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SUPERIOR COURT OF NEW JERSEY UNION COUNTY - LAW DIVISION DOCKET NOS. UNN-L-0140-08 UNN-L-003759-08 LEHIGH ACQUISITION CORP.

, Plaintiffs, vs. TOWNSHIP OF CRANFORD and PLANNING BOARD OF THE TOWNSHIP OF CRANFORD, Defendants; and CRANFORD DEVELOPMENT ASSOCIATES, LLC, a limited liability company organized under the laws of the State of New Jersey, SAMUEL HEKEMIAN, PETER HEKEMIAN, JEFFREY HEKEMIAN, and ANN KRIKORIAN as trustee for RICHARD HEKEMIAN and MARK HEKEMIAN, Plaintiffs, vs. TOWNSHIP OF CRANFORD, MAYOR AND COUNCIL OF THE TOWNSHIP OF CRANFORD and the PLANNING BOARD OF THE TOWNSHIP OF CRANFORD, Defendants. DOUGLAS COHEN, being of full age and duly sworn, deposes and says: 1. I am general counsel for Cranford Development Associates, LLC. Civil Action

CERTIFICATION OF DOUGLAS COHEN IN SUPPORT OF APPLICATION IN AID OF LITIGANTS RIGHTS AND FOR OTHER RELIEF

(CDA). In that capacity, I am personally familiar with efforts to develop the properties located at 215 and 235 Birchwood Avenue, Cranford, New Jersey,

and, in particular, with efforts by CDA to secure permits in connection with its discovery of buried debris on that property and its efforts to remove that debris. 2. I understand that the opinion of the Law Division awarding a

builders remedy requires that CDA must secure NJDEP approval of a stormwater management plan for the project prior to obtaining any building permits. In implementation of that opinion, CDA directed its consultants to prepare a storm water management plan for submission to the NJDEP. 3. One of the first steps required to prepare the stormwater

management plan was performance of a geotechnical boring analysis, i.e., digging test pits at various locations on the property to determine how far the ground water lies below the ground surface. 4. The staff of CDAs civil engineer L2A Land Design, LLC,

commenced digging these test pits on October 17, 2011. At one location, they discovered material that was neither soil nor rock, but appeared to be some sort of debris at four feet below the surface level. They then dug additional test pits to ascertain whether this debris was isolated in this one location. They found debris at two additional locations. 5. CDA then retained an environmental consultant to determine the

extent of the fill/debris and to evaluate the fill/debris material and the surrounding soils for any possible evidence of contamination in accordance the NJDEP technical standards. This evaluation, which involved further excavation, indicated that there was a layer of old debris, including lumber, charred wood, tires, and other construction debris that had been buried as fill

along the edge of the parking lot at the east side of the property on Block 292, Lot 2, at a level four to eight feet below ground level. It encompasses an area of approximately 16,400 square feet. 6. CDA suspended further excavations pending the securing of any

necessary permits. It chained the driveways providing ingress to the property and posted PRIVATE PROPERTY/NO TRESPASSING signs. It implemented soil erosion and sediment control measures, including sealing catch basins to prevent runoff from the piles of debris, which are located on the existing parking lot, from conveying sediments into the storm water system, and installing a silt fence around the excavation. 7. As of the date excavation was suspended, no soil or debris had

been removed from the site or brought onto the site. The only material brought onto the site was 2 stone that will be ultimately be used to partially fill the excavations. Since that date, no soil or debris has been removed from the site, except from a very small amount sent to the lab for testing. No soil or debris has been brought onto the site. 8. On October 24, 2011, CDA applied to the Somerset Union Soil

Conservation District (SUSCD) for a Soil Erosion and Sediment Control Certificate for this excavation, which is annexed as Attachment 1. After inspecting the site, SUSCD issued a Certificate on October 28, 2011, which is annexed as Attachment 2. 9. Because of uncertainty by CDA as what type of NJDEP permit was

required, if any, CDA consulted with NJDEP on whether the debris should be

considered historic fill (no permit required) or buried non-household debris, for which a disturbance permit would be required. At NJDEPs direction, CDA filed with NJDEP a Solid Waste Facility Application form on October 19, 2011, which is annexed as Attachment 3, and then an Application for Minor Landfill Disruption for Fill/Debris Removal on October 24, 2011, which is annexed as Attachment 4. The NJDEP exercised jurisdiction and issued a Minor Landfill Disruption Approval on November 23, 2011, which is annexed as Attachment 5. 10. As specified in the State-approved Minor Landfill Disruption

application, the ultimate plan will be to excavate the debris to stockpiles at specified locations on the site, permitting the debris to dry for two weeks, and then screening it to separate soil from debris. CDA will then refill the excavations to the prior grade level with the overburden, the screened soil and clean material brought onto the site. The debris will be removed from the site by a licensed waste removal contractor and disposed of in accordance with NJDEP regulations. The entire process will be conducted under the supervision of a licensed site remediation professional, who will report to the NJDEP. 11. At the demand of Cranford Township, on November 4, 2011, CDA

filed an application with Cranford Township for a soil removal permit under Cranford Code 197-1 et seq, which is annexed as Attachment 6. CDA filed an application even though it did not believe that any such permit was required since no soil was to be removed from the site. 12. The requirements for securing a soil removal permit under

