the ordinance 23 change was made by North Bergen, by statute 24 they have to file with the County any 25 amendment. 116 1 The County was aware of the 2 amendment to the ordinance. 3 I also have an opinion and 4 theory as to how this happened. What happened 5 was, there was a problem at Churchill which 6 nobody really understands and you will be made 7 to understand at the next meeting how it 8 happened. 9 There was a reaction to it, 10 let's not have this happen again, let's have a 11 steep slope ordinance, not realizing that 12 there wouldn't be one piece of property in 13 North Bergen, Guttenberg or West New York on 14 that side of River Road that is going to be 15 able to be developed. 16 And Mr. McGrath on behalf of 17 North Bergen will be here to testify to that. 18 That is it purpose of what I am saying. That 19 is just a matter of law. A master plan is not 20 an enforcing regulation, it is a suggestion to 21 the powers that be, and in this case the 22 Freeholders passed the ordinance in October. 23 CHAIRWOMAN AVAGLIANO: Just a 24 minute. Go ahead, Director. 25 DIRECTOR MARKS: Madam Chair, 117 1 just to clarify Mr. Oury's comments, there 2 were objectors to I believe the Churchill 3 Estates application who brought up steep 4 slopes and the Palisades, and basically their 5 reaction or the objectors' comments were, I 6 don't think, adequately addressed. 7 They were addressed by the 8 applicant's engineer who I believe was Mr. 9 Bertin, who said that the drainage was fine, 10 the storm water runoff was fine, we are really 11 not disturbing the steep slopes and there was, 12 unfortunately at the time, differences of 13 opinion of what constituted a steep slope and 14 whether the steep slope is the twenty percent 15 grade or the actual face of the Palisades 16 cliff. That was one. 17 That brought to the Planning 18 Board's attention the Environmental 19 constraints or environmental sensitivities of 20 developing on steep slopes. 21 The Board of Chosen Freeholders 22 did not arbitrarily or capriciously walk up on 23 October 22nd and say let's enact a new set of 24 land development regulations. 25 The land development regulations 118 1 came about because it took approximately 2 almost two years to actually from the date the 3 land development regulations were first 4 budgeted in the County's capital budget to the 5 time we went to the RFQ process to select the 6 best qualified planning and engineering firm 7 to come up with the draft recommendations. 8 It took approximately -- and the 9 members of the site plan and subdivision 10 review committee can attest to this, it took 11 almost one year of coming to every site plan 12 and subdivision review committee to address 13 all of the issues. 14 The Hudson County land 15 development regulations, the regulation 16 themselves are over 100 pages, the appendix 17 probably over sixty pages. 18 There is a public planning 19 process and a public notification process 20 which is onerous, but it is onerous for a 21 reason. The draft Hudson County land 22 development regulations were sent out by 23 certified mail to all the municipalities, the 24 mayors, the municipal clerks, the planning 25 board secretaries, the zoning officials and 119 1 the construction code officials. We had 2 probably a ninety-day public comment period 3 and after the Board had received back all the 4 comments, the Board made changes or revisions 5 accordingly. None with regard to steep 6 slopes. It covers all the issues related to 7 traffic and drainage. 8 They furnished a recommendation 9 to the Board of Chosen Freeholders I believe 10 in August of 2008, and it took some time for 11 the County administration to digest the County 12 land development regulations and put it on the 13 Board of Freeholders for approval. 14 The process was at least a year 15 and a half. If you include the budgeting and 16 the procurement system, it was probably two 17 years. 18 So the County did not act -- the 19 County Board of Chosen Freeholders and the 20 Planning Board acted very judiciously and very 21 slowly. It didn't rush into anything. 22 It was -- should have been with 23 full knowledge and consent of the 24 municipality. We hadn't received any 25 objections from any of the municipalities with 120 1 regard to the steep slope provisions. 2 MR. OURY: Mr. Marks, this 3 process that took two years, that process was 4 for the master plan amendments, true? 5 DIRECTOR MARKS: That process 6 was both for the master plan re-examination 7 report as well as the Hudson County land 8 development regulation. 9 MR. OURY: Okay. This process, 10 is it your testimony that when this process 11 was completed which is, which was the 12 amendment to the master plan, the County 13 master plan, when it was done, the 14 recommendations in that report, that master 15 plan re-examination, were enforceable by this 16 Board? Is that your testimony? 17 DIRECTOR MARKS: The Planning 18 Board could have taken -- in the month or two, 19 and I would have to take a look at the actual 20 dates of adoption, in the month or two the 21 master plan re-examination report was approved 22 by the Board of Chosen Freeholders and the 23 land development regulations were approved by 24 the Board of Chosen Freeholders, in that month 25 or two span -- and given the 1989 site plan 121 1 subdivision review resolution which 2 discouraged development on steep slopes, the 3 Board at that time could have taken the master 4 plan re-examination report into consideration 5 in its deliberations and relied on the 1989 6 document to furnish, either approve or deny an 7 application. 8 MR. OURY: So before August of 9 2008 when the master plan re-examination was 10 adopted, your testimony is that the Hudson 11 County Planning Board could not take into 12 consideration the 1990 -- '89 resolution, is 13 that correct? 14 DIRECTOR MARKS: It could have, 15 however the 1989 resolution was essentially 16 bare bones and did not really flush out the 17 details of why development and/or disturbance 18 on steep slopes was really discouraged. 19 There is also, Mr. Oury, the 20 nexus between -- it was post Churchill Estates 21 as well as the adoption, the promulgation of 22 the DEP's water quality rules which were first 23 published in June 2007 which consisted of the 24 draft of the master plan re-examination report 25 and the land development regulation. 122 1 There was, in excess of those 2 efforts -- 3 MR. OURY: My questions are very 4 simple. We can argue about the ordinance 5 itself. My question is very, very simple. 6 From 1989 to 2008 when the 7 master plan recommendations were passed upon 8 by the Freeholders, is it your opinion that 9 this Board had at its disposal a steep slope 10 prohibition which they could have utilized to 11 rely on to do new applications? Simple 12 question. 13 DIRECTOR MARKS: It could have, 14 yes. 15 MR. OURY: Okay. So it is your 16 testimony that that site plan resolution could 17 have formed the basis for a denial of new 18 application between 1989 and August of 2008, 19 correct? 20 DIRECTOR MARKS: It is my 21 opinion that the 1989 resolutions were 22 inadequate, but the Commissioners could have 23 used it as the basis for a notice. 24 MR. CALVANICO: Excuse me. 25 CHAIRWOMAN AVAGLIANO: 123 1 Counselor. 2 MR. CALVANICO: Madam Chairlady, 3 I think we should got back to the application. 4 We are getting into a lot of 5 legal argument back and forth and Mr. Marks, 6 we allowed him to be cross-examined to 7 expedite things, but now it is turning into a 8 full-blown examination. 9 COMMISSIONER FITZGIBBONS: I 10 would like to question some of it. 11 MR. CALVANICO: I don't even 12 know if we are finished with Mr. Bertin yet. 13 DIRECTOR MARKS: That is true. 14 COMMISSIONER FITZGIBBONS: What 15 was the date of the mud slide? 16 MR. OURY: I don't know. 17 COMMISSIONER FITZGIBBONS: Do we 18 have a date of the mud slide? 19 MR. OURY: On the Churchill 20 property? 21 COMMISSIONER FITZGIBBONS: Yes. 22 MR. OURY: I don't know. 23 COMMISSIONER FITZGIBBONS: There 24 was a mud slide? 25 MR. OURY: Apparently. 124 1 COMMISSIONER FITZGIBBONS: 2 Nobody got hurt? 3 MR. OURY: I wasn't there. I 4 don't know. That's why I was cross-examining 5 Mr. Marks. 6 COMMISSIONER FITZGIBBONS: I 7 want to say something. 8 COMMISSIONER BETTINGER: There 9 was a car damaged. 10 COMMISSIONER FITZGIBBONS: I was 11 on that Board that approved that. I felt that 12 maybe I got sold a bill of goods because when 13 I approve something I take the testimony of 14 the applicant as sincere, and no -- 15 MR. OURY: How do you know you 16 were sold a bill of goods, Mr. Fitzgibbons? 17 That is my point. 18 COMMISSIONER FITZGIBBONS: 19 Something happened on that property. 20 MR. OURY: But, Mr. Fitzgibbons, 21 we have -- all the time we have floods, we 22 have hurricanes. Does somebody always say 23 it's got to be somebody's fault? 24 We will get to it on my case, 25 how that mud slide occurred. I want to know 125 1 what the basis is for the County to take a 2 position that because it happened over there, 3 it is going to happen over here. 4 And I haven't heard that yet. I 5 haven't seen a report. I haven't seen a memo 6 -- excuse me for one second. 7 I need to know to represent my 8 client what this Board relies upon because 9 there -- Mr. Fitzgibbons, you have been on 10 this Board as long as I have been coming here. 11 It's a long time. 12 I have not heard once this Board 13 or the staff mention a steep slope provision 14 or anything until this meeting. 15 I am not saying the ordinance is 16 not in place. It is there. But I don't want 17 to leave the impression that is being left, 18 which is, that since 1989 this Board had the 19 ability to deny applications that had steep 20 slopes when that is not the cause. 21 COMMISSIONER FITZGIBBONS: Madam 22 Chairlady? 