Jeffrey R. Surenian, Esq. Jeffrey R.

Surenian and Associates, LLC Brielle Galleria 707 Union Avenue, Suite 301 Brielle, New Jersey 08730 Telephone 732-612-3100 Attorneys for Appellants/Cross Respondents, Tp. of Cranford the Planning Board of the Tp. of Cranford By: Jeffrey R. Surenian (Attorney ID: 024231983) Michael A. Jedziniak (Attorney ID: 012832001)

and

CRANFORD DEVELOPMENT ASSOCIATES, LLC, Plaintiff, v. TOWNSHIP OF CRANFORD AND THE PLANNING BOARD OF THE TOWNSHIP OF CRANFORD, Defendants

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION Docket No.: A-005822-12T2

Civil Action

Sat Below: Honorable Lisa F. Chrystal, J.S.C.

BRIEF AND APPENDIX OF APPELLANTS/CROSS RESPONDENTS, TOWNSHIP OF CRANFORD AND THE PLANNING BOARD OF THE TOWNSHIP OF CRANFORD

Jeffrey R. Surenian And Associates A Limited Liability Company 707 Union Avenue, Suite 301 Brielle NJ 08730 (732) 612-3100 Attorneys for Appellant Jeffrey R. Surenian, Esq. Of Counsel and on the Brief Michael A. Jedziniak, On the Brief Esq.

TABLE OF CONTENTS

TABLE OF TRANSCRIPTS TABLE OF AUTHORITIES INTRODUCTORY STATEMENT PROCEDURAL HISTORY STATEMENT OF FACTS PART 1 THE SERIES OF EVENTS CULMINATING IN CDA'S BUILDER'S REMEDY SUIT CLEARLY REVEALS THAT CDA FAILED TO MAKE A GOOD FAITH EFFORT TO OBTAIN RELIEF WITHOUT LITIGATION AND DID NOT CAUSE CRANFORD TO COMPLY WITH ITS MOUNT LAUREL OBLIGATIONS

i-iii iv-v
1 4 9 11

Cranford Vo~untari~y Sought To Achieve Round 3 Comp~iance Before CDA Asked The Township To Rezone The Site For Affordab~e Housing Recognizing That The Township Was Poised To Adopt A Round 3 Afordab~e Housing P~an, CDA (A) Proposed A 419-Uni t Mount Laure~ Deve~opment On A Severe~y Constrained Si tel (B) Demanded Cranford To Make A Decision Within Two Weeks; (C) Rushed Through An Abbreviated Period Of Pretextua~ "Negotiations;" And (D) Fi~ed Suit Before Cranford Comp~eted Its Eva~uation Of CDA's Proposa~ Severe Constraints Property P~agued the CDA

12

16

16

CDA's "Proposed Project" Constituted An Extraordinari~y Intensive Use of An Extraordinari~y Constrained Site The September 24, 2008 Letter

17

18

In the Afternoon of October 7, 2008, CDA Infor.med Its P~anning Expert That It "Expected" To Eii.Le Its Biui.Ldea:' s Remedy Comp~aint On November 11, 2008, and "Maybe Sooner" The October 7, 2008 Council Meeting The October 21, 2008 Council Meeting The November 11, 2008 Meeting (The Night Before CDA Fi~ed Suit) As CDA's Attorney Prom2sed, CDA Abrupt~y Ter.minated "Pre-Suit Negotiations" On November 12, 2008 and Fi~ed Its Bui~der's Remedy Lawsuit As Mayor Puhak Prom2sed, Unaware That CDA Had Fi~ed Sui t, He Asked the P~anning Board to Review CDA's Proposa~ Expeditiously Despite The Abrupt Fi~ing of the CDA Action, The Township and P~anning Comp~eted The Year-Long Process And Adopted and Endorsed Its Third Round Comp~iance P~an
PART 2 THE CDA SITE SUFFERS FROM SEVERE CONSTRAINTS, WHICH LED THE SPECIAL MASTER AND THE TRIAL COURT TO CONCLUDE THAT THE SITE IS NOT SUITABLE FOR CDA'S 419-UNIT PROPOSED PROJECT

18

19

22 26

29

29

30

31

Severe and Regu~ar Flooding Significant Freshwater Wet~ands Issues The Site Lacks Sufficient Sanita~ Sewer Capacity Additiona~ Constraints

32 33 34

35

The Above Facts Demonstrate (A) The Reasonab~eness of the Township's Due Di~igence Before Responding To CDA r s Demand For A Quick Response To Its Rezoning Request and (B) The Site Is Not Suitab~e For the Proposed Project PART 3 THE COURT SUA SPONTE SEIZED JURISDICTION FROM THE PLANNING BOARD AND APPOINTED A "SPECIAL HEARING EXAMINER" WHO CONDUCTED PUBLIC HEARINGS ON THE CDA SITE PLAN APPLICATION OUTSIDE THE NORMAL TIME AND LOCATION OF REGULAR PLANNING BOARD HEARINGS LEGAL ARGUMENT STANDARD OF REVIEW POINT I

36

39

42 42 43

THE TRIAL COURT ERRED IN RULING THAT CDA SATISFIED ITS BURDEN TO MAKE A GOOD FAITH ATTEMPT TO OBTAIN RELIEF WITHOUT LITIGATION BEFORE FILING SUIT Introduction A. A Deve~oper Must Negotiate In Good Faith Before Fi~ing A Btui.Ldea:' s Remedy Sui t And Can On~y Abso~ve Itse~f Of This Ob~igation By Demonstrating That FUrther Good Faith Negotiations Wou~d Have Been FUti~e B. The Tria~ Court Shou~d Have Disqua~ified CDA From Securing A Bui~der's Remedy Because (1) CDA Did Not Negotiate In Good Faith Before Fi~ing Suit, And (2) CDA Did Not Prove Tha t FUrther Good Fai th Negotia tions Wou~d Have Been "FUti~e" Did To Li tigation" 1. CDA Not Make A Good Faith Obtain Re~ief Without 43 44

48

48

2. CDA Did Not Demonstrate FUrther "Good Faith Negotiations" Have Been "FUti~e"

That Wou~d

51

C.
Fai~ing

The
To Facts

Tria~ Court Acknow~edge Discussed

Erred

The
Above,

Not On~y Signiricance But AJso Facts

By Of by and

53

The

Basing Her Decision Lega~ Standards

On Irre~evant

POINT

II

58

THE TRIAL COURT ERRED IN RULING THAT CDA SATISFIED ITS BURDEN ON THE FIRST ELEMENT OF THE BUILDER'S REMEDY TEST BECAUSE CDA WAS NOT THE "CATALYST FOR CHANGE
Introduction A.

58
or
the Bui~der's Requires a That The Its "Fair

The

First

E~ement

59

Remedy Test Is Two-Pronged, and P~aintirr To Demonstrate (1) Municipa~ity Had Not Satisfied Share"

or

Arrordab~e
(2) That It

Housing Was the

On The

Date

Or For

Suit; and Change" B. Not

"Cata~yst

The Record P~ain~y Revea~s The "Cata~yst For Change" The

Tria~

That

CDA Was

62

C.
that

Court

Erroneous~y

Conal.uded.

63

CDA Was The

"Cata~yst

ror

Change"

POINT

III

66

THE TRIAL COURT ERRED BY GRANTING A BUILDER'S REMEDY AFTER THE TOWNSHIP ESTABLISHED THE UNSUITABILITY OF THE SUBJECT PROPERTY FOR THE 419-UNIT PROJECT CDA PROPOSED AN ERROR THE TRIAL COURT COMPOUNDED BY AWARDING A REMEDY FOR A 360-UNIT PROJECT THAT CDA NEVER PROPOSED, NEVER SUBJECTED TO DISCOVERY, AND NEVER PRESENTED AT TRIAL
A.

The

Supreme

Court

in

Mount

Laure~

II

67

Required Project"

Deve~opers to To Faci~itate

Present a "Proposed A Determination or "C~ear~y

Inter AJia Whether The Proposa~ Is Contrary To Sound Land Use P~anning"

B. CDA Proposed A 419-Unit Project In Its Complaint, Through Discovery And At Trial; And Demanded The Right To Develop The Proposed Project If The Township Failed To Carry Its Burden On Site Suitability
C. At Trial, The Township Convinced The Special Master To Reverse Her Previous Conclusion That The Site Was Indeed Suitable For CDA's 419-Unit Proposed Project

70

72

Although The Township Established That CDA's 419-Uni t: Proposed Project Was Clearly Contrary To Sound Land Use Planning, The Trial Court Improperly Failed To Deny A Builder's Remedy
D.

73

E. The Trial Court Compounded Its Error By Sua Sponte Granting A Builder's Remedy For A 360-Unit Project That CDA Never Proposed, Subjected to Discovery, Or Defended At Trial POINT IV

76

79

THE TRIAL COURT COMMITTED ERRONEOUSLY STRIPPED THE PLANNING BOARD OF ITS JURISDICTION AND SUA SPONTE APPOINTED A "SPECIAL HEARING EXAMINER" TO USURP THE PLANNING BOARD'S STATUTORY ROLE TO PROCESS CDA'S DEVELOPMENT APPLICATION The Trial Court Without Justification Or Even Making Any Findings Improperly Stripped The Cranford Planning Board Of Its Jurisdiction To Process CDA's Development Application
A. 79

B.

The Trial Court Violated Its Obligation Utilize The "Experience and Expertise Of The Planning Board
to

81

Seizing Jurisdiction Was Prejudicial To The Planning Board, the Residents of Cranford Township, and Any Other Interested Parties
C.

84

Illegal Seizure of Jurisdiction From The Planning Board Tain ted CDA' s Si te Plan Hearing And, A Fortiori, Rendered Void Its Final Development Approval
D.

86

POINT

87

THE TRIAL COURT ERRED IN FAILING TO FIND THAT PLAINTIFFS' PUBLIC NOTICE RELATING TO THE SITE PLAN HEARINGS WAS LEGALLY DEFICIENT, RENDERING THE SITE PLAN PROCEEDINGS VOID CONCLUSION EXHIBIT A: ORDER GRANTING APPELLANTS FILE OVERLENGTH BRIEF, DATED FEBRUARY 14, EXHIBIT MASTER, B: PROCEDURAL DATED MAY 15, 2012 MEMO OF THE LEAVE 2014 TO

90

SPECIAL

TABLE OF TRANSCRIPTS For ease of reference, Appellants various transcripts involved in relevant citing designation. CITING DESIGNATION herein provide a list of the the instant appeal and the

DESCRIPTION October Cranford October Cranford November Cranford August August August August August August August August August August August

OF TRANSCRIPT of

IT

7, 2008 Transcript Township Committee Meeting 21, 2008 Transcript Township Committee Meeting 2008 11, Transcript Township Committee Meeting
-

2T

of

3T

of

4T 5T 6T 7T 8T 9T

2, 2010 3, 2010 5, 2010 9, 2010

Trial Transcript Trial Transcript Trial Transcript Trial Transcript

10, 2010 - Trial Transcript 11, 2010

-

Trial Transcript

lOT
11T 12T 13T 14T 15T

12, 2010 - Trial Transcript 13, 2010

-

Trial Transcript

16, 2010 - Trial Transcript 17, 2010

-

Trial Transcript

18, 2010 - Trial Transcript 27, 2010 - Trial Transcript

September

16T

September 28, 2010 (Morning Session) September 28, 2010 (Afternoon Session) September

Trial

Transcript

17T

Trial

Transcript

18T 19T

29, 2010 - Trial Transcript Transcript of Post-

July 29, 2011 Trial Decision

20T

26, January 2012 Transcript Rulings on Cranford's Motion Reconsideration July 25, Management 2012 Transcript Conference of

of for

21T

Case

22T

August 8, 2012 Site Plan Hearings Hearing Examiner" Courthouse August 9, 2012 Site Plan Hearings Hearing Examiner" Courthouse August 21, 2012 Si te Plan Hearings Hearing Examiner" Courthouse August 22, 2012 Si te Plan Hearings Hearing Examiner" Courthouse August 23, 2012 Site Plan Hearings

of COAl s Transcript Before the "Special at Union County

23T

of COAl s Transcript Before the "Special at Union County

24T

of COAls Transcript Before the "Special at Union County

25T

of COA IS Transcript Before the "Special at Union County

26T

Transcript of COA IS Before the "Special

11

Hearing Examiner" Courthouse 27T

at

Union

County

April 1, 2010 Transcript of Argument on Four Motions before Lisa Chrystal, J.S.C. January 20, 2012 Transcript of Argument on Cranford's Motion Reconsideration before Hon. Chrystal, J.S.C. April 22, Township's Hearing

Oral Hon.

28T

Oral for Lisa

29T

2013 Transcript of the Mount Laurel Compliance -----------------

III

TABLE OF AUTHORITIES

CASES

PAGE

Allan-Deane Corp. v. Bedminster Tp., 205 N.J.Super. 87 (Law Div. 1985) Balsamides v. Protameen 160 N.J. 352 (1999) Chern., Inc.,

64-5

42

Brower Dev. v. Planning Bd., 255 N.J.Super. 262 (App. Div. 1992) Hills Development Co. v. Bernards 103 N.J. 1 (1986) Tp.,

89

61

In re Adoption of N.J.A.C. 5:94 and 5:95, 390 N.J.Super. 1 (App. Div. 2007) J.W.Field Co., 204 N.J.Super. Inc. v. Tp. of Franklin, 445 (Law Div. 1985)

13

46, 47, 49, 78

Joseph Kushner Hebrew Acad., Inc. v. Tp. of Livingston, 2013 WL 4607526 (App. Div. 2013) K. Hovnanian Shore Acquis. v. Tp. Of Berkeley 2003 WL 23206281 (App. Div. 2003) Kramer v. Bd. of Adjustment, 45 N.J. 268 (1965) Sea Girt,

47

61

81-2 v. Tp. 61, 79, 80, 81 Olive, 60 Olive, 60 Olive, 60

Morris Co. Fair Housing Council of Boonton, 209 N.J. Super. 393 (Law Div. 1985)

Mount Olive Complex v. Tp. of Mount 174 N.J. 359 (2002) Mount Olive Complex v. Tp. of Mount 340 N.J.Super. 511 (App. Div. 2001) Mount Olive Complex v. Tp. of Mount 356 N.J.Super. 500 (App. Div. 2003)

IV

Oceanport Holding, L.L.C. Oceanport, 396 N.J.Super.

v. Bor. Of 622 (App. Div. 2007) .. 45, 47

Perlmart v. Lacey Twp. Planning Bd., 295 N.J.Super. 234 (App. Div. 1996) Pond Run Watershed v. Hamilton Tp., 397 N.J.Super. 335 (App. Div. 2008) Rova Farms Resort, Inc. v. Investors Co. of Am., 65 N.J. 474 (1974) Ins.

