BOB HORNBY WAS IN A GOOD MOOD when I ran into him the other day; he was out walking on Reading Road with his son and daughter in law. It was a beautiful Friday afternoon, the last of Summer; there was no traffic, so I stopped the car in the middle of the road to talk. After some pleasant chat, the conversation turned inevitably to the “elephant in the room”, the Fisher application for a zoning variance to establish a commercial trucking operation on the quiet hay farm at the intersection where we were standing.
At the September 10 meeting of the Board of Adjustment, Civil Engineer and Licensed Professional Planner Edward Bogan had testified in support of Mr. Hornby’s opposition to the Fisher application. Mr. Bogan also submitted to the Zoning Board a report discussing the planning and engineering aspects, the traffic to be generated, the likely impact downstream of the withdrawal of 13.5 million gallons of water annually, and the business of bottled water. I asked Mr. Hornby how the meeting went.
“Terrible. We bombed. And the Star-Ledger http://www.nj.com/news/local/index.ssf/2009/09/hunterdon_farmer_turning_to_wa.html quoted [acting Board Chairman] Marty Siecke saying ‘I’ve got a milk truck that’s carrying milk out and a tanker truck carrying water out – what’s the difference?’”
The difference, as Mr. Hornby and Mr. Bogan have both testified at the Board of Adjustment hearings, is the number of trucks and their hours of operation. According to testimony by Mr. Fisher’s witness Frank van Horn, a truck driver who used to pick up milk from the Fisher dairy farm before it went out of business over a decade ago, the water trucks and milk trucks do weigh the same, close to 80,000 pounds. (Incidentally, these are the heaviest loads allowed on public roads). But, as Mr. van Horn testified, one milk truck came to the Fisher farm every two or three days, no more than seven in two weeks’ time. The water trucking operation would have nine trucks a day. And while the milk truck generally came during daylight hours, the nine water trucks would operate around the clock, six days a week.
The round the clock scheduling was revealed under cross examination of Mr. Fisher’s engineer, Robert Templin, by Mr. Hornby’s attorney, John Lanza. This and the plan to install three 500-watt halogen floodlights operated by motion sensors also were discussed only under cross examination by Mr. Lanza. Altogether, Mr. Hornby as objector in this application, together with his attorney, have succeeded in bringing to light important aspects of the planned water trucking operation that the applicant and his experts had obscured. So why did Mr. Hornby think Mr. Bogan had “bombed”? To find out, I turned to the audio recording of the meeting.
CHALLENGE TO CREDENTIALS
Before any testimony could begin, George Dilts, attorney for the applicant Charlie Fisher, noted that Mr. Bogan’s report was submitted on the morning of the meeting, September 10, and objected to “sharp gamesmanship” on the part of Mr. Lanza’s team. Mr. Lanza replied that the report by Mr. Dilts’s planner, Frank Banisch, had been distributed to Board members on the evening of the meeting as they arrived, so that if gamesmanship were involved, surely Mr. Dilts’s was the more glaring.
Mr. Dilts objected to hearing Mr. Bogan testify regarding the “numerous fields beyond his qualifications” that he covered in his report. In response, Steve Goodell, attorney for the Board of Adjustment, instructed the Board that “Planning is a very broad area”, so they could accept Mr. Bogan as an expert witness in matters of civil engineering and community planning, and give what weight they deemed appropriate to his testimony in other matters, including hydrogeology and traffic.
Mr. Bogan began his testimony by stating that the use for which the variance is being sought is called “water harvesting” by the applicant, to suggest a similarity with agriculture, but that “this is not a water harvesting facility, but a truck terminal. It is loading a commodity onto large trucks and removing it from the site. The commodity could be anything, gasoline or tires – it happens to be water”. Mr. Dilts objected to this comment, too, but Mr. Goodell allowed it to stand.