23 CHAIRWOMAN AVAGLIANO: Yes. 24 COMMISSIONER FITZGIBBONS: The 25 question is, back in 1989 it was suggested 126 1 that we may have the authority to enforce 2 that. 3 MR. OURY: No, it wasn't. 4 COMMISSIONER FITZGIBBONS: 5 Right? 6 MR. OURY: That's not what he 7 said. 8 COMMISSIONER FITZGIBBONS: 9 That's what I am saying. But the ordinance 10 that makes us the enforcement authority came 11 in October of '08. 12 MR. OURY: '08. 13 COMMISSIONER FITZGIBBONS: So 14 now we are legally the enforcement authority 15 on steep slopes. 16 MR. OURY: Okay. So then I ask 17 you this question. I am the applicant's 18 attorney. I am here to represent my client's 19 interests. 20 I have a report from Mr. Marks 21 that prominently references what happened on 22 the Churchill property. 23 Do you want me to ignore it? 24 You are taking it into consideration, that's 25 why I argued to the Chairwoman earlier in the 127 1 evening I think it is inappropriate to 2 reference the Churchill property because the 3 door now is open. 4 I can't just leave it alone and 5 leave an impression in your mind that you were 6 sold a bill of goods because you are taking 7 that incident and somehow creating a nexus 8 with this piece of property. 9 CHAIRWOMAN AVAGLIANO: No. 10 MR. OURY: And you can't allow 11 that to happen without me arguing to you that 12 it is irrelevant. I argued to you don't open 13 the door. The door was opened. Now I have a 14 right to know what it is that forms the basis 15 of Mr. Marks' opinion that there is somehow a 16 nexus between the two. 17 It is not going to get resolved 18 tonight, I know that, but as the issues come 19 up I want to address them. 20 COMMISSIONER FITZGIBBONS: With 21 all due respect, it was your engineer that 22 opened up that door. 23 MR. OURY: No, it was Mr. Marks' 24 memo that opened the door. 25 CHAIRWOMAN AVAGLIANO: Go ahead, 128 1 Director. 2 DIRECTOR MARKS: Madam Chair, 3 there was a strong coincidence between the mud 4 slide which occurred on River Road by 5 Churchill Estates and the construction that 6 was going on on the first phase of Churchill 7 Estates. There was e-mail correspondence, 8 there was probably correspondence or some sort 9 of report from the engineer's inspector. It 10 was actually those photographs that were 11 forwarded to me from the assistant county 12 engineer and the -- Mr. Tridente who was 13 acting on behalf of the Planning Board, had 14 gone up to Churchill Road at the intersection 15 of Churchill Road and River Road and reported 16 what was going on. 17 The water and the mud slide, it 18 was reported to me by both Mr. Tridente and 19 Mr. Arencibia the mud slide was directly 20 related to the development which was occurring 21 at Churchill Estates. 22 MR. OURY: I am not denying that 23 that might be true. I am going to get 24 reports. 25 What I am saying to you is Mr. 129 1 Fitzgibbons usually does this, says what is on 2 his mind and I appreciate that. He said he 3 thought he was sold a bill of goods meaning 4 Mr. Bertin testified at the Churchill Estates 5 property and is here tonight, how do I believe 6 him. 7 You can't jump to that 8 conclusion. If I told you that the developer, 9 Mr. Silverman, is suing the general contractor 10 for 7 million dollars and threw him off the 11 job over a year ago, would that maybe change 12 your mind? It could, because it may be that 13 that general contractor didn't follow Mr. 14 Bertin's plans. We don't know that. 15 And all I am saying to you is we 16 can't jump to conclusions and say hmmm, it 17 happened on River Road over here, it must also 18 apply over here. 19 You got to listen to the whole 20 case and, frankly, I don't know why Steve put 21 that memo out to you reaching these 22 conclusions because hopefully I am going to be 23 able to develop some facts that may help to 24 change his mind on some of the conclusions he 25 reached. 130 1 And understand what I am saying, 2 I respectfully do this. Steve is a very 3 qualified planner but I am saying that there 4 was a boot strap reaction to an event that 5 occurred that was not a good event. But you 6 can't say that it is going to happen on my 7 property, and the point I was making to you 8 and Jude, you think you understand what I am 9 saying, I have been here many times. 10 Have you ever heard me come 11 before you on any application and give any 12 argument about a steep slope ordinance or 13 regulation that would prohibit development on 14 River Road? 15 COMMISSIONER FITZGIBBONS: 16 Several times you requested development on the 17 Palisade. 18 MR. OURY: Did you ever hear 19 from anybody on staff that there is a 20 regulation that you could use and you would do 21 it -- you could do it? 22 COMMISSIONER BETTINGER: Mr. 23 Oury, did we ever have a mud slide? 24 MR. OURY: What? 25 COMMISSIONER BETTINGER: Did we 131 1 ever have a mud slide? 2 MR. OURY: Miss Bettinger, there 3 is no question there was a mud slide. 4 There was a mud slide, no 5 question about it. 6 COMMISSIONER BETTINGER: We are 7 here, we are representing the community, 8 that's why we are here and we need to make 9 sure that the community is safe. 10 MR. OURY: And what you have -- 11 (Applause.) 12 MR. OURY: And what you need to 13 do is you need to enforce the laws that are on 14 the books. 15 The point I am making is, you 16 have been left in the memo and with the 17 testimony tonight with the impression that you 18 always had the ability to deny applications 19 based on steep slope. I disagree with that. 20 I think you have an ordinance that you passed 21 in October. I make myself very clear on that. 22 COMMISSIONER FITZGIBBONS: Under 23 the master plan which most of us were part of. 24 MR. OURY: Which would have been 25 sent to you. 132 1 COMMISSIONER FITZGIBBONS: Part 2 of developing it. 3 MR. OURY: Sent to you by 4 recommendation to the Freeholders. 5 COMMISSIONER FITZGIBBONS: We 6 would change it. We were very active in the 7 Hudson County master plan. 8 MR. OURY: Yes. 9 COMMISSIONER FITZGIBBONS: Part 10 of that master plan had nothing to do with 11 North Bergen or nothing to do with the 12 Palisades. Maybe the Heights in Jersey City 13 and going all the way down to the boundaries 14 of Hudson County. 15 MR. OURY: I don't disagree with 16 that. 17 COMMISSIONER FITZGIBBONS: We 18 said that the Heights, the Palisades should be 19 taken in the master plan. 20 Is that right, Steve? 21 MR. OURY: I would like an 22 answer to that. 23 DIRECTOR MARKS: Correct, Madam 24 Chair. 25 MR. OURY: This is about the 133 1 Palisades ordinance? 2 DIRECTOR MARKS: This is steep 3 slopes. But there is a coincidence between 4 steep slopes. The Palisades are steep slopes. 5 Not all the Palisades are. Anything under the 6 twenty percent would not be considered steep 7 slopes, and there is no -- I am not aware of 8 any official definition of the Palisades, 9 legally binding definition, but there is a 10 legally binding definition of what steep 11 slopes are. 12 MR. OURY: That is a good point, 13 Mr. Marks. I am going to send Mr. Marks the 14 testimony and you will hear the testimony of 15 the geotechnical person as to what the 16 Palisades is comprised of, because that is 17 another issue in this case. 18 But I want to make it clear I 19 don't disagree there is an ordinance in place 20 now. 21 What I am suggesting to you is 22 that Mr. Marks has put in his letter, his 23 memo, leaving an impression that you have 24 always had this authority. You haven't. 25 Just because, Mr. Fitzgibbons, 134 1 you reviewed a master plan and you are all 2 very active, I am sure because by statute you 3 need to be, and send it to the Freeholders. 4 They can say I don't agree, I am not adopting 5 it, I am not going to pass an ordinance 6 implementing what you suggest, and I am sure 7 that has happened. 8 You may think all buildings 9 should be painted blue and you make that 10 recommendation to the Freeholders, they say 11 no, it should be red. You have to enforce 12 red, not blue, because that is the law. 13 That is the point I am making. 14 With that, we are beating a dead horse I think 15 at this point. 16 Mr. Bertin has completed his 17 testimony except I reserve the right to bring 18 him back with regard to comments on Mr. Marks' 19 letter, and I think Mr. MacGrath's letter 20 which will be introduced to the Board at the 21 next meeting. We haven't had a chance to look 22 at it, and I would like to get -- and I am 23 sure Steve will cooperate with us in getting 24 some of the documents you mentioned tonight 25 that form the basis of his opinion in the 135 1 memo. 2 CHAIRWOMAN AVAGLIANO: 3 Counselor, let's concentrate on your 4 application and forget about whatever happened 5 in the past. 6 MR. OURY: I can't. You opened 7 the door, Madam Chairwoman. 8 CHAIRWOMAN AVAGLIANO: I asked 9 you a question before is this your equipment 10 on there. 11 MR. OURY: Yes. 12 CHAIRWOMAN AVAGLIANO: This 13 equipment has not been removed because you are 14 still working there? 15 MR. OURY: That is our 16 equipment. We are working on the site. 17 CHAIRWOMAN AVAGLIANO: Nobody 18 stopped you? 19 MR. OURY: We are on the site 20 doing work now, yes. Not work in building a 21 building as portrayed by Mr. Tridente who 22 spoke about the building, inspected it. 23 It is building work being done 24 we don't need a permit from the town for, 25 that's what he said. But that is our 136 1 equipment, I am not denying that. 2 CHAIRWOMAN AVAGLIANO: And you 3 are not getting fined for this equipment being 4 on somebody else's property? 5 MR. OURY: It is not somebody 6 else's property, it is our property. It is 7 our property. 8 I don't have any questions for 9 Mr. Bertin. I talked to Tom Calvanico. It is 10 9:00. If you want to put the gentleman from 11 Mr. Medina's office on, that is fine. 12 CHAIRWOMAN AVAGLIANO: Director, 13 we have some people in the audience. Should 14 we give them the opportunity to speak? 