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1
1 CITY OF PHILADELPHIA
2 ZONING BOARD OF ADJUSTMENT
3 - - -
4 Calendar No. 99-1284, 1285
5 Applicant No. 991018058
6 Zoning Class: G-2 IND.
7 Location: 4601-45 and 4700 Flat Rock Road
8 Applicant: DRANOFF PROPERTIES, INC.
9 Owner: DRANOFF PROPERTIES, INC.
10
11
- - -
12 Monday, June 12, 2000
1:00 p.m.
13 Zoning Board of Adjustment
1515 Arch Street - 18th Floor
14 Philadelphia, Pennsylvania
- - -
15 BEFORE: THOMAS J. KELLY, Chairman
SUSAN O.W. JAFFE
16 DAVID L. AUSPITZ
ROSALIE M. LEONARD
17 THOMAS D. LOGAN
ROBERT J. D'AGOSTINO, Administrator
18 MARTIN T. GREGORSKI, City Planning Commission
- - -
19
APPEARANCES:
20
21 BLANK, ROME, COMISKY & McCAULEY, LLP
BY: PETER FOSTER KELSEN, ESQUIRE
22 One Logan Square
Philadelphia, Pennsylvania 19103-6998
23
Counsel for Applicant
24
DELCASALE, CASEY, MARTIN & MANCHELLO
(215) 568-2211 (856) 482-7207
2
1 APPEARANCES (Continued):
2
BALLARD, SPAHR, ANDREWS & INGERSOLL, LLP
3 BY: MICHAEL SKLAROFF, ESQUIRE
JOANNE PHILLIPS, ESQUIRE
4 1735 Market Street - 51st Floor
Philadelphia, Pennsylvania 19103
5
Counsel for Cotton Street Landing
6
KRAKOWER & MASON
7 BY: STANLEY R. KRAKOWER, ESQUIRE
2300 Aramark Tower
8 1101 Market Street
Philadelphia, Pennsylvania 19107
9
Counsel for the Manayunk Community
10 Neighborhood Council
11
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15
16
17
18
19
20
21
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23
24
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1 INDEX TO TESTIMONY
2
WITNESSES PAGE
3
Joseph J. Skupien 12
4
Geoffrey M. Goll 12
5
Andreas Heinrich 87
6
Wendy Lathrop 118
7
Gerald Harrison 167
8
Stephen Miller 168
9
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1 ... All potential witnesses sworn
2 en masse ...
3 THE CHAIRMAN: The first case is
4 Calendar Number 99-1284, 4601-45 and 4700
5 Flat Rock Road.
6 MR. KRAKOWER: Mr. Chairman, if I
7 may, Stanley Krakower for the Manayunk
8 Community Neighborhood Council, which is
9 the lead protestant. There are a number of
10 protestants in this matter and we have a
11 number of witnesses to present today.
12 However, I'm going to ask in the
13 interest, I think, not only of economy, but
14 even more importantly of being able to
15 present this in a posture that would make
16 sense.
17 If the two cases -- let me see, the
18 first one, 99-1284 and 99-1285, and the
19 other case dealing with Cotton Street, Main
20 Street, 99-1388, could all be consolidated
21 for purposes of this hearing.
22 Our presentation, our witnesses
23 deal with Venice Island as an entity rather
24 than one or the other. And I don't know if
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1 either of the --
2 MR. KELSEN: I have an objection.
3 Peter Kelsen for the Applicant, Dranoff
4 Properties. That's Calendar Number 99-1284
5 and 85. I believe what we did last time
6 was incorporate the testimony of the
7 cross-examination of what I'll call the
8 Namico case into the Connelly case.
9 I don't want these cases
10 consolidated, Mr. Chairman and Members of
11 the Board, because they are different
12 applications with different issues and the
13 Namico case is significantly different from
14 the Connelly case in terms of
15 infrastructure and type of developing.
16 It will create a record that will
17 be very difficult to understand if this
18 matter is appealed, I believe, for all of
19 the parties. So, perhaps Mr. Sklaroff will
20 probably make a statement on that in a
21 second. Perhaps what we should do is
22 figure out a way to perhaps incorporate
23 some of the cross-examination, but I can't
24 agree to stipulate to incorporate both
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1 cases or consolidate both cases.
2 MR. SKLAROFF: I think there's a
3 halfway point here. I would object to the
4 consolidation of the cases; however, I
5 think this hearing can be consolidated so
6 that, otherwise, we're going to have
7 everything repeated. We could have this
8 hearing deemed to be a hearing both in the
9 Namico case and --
10 THE CHAIRMAN: You wouldn't have an
11 ojection if we just put his witnesses on
12 and let the record show that we have the
13 same testimony?
14 MR. SKLAROFF: I have to have the
15 opportunity to cross-examine them.
16 THE CHAIRMAN: They're not going to
17 be consolidated. How many witnesses do you
18 have, sir?
19 MR. KRAKOWER: I have many, sir.
20 MR. SKLAROFF: Excuse me, Mr.
21 Chairman, but we can use the -- we have an
22 opportunity to cross-examine now --
23 THE CHAIRMAN: No. Your case is
24 second. We're going to hear this case
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1 first.
2 MR. KRAKOWER: We have six
3 witnesses, plus I will be making some
4 statements myself.
5 THE CHAIRMAN: Okay. I'll tell you
6 what you have. You have six witnesses and
7 ten minutes to examine each and then you
8 have five minutes to cross-examine them.
9 MR. KRAKOWER: Mr. Chairman, I
10 don't think that will be satisfactory with
11 these witnesses.
12 THE CHAIRMAN: That's all you have,
13 sir. We've heard it all. The Board is
14 going to hear testimony. It is the Board's
15 decision. Ten minutes on each witness and
16 the clock is running, sir.
17 MR. KRAKOWER: Mr. Chairman, let me
18 simply note, for the record, that is not
19 satisfactory and that denies the
20 protestants due process of law. We're
21 having an unconstitutional hearing.
22 THE CHAIRMAN: In your opinion,
23 sir.
24 MR. KRAKOWER: Yes, sir. Let me
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1 first point out that this is not really a
2 standard zoning case. It is in one extent
3 that the hardship standards normally
4 applied are applicable here. But, in
5 addition, you have two specific ordinances,
6 one, Section 14-1603.1 of the Philadelphia
7 Code as amended December 1998, and Section
8 14-1606, the Flood Plan Controls Ordinance
9 of the City of Philadelphia dealing with
10 flood controls, and specifically which will
11 deal with flood controls in a floodway of
12 which Venice Island, the location of both
13 of the applications that are before you is
14 in a floodway.
15 And Section 14-1603.1, in
16 particular, entitled Storm Water Management
17 Controls, specifically requires the Board
18 to consider the following criteria and to
19 insist that the following criteria be
20 applied, that they are granting the
21 variance would not create any significant
22 environmental damage, that the grant of the
23 variance will not significantly increase
24 the danger of flooding.
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1 And there are several others, but
2 those are the two particular criteria that
3 we submit are relevant here and which the
4 presentation and the witnesses today will
5 show that the application does not meet.
6 Now, I also want to start by
7 handing up a summary record from a witness
8 that testified in March, and I did not hand
9 up his record. That was Mr. Hedrickson,
10 the consulting meteorologist.
11 He testified in March but we did
12 not have his summary at the time, but he
13 did testify and was cross-examined.
14 I also have --
15 MR. KELSEN: Mr. Chairman, let me
16 object at this point. If he testified and
17 we cross-examined him, it's not appropriate
18 now to put in a summary of his testimony
19 because we have it in the record. I have
20 not had a chance to read this and then
21 compare it to the notes of testimony. If
22 it is different, we won't have a chance to
23 cross-examine him again.
24 I would say that his record speaks
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1 for itself, so I would like to have this
2 excluded from the record.
3 THE CHAIRMAN: It does. Sir, we're
4 going to conclude this. We're going to
5 make a decision within a week.
6 MR. KRAKOWER: Mr. Chairman, note,
7 again, my exception to that procedure.
8 THE CHAIRMAN: So noted.
9 MR. KRAKOWER: With respect to this
10 record, many of the applicant's witnesses
11 have submitted documents and documentation
12 and summaries and records which are part of
13 the record. There is no reason why we
14 cannot be afforded the same privilege and
15 play on the same playing field that they
16 did.
17 THE CHAIRMAN: Sir, you've had
18 hours of opportunity to cross-examine them,
19 which you did. Your witness came in here,
20 testified on the record and opposing
21 counsel cross-examined him. The record is
22 the record.
23 MR. KRAKOWER: But they also
24 submitted documentation as well. That's
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1 the only reason why we have two different
2 sets of ground rules. Are we going to
3 exclude all of the documents and records
4 that the applicant's witnesses, who also
5 were examined and cross-examined, have
6 submitted?
7 MR. KELSEN: Mr. Chairman, let me,
8 for the record, make it clear that all of
9 the applicant's case was presented and any
10 documentation that was entered was given to
11 counsel and was provided at the hearing on
12 the subject of cross-examination. We did
13 not provide documentary evidence apart from
14 the cross-examination process.
15 THE CHAIRMAN: And I agree.
16 MR. KRAKOWER: Again, note my
17 exception. You did receive documents at
18 the time of the testimony. At the time
19 that the testimony was given there were
20 documents that were submitted in.
21 All right, I will move on and call
22 our first witnesses, Mr. Geoffrey Goll and
23 Mr. Joseph Skupien.
24 THE CHAIRMAN: Mr. Goll and Mr.
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1 Skupien, would you please come forward.
2 Please put your name and addresses on the
3 record.
4 MR. SKUPIEN: First name is Joseph,
5 middle initial J., last name Skupien,
6 S-k-u-p-i-e-n. My address is 141 Mountain
7 Road. That's in Ringos, New Jersey.
8 MR. GOLL: My name is Geoffrey,
9 G-e-o-f-f-r-e-y, middle initial M, last
10 name Goll, G-o-l-l. My address is 56
11 Mulbery, M-u-l-b-e-r-y Court, Hamilton, New
12 Jersey 08619.
13 THE CHAIRMAN: This is two of six
14 or one?
15 MR. KRAKOWER: I intend there to be
16 two. Primarily the witness will be
17 Mr. Skupien, but they are both experts in
18 hydraulics and river flowing, and in case
19 there is something that comes up that
20 Mr. Skupien cannot handle, then Mr. Goll
21 would be able to provide the answers.
22 Mr. Skupien, first, would you
23 state, sir, what your profession is and
24 your background?
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1 MR. SKUPIEN: I'm a licensed
2 professional engineer and planner in the
3 State of New Jersey. I'm also a senior
4 principal hydraulic engineer for Somerset
5 County, New Jersey. I also have my own
6 consulting firm specializing in storm water
7 and flood plain management issues.
8 MR. KRAKOWER: Do you have a
9 Curriculum Vitae?
10 MR. SKUPIEN: Yes.
11 MR. KRAKOWER: May I have a copy of
12 it?
13 MR. SKUPIEN: It is in our copy of
14 our report.
15 MR. KRAKOWER: All right. Then, do
16 we have the reports? I'd like to hand them
17 up now so that counsel and the Zoning Board
18 can have those. The original is on top in
19 blue. All right. One for Mr. Kelsen and
20 one for Mr. Sklaroff.
21 Okay. Off the record.
22 (Discussion off the record.)
23 MR. KRAKOWER: Mr. Goll, what is
24 your professional background and your
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1 position with your company?
2 MR. GOLL: I am the Vice-president
3 of Princeton Hydro. I'm a civil engineer.
4 I'm licensed in the State of New Jersey and
5 the Commonwealth of Pennsylvania. I am
6 principally in charge of hydrology at my
7 firm. I also specialize in geotechnology.
8 MR. KRAKOWER: Mr. Skupien, what
9 education have you had in the area of
10 hydrology?
11 MR. SKUPIEN: I have a Bachelor's
12 Degree in civil engineering from Rutgers
13 University back in 1973.
14 MR. KRAKOWER: And have you done
15 any particular work in the area of river
16 hydrology?
17 MR. SKUPIEN: Fortunately, it is
18 unusual, perhaps, for my profession, but
19 I've worked exclusively since '73 since
20 graduation in storm water and flood plain
21 management.
22 MR. KRAKOWER: And Mr. Goll, do you
23 have any expertise in hydrology and river
24 hydrology?
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1 MR. GOLL: Yes, I do. I serve on
2 various planning boards for municipalities
3 and review their storm water applications.
4 Specifically, I work for Princeton
5 Township, Montgomery Township, Wayne
6 Township, Tinicum Township, Bucks County
7 and several other municipalities.
8 THE CHAIRMAN: Counsel, how
9 familiar are they with the Schuylkill
10 River?
11 MR. KRAKOWER: At my request, have
12 you examined the site and examined
13 documentation of the hydrology of the
14 Schuylkill River?
15 THE WITNESS: Yes, sir.
16 MR. KRAKOWER: And have you
17 examined the documentation submitted by
18 Professor Richard Waggle with regard to the
19 particular application that's pending
20 before this Board?
21 THE WITNESS: Yes, sir.
22 MR. KRAKOWER: And is your report
23 that you just handed up deal with that
24 particular application and with the
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1 documentation involved in that report?
2 THE WITNESS: The report addresses
3 both of the two developments proposed for
4 Venice Island, and one of the specific
5 things we look at is Dr. Waggle's analysis.
6 MR. KRAKOWER: In looking at that
7 analysis, did you reach any reasons or
8 conclusions that differed from those of
9 Dr. Waggle?
10 THE WITNESS: Our analysis was
11 hampered a bit. We were unable to obtain
12 an actual copy of Dr. Waggle's input model
13 date. We could not examine it for its
14 accuracy and its veracity. It's based upon
15 the core of engineers and models of the
16 Schuylkill that was done in '93 for the '96
17 flood insurance thing.
18 We were able to get a copy of that
19 and we were able to utilize that model.
20 So, the questions we have -- the points we
21 have about Dr. Waggle's model are more
22 questions than comments simply because we
23 didn't have the data, and I recommend them
24 for the Board for their consideration.
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1 The model establishes -- the poor
2 model is purported to establish existing
3 conditions on the river. What Dr. Waggle
4 has done before adding the new development,
5 is added the existing buildings. That kind
6 of challenges the veracity of the core
7 model we did not see addressed in.
8 The second point, and I'm
9 hurrying. I don't want to exceed the time
10 limit. It appears that the new apartments,
11 and I think everyone can be familiar with
12 what I'm speaking about, were modeled as
13 individual piers and to meet a strict
14 definition of FEMA regulations regarding
15 flood plain development.
16 My concern, though, having
17 experienced and modeled many, many real
18 flood events, including Floyd, is that we
19 expect the piers to be clogged with both
20 debris and whatever cars may be left on the
21 island, and will really act as solid
22 barriers. We think that we're accurately
23 analyzing the impacts of the new
24 development would be to model those piers
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1 as a solid mass, you know, to reflect the
2 probability of debris flow.
3 And then the third thing is the
4 model, again, it was developed to address
5 the Federal guideline about hundred year
6 impacts in the floodway, but we're also
7 concerned about flooding on some more
8 frequent smaller floods, which were not
9 analyzed.
10 We know that there was flooding
11 from Floyd upstream. That was about a
12 25-year event. But there's been no
13 analysis done to see what the developments
14 would do to that level of flooding.
15 Again, it doesn't meet the strict
16 requirement of the FEMA requirement
17 regarding hundred year impacts in the
18 floodway, but we think that these are
19 issues that should be addressed by, should
20 be a concern to the City to make sure that
21 we're not causing, not only a new flood
22 problem, like constructing on the island,
23 but either creating new or aggravating
24 existing flooding problems along the river
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1 for the more frequent flood events.
2 MR. KRAKOWER: Do you believe as a
3 practical matter that the assumptions made
4 by Dr. Waggle with respect to the piers or
5 the columns on which the elevator
6 departments will stand and with respect to
7 the parked cars down on the lower level,
8 that they are practical in the sense of
9 what can and should be expected to happen
10 in the event of future flooding.
11 THE WITNESS: Yeah. I would say
12 that more than likely we're going to have
13 some debris clog. I think everyone
14 experienced that. The public works crew
15 could probably tell you about the debris
16 that had to come off the bridge piers and
17 other items in the flood plain.
18 And I think as a practical matter,
19 if the concern is are we going to increase
20 flooding because of this development at
21 places other than this development, then
22 the pier should be looked at as a practical
23 way and also looked at more frequent or
24 different floods, not just a specific
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1 hundred year that FEMA requested.
2 THE CHAIRMAN: And you're saying
3 that because of cars and debris that
4 Manayunk flooded?
5 THE WITNESS: No, sir, not at all.
6 What I'm saying is that what Dr. Waggle
7 modeled in his computer, he modeled the
8 impact of the piers that would support the
9 buildings. The building would be up above
10 the hundred year flood plain, but in order
11 to do that we need to have piers, columns
12 that would hold the building up. Very
13 similar to what you have along the river.
14 And he modeled the piers as individual so
15 many foot diameter obstructions.
16 But we know from real flood events,
17 and just if you observe the river during
18 that flood event, the amount of debris that
19 was floating down the river, and simply the
20 amount of debris that had to be cleaned off
21 of bridge abutments and bridge railings and
22 sidewalks.
23 It would be a more prudent
24 assumption. The concern is are we going to
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1 make flooding worse. The more prudent
2 assumption would be that those piers not be
3 individual obstructions which would
4 minimize their impact, but as a solid
5 obstruction which, what is appearing to be
6 debris? Based upon the spacing I've seen,
7 the spacing indeed holds up --
8 THE CHAIRMAN: What was that
9 spacing?
10 THE WITNESS: I don't know.
11 THE CHAIRMAN: But you are
12 testifying you --
13 THE WITNESS: Yes, sir, I do.
14 THE CHAIRMAN: But you're
15 testifying --
16 THE WITNESS: What I'm saying is I
17 can't tell you --
18 THE CHAIRMAN: You want to make it
19 solid, but yet you don't know the opening?
20 THE WITNESS: I cannot tell you the
21 exact spacing of the piers on the plan. I
22 couldn't tell you to a per foot. But to
23 support a building of the size that you're
24 proposing, the piers would be certainly
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1 close enough for trees and other debris to
2 lodge on.
3 THE CHAIRMAN: Would a car have to
4 be coming forward to jam or would it be
5 wide enough that the car would get through,
6 but sideways it wouldn't?
7 THE WITNESS: That's an excellent
8 question.
9 THE CHAIRMAN: I know it sounds
10 like we're nitpicking --
11 THE WITNESS: Not at all.
12 Again, the piers are not a single
13 row of piers that you would face -- that
14 the water would face. It's a matrix of
15 piers, one at every third chair throughout
16 the room. So, it is not like there would
17 be four, one at each corner or simply a row
18 on the front of the building. But there
19 would be a series of piers all throughout
20 underneath all of the buildings, so it
21 wouldn't be just one single pier that could
22 collect debris. And if a car is under the
23 building, most likely it would be upstream
24 with at least one set of those piers.
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1 And, again, the question is if
2 there is a concern about increasing
3 flooding elsewhere, we feel that that's a
4 more prudent way to model the impacts of
5 these buildings during a real flood event.
6 MR. KRAKOWER: Mr. Skupien, in
7 addition to the modeling as a solid, solid
8 piece -- instead of simply as piers, is
9 there anything else about the piers and
10 inspection and the safety that's required
11 of those piers that has not been apparently
12 addressed by Dr. Waggle which you believe
13 is important in terms of rescue time, in
14 terms of warning time, and other factors?
15 MR. SKUPIEN: And, again, I
16 understand Dr. Waggle's analysis was done
17 to show compliance with a fairly strict and
18 well defined Federal regulation. But we're
19 looking also in trying to get away a little
20 bit from the technical, and we run a
21 technical analysis to do this. What was
22 the real impact of a flood on the island?
23 What we've looked at is that the
24 U.S. Army Core of Engineer model that
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1 Dr. Waggle based his on, to try to find out
2 a few things. One is how frequently might
3 flooding occur on the island, and what we
4 find out, and it's difficult to say exactly
5 what the number is because the ground
6 surface varies, but we can safely estimate
7 that between a five- and a ten-year flood
8 event will begin flooding on the island.
9 And what that means in probability, these
10 are random events. We may get one every
11 three years and nothing for the next 20.
12 But on average, for instance, over a
13 50-year period, you'd expect five or six
14 flood events. Over a hundred year period,
15 we would expect about ten to 12 flooding
16 events.
17 A better way to put that is perhaps
18 every given year, a hundred year flood has
19 a one percent chance of occurring, but the
20 flood that we feel will begin flooding or
21 cause flooding on the island has about a 15
22 percent chance every year that you are on
23 the island. You're going to face that
24 probability of a flood occurring.
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1 The problem is that once the flood
2 does occur, what we try to do is figure out
3 what that would look like. Every flood is
4 unique. We took a look at the Floyd
5 flood. We got the U.S. Geological survey
6 data on the river for the gauge in
7 Philadelphia, which is downstream of the
8 Wissahickon Creek. When you have a full
9 hydrograft flow record of that event, but
10 also got the hydrograft for the Wissahickon
11 right at its mouth, right where it joins
12 the Schuylkill. So, it wouldn't be too
13 hard to recreate the hydrograft and flow
14 rates that occurred at different times.
15 We found out some very disturbing
16 things. One was to produce that five- or
17 ten-year flood event, approximately a
18 seven- or eight-year event, we would need
19 about 55,000 CFS flowing down the river
20 CFS. CFS is just cubic feet per second,
21 just a measure of the amount water.
22 But we found from the hydrographs
23 from the U.S. geological survey was that
24 that flow rate occurred between 3:00 and
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1 4:00 in the afternoon. What had us
2 concerned is that the first official flood
3 warning of flooding on the Schuylkill in
4 Philadelphia was issued by the Weather
5 Service at 3:54 p.m., and we have copies of
6 all the flood warnings that were issued by
7 the Weather Service. They are the official
8 and only agency that's allowed to issue
9 such a document.
10 So, what we're saying is that what
11 we're finding from our analysis is that at
12 the time when flooding would just start to
13 begin on the island, was the time that the
14 first flood warning was issued by the
15 Weather Service. Now, there were other
16 bulletins issued earlier in the week,
17 Tuesday and Wednesday mornings, talking
18 about the possibility of heavy rain and
19 high winds, and one even talked about Floyd
20 moving into Central Pennsylvania.
21 The first official -- and advising
22 people to stay tuned. We may have more
23 information for you. But the first one
24 didn't go out until just before 4:00 p.m.
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1 on Thursday, and that's just about from our
2 estimates using the core model and the GS
3 data was about when flooding would start to
4 begin on the island, and a few other things
5 is that the river did not crest on the
6 island until one o'clock in the morning.
7 It rose about a foot an hour from
8 my analysis, and I had seen videotapes that
9 indicate further down it breathed even
10 faster, but I'll stick with my analysis.
11 It rose about a foot an hour. And the
12 worst happened at about one o'clock in the
13 morning, and then it receded most likely by
14 daybreak. It was down below the flood
15 stage. But what concerned us was the
16 majority of time that the island was
17 flooded, it was dark. So, not only do we
18 have flood conditions, it was dark.
19 As you know, and everyone was fully
20 aware, we were in a floodway, which is the
21 high velocity zone of the stream. From the
22 Core's model and Dr. Waggle's model we're
23 seeing velocity of about 8 to 10 feet per
24 second, and that's somewhere between five
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1 and seven miles an hour. That may not
2 sound like much, but if a tennis ball hits
3 you, or if a fully loaded garbage truck or
4 freight train is coming at you at five
5 miles an hour, you are not going to be able
6 to resist it. And at eight feet per
7 second, we are very concerned. In fact, I
8 think, personally, it would be impossible
9 to get rescue boats with a river moving
10 that fast. You wouldn't be able to hold
11 steady --
12 MR. KRAKOWER: If you had to
13 rescue people, how would you have to do
14 it?
15 MR. KELSEN: Objection. Is he
16 testifying as a rescue expert?
17 MR. KRAKOWER: He can testify with
18 regard to his opinion --
19 MR. KELSEN: I'm going to continue
20 my objection.
21 THE CHAIRMAN: Objection so noted.
22 MR. SKUPIEN: The last thing is
23 Floyd, from the gauge in Philadelphia,
24 shows that it was approximately a 25-year
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1 flood event. So, again, it was not even
2 the only event that Dr. Waggle addressed.
3 It was about a 25-year event, midway
4 between this threshold flood event, I'm
5 speaking of, and the hundred year that was
6 used to meet the regulation.
7 The last concern then is as the
8 river rose again and people were able to
9 get off, after the flood is over, we would
10 expect that would have taken about a day
11 for the waters to recede enough for the
12 island to dry. You must remember that you
13 can't immediately go back and reoccupy.
14 First of all, the piers have been
15 subjected most likely to debris. That
16 would increase the hydrostatic pressure on
17 the piers and also dynamic floating, being
18 struck by items floating in the river. I
19 know from photographs I've seen about the
20 trailer trucks were literally floating away
21 from the factory during Floyd.