In prior hearings, Mr.Fisher, his hydrogeologist, his planner, his engineer and a truckdriver who would like to get the contract picking up the water have all testified on Mr. Fisher’s behalf. Mr. Hornby, and now his engineer and planner, have testified. The end is in sight and much of the legal posturing is best seen as an effort to control what goes into the written record of this case. This is important because in the event of an appeal, the witnesses will not be reheard, but only the written record of the proceedings will be reviewed by the Appellate Court to determine whether the Board acted properly. Mr. Dilts wants to give the Board plausible reason to believe one version of the facts, Mr. Lanza, another.
Mr. Bogan testified that he believed the template used to draw the trucks’ turning radius on the site plan indicated that sixty foot long trucks, which will be used to haul water from the site, cannot maneuver in the paved areas as designed. Mr. Bogan also cited an NJDOT report quoting the New Jersey Administrative Code [NJAC] to the effect that liquid tankers are top-heavy and especially likely to turn over. Mr. Dilts returned to this comment at the end of the meeting during cross examination. At that time Mr. Bogan stated that he had not actually read the NJAC section, but taken the quotation from the NJDOT report; he said this research was not done by himself, but another planner. Mr. Dilts established that that NJAC section 16.32 referenced by Mr. Bogan did not apply to 97” wide trailers, the type that will be used for the Fisher operation, but rather to 102” wide trailers, a difference of five inches.
This revelation, that Mr. Bogan had used secondary literature instead of original sources, was skillfully drawn out by Mr. Dilts over a ten minute period, to create an impression that the rest of Mr. Bogan’s research, reports and testimony rested on similarly shaky foundations. Mr. Dilts had begun the evening’s meeting by devoting forty – five minutes to challenging Mr. Bogan’s credentials, and ended by a lengthy challenge of his research skills. This must be what Mr. Hornby referred to when he said his witness had “bombed”.
The NJDOT Report to the Legislature on Heavy Trucks, quoted in Mr. Bogan’s report, states that NJDOT regulates large and heavy trucks and their routes under the provisions of the NJAC “to provide for the safety of motorists, pedestrians, reduce roadway damage caused by large and heavy trucks, and to promote the quality of life in New Jersey”. Bogan quotes: “In many letters of comment, persons have said that trucks should be banned or restricted from certain roads because of the presence of one or more of the following factors: schools, historic places, school bus stops, hospitals, pets, bicyclists, pedestrians, senior citizens, children, parks, rural neighborhoods, environmentally sensitive areas, noise sensitive areas or residential areas”. The area around the Fisher farm is zoned residential – agricultural; previous testimony in these hearings has established that the neighboring roads are used by school buses, pets, bicyclists, seniors, children, and that the neighborhood is rural and environmentally sensitive.
Mr. Bogan gave his opinion as a civil engineer that the township road is not structurally strong enough to withstand the added heavy truck traffic. His report mentions that he spoke to the Delaware Township Public Works Director Jay Trstensky, who reportedly “had serious concerns about this roadway; suggesting that evidence of wear will start to appear within six months. We are in agreement that the weakest part of the roadway tends to be near the pavement edges where truck traffic will do its greatest damage”. Mr. Dilts objected to this as hearsay, and it is unclear what weight the individual members of the Board will give this exchange. Mr. Trstensky has not been called by the Board to testify.
Mr. Bogan will continue his testimony at the next Board of Adjustment hearing, on October 15 at 7:30 at the Municipal Building, commenting on aspects of his written report not covered in his September 10 testimony, including planning. His review of the Delaware Township Master Plan and its various revisions over the last fifteen years stresses the Planning Board’s repeated finding that “No locations in the Township have been identified as suitable for new commercial or industrial development. Accordingly, the Township Committee has not increased the amount of its commercial or light industrial zoned lands”, ( 2006 Delaware Township Master Plan Re-examination Report, page 11).