15 They are here and spent time 16 sitting here. I think we should give them the 17 opportunity. 18 Can I have one speaker, someone 19 in the audience to speak instead of everybody 20 saying the same thing? One person get up and 21 speak for the whole group. 22 COMMISSIONER FITZGIBBONS: Might 23 be two separate groups. 24 CHAIRWOMAN AVAGLIANO: State 25 your name and address. 137 1 MS. RAYWOOD: Maggie Raywood, 2 8400 Boulevard East in North Bergen. I just 3 want to make three very short comments. One 4 in reference to Weehawken where I lived for 5 fourteen years prior to moving to North 6 Bergen. 7 There is a fifty-foot no-build 8 zone in front of the Palisades for exactly 9 this reason of not creating any -- 10 MR. OURY: I think that we 11 should -- 12 CHAIRWOMAN AVAGLIANO: Let her 13 speak. 14 MR. OURY: I said that she 15 should be sworn in because she is subject to 16 cross-examination. 17 COMMISSIONER FITZGIBBONS: Wait 18 a second. This is the public portion. Does 19 she have the right? 20 MR. OURY: You need to have her 21 sworn in. 22 MR. CALVANICO: Wait, wait. I 23 don't think she does. I don't think we do 24 have the right to cross-examine a witness that 25 comes up from the public. 138 1 MR. OURY: Before you go there, 2 I can make you aware of case law which 3 indicates not only do I have the right to 4 cross-examine every witness that goes before 5 the Board, but they need to be sworn in. And 6 there have been cases -- I am aware that cases 7 have been sent back to the Board because 8 witnesses were not sworn in. 9 COMMISSIONER FITZGIBBONS: Are 10 you here as a -- as part of the public 11 expressing your concern as part of the public? 12 MS. RAYWOOD: Yes. 13 MR. OURY: I have a right to 14 cross-examine. 15 COMMISSIONER FITZGIBBONS: This 16 is the public portion. 17 MR. OURY: It doesn't matter. 18 Every objector is in the public portion. I 19 have a right to cross-examine the witness and 20 they have to be sworn in. 21 MR. CALVANICO: I don't agree 22 with that. Suppose she wants to walk out 23 after she is done? 24 MR. OURY: You would not be able 25 to reference her testimony and utilize her 139 1 testimony. She is a witness. 2 CHAIRWOMAN AVAGLIANO: Counsel, 3 we are not in court. 4 MR. OURY: You are. Madam 5 Chairwoman, this is a quasi-judicial Board. I 6 didn't create the rules and I don't want to be 7 in court in front of a judge who says were 8 these witnesses sworn in. 9 You get to do it all over again 10 because that's what is going to happen. 11 CHAIRWOMAN AVAGLIANO: That is 12 not going to have -- 13 COMMISSIONER FITZGIBBONS: We 14 are in the open to the public segment. 15 CHAIRWOMAN AVAGLIANO: That's 16 why I asked for one speaker, not all. Public 17 portion. 18 COMMISSIONER MEHTA: Madam 19 Chairman? 20 CHAIRWOMAN AVAGLIANO: Yes. 21 COMMISSIONER MEHTA: Whenever 22 the Board of Adjustment has a public portion 23 and public testify, they are sworn in. 24 COMMISSIONER FITZGIBBONS: That 25 might be under your rules. 140 1 COMMISSIONER MEHTA: It is the 2 Board of Adjustment rules. 3 MS. RAYWOOD: If I can offer -- 4 that actually, when those of us -- and many of 5 us who are here have spoken often at North 6 Bergen Planning Board meetings -- we are all 7 sworn in, so if that would expedite matters, 8 we are actually all pretty used to this. 9 MR. CALVANICO: If you don't 10 have an objection. 11 MS. RAYWOOD: I don't have an 12 objection. 13 (Maggie Raywood, was duly 14 sworn.) 15 MS. RAYWOOD: Very quickly. In 16 Weehawken where I lived for fourteen years 17 before I lived -- before I moved to North 18 Bergen, I was on the Weehawken Environmental 19 Committee and spent many long evenings in 20 planning board meetings and there was, there 21 is on the Weehawken zoning ordinances a 22 fifty-foot no-build zone in front of the 23 Palisades. 24 So in answer to the earlier 25 questions about development up and down the 141 1 river, there is specifically in Weehawken an 2 area where you cannot build exactly for this 3 reason of protecting the Palisades. 4 In terms of the steep slopes, 5 the comment was made by Mr. Oury just because 6 it wasn't used in Churchill, somehow the 7 implication seems to be the idea of now being 8 stricter about steep slopes should not be part 9 -- shouldn't be implemented, and I would say 10 that when wisdom dictates to me that when 11 disasters happen, caution in the future is 12 even more advisable, and that what happened 13 there should actually guide us, not prohibit 14 us. 15 I also would say that the idea 16 that there would be no development on the west 17 side of River Road seems to be, at least as it 18 was presented here tonight, a terrible 19 calamity and I would offer the opinion that in 20 fact the only way to go is to prevent 21 development on the west side of River Road. 22 Thank you. 23 MR. OURY: Do I have an 24 opportunity to cross-examine on a future date 25 or are you telling me I can't examine anybody 142 1 on the public portion? 2 COMMISSIONER FITZGIBBONS: You 3 can go tonight. 4 MR. OURY: I need to know what 5 the rules are going forward. 6 If I am not allowed to cross 7 examine, I need to know. If not -- the answer 8 is no, I am not permitted to question 9 witnesses who get up before the Board? 10 MR. CALVANICO: We will advise 11 you next time. 12 MR. OURY: In deference, who is 13 put on the spot by me at this point? Can we 14 adjourn at this point and allow him to do the 15 research and I will give him the benefit of 16 any cases before we come back? 17 I know most of these folks, they 18 will be back here. Trust me. And I think -- 19 it is after 9:00 and I don't want to make a 20 mistake on this issue and then have to come 21 back here after the Board makes a decision 22 because they weren't sworn in or I didn't have 23 the right to cross-examine. 24 I would ask the Board to adjourn 25 the meeting at this time to the next meeting 143 1 which I believe is March 18. 2 CHAIRWOMAN AVAGLIANO: There are 3 no closing remarks you want to make? 4 MR. OURY: No, I am not finished 5 with the case. I will hold my remarks. 6 COMMISSIONER CHOFFO: Mr. Oury, 7 I appreciate your time. One of the things I 8 mentioned earlier, it sounds like you are very 9 charismatic, which is nice. 10 MR. OURY: I try to be. 11 COMMISSIONER CHOFFO: I am 12 speaking on behalf of all the Board members, 13 your approach sounds like we made our decision 14 based on the information Mr. Marks provided, 15 and that is not the case. 16 We get our information from Mr. 17 Tridente, Daniela, Mr. Calvanico, Mr. Marks. 18 MR. OURY: You have been on the 19 Board as long as I have been coming up here, 20 and you are a lot younger than me. 21 I know this Board, they do what 22 they want to do. That is their history and I 23 know them very well. 24 I don't want to impart that a 25 decision has been made. But you have to 144 1 understand, as an attorney for an applicant, 2 when an issue is raised and when a report is 3 given to you to consider, I have to 4 cross-examine, I have to delve into it, so 5 that is the reason I am doing it, to create 6 the record. And I know you are right, I know 7 that I can ask this Board to do what they 8 think the right thing to do is in spite of 9 what other people may say. 10 I apologize if I left you with 11 that impression. Some of these people know me 12 long enough, they don't think that at all. 13 CHAIRWOMAN AVAGLIANO: 14 Counselor? 15 MR. CALVANICO: I understand Mr. 16 Oury is recommending an adjournment, but I 17 don't know that we need to adjourn it. 18 There are a lot of people here 19 and they might not all want to come back next 20 month. 21 CHAIRWOMAN AVAGLIANO: Should we 22 go back and have them speak? 23 MR. CALVANICO: It is up to the 24 Board. 25 MR. OURY: On that point, let me 145 1 make the closing argument. If you make a 2 mistake in not allowing me to cross-examine, 3 it will be reversed by a judge after the next 4 hearing if I am denied. 5 Even if I am approved, these 6 folks can hire an attorney and say Mr. Oury 7 wasn't allowed to cross-examine us. Why take 8 that risk. 9 COMMISSIONER FITZGIBBONS: 10 Because this is America. 11 MR. OURY: And that is exactly 12 why I am making my point. This is America and 13 when people get up and testify in front of any 14 tribunal, the attorney has the right to 15 cross-examine the witness. That has to do 16 with the Constitution. 17 COMMISSIONER FITZGIBBONS: 18 Freedom of speech is a great thing. 19 MR. OURY: It is subject to 20 cross-examination just as it is in a court of 21 law and a planning board. 22 COMMISSIONER FITZGIBBONS: They 23 have a right to hire an attorney. 24 MR. OURY: They do. And let me 25 tell you something. I have spoken -- Mrs. 146 1 Wong, she doesn't need a lawyer. She knows 2 exactly what she wants to say and do. I have 3 no interest -- 4 MRS. WONG: That's -- 5 CHAIRWOMAN AVAGLIANO: 6 Counselor? 7 MR. CALVANICO: The reporter 8 can't take all that kind of stuff down. 9 MR. OURY: I will you ask you to 10 adjourn before any other witnesses -- 11 CHAIRWOMAN AVAGLIANO: Excuse 12 me. The Counselor is speaking. 13 MR. CALVANICO: As Mr. Oury just 14 indicated, his people are here. If he wants 15 them to testify, he can bring them back next 16 time. 17 MR. OURY: These are not my 18 people. I can't get Mrs. Wong to tell me what 19 time of day it is. 20 COMMISSIONER MEHTA: Madam 21 Chair, in my opinion each individual planning 22 board or board of adjustment meeting, whenever 23 the public portion is open they are always 24 swear them in and at the same time if they are 25 testifying that they are an expert on a 147 1 particular subject or something, and in the 2 past my own experience, the attorney has a 3 right to cross-examine also and in that case I 4 will suggest that you take into consideration 5 Mr. Oury's remarks. 