22 So, we're going to have the impacts
23 of those piers. I can't tell you what they
24 are. The main point is that the piers
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1 would have to be inspected prior to it
2 readmitting any of the residents. And then
3 with the high velocities, and particularly
4 with the debris build up, we're going to
5 get even higher velocities. There's a real
6 distinct possibility of scour along the
7 base of the piers, very similar to what we
8 have in bridges, and, again, the
9 foundations would have to be inspected and
10 someone would need to certify that the
11 piers were structurally sound, the
12 foundation was structurally sound before
13 you readmit.
14 I think that in a time limit,
15 that's -- that gives you a good thumb nail.
16 MR. KRAKOWER: In examining the
17 documentation also, do you have an idea or
18 can you tell from the waters that you saw,
19 how much time it would take before the
20 persons could safely return? Would it be
21 something like an hour or something like
22 that or could there be a longer period of
23 time before people would be able to return
24 to their apartments?
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1 MR. SKUPIEN: Yeah. Again, that's
2 going to depend on a number of factors, but
3 I cannot give you an exact time. It would
4 not be as if, let's say you're driving on
5 one of the City streets and a thunder storm
6 causes the storm sewer to backup about a
7 foot or water in the low portion of the
8 road and we just wait until the water goes
9 down and the police open the roadway up.
10 This would be a major flood event
11 where we need to go -- someone would need
12 to be responsible for reentering the
13 island, and, first of all, making sure that
14 the bridges that allow you entry to the
15 island are sound and have not been damaged
16 or displaced. And then doing the
17 inspection and certifying. It would depend
18 upon the extent of the damage as to
19 actually how long, but it certainly would
20 not be hours, I would not expect, in order
21 to insure a thorough job that you can
22 standby and insure nothing would go wrong.
23 THE CHAIRMAN: During Floyd, was
24 there any permanent damage done or any
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1 inspectors went in and inspected after that
2 before Manayunk opened up or Main Street
3 opened up?
4 MR. SKUPIEN: There was nothing
5 built -- the houses weren't built on Venice
6 Island at that time.
7 THE CHAIRMAN: I'm just saying --
8 THE WITNESS: I understand you have
9 a recreation center because I walked by on
10 the island, and I know that was impacted by
11 Floyd. And, again, flood waters --
12 THE CHAIRMAN: How was it
13 impacted?
14 THE WITNESS: Well, again, flood
15 waters are certainly not the cleanest
16 waters, particularly the cells carrying all
17 the sediment. Sanitary sewers are very
18 well known to backup and overflow during a
19 flood event, and then toxic or hazardous
20 materials that may be in factories, either
21 on the island or anywhere and storm water
22 permits because of the unsanitary or
23 possible toxic conditions, so the sediment
24 that's left behind would have to be cleaned
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1 off and also examined to make sure that
2 there were no hazardous or unsanitary
3 materials.
4 We're experiencing now in New
5 Jersey with Floyd flood damage inside of
6 walls with mold, simply because of the
7 dampness that's now starting to cause a
8 health hazard to the people that are
9 working and living there. So, the flood
10 impacts can't simply be put into a Federal
11 regulation, all of them.
12 And, again, we tried not to simply
13 look at the hypothetical floods, which you
14 must, that gives us a picture of the future
15 and it complies with the regulations. But
16 we try to go back and look at the real
17 thing to see what really would have
18 happened there under a real flood events as
19 opposed to arguing the hundred year peak
20 rates for 25.
21 MR. KRAKOWER: When you did your
22 report on the island, did you take any
23 samples --
24 THE WITNESS: No, no. I'm simply
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1 trying to point out that it is simply not a
2 matter of waiting for the water to go down
3 before reentering the island. There are
4 some things that are needed to be done.
5 And, in my opinion, it is not a matter of
6 is this going to flood or not. It will
7 flood again, particularly within a fifth
8 year -- with a seven or eight year capacity
9 level, unless we have a radical climate
10 change and all the flow records and all the
11 historic data we have about the Schuylkill,
12 somehow radically changed by some
13 calaminous change in the climate, the
14 island will flood again.
15 So, we just wanted to point out
16 what that meant, not in terms of modeling
17 terms of Federal regulations, but since
18 this is a city interest, what it meant to
19 the people in the government.
20 MR. KRAKOWER: Excuse me. To cut
21 to the chase, which is why we are trying to
22 keep this thing going, you are standing
23 here, you are very good and you are
24 painting a great picture, but it's kind of
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1 like running with scissors. And people run
2 with scissors all the time, and yet we all
3 know the danger of running with scissors,
4 so how dangerous are we? You know we're
5 under oath. What happened previously for
6 hundred years? Was there ever a disease --
7 THE WITNESS: That's an excellent
8 question. And I think it involves -- and
9 I'll bring some of my planning credentials
10 in here and also my experience with the
11 flood events, and that is we do not have --
12 we will no longer have, let's say, an
13 industrial use or commercial use.
14 Where you have a single owner, and
15 most likely from the scope of the buildings
16 that were there, intime maintenance and
17 operation staff that can monitor weather
18 reports, supervise the ground and basically
19 order employees out. There's a management
20 structure and a communication structure and
21 an organization structure that can keep an
22 eye out for floods, and then organize some
23 kind of response in safety efforts and then
24 evacuation and response efforts.
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1 Here we're dealing with residents,
2 which will not be as organized. It's not a
3 matter of don't show up at work today
4 because the foreman called and we're closed
5 because of the flood. The flood warning
6 may be issued at two o'clock in the morning
7 on a morning in January when it's snowing
8 out and you are asleep. The only way you
9 will know that the warning is issued is
10 that, well, it happened to come over the
11 weather radio or weather channel, but you
12 are asleep and you don't even know that.
13 So, the character that changes use
14 or the character of the island is what has
15 us concerned as well, that you don't have
16 an organized and disciplined and
17 inhabitance, workers there that have some
18 type of communication and management
19 infastructure in place. We have simply
20 residents living on an island.
21 MR. KRAKOWER: You're increasing
22 the exposure?
23 THE WITNESS: It certainly is a
24 different exposure that has us very
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1 concerned.
2 MR. KRAKOWER: All right. Just one
3 other thing I want to ask. I have some
4 photographs which have been marked P-1.
5 MS. JAFFE: What is the number on
6 the first submission?
7 MR. KRAKOWER: Let's mark these
8 P-1. Today is 6/12.
9 MS. JAFFE: Which ones?
10 MR. KRAKOWER: The ones I'm going
11 to hand up now. I don't have those numbers
12 from the last group.
13 MS. JAFFE: When you just handed up
14 today? That should be P-1.
15 MR. KRAKOWER: The report was P-1.
16 This should be P-2.
17 (Photographs marked for
18 identification as Exhibit Number P-2.)
19 MR. KRAKOWER: These are marked
20 P-2, and I would ask you if you can look at
21 these and tell me if they accurately
22 reflect, from your experience, the kinds of
23 debris that come down a river in a case of
24 flood, and I'm going to particularly ask
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1 you to look at the second page.
2 If the members of the Board have
3 any of these?
4 MR. CHAIRMAN: We have them.
5 MR. KRAKOWER: If you look at the
6 second page dated January 2, 2000, a
7 picture taken from an angle of a large tree
8 wedged underneath the East Falls Bridge.
9 Do you see that?
10 THE WITNESS: Yes.
11 MR. KRAKOWER: Now, and also in
12 some of the other pictures, the rest of
13 P-2.
14 THE WITNESS: The picture on Page 2
15 is very remarkable that it managed to wedge
16 itself exactly between to piers.
17 MR. KRAKOWER: And also on
18 Page 1 --
19 THE WITNESS: Yeah, that's what
20 we're speaking of. These piers are tens of
21 feet apart, which would allow most of the
22 debris to pass through them. Piers that
23 would be under the building would be much
24 closer. And more likely what you see on
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1 Page 1 are individual piers that are
2 collecting individual amounts of debris.
3 That would be -- that would be
4 what's most likely to happen, and debris is
5 very cumulative. Once one large piece gets
6 caught then smaller pieces that would have
7 made it out can't and they begin to pile up
8 as well, and the likelihood of debris
9 accumulation increases as it accumulates.
10 MR. KRAKOWER: Would you look at
11 the last page. There's a picture of an
12 automobile. Would a flood of the 25-year
13 category be able to push an automobile
14 under the water and down the river such as
15 this indicates?
16 THE WITNESS: Again, depending upon
17 exactly where on the island, but I've seen
18 high watermarks at the site of the 4601
19 Flat Rock Road site, which indicates from
20 Floyd about five or six feet of water, and
21 particularly the velocity of the poor
22 modeling and Dr. Waggle's modeling. That's
23 certainly enough to move in that
24 situation.
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1 If I can add just one more point, I
2 know we're running out of time. In
3 reviewing the City's own flood plan
4 regulations, carrying them to the Federal
5 criteria, Federal regulation, if Dr. Waggle
6 had to address, I was hard to see in it
7 your rule and regulations where it said
8 that it recognized the severe nature of a
9 floodway, the critical nature of keeping
10 the development additament, because it says
11 right in the City's own regulation not
12 simply that, well, can you build in a
13 floodway, that high velocity zone, you can
14 build if you can show no increase, which is
15 what the Federal requirements say.
16 What the City's regulation reads,
17 as I read it, was that in a floodway, no
18 development is permitted. There was an
19 exception given to utilities, if they can
20 beat the no increase, because if we can
21 armor or protect the utility good enough,
22 you can hopefully prevent it from being
23 damaged. But it says any other kind of
24 development or obstruction is simply
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1 prohibited. And I was hardened to see that
2 because there is much more at risk or at
3 stake here with development of floodway
4 other than simply raising the water
5 levels --
6 MR. KRAKOWER: Excuse me. Could
7 you just briefly give us your professional
8 definition of the difference between a
9 floodway and a flood plain or a flood plain
10 bridge?
11 THE WITNESS: You know, it's very
12 similar -- FEMA calls it a floodway or a
13 flood bridge. The City calls it a floodway
14 or a floodway bridge, and they're talking
15 about the same two basic zones of a river's
16 flood plain. The flood plain is the entire
17 area that would be flooded by water up to a
18 certain level. And the floodway is the --
19 let's call it the center portion of that
20 flood plain.
21 That identifies that there are
22 fringe areas of the flood plain that aren't
23 really carrying water. They're wet.
24 They're below the high water level, but
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1 they're out on the fringes of the
2 velocity. They're slowing. They're not
3 really that vital to for carrying water.
4 If you are standing there, you'll be
5 flooded, but the velocities will not be
6 high. The floodway is mathematically
7 determined with computer models to be that
8 portion of the flood plain that's vital for
9 carrying the flow down.
10 Literally what we do is we squeeze
11 mathematically. We narrow the flood plain
12 until the river starts to rise, and we say,
13 all right, stop. That zone, the higher
14 velocity zone that's moving water
15 downstream, that's the floodway, and that's
16 a much more critical zone to be in. It's
17 much more dangerous. It's closer or in the
18 channels so it's deeper, much higher
19 velocity.
20 It's very similar to -- on
21 Interstate 95, the shoulders of the road
22 are important for carrying traffic through
23 the City, but if there happens to be
24 something happening on the shoulder, then
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1 we can close the shoulder for this
2 morning's rush hour and we'll be okay. But
3 the lanes on the highway, that's the
4 floodway. If we close the lane, we go over
5 a flood -- that's a simple distinction
6 between floodway and flood plain, and
7 that's why the City's own requirement says
8 that. In the fringe, just the --
9 THE CHAIRMAN: The witness has had
10 a half hour of time.
11 MR. KRAKOWER: I think this is an
12 important witness, Mr. Chariman.
13 THE CHAIRMAN: We know the
14 difference between a floodway and flood
15 plain --
16 MR. KRAKOWER: Are you -- is there
17 any other area of the Schuylkill River in
18 the City of Philadelphia that you're
19 familiar with which has a floodway on which
20 properties would be erected and which
21 buildings would be erected?
22 THE WITNESS: If you don't mind,
23 sir, what I'll do is is I'll turn that
24 around: The floodway, right at Venice
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1 Island, right through the Manayunk area is
2 a special type of floodway from what we are
3 normally used to seeing on many rivers
4 where the flood plain is very wide and
5 broad and flat, and the floodway of that
6 flood plain may occupy the center 25 or 30
7 percent.
8 At the Manayunk neighborhood, right
9 at Venice Island, we have a very narrow
10 flood plain. It's very, very high bend
11 slopes, behind that. So, the floodway and
12 the flood plain are virtually the same.
13 Because there isn't -- there is not much of
14 a low velocity zoning there. Simply
15 because we're trying to take water from the
16 broader -- wider flood plains, and we have
17 to take that same flow rate through a
18 narrower, smaller area, the water simply
19 has to go faster. So, literally the entire
20 flood plain at that location is the
21 floodway.
22 MR. KRAKOWER: Is there anything
23 unique about the twisting or curvature or
24 shape of the Schuylkill River at that
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1 location that makes it particularly
2 dangerous as far as the floodway is
3 concerned?
4 THE WITNESS: You can always
5 characterize a bend as being more
6 dangerous, but I think it's primarily just
7 the overall geological characteristics of
8 that valley and the velocities that the
9 water would have to travel in order to move
10 that amount through.
11 MR. KRAKOWER: I'll ask you one
12 last question: From all that you know in
13 your training and what you've examined, do
14 you believe that while -- if you concede
15 that Dr. Waggle's report and opinion
16 technically satisfy the mathematics of
17 FEMA's requirement, do you believe that as
18 a practical matter, they are sound and wise
19 and something that you would rely on with
20 regard to whether there will be any
21 flooding or raising of the river?
22 THE WITNESS: Considering the first
23 point, that's difficult because I haven't
24 had the actual input and data -- I see the
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1 contact numbers. I cannot comment on
2 technical aspects.
3 But on the presumption that it is,
4 again, yes. Flood plain flooding in the
5 United States is a very, very severe
6 problem. That's where the river flood
7 insurance program came from. And Federal
8 government and state governments are
9 spending millions of dollars in not trying
10 to lower flood waters, but to move people
11 out of the flood plains through buyouts.
12 New Jersey right now roughly has
13 had to spend $16 million to move people out
14 of the river flood plain from the damage
15 due to Floyd. It's FEMA's primary concern
16 to take existing development, get it out of
17 flood plains. So that just in that context
18 building new housing, particularly housing,
19 not commercial or industrial in a flood
20 plain, and not only just a flood plain, but
21 in a floodway, yes, I don't think this is
22 sound -- sound planning or sound flood
23 planning management.
24 MR. KRAKOWER: Thank you.
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1 MR. KELSEN: Mr. Skupien, is it
2 fair to say that you have not had a chance
3 to review Dr. Waggle's full technical data
4 in making your assumptions?
5 MR. KRAKOWER: I object to the form
6 of that question.
7 THE CHAIRMAN: So noted. Answer
8 the question.
9 MR. SKUPIEN: Yes, sir. I've seen
10 all of the output that's been submitted to
11 all of the agencies and the plots and the
12 diagrams, and I've seen his summaries and
13 conclusions in his report. The only thing
14 that I have not been able to get a hold of
15 is, and that is the actual input, every
16 input number that went into the model. And
17 Dr. Waggle took the existing core model,
18 the official FEMA delineation model and
19 converted it over.
20 MR. KELSEN: Are you suggesting
21 that Dr. Waggle's information is not
22 correct?
23 THE WITNESS: No, sir. I'm saying
24 I have not had the opportunity to make that
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1 determination.
2 MR. KELSEN: So, your testimony
3 today is based on some speculation as that
4 what could happen in a flood situation
5 based on prior events?
6 MR. KRAKOWER: Objection. That's
7 not what his testimony is.
8 MR. GOLL: Our testimony is --
9 MR. KELSEN: Excuse me, sir. This
10 is not a tag team match.
11 THE WITNESS: What I've tried to do
12 is take the exact same core of engineers
13 model that Dr. Waggle used as his basis for
14 his study and what he simply did from his
15 reports is add the existing and the
16 proposed buildings to it, but he changed no
17 other characteristic.
18 I'm taking that model data, plus
19 the official flow record recorded by the
20 U.S. geological survey during Floyd and the
21 official National Weather Service that were
22 issued during Floyd trying to recreate what
23 happened and what would have happened on
24 the island had -- well, what happened on
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1 the island for real and what would have
2 happened, how that would have impacted any
3 residents that might have been there.
4 MR. KELSEN: So, you are not
5 testifying as to whether or not the
6 calculations with regard to any increase of
7 the floodway level would be made or not
8 made as a result of these developments; is
9 that correct?
10 THE WITNESS: Right. My suspicion
11 is that the development is going to raise
12 flood waters, but, again, without having
13 the exact input data to compare with it, I
14 can't confirm those suspicions. That's why
15 I've listed them as questions that should
16 be raised at some point in the analysis.
17 MR. KELSEN: You are aware that
18 FEMA reviewed this extensively and asked
19 for additional data and their conclusion is
20 very clear that this would not raise the
21 flood --
22 MR. KRAKOWER: I'm going to object
23 to that conclusion. I have a letter from
24 FEMA. We'll introduce that.
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1 MR. KELSEN: Do you have that
2 letter, Mr. Skupien?
3 MR. SKUPIEN: Yes, I have it right
4 here.
5 BY MR. KELSEN:
6 Q. And is it your testimony that the FEMA
7 reviewers in finding that there will not be an
8 increase in regulatory flood rate are incorrect?
9 A. No, sir.
10 Q. Let me ask you this: You modeled this on a
11 25-year flood level?
12 A. After reviewing the range of flood events
13 from one thousand CFS flood, which I don't really
14 have a frequency -- it's too often -- all the way
15 up to the hundred year flood events, then taking
16 that data and the flow records from the geological
17 survey, recreating in the river the Floyd flood,
18 yes, which was about a 25-year.
19 Q. Is a hundred year flood a more severe flood
20 than a 25-year flood?
21 A. Severe in terms of depth and flow rate,
22 certainly.
23 Q. And how is the FEMA model, on the basis of
24 what scenario, a hundred or a 25-year flood?
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1 A. Well, the flood insurance studies that FEMA
2 does, and there is one for Philadelphia -- I have a
3 copy of it here. They actually model four flood
4 events to try to give the communities that are in
5 the insurance program some idea of the flood
6 rates. There was a ten year flood, which is less
7 severe than the 25, more likely to occur. The 50
8 year, a hundred year and the 500 year, and that's
9 to give the communities a picture of what those
10 flood levels might be. And then when they begin --
11 when they start to apply the restrictions to
12 development or require flood insurance, that's
13 applied to the hundred year flood events only for
14 flood insurance.
15 Q. And a hundred year flood is a more severe
16 flood than a 25-year flood?
17 A. Yes.
18 Q. And Dr. Waggle made his calculations based
19 on a hundred year flood?
20 A. Yeah. Because he was trying to meet the
21 FEMA regulations.
22 Q. Well, it seems to me that from an
23 engineering standpoint that if you model a scenario
24 based on a much more severe flood and you calculate
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1 any increases and flow rates based on that,
2 wouldn't you get a worse picture than if you
3 modeled a 25-year flood?
4 A. Not necessarily. Open channel flow -- I'm
5 going to say water. I'll restrict it to open
6 channel flow is -- how do I say it? I'm not a
7 linear relationship between depth and flow. Things
8 can happen at one flow level or an impact can
9 happen at one flow level that later on, because of
10 the increase in water, increase in available flow
11 area, the impact is not as severe.
12 So, no, the only way you can really
13 determine if a certain activity won't cause
14 problems for any flood is essentially not analyze
15 every flood, analyze a range of them. A typical
16 analyses would include a two, a 10, a 25, a 50, a
17 hundred and then you can interpolate in between
18 those. But to simply take a large flood event and
19 say that would address all impact is not really
20 correct.
21 Q. Is it your testimony that the engineering
22 analysis that went into Dr. Waggle's study to show
23 that there would be no regulatory increase may not
24 be correct as it turns out for 25-year flood?
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1 A. Yes, it may not be. Well, again, I don't
2 know of a FEMA regulation regarding impacts to a
3 25, but let's say I'm not sure that with
4 Dr. Waggle's analysis that we would not see an
5 increase in a 25-year flood.
6 Q. And that would be 25-year increase of
7 flooding on a 25-year basis on this site that we're
8 talking about today, Venice Island?
9 A. Yes, sir.
10 Q. Okay. Have you looked at the plans of
11 development for Venice Island as proposed by, on
12 the Namico site?
13 A. Not all of the detailed plans that
14 obviously are going to be used before the
15 commissioner that build the site. I have looked at
16 the plans that were satisfactory from my analysis,
17 where on the island and how big and where they
18 relate to the different models.
19 Q. What plans did you look at -- with regards
20 to the redevelopment of the Namico site, what plans
21 did you look at?
22 A. Primarily the cross-sections in Dr.
23 Waggle's report and planning, the plan used in his
24 report that locate the different developments on
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1 the island, and most specific or most particularly,
2 locate the size of the buildings and the location
3 of the buildings particularly relative to the
4 cross-sections.
5 Q. Were you aware of the amount of obstruction
6 that would be removed from the Namico site in
7 forming your analysis?
8 A. Yes. Having visited the island with the
9 cross-section information in Dr. Waggle's report,
10 you could see -- well, it was clear to see what was
11 there now and how it would change. And Dr. Waggle
12 made a good -- made a good demonstration in his own
13 model analysis by presenting those cross-sections
14 from how that geometry would change.
15 Q. Is it your expert opinion that the removal
16 of the obstructions on the Namico site would
17 benefit the floodway situation?
18 A. Oh, certainly. We can increase the flow
19 area of the floodway will certainly make things
20 better. I mean, there are some anomalies sometimes
21 in the computer alberisms that would show a slight
22 change. But that's mathematics. That's not
23 hydraulics.
24 Q. Did you factor in the spacing between the
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1 piers on the Namico development in making your
2 determination?
3 A. Well, again, I did not model -- I did not
4 model the new buildings that were being proposed in
5 the core model. And I'm simply pointing out that
6 in Dr. Waggle's analysis of those buildings, he
7 analyzed the piers as individual obstructions. And
8 I can get the spacing off the cross-section data.
9 I'm saying that if you are interested in finding
10 out exactly how much of an increase may occur, it
11 would be more prudent to analyze those piers as a
12 solid mass.
13 Q. But you didn't do that?
14 A. Well, again, I did not have his data in
15 order to change it to see what it would be.
16 Q. So, there's no definitive statement that
17 you can make as to whether or not they would create
18 problems?
19 A. The definitive statement is that it would
20 reduce the floodway area even more than they would
21 as individual piers, and it may cause an increase
22 and it should be investigated.
23 Q. Would it cause more of an increase if it
24 was solid structure as exists now?
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1 MR. KRAKOWER: I object. It's not
2 a solid structure.
3 THE WITNESS: There is no structure
4 there now. If there is an existing
5 building there now, that the apartment is
6 going to be replaced, obviously not.
7 BY MR. KELSEN:
8 Q. Well, you looked at the site. What did you
9 see then?
10 A. Well, there are development -- the
11 footprint of the new buildings and the footprint of
12 the old buildings aren't exactly the same. So,
13 there are portions of the island that don't have
14 buildings now that will.
15 Q. And there are portions of the island that
16 do have buildings now that won't have buildings
17 later; is that correct?
18 A. Yes.
19 Q. So, it's fair to say, basically, that you
20 didn't really model what's existing now and what's
21 proposed in terms of its impact on floodway; is
22 that correct?
23 A. Yes, sir.
24 Q. Are you a structural engineer?
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1 A. No, sir.
2 Q. So your testimony with regard to any
3 potential damage to the pier structure, the
4 foundations is really speculation; is that correct?
5 MR. KRAKOWER: Objection.
6 THE WITNESS: No, sir. My
7 testimony is is that someone will have to
8 go out and conduct an inspection of the
9 piers to make sure that they are not
10 subject to damage. I'm not saying that
11 what would you find or how you would
12 conduct that inspection and that is
13 standard for the Public Works departments
14 on any type of road or bridge or building
15 that is inundated by flood waters before
16 the road can be open. Somerset County, New
17 Jersey, before a road is open after a flood
18 event, the engineer has to go out and
19 inspect the bridge and make sure it's safe
20 to go over. That's my testimony.
21 BY MR. KELSEN:
22 Q. So, you're basically saying that this is
23 what happens in the past, but you have no idea as
24 to the engineering impact that these piers could
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1 withstand; is that correct?
2 A. Certainly I don't know how they're going to
3 be. I'm presuming they are going to be built, you
4 know, strong to hold the building up. What I'm
5 getting at is there's a responsibility that someone
6 is going to have to undertake to go out and inspect
7 those piers following a flood to verify that the
8 buildings are now safe and would allow people to
9 reoccupy them.
10 Q. Do you have any reason to believe that
11 someone wouldn't do that?