The New Jersey Water Supply Authority’s Study of the Lockatong and Wickecheoke Watersheds, published 2009, has been mentioned once before in these hearings, by the Township’s Planner Betsy Mackenzie. The applicant’s professional hydrogeologist, Vince Uhl, testified he was unaware of either the report or the agency that wrote it. Mr. Bogan included two NJWSA graphs in his written report. One graph shows the flows measured in the various subwatersheds of the Wickecheoke Creek; Cold Run, which crosses the Fisher site, is identified as subwatershed 3a; the NJWSA graph of “Average low-flow per drainage area for the Wickecheoke Creek monitoring sites” shows that in periods of low flow, the Cold Run is by far the largest contributor to base flow in the main branch of the Wickecheoke. The other graph is of “Lockatong and Wickecheoke Creeks: Water Temperature [at Low Flows]”; this shows the rise in temperatures, during low flow periods, to levels too high for trout maintenance.
Mr. Bogan stresses that this operation will remove 13,500,000 gallons of water per year from the Township; and that whatever other comparisons can be made, the former dairy operation trucked out about 4,800 gallons of milk every other day, while leaving on site whatever other water was consumed: the cows drank it then redeposited it. Mr Bogan’s inference is that the removal of this volume of water from this environmentally significant area – the most important tributary to the Wickecheoke Creek – will tend to increase water temperatures in the creek.
Mr. Dilts objected to the introduction of the NJWSA report as evidence; he objected to Mr. Bogan’s testifying on a matter outside his area of expertise; and he stressed that both his and the Township’s hydrogeologist had already testified on this matter. Mr. Goodell overruled Mr. Dilts, saying that “the Board is charged that this is not expert testimony; he can testify as a planner to effects that would be of substantial detriment to the public good”. Mr. Lanza countered by introducing into the record as an exhibit the NJWSA report, with the comment: “I would submit for purposes of the record that a government report is admissible as evidence to oppose to a hydrogeologist’s report, and that such a document is self-authenticating”. There will be more hydrogeological testimony at the next meeting.
POSITIVE AND NEGATIVE CRITERIA
Under New Jersey Municipal Land Use Law the applicant, to be granted this variance, must show that the proposed land use will result in positive benefit to the community, and no substantial detriment. Mr. Bogan’s views as a planner, that this land use will be of no benefit to Delaware Township, will be discussed at the next meeting. Township Planner Betsy Mackenzie is also on the agenda, and will present her report and testimony. A further report by Township hydrogeologist is also pending.
PROS AND CONS OF THE BOTTLED WATER INDUSTRY
Mr. Bogan’s report discusses the impact on communities that can occur when an international corporation appropriates a local water supply. The case of Bechtel Corporation “buying” the Lima, Peru water supply, and the citizens’ protests that overturned that action, is famous. In Pennsylvania, citizens’ action groups are beginning to form to address the threat of having to buy water that was once public property. So far in the Board of Adjustment hearings, this historic background has formed no part of the reports and testimony. Mr. Dilts objected to Mr. Bogan’s testimony on the contents of the “Food and Water Watch” website. Mr. Goodell sustained this objection on the grounds that the website was not a peer – reviewed publication and Mr. Bogan blundered by being unable to name any of the site’s authors.
THE ROLE OF THE OBJECTOR
The objector has had two main roles in this case: his attorney cross examines the applicant’s witness, and his own witnesses offer reports and testimony on his behalf. Without the objector’s attorney, several key points obscured by the applicant’s team would never have been brought to light: the increase in heavy truck traffic, the inadequate condition of the road, the impact on the creek downstream, the 24 hour schedule of operations, the bright lights equipped with motion sensors, the noise and smell, the removal of 13.5 million gallons of water. The applicant’s team presented a picture in soft focus, eliding most of these details. Without an objector, these points would never have been made, the hearings would probably have concluded already and the application might well have been approved.