88

88

42

So. Burlington County N.A.A.C.P. v. Tp. of Mount Laurel, 67 N.J. 151 (1975) So. Burlington County N.A.A.C.P. v. Tp. of Mount Laurel, 92 N.J. 158 (1983) Toll Brothers v. Tp. of W. Windsor, 173 N.J. 502 (2002) Van Dalen v. Washington 120 N.J. 234 (1990) Ward v. Scott, 16 N.J. 16 (1954} Tp.,

11

passim

passim

62

82

STATUTES N.J.S.A. N.J.S.A. N.J.S.A. 40:55D-11 40:55D-28 40:55D-64 88 53 53

REGULATIONS N.J.A.C. 5:96-16.2 14

INTRODUCTORY This the trial brief court Laurel demonstrates did not

STATEMENT although four well-intentioned, principles

that,

understand

fundamental

in Mount

jurisprudence

or the application the trial court and

of the facts to (1) erroneously (2) improperly to hear

these principles. granted stripped a builder's the

Consequently, remedy

to the

plaintiff of

Cranford

Planning

Board

jurisdiction

plaintiff's First,
attempt

ensuing our

development require

application. a developer to make

a good fai th

laws

to

obtain

relief

without

litigation that

before

filing

builder's faith clearly

remedy

suit,

unless

it can prove been

additional The facts were that,

good here

negotiations show and had that not

would

have

futile.

plaintiff's made in

pre-suit good faith,

efforts and

plainly even if

pretextual plaintiff

negotiated goods the

in good

faith,

plaintiff would

did not prove futile.

that additional Nevertheless, satisfied

faith negotiations court

have been that

trial

erroneously issues. This

ruled

plaintiff example

its burden error. our

on both

is the first

of reversible Second, remedy

caused

laws

require

a plaintiff

seeking

builder's that

to demonstrate the

that it was the "catalyst to comply first well

1

for change"

municipality When

with

its

Mount Laurel ---------------to rezone to its

obligations. si te, the

plaintiff was

asked

Cranford the way

Township

already

along

achieving

compliance compliance was no

and plaintiff process "catalyst before for

feared it

that Cranford suit.

would

complete

the

filed

Therefore, its comply. and This

plaintiff was trial that second

changeN to cause the

and

indeed to

lawsuit The

completely court,

unnecessary applied a

Cranford

however, was

wrong for

standard

concluded is the

plaintiff example

"catalyst error.

change.N

of reversible the

Third, requires "proposed planning satisfied

third

element to

of

the

builder's that to the

remedy

test

the

municipality
N

prove contrary

plaintiff's land use

project and

lS

clearly

sound Cranford

environmental

principles.

clearly the trial

this burden

as demonstrated

by the fact that remedy of

court refused unit project

to award plaintiff it proposed. as required, less dense

a builder's

for the 419denying the

However, the trial 360-unit never This

instead court

builder's a remedy

remedy for a

sua sponte a in

awarded that and of

project

proj ect

plaintiff never

never

proposed, at trial.

presented is the

discovery, example

defended error.

third

reversible

Finally, enti t.Le d to Laurel

assuming a builder's

arguendo remedy

that

plaintiff the

was

indeed of Mount

despite

violations trial

law described upon

a

above,

our laws only permit board's of

2

courts to In

to

infringe development

planning

jurisdiction included

hear the

applications

projects

municipality's case, Board Hearing without intended the of trial its

plan

in the most improperly by

egregious stripped replacing to

circumstances. the Cranford it with a

In this Planning "Special law acted and or

court

jurisdiction without that

Examiner," any finding

regard the

the

applicable Board had

Cranford

to act so egregiously Furthermore, Examiner

as to warrant publishing

stripping legally on

it of its

jurisdiction. notice, the

after

insufficient plaintiff's during work

conducted in Union

hearings County

development hours, public error

application

Courthouse thereby

instead

of the evenings in the

at Town Hall, on the

suppressing This

participation tainted

hearings site

application. and

plaintiff's of its

plan

hearing

requires and a re-

judicial hearing

invalidation properly before

development Board.

approvals

the Planning as well

For all these below, permit this the Court

reasons should

as additional

ones

presented and

reverse

the trial Board

court's to

decision

Township

and

Planning in the as will

fulfill

their

responsibilities affordable Township's

to comply plan,

fashion be

set forth to

in the 2008 address the

housing

amended

responsibilities

under

any new laws.

PROCEDURAL On January 16, 2008, after

HISTORyl engaging In years of pre-suit Corp.

negotiations ("Lehigh"), against Lehigh Housing the New

with the Township,

plaintiff

Lehigh Acquisition builder's remedy

filed the first Mount Laurel ("Lehigh Action") . Cranford to drafted comply on with

lawsuit

Cranford Action, Plan

Aa1-10.2 a

In the wake of the Affordable of

comprehensive the Round Housing

seeking

3 regulations ("COAH").

Jersey

Council

Affordable

e.g. Aa1277-78 discussing

(workshop meeting

minutes,

dated August

11, 2008, Housing

the status

of the Township's

draft Affordable

Plan and a schedule On November Lehigh law suit Action, against

to develop

and adopt same). ten months a after filing of the builder's action remedy is the

12, 2008, roughly plaintiff Cranford CDA

filed

second

("CDA Action"). Aall-21. the Cranford

This

subject of this appeal. On December Affordable Housing

3, 2008,

Planning

Board

adopted

an

Plan to comport with COAH's second set of Round plan represented the culmination of a year-

3 regulations,

which

This section provides a recitation of the most significant procedural events in this complex litigation. Due to the inextricably-intertwined nature of the procedural and factual aspects of this appeal, additional procedural events are also included in the Statement of Facts, infra. "Aa" refers to the Appellant's Appendix. The various transcripts in this case are identified in the Table of Contents herein, and shall be cited, for instance, as "4T8: 3-4" meaning the fourth transcript, page 8, lines 3 to 4. A Table of Contents for the transcripts are provided above.
4

long planning the plan on the

process. Aa247-327. December CDA site 9, as 2008. a

The Township Aa330-31. to

Committee This plan its

endorsed did not

include

component

satisfy

affordable

housing obligations. On March entered 20, 2009, in responses invalidating to motions, the trial court and

an Order

the Township's Elizabeth

Zoning Ordinance P.P.

appointing
4.

a Special Master, does not dispute entered an

C. McKenzie, On April alia,

Aa3653the the

Cranford court

this order. which,

3, 2009, extended

trial

order

inter

Master's

duties

to the CDA Action.

Aa3657-60.

On June 30, 2009, the Lehigh and CDA

the trial court entered Actions on the narrow

an order consolidating

issue of whether Aa3661-63.

the Township

has satisfied

it Mount Laurel obligations.

On June 23, 2010, the trial CDA and Lehigh's suit negotiation" opinion) On with the separate defense. motions

court entered to strike

an order

granting "pre-

the Township's

Aa3673-78;

see also Aa3968-93

(written

Cranford July 29 and

herein appeals this order vis-a-vis 30, 2010, Division Cranford filed

CDA. motion of the

an emergent review with the

Appellate 2010 order

seeking

interlocutory notice appeal. trial

June 23, court

and a motion

on short

trial

for a stay

of the CDA trial pending On August

Both motions began in the

were denied.

Aa3687-89.

2, 2010,

CDA Action,

which

occupied

the better

part of fourteen 18T.3 its post-trial

(14) trial

days over a two-month period.

4T through

On July 29, 2011, the Court issued the CDA Action, was of not finding suitable in effect its that site. CDA

opinion

in

CDAI s 419-unit Aa3838-949. a builder's remedy

proposed However,

proj ect instead trial

for

appropriately sua sponte Aa3944.

denying

remedy,

the

court

awarded

a builder's CDA never

for a 360-unit a 360-unit and never On

project. project, subj ected December

However, such in

proposed to discovery, of

never it
9,

subjected to

a project the

challenge

crucible entered

litigation.

2011, the trial Aa3702-08.4 Esq. as

court

an Order memorializing sua sponte Hearing and appointed Examiner" him to to

her rulings. Douglas

This Order the CDA

also

Wolfson,

"Special Action

(hereinafter "assume CDA's

"Examiner")

in the the

directed Board

jurisdiction"

over

Cranford In lieu

Planning of the

hear

development

applications

Board.

Aa3707.

Cranford

herein appeals this Order.

January 28, 2011, the trial court issued an Order approving a settlement of the Lehigh Action following a duly-noticed "Fairness Hearing," which is a requirement for the approval of Mount Laurel settlements. Aa3691-95. As a result, the Lehigh Action was dismissed. Although CDA's cross-appeal challenges the trial court's decision not to award CDA legal fees against the Township, CDA did not cross-appeal the trial court's decision not to award the developer the remedy it sought: namely, the right to implement the 419-unit project it proposed initially and defended at trial.
6

30n

On December of the builder's CDA site during

29, 2011, the Township remedy Order, Hurricane

moved

for reconsideration flooding on the after the trial) materials Township should

citing the colossal (which occurred potentially

Irene regarding

and also new information exposed asserted reconsider project trial

6,

hazardous The

by

CDA's in

initial light of

excavating this new

acti vi ties. evidence, the

that,

court

its decision

that the CDA was suitable court.

for the 360-unit 26, 2012, the On August

authorized

by the trial the motion,

On January

court denied

via oral opinion.

20T.

2012, the trial court granted CDA's Motion in Aid of Litigant's which, in part, reserved a decision on CDA's request for

Rights

permission the hazard the his role

to raise area

the road fronting Aa3713-15. by

its site to one foot above The order the and also (1) expanded issue "for

level. Examiner and

of the

referring

re-grading (2) denied

determination

recommendations" to conduct of Union

Cranford's

request

for the Examiner instead

the CDA hearings Courthouse

at Town Hall working

in the evening hours. Ibid.

County

during

On August emergent

6,

2012,

the Township the

also

filed

an unsuccessful seeking an the the

application stay

with

Appellate

Division

interlocutory panel

of the CDA whether

site plan

hearings

and asking expanded

to consider

the trial court improperly This application the CDA site

role of the Examiner. the Examiner's

Aa5709-15. to

also challenged plan hearings

decision

conduct
7

during

the

workday the

at

Union at

County time

Courthouse, and to place

alleging "will

that

conducting limi t Aa5714. residents' The the

hearings of

that

severely " local

ability See

Cranford

citi zens

participate. rej ected

also A57 49-50 to the

(wherein the time and

Examiner

obj ections then

location

of the

hearing.) site plan

Examiner

presided

over

CDA's

five-day

application On trial

hearing at Union County Courthouse. 10, 2012, the the Examiner of filed the

22T through 26T. a Report to the

November court,

with approval

"concurrence"

Special

Master, Aa5837and to should the The

recommending 93.

of the CDA site plan moved

application. for a New Trial court

On November

21, 2012, Cranford Master remedy biased asserting order and had

Replace vacate Special

the Special the builder's Master was

that the trial

and retry the case because a conflict of interest.

trial court denied the motion. On April recommendations final grade Area site plan Birchwood permit 5, 2013, the

Aa3720. entered an order adopting the and

Court

of the Examiner approval. Avenue the

and granting

CDA preliminary

The Court also ruled that CDA may reCDA in securing Department of a Flood Hazard

to assist New

from

Jersey

Environmental

Protection On amended

("DEP"). 3,

Aa3737-47. the and

Cranford

appeals this Order. Board which adopted its

April Housing

2013,

Township Fair

Planning Plan,

Element

Share

incorporates

the 360-unit

builder's

remedy the trial court awarded CDA, "under

8

protest." body

Aa1025-26.

On April

9, 2013, the Township's the adopted the Court on May a 22, plan,

governing also under a Mount Court of the

adopted

a resolution April

endorsing 22, 2013, and the

protest. Laurel entered

Aa1027.0n "Compliance an order which

conducted 2013,

Hearing," granting is the

the

Township

"Final that

Judgment ripened

Compliance," instant On

final

decision

appeal. June

Aa3816-3823. 12, 2013, the Township the again issue on moved for the

reconsideration suitability environmental whether against the of

seeking the

(1) to CDA

reopen

concerning

site

based

newly-discovered on the issue of

issues, Special

and Master

(2) limited violated with

discovery Laurel

Mount Judge

II prohibition On July 17,

ex parte

communications

Crystal.

2013, the trial court entered an order denying this motion. Aa3836 On August instant appeal. 2, 2013, the Township Aa44-211. Aa212-46. Cranford On leave and Planning 14, 14, 2013, 2014, Board filed the CDA the filed its

On August February

Cross-Appeal. Division granted

Appellate brief. See

to file an overlength

Exhibit A, attached at the end of this brief. STATEMENT Although understood long and complex, OF FACTS the facts in this case are best

by explaining

them in three parts. that, prior to the date CDA filed suit, its

Part 1 demonstrates Cranford was literally

on the cusp of adopting

9

and endorsing

Affordable Laurel CDA dense gave CDA's engaged plainly filing

Housing

Plan.

Since

it had

an obligation prior plan

under

Mount suit,

law to attempt Cranford project

to avoid with a

litigation concept

to filing an site,

presented 419-unit the

for

extremely and then to grant

on a severely two weeks In CDA, the on

constrained to decide to other

Township

only

whether follow, hand, it

rezoning in due

request. diligence.

weeks the even

Cranford engaged in on had its did

pretextual suit in before

"negotiations," Cranford of 2007 These to make

though the

planned it

completed by

process and

ini tiated Affordable not

December

developing

adopting that to CDA

Housing its

Plan.

facts a good

demonstrate faith

satisfy

burden

attempt

obtain good facts with

relief

without

litigation. would CDA

Nor did it prove have been cause To futile. the the

that

additional these

faith negotiations also its reveal Mount that

Finally,

did not

Township contrary,

to comply the

Laurel

obligations.

Township's

efforts

to comply

caused CDA to file its lawsuit. the severe constraints (1) that reveal plague that CDA's the CDA

Part parcel.

2 details These

severe

constraints

Cranford 419-unit

responsib~y conducted rezoning Special was request; Master

due diligence
(2 )

in evaluating why the

and

explain initial

court-appointed that CDA's site Most trial

reversed for its

her

conclusion "proposed also explain

suitable

419-unit in Part
10

project." why the

importantly,

the

facts

court properLy site to be the for a

agreed

with

the Master COAlS

and found,

in effect,

the

unsuitable trial

for

419-unit awarded COA

proposed COA a

project. builder's proposed,

However, remedy subjected Part

court

improperLy project,

360-unit

which

never

to discovery, 3 reveals from the

or defended that the

at trial. court sua sponte seized a law

trial

jurisdiction "Special requires This COA

Cranford

Planning even

Board

and

appointed Laurel

Hearing the trial

Examiner," courts that as to

though on the

Mount Board's

rely

expertise. the Union at

section site

details

the Examiner a "judicial hours,

improperly hearing" instead

conducted at of the

plan

hearing during Hall public

County Cranford thereby

Courthouse Township chilling

working such

evenings take

where

hearings

normally

place,

access

to the hearings

on a development

application

that would profoundly

impact their neighborhood.

PART 1 THE SERIES OF EVENTS CULMINATING IN CDA'S BUILDER'S REMEDY SUIT CLEARLY REVEALS THAT CDA FAILED TO MAKE A GOOD FAITH EFFORT TO OBTAIN RELIEF WITHOUT LITIGATION AND DID NOT CAUSE CRANFORD TO COMPLY WITH ITS MOUNT LAUREL OBLIGATIONS

Cranford's Supreme N.A.A.C.P. 9T35: 6-45: 6 actions Court's

v.

efforts

to create

affordable in So.