12 A. Oh, no, not at all. Again, pointing out
13 that that's going to be one of the impacts of the
14 development to the City.
15 Q. Are you aware that as part of the approval
16 of the Namico project there was, in fact, an
17 evacuation plan? Were you aware of that before you
18 made you're analysis?
19 A. No, sir. I would hope that there is,
20 certainly.
21 Q. Are you aware that at the time of the rise
22 of Floyd was 15 hours from the start to peak?
23 A. Yeah, if I took a look at the hydrographs
24 here, I could probably come up with an estimate.
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1 I'm not sure of that number.
2 Q. Do you have any reason to believe that
3 number is incorrect?
4 A. That sounds -- again, the majority of rain
5 from Floyd basically fell -- the first rain shield
6 moved in about midnight on Thursday. But about 90
7 percent of the total rain fell somewhere between
8 6:00 in the morning and 6:00 in the evening, give
9 or take a few hours. And a river the size of the
10 Schuylkill, it's about 1900 square miles. That 15
11 hour rise is a reasonable number. That would sound
12 like what the Schuylkill has done in the past.
13 Q. Is it your understanding as an expert in
14 hydrology that rivers don't rise immediately; it
15 takes them time to rise?
16 A. Certainly. In fact, that was a problem
17 back in New Jersey, in Bound Brook, if you saw the
18 flooding in Bound Brook -- by the way, Floyd on the
19 Schuylkill was about a 25-year flood event. Our
20 conversations with the core of engineers and the
21 U.S. geological survey indicate that the Floyd
22 flood on the river in Bound Brook was about a 500
23 year event, and that was simply because there was
24 more rain over there.
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1 Now, what happened in Bound Brook
2 was, is that -- yeah, there is a lag because
3 unfortunately in Bound Brook the rain was over by
4 about six o'clock in the evening and people had
5 been evacuated earlier that afternoon, saw the rain
6 end. And many of them were caught in the flooding
7 because they looked up and saw the rain was ending
8 and went back to their homes. The flooding there
9 hadn't even started yet.
10 So, yeah, there is definitely a
11 lag, and that creates a lot of misunderstanding and
12 communication problems during a flood.
13 Q. Who normally identifies to individuals that
14 the river is in a floodway situation, in a flood
15 situation?
16 A. The only agency that I know that has
17 authorization to issue an official flood warning
18 that uses that terminology would be the National
19 Weather Service.
20 Q. And do they commonly issue warnings about
21 floods?
22 A. Oh, yes. And, in fact, like I said, in our
23 report, we have copies of -- it's either four or
24 five of them. The four or five that were issued
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1 during Floyd.
2 Q. You made a statement that you had concern
3 that this property -- I'm only talking about the
4 Namico property. People would get notice that
5 there would be nobody on site, that they would have
6 to -- they could be asleep and they'd have to get
7 radio information. Do you have any idea how this
8 property is going to be managed?
9 A. No, sir.
10 Q. Just speculation that this could happen?
11 A. Yeah.
12 Q. You're not aware that there could be
13 anybody on site 24 hours a day giving information
14 to the residents with regard to any flood
15 situation, are you?
16 A. No, sir. My concern also would be the
17 residents that would not be home and wouldn't be
18 able to --
19 Q. Well, if they're not home, sir, what's the
20 problem?
21 A. Again, according to the --
22 Q. If their automobiles were left behind and
23 they're out having dinner or somewhere visiting,
24 they wouldn't be able to move personal property off
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1 the island. How about towing operations; can
2 towing operations take cars off the island if
3 people aren't there?
4 A. Given enough advanced warning, yes.
5 Q. Any reason to believe there wouldn't be
6 enough advanced warning on a 25-year flood to take
7 cars off?
8 A. Yes. Again, from the U.S. G.S. hydrographs
9 that were reported on the river and my analysis of
10 them, it appears that the flooding -- that we
11 reached a threshold level of flooding on Venice
12 Island during Floyd at about the same hour that the
13 first flood warning was issued by the weather
14 service.
15 Q. How high was the water?
16 A. I would say over the top of the banks,
17 upstream of the Cotton Street Landing project. I
18 can give you exact cross-section numbers.
19 Q. How about right where the Namico apartments
20 are scheduled to be built?
21 A. I will profess some ignorance here. I know
22 the project names by their names.
23 Q. I'm talking about the soap factory?
24 A. That would be the 4601 Flat Rock Road.
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1 That was one of the cross-sections that we found on
2 the island. That wound there, 76046, I believe
3 it's just upstream of where that -- where the soap
4 factory is. It was one of the first to have
5 flooding occur.
6 Q. How long did it take for water to reach a
7 one foot elevation at the area where the Namico
8 building itself is?
9 A. My analysis from what I have available
10 showed about one foot per hour.
11 Q. What I'm asking you is, how long did it
12 take to reach that point on the building based on
13 your model?
14 A. To rise to that one foot, about an hour.
15 Q. No. Let me ask it again.
16 A. Oh, from the beginning of the flood of it?
17 Q. That's right.
18 A. Well, it would take, you know, once the
19 rain began and once the stream would rise, if your
20 15 hour estimate is proper, it would have taken 15
21 plus one, let's say 16.
22 Q. The problem is that we don't know until it
23 begins to flood whether it's going to flood?
24 A. There's a problem --
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1 MR. KELSEN: I have nothing else.
2 THE CHAIRMAN: Thank you, sir.
3 MR. KRAKOWER: Well, let him finish
4 his answer.
5 MR. SKUPIEN: In Bound Brook, and
6 I'm sure you all watched it on CNN, the
7 flood stage on the Rariton River in Bound
8 Brook is about 30 feet. It's official
9 stage is about 1,000 feet, but it takes
10 about 30 feet to begin flooding in Bound
11 Brook on Main Street. And the original
12 flood warnings that have been issued by the
13 weather service was for about 30 feet, and
14 that was issued early Thursday morning.
15 The final flood warning issued by
16 the weather service was sometime about 12
17 hours later, Thursday night at just below
18 where it had crested, which was 42 feet.
19 So, the weather service's first estimate of
20 a flood warning height and ultimate flood
21 height was 30 feet originally in Bound
22 Brook, and it wound up 12 hours later being
23 12 feet higher.
24 MR. KELSEN: We're not talking
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1 about Bound Brook.
2 MR. SKUPIEN: So, it's not a
3 precise science as far as issuing flood
4 warnings.
5 MR. KELSEN: I think it's very
6 critical for this record that we talk about
7 the Schuylkill River, which seems to be a
8 very different river than the river in New
9 Jersey that you are referring to.
10 How much time in your estimation
11 would an individual residing within the
12 Namico property have before the flood
13 waters reached the elevation of one foot at
14 the area where the apartment building is to
15 be created?
16 THE WITNESS: I cannot give you an
17 exact answer to that simply because I don't
18 have all the exact plans you have. Show me
19 the exact elevation.
20 But I would say if you were relying
21 on past events during Floyd and the timing
22 and the accuracy of the weather service, I
23 would say a few hours at the most.
24 MR. KELSEN: I have nothing
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1 further.
2 MR. KRAKOWER: Can I clarify
3 something? Is Mr. Sklaroff going to then
4 cross-examine Mr. Skupien later?
5 MR. SKLAROFF: Yeah. I'm not going
6 to cross-examine him now. I was not
7 permitted to -- we aren't permitted to
8 consolidate.
9 MR. KRAKOWER: Now, let me ask you
10 one other thing, since Mr. Kelsen asked you
11 about correspondence from FEMA to the City
12 of Philadelphia.
13 I think you made reference to a
14 letter dated May 15, 2000?
15 THE WITNESS: Yes.
16 MR. KRAKOWER: Would you look at
17 the second paragraph --
18 MR. SKLAROFF: Why don't we mark it
19 for identification -- we hand the whole
20 thing up to the Zoning Board, since this is
21 the critical letter.
22 MR. KRAKOWER: I have a copy for
23 the Zoning Board.
24 MS. JAFFE: Is it the same letter
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1 that was attached to your report?
2 MR. KRAKOWER: Yes.
3 MR. KELSEN: It should be separate,
4 because I think it's the response the
5 Zoning Board was waiting for.
6 MR. KRAKOWER: What are you marking
7 this as, P-3. I have copies for the Zoning
8 Board. It should be four of them.
9 And would you just identify in
10 paragraph 2, the first sentence of
11 paragraph 2, if you read that, do you
12 consider this letter to be an approval of
13 the proposed project?
14 MR. KELSEN: Objection, objection.
15 The letter speaks for itself, FEMA is not
16 charged to do projects. They are charged
17 with determining whether or not the
18 engineering complies with the Philadelphia
19 regulations and FEMA regulations.
20 So, it's disingenuous, Stanley, to
21 have it sent as an approval or disapproval
22 letter.
23 MR. KRAKOWER: It's what the letter
24 indicates.
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1 THE CHAIRMAN: What was your
2 question, Mr. Krakower?
3 MR. KRAKOWER: My question to the
4 witness was whether the letter from FEMA is
5 consistent, from your knowledge, with
6 FEMA's approach to water problems to flood
7 problems?
8 MR. KELSEN: If he asks that
9 question, I'll let him answer it. But it's
10 not the same question we had before.
11 THE CHAIRMAN: The other question
12 will be stricken from the record.
13 MR. KRAKOWER: I have another
14 letter which I'm going to mark P-4, and one
15 from Mr. Kelsen and one for Mr. Sklaroff.
16 I'm going to ask him if he's
17 familiar with the letter from Director Witt
18 of FEMA to Mayor John Street, which is
19 marked P-4.
20 THE CHAIRMAN: You're asking him a
21 question on this thing?
22 MR. KRAKOWER: Oh, on this one.
23 THE CHAIRMAN: Do you understand
24 the question?
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1 THE WITNESS: Yes. I would say
2 that from the letter, it does not give
3 approval to the project. It simply says
4 that the technical requirement of Title 44
5 of the code of FEMA regulation 60.3(e) has
6 been met. Particularly, since the second
7 paragraph begins with this is not an
8 approval of the proposed project. I would
9 have a hard time saying that FEMA has
10 approved the project.
11 MR. KELSEN: Do you know if it was
12 submitted to FEMA for approval?
13 THE WITNESS: I'm presuming that's
14 what the effort --
15 MR. SKLAROFF: No, that's not the
16 correct assumption. I'll cross him again.
17 MR. KRAKOWER: If I may, I have a
18 letter marked P-4, which is a letter to
19 Mayor John Street from the Director of
20 FEMA, and I'm going to ask --
21 MS. JAFFE: P-5.
22 MR. KRAKOWER: This is P-5 now.
23 MR. SKLAROFF: Off the record.
24 (Discussion off the record.)
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1 MR. KRAKOWER: The May 15th is
2 P-3. This one dated June 9th, I have down
3 as P-4. This is P-4. It's the letter
4 dated June 9th.
5 And I believe the Board has a
6 letter dated June 9th to Mayor Street.
7 Does the Board have that?
8 THE CHAIRMAN: Yes, we have.
9 MR. KRAKOWER: Okay. Mr. Skupien,
10 have you seen this letter marked P-4 dated
11 June 9th?
12 THE WITNESS: Yes, sir.
13 MR. KRAKOWER: All right. From
14 your knowledge of FEMA and FEMA's operation
15 and water, et cetera, do you believe that
16 the -- that this letter from FEMA's
17 director is an indication that is positive
18 or negative with respect to what the City
19 should do with the current applications.
20 MR. KELSEN: Objection, objection.
21 I think the letter speaks for itself. He
22 is not qualified to get into the mind of
23 the Director of FEMA.
24 MR. KRAKOWER: I suggest he's
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1 qualified --
2 THE CHAIRMAN: What's your opinion
3 of the letter, sir?
4 THE WITNESS: It's certainly urging
5 the City to reconsider and not allow it to
6 happen. There seems to be two issues
7 here. One is FEMA pointing out the efforts
8 that they are doing, particularly in
9 Pennsylvania to try to remove houses from
10 flood areas, talking about how an approval
11 of a project would move Philadelphia in the
12 opposite direction than that what FEMA's
13 trying to accomplish, and also what the
14 City exemplary flood work is, and I have to
15 agree is trying to adopt -- is trying to
16 accomplish.
17 And so it says that, from those
18 purposes, this seems to be counter
19 productive and also showing -- pointing out
20 that the City may be liable for whatever
21 damages. It then goes onto hit a second
22 point.
23 MR. KELSEN: Mr. Chairman, I'm
24 going to object. He's not answering the
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1 question.
2 THE CHAIRMAN: We can read the
3 letter. What else, Mr. Krakower?
4 MR. KRAKOWER: That's all I have
5 with this witness.
6 MR. KELSEN: Let me ask one more
7 question.
8 BY MR. KELSEN:
9 Q. Mr. Skupien, are you saying that
10 applications in this Namico case were submitted to
11 FEMA for approval?
12 A. Certainly not.
13 Q. Okay. What do you submit to FEMA? What
14 did Dr. Waggle submit to FEMA?
15 A. I have no idea.
16 Q. You reviewed what you did?
17 A. No. I reviewed what Dr. Waggle submitted
18 to the --
19 Q. Isn't that what he submitted to FEMA?
20 A. I have no idea.
21 Q. So, your testimony today is really just
22 based on speculation because you're not referring
23 to anything that may have been submitted to FEMA;
24 is that correct?
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1 A. No, excuse me. If you were to ask me -- I
2 apologize. I thought you were asking me for the
3 exact approval that Dr. Waggle's analysis -- that
4 was submitted to FEMA. I have copies of everything
5 that was submitted to FEMA. I thought you were
6 asking me for the exact statute or degree or
7 description of the approval that was being sought.
8 I am very familiar with what Dr. Waggle submitted
9 to FEMA and what FEMA reviewed and what their
10 response was.
11 Q. And what is FEMA charged with doing on such
12 an application, such as Dr. Waggle?
13 A. To determine primarily -- well, I don't
14 want to cite the regulation.
15 Q. Just tell me exactly what was said.
16 A. Any activity, any fill activity in a flood
17 plain does not create an increase in hundred year
18 water floods.
19 Q. And what did FEMA respond?
20 A. FEMA's letter responded back that they
21 appear to agree with Dr. Waggle's analysis.
22 MR. KELSEN: I have nothing
23 further.
24 THE CHAIRMAN: Thank you.
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1 MR. SKLAROFF: Mr. Chairman, just
2 to, I think move this along at this point,
3 I've changed my view and I have a request.
4 If I could ask questions on
5 cross-examination, I think it would avoid
6 having it repeated entirely because this
7 has gone over long.
8 THE CHAIRMAN: So, you will have to
9 do it in your case?
10 MR. SKLAROFF: Yes. So, we'll
11 incorporate the direct and Mr. Kelsen's
12 cross at this point.
13 BY MR. SKLAROFF:
14 Q. You are familiar as well with the Cotton
15 Street Landing Development?
16 A. Yes.
17 Q. And you've seen the plans submitted to the
18 Department of Licenses and Inspection --
19 A. I have not --
20 Q. Excuse me. You'll have to wait -- the
21 reporter is very good but she needs to wait until
22 the question is asked before she starts taking the
23 answer.
24 A. Sorry. I apologize.
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1 Q. Now, with regard to the Cotton Street
2 landing, you did review the plans that were
3 submitted to the Department of Licenses and
4 Inspections and are now the subject of this appeal;
5 is that correct?
6 A. Not all of the detail plans submitted to
7 the plain.
8 Q. Why not?
9 A. I was only interested in the hydraulic
10 effects of the development, not all of the effects
11 -- all of the details in the development.
12 Q. But insofar it was in your area of
13 competence, you did look at the plans; is that
14 correct?
15 A. I looked at the plan data that Dr. Waggle
16 supplied for his analysis. I assumed that those
17 hydraulic characteristics from those plans and
18 Dr. Waggle's analysis was satisfactory to me.
19 Q. Now, you said you didn't know whether the
20 material submitted to the Planning Commission was
21 the same as the materials submitted by Dr. Waggle
22 to FEMA; is that correct?
23 A. No. I said that I was not sure that all of
24 the numbers in Dr. Waggle's model were exactly the
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1 same where they needed to be with the Army core
2 model that it was based on.
3 Q. No, no, no. But two minutes ago in your
4 response to Mr. Kelsen's question, you were asked
5 whether you knew that whether the materials that
6 Dr. Waggle submitted to the Planning Commission
7 were the same materials that were submitted to
8 FEMA, and you said you didn't know; isn't that
9 correct?
10 A. You have to rephrase the question.
11 Q. And your colleague said he did know. He
12 thought -- excuse me. I'm not directing it to
13 you. I know this is a little awkward because we
14 have twin witnesses. It's the first time I've seen
15 it, but Mr. Kelsen --
16 MR. KELSEN: First time ever.
17 MR. SKLAROFF: -- is comfortable
18 with it, joined not at the hip and perhaps
19 not joined at all, but he corrected you and
20 you didn't respond.
21 BY MR. SKLAROFF:
22 Q. Now, is he right that the materials -- the
23 materials submitted to the Planning Commission were
24 the same as the materials submitted to FEMA? Is
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1 your colleague right or is he not right or don't
2 you know?
3 A. I don't know if every piece of
4 correspondence that Dr. Waggle submitted to FEMA
5 was, in fact, submitted to the Planning Commission.
6 MR. SKLAROFF: Now, colleague, do
7 you know the answer to that question?
8 MR. GOLL: As far as my
9 conversation with Dr. Waggle, the same
10 information that was submitted to FEMA was
11 submitted to the City of Philadelphia.
12 MR. SKLAROFF: Off the record.
13 (Discussion off the record.)
14 BY MR. SKLAROFF:
15 Q. So, now we're sort of on a level playing
16 field; is that correct?
17 A. Certainly.
18 Q. You would agree with regard to the Cotton
19 Street development that all of the residential
20 units are built above -- that is the places of
21 habitation are built above the regulatory floodway;
22 is that correct?
23 A. Proposed to be built, yes, sir.
24 Q. Proposed, that's what we're talking about.
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1 And that there is a pedestrian walkway which
2 communicates between the residential units and Main
3 Street in Manayunk?
4 A. I am not familiar with the pedestrian
5 walkway, but I would assume it would be there.
6 Q. Well, wait a second. You have -- this
7 parade of horribles that you establish, this
8 emergency and so forth, did you -- does that apply
9 to Cotton Street landing or just to Mr. Kelsen's
10 client?
11 A. No. Cotton Street landing as well. If my
12 car is parked at grade and I need to get it off --
13 Q. For a moment --
14 THE CHAIRMAN: Answer the
15 question.
16 MR. SKLAROFF: We like to do it a
17 little differently, question and answer,
18 not question and answer and exposition. It
19 will go much more quickly.
20 MR. KRAKOWER: He can expose his
21 answers -- he can explain his answer.
22 MR. SKLAROFF: I'll help do that.
23 MR. KRAKOWER: No. He can do that
24 without your help, Mr. Sklaroff.
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1 BY MR. SKLAROFF:
2 Q. Now, did you have in your mind that there
3 was a pedestrian walkway communicating or not? Did
4 you guess or assume or did you remember seeing it?
5 A. As far as a pedestrian walkway goes?
6 Q. Yes.
7 A. I didn't see where that made a difference.
8 Q. And did you see it there, whether it makes
9 a difference or not, did you understand that there
10 was a pedestrian walkway?
11 A. No, sir.
12 Q. Fine.
13 Now, let's assume for a moment
14 there is a pedestrian walkway between residences
15 which were built above the regulatory floodway,
16 that pedestrian walkway, is itself above the
17 regulatory floodway, and Main Street at the foot of
18 the pedestrian bridge is above the regulatory
19 floodway?
20 MR. KRAKOWER: I'm going to object
21 to this assumption because that assumption
22 was not put on the record, or no evidence
23 of that was put on the record at the last
24 hearing.
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1 MR. SKLAROFF: Oh, I don't think
2 that's correct.
3 THE CHAIRMAN: So noted for the
4 record. Answer the question.
5 MR. SKLAROFF: Assuming that that's
6 so, and we will support it, as a matter of
7 fact, that if we have to put in more
8 testimony, we will. But that all speaks to
9 the safety of the proposed development;
10 doesn't it?
11 THE WITNESS: No, sir.
12 BY MR. SKLAROFF:
13 Q. Oh, it doesn't. It would be better if this
14 was within the floodway way?
15 A. No. It certainly adds to the safety --
16 Q. That's the only question I asked is that
17 adds to the safety.
18 Now, you talked about regulations
19 and you talked about practical things?
20 A. Yes, sir.
21 Q. Is it fair to say when you were talking
22 about practical things, you were talking features
23 that would, in your view, be beneficial, but not
24 required under Federal regulations?
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1 A. I would say that in light of FEMA's
2 response so far, and again, I'll reserve final
3 answer having not been able to check Dr. Waggle's
4 data, and I must, I'm sorry, but I must condition
5 the answer on that, and I'm not expelling it, that
6 FEMA -- I can't repeat the letter from FEMA that
7 says his analysis meets their requirement.
8 Q. That's what I wanted to know. That
9 analysis satisfies the Federal requirements?
10 A. Yes, sir.
11 Q. And the City code relates back to the
12 Federal requirements?
13 MR. KRAKOWER: Objection as to what
14 the City codes requires. That's for the
15 Board to decide.
16 MR. KELSEN: All right. Then I
17 move to strike all the testimony from this
18 witness concerning what the Philadelphia
19 code required in terms of floodway.
20 MR. KRAKOWER: No, because that's a
21 different story now. He knows what
22 floodway requirements are. He doesn't know
23 the relationship requirement. That's a
24 legal issue.
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1 MR. SKLAROFF: I think I've
2 answered it. I think the point has been
3 made.
4 THE CHAIRMAN: Mr. Sklaroff will
5 ask you another question.
6 THE WITNESS: You're asking
7 about --
8 BY MR. SKLAROFF:
9 Q. Now, I know you are not a structural
10 engineer, but you talked about structure; correct?
11 A. Yes.
12 Q. Presumably all of this construction of
13 these residential units will comply with applicable
14 codes, correct?
15 A. That's a good presumption for today, sure.
16 Q. Yes. And isn't it fair to say that those
17 codes take into account the risks associated with
18 structural issues such as flooding?
19 A. I do not know if there is a structural code
20 in the City of Philadelphia that will address the
21 scour of potential at the base of the piers of the
22 dynamic looting or the debris striking the piers.
23 Q. Have you reviewed the structural codes in
24 the City of Philadelphia?
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1 A. Of course not. I'm simply pointing out --
2 Q. So, you don't know one way or the other?
3 A. No, sir.
4 Q. You made some statements about residential
5 management, and let me ask this question: Are you
6 aware of the fact that the Planning Commission has
7 required the Cotton Landing Associates before a
8 certificate of occupancy is issued that there be an
9 evacuation plan submitted to them?
10 A. I'm not aware of it. I would assume that
11 one would be required.
12 Q. Did you review the plans that were
13 submitted to L & I and to the Zoning Board?
14 A. No. I said I was not aware that there was
15 a plan submitted.
16 Q. No. I'm not talking about an evacuation
17 plan, I'm talking about Plan Z-1, which is the
18 first plan in the set of drawings that were
19 submitted to the Department of Licenses and
20 Inspections?
21 A. No, sir. The only data that I reviewed
22 regarding those projects was hydraulic data that
23 enabled me to attempt to review Dr. Waggle's
24 analysis and then raise these flood issues. I did
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1 not review the detailed structural or architectural
2 or plumbing or electrical drawings.
3 Q. So, I'm not saying that, but where on the
4 legend of the first page of the submission, there
5 is a requirement for the submission of an
6 evacuation plan, did you read that page or didn't
7 you read that page?
8 A. No, sir, I did not.
9 Q. Now, what was your -- you seemed to have
10 some sense that the residential units, the owners
11 and tenants of the residential units would sort of
12 be an independent agent with regard to the
13 management of the building?
14 A. No, of course not.
15 Q. So that where you have a management by
16 experienced people of a very important residential
17 development with 270 units, would you not think
18 there would be an opportunity for a serious
19 evacuation plan with serious monitoring and with
20 the kind of care that you would expect in a
21 multi-family development of this character --
22 excuse me. Let me finish the questions.
23 (Discussion off the record.)
24 MR. KRAKOWER: Now, I'll object to
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1 the question, because there has been no
2 specific evacuation plan submitted, at
3 least, not that I ever received.
4 MR. SKLAROFF: That's not what his
5 statement was. He was saying that for some
6 reason, in residences you question whether
7 you could have a serious coherent program.
8 THE WITNESS: Not at all. I was
9 simply saying that compared to a plan and
10 the management structure of a commercial or
11 an industrial site, that's not inhabited 24
12 hours a day. It's simply inhabited during
13 work hours, and that -- that would be an
14 easier plan to implement and manage than a
15 residential plan where you may have sick or
16 invalid people or whatever who can't move.