THE ROLE OF THE ATTORNEYS
The applicant’s and objector’s attorneys themselves probably have a greater impact on the Board’s understanding of this application than any single witness or report, simply because they spend more time addressing the Board than any witness, and are at liberty to comment on everything that occurs in the hearings. Sometimes even the attorneys misspeak Listen, as the following exchange shows:
LANZA: What impact would the movement of tractor trailers – again, we’re talking approximately 8 vehicles, 16 trips a day, all hours day and night – what impact would that have on the site?
BOGAN: Well, I think we talked about that earlier, that the movement of trucks in and around the site, with backup alarms – and I researched what backup alarms are available, ranking anywhere from 82 to 117 decibels – and there seems to be one in particular that seemed to be popular among trucks that were for sale – not that these trucks would have it.
DILTS: I’m going to object; I think now we’re moving into the area of a noise expert.
BOGAN: I think this goes to my planning testimony, it was raised at a public hearing what these trucks would be equipped with, when they would be operating, which we heard was 24 hours a day, six days a week.
DILTS: That’s a misnomer; that’s never been testified to.
GOODELL: Objection’s on the record.
BOGAN: Mr. Templin testified to that; I was present at that meeting.
Mr. Bogan is correct. The audio of the July 7 Board of Adjustment hearing has the following exchange, where Mr. Lanza cross – examines Mr. Templin, engineer for Mr. Fisher.
LANZA: Nine trucks come in; that would be 18 times a day you’d hear those backup horns. Is that correct?
LANZA: Now, you had mentioned lights, correct?
LANZA: Now, in your specifications you said that there would be nine pickups of potable spring water per day, 6 days per week, correct?
LANZA: Are you aware of any stipulated hours of operation for the site?
LANZA: Are you aware of a plan to have pickups after dark?
TEMPLIN: It’s my understanding that there will be.
LANZA: And would that be, say, between sundown and, oh, six in the evening in the winter, as opposed to somewhere else?
LANZA: So it wouldn’t really be necessary to have any lighting at night at all, would it, except when the trucks are on site, correct?
LANZA: So there would be no point in having any type of lights that were activated by motion, would there, after the truck traffic is no longer coming on site and using the site, correct?
TEMPLIN: Umm, yes, but if they’re gonna be operating during the evenings someone would have to turn them on.
LANZA: Are you aware of any intent of use to have this commercial and industrial operation extending, say, after eight at night?
TEMPLIN: Yes, I think I may have misunderstood one of your questions, but I did say there was possibility, it was probable it would operate all night.
LANZA: So, it’s probable that this…
TEMPLIN: In other words, the nine trucks would be spaced throughout the 24 – hour period.
LANZA: So you’d have trucks traveling up and down through the area in the middle of the night?
LANZA: 52 weeks a year?
LANZA: Six days a week?
TEMPLIN: Pretty much, yes.
LANZA: 24 hours?
LANZA: And, umm, how does this operation benefit Delaware Township?
TEMPLIN: I think that might be a planning question.
Mr. Templin clearly testified the operation would be around the clock, as Mr. Bogan correctly remembered, and Mr. Dilts’ memory was faulty – or was this just “sharp gamesmanship”?
Mr. Dilts spent 45 minutes attacking Mr. Bogan’s credentials at the beginning of the meeting, and another quarter hour attaching his research at the end. In this context it’s easy to imagine the Board discounted much of the testimony the witness offered in between. If Mr. Hornby thinks Mr. Bogan “bombed”, that’s surely the impression Mr. Dilts tried to create. Attorneys, on the other hand, have the advantage that their misstatements often pass into the record unchallenged. Even so, when a lawyer accuses his brother of sharp practices, it reminds one of the Gospel.
PUBLIC COMMENT TO BE ALLOWED SOON
Thus far in these hearings public comment has been limited to questioning witnesses about their testimony; no general comments or statements of opinions have been allowed. Such comments are only allowed after all witness testimony has been presented. The next meeting of the Board of Adjustment, to be held on Thursday, October 15 at 7:30 PM at the Delaware Township Municipal Building, could be the first to allow general public comment, depending on whether all witness testimony and cross examination has concluded.