housing
-L

predate

the
~~~

seminal

decision Laurel,

____________

Burlington (1975). expert and

County See e.g.

Tp. of Mount (testimony by the of

67 N.J.

151

Cranford's

planning

discussing culminating

taken

Township

starting
11

in 1970

in

adoption

of

the

Township's

Affordable

Housing

Plan

In

December More adopted,

of 2008); recently, and

see also Aa1747-82; in June its of 2000,

Aa2272-74. the Township Housing developed, Plan and (COAH for were 3 of

endorsed for

Round of

2 Affordable same. Cranford

peti tioned staff

COAH

approval

9T42: 1-11;

Aa1762 COAH

report

confirming

that

petitioned

approval filed) .

of its plan However,

on June 5, 2000 and that no objections adopted its first set of

COAH

Round

regulations this plan.

on November Ibid.

22, 2004 before COAH

completing ruled

its review on

Consequently,

never

Cranford's

petition. Over quota the years, units. Cranford Aa1766 also rehabilitated more dated than its

for rehab

(COAH Resolution, rehabilitated

December despite a

12, 2001, noting 104-unit housing Aa1795 housing

that Cranford The

170 units required

obligation.) in its formal

Township

also

affordable

redevelopment project

efforts. shall

9T42:12-43:4; affordable created 100

("[tJhe units.

redevelopment

include

. ") .
affordable

In addition, housing units.

the Township Aa264.

age-restricted

Cranford Vo~untari~y Sought To Achieve Round 3 eomp~iance Beore eDA Asked The Township To Rezone The Site For Aordab~e Housing In late to prepare planning 2006, the Township plan retained a COAH planning expert

a new master for the

as a part

of a "full comprehensive included an affordable

effort

community"
12

which

housing

plan. COAH

IlT34:9-21. planner began

Consistent developing IlT34:21.

with the

that

charge,

the

Township's

affordable

housing

plan in the beginning On January down the first months rUlings. N.J. Super. to

of 2007.

25, 2007, however, set of COAH's new re round Third three of

the Appellate Round

Division

struck six its 390

rules and gave COAH responsive and to

adopt In
1,

regulations N.J.A.C.

Adoption

5:94

5:95,

88 (App. Div. 2007) the uncertainty continued its created to work intent by the lack of regulatory plan. of

Despi te guidelines, The 2007, Plan Third process Township when in

Cranford

on its Mount to comply in

Laurel

reiterated

December Fair

it directed

its planner of the

to develop of

a new

Share set of

anticipation

adoption

COAH' s This

second

Round

regulations. detailed

9T44:14-45-7. input from the

collaborative its elected

included

community,

officials,

and planning

professionals.

5T35:9-36:25.5 Action, and on of

On January January

12, 2008, Lehigh COAH finally

filed the Lehigh proposed

22, 2008,

its second

iteration

Point I of Cranford's Legal Argument discusses how CDA failed to satisfy the "pre-suit negotiations" requirement in the Mount Laurel arena. However, this Court should note that Lehigh literally engaged in years of pre-suit negotiations, and only filed suit when the parties reached a bona fide impasse, meaning additional good faith negotiations would have been futile. See, e.g. Aa3969; Aal-l0 (Lehigh complaint)
5

13

Round round to

regulations.

On

May

22,

2008,

COAH

adopted

its

new

three

regulations adopted

and

simultaneously The

proposed proposed

amendments amendments

its

newly

regulations.

established under Housing adopted September COAH's

December

31, 2008 to

as the deadline file a

for municipalities and to endorsed newlyOn

jurisdiction and Fair

duly-adopted responsive N.J.A.C.

Element and

Share

Plan See

the

amended

regulations.

5:96-16.2.

30, 2008, COAH adopted Cranford's continued two thirds

the amended in its

regulations. December Mount of Laurel 2007, plan

Consistent Cranford's during the planner first

direction work of 2008 on as

these

events

unfolded. of now

The existence 2008,

of regulations, the

albeit

only proposed because

in January at least

facilitated

Township's

efforts,

it had a possible As 2008, process See e.g. a result the of

regulatory of these

framework efforts,

for the plan. by August and September along in of the plan.

Township's formulating Aa1901

professionals the substance of the

were of

well

Cranford's 11, 2008 made

new

(minutes (1) the

August COAH

Committee a detailed and and

meeting

wherein

Township's an update

Planner new

presentation

providing

of

COAH's

regulations Plan;

the status
(2)

of the Township's
the

draft

Affordable
a Fair

Housing

the Mayor "discussed

need for

Share Housing Plan

6Although

the Appellate Division ordered COAH to adopt new Round 3 regulations within six months, COAH took over 12 months just to propose new Round 3 rules.
14

in order Aa1432 wherein

for the Township (minutes the Mayor of the

to obtain September

substantive 9, 2008

certification."; Committee meeting

reported

to the public

(1) that

"Cranford is

in the process of establishing

a Fair Share Plan and is hopeful

that a plan will be submitted to the Planning Board in the Fall" and (2) that on the Township 25, and its with professionals COAH staff draft in scheduled Trenton a to

meeting discuss (minutes

September

2008 with

issues of the

associated September

Cranford's Committee

Plan);

Aa1382

23, 2008

meeting

discussing

the status of the Township's draft plan); Aa1931 October Planner Planning Cranford's 6, 2008 Committee that on a meeting Plan 20, to wherein would 2008) ;

(minutes of the COAH the

the Township's be submitted to

stated Board

draft

October testified

13T25:8-17

(wherein on

planner

confirm

that

he had worked

the Township's Plan prior to August of 2008). In light developing, Housing 419-unit of the of the above, adopting, and the Township endorsing was well Round on its way to 3 Affordable its

its

Plan before proposal. Township's several

CDA expressed As discussed commitment times over

any interest below, and the

in developing

CDA was

also well-aware as several it freely in

progress, course of

acknowledged October

weeks

and November facts Board

of 2008. beyond the

15

These Planning

demonstrate were clearly

debate

that Cranford for the

and its

"catalyst"

Township's

Mount

Laurel and

compliance

efforts. planning

In

fact,

based engaged

on in

the by

thoughtful Cranford,

comprehensive

process

the only question would In waste comply, detail

before but how

CDA showed it would CDA

up was not whether comply. was Therefore, a totally

the Township as discussed

below,

the

Action

unnecessary

of public

resources.

Recognizing Tha t: The Township Was Poised To Adopt A Round 3 AffordabLe Housing PLan, CDA (A) Proposed A 419Unit Mount LaureL DeveLopment On A SevereLy Constrained Site; (B) Demanded Cranford To Make A Decision Within Two Weeks; (C) Rushed Through An Abbreviated Period Of Pre textuaL "Negotiations;" And (D) FiLed Suit Before Cranford Co~Leted Its EvaLuation Of CDA's ProposaL On September toward a letter property Aa1086. to 24, 2008, as the Township 3 Plan, rezone 419-unit of this the was CDA its steadily sent the

progressing Township constrained project. is

completion asking to

of its Round Cranford a to

severely

permit

massive

inclusionary request, it

To appreciate have an

the gravity of

essential

understanding

constraints project.

that

plagued the property

and the magnitude

of its proposed the CDA Property 235 Birchwood

Severe Constraints PLagued The 15.8 CDA site (located The

at 215 and site

Avenue) with

is two The

acres.

Aa3840. and

is already parking

developed lots.

office record to

buildings shows that and

associated

Aa3841.

the site lies in a flood plain extremely significant flooding

and is subject events. The more

frequent

pictures

in the record

illustrate
16

the extent

of the problem

than

any

words. on

Aa1811-58 The

(series site

of

photos has

depicting other

severe

flooding

site).

also

significant stormwater Aa2347-52. acres of the are site

environmental management As a

constraints, riparian these

including buffers,

wetlands, issue. six

issues, of Part

and other only

result

constraints, provides

about

developable. constraints.

2, infra,

greater

detail

CDA' s llProposed Project" Constituted Extraordinari~y Intensive Use o Extraordinari~y Constrained Site COA proposed an urban density a 419-unit of roughly residential 62 units project net

An An

for the site acre.

at

per

IlTI0:12; of the huge all other called

see also Aa2344 disparity multifamiiy in

(providing density

a vivid

graphic

depiction and

between

COA's

proposal

sites

in the area). to approve

larger

Moreover,

COAls proposal

for the Township

roughly town. four

the largest
than the next

development
largest

in Cranford,
in

times

development

I1T16:14-15. have housed more." noted

In at

fact, least

COA's 800

419-uni t proposed or so

proj ect and the

"would

residents" (wherein

"potentially trial
serious

IlT15:19-24; that the

see also

Aa3924

court

"Special

Master
high is

indeed
net

expressed
of the high

concern about the

unquestionably density

density

development" and that urban density")

"the net

an unquestionably

(emphasis added);

17

The September 24, 2008 Letter As noted that above, on September before 7, 24, 2008, CDA advised the Township 2008 to Committee a Cranford at its rezoning

it intended meeting

to appear on

regular allowing In more

October

request project. CDA

it to develop support a of

its 419-unit rezoning site the

proposed request,

Aal086. nothing and Thus, of an

its

provided

than

"conceptual of

plan,

perspective proj ect.

II

rendering Ibid. use the

conceptual while

elevation an

proposed

demanding

extraordinarily site, CDA

intensive furnished the Township

extraordinarily strikingly little

constrained information

Township

to enable

to evaluate

its proposal. the Afternoon P~anning Expert Btui.Ldea:' s Remedy "Maybe Sooner"
In

of October That It
Cotap Le i.tit:

2008, CDA Informed "Expected" To rs.i On November 11, 2008,

7,

Its Its
and

In before

the the

afternoon

of

October that
p. P. ,

7, very

2008,

before CDA's a

appearing attorney

Township Dr. David in

Committee Kinsey,

evening,

contacted planner

F.A.I.C.P, to

professional him for

expert

Mount

Laurel

litigation, In this

retain CDA' s

li tigation informed My

purposes.

Aa2957.

email,

attorney

Dr. Kinsey
current

that he intended

to sue Cranford:

is that we wi~~ fi~e our coiapLe i.ni: no ~ater than November 11, 2008, maybe sooner. I would like to be able to file a motion for summary judgment as soon thereafter as the Court Rules permit, about five weeks. So I would like you to get

expectation

18

started on this as soon as you we can discuss strategy first. [Aa2957 (emphasis added.] Al though CDA appeared before to the

can.

Call

me

so that

Township

Committee as

mere

hours by

Letzea: ostensib~y Mount Laurel

seeking

avoid email

~itigation proves that

required

precedent,

this

COA's

so-called

"good faith" pre-suit More 24, 2008

negotiations this email

were merely reveals

a charade. COA's at the more September Township than an in

specifically, letter,

that

combined after

with the

its email, that

appearance was

meeting attempt good

mere

hours

nothing

to create in an It its

the i~~usion effort sought to to to

it was indeed "to this that as obtain

negotiating relief

faith

attempt create

without it a to

litigation." recognized good faith

illusion it a had

because made such

burden to

demonstrate

effort

avoid

litigation I, infra.

precondition

maintaining email, expert on

its suit. October 10,

See Point 2008,

Consistent Dr.

with this as its

CDA

retained 7T68:9.

Kinsey

in preparation
The

for litigation. October of

7,

2008 Counci~ Meeting 7, 2008, COA's attorneys and

In other and

the

evening

October

representatives Cranford

appeared to rezone

at the Township COA's

Committee

meeting to

asked

newly-acquired

property

19

permit during

its

419-unit

proposed

project. CDA urged

Aa1105-19.7 the Township

Incredibly, to make than a

its brief

presentation,

decision project weeks.

on the request in town See

for a project

four times

larger

any

on a seriously Aa1111

constrained we and

site within that it

just two you're your by the

Aa1088; In

(nAnd this

request including

if in

interested

rezoning

[affordable] housing plan you give us a positive

response

end of your next business meeting on October 21st.,,) When CDA's has asked if a two-week the timeframe was a fair request,

attorney decide

avoided what it

question to

and replied: Aa1113. have been the last

n [T]he Council In response,

to

wants

do."

Cranford's shown working up on

attorney a little this

stated: sooner,

nIt would because for the

nice if you had Board's several point." on or been months Ibid. before new

Planning

diligently

[and] things In November Affordable

have reached to

a pretty

close tipping to file that

addition 11, 2008, Housing

nexpecting" keenly

suit

CDA was Plan

aware be

the Township's See

would

soon

adopted.8

Aal110

7 Coincidentally, at the workshop meeting on October 6, 2008, the Mayor discussed his recent meeting with COAH staff regarding the Township's affordable housing obligation. Aa1931. Further, Cranford's planner detailed the Township's affordable housing obligation and the status of the draft Housing Plan, which would be presented to the Committee at its October 20th workshop meeting. 8 In fact, as evidenced by the Planning Board's minutes of November 12, 2008, the Planning Board scheduled a hearing on its amended Housing Element and Fair Share Plan for December 3,

20

(" [W] e

are

very

conscious

that

you have an urgent

timetable

to

complete

your

housing

plan.");

see

also

Aal113

(admitting
of

that

the Township
process"

and Planning

Board

are "in the midst to be a part also

a planning

and that

CDA "[is] CDA's like

eager

of that planning that a request to that the [the

to

process. for a

. ") .
rezoning, Board. Council]
to the

attorney is

admitted

CDA's,

typically is

referred

Planning Township
refer it

Aallll-12 wants to

(" [I]f this do,

then the

something
step

next

would be

Planning

Board.") (emphasis

added).

As discussed Land

below,

the New Jersey

Municipal

Land Use Law and Cranford's referral to the Planning asked whether

Use Ordinance

each contemplate members of

Board. CDA had

Thereafter, undertaken utilities, Although avoided a

the

public studies

engineering sewerage, the public water asked and

regarding site conditions.

drainage, Aal170. CDA in

and existing
perfectly

reasonable

questions,

the questions Board CDA

replied:

"Those if

will there a

be addressed is one."

Planning while

application pressed the Township

Ibid. in

Thus, zoning,

for

radical

change

it failed to answer fact dated that May CDA 21,

the public's

most basic questions. "Site Investigation its basic

The Report,"

possessed 2008, as

a 2S-page the

public

asked

2008. Aa1302. ("Public hearing [on the Affordable Housing Plan] will be conducted on December 3, 2008. Final documents to be ready for public inspection and statutory service no later than November 23, 2008. .")
21

questions information

renders

COA's

failure

to

provide

more

detailed

even more egregious to disclose as to than a this

and inexcusable. Report despite

See Aa1876-99. direct questions studies e .g. is

COA's failure from the nothing (where puzzles they public less a

whether falsehood

COAhad any engineering by omission. "I have [did is to See, one

Aa1170 that before of the faith

local

resident

asked:

question

me. designed facts to obtain the

how much engineering this project?"). that This COA failed

COA conduct] merely make a one

numerous attempt

showing relief

good

without

litigation. were clear. if In this did

Even to regard, not not relay to

layperson, asked

COA's intentions COA what in

a resident a positive respond predicted response some to

would happen

Cranford

response this the [from

two weeks. (Aa1169), " [I] f body]

Although another they in

COA chose resident get there Of it a

question consequence: the governing action

correctly posi ti ve might course, be

don't

two weeks Ibid. already

kind

of

legal was

following.n since CDA

the

perception

accurate

knew

was going Laurel

to quickly

terminate lawsuit

"negotiations" against

and file its Mount Aa2957.

builder's

remedy

Cranford.

The October On October Township meeting, 21, 2008, meeting an

21, 2008 CounciL Meeting COA appeared and, as at its at second the regular 7th the

Committee demanded

promised

October on

immediate
22

response

from

Cranford

rezoning that it

request. was the still various

9

Aa1231. premature

The governing to provide

body, a

however,

stated answer had

definitive CDA's

because not all

professionals Aa1222

reviewing

proposal

responded. stated

(minutes); Township the

see also Aa1232 is taking CDA's

(wherein request our our at CDA

the Mayor "very

that
(2 )

(1) the that

(3)

seriously," for

Township

"ha[s] heard

asked from

professionals engineer" last that, and and

input,"

"have

already

(4) "actually workshop 20,

did

discuss The

[the CDA Mayor also

proposal] informed

night's

meeting.") 2008, of

on October his given

Cranford's the

engineer

indeed

completed which by was CDA. 20, a the the

filed

analysis the

development of information

proposal, provided dated

necessary Aa1232; 2008) . review

paucity

see also Aa1953-56 This memo

(Confidential that

Memo,

October conducted

demonstrates proposal Ibid.

the

engineer

of CDA's short

rezoning shrift.

and clearly Since the

was not giving received

proposal engineer's

Township

detailed

report

literally

one day before still

the meeting, it. The

the Township

informed

CDA that

it was

evaluating