17 I'm not saying that there is not a
18 -- there is a problem with the evacuation
19 plan. I don't know of any yet. I'm simply
20 saying that the change -- the question was
21 posed in the context of, sir, do you know
22 that there are existing uses on that
23 island, and I said, yes. And I simply said
24 that those would be -- those would be
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1 easier to manage and implement an
2 evacuation in a residential development.
3 BY MR. SKLAROFF:
4 Q. So, you think it's easier to deal with
5 these issues with a residential development above
6 the floodway as opposed to very intense industrial
7 use at -- within the floodway?
8 A. No, sir, I would disagree.
9 MR. SKLAROFF: Thank you. No
10 further questions.
11 THE CHAIRMAN: Thank you, sir.
12 MR. KRAKOWER: My next witness is
13 Mr. Andreas Heinrich.
14 MR. SKLAROFF: Mr. Chairman, would
15 you have any objection to my
16 cross-examining and then incorporating this
17 into our case as well?
18 THE CHAIRMAN: Not at all.
19 MR. KRAKOWER: Thank you.
20 Mr. Heinrich, could you state your
21 name and your address.
22 THE WITNESS: Andreas Heinrich,
23 H-e-i-n-r-i-c-h, 480 Herald Drive, Ambler,
24 Pennsylvania.
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1 BY MR. KRAKOWER:
2 Q. Mr. Heinrich, what is your profession, sir?
3 A. I'm a traffic engineer.
4 Q. Now, upon our request, did you make an
5 examination of the traffic and the traffic in the
6 neighborhood and the streets in the neighborhood of
7 Cotton Street, of Lavering Mill Main Street and the
8 areas and the access bridges to and from Venice
9 Island?
10 A. Well, to characterize what I did, I think I
11 presented a critique of what should have been done,
12 yes.
13 Q. Did you submit a report?
14 A. Yes, I did.
15 MR. KELSEN: Mr. Chairman, I'm
16 going to make an offer of proof, because I
17 thought the last time we decided that there
18 would not be evidence on traffic and that
19 we would confine our evidence to floodway
20 issue, which is the only relevant points
21 that's before the Board today.
22 So, I'm a little confused as to
23 where Mr. Krakower is going with this
24 witness.
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1 MR. KRAKOWER: All right. Mr.
2 Chairman, I don't know that we decided that
3 traffic problems where you are having a
4 variance were not relevant on the
5 contrary. All I know is that last time we
6 had Mr. Boles testify to --
7 MR. SKLAROFF: Not on Namico and I
8 think that is the difference. There is not
9 a variance proceeding --
10 MR. KRAKOWER: Well, I think he did
11 testify to the time it would take to get to
12 the cars off and on the island.
13 THE CHAIRMAN: Sir, you have ten
14 minutes for this witness.
15 MR. KRAKOWER: Let me submit this
16 report -- that I marked P-5(a), and P-5 is
17 the --
18 MR. SKLAROFF: And Mr. Krakower,
19 you are going to deliver us the Paone
20 report you promised at the last hearing and
21 we've been asking for it.
22 MR. KRAKOWER: I handed that up
23 earlier.
24 MR. SKLAROFF: There was a Paone
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1 traffic report that you said you were going
2 to give us for an excerpt.
3 MR. KRAKOWER: I don't remember
4 stating that.
5 MR. SKLAROFF: On the record. You
6 remember there was testimony, I believe in
7 cross-examination, that the Paone report
8 found a level -- going from Level A or
9 Level B. And you promised that you would
10 give us that report or that excerpt. And
11 Ms. Phillips, my partner has asked you by
12 letter to give us that report.
13 MR. KRAKOWER: I'm sorry. I don't
14 recall promising that.
15 MR. SKLAROFF: Do you have it here?
16 MR. KRAKOWER: No, I do not. I
17 have here the testimony -- this is a
18 traffic analysis right here that we have
19 from -- that we have from Mr. Heinrich.
20 MR. KELSEN: Mr. Chairman, I'm
21 going to reiterate my request in the Namico
22 case to strike this. It's a generic
23 traffic analysis detailing traffic impact
24 which could arise from all three
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1 developments. And the limitation that you
2 set, Mr. Chairman, on the Namico case which
3 was we deal with the issue which is
4 corrected before the Board and that is
5 floodway regulation compliance. And there
6 is no issue with regard to generic
7 variances in which traffic would be an
8 issue.
9 If he limits his testimony on the
10 Namico case solely to his point about how
11 long it would take to get the cars off in a
12 flood situation, maybe that's relevant,
13 although I tend to doubt that. But in
14 terms of general traffic analysis, it's
15 irrelevant.
16 MR. KRAKOWER: Mr. Chairman, before
17 this Board approves a project and variance
18 to put, at this point two developments --
19 MR. SKLAROFF: You can't mix them
20 together. You just can't do that. They're
21 different issues. There is no variance
22 required to develop the Namico site. We
23 went through this already. It's just
24 confusing the record.
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1 I have, Mr. Chairman, one question
2 of the witness which may be helpful. It
3 seems that this witness is really
4 critiquing a style or technique of traffic
5 report not doing a traffic report, but I
6 would, with the permission of the Chairman
7 ask one question of this witness.
8 MR. KRAKOWER: Before I ask him any
9 questions --
10 MR. KELSEN: Before we get to that,
11 let's just get on the issue of whether or
12 not that is a traffic analysis or not.
13 THE CHAIRMAN: Counsel, you know of
14 a memorandum from the -- regarding this
15 matter dated June 8th?
16 MR. KELSEN: No.
17 THE CHAIRMAN: Let me read this
18 into the record. On --
19 MR. KRAKOWER: Are you talking
20 about June 8, 2000?
21 THE CHAIRMAN: On June 5, 2000 you
22 requested the above stated application be
23 reevaluated in light of the recently passed
24 regulation. Laura Mitchell zoning examiner
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1 conducted the requested review and attached
2 a copy.
3 The application for 4601-45 Flat
4 Rock Road on G-2 and classifications, after
5 reviewing the application and site plan
6 under RC-1 classification. I find the
7 following zoning reviews proposed flood
8 codes to the residential apartment complex
9 with the history uses in parking. Number
10 one, first floor area of the parcel as
11 114,000, allowable closed floor area
12 170,463 and you are proposing 210,977. 113
13 versus the very 185 percent.
14 Number two, distance from lot lines
15 of structure and building setback, in
16 addition to where the property line
17 requires 27 and-a-half feet, and your
18 proposing plus or minus a foot new addition
19 to Flat Rock Road 40 feet wide required, 20
20 feet -- and the new addition from 40 feet
21 wide required. Height of building Flat
22 Rock Road the available 40 proposing 58.
23 Lower side allowable 20 feet with closure.
24 Parking requirements handicapped
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1 accessible spaces required size 8
2 and-a-half by 18, with five foot wide.
3 Proposed size 13 feet by 18 feet no access
4 filed. The type of spaces stacked parking
5 not permitted. 17 spaces extending beyond
6 the property lines not permitted, also
7 required easement agreement or proof of
8 ownership. Number of spaces, compact
9 spaces allowable 40, provided 43.
10 Other pedestrian bridge second
11 floor level to be used for emergency
12 evacuation, appears on the plan and extends
13 from within the property line on to the
14 public sidewalk. This you'll note the
15 property is designated historical and
16 approval of the historical commission is
17 required before a permit may be issued.
18 The clarification for the 4700 Flat
19 Rock Road was previously reviewed under the
20 G-2 investigation has now been reviewed for
21 RC-1 requirements located under the flood
22 plain as reviewed by the City's Planning
23 Commission as required as the review of the
24 application under the RC-1 classification.
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1 By the following beginning with the parking
2 lot. The park lot is to be used by the
3 property located in the 4601 Flat Rock
4 Road, non-accesory use which is not
5 presented. The height of the fence to be 8
6 feet high, actual allowable height of the
7 fence to three and-a-half feet at the front
8 of the front and 6 feet at sides and rear.
9 Note if the fence is to be reviewed
10 as a structure in RC-1, the setback from
11 the street should be four feet. From this
12 point to the rear of the property, it's
13 maximum allowable height would be no more
14 than 6 feet. A total of three handicapped
15 access parking spaces are required and one
16 will be provided.
17 With regard to your objection, sir,
18 that's on the record. You have five
19 minutes. Let's move along here.
20 MR. KRAKOWER: Thank you. May I
21 have a copy of that?
22 THE CHAIRMAN: Make a copy and send
23 one back.
24 BY MR. KRAKOWER:
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1 Q. I am going to give this to Mr. Heinrich and
2 ask Mr. Heinrich to take a look at that, being an
3 expert on traffic.
4 Mr. Heinrich, take a quick skim of
5 that. Have you seen that before?
6 A. No, I have not.
7 Q. All right. Mr. Heinrich, would you tell
8 the Board what you did with respect to this project
9 and what conclusions you reached with respect to
10 the traffic impact that the proposed developments,
11 Cotton Street and the Namico Soap Factory projects
12 would have on traffic on the island and in the
13 immediate community surrounding it?
14 MR. KELSEN: I object,
15 Mr. Chairman. I think he has to address
16 the issue of the Namico traffic impact
17 separately from Cotton Street. If he did
18 it as a collective report, that's one
19 thing, but he can't testify to that
20 impact. They are two separate
21 applications.
22 MR. KRAKOWER: Mr. Chairman, I just
23 don't think you can deal with these things
24 separately. Each one, they're going to
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1 interact on the other. If you look at each
2 one individually, you don't get a picture
3 of what the public is going to deal with
4 when both of them are built. We're not
5 dealing with one application. We're
6 dealing with two.
7 MR. SKLAROFF: But Stanley, with
8 all due respect, his report also indicates
9 the Edison development of 88 units, which
10 has not been before the Board to my
11 understanding. I mean, I don't know if the
12 Board has even had an application on that.
13 So, I mean, he's assuming traffic impacts
14 based on applications before the Board and
15 maybe before the Board.
16 THE CHAIRMAN: He can testify to
17 one case, sir.
18 MR. KRAKOWER: The Nedison
19 development should not be included because
20 that's not before the Board.
21 BY MR. KRAKOWER:
22 Q. Would you describe the traffic impacts?
23 First of all, what did you do and then what
24 conclusions did you reach?
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1 A. Well, --
2 Q. Before we get to that, maybe you should
3 tell us what your -- what your qualifications are,
4 what education you have?
5 A. I have a Bachelor of Science and a Civil
6 Engineering Degree from Drexel University. I'm a
7 licensed civil engineer in Pennsylvania. I've been
8 certified as a professional traffic operations
9 engineer and for the last 20 plus years, I've been
10 practicing as a traffic engineer to do traffic
11 impact studies and the last ten years as a
12 principal of my own firm.
13 Q. All right. And you did an examination of
14 the conditions on Venice Island and to and from
15 Venice Island?
16 A. I made site visits and I was provided a lot
17 of documentation as I indicated in my letter. What
18 was lacking from the documentation was any sort of
19 traffic impact study for any of the projects
20 proposed on Venice Island.
21 MR. SKLAROFF: May I have a
22 question on voir dire?
23 BY MR. SKLAROFF:
24 Q. Did you, in the course of your work,
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1 perform such studies and make such investigations
2 and evaluations as would be necessary for you to
3 make a traffic impact study of the proposed
4 developments, either singly or together?
5 A. I did not do a traffic impact study. In my
6 experience, that's usually up to the applicant to
7 take care of. I would have reviewed such if one
8 was submitted.
9 Q. But sometimes the public sector does
10 traffic impact studies and sometimes the private
11 sector does them and sometimes they do them, they
12 each do them, correct?
13 A. What do you mean by the public sector?
14 Q. Well, let us say government, for example?
15 A. Very rarely in my experience.
16 Q. Well, okay. But the point of it is that
17 you did not do what was necessary, and you did not
18 perform a traffic impact study here, did you?
19 A. I did not perform a traffic impact study.
20 THE CHAIRMAN: Why are you here
21 testifying then?
22 MR. KRAKOWER: To testify to the
23 fact that the applicants also did not do a
24 traffic impact study, and conclusions with
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1 regard to traffic impact that were
2 testified to were not based on such facts
3 as could be observed and such analysis as
4 he could be.
5 MR. SKLAROFF: I object to the
6 after the fact cross-examination of the
7 traffic witnesses. If he has substantive
8 information to give, fine. But the after
9 the fact quarreling with traffic impact
10 analysis that has already been put into the
11 record, I think is objectionable. I object
12 for the record.
13 MR. KRAKOWER: There were not
14 complete traffic impact analysis. What he
15 is going to testify to is what was in the
16 record and what he could determine and
17 couldn't determine. And he has the
18 expertise with which to do it.
19 THE CHAIRMAN: Move along, please.
20 BY MR. KRAKOWER:
21 Q. Mr. Heinrich, why don't you tell us what it
22 is that you did and what conclusions you reached?
23 A. Well, we examined the information provided
24 us and found that no traffic impact study has been
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1 studied for any of the developments.
2 The first part of my letter lays
3 out the typical steps that are included in a
4 traffic impact study. It indicates that the number
5 of intersections, particularly on along Main Street
6 in Manayunk that would have been included in a
7 typical impact study for these types and sizes of
8 land developments proposed.
9 I quantify the anticipated trip
10 generations for the three projects that I've
11 outlined in the letter, traffic impact study in a
12 rezoning sense. I have also included a comparison
13 of trip generation of what is proposed versus what
14 could be developed or used on site in my right.
15 That, to my knowledge, has not been indicated to
16 determine whether these developments are going to
17 generate, more or less or the same amount of
18 traffic and what could be built there.
19 Obviously, there has been no
20 conclusions and recommendations of any kind of
21 improvements, either for site access requirements
22 or the adjoining street network to adequately
23 accommodate whatever types of traffic will be
24 generated by the proposed developments.
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1 My letter goes on to discuss,
2 particularly, emergency access to the sites. Each
3 of the properties on the island, basically are
4 limited to a single access point from a
5 transportation planning point of view and a traffic
6 management point of view. Once you get over 20, 25
7 units, you have to have a second point of access,
8 desirably a fully functional point of access, but
9 in extreme situations, an emergency access will
10 suffice. To my knowledge, that is not being
11 provided to any of these projects on Venice Island.
12 It's not hard to imagine a traffic
13 accident at the intersection of Main and Cotton
14 and/or Main and Leverington blocking traffic to the
15 island and a fire emergency -- a fire or medical
16 emergency occurring in one of the residential
17 developments. Emergency response personnel cannot
18 get to the island in a timely manner to take care
19 of the emergency.
20 And finally, I discussed that, to
21 my knowledge, there is no emergency evacuation plan
22 of the island, based on previous testimony, with
23 the possibility of flooding to occur. There's
24 indication that emergency evacuation of the island
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1 is addressed; what type of response personnel, City
2 personnel, any kind of personnel to take care of
3 that evacuation; what provisions are provided on
4 the mainland, so to speak, to accommodate the
5 vehicles.
6 It's my understanding some
7 testimony was provided in terms of how fast the
8 vehicles could evacuate the island, but it does not
9 address the Arroyo Grille and their additional
10 traffic that would --
11 Q. Would you describe the Arroyo Grille and
12 what it is and its impact.
13 MR. SKLAROFF: Can we agree that
14 this is not part of this proceeding? Isn't
15 that the Nedison development adjacent to
16 that?
17 MR. KRAKOWER: It's closer, but I
18 thought we were just going to let him, so I
19 don't have have to bring him back, testify
20 regarding the Arroyo Grille.
21 MR. KELSEN: There is no
22 application.
23 MR. KRAKOWER: No, not the
24 Nedison. The Arroyo Grille is immediately
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1 adjacent, I think, to your client's
2 property.
3 MR. KELSEN: Is he limiting to his
4 impacts?
5 MR. KRAKOWER: No. It's going to
6 be to both, but he is going from one to the
7 other.
8 If you talk about what -- he's
9 limiting his testimony to what's on Venice
10 Island that brings traffic.
11 THE CHAIRMAN: Three and-a-half
12 minutes remaining. Move it along.
13 BY MR. KRAKOWER:
14 Q. Describe where the Arroyo Grille is and
15 what its traffic impact is.
16 A. The Arroyo Grille is an existing restaurant
17 at the base of the Flat Rock Bridge to the island.
18 And all I was trying to suggest is the evacuation
19 of the island has to take into account the existing
20 uses on the island; also potentially having to
21 evacuate. And before I was interrupted, I was also
22 going to indicate Smurfit Stone and
23 tractor-trailers that probably have to evacuate the
24 island, so -- has the emergency evacuation
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1 considered the existing uses on the island, in
2 terms of the total evacuation, not just for the
3 individual uses proposed.
4 Q. Does the Smurfit Stone have its own ingress
5 and egress to the island, separate from the
6 developments?
7 A. My understanding is they cross the Flat
8 Rock Bridge to get access -- for vehicular access
9 to the island.
10 Q. And which of these developments will also
11 cross Flat Rock Bridge?
12 A. I believe it's the Dranoff Development.
13 Q. And would the Arroyo Grille Restaurant have
14 its own separate ingress and egress bridge?
15 A. For the island, via the same bridge.
16 Q. All right. So are you saying, then, that
17 the Smurfit Stone industrial plant and the Arroyo
18 Grille Restaurant and the Namico Soap Factory
19 development, residential development, would all use
20 the same bridge?
21 A. That's correct.
22 Q. And how wide is that bridge?
23 A. It's a two-way, two-lane bridge. I don't
24 know the exact length.
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1 Q. When you say two-way, two-lane, in other
2 words, one lane in each direction?
3 A. That's correct.
4 Q. Now, is there a train that uses Venice
5 Island?
6 A. Yes, there is. There are train tracks,
7 yes.
8 Q. All right. And do the train tracks cross
9 or do they block the bridge?
10 A. I believe they block Cotton Street Bridge.
11 Q. The Cotton Street Bridge. If a train were
12 to block the Cotton Street Bridge, would there be
13 access to and from the Connelly Container Project?
14 A. That's the other --
15 Q. On Cotton Lane.
16 A. Yes.
17 Q. Does access require a clearance of the
18 bridge where the trains would go?
19 A. I'm sorry. Could you repeat the question.
20 Q. All right. Is it necessary that trains
21 clear the bridge in order to get on or off the
22 island at the Cotton Street Landing?
23 A. At the grade crossing of the Cotton Street
24 access, yes.
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1 Q. Now, with regards to traffic in the
2 community, as traffic would come off the island,
3 where would they go; what streets, and what is the
4 traffic conditions on those streets?
5 A. Well, from the Flat Rock Bridge access
6 point, you come into a signalized intersection of
7 Main Street and Levington Road where you can either
8 proceed up into Manayunk, Roxborough or you can
9 make your turn down Main Street towards the
10 intersection -- signalized intersection of Main
11 Street and Green Lane.
12 Q. And what are the traffic conditions on
13 those streets?
14 A. Other than my observations during various
15 times of the day, I don't have a specific
16 qualification. But during rush hours and
17 frequently on Saturday afternoons, there is
18 considerable congestion on those roads.
19 Q. Were you there or did you examine
20 conditions at the time a party was being given at
21 the Arroyo Grille on May 5, 2000?
22 A. No, I was not there.
23 Q. I'll have the person who took these
24 pictures identify them shortly. I marked this as
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1 P-6.
2 And I show you what I marked P-6,
3 and ask you if the traffic that you see observed on --
4 actually looking at Page 2, Page 3 and Page 4, if
5 they are consistent with traffic conditions as you
6 observed them on any of your trips to the island or
7 to the area immediately around the island?
8 MR. KELSEN: Objection. This
9 document itself is characterized by a
10 traffic jam by a Cinco de Mayo event at the
11 Arroyo. I'm assuming that is a very
12 significant event, although I don't know
13 what it is. It's not a fair reflection of
14 traffic conditions.
15 Did he take these pictures?
16 MR. KRAKOWER: No, he did not.
17 MR. KELSEN: Was he there?
18 MR. KRAKOWER: On that occasion?
19 Were you there on that occasion?
20 THE WITNESS: I've testified, no, I
21 wasn't.
22 MR. KRAKOWER: Were you there on
23 other occasions where you saw anything like
24 this kind of traffic?
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1 THE WITNESS: Not anything like
2 this kind of traffic, no.
3 MR. SKLAROFF: Fine.
4 BY MR. KRAKOWER:
5 Q. Do you have in your report an analysis of
6 the traffic generally found on Main Street,
7 Levington, in that area?
8 A. No.
9 MR. KELSEN: I object.
10 THE CHAIRMAN: Do you have any
11 questions for him?
12 MR. KELSEN: I have two questions.
13 BY MR. KELSEN:
14 Q. Sir, did you take into account in doing
15 your traffic analysis the number of cars and
16 tractor-trailers that had been on the Namico site
17 on a daily basis?
18 A. As I've indicated in my testimony, that
19 information was not provided.
20 Q. So you really couldn't evaluate traffic
21 impact because you didn't know what was existing as
22 compared to what's been proposed; is that correct?
23 A. That's the point of my testimony. That
24 information has not been provided by either of the
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1 applications.
2 Q. So, really, sir, there's no scientific data
3 that you could give us today on that issue; is that
4 correct?
5 A. That I have, no.
6 Q. Thank you.
7 Did you also take into
8 consideration any writ timing or the introduction
9 of a new civilization at the Green Lane Bridge in
10 evaluating your traffic impact?
11 A. That information would have normally been
12 provided in a traffic impact study if they had been
13 submitted with the application.
14 Q. But did you contact PennDOT to find out if
15 they're putting in a new timing device on that
16 bridge?
17 A. No, I did not.
18 Q. So, you have no idea how that traffic flow
19 would impact your analysis; is that correct?
20 A. I don't know that it's all that material.
21 Q. But did you look at it?
22 A. No.
23 Q. If I told you that PennDOT is installing a
24 new timing device that would change the access
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1 patterns on that bridge, would that influence your
2 decision making --
3 MR. KRAKOWER: I object on the
4 grounds that we have no information
5 pending.
6 MR. KELSEN: That's my point.
7 THE WITNESS: Can you repeat the
8 question, please.
9 BY MR. KELSEN:
10 Q. If they change the timing devices on that
11 bridge, which they intend to do, would that change
12 your analysis?
13 MR. KRAKOWER: I object to the form
14 of the question.
15 THE CHAIRMAN: Can you answer the
16 question, sir.
17 THE WITNESS: I don't think it has
18 any material effect, one way or the other,
19 because PennDOT normally looks at the
20 through flow of vehicles on the bridge, so
21 I don't think that really affects Main
22 Street.
23 BY MR. KELSEN:
24 Q. Did you study it?
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1 A. No, I didn't.
2 Q. When you did your analysis about emergency
3 evacuation, did you assume that both lanes of the
4 Flat Rock Bridge would be open for traffic leaving
5 the island?
6 A. I did not make that analysis, but in my
7 report I suggested that's something that might be
8 looked at.
9 Q. And would that temper your concern about
10 traffic evacuation?
11 A. I don't know. That's, again, something
12 that should have been supplied by the application.
13 MR. KELSEN: Nothing further, Mr.
14 Chairman.
15 MR. SKLAROFF: Just a few
16 questions, Mr. Chairman.
17 BY MR. SKLAROFF:
18 Q. Mr. Heinrich, did you work in preparing
19 your testimony with Mr. Krakower?
20 A. What do you mean "work with"?
21 Q. Did you speak with him in preparing for
22 this testimony?
23 A. No, I did not.
24 Q. You had no conversation with him about your
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1 scope of testimony or your report?
2 MR. KRAKOWER: I am going to
3 object.
4 THE CHAIRMAN: So noted.
5 MR. KRAKOWER: That would be
6 attorney/client privilege.
7 MR. SKLAROFF: I didn't ask what
8 you said. I'm just asking whether you met
9 with him.
10 BY MR. SKLAROFF:
11 Q. Is this the first time you've spoken to
12 Mr. Krakower about your testimony today?
13 A. No, it's not.
14 Q. Did you meet with him prior --
15 MR. KRAKOWER: Objection.
16 MR. SKLAROFF: Before your
17 testimony --
18 THE CHAIRMAN: So noted, sir.
19 BY MR. SKLAROFF:
20 Q. Did you meet with him?
21 A. I had a couple of phone conversations.
22 Q. Did you meet with him in person?
23 A. No.
24 MR. KRAKOWER: Objection again.
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1 MR. SKLAROFF: I'm not asking --
2 THE CHAIRMAN: I don't know what
3 you're objecting to. Your objection is on
4 the record. I'm telling him to answer the
5 question. You're not getting --
6 MR. KRAKOWER: I'm objecting to the
7 questions about whether we met, how many
8 times we met. Those are not proper
9 questions.
10 MR. SKLAROFF: Of course they are.
11 What you may have said to him are not.
12 They may be privileged.
13 BY MR. SKLAROFF:
14 Q. Well, let me ask you this: I'm not going
15 to ask you what he gave you, but did Mr. Krakower
16 give you any information about traffic in Manayunk?