6 Unless they will be here to come 7 next month anyway, and during that time Mr. 8 Oury's office or Mr. Marks will check it out 9 with the DEP as to whether the DEP has 10 jurisdiction or not and we will have an answer 11 and more information rather than going on 12 right now and you can say unless there is a 13 conflict. 14 MR. CALVANICO: Mr. Oury, do you 15 want to cross-examine the woman that just 16 spoke? 17 MR. OURY: I will want to 18 cross-examine everybody that got up. 19 She mentioned a Weehawken 20 ordinance. I never saw it before now. You 21 have it in your head and I can't leave it 22 alone. 23 MR. CALVANICO: Bring her up. 24 MR. OURY: Am I going to be 25 permitted to cross-examine the witnesses? I 148 1 want to know what the rules are going forth. 2 CHAIRWOMAN AVAGLIANO: Who else 3 would like to speak from the audience? 4 Come up, please. State your 5 name and where you are from. 6 MR. CALVANICO: Before this, can 7 we have the first witness up and Mr. Oury can 8 conduct his cross-examination. 9 MR. OURY: Is your name 10 Greystone? 11 MS. RAYWOOD: Maggy Graywood. 12 MR. OURY: You mentioned an 13 ordinance in Weehawken which was a fifty-foot 14 no-build zone. 15 MS. RAYWOOD: Yes. 16 MR. OURY: If you know, how was 17 that fifty feet determined? 18 MS. RAYWOOD: How was it 19 determined? 20 MR. OURY: You have to answer 21 that. It is before your time? 22 MS. RAYWOOD: It is before. It 23 would have been probably the last time that 24 that zoning ordinance was revised. But the 25 reason -- let me state very specifically why I 149 1 know about it. 2 I was not in Weehawken at the 3 time it was rewritten, so I could not tell you 4 what year it was, but during the time that I 5 served on the Environmental Committee in 6 Weehawken and for about two years we were in 7 planning board meetings about the development, 8 the town houses, all of the brownstones that 9 opened down by the new ferry terminal or where 10 the new ferry terminal is now. One of the 11 considerations, and there was a lot of to-ing 12 and fro-ing about where things were going to 13 be built. 14 That idea of the fifty-foot 15 no-build zone was very much a part of the 16 conversation that was happening with members 17 of the public. It was very much common 18 knowledge for anybody who spent any amount of 19 time in those meetings that it was part of the 20 protection that was being accorded to the 21 Palisades in our area. 22 MR. OURY: Was that fifty-foot 23 no-build zone implemented by a zoning 24 ordinance in Weehawken, to your knowledge? 25 MS. RAYWOOD: To the best of my 150 1 knowledge, yes. 2 MR. OURY: What is the basis of 3 that knowledge? Have you seen it? 4 MS. RAYWOOD: Yes. 5 MR. OURY: Have you seen the 6 ordinance? 7 MS. RAYWOOD: In the zoning 8 ordinances that many of us who were part of 9 the environment committee and Friends of the 10 Weehawken Waterfront and a number of groups 11 that were very involved in going to meetings 12 and trying to be as informed as we could about 13 what was going on and actually sitting down in 14 meetings with the developer and with other 15 members of the community and the mayor, to 16 talk about what the best way was to implement 17 what their plans were, and that was something 18 that was very much common knowledge. 19 MR. OURY: I understand that it 20 was an important issue. My question is, did 21 the mayor and council ever pass a zoning 22 ordinance which implemented this fifty-foot 23 restriction? 24 MS. RAYWOOD: To the best of my 25 knowledge, yes. It is in the zoning ordinance 151 1 that is passed that is part of the zoning. 2 MR. OURY: Do you know how that 3 is measured? 4 MS. RAYWOOD: It is measured 5 from the foot of the cliffs. 6 MR. OURY: And what was it 7 determined, if it was determined, what the 8 footage of the cliff was? 9 MS. RAYWOOD: It is pretty clear 10 in Weehawken because it is one of the areas 11 where the Palisades are very vertical, is 12 actually a much more -- although there are 13 certainly areas that are somewhat corroded, 14 there are clearer cliff edges there than in 15 some other communities. 16 So there was a clearer path 17 there, not something that can be measured in 18 other areas, but it was definitely something 19 that -- the cliffs there are very vertical. 20 MR. OURY: Would you say in 21 another area it is not as clear? We are 22 talking about the North Bergen area where it 23 may not be as clear as Weehawken. 24 MS. RAYWOOD: Yes, because when 25 you look at the history of the Palisades and 152 1 the blasting that went on in the 19th century, 2 that -- where a lot of the stone is extracted 3 from the Palisades to be used in this building 4 and particularly in New York City, there was a 5 tremendous amount of destruction done to the 6 cliffs. 7 There are areas -- 8 MR. OURY: Were you at the 9 planning board hearing in which this project 10 was being heard? 11 MS. RAYWOOD: Many times. 12 MR. OURY: Did you hear the 13 testimony of Lisa Mahle from Johnson Soils 14 with regard to what comprised the Palisades 15 and what was she called overburn done? 16 MS. RAYWOOD: I was not there. 17 MR. OURY: Not there for that? 18 MS. RAYWOOD: Not that evening. 19 MR. OURY: Do you have a copy of 20 the ordinance that you are referring to? 21 MS. RAYWOOD: I -- 22 MR. OURY: If you do, please fax 23 it to my office. I will give you the 24 information after the meeting. I would like 25 to see that. 153 1 No other questions of this lady 2 at this time. 3 MS. RAYWOOD: Thank you. 4 COMMISSIONER FITZGIBBONS: 5 Steve, can you got a copy of the zoning 6 ordinance in Weehawken? 7 DIRECTOR MARKS: Madam Chair, we 8 should have it on file. I will look. 9 With regard to something that 10 Mr. Oury said before, it is the legal 11 responsibility of all municipalities to 12 furnish copies of whatever master plans or 13 COAH, being counsel on affordable housing, or 14 zoning ordinances or any zoning or updates to 15 the County Planning Board. 16 It is referenced by the County 17 Planning Board Act and the Municipal Land Use 18 Act. We sent correspondence to all the 19 municipalities, town clerks, municipality 20 clerks requesting that they furnish. 21 It is my experience that doesn't 22 always happen either by oversight or -- I 23 don't want to describe any other reasons. 24 You can't -- it is my 25 recollection, I will have to go back to the 154 1 North Bergen zoning ordinance, I can't tell 2 you definitively. 3 It is my recollection that we 4 did not receive any zoning ordinance changes 5 from the Township of North Bergen with regard 6 to either this property or any other property. 7 I would have to go back and 8 check, but we have a pretty good record of 9 planning documents that we receive from some 10 municipalities but not all municipalities. 11 COMMISSIONER FITZGIBBONS: Can 12 you have your, one of your employees go to 13 each municipality and get to the zoning 14 office -- 15 DIRECTOR MARKS: Madam Chair, 16 Mr. Tridente has done that and some towns have 17 actually refused. 18 COMMISSIONER FITZGIBBONS: Can 19 you OPRA them? 20 DIRECTOR MARKS: We did OPRA one 21 municipality and received a very terse 22 comment. 23 COMMISSIONER FITZGIBBONS: Did 24 you got the information? 25 DIRECTOR MARKS: Mr. Tridente, 155 1 did we? 2 MR. TRIDENTE: No. 3 COMMISSIONER FITZGIBBONS: Then 4 I suggest you go to the attorney general's 5 office right away. 6 DIRECTOR MARKS: It wasn't the 7 municipality, but I suggest we -- 8 MR. OURY: Might have been 9 Hoboken. 10 COMMISSIONER FITZGIBBONS: I got 11 a few I didn't receive and I am still waiting. 12 Let them know you mean business. 13 But I would suggest that you 14 write that municipality whoever it is and tell 15 them you will follow through on this. 16 DIRECTOR MARKS: Madam Chair, I 17 have written letters to the municipal clerks. 18 I cited the Municipal Land Use law and the 19 County Planning Act and I am not in a position 20 to sue a municipality. 21 COMMISSIONER FITZGIBBONS: You 22 don't sue. 23 DIRECTOR MARKS: Madam Chair, I 24 think there is a great deal of respect 25 involved. I am not comfortable demanding from 156 1 a municipality. If their municipal planning 2 board secretary doesn't want to cooperate, I 3 am not going to get into a battle with any 4 municipal official. 5 COMMISSIONER FITZGIBBONS: Don't 6 we have a right to got that? 7 DIRECTOR MARKS: In the 8 statutes, but unless the County is willing to 9 sue the municipality to produce a document -- 10 COMMISSIONER FITZGIBBONS: You 11 don't have to sue. 12 COMMISSIONER CHOFFO: Can we 13 please move on. 14 CHAIRWOMAN AVAGLIANO: Let him 15 finish. 16 COMMISSIONER FITZGIBBONS: You 17 don't have to sue. There are regulations that 18 you can file through the State of New Jersey 19 to get that. 20 CHAIRWOMAN AVAGLIANO: Okay. 21 Another speaker? Is there anyone else in the 22 audience that would like to speak? 23 Come up. State your name and 24 address. 25 MRS. WONG: My name is Peggy 157 1 Wong. My address is 8550 Boulevard East and 2 actually I live, the complex I live in 3 overlooks the site on the most northern end, 4 the northern end. It overlooks the Churchill 5 Estates side. So we have had some very 6 unpleasant experiences with the drilling that 7 goes on there. 8 But I am not up here to make my 9 comments about Churchill, I really want to 10 express some concerns about some of the soil 11 removal that is going on at the present 12 location of this applicant and I want to 13 compliment you, Madam Chairlady, you are the 14 first public official who has expressed some 15 concern about the soil removal. 