At the work session on October 20, 2008, the Township's COAH Planner provided another status update on the draft Housing Element and Fair Share Plan. During this presentation, the governing body agreed to forward the draft plan to the Planning Board for review. Aa1296. In addition, the governing body discussed the CDA proposal, wherein the Mayor stated that he was wai ting for input from the Township's professionals and other municipal representatives and that, by securing input from these person he felt that "the Township Committee is taking prudent steps to address the proposal submitted by [CDAl." Ibid.
9

23

governing other

body

also

stated and the

that police

it

expected and fire the doing to a

responses chiefs. of any

from

its

professionals, Review of the that

Aa1231-32. the meeting

transcripts Cranford do before development

and was

minutes what

clearly municipali such site: informed an

reveal ty

responsible to permit

would

responding on such

a request seriously so it

intensive it was

constrained could make an

conducting Indeed, Thus, in

due to

diligence do anything to

decision.

less CDA's

would have demand for

been a

irresponsible. ridiculously that "the

response the is

quick

decision,

Mayor appropriately
seriously considering

explained
the [CDAl

Township Cornmi ttee and the while he

proposal,

understands Cornmi ttee

that
must

[CDA] is
follow due

eager

for

a
in

response,

Township

diligence

order to respond appropriately."

Aa1222. CDA found from its the aware Cranford's professionals, fact of the that fact the that actions, to be

The including reasonable. has been

record its

also request

shows for

that input

Aa1231 considering this

that

("We appreciate this. We're

Council you've
the

addressed
attention

at

a number of
you've given

meetings.
to it.")

And we appreciate .

(Emphasis since to that

added) .

Nevertheless, CDAwanted

now that an answer

two weeks "We're this

had

passed

October a reaction you wish

now:

looking is

forward

from you tonight

as to Ibid.

whether

a rezoning

to proceed

with."

(emphasis
24

added).

CDA's cognizant Plan,

attorney of the did

also

admitted adoption CDA's the the

again of the

that

he

was

quite Housing Ibid. going

imminent not

Township's project. that's that

which

include of

proposed

(" [W]e' re on. We

very want

conscious to be

planning

process of

within

timeframes that

planning in the to pin

process.") midst down

After

the Mayor

indicated

Cranford attorney

was tried

of conducting the Mayor comments on

due diligence,lo the timing of

CDA's a

response whether

and, the

assuming governing Aa1235-36.

positive body

from

the professionals, to supporting governing from its the

would

commit that the

project. not and

Recognizing decision the Mayor Mayor

sure

body

could

render the

its

without stated

input

professionals

public, The

that such a decision by stating:

was premature.

Ibid.

concluded
that

"[I] t' s our responsibility and to handle these

to make things

we follow

due diligence

appropriately."

Aa1236. Mount

In

response,

Mr.

Eisdorfer efforts with that

admitted were an

that

the

Township's effort"

Laurel CDA wanted

compliance to "work

"ongoing

and that

process

and be in a timetable

in sync with that process."

Aa1237.11

10 The record also reflects that the Police Chief submitted his report to the Township on October 29, 2008 and the Fire Chief submitted his report on November 3, 2008. Aa1270. Clearly, the Township was taking CDA's proposal seriously and did not purposefully frustrate the process as alleged by CDA, and still needed to discuss the reports with their authors. 11 In retrospect, this feigned cooperation was undeniably disingenuous (1) since Mr. Eisdorfer had already told Dr. Kinsey

25

During discussed MLUL,

the various

ensuing ways

public to secure

comments, a

Cranford's pursuant

attorney to the and

rezoning

and informed

the public

that

the Township that

had adopted such and

previously requests Aa1243-44. public, to

implemented the To

an ordinance Board the for

referred

rezoning comment. the

Planning conclude that

consideration the Mayor

meeting, was

assured

once

again, that

Cranford

committed for

to Mount us to

Laurel get the

compliance Fair Housing

The
Fi~ed

and

"[ i ]t is very Aa1246.

2008
Meeting

important

Plan done."
11,

November Suit)

(The

Night

Before

eDA

On body for

November the

11,

2008,

COA

appeared to filing

before suit. 12

the This

governing fact is

final

time with

prior

perfectly

consistent

its attorney's

"expectations."

Aa2957

(October 7th email) .

that he expected to sue Cranford on or before November 11th and (2) since CDA filed suit almost to the day. 12 CDA tried to make weight out of the fact that the governing body did not "place COA's proposal on the agenda" and required it to discuss its proposal during the public portion of the meetings. This is a red herring. The minutes of these meetings plainly show that the agendas were packed with other Township business. Aal088-98 (October 7th meeting); Aa1215-25 (October 21st meeting); Aa1252-61 (November 11th meeting). Further, since no official action was to be taken, nothing required the COA proposal to be formally included on the agenda. Finally, since CDA forced the Township into conducting comprehensive due diligence as a result of CDA's failure to provide sufficient information, Cranford was not yet ready to "sit down" with CDA.
26

That that

evening, "been

COA's

attorney this

reminded Committee that Share

the on

governing two13

body

COA had

before

previous on COA's Share

occasions" the cusp

and again of stated adopting that and that

acknowledged its Cranford Fair

Cranford Plan.

was literally In fact, Fair

attorney Plan

was "fast-tracking" the to "be included

process

COA wanted

in that plan

and be part of that process." The Mayor responded corne to much us [with its in that

Aa1266. that "long before [COA] had [was] very

by noting 419-unit satisfying

proposal], its

Cranford affordable very

interested and The

housing seriously." regarding and then

obligations" Aa1267. Cranford's informed 136-59 of

"it's provided

something additional to needed and Board

we take

Mayor

information comply, to ibid., with was and

long-standing COA that its Land to the Use the

efforts Township Ordinance Planning

comply

Section referring comment.

therefore for review

COA's proposal Aa1268. Importantly, to the Planning

however, Board "and

the ask

Mayor promised them to

to

send it as

letter soon as

address

The trial court also mentioned that COA had appeared before the Township's governing body on six separate occasions, which included the three workshop meetings on October 6, October 20, and November 10, 2008. Aa60. However, the COA representatives were mere observers at the three workshop meetings. By Mr. Eisdorfer's own admission, COA really only "been before" the Committee on three occasions, namely October 7, October 21, and November 11, 2008. Aa1266. On November 12, 2008, COA filed suit.
13

27

possible," "certainly dispatch. a procedural

and

the

Township's the Planning

attorney Board

affirmed to hear

that

Cranford with to to

[wants]
rr

this

matter

Ibid. by

The Mayor CDA, that Board Aa1269

later stated, the

in response is going

question

"Committee

send a letter
and give it

to the Planning

to consider

your application

a top priority."

(emphasis added). the timing of the process, be expedited to

CDA responded and the Township and that be had

with assured

concern

about

CDA that the process to wait for three CDA

would

it "wouldn't Ibid.14 three

have

or four months that, likely adopted

heard." to wait

In response, or four months, Share Plan

recognized most

if they not be by the

CDA would

included Planning body

In the Board

Fair

scheduled

to be

on December

3, 2008 and endorsed Aa1270-71; Aa1302. "the

by the governing The Township's is well He

[the

soon

thereafter. by

attorney along also

responded

stating

that

Housing

Plan

its way reminded CDA,

and it's in the final stages however,

Housing

right now."
mean that

that
Plan]

"it can't

doesn' t be

adopted the

Affordable

amended [to

include

CDA project]."

Ibid. CDA that "we

Like have

the

Mayor,

the

Township's to meet

attorney

reminded

other

obligations

This approach by the Township Council should not have been a surprise to CDA, since Cranford follows this procedure for all rezoning applications. Aall12-13. As stated above, CDA' s attorney even acknowledged that this would likely be part of the process. Aallll-12. Plus, given the magnitude of the request and the extent of the site constraints, it was completely reasonable for the Township to do so.
14

28

that
October.

were "

set

in motion

long

before

you

came

in

here

in

Ibid.

(emphasis added).
CDA Abrupt~y Terminated November 12, 200815 and

As CDA's "Pre-Suit

Attorney Promised, Negotiations" On

Fi~ed Its In

Bui~der's Remedy Lawsuit what happened next comes as no surprise. filed its

retrospect, with remedy the

Consistent builder's rush to

CDA's

attorney's

expectation, Aall-23.

CDA

suit the very next day. courthouse, and therefore CDA ended

In its hasty pretextual to

terminated Cranford's request.

the

"negotiations" complete

opportunity

its review

of CDA's rezoning

As Mayor Puhak Sui t, He Asked

Promised, Unaware Tha t CDA Had the PLexuuixiq Board to Review

Fi~ed
CDA' s

Proposa~ E~editious~y Because 18, day, 2008, the CDA had not yet Mayor his to wrote served to its lawsuit the that review to the Planning he of would CDA's by November Board urge that the

the

a letter to

fulfilling Board

promise prioritize In his

CDA its

Planning request. Mayor

rezoning the

Aa1275.

letter

Planning

Board,

stated:
It is kindly requested that this matter be given priority in view of the need to evaluate the proposal in light of the ongoing work being done on the Master

This Court should take judicial notice of the fact that November 11, 2008 was Veteran's Day, a national holiday. Upon information and belief, New Jersey's courthouses were therefore closed on that date, which may be why CDA chose not to file its sui t on the date predicted by Mr. Eisdorfer in his October 7th email to Dr. Kinsey.
15

29

Plan and, in particular, Master Plan. [Ibid. This letter (emphasis added). ] demonstrates with CDA were that,

the

Housing

Element

of

the

at

least

in and

Cranford's certainly why

eyes, had
not

negotiations

still

ongoing the only

reached an impasse. negotiations would

Therefore, have been

reason

additional it

"futile,"

is because

CDA decided

would rather litigate than negotiate.

Despi te The Abrupt Fi~ing

the

CDA Action, Year-Long Round

The

Township and PLesuuisxq Comp~e ted The And Adopted and Endorsed Its Third P~an

Process

Comp~iance

On Planning the draft

December Board plan and

3,

2008,

after body

numerous discussing

meetings the

of

the of its

governing the course

substance adopted

over

of a year, amended an

Cranford

new Plan. a

Aa328.

The Township's which

Housing overlay

Plan set forth district; a

compliance

package, and

includes

development components and Lehigh adopted endorsed Special actions,

redevelopment of development 14T121:15; On December Plan and

ordinance; of a Myrtle

and Avenue,

affordable Riverfront

as part sites.

see also Aa247-327

17,

(the Township's governing it of to body the

plan) the Master

2008,

the

adopted and

thereafter Aa330-31.

provided In light

the

Court. the

these

Cranford

completed

comprehensive of 2007.

planning

process

it began one year before

in December

30

The took

above

facts

unequivocally to comply CDA and

demonstrate wi th sent was of its the Round

that

Cranford

affirmative

actions

3 affordable 24, 2008

housing letter towards

obligations requesting compliance a

long before rezoning, at the

September

steadfastly receipt of

progressing this letter. CDA to show were by CDA

point

Therefore, was not

as will be explained "catalyst by for

in the legal that law.

argument the facts in by

below, Township also CDA required that

the as

change"

caused These

comply that

required

applicable negotiations

the

"pre-suit" and II. not the

engaged

pretextual Mount Laurel

"good

faith

negotiations"

Finally,

these

facts belie

any claim would

may make futile. reasons

that additional Therefore, set forth

good

faith negotiations

have been for the

CDA filed below, the

its suit prematurely trial court should

and, have

dismissed

the suit due to a "false start." PART 2 THE CDA SITE SUFFERS FROM SEVERE CONSTRAINTS, WHICH LED THE SPECIAL MASTER AND THE TRIAL COURT TO CONCLUDE THAT THE SITE IS NOT SUITABLE FOR CDA'S 419-UNIT PROPOSED PROJECT The surrounded CDA by site a contains of two land existing uses: to the to office the buildings, a a small of the the

variety office

west,

contractor-owned single-family Cranford

building;

southwest, to the

row

houses

along Care

Wadsworth

Terrace; and across

east,

Extended

Facility;

Birchwood,

31

Verizon Aa3255.

Building

and municipal of suit,

recycling the

facility. zoned

5T21:13-23; to permit the

On the date

site was buildings.

construction

of low-density

office

Aa4047.

Severe and Regu2ar F200ding No one disputes severe site flooding that the COA site suffers At trial, a neighbor striking from frequent living near and the

events. years

for thirty-four occurring pictures

provided

photographs

of one Aa1811rendered in the

such event, 58. These

on April show, among

15, 2007. other

7T20:5-45:2;16 (1) cars trapped

things

helpless high

by the high

floodwaters,

and other which

cars

floodwaters Site

on Birchwood truck

Avenue, aside

includes

a portion that the the 235

of the

(2) a fire

the

floodwater vehicles (3) a car condition

showing to reach in the

it is virtually Site during of the

impossible frequent

for flood the

emergency events,

stuck of

middle

Birchwood Avenue expert and has a

showing

flooding

Birchwood COA's extensi ve" the site

portion

of the site. (1) that "the flooding

in

admitted

[on site]
mind

is

(2) that

"there

is no

doubt

[his]

that

significant Flood

flooding Hazard

problem." Area study,

This dated

admission August 6,

was confirmed 2010.

by COAls

5T5:6-7:22;

Aa3489-94.

16 Pages 35-45 of the transcript of Mr. Hrebin's direct erroneously includes "Kinsey-Cross" as a heading.
32

testimony

The site not only floods in smaller storm a events typical flooding This as

in large rainfall For example,

events, on

but also 9, the of

well. rain

December on

2009, record

during depict

heavy that

event,

photographs the a

necessitated was not

barricading

Birchwood

Avenue.

rainstorm

"historic

storm," To the times a

nor did it constitute contrary, year. day flooding on

a 50-year the CDA

or 100-year site occurs

storm event. around four

10T32:6-12. before trial

In fact, photos commenced) show

taken on August flooding caused

1, 2010

(the 2

by

only

inches of rain. 10T102:1-20.17 Signiicant Wetlands highly cover most Freshwater of the Wet~ands Issues CDA site, and development areas. is See and into areaCDA's not at

restricted

in these Prior to

environmentally trial, portions concept

sensitive of the plan

17T10:13-11:18. the proposed these areas,

buildings

parking

areas

in CDA's

encroached

requiring

it therefore prior

to file a "transition trial, he

averaging expert think trial, permits

plan." not was

However, prepare needed. that an

to and throughout plan The not because

did one

averaging

did

4T24:21-25:9. the DEP would

Township issue the

proved

however,

necessary

in the absence

of this plan. 5T61:7-63:22.

The testimony of Cranford's Engineer (Richard Marsden, Jr.) lS lengthy but provides a detailed description of the severity and regularity of the flooding on the CDA site. 10T21-157.
17

33

Indeed, testified he later

as

to

the

man-made

ditch

on

site,

COA's

engineer However, area

at trial admitted

that no wetland that

buffer

is required.

he could not identify the drainage

of the ditch on site because he never studied it. 5T13:21-15:6. No effort was made to delineate this ditch, as no Such time more dimensions, a lack of

contours, relevant two that years the

or storm information after

drains and

are depicted. analysis suit to --- even makes

Ibid. at the

of trial obvious proposed and, in

CDA

filed

it even study

Township's in October

decision

carefully of 2008

COA's

project fact, demand. a

and November

was

reasonable to COA's

responsible

governmental

response

rezoning

The Site Lacks Sufficient COA's seventeen carry did engineer sanitary flow. testified sewer pipes

Sanita~ at on trial the

Sewer Capacity that are three of the to

site

inadequate

sewerage do could

4T94:13-97:17. calculations function the

Nevertheless, because for the he

the engineer the

not

the

proper

"believed"

system

adequately However, with

proposed

project, identified review The of COA

4TI01:16-25. several COA's issues expert

Township's sewer

engineer on his

sanitary

flow based

engineering

report. therefore and

10T69:22-73:11. undermined wetlands with

engineer's Thus,

miscalculations to the

his conclusions. is sues site above, and the CDA's

similar

flooding

complicated

sewer

issues

associated
34

this

proposal approve

make

it

clear

that request

the in

Township the absence

could of

not

simply

COA's rezoning

comprehensive

due diligence. Additiona~ Constraints The record constraints the 419-unit rule, of includes the site. many other For violated facts that the illustrate noted Hazard the that Area

instance, the

Master Flood

proposal

OEP's

Elevation even during of water

and COA's plans flood site event access

would force to drive

emergency several

vehicles inches see that also COA

a minor reach the

through

to

point.

4T70:1-74:19; (revealing elevate level all