17 A. No, he did not.
18 Q. He didn't supply you with any information?
19 A. I received my information from residents.
20 Q. Now, did you receive any information from
21 Ms. Terella (ph.)?
22 A. I don't know the name.
23 Q. Did you receive any information from the
24 Manayunk Development Corporation?
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1 A. I don't believe so.
2 Q. Did Mr. Krakower make you aware of the fact
3 that his witness at the last hearing on Cotton
4 Street Landing, Ms. Terella made reference to a
5 traffic study that had been commissioned by
6 Manayunk Development Corporation by the Paone
7 Organization?
8 A. No, I wasn't aware --
9 MR. KRAKOWER: I'm going to object
10 to that.
11 BY MR. SKLAROFF:
12 Q. Did anyone give you a copy of the Paone
13 study?
14 A. I am not aware of the study.
15 Q. Did anyone tell you that there was sworn
16 testimony at the last hearing of Cotton Street
17 Landing that there were changes in the level of
18 service from A to B at Cotton Street Landing?
19 A. I am not aware of a study.
20 Q. So neither Mr. Krakower nor the residents
21 shared that information with you; is that correct?
22 A. As I've said, I am not aware of the study.
23 Q. If Paone had done a report for the Manayunk
24 Development Corporation, would it have been
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1 relevant for you to look at that report?
2 MR. KRAKOWER: Objection. Without
3 knowing when it was.
4 MR. SKLAROFF: Assume that it was
5 current enough for your purposes.
6 MR. KRAKOWER: Well, there is no
7 indication that a current report was
8 issued.
9 MR. SKLAROFF: Mr. Krakower, you
10 promised to deliver the report to us. So,
11 tell us when it was done.
12 THE CHAIRMAN: Sir, answer the
13 question.
14 MR. KRAKOWER: I have no knowledge
15 of a recent report being done.
16 MR. SKLAROFF: Do you have
17 knowledge to any Paone report being shared
18 with you?
19 THE WITNESS: No.
20 BY MR. SKLAROFF:
21 Q. All right. Second question: You said that
22 there was not a traffic impact study done by
23 Mr. Boles, correct?
24 A. I am not aware of one.
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1 Q. Okay. Did anyone show you his summary
2 report, which is Exhibit A-4? Did anyone show you
3 that?
4 A. I have a copy of that.
5 Q. Did anyone show you his update, which is
6 A-5?
7 A. Yes, I've seen that.
8 Q. Okay. Now, third question: Did you review
9 the plans for the Cotton Street Landing proposal?
10 A. When you say "plans," you mean the actual
11 blueprints of the building project?
12 Q. What has been submitted and is part of the
13 public record before this Board, before the
14 Department of Licenses and Planning Commission.
15 A. If you are talking about a plan set, no, I
16 have not.
17 Q. So, who told you that there was no
18 emergency access from the Cotton Street Landing
19 Development?
20 MR. KRAKOWER: Objection. Are you
21 saying there is, because nothing has been
22 submitted?
23 MR. SKLAROFF: Mr. Krakower,
24 please, I'm surprised at you. Let him
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1 answer the question. I will support what I
2 say in documents.
3 BY MR. SKLAROFF:
4 Q. Did you examine the plans that were
5 submitted -- you say you didn't examine those
6 plans; is that correct?
7 A. That's correct.
8 Q. All right. Who told you that there was no
9 emergency access?
10 A. I didn't say there wasn't emergency access.
11 I'm not aware of anything, because that's usually
12 addressed in a traffic impact study.
13 Q. But you didn't even bother to look at the
14 plans, so you don't know whether there is emergency
15 access, do you?
16 A. That's correct.
17 Q. And it would be a good idea if there were,
18 correct?
19 A. That's correct.
20 Q. And we would expect to find them right in
21 those plans, wouldn't we?
22 A. Not necessarily.
23 Q. You didn't even look?
24 A. No.
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1 MR. SKLAROFF: No further
2 questions.
3 THE CHAIRMAN: Thank you, sir.
4 (Witness excused.)
5 MR. KRAKOWER: My next witness is
6 Wendy Lathrop.
7 THE CHAIRMAN: Please put your name
8 and address on the record, please.
9 THE WITNESS: My name is Wendy
10 Lathrop. Last name is spelled,
11 L-a-t-h-r-o-p. My address is 319
12 Llandrillo Road. It's in Bala Cynwyd,
13 19004.
14 BY MR. KRAKOWER:
15 Q. Ms. Lathrop, would you tell us your
16 background, your education and your area of
17 expertise.
18 A. I'm a professional licensed land surveyor
19 in four states, including Pennsylvania and New
20 Jersey, Maryland and Delaware. I'm a licensed
21 planner in the State of New Jersey. I've been
22 involved in surveying and mapping and flood plain
23 management since 1974 in various aspects.
24 For the last five years I have been
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1 involved -- I have been an active member of a
2 technical mapping advisory council to FEMA on flood
3 plain maps and issues. This is a group that was
4 created by the 1994 Congressional Act to reform the
5 National Flood Insurance Program to provide
6 technical expertise to FEMA on improving the flood
7 mapping.
8 And on that council I represent a
9 group called American Congress and Service in
10 Mapping, which represents about 7,000 surveyors,
11 geotologists, cartographers and geographic
12 information specialists. In terms of my education,
13 I have a Master's in environmental policy.
14 Q. Thank you.
15 I have a copy of Ms. Lathrop's --
16 and I have two copies for the Board.
17 MR. KELSEN: Can I voir dire?
18 THE CHAIRMAN: Yes.
19 MR. KELSEN: Can I have an offer of
20 proof before we begin, and I think that
21 will frame my voir dire, Stanley.
22 MR. KRAKOWER: All right.
23 Ms. Lathrop is going to testify and has
24 issued a report on flood plain and flood
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1 plain management and protecting of areas
2 around the flood plains. We have -- I have
3 a document marked P-8. Here is P-8, one
4 for you and one for Mr. Sklaroff, and we
5 have one for the Board.
6 I also have on flood plains a book
7 authored by Ms. Lathrop, which is marked
8 P-9 on flood plain control, flood plain
9 management, where they are and how to
10 control them and what to do with them.
11 THE CHAIRMAN: Do you have any
12 objections to this?
13 MR. KELSEN: I do, and if I could
14 ask two or three questions, I think I can
15 frame it. And I'll do it gently, because I
16 see she's a third degree blackbelt, so I'll
17 take it very slowly.
18 BY MR. KELSEN:
19 Q. Are you a hydrologist?
20 A. I am not. I am going to address the
21 regulatory --
22 Q. I didn't ask you that. I asked you, are
23 you a hydrologist?
24 A. I am not.
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1 Q. Are you an expert in hydraulic engineering?
2 A. I am not an engineer.
3 Q. Are you an expert in geology?
4 A. I am not a geologist.
5 Q. Okay. What is your expertise, if you could
6 characterize it for me, please?
7 A. The land use regulations, flood plain
8 management regulations.
9 Q. Are you a surveyor?
10 A. Yes, I am.
11 Q. Is the work that you do under contract to
12 FEMA or under a consulting contract to FEMA
13 Surveying?
14 A. Some of it is related to surveying, some of
15 it is in regards to consistency with the existing
16 regulations on local, State and Federal levels to
17 make sure my clients are complying.
18 Q. Have you ever participated in hydrology or
19 flood hazard studies for FEMA or for anyone else?
20 A. I have been part of a team, but I have not
21 done the hydrologic study. I have done base
22 mapping upon which the hydrologic studies were
23 calculated.
24 MR. KELSEN: Mr. Chair, Members of
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1 the Board, I would move to strike any
2 testimony of the witness as it relates to
3 floodway increases or floodway development
4 outside of survey issues, because that's
5 all she's qualified to testify to.
6 MR. KRAKOWER: On the contrary --
7 MR. SKLAROFF: If I may, I also
8 have a question or two.
9 BY MR. SKLAROFF:
10 Q. I notice from -- and this goes to the offer
11 of proof -- from glancing at the report, that you
12 take issue with the Planning Commission's interpretation
13 of these ordinances of City Council, correct?
14 A. That's correct.
15 Q. And also do your recommendations conflict
16 with the letter of the law, as interpreted by FEMA,
17 in giving -- do your recommendations conflict with
18 FEMA's decision to approve the submission made by
19 Mr. Waggle?
20 MR. KRAKOWER: Objection. FEMA has
21 not approved the submission. It's quite
22 clear from the two letters they've
23 submitted.
24 MR. SKLAROFF: They haven't
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1 approved the project. They did approve,
2 did they not, Mr. Waggle's submission, if
3 you know?
4 THE WITNESS: Which letter are you
5 referring to, the one from Region III or
6 the one from Director Witt?
7 MR. SKLAROFF: No. The one from
8 Region III.
9 THE WITNESS: The Region III letter
10 clearly states in the final paragraph that
11 this plan would be inconsistent with the
12 policies of which I care to address, not
13 the signing --
14 BY MR. SKLAROFF:
15 Q. Okay. So the technical issues of FEMA have
16 been satisfied, correct?
17 A. Right.
18 MR. KRAKOWER: Let her finish her
19 answer. Don't cut her off.
20 MR. SKLAROFF: She finished. Did
21 you finish?
22 THE WITNESS: Barely.
23 MR. SKLAROFF: To the extent that
24 this witness is being put on to quarrel
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1 with the Planning Commission's interpretation
2 of the Philadelphia ordinance, or this
3 witness is asking for compliance which goes
4 beyond FEMA, this testimony is without
5 foundation and without relevance in this
6 proceeding, and therefore, I don't know
7 what good would come with going further
8 with this witness.
9 MR. KRAKOWER: This witness has
10 expertise in the area of flood plains.
11 There's more to flood plain management --
12 and this Board has -- than the technical
13 compliance with FEMA. Even FEMA has
14 acknowledged that -- its own director --
15 that its technical compliance has not
16 satisfied all of the issues.
17 This lady knows more about flood
18 plain management and FEMA's policies than
19 most of the other people who have been
20 here. The Board should have the benefit of
21 hearing her testimony.
22 MR. KELSEN: But, Stanley, with all
23 due respect, throughout these proceedings
24 you've made it very clear that we're
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1 distinguishing between flood plain issues
2 and floodway issues. This primer that I'm
3 looking at deals with flood plains, and
4 it's contra to the statements you have been
5 making throughout this proceeding. And if
6 it's dealing with flood plains, I move to
7 strike.
8 MR. KRAKOWER: It's dealing with
9 flood plains and floodways. Maybe the
10 title was shorthanded, but I'm sure that
11 Ms. Lathrop --
12 THE WITNESS: Do you perhaps need
13 to know the purpose of it?
14 MR. KELSEN: Not quite yet.
15 MR. KRAKOWER: But I'm sure she
16 would be happy to add to the clarification
17 of flood plains and floodways.
18 MS. JAFFE: At the very least, I
19 would like to have testimony from her, if
20 she has seen the letter from FEMA from the
21 Office of the Director, because I think
22 there are issues in there that are
23 certainly relevant to our considerations.
24 MR. KELSEN: That's fine. And I
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1 just want to limit the record to a broad
2 review of flood plain issues and nine
3 non-hydrologic engineering issues, which
4 are relevant for this Board's
5 consideration.
6 MS. JAFFE: Why don't you let her
7 start, and we'll interrupt her -- make that
8 judgment as we go along.
9 BY MR. KRAKOWER:
10 Q. At the request of the Friends of the
11 Manayunk Canal and the Manayunk Neighbors Council,
12 did you make an examination of the floodway and
13 flood plain issues surrounding the proposed
14 development on Venice Island?
15 A. Yes, I did.
16 Q. All right. And did you reach some
17 conclusions with respect to the applicability of
18 various regulations, State, City and Federal, to
19 that proposed development?
20 A. Yes, I did. In conjunction with the flood
21 insurance rate maps for the City of Philadelphia.
22 Q. Now, would you first tell us a little bit
23 about flood insurance and how that factors in. ?
24 MR. KELSEN: Objection. That's
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1 irrelevant to these proceedings.
2 MR. KRAKOWER: I submit that it is
3 not. For this Board to make a decision
4 which might jeopardize the ability of the
5 City of Philadelphia to be eligible for
6 Federal flood insurance, I think, would be
7 the height of --
8 MR. KELSEN: Stanley, that is just
9 not an accurate statement. The letter
10 doesn't say that. The Planning Commission --
11 MR. KRAKOWER: It says -- it might.
12 I think the least this Board should do is
13 hear this witness on the issue of the
14 City's eligibility.
15 MR. KELSEN: But she's not
16 testifying on behalf of FEMA.
17 MR. SKLAROFF: There is an
18 objection. This is a zoning case. The
19 only relevant testimony has to do with
20 zoning issues, not legal opinions, not
21 hypothetical speculations about flood
22 insurance. That's what we have Marty Soffa
23 for, the Planning Commission and FEMA for,
24 Not this Board, with all deference.
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1 MR. KELSEN: With all due respect,
2 there was a letter that was submitted dated
3 June 8th to each one of the applicants from
4 the Planning Commission. I don't have a
5 copy, but it's from William T. Erickson,
6 which indicates that there could be an
7 increase in flood insurance as a result of
8 development in this area, and in insurance
9 rates; not a prohibition or not an
10 inability to secure such insurance.
11 And therefore, these statements are
12 disingenuous. They are setting the wrong
13 tone and they are not legally correct.
14 MR. KRAKOWER: We do not have that
15 letter.
16 MR. KELSEN: I just got it myself.
17 MR. JAFFE: If I may, Robert Jaffe
18 from Councilman Cohen's office. I have
19 been sitting quietly as the proponents of
20 both projects are trying to stop what's
21 clearly relevant to the Board. James Witt,
22 the Director of FEMA, has written a letter,
23 and to say it's not relevant is --
24 MR. SKLAROFF: It speaks for
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1 itself.
2 MS. JAFFE: No, it doesn't speak
3 for itself. There needs to be an
4 explanation --
5 THE CHAIRMAN: Please be quiet,
6 sir. Sit down. What question do you have
7 for this witness?
8 BY MR. KRAKOWER:
9 Q. Where we were, I was asking her a question
10 when we were interpreted with the objection. You
11 were talking about the flood insurance program.
12 A. I think we're getting caught up on the idea
13 of insurance rather than National Flood Insurance
14 Program, which is a program to protect lives and
15 property. The insurance is one aspect of it, when
16 a community complies with minimum standards as
17 established by FEMA, Title 44 of the Federal
18 Regulations, that a community is eligible to have
19 its citizens, small businesses and home owners
20 purchase insurance and also be eligible for
21 disastrous systems.
22 What the City of Philadelphia has
23 done -- the reason that Director Witt wrote this
24 letter, I would like to say a little bit about
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1 this --
2 MR. SKLAROFF: Objection.
3 THE CHAIRMAN: How can you testify
4 to that?
5 THE WITNESS: Because I spoke
6 directly with Director Witt about this
7 issue, and I'm one of the people who were
8 the --
9 MR. SKLAROFF: You lobbied that
10 letter.
11 THE WITNESS: I sent him a copy of
12 the City ordinances and asked him, if, in
13 fact, those were consistent with the
14 National Flood Insurance regulations.
15 MR. KELSEN: Did you send him
16 Dr. Waggle's study at the same time? Did
17 you send him the FEMA letter that --
18 MR. SKLAROFF: Would you let her
19 answer direct questions and then you can do
20 cross. You are not giving her a chance
21 to --
22 THE WITNESS: I sent him the City's
23 ordinance and asked him for an
24 interpretation of the City's ordinance in
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1 comparison with the Federal regulations.
2 You already asked me if I was a traffic
3 engineer, a hydrologist and all these
4 things, and I said no.
5 MR. SKLAROFF: I would like to
6 lodge an objection. This witness has
7 lobbied the Director.
8 THE WITNESS: I asked him a
9 question.
10 MR. SKLAROFF: Excuse me, please.
11 MR. KRAKOWER: I object to the term
12 "lobby."
13 MR. SKLAROFF: She has lobbied the
14 Director, she has sent him some
15 information, but not all information. She
16 has procured a letter, which she has sent
17 to the Mayor of the City of Philadelphia.
18 The letter has been marked into evidence,
19 and presumably the Board will make it part
20 of the record. That's enough.
21 For her now to interpret the state
22 of mind or what that letter means, she has
23 no more ability to do that than anybody
24 sitting in this audience. The letter
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1 speaks for itself.
2 THE CHAIRMAN: All four of you sit
3 down. Ma'am, you cannot testify to what
4 was in the Director's mind.
5 THE WITNESS: No, I cannot.
6 THE CHAIRMAN: Thank you. It can
7 only be considered hearsay.
8 THE WITNESS: Yes, sir.
9 THE CHAIRMAN: Next question.
10 BY MR. KRAKOWER:
11 Q. Are you being paid or compensated to appear
12 here today?
13 A. I am not.
14 Q. So you are here on your own cause?
15 A. I am a member of the Friends of the
16 Manayunk Canal. I am a member of The Sierra Club.
17 I am a -- I live in Bala Cynwyd, which is an area
18 that would also be affected by flooding were it to
19 occur. River water does not come up --
20 Q. I understand that. But you are not being
21 compensated to be an expert witness here?
22 A. I was compensated to prepare a report at
23 one point in time, but I am not being compensated
24 to appear here today.
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1 MR. SKLAROFF: Would it be correct
2 to say that you are doing pro se --
3 THE WITNESS: I am doing this pro
4 bono because I know the organization cannot
5 afford what my cost is per hour.
6 MR. SKLAROFF: So you are doing
7 this for them as volunteer professional
8 work?
9 THE WITNESS: That's exactly what
10 I'm doing.
11 MS. JAFFE: And were paid -- your
12 bio on Page 7, is that what you were paid
13 for in the participation of flood plain
14 management?
15 THE WITNESS: That's what I was
16 paid for.
17 MS. JAFFE: Thank you.
18 BY MR. KRAKOWER:
19 Q. With respect to the insurance program, the
20 flood insurance program, would you state what
21 impact that has and how that's irrelevant to this
22 Board and the decision it must make with regards to
23 this application?
24 A. The National Flood Insurance Program was
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1 first conceived of in the 1950's and first truly
2 initiated in 1968; funded in 1973, at which point
3 there was some initial mapping done to identify
4 flood prone areas, areas that were prone to the one
5 percent annual chance flood or what we're calling
6 the 100-year flood defined -- and these were not
7 done throughout the entire country, but in the
8 areas where there was the most potential for harm
9 to lives and property, in other words, the areas
10 that were most urbanized. So not the entire nation
11 was mapped at that particular time.
12 There was not insurance available.
13 It was determined that the most -- the biggest
14 problem that our citizen group was having was the
15 inability to buy flood insurance. This is not
16 something that's covered in homeowners' policies.
17 This is not something that's covered by your car
18 policy should your car flood. It's a separate
19 policy, and very few insurance companies were
20 offering it at anything that our citizens could
21 afford except for Lloyds of London.
22 Our Federal Government decided to
23 create a National Flood Insurance program to make
24 flood insurance affordable to our citizens, and in
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1 exchange for a community wanting to be able to have
2 its residents and its business owners purchase that
3 insurance, that community had to an adopt certain
4 minimum technical requirements, which I will not
5 address because I'm not an engineer, but those are
6 a matter of public record and in Federal
7 regulations adopted by each of the communities,
8 therefore, in our own City ordinances to emulate as
9 a minimum standard, and you may go more stringent
10 than that, but you may not go below that level.
11 When a community agrees to abide by
12 those minimum standards or exceed those minimum
13 standards, then all of the people within that
14 community may purchase flood insurance. If you do
15 not belong to the National Flood Insurance Program,
16 the citizenry cannot buy flood insurance and the
17 citizenry is not eligible for disastrous systems
18 should there be a flood.
19 Q. Do you know, is there a supervisory
20 position that FEMA plays with regard to what
21 communities are eligible and what communities are
22 not, who makes those determinations?
23 A. There is -- this has been evolved over
24 time, because FEMA would like -- FEMA sees that the
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1 minimum requirements are not sufficient, and this
2 is from my experience on the technical mapping
3 council that we have realized that the minimum
4 requirements are not doing the job.
5 FEMA has come up with several
6 programs where they provide technical assistance to
7 communities to help them comply, whether it be
8 improving the ordinances that they have on the
9 books or come up with different ways of managing
10 the engineering for specific projects to allow them
11 to occur.
12 So there is a review process that's
13 available at a very specific level. When it comes
14 to a development such as the proposals here in
15 Manayunk on Venice Island, the regional office --
16 we're lucky our the regional office happens to be
17 right here in Philadelphia -- will look at the plan
18 and give additional reviews saying if you build it
19 this way, it looks like it will comply with the
20 regulations, but we're not giving -- until we see
21 the final thing and record drawings.
22 It's not an approval. It's merely
23 a review, and technical assistance is provided at
24 that time.
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1 Q. What would the impact be if Philadelphia
2 were determined to no longer be eligible for the
3 Federal Flood Insurance program?
4 A. As I said, if the City were found to not be
5 in compliance, it would risk losing the ability of
6 every resident, no matter what part of the City,
7 every business owner, no matter what part of the
8 City, to lose the ability to either purchase a new
9 policy of flood insurance or to renew an existing
10 policy.
11 THE CHAIRMAN: Has that ever
12 happened?
13 THE WITNESS: Not in Philadelphia,
14 but in other communities, yes, it has. And
15 that's a matter of public record in the
16 public registry.
17 THE CHAIRMAN: What community?
18 THE WITNESS: I can't tell you off
19 the top of my head because they are not
20 communities that I work in, but I know when
21 I'm reviewing through the Federal Register
22 to see the areas I've worked in, I see that
23 they are suspended communities.
24 THE CHAIRMAN: This letter that
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1 Mr. Witt sent to the Mayor, it states in
2 here that the newspaper, The Inquirer,
3 Crisis on the Coast -- did you inform
4 Mr. Witt of that article?
5 THE WITNESS: I had provided copies
6 of it to him.
7 THE CHAIRMAN: Thank you.
8 BY MR. KRAKOWER:
9 Q. Now, with respect to the --
10 A. There was one more part. Aside from losing
11 the ability to purchase insurance, a flood disaster
12 would not be available, so that the -- such as the
13 last disaster, I believe that -- I don't know what
14 the numbers were for Floyd, but I know that for
15 January of '96 when we had the snow melt, we got
16 something like $16 million in disaster assistance
17 and that would not have been available should we
18 not be eligible.
19 Q. That $16 million went to Federal funds in
20 the City of Philadelphia?
21 A. That's right.
22 Q. Now, with respect to the particular
23 applications that are before the Zoning Board, do
24 you have an opinion as to whether those applications
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1 should be granted?
2 A. My opinion now?
3 Q. Yes.
4 MR. KELSEN: Objection.
5 MR. SKLAROFF: Objection. That's
6 for the Board, really, and her standards
7 are not legal standards.
8 MR. KRAKOWER: What professional
9 information do you have with respect --
10 THE CHAIRMAN: Mr. Krakower, your
11 question is out of line.
12 MR. KRAKOWER: I'm changing my
13 question.
14 BY MR. KRAKOWER:
15 Q. What professional information do you have
16 with respect to the floodway of the Schuylkill
17 River at the area of Venice Island that should lead
18 to the conclusion it would be -- if you have such
19 an opinion, that it would be ill-advised to grant --
20 MR. KELSEN: Objection.
21 MR. KRAKOWER: If that's your
22 opinion. She is here to testify based
23 on --
24 THE CHAIRMAN: Mr. Krakower, you
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1 are wasting the time of the Board. Let's
2 move along.
3 MR. KRAKOWER: I think she can
4 testify --
5 THE CHAIRMAN: Next question.
6 MR. KRAKOWER: -- about why --
7 THE CHAIRMAN: Mr. Krakower, next
8 question.
9 BY MR. KRAKOWER:
10 Q. Do you have knowledge of the location of
11 the floodway area of the Schuylkill River with
12 respect to this area?
13 A. Yes, I do.
14 Q. As a professional surveyor?
15 A. Yes. And having reviewed the maps for this
16 particular area and having visited the site as
17 well.
18 Q. Are these maps that you have reviewed?
19 A. I have seen these maps, yes.
20 MR. KRAKOWER: Okay. Can I mark
21 these, one of these --
22 MR. SKLAROFF: Whose maps are they,
23 and has she done the extreme profile
24 measurements that went into these maps?
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1 THE WITNESS: I did not. These are
2 from FEMA.
3 MR. SKLAROFF: That's for the Board
4 to decide.
5 MR. KRAKOWER: These maps were done
6 by FEMA?
7 THE WITNESS: Those are photocopies
8 of the FEMA maps, which I have the original
9 of, if you need to look at those.
10 MR. KELSEN: I'll stipulate that
11 they were in the floodway; that's where we
12 are, we're not moving it.
13 MR. KRAKOWER: But I want the Board
14 to be able to see the area that's involved
15 here.
16 MALE VOICE: Mr. Krakower, please
17 keep in mind that the Board would really
18 like to know what some of the objections
19 are to people in that area.