16 I myself travel River Road on a 17 steady basis, weekly if not daily and I go 18 past the site at least once a week and going 19 back as far as the spring of last year I 20 noticed that there was soil movement going on 21 there and around that time I had reason to 22 speak to the North Bergen Township, 23 specifically Chris Pianese about another 24 matter and during the course of that 25 conversation I inquired about what was going 158 1 on there with the soil removal and the only 2 reason why I mention this, I am trying to date 3 my conversation with him. I don't have the 4 precise date, but it goes back to sometime in 5 the spring. 6 He promised to look into it and 7 I never heard anything more from him. I 8 believe maybe one of his associates called up 9 and said the owner is moving the soil around 10 and that is their right, they don't need a 11 permit. 12 So that was left dormant. There 13 was nothing I could do. I sort of complained 14 but I didn't get any satisfaction. 15 But the problem is around the 16 time of August when the public hearing took 17 place on this application, and I believe it 18 was the meeting where Lisa Mahle testified and 19 she came with about three quart samples of the 20 Palisades cliff which I found quite 21 fascinating because in front of us was a two 22 million year old core sample and I realize now 23 how she got to it. 24 Around that time I noticed that 25 that area had been severely cut into and there 159 1 were pathways going up towards the top and it 2 was cut into. 3 I am not a construction 4 official, but maybe Mario would know what I 5 mean, but there was what I would call scarring 6 of that area like someone drove a dirt mover 7 and just dug out a path going all the way up 8 and I had assumed it might be so that this 9 geologist could get at the right sections to 10 do her core drilling and I only mention this 11 because again I am trying to place it in 12 reference to when this event happened and this 13 was sometime in August and the reason why I 14 mention this, the results of all this soil 15 removal and this scarring as I called it, was 16 a zig-zag path because up to the top it left 17 these huge boulders precariously perched on 18 the cliffs, on the soil there, and you drove 19 by and you took a look at that and one good 20 soaking rainstorm and those boulders were to 21 come down and there is a bus stop right there 22 it was hugely dangerous, and you know, a 23 friend of mine who happens to be a member of 24 the Sierra Club called me and said what is 25 going on there and I gave her the name of the 160 1 township to call and complain. 2 I don't know if she did, I 3 assume she did, but I know there were a number 4 of neighbors in the area very concerned about 5 all these boulders, it was not just one, it 6 was a number of boulders and I don't know, I 7 haven't checked recently, but if I go back 8 there now and in some of the photographs you 9 have there, they are huge boulders. 10 And the reason why I point this 11 out is it is a danger to the public safety 12 and, quite frankly, you are the first public 13 official who has expressed some concern about 14 it. 15 We never got any satisfaction 16 from the township and that is really my 17 comment, and if Mr. Oury wants to 18 cross-examine me on this, he is welcome to do 19 so, but I will have to say in all the times I 20 made public comments at the public hearings in 21 North Bergen I have never been subjected to 22 cross-examination. But if wants to do so, I 23 am fine with it. 24 CHAIRWOMAN AVAGLIANO: Thank 25 you. 161 1 MR. OURY: May I? 2 CHAIRWOMAN AVAGLIANO: Go ahead. 3 (Peggy Wong, was duly sworn.) 4 MR. OURY: Ms. Wong, you used 5 the term soil removal. Is it your testimony 6 that soil has been removed from the site? 7 MS. WONG: Well, I am not an 8 expert. I can tell you the soil has 9 definitely been moved around. 10 MR. OURY: My question to you is 11 very simple. If it is your testimony that the 12 soil has been removed from the site, can you 13 tell me what the basis of that opinion is if 14 that's what your testimony is? 15 MS. WONG: I am saying I have 16 seen the soil moved around. Something has 17 been happening there. 18 MR. OURY: No question about it, 19 it has been moved around. You are not saying 20 the soil has been taken off-site. 21 MS. WONG: It may have been, I 22 am not an expert. My comment is as a public 23 citizen living in the area noticing scarring 24 of that area. 25 MR. OURY: So you can't testify 162 1 with any amount of certainty that soil has 2 been removed from the site, is that correct? 3 MS. WONG: That is correct. 4 MR. OURY: Okay. 5 With regard to your conversation 6 with Mr. Pianese and someone got back to you, 7 is that conversation consistent with what Mr. 8 Tridente said tonight his conversation was 9 with Mr. Rubarra; that is, that a permit from 10 North Bergen was not necessary? Are those two 11 things consistent? 12 MS. WONG: I think the person 13 who got back to me which may have been his 14 assistant, she may have said something along 15 that line but not -- 16 MR. OURY: Similar? 17 MRS. WONG: Similar. 18 MR. OURY: In addition to that 19 -- since the time you noticed soil being moved 20 around on the site we have had some large 21 rainstorms, is that correct? 22 MS. WONG: Not the soaking 23 rainstorms. We have had rainstorms, but not a 24 soaking type. 25 MR. OURY: So it is your 163 1 testimony -- during those rainstorms, however 2 -- I want to characterize what they were. 3 Between August and now, have 4 there been any rock slides, to your knowledge? 5 MS. WONG: Not to my knowledge. 6 MR. OURY: Has there been any 7 debris across River Road, to your knowledge? 8 MRS. WONG: Not to my knowledge. 9 MR. OURY: Isn't it a fact that 10 there was a rather large berm that has been 11 constructed along River Road on this property? 12 MRS. WONG: That was only just 13 recently. 14 MR. OURY: But it is constructed 15 there? 16 MRS. WONG: That is going on 17 recently. 18 MR. OURY: You will get your 19 point across. 20 Is it there? 21 MS. WONG: Yes. 22 MR. OURY: When was it put 23 there? 24 MS. WONG: I would say in the 25 last two months, but I am not sure. 164 1 MR. OURY: Were you aware prior 2 to coming here this evening that there is an 3 entity called the Soil Conservation 4 Commission? 5 MS. WONG: Yes. 6 MR. OURY: You are aware that is 7 a State agency? 8 MS. WONG: I am vaguely aware. 9 MR. OURY: Were you aware before 10 coming here this evening that a permit was 11 granted to this applicant from Soil 12 Conservation? 13 MS. WONG: I was told that by a 14 third party. 15 MR. OURY: And is it your 16 understanding that Soil Conservation is 17 interested in some of the things you have 18 testified to tonight; that is, water coming 19 off the property, boulders or rocks falling 20 off the property, that their function is what 21 Mr. Bertin testified to tonight? 22 MS. WONG: My concern was I saw 23 large boulders perched precariously. I don't 24 know if they have fallen. 25 MR. OURY: Is it your 165 1 understanding that this commission, the Soil 2 Conservation Commission, has as one of its 3 duties to make sure that that doesn't occur? 4 MS. WONG: I will accept your 5 description of it. I don't know anything more 6 about it. 7 MR. OURY: Are you aware of the 8 fact that Soil Conservation since we started 9 moving soil around on the site has had 10 inspections of this property? 11 MS. WONG: I don't know that. 12 MR. OURY: If you told you that 13 they have been inspecting it on a regular 14 basis and that there have been no violations 15 issued by them, would that comfort you at all? 16 MS. WONG: To a degree, yes. 17 MR. OURY: Okay. No further 18 questions. 19 Now I ask that we adjourn 20 because I am really tired. 21 CHAIRWOMAN AVAGLIANO: Come up. 22 A SPEAKER: Will it be possible 23 at the next meeting for public input, because 24 I feel in deference -- 25 CHAIRWOMAN AVAGLIANO: We will 166 1 hear one more speaker. 2 Do you want to come up and 3 speak, Mr. Kronick, right now? 4 MR. OURY: I will bring back Mr. 5 Bertin at the next meeting. 6 CHAIRWOMAN AVAGLIANO: Yes. 7 Can't he stay tonight? 8 MR. OURY: Mr. Bertin is here 9 tonight. I said I will bring him back in case 10 they want to cross-examine him. 11 (David Kronick, was duly sworn.) 12 MR. KRONICK: First I want to 13 thank this Board for being so open minded, so 14 fair and so reasonable. I am very impressed. 15 I thank you all. 16 I know many of you, thank you. 17 Much appreciated. 18 CHAIRWOMAN AVAGLIANO: Thank you 19 Mr. Kronick, for coming this evening. 20 MR. KRONICK: Steve is not here, 21 but I want to commend the County for their 22 admirable open space goals and objectives and 23 I think this certainly reflects the goals of 24 many of us who are here tonight. 25 I would like to mention a few, 167 1 because they are very relative to what we are 2 hearing tonight. 3 The open space plan goals and 4 objectives, I am not going read them, you all 5 know them. I will cite a few. 6 To improve the quality of life 7 of Hudson County residents. 8 To provide accessible recreation 9 opportunities to Hudson County residents. 10 To provide green spaces for 11 public enjoyment in all Hudson County 12 communities. 13 To actively acquire new open 14 space lands where needed and feasible. 15 To protect areas of remaining 16 critical resources including wetlands, flood 17 plains, steep slopes, wildlife habitat, open 18 waters. 19 And some of the objectives, I am 20 not reading all, I just think they are very 21 prominent. 22 To protect clean air and water 23 through critical resource protection, and 24 identify new opportunities for small, local 25 vest pocket parks throughout the County. 168 1 Very admirable goals. Very 2 admirable. 3 With regard to the County master 4 plan, this is also a document that resonates I 5 think with all citizens who care about their 6 air quality, the flooding issues, scenic 7 vistas and the need to protect steep slopes. 