5T30:16-31:19, could parking not

5T36:19-22, at trial

5T537:11-39:21 how it flood that storage would area

explain

surface

one foot

above the also lost

hazard

as required. plan in did the not flood

The Master compensate fringe that did its he area. for

noted flood

COA's 419-uni t lost elsewhere

5T61: 21-62: 12 concept

(wherein did to project

COA's engineer address it). the

testified issue, nor the

419-unit even do the that not

plan

not

calculations 419-unit

address created turning flood list of

Finally,

Master because vehicles 119:15. issues, noted

noted it to

the

unsafe radii for

conditions emergency 15Tl18:22-

did

provide the site

adequate during

access are

events. the

These and the

merely of

a partial COA' s

more egregious them, as

paucity

analysis

to

address

by the Master.
35

As above

discussed and included that the

below, in CDA the site

these record was

development led the

issues Special for

discussed Master to

conclude proposed CDA a

not the

suitable trial

its did In

419-unit not award it

proj ect. for

Consequently, its proposed

court

remedy

project

because,

effect,

found that project.

the site was not suitable

for CDA's

419-unit

proposed

Above Facts Demonstrate (AJ The Reasonab~eness o Township's Due Di~igence Beore Responding To eDA's Demand For A Quick Response To Its Rezoning Request and (BJ The Site Is Not Suitab~e For the Proposed Project
The the

Although suitable position

the Master initially Proposed Proj ect, the 2010,

opined that the Site was indeed she subsequently testimony the Special at reversed trial. her More a

for the after on

considering January among 4,

specifically, report

Master

issued

finding,

other

things,

that CDA's Aa4052

site was suitable

for its 419-unit in my opinion,

proposal. suitable

Aa4016-65; for an

("The [CDA] site is, residential

inclusionary [419 units.]")

development

of the magnitude on December evidence

proposed

However, testimony and

1, 2010, aided with the benefit proffered at trial, the Special

all the Master

issued a "Supplementary
unsui table

Report"

that found CDA's site indeed to be Aa41 04-31. The Special Master

for

419

uni ts .

See

concluded:

36

The builder's remedy recommended for the CDA site is now for 360 units, not 419 units, and for 54 affordable units, not 63 affordable units. A revised plan is recommended to be prepared for submission at the time of the site plan approval showing an increased front year setback, an additional buffer along the eastern side lot line, compliance with an on-site parking standard of at least 1.85 spaces per unit, and the removal of one residential floor from Building A. [Aa4130 See also (emphasis added).] (discussing in detail the issues raised at

Aa4111-22

trial causing the suitability In light Master

the Special Master

to reverse her opinion

regarding

of CDA's site for a 419-unit project.) of this complete reversal of opinion, the Special

took the exact position

asserted by the Township from the

outset and through trial; namely, that CDA's site is not suitable for the 419-unit project Aa3842 ("Essentially the the developer had proposed. defendants argue that the See, e. g.

court

should for

deny the plaintiff's site suitability

request reasons.H)

[for a 419-unit builder's In this

remedy]

Supplementary

Report,

however,

the Special Master gratuitously CDA a builder's should award remedy

recommended

that, instead the

of granting trial court

for 419 units as requested, remedy to permit

CDA

a builder's

it to

construct

a project of 360 units.

Aa4119-22.18

As a planner, the Master's role was to make recommendations based on the facts and her experience, not legal advice. Moreover, after the Master makes recommendations, the trial court should exercise independent judgment. See e.g. So. Burlington County N.A.A.C.P. v. Tp. of Mount Laurel, 92 N.J. 158, 283 (1983) ("Mount Laurel 11"). In this case, however, the
18

37

On July 29, 2011, the trial court issued a comprehensive opinion which, in essence, agreed with the Township and

oral the

Special Master that the CDA site was unsuitable proposed project. See Aa3838-950.

for CDAIS 419-unit

However, was suitable

the judge construed for any builder's

the issue as to whether as compared Aa3911 "do[es] land

CDA site the that

remedy,

to whether (finding not

site was suitable certain testimony

for the proposed by the burden Township's

project. planner the

satisfy suitable upon a

the municipality's for

a

to show that

is not based

builder's

remedy") .

Consequently,

recommendation

from the Special Master, the trial court sua sponte remedy for a 360-unit project, such a development. even though ("The

awarded CDA a builder's CDA never even

proposed

Aa3866

builder's 419 units Aa3925 a

remedy recommended

for the CDA site is now 360 units not units not 63 affordable units.") for the the

and for 54 affordable recommended remedy.

("Ms. McKenzie builder's Master

only 358 or 360 total units ."); Aa3924 serious (noting concern that about

maximum

"Special

indeed

expressed

unquestionably high net density of the development" and that "the net density is an unquestionably high urban density") (emphasis

Master did provide legal advice -- indeed faulty and the trial court improperly followed it. supra.

legal advice -See Point III,

38

added);

Aa3944

(wherein

the

trial

court

granted
.u.)

CDA

a builder's

remedy "for 360 units In so centered

the

not for

419 units..

ruling,

the case

court

ignored

the

fact

that

the parties
of

the entire
project

(appropriately

so) on the suitability from the filing

419-uni t

plaintiff

had proposed,

of

CDA's complaint

though the completion

of the trial.

In so ruling, satisfied remedy court

the trial court also, in effect, its burden test of proof on the third

found that the Township element

of the builder's the trial

concerning

site

suitability.

Therefore, remedy pursuant

should have denied CDA a builder's law. The trial court's

to Mount Laurel error.

failure to do so was reversible PART 3

THE COURT SUA SPONTE SEIZED JURISDICTION FROM THE PLANNING BOARD AND APPOINTED A " SPECIAL HEARING EXAMINER" WHO CONDUCTED PUBLIC HEARINGS ON THE CDA THE NORMAL TIME AND SITE PLAN APPLICATION OUTSIDE LOCATION OF REGULAR PLANNING BOARD HEARINGS On Douglas ruled December 9, 2011, Esq. the as trial court sua sponte appointed and

K. Wolfson, that he
"shall

the
the

"Special

Hearing
of

Examiner"
the

assume

jurisdiction

Planning

Board" and

shall

"conduct

public

hearings" added).

on

CDA' s site

plan her in

application. ruling, the the

Aa3702-08. trial court arena, measure.

(emphasis referred but

In supporting experience single nothing

to Mr. Wolfson's to provide In fact, a

Mount

Laurel

failed

reason in the

for this drastic record suggests

See Aa3948.

that the Planning

39

Board was predisposed

to delay

or deny applicant The

CDA's

application

or to be biased

or prejudicial

to the

in any way. Examiner, the in turn, took the improper steps of (1)

conducting City Board

CDA hearings instead

at Union

County Hall and

Courthouse, where (2) the

in the Planning the See with

of Elizabeth, meetings during 26T.

of Township take place;

normally

conducting

hearings

the workday, Each

instead

of during

the evening.

21T through typical asserts citizens

of these

decisions in Cranford

are inconsistent

Planning below,

Board meetings tends to

and, as the Township by Cranford

minimize

participation

and other members residents

of the public. formally objected to the time

Several and venue Master. rejected responded not

of Cranford

of the CDA hearings 22T24-25; these by

by writing

letters

to the Special and the Court The Examiner It is and

see also Aa5749.

The Examiner Aa5840.

complaints.

22T24:22-25:5;
lS

stating: Board

"This hearing

a judicial Town is Hall.

proceeding. This [the

a Planning of the

at

is part

parcel

litigation

that

before

trial

court]."

22T24: 22-25: 5.19

19 The Township also objected to the adequacy of the public notice of the hearings and contested whether the Examiner had jurisdiction to address the issue of whether CDA could completely re-grade the road adjacent to the CDA site. 22T8:2213: 12 . The gravamen of the Township's threshold substantive argument was that, by offering testimony on the "re-grading" issue, CDA was in essence improperly "backfilling" incomplete trial testimony concerning the suitability of its site, and that

40

At whereby

the

CDA

hearings, were

the

Examiner

employed by both

process

CDA's witnesses

cross-examined Later,

the Township

and members Master

of the public. the the

the Examiner followed the public

and the Special by to additional cross-examine from court Board

examined by

witnesses and had

opportuni ties the the witness. Planning

Township the Court

Since Board,

"divested process

jurisdiction" the trial

22T6:9-11, the members

the of

authorized of the

stripped

the

Cranford

Planning

opportunity their

to ask

questions

in their

official

capacity in

or utilize a manner The August on

local

knowledge

to process

CDA's

application

most sensitive hearings took

to the community. place over the course of five days In

of 2012.

During

the hearings, aspects site plan of

several CDA's

witnesses

testified for not storm able asked the

various

technical and final

application including but

preliminary limited water to to

approval,

traffic,

architecture,

landscaping,

drainage,

retention, the of time the

and sewers. out of

The few members daily

of the public to by attend CDA

take

their

schedules presented

questions Township. On

various

witnessed

and

The hearings November 10,

concluded 2012, the

on August Examiner his

23, 2012. issued his Report of and fact,

Recommendations,

which

contained

findings

CDA was in fact seeking "post-trial relief" through the site plan application process. 22T18:10-21:16. The Examiner rejected these arguments. 22T21:20-22.
41

conclusions, plan proposed

and "recommended by CDA" by the

conditions with

of approval the

of the site

in accordance trial court.

360-uni t builder's (cover the sheet sum of and

remedy report)

granted The

Aa5837

Special

Master report. Court

concurred Ibid. entered

with

substance

of the Examiner's 5, 2013, the

On April recommendations final site

an order

adopting

the and is

of the Examiner approval. The

and granting Court Avenue the also

CDA preliminary ruled that CDA

plan

permitted a Flood

to re-grade Hazard Area

Birchwood permit

to assist New Jersey

CDA in securing Department of

from

Environmental

Protection

("DEP").

Aa96-106.

LEGAL ARGUMENT STANDARD Points therefore Brothers I through are v. Tp. subject IV below to de OF REVIEW raise novo pure questions See, 549 352, of law and Toll

review. 502,

e.g.

of W. Windsor,

173 N.J. Inc.,

(2002) (citing 372 (1999)). findings

Balsamidesv. In instances rendered such by

ProtameenChem., where the the Township court,

160 N.J.

is challenging

factual

trial are

if any, "by

no deference adequate, Rova Farms

is due where and

v.

findings

unsupported
Ibid.

substantial Resort, Inc.

credible Investors

evidence."

(quoting

Ins. Co. of Am.,

65 N.J. 474, 484

(1974).

42

POINT

THE TRIAL COURT ERRED IN RULING THAT CDA SATISFIED ITS BURDEN TO MAKE A GOOD FAITH ATTEMPT TO OBTAIN RELIEF WITHOUT LITIGATION BEFORE FILING SUIT Introduction Mount good faith Laurel jurisprudence to obtain suit, requires a developer to make a

attempt prior

inclusionary unless

zoning

without can prove

litigation

to filing

the developer

that further CDA's in good the illusion suit without

good faith negotiations efforts

would have been futile. relief without attempt litigation to create

purported faith

to obtain

-- were

a plainly

pretextual

of "good fear of

faith negotiations" disqualification a "good faith

so it was free to file for a false to start. A

developer without By proposal

cannot

make

attempt"

obtain

relief

litigation failing to

by engaging

in a charade. the most proj ect basic in town facts on a about its

to provide the

even

build site,

largest

severely

constrained before the

and then by a demanding could complete its

an answer responsible faith. that

in two weeks evaluation,

Township

CDA did not conduct

lS

negotiations given "Site

in good the

This conclusion CDA pUrposefully Report" from the

especially

unassailable 21, 2008

fact

withheld Township answer.

its May while

Investigation the

simultaneously

pressing

Township

for a quick

43

Since defense this "good that

lS

the negotiations not available CDA's failed

were not In good faith, to CDA. In the unlikely

the futility event to that be in

Court

deems CDA

pretextual to satisfy

pre-suit its

acti vi ty to

faith," further

burden

demonstrate been futile. with CDA the on

negotiations was clearly of suit, CDA

with

Cranford

would

have

The Township at the proposal November time

open to additional in the process negotiations

discussions

and was

of considering by filing suit

when

terminated

12, 2008. of disqualifying for a "false found CDA start" that from as CDA it entitlement should to a the its

Instead builder's trial

remedy

have,

court

erroneously

had

satisfied

obligation
A. Fi~ing Itse~f FUrther A

to negotiate
Deve~oper A Of This Good Faith

in good faith before

Must Negotiate In And

filing suit.
Before

Good Faith Can

Biui.Ldea:' s

Remedy Sui t

On~y Abso~ ve

Ob~igation Negotiations

By Demonstrating That Wou~d Have Been FUti~e

In Mount upon

Laurel to

II, the Supreme attempt to obtain

Court

imposed

an obligation litigation

developers

relief

without

and to act in good faith: Where the plaintiff has acted in good faith, attempted to obtain relief without litigation, and thereafter vindicates the constitutional obligation in Mount Laurel-type litigation, ordinarily a builder's remedy will be granted, provided that the proposed proj ect includes an appropriate portion of low and moderate income housing, and provided further that it is located and designed in accordance with sound zoning and planning concepts, including its environmental impact.
44

[Mount Laurel added) . J Through this developers relief See to passage,

II,

supra,

92

N. J.

at

218 (emphasis

the

Supreme Court attempt to

created to

a legal

burden

on

make a good faith having to resort

obtain before of

Mount Laurel filing suit. 396

without

litigation v. Bor.

also

Oceanport 622,

Holding,

L.L.C.

Oceanport, the

N.J.Super. obligation litigation builder's the sense

627 n.2

(App. Div. to

2007) (finding to obtain of

"good faith" without to a in

and the to be

obligation
"separate

attempt

relief

preconditions

entitlement "are related

remedy" that
a

and that

the

two obligations
attempt to obtain

developer's

relief

without
20

litigation

must be made in good faith.")

(emphasis

added).

Two years Serpentelli, trial its courts, pre-suit

after

Mount one of

Laurel the

II,
three could that

Honorable original only

Eugene

D.

P. J. A. D., ruled that

Mount Laurel itself of

faith

a developer by proving

absolve

obligation

further

"good

negotiations"

would have been "futile:"

Note that the benefi t given to the first builder to file is not intended to dilute the Court's admonitions [in Mount Laurel IIJ that a Plaintiff must act in good
faith Thus, are and attempt any builder stands to obtain to lose relief it if without be litigation. granted a warnings who would otherwise

remedy still ignored.

the Court's

at

the

These issues same time the

will ordinarily be resolved threshold determination of

20

CDA expressly acknowledged the obligation in its Complaint. See Aa17 ("CDA has made a good faith effort to secure voluntary rezoning of this property for inclusionary development."
45

entitlement is made. Admittedly, there may be instances when good faith negotiations will be futile. The Plaintiff choosing to win the race to the courthouse by relying upon the futility defense had better be prepared to prove it or risk having won the race only to be disqualified for a false start. Co. , Inc. [J.W.Field N.J. Super. 445, 461 added) (internal citation Thus, would CDA have must been prove futile that or v. of Franklin, 204 Tp. (Law Div. 1985) (emphasis omitted) .] additional it will be good faith negotiations [from its

"disqualified

builder'S The principles

remedy]

for a false start." Division case:

Ibid. reemphasized these

Appellate

recently

in the Livingston

Defendants are correct that the Court stated that a precondition to the potential award of a builder'S remedy is a determination that "the plaintiff has acted in good faith [and] attempted to obtain relief without litigation [.]" Mount Laurel II, supra, 92 N.J. at 218. But a developer prior to Hillside made a bona fide affordable housing proposal for this site before litigation was instituted. The Township refused to rezone the parcel for an inclusionary development on the Hillside site [.] *** Hillside was aware of these unproductive negotiations when it entered into its contract to purchase the property. Hillside emphasizes that it also knew it was seeking a higher density than the previous developer, so it is fair to conclude that negotiations for an even higher density would not have been fruitful.

***
Defendants claim that Hillside could have [presented a proposal anyway]. But the record demonstrates that there were drawn out negotiations with other developers and that the Township was not interested in any affordable housing on Hillside's property. The

46

bona fide offer by the prior developer property is therefore sufficient. [Joseph Kushner Livingston, 2013 2013) (unreported (emphasis added).J Thus, consistent with in a CDA having

of Hillside's

Hebrew Acad. , Inc. v. Tp. of at 15 (App. Div. WL 4607526 provided opinion at Aa6477)

J.W.Field, analyzing

the Appellate CDA's

Division