20 THE CHAIRMAN: I think we heard
21 enough. Let's move along.
22 MR. KRAKOWER: I think you are
23 getting very definitely about what the
24 objections are.
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1 MALE VOICE: -- I think I'm
2 asking --
3 MR. SKLAROFF: Mr. Chair, Members
4 of the Board, this is an editorialized map,
5 because I don't know where FEMA maps showed
6 a denied variance on. If you are putting
7 in FEMA maps, which Dr. Waggle used in his
8 report, that's one thing, but if we're
9 editorializing or overlaying on the maps
10 editorial comments, I'd have to object to
11 that. You can't cross-examine a map.
12 MR. KELSEN: I join in that.
13 THE WITNESS: I have an original of
14 that map without any markings, if you would
15 like to see that.
16 MR. KELSEN: I think that would be
17 perfectly acceptable to have that handed
18 in.
19 MR. SKLAROFF: To the extent
20 relevant.
21 THE CHAIRMAN: If you have an
22 original map without markings --
23 THE WITNESS: We have original maps
24 without markings that clearly show Venice
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1 Island.
2 THE CHAIRMAN: Because what you
3 have on here is marked: The library, train
4 tracks and sole vehicle access.
5 Move on.
6 BY MR. KRAKOWER:
7 Q. Ms. Lathrop, as a surveyor, what are the
8 water related risks on Venice island that would
9 pose be posed, if any, from the proposals?
10 A. I believe that relates more to my
11 background as a planner than as a surveyor.
12 Q. All right. Then as a planner.
13 A. As a planner it has always been the utmost
14 to reserve -- to observe what kind of environmental
15 restrictions are on a site. In an area within a
16 flood plain is one that one must be very careful
17 with. One within a floodway is one that you must
18 keep open. If there are -- if there are structures
19 existing, either take them down or do not rebuild
20 them once they are taken down. And if there is
21 nothing there, put nothing there.
22 The best use for a floodway in the
23 view of a professional licensed planner is to keep
24 that as open space; generally, as passive
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1 recreation.
2 Q. Okay. Now, by the way, are you aware,
3 along the Schuylkill River, whether there are any
4 other areas in a floodway in which development is
5 taking place? I am particularly asking you about
6 the Locust Point development?
7 A. I am familiar with that. I have examined
8 the entire set of the flood insurance rate maps for
9 the entire City of Philadelphia. The floodway is
10 the only place within the City of Philadelphia
11 where the floodway actually covers land that comes
12 to the surface is Venice Island.
13 The balance of the floodway is
14 contained; it does not cover developed land.
15 Locust Point is within the flood plain, but it is
16 not within the floodway. There is no residential
17 development within the floodway within the City
18 limits.
19 Q. If the applicants had put on the record
20 testimony that parts of the Locust Point land were
21 in the floodway, would that have been inaccurate?
22 MR. KELSEN: Objection to the
23 characterization of the question. You are
24 mischaracterizing the question. Either
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1 reread her back Mr. Boles' testimony or I
2 move to strike it.
3 MR. KRAKOWER: I believe that
4 Mr. Boles testified that the Locust Point
5 -- parts of Locust Point Apartments were
6 within the floodway.
7 MR. KELSEN: I think Mr. Boles
8 testified that prior to the construction of
9 certain river improvements, it was in a
10 floodway, and I think the record will speak
11 for itself.
12 MALE VOICE: He testified that
13 other projects would be in a floodway,
14 including a cogeneration plant that the
15 University of Pennsylvania is granting.
16 MR. KRAKOWER: Well, within the --
17 let's get back to Locust Point. At the
18 time -- the record will speak for itself.
19 BY MR. KRAKOWER:
20 Q. Is Locust point within the floodway?
21 A. At the present time, Locust Point is in the
22 flood plain but not the floodway. I don't know at
23 what time it would have been in the floodway.
24 Q. Are you aware of any other land in the City
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1 of Philadelphia in which there is land, developable
2 land, that is within the floodway?
3 A. That's kind of a trick question, because if
4 you go by the ordinances, no land within the
5 floodway is developable, so I'm not sure how you
6 mean that.
7 Q. Well, it physically, physically could be
8 built upon?
9 A. No, there is not.
10 Q. Now, are there specific reasons that you
11 could let the Board know why you have reached the
12 opinions that you have with regard to the floodway
13 on Venice Island?
14 A. From personal observation I have seen the
15 water flow through there. I have -- I lived in
16 Philadelphia in the early 1970's. I moved away, on
17 the other side of the river, on the Delaware River,
18 where I happened to be right across from the falls
19 at Trenton and saw many floods through there, but I
20 moved back just in time to see the January '96
21 flooding; the effect of the extent of the water,
22 the speed of the water, and then again, just this
23 past fall to see how much damage there was, the
24 rage of the waters going through there.
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1 I have also been in a flood where I
2 was evacuated on the Ohio River in Paducah,
3 Kentucky, and it's not a pleasant thing to be
4 evacuated that way.
5 I would worry for anybody who was
6 placed in a situation where they were basically
7 given just a few hours to pack up whatever they
8 could get immediately with them and just leave
9 immediately. That's a dangerous situation.
10 There's a lot of emotion involved. That's my
11 personal opinion from personal experience.
12 Q. Are you aware of any other communities in
13 which there are presently plans to do new
14 developments within a floodway?
15 A. I am not aware of any.
16 Q. Are you aware of any Federal policy with
17 respect to such development as to whether it is
18 something that is looked upon with favor or
19 disfavor or whether there is a policy, one way or
20 the other?
21 MR. KELSEN: Objection. I don't
22 know if she is qualified to answer that
23 question.
24 MR. KRAKOWER: Are you aware of
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1 Federal policies with regard to --
2 MR. SKLAROFF: If the Federal
3 policy is not --
4 THE CHAIRMAN: So noted. Can you
5 answer the question from your own personal
6 knowledge?
7 THE WITNESS: Yes, sir. It's
8 stated in Executive Order 11-9-88 issued by
9 Jimmy Carter in 1977, which was to protect
10 lives, property, and the natural and
11 beneficial matters relating to flood
12 plains, to protect other areas, because the
13 flood plains protect other areas by keeping
14 the water there.
15 And FEMA has been approaching the
16 development of flood plains as a litigation
17 approach, meaning let's not go in and make
18 a Band-aid after we allow something. Let's
19 prevent it and avoid the problem in the
20 first place.
21 That's why we're seeing so many
22 buyouts, and that's why just down the Darby
23 Creek, Darby Borough is experiencing
24 massive buyouts for this very reason,
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1 getting people out of harm's way.
2 FEMA is moving entire towns.
3 Within Wisconsin, Soldiers Grove, they
4 moved the entire town just to get people
5 out of the floodway and the flood plain, so
6 that they do not have this kind of
7 problem.
8 People behind levees get a false
9 sense of security. They are moving people
10 away from levees in case there is a breach
11 in the levy and the water comes out.
12 BY MR. KRAKOWER:
13 Q. Are you familiar with the problems in Darby
14 Borough?
15 A. Yes, I am.
16 Q. Are you familiar with correspondence
17 from --
18 MR. KELSEN: Objection.
19 THE CHAIRMAN: So noted.
20 MR. KELSEN: It's irrelevant to the
21 proceeding.
22 THE CHAIRMAN: Mr. Krakower, let's
23 wrap it up.
24 MR. KRAKOWER: Well, this is a
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1 letter with regard to similar problems --
2 THE CHAIRMAN: Mr. Krakower, let's
3 wrap it up.
4 MR. SKLAROFF: It will take us a
5 half-hour to determine whether or not it is
6 similar. It's not relevant.
7 MR. KRAKOWER: We have letters from
8 various --
9 THE CHAIRMAN: Submit your letters
10 and we'll decide if we're going to put them
11 into evidence.
12 MR. KRAKOWER: I am going to mark
13 this P-10. This is a letter from Mayor
14 Brown of Darby Borough with respect to the
15 effects of flooding in her borough being in
16 a flood plain. There's a --
17 MR. KELSEN: Again, I'll move to
18 strike the letter, Mr. Chairman.
19 MR. SKLAROFF: We join in that
20 motion.
21 MR. KRAKOWER: Now, I won't ask
22 Ms. Lathrop questions about the letter.
23 I'll simply submit it at this point and let
24 it speak for itself. It's addressed to the
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1 Zoning Board.
2 I have no other questions.
3 (Document marked for identification
4 as Exhibit Number P-10.)
5 MR. KELSEN: May I cross?
6 THE CHAIRMAN: Sure.
7 BY MR. KELSEN:
8 Q. Ms. Lathrop, did you, in obtaining this
9 letter from the Director, James L. Witt, provide
10 him with --
11 MR. KRAKOWER: I'm just going to
12 object for the record in terms that she
13 "obtained" it.
14 MR. KELSEN: She admitted on the
15 record that she was influential in getting
16 this letter.
17 Is that correct?
18 THE WITNESS: I discussed the
19 matter with him in a professional manner.
20 We have a professional relationship because
21 I'm on the council that advises his -- him
22 and his agency.
23 BY MR. KELSEN:
24 Q. Did you ask for him to send a letter to the
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1 Mayor?
2 A. I asked him -- what I had asked him was to
3 review the ordinances and to see whether, in fact,
4 the City ordinances were, in fact, more stringent
5 than the Federal regulations.
6 Q. Did you ask him to send a letter to the
7 Mayor of Philadelphia?
8 A. I did not ask him to send a letter; I asked
9 him what we could do about stopping development in
10 this area.
11 Q. So you didn't ask him to write a letter to
12 the Mayor of Philadelphia, did you?
13 A. I did not specifically ask him to write
14 that letter, no.
15 Q. Did you suggest that he write a letter to
16 the Mayor of Philadelphia?
17 MR. KRAKOWER: I'm going to object.
18 THE CHAIRMAN: It's a fair
19 question.
20 Did you suggest, ma'am --
21 THE WITNESS: It might have been
22 whatever way he could help us, by either
23 discussing it on the phone or writing, I
24 don't know the exact words that I used, but
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1 I do know that I asked for his assistance,
2 his advice and his opinion on the City
3 ordinances.
4 BY MR. KELSEN:
5 Q. Did you provide him with information,
6 either oral or written, to advise him that his
7 local FEMA agency had reviewed and had found that
8 there would not be an increase in the regulatory
9 flood rate based on their technical --
10 MR. KRAKOWER: Objection to the
11 form of the question. That's not what
12 their review said.
13 MR. KELSEN: I'll let you rule and
14 let her answer the question.
15 THE CHAIRMAN: Answer the question,
16 ma'am.
17 THE WITNESS: At the time when I
18 first spoke with him, which was in March,
19 that letter had not been issued.
20 BY MR. KELSEN:
21 Q. Did you advise him that FEMA, Region III,
22 was, in fact, looking at this issue and looking at
23 the hydrology data?
24 A. Yes, I did. I did not know specifically
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1 what information Region III had at hand, but I did
2 let him know that there were plans being reviewed.
3 Q. The FEMA letter is dated May 15, 2000; is
4 that correct, the Region III letter?
5 MR. KRAKOWER: Objection. It is
6 what it is. It says what it says.
7 MR. KELSEN: I agree it says what
8 it says. I'm just asking if she's aware of
9 that.
10 Do you have a copy of that letter?
11 THE WITNESS: I don't have a hard
12 copy of that.
13 BY MR. KELSEN:
14 Q. And the letter that Mr. Witt wrote to the
15 Mayor is dated June 9, 2000; is that correct?
16 A. Yes.
17 Q. Is it your testimony that you had not seen
18 this Region III letter prior to Director Witt's
19 issuing his June 9, 2000 letter?
20 A. I have not seen this particular letter. I
21 had seen -- I had known that there was a letter
22 that had gone out, but I had not seen this form of
23 this letter to know to whom it was written. I had
24 merely heard, because I had been in FEMA's office
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1 early in June and had heard -- I was talking with
2 some of my colleagues that work there -- that a
3 review had been made.
4 Q. But did you ever give Director Witt the
5 opportunity to be informed that his Region III
6 issued this May 15th letter before he finalized his
7 June 9th letter? Did you have any communication
8 with him after that letter was issued or when you
9 had knowledge that there was going to be an
10 issuance?
11 A. I haven't had this letter long enough to do
12 that.
13 Q. You said you had knowledge of it? Did you
14 contact Director Witt after --
15 A. No.
16 Q. Why not?
17 A. Why not? Because the regions act
18 independently and what the letter says is it's not
19 on approval, and furthermore, development within
20 the designated floodway is contradictory to our
21 agency's admission of reducing the loss of life and
22 property associated with natural and man-made
23 disasters.
24 Q. But what I'm getting at, I guess, simply is
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1 that there is an assumption in this letter that
2 Director Witt wrote on June 9 that this development
3 is inappropriate, and you're contacting him, you're
4 discussing with him and seeking some effort on his
5 part to address the application before the Board,
6 yet you neglected to give him the proper
7 information that in fact --
8 MR. KRAKOWER: Objection. That
9 isn't a question, that's a speech.
10 MR. KELSEN: It's cross now.
11 THE WITNESS: There is a technical
12 point in here that did you not want me to
13 address technical issues. I did not
14 address technical issues here, merely the
15 policy of the regulations in place.
16 BY MR. KELSEN:
17 Q. But you never thought to let the Director
18 know that his technical people reviewed the data
19 and found it acceptable, did you? That's all I
20 want to know; yes or no?
21 A. I can't recall what I said to him last week
22 when I saw him face to face, whether or not I
23 mentioned, in fact, that there had been -- I know
24 that I had mentioned that Region III had reviewed
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1 it, and he knows that there would be.
2 Q. Wouldn't you want the Director to have a
3 full wealth of knowledge before having a letter
4 like this sent to the Mayor --
5 A. But I don't see the relevance of your
6 question.
7 Q. Well, that's not your job.
8 A. I know, but I'm not sure how to answer,
9 because I can't follow your question.
10 Q. You don't feel that it was important to
11 give, as a scientist, all of the information
12 necessary for a director of FEMA to issue a
13 response to the Mayor of the City of Philadelphia?
14 A. Because his letter was based upon policy
15 and regulations and not technical issues.
16 Q. Well, isn't it fair to say it's based on
17 the outcome you wanted the Director to write --
18 MR. KRAKOWER: Objection.
19 MR. KELSEN: I'll move on.
20 THE WITNESS: The final paragraph
21 of this letter from Region III says exactly
22 the same thing; it has a letter from
23 Director Witt.
24 MR. KELSEN: But it doesn't say
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1 that they comply with the technical
2 requirements of FEMA in order to build a
3 floodway, does it?
4 MR. KRAKOWER: It doesn't say that
5 they don't. Objection.
6 MR. KELSEN: Do they? Give me back
7 the May 15th letter and tell me that they
8 are the same.
9 THE WITNESS: I will read to you --
10 the final paragraph there you will see
11 the --
12 BY MR. KELSEN:
13 Q. No. Let's read the first paragraph.
14 A. Okay. The wording does not make sense.
15 THE CHAIRMAN: Wait a minute.
16 One person at a time can speak
17 here. This is not a group event. The
18 court reporter cannot take down two people
19 at the same time.
20 BY MR. KELSEN:
21 Q. Ms. Lathrop, I am going to read you the
22 first paragraph. And tell me if this first
23 paragraph is consistent with the implications of
24 the statements made in the June 9th letter from the
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1 Director. Okay.
2 In response to your -- Dear Ms. --
3 Catherine, this is the May 15th letter, "In
4 response to your submission of the hydraulic
5 analysis for the Venice Island area received on May
6 4, 2000, our office has completed its review. We
7 have found that it is acceptable and compliant with
8 Title 44 of the Code of Federal Regulations,
9 Section 60.3(d).
10 The City of Philadelphia, however,
11 should make sure that the analysis is signed and
12 certified by a registered professional engineer and
13 maintain that certification on file."
14 Parenthetically, Members of the
15 Board, that has been done.
16 Does that language appear in the
17 June 9, 2000 letter from the Director?
18 MR. KRAKOWER: We'll stipulate it
19 does not.
20 MR. KELSEN: I would like to hear
21 -- she said they're identical.
22 THE WITNESS: This letter has
23 entirely different language, but in terms
24 of what it addresses, that letter is an
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1 approval letter or a review letter saying
2 you have complied with minimum technical
3 standards. But it's a qualified letter.
4 There's an opinion that I would
5 like to express, but I don't know if I'm
6 permitted to do so, regarding the tone of
7 that letter.
8 BY MR. KELSEN:
9 Q. Is there any reason to believe that the
10 City of Philadelphia is not in compliance with
11 flood insurance regulations at this time?
12 A. Not at this point. But should that
13 construction go forward, it would not.
14 Q. Oh, is it your testimony today --
15 A. That's my opinion.
16 Q. I'm asking you, is it your testimony today
17 that if this Board approves the matters before it
18 and the FEMA analysis is complied with the way it
19 has been, that the City of Philadelphia would not
20 be in compliance with its Federal flood insurance
21 program?
22 A. I can't testify as to all the
23 qualifications about that, but regarding the lack
24 of adherence to its own ordinances, that is
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1 something for which FEMA has the right to review
2 for suspension from the program.
3 Q. That's not what I asked you.
4 A. But I can't answer it any other way.
5 Q. So, you don't know?
6 A. I am not the person that holds the whip at
7 FEMA; that says, "Yes, I'm cutting you off."
8 Q. Did FEMA accept the calculations that are
9 required under the Federal regulations for this --
10 A. According to that letter, it did. But
11 you're not --
12 MR. KELSEN: No further questions.
13 It's irrelevant.
14 MR. KRAKOWER: She can qualify her
15 answer.
16 THE WITNESS: You said I'm not
17 permitted to address technical issues, so
18 I'm not going to talk about the technical
19 side of it. I'm merely talking about
20 professional and regulatory --
21 BY MR. KELSEN:
22 Q. Are you testifying today that these
23 submissions do not meet FEMA's requirements?
24 A. I cannot answer that because I am not
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1 qualified to address the technical aspects. I am
2 qualified to address the policy on the regulatory
3 side.
4 Q. But we're not here to dicuss the policy.
5 MR. KELSEN: I'm finished.
6 THE CHAIRMAN: Moving on. Do you
7 have any other questions for this witness,
8 sir?
9 MR. KELSEN: No, I do not.
10 MR. SKLAROFF: If you'd give me one
11 second, I'm checking.
12 (Pause.)
13 BY MR. SKLAROFF:
14 Q. Is it your policy statement that
15 compensation should be paid to the owners of
16 properties that can't be developed because of this
17 floodway regulation in order to make --
18 A. Why are you asking me is it my policy?
19 Q. Well, you said that the appropriate use for
20 these properties would be green space. I think you
21 said "passive recreation." Who is going to pay for
22 that?
23 MR. KRAKOWER: Objection. She's
24 talking about her opinion. You are asking
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1 about her opinion.
2 THE WITNESS: Do you want my
3 opinion?
4 MR. SKLAROFF: She's the only one
5 standing up here.
6 THE WITNESS: There are two ways to
7 use that land. There used to be existing
8 buildings in a way that does not contain
9 residential because it's much easier to
10 evacuate commercial and industrial than it
11 is residential. So reuse of the existing
12 building or as buildings come down or are
13 flooded out or whatever -- but that area
14 should revert to its former space.
15 MR. SKLAROFF: I ask you again, who
16 will compensate the owners of those
17 properties for their inability to use them
18 as a result of floodway regulation?
19 MR. KRAKOWER: Objection. She
20 didn't say they'd be unable to be used.
21 It's not a proper question.
22 THE CHAIRMAN: Can you answer the
23 question, ma'am?
24 THE WITNESS: That is a legal
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1 question, because in terms of whether or
2 not people must be compensated to the value
3 that they believe a property is suitable
4 for as opposed to having any use, that is a
5 matter of the Court's decision, and I
6 prefer --
7 THE CHAIRMAN: You can't answer the
8 question?
9 THE WITNESS: I cannot.
10 THE CHAIRMAN: Thank you. Any
11 other questions?
12 MR. KELSEN: I have nothing.
13 BY MR. SKLAROFF:
14 Q. You've proposed in your report that Venice
15 Island be recreational, correct, and green space?
16 A. That's my preference, but there are other
17 uses for it.
18 Q. And City Council has a different view;
19 isn't that correct?
20 A. Apparently so.
21 Q. And you appeared at City Council?
22 A. Yes, I did.
23 Q. And they disagree with you?
24 A. Some of them did, some of them didn't.
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1 Q. The majority -- it doesn't have to be, does
2 it?
3 MR. KELSEN: No.
4 BY MR. SKLAROFF:
5 Q. And they changed the zoning. So you would
6 disagree with G-2 commercial, you would disagree
7 with residential?
8 A. That's correct.
9 Q. Now, just one other question. You most
10 recently met with the Director within the past
11 week?
12 A. Yeah -- excuse me, yes. It was last
13 Thursday.
14 Q. And you have a professional relationship
15 with the Director?
16 A. Yes, I do.
17 Q. And you have a professional relationship
18 with the people in Region III?
19 A. Yes, I do.
20 Q. Okay. And your testimony is that you --
21 did you have any involvement in the preparation of
22 this letter?
23 A. In terms of providing information to
24 Director Witt?
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1 Q. Yes.
2 A. Yes. I provided him with copies of the
3 ordinance. There were several ordinances that I
4 provided to him, and I provided him a copy of the
5 Inquirer article series.
6 Q. But you didn't provide him with a copy of
7 the May 15th letter?
8 A. I did not have it.
9 Q. Did you ever provide him with a copy of the
10 May 15 letter either before June 9th or afterwards?
11 A. I did not.
12 MR. SKLAROFF: No further
13 questions.
14 THE CHAIRMAN: Thank you, ma'am.
15 (Witness excused.)
16 MR. KRAKOWER: I am going to try to
17 move ahead here. First, I would like
18 Mr. Gerald Harrison to come up. This is
19 just simply for the purpose of identifying
20 some photographs.
21 THE CHAIRMAN: If you would put
22 your name and address on the record, sir.
23 THE WITNESS: Gerald, G-e-r-a-l-d,
24 Harrison, two r's. 232 Ripka, R-i-p-k-a
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Gerald Harrison
1 Street, Philadelphia, 19127.
2 THE CHAIRMAN: Thank you.
3 MR. KRAKOWER: Mr. Chairman,
4 Members of the Board, I marked some
5 photographs P-11. These have all already
6 been submitted. The photographs that I
7 just marked over, marked Cinco de Mayo.
8 BY MR. KRAKOWER:
9 Q. Mr. Harrison, the photographs that I just
10 had marked Cinco DeMayo, were you present when
11 those photographs were taken?
12 A. Yes, I was.
13 Q. And do they accurately reflect the
14 conditions reflected in the photographs?
15 A. They do.
16 Q. I have marked some tractor-trailer
17 requirements photographs marked P-11. Do these --
18 MR. SKLAROFF: Is this a different
19 set?
20 MR. KRAKOWER: They were previously
21 marked P-6. Now, I have what's been marked
22 as P-11, and can you tell me if these
23 accurately reflect that you were present,
24 the photographs of the traffic situation,
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1 the vehicles and trucks, et cetera, at the
2 locations where indicated?
3 MR. KELSEN: I am going to object
4 for the purpose of relevancy, and I'm not
5 sure where these photographs are coming
6 into this.
7 THE CHAIRMAN: Objection so noted.
8 MR. KRAKOWER: They show the
9 circumstances and give the Board the
10 benefit of physically seeing what the area
11 looks like, like any photographs do.
12 MR. SKLAROFF: Okay. Fine.
13 MR. KELSEN: For that purpose,
14 we'll let it in.
15 MR. SKLAROFF: No objection.
16 MR. KRAKOWER: I have nothing else
17 for Mr. Harris.
18 MR. KELSEN: Thank you, Mr. Harris.
19 (Witness excused.)
20 MR. KRAKOWER: Mr. Stephen Miller.
21 THE CHAIRMAN: Would you put your
22 name and address on the record.
23 THE WITNESS: Stephen Miller, and
24 my address is 78521 Horseshoe Lane,
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1 Potomac, Maryland.
2 BY MR. KRAKOWER:
3 Q. Mr. Miller, what is your occupation, sir?
4 A. My occupation, I'm a professional
5 firefighter.
6 Q. All right. And do you have any particular
7 aspect of your work as a firefighter that uniquely
8 relates to the matters of flood problems that are
9 presently or might be presently before this
10 Commission?
11 A. Well, I'm a professional water rescuer.
12 Q. All right. Now, first, before we put those
13 on, did you --
14 MR. KRAKOWER: Before we get to
15 that; Mr. Harrison, I did forget one other
16 thing. I am going to mark this P-12. This
17 is a letter to Mr. Harrison from
18 Commissioner Harold Hairston, the Fire
19 Commissioner of the City of Philadelphia.
20 (Document marked for identification
21 as Exhibit Number P-12.)