8 I think most citizens can 9 support smart development and I don't really 10 think that is what is before us tonight. 11 We have had traffic studies 12 conducted that already tell us what I think we 13 already know. Anyone who drives there, we are 14 faced with gridlock that is only going to get 15 worse with the proposed development in 16 Edgewater and North Bergen, not to mention the 17 whole gold cost. 18 We have air quality problems as 19 we know. I don't think we meet PA standards 20 for ozone, among other ingredients, and we all 21 are aware of flooding that will be exacerbated 22 by more blacktopping and probably most 23 important is the desecration of the Palisades 24 that would come from the commercialization 25 development. 169 1 I think some of you are aware 2 that in 1989 Judge Dorothea Weffing cited in 3 her ruling of Parisi versus Rock Harbor, one 4 of the things she said was that North Bergen's 5 impressive stretch of the Palisades cliff 6 south of the GW Bridge was very significant in 7 her decision to turn down Rock Harbor. 8 That was very significant, but 9 that was one of them. 10 In light of the hour, for those 11 of you who have not walked the Palisades, been 12 in that area, looked at the wildlife, let me 13 show you what a piece of the Palisades looks 14 like. 15 About 190 million years old, 16 folks. This is not just a piece of stone, 17 this is a piece of Americana. This is like 18 our Grand Canyon, our Glacier Park. 19 Here is another one. Different 20 shape. Take a look at this. It is beautiful 21 to look at. I have them sitting in my 22 library. It reminds me all the time. 23 What are we saying here? I am 24 saying that in light of the times today, the 25 economic times throughout the country, we are 170 1 reading about municipalities, counties, state 2 governments, acquiring land, open space, 3 parks. 4 We are concerned about our air 5 quality. What is better than having a park 6 and trees. So many cities are acquiring this 7 land. 8 I think in Bergen County, 9 Dennis, you may even know, The Record, I 10 forgot the municipality, I don't recall the 11 paper, about 6 million dollars they spent to 12 acquire a piece of land. Do you know? 13 MR. OURY: Actually that never 14 came to fruition. That was in Franklin Lakes 15 if it is the same property. It never came to 16 fruition. 17 MR. KRONICK: In any event, I 18 think you get the point. I think it is time 19 to pay attention to our very, very, very 20 precious, precious environment. 21 We live in an urban area, 22 really. We live in an urban area and what 23 little we have, this future generation that is 24 coming, is so important, do we want to be 25 remembered as the town that took the Palisades 171 1 190 million -- in my opinion, in my opinion, 2 this is the most magnificent, the most 3 beautiful, the most unique natural resource 4 that North Bergen has, maybe even in the 5 County not because of Judge Weffing, it is 6 because we live there, the beauty is just 7 spectacular. 8 Back in the 1990s, early, you 9 had a gentleman by the name of John Ceraio, 10 the name may ring a bell with somebody, and I 11 won't get into it in view of the hour how 12 important it was to the little bit of animal 13 life and how much is left there, the trees, 14 the plants and the birds and how valuable, and 15 folks, if this goes, the people that are 16 coming to the gold cost will not be coming. 17 What makes it unique, what makes 18 it distinctive is because we have the 19 Palisades. It is very, very important to the 20 quality of life. 21 You thank you very much for your 22 time and keep up the good work. 23 MR. OURY: I have a question. 24 CHAIRWOMAN AVAGLIANO: Yes. 25 MR. OURY: Mr. Kronick, is it 172 1 your position that nothing should be built on 2 this property and the property should be 3 preserved as a natural preserve? 4 MR. KRONICK: Yes, but in the 5 world that is not realistic. But I think we 6 should do something that is perhaps more 7 representative in keeping with the area and 8 the needs of the community. 9 MR. OURY: Nothing else. 10 Mr. Kronick will be back at the 11 next meeting because I know he wouldn't miss 12 the meeting. I would reserve my right to 13 further cross-examine him. I want to look at 14 a few things. But I will reserve my right to 15 cross-examine. 16 MR. KRONICK: Thank you very 17 much. 18 CHAIRWOMAN AVAGLIANO: Anyone 19 else like to come up? 20 Please state your name and 21 address. 22 MR. RABIN: Jeremy R-A-B-I-N, 23 Jeremy Rabin and my address is 7004 Boulevard 24 East. 25 CHAIRWOMAN AVAGLIANO: Excuse 173 1 me. Got to get sworn in. 2 (Jeremy Rabin, was duly sworn.) 3 MR. RABIN: I also would like to 4 thank the Board very much for the effort you 5 are making to address all the issues here and 6 your particular attention to the construction 7 or soil moving or whatever it is called that's 8 been going on on this property for quite a 9 while. Quite extensively. 10 The main thing I want to add 11 since there has already been a lot of 12 testimony here, the area of River Road that is 13 just south of this property is very prone to 14 flooding. There has been some very extreme 15 flooding in the last couple of years and this 16 can shut down almost all traffic, blocking 17 three or more lanes of traffic. And the 18 possibility that anything would add further to 19 that flooding is a pretty serious concern, 20 especially in light of the fact that this 21 property is across the street from a hospital. 22 I would be curious to know what 23 provisions would be made if a mud slide or 24 flood were to block ambulances and/or things 25 that need to get into the hospitals. I think 174 1 that also should be a concern. 2 I also would like to add, having 3 testified in a number of Planning Board and 4 Board of Adjustments as a citizen who is 5 concerned for the Palisades and for the 6 waterfront, you know, I have testified on my 7 own. 8 My concerns for this are the 9 overcrowding, the overdevelopment, the heavy 10 traffic along River Road, and also I have not 11 heard a situation where the, where this kind 12 of testimony was prone to cross-examination. 13 It is an interesting new 14 development as far as I am aware. But anyway, 15 thank you very much for this opportunity. 16 CHAIRWOMAN AVAGLIANO: Thank 17 you. 18 Counselor? 19 MR. OURY: No questions. 20 CHAIRWOMAN AVAGLIANO: Anyone 21 else? 22 MR. CALVANICO: Step forward, 23 ma'am. 24 (Maggie Zivkovic, was duly 25 sworn.) 175 1 MRS. ZIVKOVIC: I am glad you 2 speak to representative to talk because in 3 North Bergen we cannot speak because we are 4 represented by lawyer. 5 Thank you for the consideration. 6 I was short and pleasantly surprised by Mr. 7 Marks and Madam Chair. Thank you very much. 8 I live in Berkenridge 9 Development, a little bit above River Road 10 town houses, the town going off Ferry Road and 11 we have the steep slopes and after eleven, I 12 first time buyer. After eleven years living 13 there we still have a flood. We still have a 14 boulders coming down. 15 We have netting that doesn't 16 protect too much because through in this 17 boulders are coming and with the boulder bring 18 us around, we saw what we actually having, put 19 fence around and somehow this put a lot of 20 trees and those trees are high now so it is 21 protection. But not so that in the near 22 future probably we will have a very big 23 tragedy and people are running because more 24 and more we are having boulders, more coming 25 down now than ten years when we moved in. 176 1 I don't know why. 2 Actually the engineer who was 3 testifying for the Churchill, she mentioned 4 she was involved in Berkenridge and on the 5 Churchill connecting property. If it is the 6 property on the Churchill and she compare the 7 same on Berkenridge, they are in big trouble. 8 The whole flooding still because 9 I was passing -- by the way, the Churchill 10 property is almost hundred feet from our 11 property because Berkenridge has a property on 12 River Road next to the upper part next to the 13 church and this muck is still coming, so 14 whoever pass by, I pass by and I will see the 15 situation. 16 I don't want to be rude, I don't 17 want to give testimony, I am just concerned 18 citizen because it is until each day you are 19 living there that you will not have such a 20 pleasant surprise. 21 I almost each day on my way 22 south to New York and I can tell you that 23 opposite of the hospital on this project that 24 we are talking tonight, each day they are 25 working something there. 177 1 It is machinery there and it is 2 total devastation already. Total devastation. 3 And just one thing. Please take into 4 consideration expertise of the expert who are 5 coming in for interview. 6 Thank you so much for trying to 7 protect us. 8 CHAIRWOMAN AVAGLIANO: Thank you 9 for being here. Anyone else? 10 Shall we close the public 11 hearing? 12 Motion to close the public 13 hearing. 14 COMMISSIONER BETTINGER: I will 15 make a motion to close the public hearing. 16 COMMISSIONER NG: Second. 17 MR. CALVANICO: For tonight. 18 CHAIRWOMAN AVAGLIANO: For 19 tonight, yes. 20 If you want to come back next 21 week, fine, whatever. 22 Counsel, do you have any 23 questions? You didn't want to cross-examine 24 her? 25 MR. OURY: No. 178 1 MR. CALVANICO: Mr. Tridente had 2 a question. 3 CHAIRWOMAN AVAGLIANO: Mr. 4 Tridente. 5 MR. TRIDENTE: I had a question 6 for Mr. Bertin. 7 As a condition of approval for 8 your municipal approvals, on Page 12, Line 9 Item N, I never received a copy of Mr. 10 Redfield's report. 11 MR. BERTIN: I will check into 12 that. I don't know that he issued it yet. 13 MR. TRIDENTE: You know that it 14 was a condition of your approval that no work 15 be done until his report was submitted. 