Cranford Code 197-1 et seq. appear to be straightforward. The applicant

must pay a fee of $5 and submit a request containing the information in Cranford Code 197-2. 13. Cranford Code 197-2 states:

197-2. Application for permit; accompanying data. A. Every application for a permit shall: (1) Be made to the Township Engineer in writing. (2) State the approximate number of cubic yards of soil or earth proposed to be removed. (3) State the location from which the soil or earth is to be removed and the location to which it is to be moved. (4) State the streets over which the soil or earth is to be hauled. (5) Be accompanied by. (a) A sketch of the lot from which removal is proposed to be made, which sketch shall show the depths to which it is proposed to make removal; and (b) The permit fee, as provided by 197-5. B. In applications involving removal of soil or earth from an area in excess of 1,000 square feet the Township Engineer may require an accurate topographical survey of the property, showing the existing grades and the grades which will result from the proposed removal. 14. The application that CDA filed on November 4, 2011, contained all

the required information and attachments. 15. As of November 21, 2011, CDA had received no response to its

application from Cranford. I therefore sent a letter, which is annexed as Attachment 7, to Richard Marsden, municipal engineer, requesting that the municipality act on our application.

16.

On November 23, 2011, CDA received a letter from Mr. Marsden,

which is annexed as Attachment 8, demanding 13 categories of additional information beyond those set forth in 197-2. 17. As indicated by his letter dated November 23, 2011, Mr. Marsden

appeared to be under the impression that debris or soil had been removed from the site or had been brought onto the site. This impression was mistaken. No debris or soil has been removed from, or brought onto, the site. All the debris excavated prior to suspension of activity was stockpiled on the site. Ultimately, it will be screened. The overburden, the screened soil and additional clean material brought onto the site will be used to refill the excavation. The debris will be removed in accordance with the plan approved by the NJDEP. 18. On November 30, 2011, I sent a letter to Mr. Marsden, which is

annexed as Attachment 9, providing, under protest, all the information requested in his letter of November 23, 2011, except for one item. The letter was sent under protest because many of the items requested by Mr. Marsden were outside the requirements set forth in 197-2 and were within the exclusive regulatory authority of the NJDEP and the Union-Somerset Soil Conservation District. 19. The one item which I declined to provide was item 6.6: daily logs

of work completed to date on the site. This broad ranging request is not authorized by the language of Cranford Code 197-1 et seq. and appeared to go far beyond the terms or purpose of that ordinance.

20.

On December 1, 2011, I made the following written request for

public records, which is annexed as Attachment 10, to the municipal clerk of Cranford Township: With respect to any soil removal permit issued by the Cranford township engineer pursuant to 197 of the Cranford Township Municipal Code for (i) the Riverfront Redevelopment project, (ii) Cranford Crossing, and (iii) any other 197 soil removal permit issued within the past 12 months, copies of the following documents: (a) permit application/request;

(b) all correspondence from and between the applicant and the township engineer with respect to such permit application; (c) the permit approval; and

(d) all correspondence from and between the permit holder and the township after the issuance of the permit. 21. The municipal clerks response, dated December 12, 2011, which

is annexed as Attachment 11, stated that I am informed by the Township Engineer that there are no records related to your request. 22. On Tuesday, December 6, 2011, I spoke with Mr. Marsden and

orally requested that the municipality issue the soil removal permit. He stated that he had not yet looked at my letter of November 30, 2011, but was devoting himself to other activities which he deemed to be of a higher priority. 23. Since November 23, 2011, when the NJDEP issued its approval,

there has only been one obstacle preventing CDA from completing its excavation of debris from the property, removing the debris and refilling the excavations to their former grade in accordance with the plan approved by the NJDEP. That obstacle has been the failure of the Cranford to issue a soil removal permit.

24.

If Cranford had issued its permit in a timely fashion, the debris

would have been removed and the excavation refilled and regraded shortly after the issuance of the NJDEP permit, i.e. by the end of the first week in December. Because Cranford has not issued the requested permit, the excavation remains open. 25. In the meantime, on December 9, 2011, the Cranford building

inspector has issued a violation notice, which is annexed as Attachment 12, asserting that the open excavation is a hazard and requiring that it be fenced in. 26. 27. CDA has erected a fence around the excavation. Cranford has filed a criminal complaint against the principals of

CDA, which is annexed as Attachment 13, for alleged violation of Cranford Code 197-1 et seq. 28. Each day the permit remains unissued, construction of low and

moderate income housing in accordance with the decision of the Court is delayed. In addition, as long as the permit remains unissued, the principals of CDA are unjustly exposed to legal action. The delay has become especially acute as winter approaches, since cold, snow and ice make filling in the excavation more difficult and hazardous.

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