22 BY MR. KRAKOWER:
23 Q. Mr. Harrison, did you have communications
24 with Commissioner Hairston of the City of
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1 Philadelphia with respect to having a Philadelphia
2 Fire Department official testify before this Board
3 regarding rescue on the river, on the Schuylkill
4 River?
5 A. Yes, I did.
6 Q. Did you receive a letter back from
7 Commissioner Hairston, which I have marked P-12 --
8 A. Yes.
9 Q. -- denying your request?
10 A. Yes, I did.
11 Q. Did Commissioner Hairston give you any
12 reason for the denial?
13 A. No.
14 Q. Okay.
15 MR. KRAKOWER: Thank you. I just
16 wanted that to explain to the Board, how we
17 went out of town to get somebody to make
18 this testimony.
19 BY MR. KRAKOWER:
20 Q. Mr. Miller, would you testify to your
21 background and knowledge with regard to flood
22 rescue or water rescue.
23 MR. SKLAROFF: Stanley, before we
24 get into this --
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1 THE CHAIRMAN: Before we go any
2 further, Mr. Krakower, we have a denial
3 from Fire Commissioner Hairston. Do we
4 have the letter that you sent him?
5 MR. KRAKOWER: That he sent him,
6 no.
7 MR. SKLAROFF: Could we, while
8 we're waiting for that, have an offer of
9 proof?
10 MR. KRAKOWER: Yes. Mr. Miller is
11 going to testify to rescue problems that
12 are particularly unique in flooding rivers
13 where they are residential in nature, as
14 distinguished from those that may be
15 commercial or industrial in nature.
16 He is going to testify to the
17 dangers to the rescuers as well as to the
18 inhabitants of floodwaters in floodways,
19 and he has been in various parts of the
20 country, and the expenses that are involved
21 to the City of Philadelphia that would be
22 involved in the rescue operations that
23 would probably be needed.
24 MR. KELSEN: Objection.
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1 MR. SKLAROFF: Now, just one other
2 question: Would you state for us, Stanley,
3 what he has done to familiarize himself
4 with the plans, with Venice Island, with
5 the situation and with the fact that the
6 residences are all above the regulatory
7 flood plain.
8 MR. KRAKOWER: He is aware of
9 that. He has been to the site, he has
10 talked to various Fire Department people in
11 the City of Philadelphia. He has been
12 involved in training programs, and he is
13 familiar with the proposals for -- not for
14 evacuations plans because we haven't seen
15 any.
16 MR. SKLAROFF: The point of this is
17 as follows: There is a disconnect here.
18 We have a program, a proposal which
19 satisfies the technical requirements of
20 FEMA. We have residential units which are
21 built above the regulatory flood plain. We
22 have a pedestrian bridge in the case of
23 Cotton Street, which is above the
24 regulatory flood. We have a way out of the
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1 bridge at the end, which is above the
2 regulatory --
3 MR. KRAKOWER: Well, we haven't
4 seen that.
5 MR. SKLAROFF: Wait a second. You
6 haven't looked at the plans. They are
7 there, and the testimony is on the record.
8 So the only thing that's missing to connect
9 this is that there is a danger to people.
10 And you are assuming that once there is a
11 flood and once people's houses are
12 inundated, there's no basis for that on the
13 record.
14 I object to this testimony. You
15 haven't set a foundation for this kind of
16 testimony, and it becomes not probative,
17 it's inflammatory.
18 MR. KRAKOWER: Now, we will submit
19 that this type of testimony is exactly what
20 is needed to show the differences between
21 what's before this Board if this was a
22 commercial or an industrial reuse of the
23 Namico Factory or the Connelly Container
24 Factory as compared to a residential --
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1 MR. SKLAROFF: There is nothing in
2 this record that demonstrates that there is
3 other than residential construction above
4 the regulatory floodway, nothing in this
5 record which so establishes. So it is
6 premature, there is no foundation for
7 this. You are assuming that people in
8 residences are within the floodway.
9 They're within the water. Yes, if they are
10 within the water, it's a dangerous
11 situation.
12 MR. KRAKOWER: Which they may be
13 within the water and the potentiality for
14 them being within the water is what this
15 Board has to consider.
16 MR. SKLAROFF: There is no evidence
17 of that. You're assuming --
18 THE CHAIRMAN: Your objection is on
19 the record. We're going to go a question
20 at a time here. Move along.
21 MS. JAFFE: Why don't you talk
22 about the safety issues, just generally
23 speaking, as they would apply to a variance
24 case. That's what's really relevant.
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1 MR. KRAKOWER: That's what I would
2 like Mr. Miller to do.
3 BY MR. KRAKOWER:
4 Q. Mr. Miller, tell us what experience you've
5 had and what are the safety issues that this Board
6 should consider in determining whether to approve
7 this project.
8 A. Well, I think one issue strongly to
9 consider is the fact that over 90 percent of the
10 people that drown during a flood drown in or near
11 their automobiles. It's easy to say to them leave
12 their cars and go back across the bridge and don't
13 worry about it. People won't do that. People will
14 not evacuate when you tell them to.
15 That's why we're in the business --
16 in the business that I'm in, flood rescuer.
17 Actually, this whole project is very interesting.
18 I can't -- with the history of flooding that's
19 occurred recently and the amount of deaths in North
20 Carolina and Floyd and everything that's been going
21 on, I find it very interesting that this would be
22 considered.
23 Q. What specific concerns do you have and what
24 specific concerns should this Board be aware of
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1 with respect to how people --
2 MR. KELSEN: Objection.
3 MR. SKLAROFF: Object, and ask that
4 it be stricken. This is the problem with
5 this kind of testimony.
6 MR. KELSEN: There's no foundation,
7 it's inflammatory.
8 THE CHAIRMAN: Objection so noted.
9 Sir, did you look at this project?
10 THE WITNESS: I walked the area.
11 THE CHAIRMAN: Did you look at the
12 drawings?
13 THE WITNESS: Uh-huh.
14 THE CHAIRMAN: Did see how high
15 it's going to be?
16 THE WITNESS: Yes. Well, that's
17 fine if you are going to tell people that
18 sit in the building during the flood.
19 THE CHAIRMAN: I said, did you see
20 how high it was going to be.
21 THE WITNESS: I couldn't tell you.
22 THE CHAIRMAN: I thought you looked
23 at the drawings.
24 THE WITNESS: I saw the maps that
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1 Mr. Harrison had. I did not see the actual
2 site plans.
3 THE CHAIRMAN: So you didn't
4 calculate the measurements, how high the
5 building would be up out of the water.
6 THE WITNESS: I'm sure that you can
7 build something high enough that it won't
8 get wet. How long it will stand is another
9 issue.
10 I'm talking about the people that
11 live there, that -- it's human nature;
12 they're not going to abandon their cars.
13 That's why they drown in or near their
14 cars. It's a factor. It's sad, but that's
15 what keeps us in business.
16 MR. KRAKOWER: Mr. Miller, do
17 people react, in your experience as a flood
18 rescue person, the same when they are
19 facing problems in their home and there's
20 flooding in their home as they do where
21 they're employed?
22 MR. KELSEN: Objection. Is he
23 testifying as a psychiatrist?
24 MR. KRAKOWER: No. As to his
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1 experience in rescuing people in
2 residential circumstances as distinguished
3 from commercial or industrial rescues.
4 MR. KELSEN: I reiterate my
5 objection.
6 THE CHAIRMAN: Mr. Miller, I have
7 to say, because I don't in any way want to
8 minimize the pride I have in your
9 profession, and by doing this, you are
10 asking him to talk about things and then
11 the lawyers are all going to tear him apart
12 and everything else. I appreciate that you
13 are here today and I appreciate in an
14 emergency that you're there and you take
15 care of business.
16 The best part and the most
17 important part of your job is that you are
18 the person that takes over and acts right
19 away and saves the day and helps people the
20 best that you can. So every situation is
21 different. And because of this or that or
22 whatever, we can't decide what's going to
23 happen. If we could, then you would be out
24 of business.
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1 So, I just want to make it clear
2 that you are here and we appreciate your
3 being here and we have all the respect in
4 the world for what you do, but this has
5 nothing to do with the zoning,
6 Mr. Krakower.
7 It's a little offensive to put him
8 in this position.
9 MR. KRAKOWER: I didn't think of it
10 that way.
11 If I may ask a question; have you
12 ever trained with the Philadelphia Fire
13 Fighters?
14 THE WITNESS: No. Mr. Kurtz might
15 be able to speak to that. He is an
16 instructor.
17 MR. KRAKOWER: Let me just ask one
18 question.
19 BY MR. KRAKOWER:
20 Q. Have you ever provided advice or
21 information to any other boards, agencies or other
22 governmental groups, with respect to, particularly,
23 flood problems and flood evacuations?
24 A. Yes. I've testified before Congress.
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1 Q. What Congress? Of the United States?
2 A. Yes.
3 Q. And what --
4 A. Subcommittee.
5 Q. And in what capacity, what subcommittee,
6 what was the topic on which you testified?
7 A. There was the transportation subcommittee
8 that has oversight on FEMA.
9 Q. And what was the purpose of your testimony?
10 A. We were discussing national flood response
11 issues and the lack of national flood respond
12 capabilities.
13 Q. And what was the bottom line, as it were,
14 with respect to flood responses? What was your
15 advice?
16 A. The problem right now is not being
17 addressed on the national level, and that's why
18 these hearings came about. And we were trying to
19 effect some standards and some training and minimal
20 equipment needs and trying to put together national
21 flood response teams, public education and some
22 help with the local rescuers, as far as funding and
23 equipment.
24 Q. Have you prepared -- I don't know whether
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1 you prepared or Mr. Kurtz ...
2 A. Mr. Kurtz.
3 Q. Did you prepare any documentation for the
4 Board?
5 A. I was not asked to.
6 Q. All right.
7 MR. KRAKOWER: I have no other
8 questions.
9 MR. KELSEN: Two questions.
10 BY MR. KELSEN:
11 Q. Mr. Miller, are you aware that the
12 development of the soap factory, the Namico factory
13 is going to involve the creation of an emergency
14 bridge, a structured evacuation route that goes
15 from the second floor of the building to the bridge
16 that leads up to Main Street? Are you aware of
17 that?
18 A. Pedestrian bridge?
19 Q. Like an emergency exit?
20 A. Yes, I heard that.
21 Q. Would that affect your analysis about
22 people leaving or having the ability to leave
23 outside the flood waters?
24 A. Well, unfortunately, while some people are
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1 very sensible, most of them -- a lot of the people
2 do dumb things around water. The people wait until
3 the last possible moment to leave. At the last
4 possible moment they try and pack everything in
5 their cars and leave with their cars. And that's
6 what kills a great percentage of people in
7 flooding.
8 Q. But are you testifying that it's been your
9 experience that creation of these emergency bridges
10 don't assist the project, they don't help --
11 A. I'm not saying they are a bad idea at all.
12 It's great that you all thought of that. I wish
13 other groups were that responsible. My concern is
14 the human nature of the people that we see and what
15 we deal with, taking advantage of that resource and
16 provider.
17 Q. Would you have that same situation, for
18 example, at the Smurfit Stone Container Company
19 that employs about 500 people? They don't have an
20 evacuation route. What do you think about that?
21 A. They do not have one?
22 Q. They do not.
23 A. It's irresponsible. This is my opinion.
24 And I have seen people die in Florida.
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1 Q. It was your testimony, I thought, before
2 that industrial and commercial properties have
3 different responses; people differ. What's
4 different about those 500 people at Smurfit and the
5 people that will reside in these residential
6 apartments with that evacuation bridge if it was
7 necessary?
8 A. I'm sorry?
9 Q. What's the difference between --
10 A. What's the difference?
11 Q. -- the people there and the people --
12 A. Generally, the people's first reaction is
13 to save their home and save whatever, you know,
14 their family, their labrador, their parakeet,
15 whatever. That's what they're going to go for
16 first. They readily abandon -- most people would
17 readily abandon a factory right away. Let's go,
18 get out. This is crazy staying here. But when
19 it's your house --
20 Q. I guess where I'm confused, and I think
21 it's not your fault because you haven't seen the
22 flood plans, and you need to. But the level of
23 floodway, even at the 100-year flood elevation, is
24 well below the occupied floors of the Namico
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1 building?
2 MR. KRAKOWER: I'm going to object
3 to that.
4 THE CHAIRMAN: So noted.
5 MR. KELSEN: What are they saving,
6 other than their automobiles?
7 THE WITNESS: That's very important
8 to some people. Why do people drive
9 through flooded streets? If you can stop
10 that, you would stop over 90 percent of the
11 people that die in floods.
12 BY MR. KELSEN:
13 Q. Is there not a level of warning that's
14 associated with flooding so that people will remove
15 their cars --
16 A. Why don't people leave when you order
17 mandatory evacuations? If they do, we wouldn't
18 need rescue.
19 Q. So, your testimony is that no matter what,
20 no matter who's on that island, it's going to
21 create flooding issues; is that correct?
22 A. My professional opinion would be that at
23 some point in the future, and I can't speak of a
24 five-year, a hundred-year, at some point in the
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1 future someone, will probably drown down there;
2 it's more than likely as a result of flooding.
3 Q. Whether there's a residential development
4 or not?
5 A. Whether it's residential or not; hopefully
6 it won't be a rescuer. My duty is to myself first,
7 my team second and everybody else. Unfortunately,
8 a firefighter is four times more likely to die in a
9 moving water rescue attempt than he is in a
10 structure fire.
11 MR. SKLAROFF: I would like to ask
12 one question on redirect on Mr. Kelsen's
13 questions. I think Mr. Kelsen is finished.
14 BY MR. SKLAROFF:
15 Q. Mr. Miller, the typical unfortunate
16 situation where people are found drowned near their
17 automobiles or in their automobiles, what is the
18 typical situation?
19 A. In or near. They're either attempting to
20 get back to their home or attempting to get away
21 from it, but they won't leave. They're told to
22 leave, and they don't want to leave their car
23 behind, or, you know, the guy's pickup truck,
24 that's his livelihood, he's got all his tools, and
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1 if he loses that --
2 Q. And, really, the means of access, if you
3 are in a single-family home, for example, to get
4 out of harm's way, is the automobile, isn't it, in
5 a typical case?
6 A. In the typical case, it depends on the
7 area. Some areas just can't -- I was stuck on the
8 Outer Banks one night, just waited until -- this
9 was years and years ago before I was in the
10 business. They ordered a mandatory evacuation, and
11 that's when I decided to leave, but by then the
12 roads couldn't handle the traffic.
13 Q. And you don't have to be a rocket scientist
14 to know that on the Outer Banks you have a
15 situation there that's going to be a problem from
16 time to time. But typically in the situation where
17 people have lost their lives, it isn't a situation
18 where the houses are built at grade and the cars
19 are at grade; isn't that right?
20 A. Sure. That's the way most construction is.
21 Q. And of course, all across the country, and
22 it frequently happens in the flood plains, where
23 creeks and rivers are what they call flashy --
24 A. A great deal of death due to flash
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1 flooding, right.
2 Q. And very few, you would say, would be in
3 city circumstances where houses are built and the
4 escape way is built and the access way is all above
5 the regulatory flood.
6 A. I don't know if I can say that.
7 MR. SKLAROFF: I have no further
8 questions.
9 MR. KELSEN: Very briefly, if I
10 may.
11 BY MR. KELSEN:
12 Q. You were here earlier, I believe, and you
13 heard the engineers, Mr. Goll and Mr. Skupien,
14 speak about the velocity of the water that they
15 expect to be moving through the island.
16 A. I believe he said 8 to 10 miles an hour.
17 Q. 8 to 10 --
18 A. Feet per second.
19 Q. And do you have any experience with water
20 of this type, any knowledge?
21 A. Yes.
22 Q. And can you tell us, does that pose any
23 kind of difficulty or hazard in removing people or
24 objects from this velocity moving water?
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1 A. That poses a tremendous technical rescue
2 problem. Basically, with the amount of debris that
3 will probably be in the water as -- coming down in
4 the water, as a rescuer, I would have to see the
5 specific situation to tell you whether or not we
6 could do a boat and back or a shallow water
7 crossing, as they call it.
8 But down there you are probably
9 going to be reduced to a lot of helicopter
10 evacuations, which is about the real high scale for
11 danger for making a rescue.
12 Q. And also, in response to the previous
13 testimony, they spoke about blockages of the
14 pillars. Is there something that people in your
15 profession call strainers?
16 A. That's a danger to the rescuers, yes.
17 That's what kills rescuers.
18 Q. What does that --
19 A. It's called a strainer because the water
20 will flow through, but objects can't. Trees, chain
21 link fences create strainers. The problem down
22 there would be the trees impacting on the pilings
23 and building up and building up, and that will
24 continue until the flood starts to recede.
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1 MR. SKLAROFF: Just one question on
2 this helicopter evacuation.
3 BY MR. SKLAROFF:
4 Q. What circumstances would lead you to a
5 helicopter evacuation?
6 A. What would dictate that?
7 Q. Yeah.
8 A. If you cannot get -- safely get safety to
9 the victims.
10 Q. Now, you are not going to lift cars out of
11 the water with helicopters?
12 A. No, obviously not.
13 Q. And all the people are going to be leaving
14 by a pedestrian bridge above the regulatory flood.
15 A. You're saying all the people will leave?
16 Q. Absolutely. And assume an evacuation plan
17 where automobile access is controlled by the
18 management of the property.
19 A. So the manager is --
20 MR. KRAKOWER: I am going to object
21 to the assumption that he wants.
22 THE WITNESS: If I could say as a
23 rescuer, I think you are assuming a lot.
24 You are very optimistic, because from what
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1 I've seen in flooding situations, you are
2 going to tell me -- and I am speaking
3 hypothetically -- this building here is
4 going -- that I'm not going to drive my car
5 out of here, you'd better get out of my way
6 or I'll run you over.
7 BY MR. SKLAROFF:
8 Q. Well, you know, maybe --
9 A. Whose fault is it they died? It's their
10 fault.
11 Q. Well, that could all be addressed, the
12 management of that, in an evacuation plan.
13 MR. KRAKOWER: I'm going to object
14 to Mr. Sklaroff's testimony.
15 I just have one summary question.
16 BY MR. KRAKOWER:
17 Q. Mr. Miller, I think you testified that you
18 could have people drowning with an industrial site
19 as well as a residential site?
20 A. If they don't leave. That happened down in
21 Charleston, West Virginia.
22 Q. But my question, sir, is, would drowning
23 problems be more or less likely in a residential or
24 an industrial location?
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1 MR. KELSEN: Objection. You have
2 to tell him what kind of residential,
3 whether it be single-family --
4 THE WITNESS: I can answer that.
5 THE CHAIRMAN: Answer it, sir.
6 THE WITNESS: A high density
7 residential area; I mean, how many people
8 are going to be in the factory and how many
9 people are going to be in a high density
10 residential area; who's going to leave
11 first?
12 Actually, the factory workers,
13 they're not going to split. They can't get
14 another job. They're not going to leave
15 their home.
16 MR. KELSEN: We're talking amounts
17 of people, how many people will be in the
18 factories now?
19 MR. SKLAROFF: What if the factory
20 is within the regulatory flood and the
21 residents are all above, does that change
22 your change your answer?
23 THE WITNESS: If they're going to
24 stay in their apartment during the flood,
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1 very interesting concept. What about the
2 ones that are driving out, they're not
3 going to abandon their cars. That's why
4 they die.
5 THE CHAIRMAN: Thank you, sir.
6 MR. KRAKOWER: I have one more
7 witness, Mr. Kurtz. Michael Kurtz is here.
8 THE CHAIRMAN: Please state your
9 name and address for the record.
10 THE WITNESS: It is Michael P,
11 Kurtz, K-u-r-t-z. 405 Mountainview Lane,
12 Dauphin, Pennsylvania 17018.
13 MICHAEL P. KURTZ, having been
14 called as a witness, was examined and
15 testified as follows...
16 DIRECT EXAMINATION
17 BY MR. KRAKOWER:
18 Q. Mr. Kurtz, what is your occupation, sir?
19 A. I am employed full-time by Penn State
20 University Hospital on the Lifeline helicopter.
21 Q. And what specific area of helicopter
22 service do you provide to Penn State?
23 A. Aero medical.
24 Q. Okay. Would you describe in a little more
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1 detail just that is, what is it that you do?
2 A. In that position as my full-time career, I
3 participate in air medical transportation of the
4 extremely sick and injured. Part-time, I work as a
5 ground paramedic on a community life team, which
6 also includes water rescue.
7 I have several different volunteer
8 positions as a PA Water Rescue Instructor/Trainer,
9 which basically I teach the teachers, technical
10 advisor, and help develop programs for the
11 Commonwealth for their water rescue program. Other
12 volunteer positions you can see as documented in
13 the folders.
14 Photographs marked for identification
15 as Exhibit P-13.)
16 MR. KRAKOWER: This is P-13. They
17 are photos with his qualifications and
18 background. Continue.
19 THE WITNESS: Basically you can see
20 the testimony I have written. I'm just
21 really here to share some information with
22 you folks and the other folks involved, the
23 developer.
24 I was contacted initially by Gerald
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1 Harrison to come down and just give some
2 information in regards to water rescue and
3 the complications that could be posed.
4 As far as --
5 MR. SKLAROFF: For the record, do
6 you mean Harold Hairston, the Fire
7 Commissioner?
8 Gerald Harrison. I'm sorry.
9 THE WITNESS: But basically just to
10 share some information, more or less, on a
11 local level, State level and a Federal
12 level. I've been exposed to water rescues
13 locally state and Federal, just more or
14 less for background information for you
15 folks.
16 Throughout history people have
17 settled to waterways because of advantages
18 that they offer: Transportation, commerce,
19 development, whatever the case may be.
20 However, floods have caused greater loss of
21 life and personal property damage than any
22 other natural disaster combined in the
23 United States.
24 Every year nearly hundred people
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1 die from flood-related causes throughout
2 the United States. Most recently Hurricane
3 Floyd claimed 100 lives; 51 in North
4 Carolina. I was a part of the Federal
5 rescue team that was sent to North Carolina
6 with the Pennsylvania Task Force One, which
7 has a component of the Philadelphia Fire
8 Department, Harrisburg Fire Department,
9 Baltimore County specialized services and
10 medical group from the Harrisburg area.
11 A lot of people remember Hurricane
12 Agnes; 48 lives lost, just in
13 Pennsylvania. Secondary to that storm,
14 $6.4 billion in damage. Hurricane Floyd at
15 one time was the largest storm cell ever
16 monitored by modern weather equipment. It
17 was huge prior to landfall.
18 THE CHAIRMAN: Sir, address the
19 boards.
20 THE WITNESS: As far as over the
21 past several years, the warning systems
22 typically do provide adequate time for
23 departure. However, 80 to 90 percent of
24 the people living along coastal lines,
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1 waterways, 80 to 90 percent of those
2 population refuse, more or less, basically
3 to leave because they haven't seen storm
4 cells; more or less just, you know, putting
5 more risk management for themselves.
6 The problem results in a false
7 impression, you know, that they'll be all
8 right. Some storms come in, water recedes,
9 doesn't come up to the residential areas,
10 however, we can talk about numerous past
11 storms that have been later, come in and
12 claim a lot of lives. As far as --
13 BY MR. KRAKOWER:
14 Q. I was going to ask you specifically about
15 in the City of Philadelphia, if you have any
16 knowledge of the level of training and capacity for
17 river rescue of the Fire Department of the City of
18 Philadelphia?
19 A. As far as the City of Philadelphia, I am
20 familiar with two marine units that they have.
21 They also have several police marine units.
22 However, their larger boats that are typically down
23 in larger waterways, larger waterways that
24 typically take care of the bigger rivers.
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1 As far as accessing a smaller
2 river-type area around Venice Island, that would be
3 very difficult for the boats that they currently
4 have, For the Philadelphia Fire Department, one of
5 the greatest fire departments in the country, no
6 doubt. However, their water rescue capabilities
7 are very limited in performing the high technical
8 water rescue.
9 THE CHAIRMAN: How about the Coast
10 Guard?
11 THE WITNESS: The Coast Guard,
12 they're fine. But the issue that I have --
13 THE CHAIRMAN: Are they located in
14 the same building?
15 THE WITNESS: As far as where the
16 Coast Guard is located in the Philadelphia
17 City, I'm not sure. However, I don't think
18 they're going to just have one locality to
19 evacuate, and that's my concern.
20 You know, they could be tied up
21 somewhere else, but as far as the City of
22 Philadelphia, their capabilities are very
23 limited right now.
24 MR. SKLAROFF: Can I ask you a
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1 question, if I may? Did you participate in
2 training with the Philadelphia Fire
3 Department?
4 THE WITNESS: As far as Hurricane
5 Floyd --
6 MR. SKLAROFF: In North Carolina,
7 for example, you mentioned you were in
8 North Carolina. Did you train with the
9 Philadelphia Fire Department?
10 THE WITNESS: Not in North
11 Carolina. We received training before we
12 go there. That specialized team is
13 basically set up for heavy duty structural
14 collapse, i.e., they were developed
15 secondary to a lot of the terrorists
16 threatening the United States, so we go in
17 for the heavy duty-type rescue.