recently this must a

acknowledged Court must

that, conduct

pre-suit

actions, First, it

two-pronged attempted

analysis. In good

determine rezoning whether futile tests.21

whether without

faith

to

secure

to file suit. faith filed

Second, it must would both

determine have of been these

additional at the point

good CDA

negotiations suit. CDA

fails

In Oceanport, supra, Judge Skillman discussed the pre-suit obligation, but did not apply the facts to the standard because he ruled that the trial court prematurely disqualified plaintiff from a builder's remedy prior to establishing a cause of action. 396 N.J.Super. at 634-35. Specifically, he held that until a trial court rules on whether the municipality was compliant, it should not determine the plaintiff's entitlement to a builder's remedy. In the Cranford case, there was the requisite finding of non-compliance (see Aa1067 (Order, dated March 20, 2009), and thus there was no reason to avoid reaching the issue of whether the developer violated its pre-suit obligations. Al though the Appellate Division did not reach the merits, the trial court did. The trial court "concluded that. . the plaintiff was required to show it had negotiated in good faith with Oceanport to obtain relief without litigation as a precondi tion to pursuing this action and that the undisputed facts established that plaintiff had failed to satisfy this requirement.") Id. at 627 (emphasis added). In light of that finding, the trial court disqualified the plaintiff for a "false start." The pre-suit "go through the motions" actions of the plaintiff in Oceanport are strikingly similar to the insufficient and pretextual pre-suit actions by CDA.
21

47

B.

The Securing

Tria~
A

Court

Shou~d
s

Btui.Ldea:'

Have Disqua~ified CDA From Remedy Because (1) CDA Did Not Before

Negotiate

In

Good Faith

Fi~ing
Good Faith

Suit,

And

(2)

CDA Did Not Prove That Further Wou~d Have Been "Futi~e." 1. CDA Did Not Make A

Negotiations

Good

Fai tzb.

"At tenp t:

To

Obtain

Re~ie Without of only

Litigation."

A consideration

two of the documents

in the record [in 218. in

lead to the inescapable good faith] to obtain

conclusion relief

that CDA did not "attempt litigation." attorney which 92 N.J.

without

First, the

consider

the email of October

from CDA's 7, 2008,

file

to its planner "My

afternoon
is

states:
no

current
than

expectation November 11,

that

we will

our

complaint

later

2008,

maybe sooner."

Aa2957. planner

Through about

this CDA's

email, legal him

CDA's

attorney

(1 )

informed

the

strategy,

(2) notified

the planner

that CDA wanted

to retain

for litigation his work a Motion lawsuit. complaint, CDA's

purposes,22 and

(3) urged him to immediately a certification soon after

begin of the

so he was ready to submit for Summary Judgment

in support service of

filed

Ibid. dated

Second, November

consider 12, 2008.

CDA's Aa11.

builder's Thus,

remedy

as promised, in

attorney

filed

suit almost

to the day he had identified

his October These

7, 2008 email. two documents were objectively demonstrate pretextual that CDA's and, thus, prenot

suit negotiations

clearly

plainly

22CDA hired its litigation

planner
48

three days later. Aa2951.

rendered October through though when

in good faith.
7th

The documents
i i=

demonstrate CDA was

that, merely to

between going as

and

November in a

in

2008,

the it was

motions

half-hearted

attempt without

appear

"attempting it was

to obtain not. CDA

relief was

litigation," to lure so a

in

reality into file

instead

trying

Cranford it could

rej ecting suit

its proposal --

as quickly and use the

as possible leverage of

- as planned

builder's

remedy

suit to force the Township

to capitulate

to its

zoning demands. A developer "avoid does not advance the Supreme such Court's a effort to See of

unnecessary supra,

litigation" 204 N. J. Super. as In

through at 454 of

charade. "avoidance

J. W. Field,

(finding the

unnecessary

litigation" identified

one

"principle II).

policy CDA

considerations" violated CDA

Mount

Laurel

Since

its obligation entitled

to negotiate

in good faith before remedy as a matter

suing, of law.

is not 218.

to a builder's

92 N.J.

Thus, reverse discussed

Cranford

asserts

that

this

Court on

could, the

and

should,

CDA's above.

builder's However,

remedy

solely

two

documents other

a consideration any question obtain

of the numerous

unassailable a good

facts eliminates attempt to

that CDA did not make relief without

faith

rezoning

litigation.

The facts include

the following:

49

The CDA site is severely constrained with engineering issues and environmental constraints. See Aa3893 ("Flooding very serious problem in Cranford is a Township.") Despite these severe constraints, CDA presented Cranford wi th a proposal for a 419-uni t affordable housing proj ect which, if accepted by Cranford, would have resulted in the most massive project the Township had ever seen, with net a net density of over 60 units per acre. See 11T16:14-15 (testimony confirming that CDA's proposed proj ect was four times ~arger than any existing residential site in town) .
2.

1.

3. While asking the Township to rezone the site to permit the massive development it sought, CDA provided the Township with only limited information; i.e. a concept plan and renderings of the building faces. Aa1086. 4. Even worse, CDA had in its possession a 25-page Site Investigation Report, dated May 21, 2008, but chose not to provide it to the Township in association with its request for a radical rezoning. aa1876-99 5. The paucity of Cranford to enlist proposal. information its own provided by CDA forced experts to evaluate the

6. Notwithstanding the legitimate concerns that such a massive project would raise in any community and that the public raised here, CDA pressed for an immediate response to its rezoning request within two weeks. See Aal192.
7. As Cranford was gathering reports from its professionals and employees as part of the due diligence process and considering same, CDA filed suit. Aa11.

In

light

of

these

facts, by and

did

the

governing due an A

body

of and to
any

Cranford seeking consider town --

exercise input those

responsibility its experts Of

conducting wanting it did.

diligence

from

opportunity resident judges of

reports?

course

including panel

the hometowns

of each

of the their

on this body

appellate to do no

-- should

reasonably

expect
50

governing

less. mean

Just because that Cranford

CDA was "in a hurry" should have cut

for a decision corners and

does not a

rendered

decision

without

finishing questions

the due diligence aside, that however,

process. this combination of

Rhetorical factors faith further and

demonstrates

CDA did not negotiate pretextual nature

in good of CDA's

further

underscores

the

negotiating
2.

strategy.
CDA Did Not

Demonstrate

That

Further "Futi1.e"

"Good

Faith

Negotiations"

Wou1.dHave Been

Since absolve would

CDA

did by

not

negotiate further Even CDA, it if

in

good

faith, faith

it

cannot

itself have been

claiming futile. to

"good the not

negotiations" defense that was

futility prove

arguendo

available would are

did

further

negotiations The
20-31.

have been clear.

futile. See Statement of Facts, supra, pages

facts

To summarize,

the facts reveal:

1. In response to CDA's September 24, 2008 letter, which provided very limited information despite the magnitude of the proposal and the site constraints, the Township asked its own professionals to prepare reports concerning the proposal.

When CDA appeared at the October 21, 2008 meeting following its demand for a decision on its rezoning request two weeks earlier, Cranford informed CDA that it was engaging in due diligence and was taking the request seriously. Indeed, it had received one of the requested reports the day before.
2.

3. By November Township had professionals.

11th

(the night before CDA filed suit), the already received reports from three

51

4. While the Township informed COA at the November 11th meeting that it needed to abide by its land use ordinance and past practices by securing an opinion from the Planning Board, it promised to ask the Planning Board to expedite its review. See e.g. Aa1269 (The "Committee is going to send a letter to the Planning Board to consider your application and give it a top priority.")
5. On November 18, 2008, unaware that COA had already filed suit, the Mayor kept his promise and asked the Planning Board to prioritize its review of the COA proposal. Aa1275.

These "futile," expedited While input and

facts

all

make

it with

clear

that,

far

from have

being been

additional and earnest. COA

pre-suit

the Township

would

criticized from its

the

Township's Board,

decision that

to

secure was

comment

Planning

decision

absolutely

reasonable

in view of at least the following

factors:

1. The Planning Board has a particular expertise in evaluating how land within the community should be properly planned and zoned; 2. The Planning Board was immersed in Mount Laurel at the point that COA made its zoning demand;

planning

3. The Township was simply doing what the Supreme Court encouraged trial courts to do when awarding a builder's remedy - taking advantage of the expertise of its Planning Board. Mount Laurel II, supra, 92 N.J. at 280; 4. The magnitude of COA's proposed proj ect, combined with the severity of the constraints on its site, reasonably generated public concerns and questions, which COA failed to answer at the public proceedings, highlighting Cranford's duty to respond to COA carefully; and
5. Since COA sought to be included in the Township's Affordable Housing Plan and since the Planning Board has the sole authority to decide what to include in that plan,
52

N.J.S.A. 40:55D-28, essential; and

input

from

the

Planning

Board

was

6. Under the MLUL, no municipality can adopt a zoning ordinance without obtaining input from the Planning Board on the ordinance N.J.S.A. 40:55D-64.

Given

the

reasonableness this Court

of

the

Township's not conclude or

referral that the as be

under

the

circumstances, rendered CDA.

should

referral by

further To the

negotiations contrary, input CDA its

futile

improper should

alleged

municipalities from have the

expressly even if it

encouraged means getting body. good have

to elicit like

Planning a

Board,

developers a

to wait

little from

longer the

before

decision

on

rezoning

request

governing were in

Nevertheless, faith, been

assuming

arguendo

that negotiations negotiations court

CDA did not prove

futi~e.

that additional the a trial builder's

would have to a

Therefore, from securing

should due

disqualified "false start."

CDA

remedy

C. The Tria~ Court Erred Acknow~edge The Significance

Above, But liso by Basing Facts and Lega~ Standards

Not Of Her

On~y

The

By Fai~ing To Facts Discussed On Irre~evant

Decision

The

analysis CDA the

above

demonstrates remedy. had two

that

the

trial the

court

erred

in granting
Li tigation,

a builder's trial court and got

During

course

of this to

separate both

opportunities

consider

this

issue,

it wrong

times.

See Aa3 673-

78; see also Aa3968-93

(written opinion);

Aa3838-949.

53

Review court was clearly

of

both

opinions, upon

however, legal various in the

shows

that

the

trial

relied

the wrong by the

standard

or, at best, on the

undoubtedly remedy.

confused For

limitations 23, 2010

builder's

instance,

June

opinion,

the court concluded: In this case, there is no evidence that Cranford Development or Lehigh negotiated in bad faith. There is no evidence that they threatened litigation if settlement negotiations were not reached. Under an objective standard, there is no evidence including witness testimony and demeanor for which a reasonable fact-finder could find that plaintiffs filed the instant suit prematurely in the absence of any La, tigation threats. On the contrary, Cranford Development presented evidence that it appeared at three regular township committee meetings and three workshop meetings over a period of eight weeks to request that the Township rezone the property. There is ample evidence that Cranford Development attempted to engage Mayor Puhak and the Township Committee in negotiations prior to the present litigation. [Aa3979 (emphasis added).J (wherein "file the trial court mentioned two times chip in court

See also Aa3980-81 that CDA did not

the within These

suit

as a bargaining by

the negotiation reveal in good confusion faith

process.")

statements because and the

the trial

of the standards, filing as a suit

the duty duty to are remedy

to negotiate not two use the

before doctrine

Mount and in

Laurel

"bargaining

chip"

separa te

independent Mount Laurel

limitations II, and 218

on the builder's have been

established as such.

should

recogni zed

Compare

92 N. J. at

(concerning

the

obligation

to negotiate

54

in

good

faith the

before obligation as a

filing not

suit) to use

with the

92 threat

N.J.

at

280

(concerning remedy trial

of

builder's the

litigation court's

"bargaining that CDAdid

chip").

Consequently, its

conclusion in good faith

not violate suit a

obligation it did not

to negotiate cornrni t a

before

filing is

because

"bargaining law. chip"

chip" After violation

violation all, just does

clear

misapplication innocent it relief fulfilled before of

of Mount Laurel a its "bargaining duty to

because not

CDAis

mean that to obtain

make a good faith

attempt

filing

suit. The trial court as well. was equally off the it mark23 relied project about In its July 29,

2011 opinion of the share CDA in focus proper In negotiated Peter

For example, a similar

on the in

testimony and fair whether court's of the

Hekemian regarding of the

Englewood, Cranford's to trial

testimony analysis. fact on

Township Such in

planner facts are

Aa3873. negotiated facts

irrelevant and the

good

faith, its

such

underscores

misunderstanding

standard. both in instances, good faith, the trial and gave court concluded that CDAhad to the

literally

no weight

23

As discussed in detail in Point III, infra, the trial court stated in the July 29, 2011 opinion that "the court does not find this site is unsuitable based on the mass density and layout of the building [in the 360-unit project]." Aa3927.
was for 419 and not 360

However, since CDA's proposed project units, the trial court's suitability

finding

relied

on

clearly-erroneous

foundation.
55

plainly the email

pretextual

nature

of

the the

negotiations. incriminatory

Inexplicitly, and revealing

court

completely COA's the

ignored attorney ultimate and

in which of this the

predicted ruling, its

the date of its lawsuit. the Court even court the did to should mention have it

Regardless addressed supports

email,

failure that the and Nor

Township's of the in

assertion legal

simply

lacked Court's court

understanding salutary acknowledge before

standard it.

Supreme the trial

intent that

creating

Cranford

was ob~igated to conduct for such a massive it acknowledge despite

due diligence on such to

authorizing site. May

a rezoning Nor did

project COA

a constrained provide questions the

that the

failed

21,

2008

Report

public's

basic Nor and

about

the engineering acknowledge

and design

of the proj ect. was reasonably of suit,

did the trial vigorously completely

judge

that Cranford

conducting undermines

due diligence COA's

at the point claim.

which

"futility"

Instead pre-sui t facts, Cranford. governing required the

of properly

evaluating the trial

the complete court focused

record only

of COA's on select against the and of COA a

negotiations, and drew

every

possible the court COA's

negative focused

inference

For instance, body

on the fact that on the agenda" portion that

did not "place

proposal during court weeks

it to discuss agenda. six

the proposal Aa3979. in

56

the public also noted

monthly at

The six

appeared

meetings

without

securing

decision.24 Township's attempt Aa3980. These minutes packed to

The

court to

also the

accepted Planning its

COA' s Board

argument was an

that

the

referral force COA

improper remedies.

to

exhaust

administrative

points

are all red herrings. meetings plainly shows

First, that

a review

of the were 7th

of these with

their

agendas (October

other

Township (October

business.

Aal088-98

meeting);

Aa1215-25

21st meeting);

Aa1252-61

(November

11th meeting) . on the include

Further,

since no official Township the COA was

action was to be taken required on its to formally To a

COA proposal, a discussion given and the asking

the of fact

not

proposal COA was

agenda. "proposing"

contrary , development COA had no

that

merely

for the Township expectation that

to rezone the

the property, would take have its by to

reasonable under

Township

another been

course

the circumstances. not to at least

In fact, elicit the

it would input of

irresponsible and to

professionals COA's evaluate radical failure their

Planning provide

Board

(to fill

the

void

created and

sufficient responding

information), to COA's

response

before

request

for a

rezoning.

24 Notably, half of those meetings were "workshop" meetings of the governing body in which no action was to be taken. Aa127799. Moreover, each of the workshop meetings included a discussion of the forward progress of the Township's draft Affordable Housing Plan. Aa1278-9; Aa1289-90; Aa1295-96. This fact supports the Township's "catalyst" argument, discussed infra in Point II.

57

In light by granting to negotiate CDA

of the above,

the

court

erred

as a matter because suit, CDA

of law failed also good

CDA a builder's In good to would faith prove

remedy, prior that

not only to

filing

but

because faith suit.

failed

additional futile reverse

purportedly

negotiations