16 MR. BERTIN: I will look into 17 it. He was supposed to write a report. 18 MR. OURY: Is that on the 19 wildlife? 20 MR. BERTIN: Yes. 21 MR. TRIDENTE: I received an 22 e-mail from Mr. Redfield back on January 5th 23 of his certifications but no follow-up of his 24 report. 25 MR. BERTIN: Mr. Redfield has 179 1 been on the site and they have been doing more 2 visual observations to see what is there and 3 what is not there. You cannot do that in one 4 day, I believe. In my conversation with him, 5 and it was several weeks ago, I thought he was 6 ready to have it issued and I will make sure 7 it is issued before we come back. 8 MR. TRIDENTE: As a condition of 9 your approval I will state for the record -- 10 as a condition of the permit by the Hudson 11 County Animal Control or its equivalent, there 12 needs to be the removal and care of wildlife 13 on the site at the developer's sole cost 14 before any clearing, so it's been going on and 15 we didn't get a report yet. 16 It seems you completely 17 disregard protocol, what you are supposed to 18 do; come get your planning approvals before 19 you start work, get your survey in before you 20 start work. It doesn't seem like you follow 21 the protocol here. 22 MR. OURY: Is Mr. Tridente 23 trying to enforce the resolution of North 24 Bergen? 25 MR. TRIDENTE: It is a condition 180 1 of your approval. 2 MR. OURY: From North Bergen and 3 we will get that. 4 CHAIRWOMAN AVAGLIANO: Why don't 5 you finish. 6 MR. TRIDENTE: Nobody follows 7 the rules here. 8 MR. OURY: He is testifying here 9 now and I would object to his characterization 10 that nobody is following the rules. 11 MR. TRIDENTE: It seems that 12 way. 13 MR. OURY: Did we got a soil 14 conservation permit? 15 MR. TRIDENTE: It says -- 16 MR. OURY: Could you answer that 17 question? 18 MR. TRIDENTE: It says you must 19 comply with other regulations. It says you 20 must receive approvals from the County before 21 you start work and it seems to be consistent 22 here all the time. 23 MR. CALVANICO: Stop. 24 MR. OURY: You are suspicious of 25 the application because -- 181 1 MR. TRIDENTE: I am not 2 suspicious. 3 MR. OURY: The record will 4 reflect what you said, and I resent the fact 5 you are suspicious because we didn't give a 6 report that the North Bergen Planning Board 7 required. 8 I have already spoken to the 9 North Bergen official who refused to issue a 10 stop work order. I know you have spoken to 11 Soil Conservation who tells you that we are in 12 conformance with their permit, so at this 13 juncture I don't understand why you are so 14 aggressive with regard to a wildlife -- let me 15 finish -- a wildlife report that some other 16 agency has asked us to do, but we will supply 17 it to you. 18 MR. TRIDENTE: The thing was 19 there as a condition of approval and as you 20 stated, in a court of law you have to follow 21 if those people were not cross-examined by you 22 it would all come back, and it only seems to 23 work for you but it doesn't seem to work if 24 North Bergen -- 25 MR. OURY: I think -- 182 1 MR. TRIDENTE: Isn't that true, 2 the conditions have to be met before if you 3 want to -- 4 MR. OURY: You know what the 5 resolution says? The resolution says as a 6 condition of issuing a permit and developing 7 the property we must meet certain items. 8 Mr. Tridente may not like the 9 answer from Mr. Rubarro, but he was told no 10 permits are being issued for the work that is 11 being done. We haven't violated anybody's 12 resolution. If he thinks we have, he should 13 see Mr. Rubarro about it as he has done in the 14 past. 15 If he thinks we are violating 16 the Soil Conservation permit he should go back 17 to that gentleman. And when we met on the 18 site I said to him if we are violating the 19 Soil Conservation permit please, tell us, we 20 will stop doing that. 21 I have heard nothing since then. 22 What I don't want to have is these scurrilous 23 remarks being made before all the testimony is 24 in. I will deal with it in a usual manner 25 when someone is sworn in under oath, gives 183 1 their testimony and you can cross-examine that 2 person. That's all. 3 CHAIRWOMAN AVAGLIANO: Counsel, 4 I would like to make one statement. When you 5 come before this Board just keep your voice 6 down. We are all here trying to do a job. 7 MR. OURY: I apologize for 8 raising my voice. 9 CHAIRWOMAN AVAGLIANO: Yes, 10 Director. 11 DIRECTOR MARKS: Madam Chair, I 12 want to bring to the Board's attention the 13 County Planning Act which is cited as NJSA 14 40:27-6 states, quote, whoever shall construct 15 or begin the construction of such a building 16 without a building permit shall forfeit and 17 pay a penalty of not more than one hundred 18 dollars for each day that work on such 19 structure continues. 20 The County may bring an action 21 to enjoin such construction and may also 22 recover the penalty by a civil action in any 23 court of competent jurisdiction. 24 Now, I understand that Mr. Oury 25 is alleging that the work that's being done is 184 1 not construction work, but in passing by the 2 site on numerous occasions over the last three 3 months, it is my estimation that everything 4 that is going on on the site is 5 pre-construction, pre-development work. 6 Everything that is necessary to facilitate 7 construction. 8 I don't agree with either Mr. 9 Oury's statement or Mr. Bertin's statement 10 that it is simply either doing borings or 11 doing a requirement of the Soil Conservation 12 District, and if we need to cite or request 13 that the Soil Conservation District appear, I 14 really disagree with the statement that the 15 applicant or the property owner is only -- the 16 construction work that is going on on the site 17 to date is only as a condition of the Soil 18 Conservation District permit. 19 CHAIRWOMAN AVAGLIANO: Thank 20 you. 21 MR. OURY: I have no comment. 22 COMMISSIONER NG: We all have 23 the pictures. 24 CHAIRWOMAN AVAGLIANO: Yes, we 25 all have them. 185 1 COMMISSIONER NG: We can see 2 this to tell us what is going on here. 3 CHAIRWOMAN AVAGLIANO: Yes. 4 COMMISSIONER FITZGIBBONS: There 5 is more than testing soil there. 6 MR. OURY: I didn't say there 7 wasn't more than testing soil. 8 COMMISSIONER BETTINGER: But 9 that's all you had the permit for. 10 MR. OURY: No, that's not true. 11 COMMISSIONER FITZGIBBONS: That 12 is the opinion of the construction official of 13 North Bergen. 14 MR. OURY: And of Soil 15 Conservation. 16 COMMISSIONER FITZGIBBONS: 17 That's his opinion. 18 MR. OURY: Yes. 19 COMMISSIONER FITZGIBBONS: So if 20 we have to we can seek other opinions. 21 MR. OURY: Look, I said to Mr. 22 Marks and Mr. Tridente when we were visited on 23 site, if you want us to stop, issue a stop 24 work order. If we are doing something wrong, 25 tell us. If you think we are violating the 186 1 Soil Conservation permit, let us know. We 2 will meet with the Soil Conservation guy. I 3 don't have a problem with that. 4 But to sit here and say here is 5 the pictures, the pictures don't mean anything 6 necessarily. You got to know what is being 7 done and, look, I am not going to tell the 8 Board what to do. Certainly Mr. Marks and Mr. 9 Calvanico can advise you on that. But it is 10 not part of this application. 11 COMMISSIONER FITZGIBBONS: You 12 know -- 13 MR. OURY: And it shouldn't be 14 discussed during this application. 15 COMMISSIONER FITZGIBBONS: I am 16 just saying that a picture sometimes -- 17 MR. OURY: Is worth a thousand 18 words. 19 COMMISSIONER FITZGIBBONS: Yes. 20 MR. OURY: And they also can be 21 very deceiving, some would say. 22 COMMISSIONER FITZGIBBONS: I 23 happen to pass that site myself. 24 MR. OURY: You know what it 25 looks like? 187 1 COMMISSIONER FITZGIBBONS: I go 2 to Edgewater to go shopping. 3 MR. OURY: No. 4 If the engineers want to 5 continue to sit down with us, we will put our 6 position forward to them. I really don't -- 7 and if we are doing something wrong and you 8 want to issue a violation or something, we 9 will deal with it, but it is not part of this 10 application and I don't want to get mired down 11 in it. It is not appropriate to be heard in 12 this application. 13 DIRECTOR MARKS: Again to 14 contradict what Mr. Oury just stated, Mr. 15 Tridente issued a request to stop work on 16 December 9 and to date, meaning today, it is 17 my understanding that work has continued. 18 I passed by the site on January 19 13, vis-a-vis the photographs that were 20 submitted to you. 21 Mr. Tridente and I met with Mr. 22 Oury and Mr. Bertin on-site on January 27. 23 Construction crews were out, moving equipment 24 was there doing work, and the authority to 25 issue a stop work order rests with the 188 1 municipal construction code official. 2 However, according to the 3 uniform construction code, this site is 4 located along a County road and County 5 Planning Board approval is a pre-existing or 6 is a prerequisite. 7 So Mr. Oury is right, the 8 applicant never received municipal 9 construction permits to begin work at the 10 site, but the applicant should have also 11 adhered and abided by Mr. Tridente's request 12 to stop work on December 9th. 13 CHAIRWOMAN AVAGLIANO: Thank 14 you. Is that clear? 15 MR. OURY: I heard what he said. 16 CHAIRWOMAN AVAGLIANO: Thank 17 you. 18 MR. OURY: I have no other 19 witnesses. I don't know if you want to 20 continue with your own experts. It is now ten 21 to 10:00. It is up to you. 22 CHAIRWOMAN AVAGLIANO: You will 23 be here at the next meeting? 24 MR. OURY: Yes. 25 CHAIRWOMAN AVAGLIANO: 189 1 Definitely, right? 2 MR. OURY: Absolutely. 3 CHAIRWOMAN AVAGLIANO: Maybe we 4 will see you on the site. I may meet you on 5 the site. 6 MR. OURY: That is a good point 7 actually, and Tom has to advise you if there 8 is going to be a site visit there is a certain 9 protocol you have to adhere to. 10 I have no objection, but we have 11 to be told about it so we can be there. 