18 As far as water rescue, when we got
19 deployed to Hurricane Floyd, the role
20 changed. They didn't see very much
21 structural collapse. The big thing they
22 saw there was inland flooding, and that's
23 what they had to deal with. There were
24 three task forces from the United States
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1 that were deployed in there.
2 Our team from Pennsylvania, having
3 already some background, and several
4 different individuals from Harrisburg area,
5 Baltimore County area, had some expertise
6 in water rescue. We were able to go out
7 and perform some water rescues that were
8 above the local and state's capabilities.
9 MR. SKLAROFF: And based upon this
10 experience, do you have an opinion within a
11 reasonable professional certainty as to how
12 long it would take for the City of
13 Philadelphia to develop sufficient
14 expertise to do evacuations from the Venice
15 Island Developments that we been talking
16 about today?
17 THE WITNESS: My own personal
18 opinion on that, sure, there is going to be
19 a costly ball for wages, salary, equipment;
20 as far as somebody becoming experienced in
21 water rescue, we don't do that overnight.
22 It takes, typically, several years to gain
23 competence and the skills to master to be
24 able to do the technical water rescue, if
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1 they have flash flooding and high-rising
2 water.
3 MS. JAFFE: Do you ever go into
4 buildings such as the one that's being
5 proposed and meet with the residents and
6 talk to them about the dangers that you are
7 talking to us about today?
8 THE WITNESS: Public education?
9 MS. JAFFE: Yes.
10 THE WITNESS: We do do some, but,
11 again, maybe this whole part of the problem
12 is lack of public education on a lot of our
13 parts. Maybe if we did a better job with
14 public education, a lot of the information
15 that I don't talk about right now, I
16 wouldn't have to give. So I apologize for
17 that.
18 Those packets that I gave you, they
19 have a lot of basic information in them,
20 too, even to take outside of this courtroom
21 and share with loved ones. But
22 occasionally we do get out.
23 Again, the flood issue's not even
24 at the top of the realm on the national
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1 standard, whereas, we teach children to
2 drop and roll when they catch on fire.
3 For some reason that flooding issue
4 is not there, and that does claim a lot of
5 lives per year. The water rescue is what
6 we need to remember. It is one of the most
7 technical arenas for rescuers to get
8 involved in.
9 Like Steve Miller stated, we're
10 four times more likely to die in a water
11 rescue then fighting a fire. That's a
12 national statistic. You may obtain that
13 information from the National Fire Academy.
14 THE CHAIRMAN: Any other questions
15 of this witness?
16 MR. KRAKOWER: One more. Are you
17 familiar with any lawsuits involving Fire
18 Departments that you've been associated
19 with or trained with concerning lack of
20 training in water rescue?
21 THE WITNESS: As far as lawsuits
22 pending, no, not at this time.
23 MR. SKLAROFF: No.
24 MR. KELSEN: No cross.
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1 MR. KRAKOWER: No questions.
2 THE CHAIRMAN: Thank you, sir.
3 MR. KRAKOWER: Thank you.
4 THE WITNESS: May I add something
5 to the Board members? If a plan like this
6 is going to go through, that's the control
7 of you folks, okay? Even when I came in
8 here, I signed this as an interested party,
9 more or less, not opposing or here as an
10 expert witness for these folks? Basically
11 for public safety education purposes.
12 The packets that you have there,
13 pretty much the formal letter that I
14 drafted speaks for itself, questions for
15 you folks to maybe ask before this is all
16 said and done is, Does the developer have
17 an evacuation plan, it sounds like they
18 do. Are they going to be able to augment
19 the City of Philadelphia Fire Department
20 training individuals, getting them
21 equipment that would be essential.
22 We cannot sit here and say that
23 there will never be a water rescue there.
24 I think the gentleman at the table would
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1 agree. The possibility would be there.
2 Are they going to put some safe standards
3 in to try and eliminate that? Hopefully
4 so.
5 But I really think if something
6 like that goes in on an island like that,
7 it's a small waterway; it will turn into a
8 gorge, they're going to need some water
9 rescue capabilities there. And typically,
10 we can't depend on the Coast Guard to
11 provide that.
12 And the Philadelphia Fire
13 Department, they have an excellent
14 reputation in all the other technical
15 rescue aspects; I think they're going to
16 need to be forced to get into the water
17 arena, and gain some expertise in that.
18 They have a lot of great folks there you
19 should depend on.
20 (Witness excused.)
21 MR. KRAKOWER: Mr. Chairman,
22 instead of presenting another witness --
23 MR. SKLAROFF: Mr. Maloomian asked
24 me to make a statement that we certainly
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1 agree with this witness on how important
2 this aspect of life safety is, and we would
3 be happy, actually, to consult with him in
4 developing the evacuation.
5 MR. KRAKOWER: If I may, I have one
6 other witness, but rather than bring him
7 on, he had prepared his testimony in
8 written form, Mr. How Shermer CHK.
9 Mr. Shermer is a real estate agent who's
10 going to talk about possible alternative
11 uses as a real estate developer for the
12 particular land, and I'm ready to just hand
13 in his documents; one for Mr. Sklaroff. I
14 marked these P-14. One is his Curriculum
15 Vitae and the other is his report. And
16 I'll mark these P-14. I'm going to do a
17 very brief summary, if I may.
18 (Document marked for identification
19 as Exhibit No. P-14.)
20 MR. KRAKOWER: Mr. Chairman,
21 members of the Board, I'm just going to
22 briefly summarize. First, I move into
23 evidence our exhibits that we presented
24 today. There are 14, P-1 through P-14.
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1 And by way of summary --
2 MR. SKLAROFF: Let me note my
3 objection to all of them, and also my
4 objection specifically to P-14, which we'll
5 hear more about, I assume.
6 MR. KRAKOWER: I don't intend to
7 get into P-14.
8 MR. SKLAROFF: I think it's totally
9 irrelevant at this point.
10 MR. KRAKOWER: And you know as well
11 as I do that the boundaries are relevant to
12 the spread here. I just want to point out
13 a couple of specific points.
14 First of all, both today and on
15 March 13th, the applicants failed to show
16 any standard traditional zoning hardship.
17 We respectfully submit -- I notice the
18 disagreements on this, but I want the
19 record to reflect, we submit that there is
20 still a need for any variance to show
21 standard traditional hardship.
22 With respect to the two zoning
23 sections that I made reference to earlier,
24 14-1603.1 and 14-1606, both of them deal
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1 with -- and also the FEMA regulations deal
2 with the determination by this Board
3 independent, and, I submit, respectfully,
4 independent of whether there is technical
5 compliance with FEMA's technical
6 requirements, independent of whether those
7 i's are dotted and the t's are crossed.
8 This Board must make a
9 determination as to whether there is
10 reasonable safety, as to whether there is
11 the likelihood that you are going to have
12 water flooding problems on or nearby this
13 island if you approve this development.
14 We want to point out that certain
15 things were never presented, at least I
16 don't have any record of them. One of them
17 which was discussed was engineering studies
18 that would prove the bearing capacity of
19 the soil. The columns that would uphold
20 the Namico Soap Factory apartments in the
21 air are going to be in the ground.
22 Without soil studies to show the
23 strength of that ground, you really can't
24 tell whether the number of columns, the
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1 spacing of the columns or the sizes of the
2 columns is evident and is satisfactory. We
3 did not receive and I have no note of
4 testimony with regard to the soils analysis
5 for where these columns are going to go.
6 With regard to an emergency
7 evacuation plan, we've been told there
8 would be one, but in terms of an actual
9 specific management emergency evacuation
10 plan, we have never seen one. In fact, I
11 think it's nice, Mr. Maloomian just
12 comments now he'd be happy to work with Mr.
13 Kurtz designing one. But we respectfully
14 submit that there should be one and one
15 that's approved and approvable before this
16 Board grants --
17 THE CHAIRMAN: It was a training
18 program, sir, a training program for water
19 rescue.
20 MR. KRAKOWER: Well, then we
21 certainly still need an evacuation plan, a
22 specific evacuation plan.
23 Another thing with regard to the
24 particular point of Dr. Waggle's studies as
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1 we looked at them, what we disagree with is
2 that Dr. Waggle's studies failed to factor
3 in the possibility of debris -- of
4 objects. Whether they be cars, trees or
5 whatever, being caught against or between
6 the poles that would be holding up the
7 apartments.
8 As we got the testimony from Mr.
9 Skupien and also from the safety people,
10 this is an important factor.
11 And even though you may not know --
12 Mr. Skupien may not know exactly how far
13 apart they're going to be, taking them in
14 their greatest distance, whether they be 30
15 feet, 45 feet, whatever, you saw
16 photographs of the large trees that can be
17 swept down this river.
18 As they come down in that floodway,
19 and with the straining effect and the
20 building up -- the domino effect, you wind
21 up, as Mr. Skupien indicated, that that
22 should be taken into consideration as if it
23 was a solid wall, because one day it may
24 well be a solid wall.
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1 Finally, I would remind this Board
2 that at least three Councilmen:
3 Councilman Nutter, Councilman Rizzo and
4 Councilman Cohen, all have indicated their
5 opposition.
6 And lastly, with regard to the
7 letter from FEMA -- I'm talking about both
8 letters. I know that Ms. Lathrop testified
9 they were the same. I don't think she
10 meant the wording was the same, and
11 certainly we can see that the May 15th
12 letter deals with the specific technical
13 requirements and the technology of
14 Dr. Waggle's submission.
15 But on one respect, both letters
16 say the same thing. They say, Be careful.
17 They say that even if there is technical
18 compliance, there is a danger here, in
19 essence. And I think that not only the
20 letter from Commissioner Witt, that came in
21 this week, but even the last half of the
22 letter of the 15th of May to the Planning
23 Commission makes clear that there is not an
24 approval, that FEMA has concerns that there
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1 are dangers in approving this project and
2 that it is simply on balance ill-advised.
3 We ask you to consider the caveats
4 and the cautions, and as said on behalf of
5 the Friends of the Manayunk Canal, the
6 Manayunk Neighbor Council and other parties
7 that have entered their -- the Sierra Club
8 and some of the other clubs that entered
9 their appearances and submitted documents
10 at the last hearing as well as today, that
11 reflection will bring about a rejection of
12 this proposal for the application.
13 MR. KELSEN: Mr. Chairman,
14 obviously I'm speaking on the Namico
15 project. This project and the application
16 before the Board which was submitted prior
17 to City Council's enactment of legislation
18 confirming that City Council feels that
19 residential development of Venice Island is
20 not only appropriate but it is to be
21 encouraged, and that is why they rezoned it
22 in a manner to facilitate this type of
23 development.
24 Not only do we comport with the
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1 spirit and the legality of that
2 legislation; we also are in full compliance
3 with Section 14-1802.3 Grant A of the
4 Zoning Board's own code, which requires
5 that as long as there is a demonstration
6 that there will be no increase in flood
7 levels during a regulatory flood, a
8 100-year flood, the worst flood you can
9 have, then the project should be approved.
10 The Planning Commission, who was
11 charged with reviewing this, has indicated
12 that they support this project and has
13 indicated that they are comfortable with
14 the FEMA reviews, which, by the way,
15 Members of the Board, were painstaking,
16 extensive and reviewed by at least 15
17 people at FEMA Region III, the entity
18 required by Federal Law to review these,
19 and they have taken all of the data that
20 Mr. Waggle provided and supplementary data
21 that Mr. Waggle was asked to provide and
22 have found that it comports with FEMA
23 regulations, and it will not increase the
24 regulatory flood. That's really the
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1 seminal issue for this case.
2 But, in addition to that, the
3 Namico project is unique. I think it
4 stands apart from the other projects that
5 are before the Board, and it does so in a
6 very unique way. This is an existing
7 structure that is a historic structure. It
8 has been there for over 100 years. It's
9 withstood a lot of time and a lot of
10 flooding. But most importantly, it's a
11 structure that is going to be given a
12 rebirth, a relife, and it's going to have a
13 new life as a residential facility. But it
14 is going to be engineered in a way so as to
15 reduce the amount of encroachment that
16 currently exists within the floodway, and
17 actually better the condition. And even
18 many of the protestants' witnesses
19 reluctantly admitted that it betters the
20 floodway situation.
21 The new portions of the building
22 will be built on highways, so that there
23 will be access for the flood water to pass
24 through. It will be built in full
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1 compliance with all City of Philadelphia
2 codes and regulations, so that its
3 foundations will withstand what they have
4 to withstand, and built on proper soil.
5 That's not a matter that is relevant to
6 this Board because it will be handled
7 appropriately by the construction section.
8 It allows for this reuse in a
9 manner which City Council wanted to see and
10 in a manner which is consistent with the
11 Zoning Board's regulations and the Zoning
12 Code of Philadelphia. It also allows us to
13 preserve a very important asset and not
14 allow it to waste away and become
15 demolished by neglect, which, ironically,
16 is what the neighborhood wants to see
17 here.
18 They want to see a green way, they
19 want to see a passive recreation area.
20 Well, unfortunately, we can't provide that
21 for them, But what we can provide, what we
22 hope the Zoning Board does grant us is the
23 ability to create an amenity on Venice
24 Island which will act to bring life to
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1 Venice Island, security to Venice Island,
2 and in a manner which will be fully safe
3 and in keeping with the floodway
4 regulations and evaluation in the unlikely
5 event that there is a flood.
6 We were asked to build in
7 evacuation plans by the Planning
8 Commission. We voluntarily constructed a
9 pedestrian or access bridges that take us
10 to the high ground, and we did that right
11 up front so there would not be any issue
12 with inability to get our residents off.
13 As you've heard time and time again
14 throughout these proceedings, we are not
15 going to let people live anywhere close to
16 the height of the regulatory floodway. It
17 is flood proofed to one foot above the
18 regulatory flood. That's the 100-year
19 flood. And it also will allow people to
20 live in a manner which is safe and fully
21 effective.
22 And I would ask the Board to
23 consider that this application be granted
24 as fulfilling all the requirements of the
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1 Philadelphia Zoning Code, but most
2 especially, all of the technical
3 requirements that have been mandated by
4 your Planning Commission and by FEMA.
5 I thank you for your time and
6 indulgence.
7 THE CHAIRMAN: Okay.
8 MR. SKLAROFF: These developments
9 on Venice Island represent a wonderful
10 opportunity for the City of Philadelphia to
11 take what are assets that are not really
12 being used and to turn them into vital
13 residential units to help repopulate a City
14 which needs new population, which needs
15 people. This is an extraordinary
16 opportunity as a technical matter; this
17 application on behalf of Cotton Street
18 Landing comes at a time before the City
19 Council has passed the ordinance. So we
20 proceeded under the G-2 ordinance, which,
21 if at the time we had applied, we could
22 have had a density of five and a very much
23 larger development.
24 Over a period of about a year and a
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1 half, in meetings with the community, we
2 took a mix-ed-use project which had some
3 much denser development; hotel, retail
4 commercial and residential, and turned it
5 into, primarily, a residential
6 development.
7 It is being developed by one of the
8 most respected names in residential and
9 commercial development in this region, the
10 Realen Company. It is a first rate
11 development and will be a credit to the
12 community. It will comply with all the
13 codes which have to do with the bearing
14 qualities of soils and the structural
15 quality of pilings, and it will be built so
16 that all the residential units are above
17 the regulatory flood. The pedestrian
18 bridge will be above the regulatory flood.
19 There will be a safe place at the
20 foot of the pedestrian bridge above the
21 regulatory bridge at Main Street.
22 Automobile access will be over Cotton
23 Street Bridge, which was a new bridge built
24 by the City of Philadelphia, and there will
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1 be, as a condition to a certificate of
2 occupancy, the submission of an evacuation
3 plan for approval by the Planning
4 Commission of the City of Philadelphia.
5 The flood studies have complied
6 with the technical requirements, and there
7 has been no -- not one bit of evidence,
8 competent evidence, that there is anything
9 wrong with the study that Dr. Waggle did
10 and the studies and the computations of
11 Elmer Bowls, the engineer.
12 With regard to traffic, we ask the
13 Board, since Mr. Krakower promised to
14 submit at least a part of the Paone study
15 which was done, we ask the Board to presume
16 that there is a negative inference that
17 that study would have validated what Mr.
18 Boles has concluded time and time again,
19 that there is not a traffic problem from
20 the Cotton Street development.
21 The testimony at the fist two
22 hearings established that there is a basis
23 for variances. We have withdrawn two of
24 the variances where we will comply. There
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1 are three variances here, essentially: A
2 use variance, and with regard to the use
3 variance, City Council has approved this
4 use for Venice Island. We have a variance
5 with regard to the size of parking spaces
6 and a variance with regard to the number of
7 handicapped spaces -- Excuse me -- compact
8 spaces. We will comply fully with the
9 handicapped spaces.
10 With regard to the issue of
11 density, the testimony has been that this
12 is a reasonable density for the site, and
13 together we believe that this project and
14 the other projects of Venice Island
15 represent a real advance for the City of
16 Philadelphia.
17 Thank you for your attention.
18 MR. KELSEN: Very briefly, if I
19 might. I would like to remind the Board
20 that on March 13th District Councilman
21 Nutter came in and gave a letter up,
22 particularly in opposition to Cotton Street
23 project, and urged the Court, the Board, to
24 reject it and to require a strict hearing
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1 to the zoning requirements.
2 Councilman Cohen agrees with
3 Councilman Nutter in this letter of March
4 13th, and I just -- because time has passed
5 for the hearings, and I wanted to remind
6 you of that.
7 For both projects, the problem is
8 that there is, really, public risk and
9 public expense for private gain, and
10 sometimes it balances out and sometimes it
11 doesn't balance out. In this situation it
12 doesn't balance out, because, we believe,
13 as the experts of Mr. Goll and Mr. Skupien
14 showed, that the 25-year flood levels can
15 be devastating. We showed that there is
16 not capacity for competent fire rescue in
17 Philadelphia; that there are expenses
18 involved to the City of Philadelphia, to
19 the taxpayers, and if not for the human
20 life concern and the sheer budgetary
21 concerns that were going on at City Council
22 to pay for other public projects, money is
23 tight.
24 Traffic problems: We showed that
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1 there is not adequate proof -- that there
2 is not adequate -- that there is not the
3 traffic problem by the proponents. Just
4 simply, as I do appreciate your patience
5 and your time over these many days, that
6 there is too much public risk, that there
7 is not -- there is not enough balance of
8 public gain, and particularly that the
9 4320, 4368 Main Street project is even more
10 of a difficulty.
11 Thank you very much.
12 THE CHAIRMAN: Thank you.
13 MR. GREGORSKI: Mr. Chairman,
14 members of the Board, the Planning
15 Commission's recommendation regarding the
16 Flat Rock Road properties comes in the form
17 of a letter dated March 13, 2000, which
18 reads, "Subsequent to our letter of
19 November 18, 1999, the Staff of the
20 Planning Commission has met with
21 representatives of the applicants to review
22 and discuss the hydrological study for the
23 subject proposed development. The review
24 of the hydrological study is underway and
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1 the final approval is examined shortly.
2 The purpose of this letter,
3 however, is not to discuss the hydrological
4 study, but another issue raised by
5 representatives of the developer during the
6 review process; specifically, whether or
7 not the above-captioned application is
8 requiring the Zoning Board review at all.
9 We believe that a strong case can
10 be made, and that because" of subsequent --
11 "because subsequent to the filing of the
12 subject applications, City Council and the
13 Mayor have enacted new zoning and use
14 regulations for the subject property, as
15 well as neighboring properties on Venice
16 Island.
17 As a result of the newly enacted
18 Zoning Code amendments, the type and amount
19 of development proposed is now permitted.
20 The only issue before the ZBA is the issue
21 of the new construction requiring a ZBA
22 variance after review to determine whether
23 or not there will be any increase in the
24 regulatory flood levels. The question is
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1 whether or not the subject application
2 involves new construction of a lawful
3 extension of a nonconforming building.
4 As the Board knows, Section 14-100,
5 general provisions, establishes the
6 parameters under which the various
7 provisions and regulations which follow are
8 to be implemented, and the subsequent
9 sections of the Code do not take precedent
10 over these provisions.
11 Section 14-104 of this chapter
12 deals with nonconforming structures and
13 uses. Since the subject property is
14 developed and has been developed with
15 buildings and structures prior to the
16 enactment of Section 14-1606 flood plan
17 controls, it is nonconforming in terms of
18 uses or contains nonconforming structures.
19 In either case, the applicant has
20 some right to expand or modify this
21 property, either under Section 14-101,
22 Section 6, Subparagraph C or Section
23 14-104, Section 8; the applicant is
24 entitled to modify or extend the building
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1 and/or uses.
2 It is our opinion that if the
3 applicant's hydrological study is approved
4 after review by FEMA and the state, and the
5 applicant proposes to meet all other
6 applicable City, State and Federal laws,
7 they are entitled to do have zoning permits
8 issued from the Department of Licenses and
9 Inspections as a lawful expansion of a
10 nonconforming use or building."
11 And that was signed by Barbara
12 Kaplan.
13 And regarding the Main Street case,
14 the Planning Commission's recommendation
15 comes in the form of a letter dated
16 September 22, 1999 which reads, "The
17 Planning Commission's Staff has reviewed
18 this application. While we believe that,
19 in general, residential development on
20 Venice Island is appropriate and
21 supportable, in this case we cannot support
22 the granted requests of variances.
23 The Planning Commission, in
24 cooperation with City Council, Manayunk
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1 Development Corporation and a number of
2 Manayunk community organizations, recently
3 completed a comprehensive plan for the
4 redevelopment of Venice Island.
5 This plan is another in a
6 continuing planning effort in Manayunk that
7 has been underway for several years. The
8 goals of the plan are to recognize the
9 transition of Venice Island from its no
10 longer viable and industrial past to a
11 future that will reinvent the island as a
12 regional recreational and cultural
13 attraction with a moderate-density
14 residential presence on the lower
15 two-thirds of the island.
16 Since the upper third of the island
17 is occupied by an active heavy use,
18 industrial, Smurfit Stone, the plan does
19 not recommend any changes on that part of
20 the island that would inhibit the continued
21 viability of the business.
22 As a result, in this planning
23 effort, City Council has recently enacted
24 on December 16th, ordinances to further the
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1 objectives of the plan. One ordinance
2 reserves all of the privately owned
3 property below the Smurfit Stone property
4 to a newly created RC-1 residential
5 district.
6 The other extends the existing Main
7 Street Manayunk zoning overlay to encompass
8 the lower two-thirds of Venice Island. On
9 Venice Island the only permitted uses will
10 be attached, semi-attached and detached
11 dwellings, group dwellings, private
12 accessory garages and permitted
13 recreational uses.
14 Parking at a ratio of one space for
15 every bedroom is required. The structures
16 are required to be set back from the
17 Conrail right-of-way from the Schuylkill
18 River. Within the setback, a public access
19 trail must be provided and be dedicated to
20 the City; a maximum height of 55 feet and 6
21 stories is also established.
22 Screening and landscaping along the
23 Conrail right-of-way and the Schuylkill
24 River are also imposed.
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1 The new RC-1 classification would
2 permit a floor area of 135 percent. This
3 is our area of concern. While the new
4 zoning imposes a maximum floor area of 135
5 percent, the proposed development is nearly
6 twice the recommended density.
7 We reviewed the subject development
8 plan several weeks ago. At that time the
9 plan encompassed most of the
10 recommendations of the Venice Island plan
11 and of the expanded overlay. It proposed a
12 setback and trail along the Schuylkill
13 River and over a 25-foot setback from the
14 Manayunk Canal. The proposed five stories
15 of residential development above the
16 100-year flood level was always consistent
17 with the plan and the zoning overlay.
18 However, the amount of development
19 proposed is significantly above the 1.35
20 FAR recommended in the plan established by
21 the new Zoning Code amendment."
22 It says, "The base of this plan was
23 to permit residential development of a
24 density that would not create unacceptable
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1 levels for traffic congestion on Main
2 Street and the nearby streets.
3 We feel that the proposed level of
4 density in this case is sufficient reason
5 to recommend disapproval of this
6 application. We do this while recognizing
7 the efforts the developer has made to meet
8 the goals and the spirit of the new zoning
9 amendments.
10 However, if the Board finds the
11 applicant's case justifies the granting of
12 the requested variances, we recommend the
13 Board's approval include a proviso
14 requiring the applicant to comply with all
15 the screening, landscaping, setback and
16 public access requirements contained in
17 Bills No. 990760 and 990761."
18 This is also sign by Barbara
19 Kaplan.
20 THE CHAIRMAN: Thank you. We will
21 make a decision within a week. And let the
22 record clearly show that all witness were
23 given adequate time and testimony, and
24 Constitutional rights were adhered to.
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1 (Hearing concludes.)
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