have been

at the point this decision.

it filed

This Court should therefore

POINT II THE TRIAL COURT ERRED IN RULING THAT CDA SATISFIED ITS BURDEN ON THE FIRST ELEMENT OF THE BUILDER'S REMEDY TEST BECAUSE CDA WAS NOT THE "CATALYST FOR CHANGE" Introduction To negotiate but also secure a "builder's remedy," a plaintiff must not only

in good faith prior must The also pass the test alia the

to filing three-part requires to

suit as discussed test a for a

above,

builder's seeking a To the

remedy. builder's succeed municipal obligation

three-part inter

plaintiff in

remedy in

"succeed must with

litigation." (i) that Mount it

litigation, defendant on the was date

plaintiff

prove its that

non-compliant of suit, and

Laurel was the

(ii)

"cata~yst or change." The progressing Element was mere record shows that Cranford Township was steadily Housing CDA

to complete

the preparation Plan before fact.

of its compliant

and Fair Share aware before

CDA entered CDA

the picture. filed its its

openly weeks

of this the

In fact, Board

lawsuit to

Planning

scheduled

hearing

58

adopt

its

Affordable for change." with its

Housing To the

Plan. contrary,

Thus,

CDA

was

not

the

"catalyst to
tbat

the Township's were the

efforts
cata~yst

comply
caused

Mount

Laurel

obligations

CDA to

i~e its

bui~der's remedy suit. follows.

Is

An elaboration
A.
The First

of these points
E~ement

o tbe Bui~der's Remedy Test

a P~aintiff To Had Not Satisfied Its Suit;

Two-Pronged, and Requires (1) That The Municipa~ity

Demonstrate
"Fair and

Sbare" o Afordab~e Housing (2) That It Was tbe "Cata~yst

On The Date
For Cbange"

Of

Mount builder's builder's litigation;"

Laurel remedy. remedy,

II More

established specifically, the

the

three-part

test

for

to secure

entitlement "succeed project must

to a in a

(1 )

plaintiff must propose

must a

(2) the

plaintiff and

with

"substantial" to demonstrate

set-aside; that

(3) the municipality "proposed

be unable is clearly

plaintiff's

proj ect"

contrary To "success prove date

to sound land use planning. pass the first element of

92 N.J. at 279-80. the must three-part do more Laurel test simply on the further Thus,

in litigation" a town

-- a plaintiff satisfy addition,

caused

than quota must

that of

did not In

its Mount the

its

suit.

plaintiff

demonstrate in Toll

that

its lawsuit supra, in

municipal Supreme

compliance. Court that

----------------that only of

Brothers,

the

unambiguously a developer on

declared must the not date

"success prove

litigation" the

meant is

that

municipality be
"tbe

non-compliant
for

suit,

but

also

must
59

cata~yst

cbange."

173 N.J. at 560. requiring builders change" a

The Toll Brothers connection that

Court between

felt so strongly compliance the and

about the for

causal

remedy burden

lawsuit

it characterized

"catalyst Ibid.

as the "critical point" of the analysis. Brothers, the Appellate principle matter, facts Division

After acknowledged opinions applied in the

Toll

again of

and applied the Mount

the "catalyst" Olive Complex to the

v.

in a series the that

where of

court case. 174 and for West This

causal in Mount the

standard Olive

Specifically, N.J. 359

Complex Court to

Tp. of Mount

Olive,

(2002), "remanded

Supreme

granted the

certification Division

summarily

[the matter] light 502 of

Appellate v.

reconsideration Windsor, directive Appellate "direct Olive

in

Toll

Brothers "

Tp.
added)

of

173 N.J. from

(2002) Supreme previous a prior of Mount Court

(emphasis in for

the

came

response guidance

to

the

Division's authority" in Tp.

request Mount

through See Mount 526

Olive 340

opinion. N.J.Super.

Complex

v.

Olive,

511,

(App. Div. 2001) On "catalyst and remand, for the Appellate change" its standard Division from to specifically Brothers a applied as the

Toll

directed, remedy See 500,

affirmed the

prior was

decision not the

deny

builder's for change."

because Mount 511

plaintiff Complex
v.

"catalyst Olive,

Olive

Tp.

of Mount

356 N.J.Super. treatment

(App. Div. 2003).

Such direct
60

and parallel

by the

Supreme Court of whether for a

and the

Appellate must in order

Division

eliminates that

any question it was to the a

developer change"

demonstrate to secure

"catalyst builder's Since to benefit

entitlement

remedy. the lower Co. Supreme Court created the Mount Laurel developers 1, 55 doctrine (see Hills it is

income households v. why Bernards the all, Tp.,

and not 103 N.J.

Development understandable requirement. interests remedy

(1986), a

Court a

saw

fit

to does it

impose not files that the better then to

catalyst the

After of lower

developer if

advance

income households against a

(1)

a builder's is moving

lawsuit to

municipality plan; that lawsuit; the (2) forces be

expedi tiously to divert

file

a valid resources off the caused

municipality spent on

enormous to fending its

would and

compliance claims what it that

(3)

speciously do exactly

lawsuit doing

municipality The catalyst

was already

- complying.25

requirement

The catalyst requirement is consistent with other Mount Laurel jurisprudence. See also K. Hovnanian Shore Acquisitions v. Tp. of Berkeley, 2003 WL 23206281 (App. Div. 2003) (unreported, provided at Aa6486) (wherein the Appellate Division interpreted the Supreme Court's rulings in Toll Brothers and declared that "a builder's remedy action should be considered a remedy of last resort." (citing Toll Brothers, supra, 173 N.J. at 563) (emphasis added) . See also Morris County Fair Housing Council v. Tp. of Boonton, 209 N.J.Super. 393, 419 (Law Div. 1985) (wherein Judge Skillman, sitting as a trial court before his elevation to the Appellate Division noted that "the primary burden of attack on [the municipality's] zoning ordinance has been carried by the Public Advocate" and therefore questioned "whether any of the developer-plaintiffs who have filed suits against Denville will
25

61

therefore builder's

provides remedy,

an which

essential explains 173 N.J.

justification why the Supreme at 560

for

the

invasive called it

Court

the "critical
B. The

point."
Record

(emphasis added).
Tbat CDA Was Not The

P~ain~y Cbangerr

Revea~s

"Cata~yst

For

The was well that on

record

irrefutably

reveals Laurel the

(1) that compliance Planning

Cranford in 2008, was

Township and (2)

on its way to Mount fully of aware that

CDA was cusp

Board Housing that

literally at the

the

adopting suit.

a new

Affordable

Plan

point would filed placed Hall

it filed comply its the

Indeed, it could

CDA was alarmed file its suit,

the Township is why CDA

before on

which the

suit

November Affordable

12,

2008

before Plan 23, on

Planning in

Board

draft

Housing on November

file

Township the

for public

inspection

2008

and adopted

Plan on December In
change."

3, 2008 as scheduled.

Aa1302. was
not a "catalyst for

light

of

these nothing suit

facts, more before

CDA

It was file

than the

a profit-seeking Township could

opportunist complete the

racing

to

its

compliance

process.

Therefore,

the trial

court

erred

in finding

be found to have hence to be eligible v. Washington Tp.,

'succeeded' in Mount Laurel litigation for a builder's remedy." See also Van

and

a builder's remedy Washington Township

obligation unless

120 N.J. because

Dalen 234, 249 (1990) (affirming denial of the plaintiff could not prove "that

would not have satisfied its Mount Laurel. Van Dalen had commenced this action. "

(emphasis added).
62

that

CDA

satisfied remedy facts for

its

burden

of

the

first

element

of

the

builder's The catalyst pages

1.

test. demonstrating are clear that See CDA was clearly of not the

change

Statement

Facts,

supra,

12-31.

To summarize,

the facts reveal: planning for many

Cranford had engaged in Mount Laurel years before CDA even purchased its site.

2. Cranford began developing its Round 3 plan in December of 2007 in anticipation that COAH would soon adopt new Round 3 rules. Lehigh filed its builder's remedy lawsuit against the Township shortly thereafter. 3. During the first nine months of 2008 as COAH proposed and adopted new regulations, Cranford and its Planning Board actively developed its Round 3 plan, as COAH finally proposed and adopted new Round 3 regulations. 4. By the middle of September 2008, Cranford was well its way to completing development of its Round 3 plan. on

5. On October 7, 2008, CDA acknowledged it was well-aware that Cranford was moving rapidly towards the adoption of its Housing Plan. In fact, on the date CDA filed its suit, Cranford had scheduled a Planning Board hearing for December 3, 2008 and indeed adopted its Affordable Housing Plan that evening which was the culmination of a year of Mount Laurel Planning by Cranford Township. These facts, as detailed and summarized above, prove that CDA
6.

was clearly
C.

not a "catalyst
Trial.

for change."
Erroneousl.y Cbange"

The

Court
for

Concl.uded

tbat

CDA

Was The "Catal.yst

The feared,

trial but

court

obviously

did

not

recognize compliance.

that

CDA a

did not

cause,

the Township's

Indeed,

63

review

of

the

record

shows

that

the

trial

court

simply to

misunderstood Allan-Deane 1985), the

the catalyst Corp. trial

standard. Tp.,

For instance, 205 N.J.Super. a finding that that that the

referring 87

v. Bedminster court

(Law Div. was a had fully that of to

supported by

CDA

"catalyst already litigated CDA was

for

change" the case."

merely Lehigh Aa3876i it

noting and

Township has

settled this

Action

"CDA

see also Aa3876-77 "was involved

(finding process

a catalyst

because both

in the

litigation" determine

and because whether

the was

actions in

"required of

the

court

Cranford

violation true,

its

fair

share and

obligations.") certainly Cranford do to

These not

references, rise The to

while a

are irrelevant that the CDA trial

give

conclusion by

caused court and of

comply.

facts

referenced

also do not obscure Township were making

the obvious steady

fact that the Planning to comply

not

Board because

progress

CDA's development In addition, gave significance of

proposal the to, the fact

and lawsuit, that the

but despite them. court (with relied Lehigh) on, in and the

trial

CDA's

involvement zoning the

invalidation ignores Deane merely zoning clearly

Township's Long

ordinance trial court

completely in Allanlitigant" municipal ruled and for

a crucial that

fact.

after

held by

a plaintiff In

qualifies the

as a "successful of a

participating the

invalidation in Toll must

ordinance, emphasized

Supreme

Court

Brothers

that

the plaintiff
64

be the

"catalyst

change." Division

Compare opinion

Allan-Deane, from 1985

205

N.J.Super. a

at

138 merely

(Law to

requiring

plaintiff zoning 2002

"participate" with

in the invalidation (Supreme Court

of a town's opinion from

ordinance) requiring a

173 N. J. 560

plaintiff The facts

to demonstrate in this case

that it was the "catalyst show that, based on

for change.") the Township's "along comply. standard, the trial

compliance for the

efforts ride" and

and the Lehigh did not

Action, the

CDA was merely Township to

"cause"

Indeed, it may

had the court used have correctly based

the correct the

and controlling However,

applied

facts.

court wrong

instead facts.

its decision

on the wrong

precedent

and the

Far from being that of raced lower to the income remedy filing the a

a "catalyst," courthouse households

CDA was merely

an opportunist the rights a

in an effort into maximum

to parlay profit actions

through

builder's after act; in the not

suit. of

Ironically, the Lehigh After planning,

Cranford's

to comply CDA to

Action

actually had until

caused already

opposite. year of

the it begun

Township was not

engaged 24,

almost

September

2008,

~ong after

the Township

developing

its Round

3 plan,

that CDA approached the trial court's

the Township comment that

with CDA

its proposal.26 had spent its

Therefore, own time and

In fact, CDA had not even purchased until mid-September of 2008.

26

the property

in question

65

money

may

represent

a level

of sympathy to the standard legal

for

the

developer, in this

but case

it was completely the "catalyst

irrelevant for changeU

standard

articulated

by the Supreme

Court in its Toll Brothers

opinion. Conclusion

In light of the law and the facts in this case, did not "cause" for Cranford to Even suit, comply though and therefore was

CDA clearly is not the

"catalyst

change."

Cranford

non-compliant its burden on

on the date the second

of the CDA prong of the

CDA did not element that of

satisfy the was

first

builder's the

remedy for

test. change,

Therefore,

by

finding

CDA

catalyst

the trial court erred as a matter

POINT III

of law.

THE TRIAL COURT ERRED BY GRANTING A BUILDER'S REMEDY AFTER THE TOWNSHIP ESTABLISHED THE UNSUITABILITY OF THE SUBJECT PROPERTY FOR THE 419-UNIT PROJECT CDA PROPOSED AN ERROR THE TRIAL COURT COMPOUNDED BY AWARDING A REMEDY FOR A 360-UNIT PROJECT THAT CDA NEVER PROPOSED, NEVER SUBJECTED TO DISCOVERY, AND NEVER PRESENTED AT TRIAL

Mount entitled "clearly The trial to

Laurel a

II

makes

clear if

that its

developer

is

not is

builder's to sound pursuant Master, suitable

remedy

"proposed
92

proj ec t "
N.J.

contrary court, Special was not

land use planning.u to the recommendations in the effect 419-unit that

at 280. courtsubject that CDA had

of

the

appointed property proposed.

ruled for in

that

the

project the

Consequently,

recognition

Township

66

satisfied remedy not sua

its

burden the to

under court

the

third

element have

of

the

builder's CDA was

test,

trial

should remedy.

declared the

that

entitled sponte

a builder's CDA

Instead, remedy CDA for never

trial

court

awarded a

a builder's project that

a very

different never

project subjected By but

360-unit

proposed,

to discovery finding a

and never defended unsuitable remedy

at trial. its proposed the trial proj ect court In

CDA' s si te builder's precedent

for

granting legal

nonetheless, by our

ignored Mount

established was this remedy. in

Mount

Supreme providing that CDA

Court

Laurel

II. basis

This for

reversible Court to

error, rule

another is not

independent entitled A.

to a builder's
The

Supreme Court Deve~opers to Present

Faci~itate

Proposa~ P~anning"

Required a "Proposed Project" To A Determination of Inter liia Whether The Is "C~ear~y Contrary To Sound Land Use
Laure~

II

Developers, the following

including from

CDA Mount

(see Aa3 63 6), Laurel

routinely

rely

on

passage

II in support

of their

claim for a builder's

remedy:

We hold that where a developer succeeds in Mt. Laurel .li. tigation and proposes a project providing a substantial amount of lower income housing, a builder's remedy should be granted unless a municipality establishes that because of environmental or other substantial planning concerns, the plaintiff's proposed project is clearly contrary to sound land use planning." [Mount Laurel II, 92 N.J. at 279-80
67

(emphasis added).J

Indeed, In

even the trial court quoted addition seeking on to any rights

this very standard. this passage

Aa3852. on

confers also

plaintiffs

a builder's such

remedy,

this passage

imposes

responsibilities them so to present that, as

plaintiffs.

Specifically , it requires early on in the litigation Court, can defendant the

a "proposed project" a and practical all

matter,

the

municipalities, proposal accords and with

interested inter

parties alia

evaluate

determine sound 92 N. J. is

whether use 330

"the proposed e. g. the Mount

project Laurel

land at

planning." ("It to is

See, if

.!I,

supra,

only

[plaintiff's or

proposed represents

proj ect]

contrary

sound

planning

principles,

a substantial added) to

environmental

hazard,

that it shou~d be

denied. ") (emphasis The benefits. ability so,

requirement For

present it is

"proposed to

project" a

has

many

instance, whether expend project

essential

municipality's defense and, if The

to assess to

it has a "suitability" public resources to

whether

pursue

it.

Court's

proposed

requirement

ensures

that municipalities Similarly, a clear

are not forced it is

to make for the it

such evaluations the basic trial

in a vacuum. to of have the

essential of

court

understanding proposal indeed

parameters whether

plaintiff's has

so that satisfied

can

determine

the municipality

its burden

by proving

that the proposed

project

68

is

"contrary

to

sound

planning hazard.

principles,
" Ibid.
27

or

represents

substantial The designed curbing

environmental

responsibility by the Supreme

of a developer Court,

to propose

a project, benefit

as of

also has the has

salutary such the

developer

excess, the

which state.

created all,

credible Court made

consternation clear that

throughout

After that

if the municipality

proves

the proposed

project

violates 92 N.J. In courts

sound at 330. stark to sua

land use planning,

the remedy

"should be denied."

contrast sponte even

to

all

these

benefits, remedy the sound the

allowing

trial the

award

a builder's after

on a project

developer that the

never

proposed,

municipality land legal Under a use burden that

proved planning on the

proposed would

project completely

violated nullify

principles,

third element of the builder's remedy test. (which satisfy builder's intent, is what happened on in the and, this site case),

scenario could of the

municipality element Supreme Mount

its

burden

suitability to the

remedy still

test

contrary

Court's Laurel

lose control at 214.

over its zoning Unless

destiny. apply

.Il,

supra,

92 N.J.

the courts

the Supreme

27 To be clear, we do not contend that the proposed project must be fully engineered or that there can be no changes to the proj ect at all. However, the Supreme Court imposed the requirement that developers propose a project and the system the Court devised only works if developers comply with this requirement.