12 COMMISSIONER FITZGIBBONS: My 13 question, if I am going to Edgewater to go 14 shopping, is that a site visit if I see it? 15 MR. OURY: Tom and you go over 16 the cases, and it is with regard -- 17 COMMISSIONER FITZGIBBONS: My 18 thing is this. I'd like to see -- I want to 19 know as far as we give a notice to stop work 20 and North Bergen says it is this and that, I 21 think we have to investigate this a little 22 more. 23 MR. OURY: I will offer this to 24 you. I think that if Steve and Mr. Tridente 25 want to meet with Brian Rubarra, let me know 190 1 and I will be there with my engineer. I have 2 no problem doing that between this meeting and 3 next meeting and, you know, I get passionate 4 about things and we may disagree, but I have 5 no problem with continuing to talk and meet 6 and it is certainly -- I can't hide this 7 property, you know? 8 So if they want to set up a 9 meeting, I am in touch with Steve all the 10 time, set it up and I will go to the meeting 11 with Rubarro and the attorney and whoever they 12 want to bring. 13 I have to tell you, and Tom and 14 I discussed this, this case is sort of unique. 15 I have never run across some of the issues in 16 all the years I have been practicing, some of 17 the issues that have come up in this case. 18 We are kind of dealing with 19 things anew. Like you said, between now and 20 March 18 there is going to be a lot of work 21 that needs to be done. I will give Steve and 22 Mr. Calvanico all the things they need and I 23 am hoping they will do the same for me and I 24 am hoping to finish it up at the next 25 meeting. 191 1 CHAIRWOMAN AVAGLIANO: I object 2 to you cross-examining the Director of our 3 Planning Board. That bothers me. 4 MR. OURY: Mrs. Chairwoman, he 5 is testifying as an expert witness. He is a 6 professional. He understands he now becomes a 7 witness. 8 He can't be testifying and not 9 be cross-examined because you are going to 10 consider his testimony, as you should. You 11 can't -- I am sorry, that is the law. 12 You should -- maybe we should do 13 a memo for you, but that is the law. 14 COMMISSIONER FITZGIBBONS: You 15 do have another thing, you don't follow -- and 16 this is my opinion, everybody has an opinion, 17 you don't follow that the general public that 18 are not experts that are here to voice their 19 opinions, should be cross-examined and I want 20 that, I want that looked into. I really do. 21 I want to see, you know, they 22 have a right to speak out, okay? I want to 23 know if it is legal to cross-examine them or 24 not. That's what I want to know. 25 MR. CALVANICO: I will provide a 192 1 memo on that for the next meeting. 2 MR. OURY: That is fine. I will 3 prepare a memo, too, for Mr. Calvanico on that 4 issue. 5 COMMISSIONER MEHTA: One quick 6 question to Mr. Oury and attorney. Steve is 7 doing the law and sending the information 8 ahead of time, so please, whatever research 9 you have to do and you speak with the DEP and 10 do the review and forward all the information 11 at least couple of days so the Board member 12 has enough time to digest the information and 13 we will be well prepared next time. 14 MR. OURY: One thing Steve Marks 15 and I don't have a problem with is exchanging 16 information, so that is not a problem. When 17 Steve gets it to you is not under my control, 18 but certainly we exchange information on a 19 regular basis. I have never had a problem 20 with the County. 21 CHAIRWOMAN AVAGLIANO: And you 22 never will. 23 MR. OURY: I don't think you 24 will either. He has been more than 25 cooperative. Today it was a simple e-mail and 193 1 three hours later I had the amendment and 2 attachments and it happens quickly. We don't 3 have to do OPRA requests. 4 COMMISSIONER BETTINGER: Do we 5 need to put this as a motion to vote upon it? 6 CHAIRWOMAN AVAGLIANO: It is 7 going to continue. 8 COMMISSIONER BETTINGER: Make a 9 motion to continue this application at the 10 next meeting. 11 COMMISSIONER MEHTA: I second 12 it. 13 MR. OURY: March 18. One other 14 issue we should discuss amongst ourselves. 15 CHAIRWOMAN AVAGLIANO: Can it 16 wait until we call the roll? 17 MR. OURY: Before the roll. It 18 has to do with scheduling. If the Board 19 wishes we would be able to come to a special 20 meeting. This application is taking up a lot 21 of time. I don't know what your calendar is 22 like. 23 If the Board wants to have a 24 special meeting on a date that is not a 25 regular meeting, let Mr. Marks know and we 194 1 will accommodate, and depending on how much 2 time you get and we get at the next regular 3 meeting, Steve can work that out. 4 Otherwise -- 5 A SPEAKER: How will the public 6 know? 7 CHAIRWOMAN AVAGLIANO: It will 8 be advertised. 9 COMMISSIONER FITZGIBBONS: Go on 10 line. 11 DIRECTOR MARKS: Madam Chair, 12 usually there is a sign-up sheet for members 13 of the public. If you could, if you are 14 willing to either provide a telephone number 15 or an e-mail address, we will send it out 16 by e-mail, fax or telephone notice, public 17 notice. 18 COMMISSIONER FITZGIBBONS: 19 Steve, don't we have an e-mail address, you go 20 on line? 21 MR. CALVANICO: They can go to 22 the website. 23 DIRECTOR MARKS: It might be 24 easier when the public notice is ready we can 25 send it out as a blanket e-mail to everybody 195 1 that is interested. 2 MR. OURY: Thank you, members of 3 the Board. 4 COMMISSIONER CHOFFO: Steve, do 5 you want to do the roll call? 6 DIRECTOR MARKS: Madam Chair, on 7 a motion to table application 2008-082-SP/SD, 8 Avac Properties, LLC, made by Commissioner 9 Bettinger and seconded by Commissioner Mehta, 10 Commissioner Arencibia? 11 COMMISSIONER ARENCIBIA: Aye. 12 DIRECTOR MARKS: Commissioner 13 Bettinger? 14 COMMISSIONER BETTINGER: Aye. 15 DIRECTOR MARKS: Commissioner 16 Choffo? 17 COMMISSIONER CHOFFO: Aye. 18 DIRECTOR MARKS: Commissioner 19 Fitzgibbons? 20 COMMISSIONER FITZGIBBONS: Aye. 21 DIRECTOR MARKS: Commissioner 22 Mehta? 23 COMMISSIONER MEHTA: Aye. 24 DIRECTOR MARKS: Commissioner 25 Ng? 196 1 COMMISSIONER NG: Aye. 2 DIRECTOR MARKS: Chairwoman 3 Avagliano? 4 CHAIRWOMAN AVAGLIANO: Aye. 5 DIRECTOR MARKS: Madam Chair, 6 the motion passed. 7 (Short recess.) 8 DIRECTOR MARKS: I have one 9 order of business -- actually I am sorry, I do 10 have one thing under old business. 11 Madam Chair, per your request 12 last month I sent a letter to the NJ DOT on 13 the Wittpenn Bridge, and it was the woman, I 14 don't have the name in front of me, it is the 15 woman that was identified from the DOT's 16 public portion, some of you did invite her to 17 come out by both letter and by telephone. You 18 invited her to come out to present a 19 presentation to the Planning Board on the 20 Wittpenn Bridge project. 21 She did tell me that she was 22 meeting with representatives of Jersey City 23 today and that she would reach out to me. She 24 said she wasn't available for this evening's 25 meeting, but perhaps March 18. I just wanted 197 1 to let you know. It was per your request last 2 month. 3 COMMISSIONER BETTINGER: Mr. 4 Marks, under old business, has anything been 5 done on about the sign on County Road? 6 DIRECTOR MARKS: I could tell 7 you, Madam Chair, that was something Mr. Jasek 8 said he would handle and Mr. Jasek said he 9 would send an e-mail to Buddy Demellier. 10 COMMISSIONER BETTINGER: Was 11 anything done? 12 COMMISSIONER ARENCIBIA: That 13 was something referred to the Road Department 14 to put up the sign and unless I put up the 15 sign myself, we have to follow up. 16 COMMISSIONER BETTINGER: So this 17 has been going on for months. No one has sent 18 any e-mails? 19 COMMISSIONER ARENCIBIA: There 20 was definitely something that came from our 21 office to the Roads Department to put up 22 signs. So I have to check with Jose our 23 traffic engineer to, about his plan on doing 24 it. 25 COMMISSIONER BETTINGER: Can 198 1 someone e-mail me and get back to me? Again I 2 drove down there and there was absolutely 3 nothing distinguishing which is 1 and 9 or 4 what is New County Road or Old County Road. 5 CHAIRWOMAN AVAGLIANO: Any other 6 questions? Anything else? 7 DIRECTOR MARKS: My recollection 8 was that Mr. Jasek was going to contact the 9 Roads Department. That's why I didn't follow 10 up on it. It was my understanding Mr. Jasek 11 was going do it. 12 That was under old business. I 13 don't have any new business. 14 CHAIRWOMAN AVAGLIANO: Motion to 15 close? 16 COMMISSIONER FITZGIBBONS: I 17 make a motion to close. 18 COMMISSIONER MEHTA: I will 19 second. 20 DIRECTOR MARKS: Madam Chair, on 21 a motion to close the meeting made by 22 Commissioner Fitzgibbons and seconded by 23 Commissioner Mehta, all in favor? 24 (Round of Ayes.) 25 DIRECTOR MARKS: All opposed? 199 1 (No response.) 2 DIRECTOR MARKS: Madam Chair, 3 the meeting is closed. 4 (Time noted: 10:15.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 200 1 CERTIFICATE OF OFFICER 2 I, CAREY ANN SHAFTAN, a Certified 3 Shorthand Reporter of the State of New Jersey, 4 License No. 30X100192900, do hereby certify that 5 prior to the commencement of the examination, the 6 witness was duly sworn by me. 7 I DO FURTHER CERTIFY that the following 8 is a true and accurate transcript of the 9 testimony as taken stenographically by me and 10 before me at the date, time and place 11 aforementioned. 12 I DO FURTHER CERTIFY that I am neither a 13 relative nor employee, nor attorney or counsel to 14 any parties involved; that I am neither related 15 to nor employed by any such attorney or counsel, 16 and that I am not financially interested in the 17 action. 18 19 _________________________________________ 20 A NOTARY PUBLIC OF THE STATE OF NEW JERSEY 21 My Commission Expires May 1, 2011 22 Notary No. 2016121 23 24 25