69

Court's

standard, knowing Indeed,

developers full well

can, that would will

28

and they

will, have

propose nothing
benefi t

excessive to lose in

proposals, doing excess so.

developers court

actually simply

from

their down

since

the trial tolerable appeal make

scale

the project the trial

to the maximum decision impact In

density. would clear

Reversing an

court's posi ti ve to be Court

this

have that

extraordinarily

- it would it will

if a developer the

chooses Supreme

excessive, prescribed

suffer

the

consequences

- its builder's

remedy will "be denied."

B. CDA Proposed A 419-Unit Project In Its Comp~aint, Througb Discovery And At Tria~; And Demanded The Rigbt To Deve~op The Proposed Project If The Townsbip Fai~ed To Carry Its Burden On Site Suitabi~ity Consistent discussed proposed above, project with CDA the sought "proposed a builder's this matter. The project" remedy for requirement a 419-uni t referred and The the trial

throughout project.

Its complaint discovery

to a 419-units preparation Master's project.

Aa16.

entire

process

focused

on a 419-unit 4, days 2010

project. evaluated

Special 419-unit

Report

dated

January Fourteen

Aa4046-61.

of detailed

trial

testimony

There is nothing remarkable about a developer losing a builder's remedy suit. Indeed, in Toll Brothers, supra, the Supreme Court noted that builder's remedy lawsuits are routinely unsuccessful. 173 N.J. at 564 ("Indeed, the perception that builder's remedies are routinely granted is simply not correct. A survey of builder's remedy decisions reveals that in thirteen Superior Court cases, eight builder's remedies were granted and five were rejected.") (emphasis added). See also Aa6501 (wherein the Appellate Division emphasized that builder's remedies should only be considered as a "last resort."
28

70

focused the

on

419-uni t proj ect. proposed trial project on

See, the

e.g.

T25:24 day on

(discussing of trial). 4l9-uni t dwelling

419-unit the

last

Finally, proj ect.

court's

opinion propose

centered a total

CDA's 419 .") several and things

Aa3841

("Plaintiffs

of

units with a standard Thus, revisions discovery constant: development percent although during period First, on its the

15 percent its

rental

set aside.

proposal

underwent period two

design post-

lengthy up

discovery to the trial, right it

the

leading CDA

remained a 4l9-uni t a 15

sought

to construct pledged to

site. housing trial

Second, set aside. court

provide

affordable the

Aa3841. acknowledged [of CDA's that

Moreover, "t[h]e issue

expressly

in this case is site suitability 15Tll-19-20. significant . which The trial court

419-unit that of

project] ." "[there property are] .

also

recognized on this

environmental
lS

issues

piece

the Court about.

very "

aware of and very mindful

of and very concerned

15T12:5-8. that it proposed failed a 419-

Not only did CDA clearly unit project, its burden it made

articulate

clear that

if the Township it should

to carry

on site suitability,

be entitled

to develop

this project: Where a builder is entitled to a site-specific builder's remedy, it is entitled to relief that permits it to actually develop the project that it has proposed. The Court is not free to speculate that a

71

different efficient

project might represent use of the land.

better

or

more

[Aa3639

(emphasis added).J the right to construct challenge, by the on its proposed it must Supreme site also Court project suffer if if the the

Since CDA claimed it withstood a

suitability articulated

consequences municipali ty the builder's

C. At

satisfied remedy Tria~,

its

burden

suitability:

namely,

"should
The

be denied."

92 N.J. at 330.
The

Township

Convinced

Specia~

Master To Reverse Her Previous Conc~usion That The Si te Was Indeed Sui tab~e For CDA' s 419-Uni t Proposed Project

Although suitable opposite tested Master's opinion, magnitude for

the

Master

initially

concluded

that

the she

site drew

was the was

CDA's

419-unit after of the

proposed suitability

project, of CDA's Compare

conclusion in the

proposal

crucible

litigation. dated

Aa4 052 site

(Special in of my the

Pre-Trial

Report, for with an

1/4/10) ("The

is,

suitable proposed")

inclusionary
("I

development

Aa4119

am no longer

recommending

that the builder's requested.") In 419-unit reasons planning. associated addition CDA why

remedy

be for all 419 units

the plaintiff

has

to

finding the

CDA

site

to be Master

unsuitable identified of sound

for

the

proposal, the proposal

Special

several land use

violated that

principles are

Aa4113 with

(noting

"there

some

planning

issues raised

the development

of the CDA site that were

72

during opinion, Master

the

testimony

presented

at

the

trial

which,

in

my the

warrant expressed parking of

additional various issues

consideration.") about COA's

For instance, 419-unit

concerns

project, the mass

including and

(Aa4113-14);

issues

concerning

layout

the

proposed

buildings

(Aa4119-20;

Aa4120-21); that

problems

with

the proposed was too dense

driveway

(Aa4122); and a concern (Aa4122) was it is not required that,

the proposal Thus, accept trial, Master proposed

D.
Uni t

for the site trial the

even

though

the of

court

to at the

the the

conclusions Township COA's

Master,

clear

presented site was

sufficient not

proofs

to convince its

that

suitable

for

419-unit

project.
Al.though Proposed

The

Township Project Was

Land Use To Deny A

P~anning, Bui~der's 2011, that

The

Estab~ished That CDA's 419C~ear~y Contrary To Sound Tria~ Court Improper~y Fai~ed

Remedy

On

July

29, found

the

Court

issued

an opinion

in which for the

it

effectively unit project embraced for CDA's Master] testimony Special concluding the

the CDA

site was unsuitable Indeed, that the trial the site

419and

it had proposed. Master's

court cited was

conclusion

unsuitable Special on the the and COA

419-unit
not

proposal.

Aa3897

(noting that
419 units

"[the based

could

recommend the

entire

offered.") (emphasis Master's that "the revised

added);

Aa3943-44

(adopting

suitability remedy

recommendations for the

builder's

recommended

73

site However, satisfied builder's the

is

now

for

360

units

and not

419 units the Township of

") had the

Court

failed on

to acknowledge the site

that

its

burden test. remedy

suitability the court project to sua

element sponte

remedy

Instead,

awarded that never

CDA a builder's CDA never

for a 360-unit never subjected

-- a project and

proposed,

discovery,

defended An reveals standard. for the Mount the

at trial. understanding its error. Instead of The the trial trial court court's simply the the reasoning applied site was plainly wrong

the

of evaluating

whether by

suitable Court in

'proposed project" II, supra, suitable certain

as required

Supreme

Laurel site was

92 N.J. for
any

at 279-80,
knui.Ldex t s:

it evaluated
remedy.

whether Aa3911 planner that the

See

(finding

that

testimony

by

the

Township's to show

"do [es] not land

1S

satisfy

the municipality's for a builder's is not II. was the test

burden

not suitable that

remedy"). established Court the by the Supreme

However, Court on not in Mount

Laurel site

The Supreme sui table for

focused

the inquiry -

whether

the

'proposed project"

on the suitability project. the

of the subject See Mount

property II,

for any possib~e supra, that, 92 N. J. subject at to to a

inc~usionary 279-280 various builder's

Laurel

(wherein other

Supreme

Court

stated would

limitations,

the developer

be entitled

remedy

"unless a municipality
74

establishes

that because

of

environmental

or

other

substantial

planning

concerns,

the

plaintiff's use

proposed project

is clearly contrary Since proposed the the

to sound land indeed clearly should

planning.") (emphasis that sound

added)

Township is court

established contrary to

"plaintiff's land use

project trial

planning,"

have declared Mount point. Beaverbrook development principles,

that COA was not entitled II could the not have

to a builder's more

remedy. on this to the

Laurel In

been

explicit standard

applying parcel, of

site

suitability Court stated: to

the Supreme is

"If the proposed sound planning hazard,

Beaverbrook

contrary

or represents

a substantial

environmental 92 N.J.

] it should be denied.") (emphasis added). In light failing to of the above, deny COA's trial court

at 330.29 erred by

unquestionably remedy after

builder's

Cranford

trial court actually faulted the Township for not proposing an alternative project for which the site would be suitable. See also Aa3842-43 ("Defendants have attacked the proposal of developer completely but has never offered this court another viable, feasible alternative."); see also Aa3898 (wherein the trial court noted that the Township's engineer did not "offer any feasible alternatives to [COA's proposed Stormwater Management] Plan.") However, the trial court and COA, for that matter, identified no precedent to support the proposition that a developer can avoid a determination that its site is unsuitable for the proposed project because the municipality did not propose an al ternati ve. No Mount Laurel case, imposes such a burden. The fact that the trial court gave weight to the fact that the Township did not provide an alternative vividly reveals that the trial court clearly misconstrued the proper legal standard concerning the third element of the builder's remedy test.
75

29The

established to sound

that land

the use

proposed planning. error.

419-uni t

development the

is

contrary court

Consequently,

trial

committed E.

reversible

The Trial. Court Compounded Its Error By Sua Granting A BuiLder's Remedy For A 360-Unit Project Tha t CDA Never Proposed, Subjected to Discovery, Or Defended At Trial.
Sponte

In December barring builder's

its 9, CDA's

rulings 2011,

on

July trial

29, court

2011

and

In

the that,

Order

dated of a

the

determined court

instead grant

builder's for

remedy, units,

the

instead

would

remedy

360

which revision

is fifty-nine

units

less

than CDA proposed. project

Sua sponte

of plaintiff's

proposed

after trial was reversible as noted, the the trial Court of

error for several court simply

reasons. to follow II the

First, the

failed

principle the it

Supreme

established the

in Mount site then

Laurel for

regarding proj ect

suitability a

plaintiff's the Court

proposed

principle site.

illustrated

with respect Second, unduly rewards

to the Beaverbrook awarding the

92 N.J. at 280, 330. CDA the never same even time, of sought unduly public as the

a builders Township spending obviously trial

remedy and, an at

prejudices CDA.

After Cranford by the

enormous satisfied

amount its of

resources, demonstrated proposed trial

burden CDA's

court's

rejection

project.

It was

therefore

patently remedy

prejudicial

for the CDA never

court

to award

a builder's

for a project

76

even

proposed, in

because a position an

doing where

so "even

essentially if

places

the

municipality This

it wins , it

loses." the

represents

enormous

waste

of

public

resources, 11.30 In

antithesis Third, regard, "freeze state status

of the Supreme for our

Court's must

goal in Mount Laurel be evenly the of applied. trial to

laws In

this

CDA frame of of

argued the

essence on the

that date

court

should the the be

world"

suit

determine that "must

Cranford's compliance as of the

compliance. and date any of

Aa3649 shortfall in

(alleging credits the

determined zoning

the

filing

of assert

exclusionary post-suit it would

litigation."). compliance to remain the for

Thus, acti vi ty

developers is

that

municipal allow sued that

irrelevant,

because

a town to the

non-compliant remedy. line"

and only comply Developers

after being argue to the

defeat need

builder's a "bright

further

standard

is essential

~ In addition to failing to recognize that Cranford satisfied its burden and the builder's remedy therefore should be denied, the trial court repeatedly and improperly gave the plaintiff wide lati tude throughout the case. For example, its engineers made numerous errors and false assumptions, and indeed its engineers failed to conduct studies necessary to support the sui tabili ty of its site. See, e.g. Aa3552-56; 4T24:21-25:9; 5T61:7-63:22; 5T13:21-15:6; see also 18T48:23-50:5 (demonstrating that the Special Master told CDA on an ex parte basis during trial that it had not made out its proofs on the suitability issue). Thus, even though CDA failed to do its job, the trial court nevertheless rewarded it with the right to develop the land far more intensively than the zoning of the site permitted. The 360unit project the court authorized equals the "unquestionably high urban density" of roughly 60 units per acre on the developable portions of the site. Aa3924.
77

proper

application before

of they

the decide

doctrine to

because in a

developers builder's

need remedy

certainty litigation.

invest

J.W. Field,

supra,

204 N.J. Super. at 452-453. also deserve ability is to certainty. evaluate contrary its In order and to prove sound

Similarly, to facilitate a

municipalities a municipality's project

whether

"proposed the

clearly first

planning," project."

developer

must

present

"proposed to empower

Just as developers to defeat with the

argue that it is unfair by responding compliant

municipalities remedy unfair suit

developers of

to a builder's it that
lS

adoption court

ordinances,

for the trial project the

to respond contrary right

to a determination to sound planningu

"proposed granting project

is clearly the

by then different

plaintiff

to

significantly

than the developer reasons, to

had proposed. this follow Court should reverse Laurel remedy the trial

For all these court who simply

failed

the Mount

II decision suit.

that formed

the foundation

of COA's builder's

78

POINT IV THE TRIAL COURT COMMITTED ERRONEOUSLY STRIPPED THE PLANNING BOARD OF ITS JURISDICTION AND SUA SPONTE APPOINTED A "SPECIAL HEARING EXAMINER" TO USURP THE PLANNING BOARD'S STATUTORY ROLE TO PROCESS CDA'S DEVELOPMENT APPLICATION. A. The Tria~ court Without Justification Or Even Making Any Findings Improper~y Stripped The Cranford P~anning Board Of Its Jurisdiction To Process CDA's Deve~opment App~ication Stripping development was a Planning Board of its duties act In to process that Fair

applications

is an in
Tp.,

extraordinary this 220 case.

N.J.

- an act Cty

completely Council Judge

unwarranted v. Boonton

Morris 388 to

Housing 1987),

Super.

(Law Div. infringe in a in

Skillman

entertained of the Morris

an

application Planning

upon the prerogatives far less invasive the even instant though case.

Township court

Board

way than the trial However, Judge

sua sponte rej ected

ordered the

Skillman

request to the

the Morris Board, in

Planning

Board,

in stark

contrast

Cranford To matter,

Planning elaborate, the

had acted egregiously. the Morris County Fair the Housing Council Board in of the

parties

vigorously

accused

Planning

purposefully Township. The

frustrating Public

inclusionary and several rights

development aggrieved seeking a

Advocate

developers forms and to or

filed motions of relief,

in aid of litigant's including requests "to for

various master

appoint the

establish

special

procedures

review

of

denials

79

approvals Laurel
parties planning

with

conditions

of Id.

site at

plan

applications Notably,
the

for

Mount

developments."
did not board, ask for

401.
to

aggrieved from the

the court

seize

jurisdiction

but

instead

merely

asked

for expeditious by an

review

of

denials

or

conditioned

approvals

experienced

professional. In causing indeed number his

Ibid. analysis, Judge the Skillman Morris of first Township local noted that, in

interminable violated

delay,

Planning ordinance

Board and a In

specific

sections

the

of provisions the motion,

in the New Jersey MLUL. Judge Skillman concluded:

Id. at 397-98.

granting

It is thus manifest
prior determination Board had violated

this court's that the Morris Township Planning the settlement agreement with the

that, notwithstanding

Public Advocate and the court's award of relief in aid of litigants' rights designed to assure the expeditious processing of site plan applications,
there has been a continuing violation of the settlement agreement and the judgment embodying that agreement. Consequently, more extensive relief in aid of litigants' rights is required.

[Id. at 399 In addition to

(emphasis added).J concluding

(2)

that

the

Board and
(3)

violated an order

( 1)

settlement of the

agreement, rights, as

a final order, Skillman delay"

in aid

litigant's actions

Judge

thereafter and a

characterized "failure to Id.

"unnecessary Mount Laurel

expeditiously at 399-401.

process

site plan

applications."

80

Nevertheless, procedure considerably employed stated: other In "The special advocated less the

Judge by

Skillman the

refused

to

implement which trial

the was court

Public than the

Advocate, one the

draconian Cranford

case. of may

Specifically, or the

Judge

Skillman of in a

appointment procedures but

a master turn out have

establishment appropriate

to be not

particular

case,

plaintiffs

made

an

adequate

showing that such relief is required at this time." (emphasis added). In the stark contrast Planning record had, to the Morris displayed Township no

Id. at 402

Planning

Board, conduct. Cranford any by even Board clear had no

Cranford the

Board

egregious that the

Indeed, Planning

is void

of any act

indication improperly to the

Board

or would,

in processing required did not

development the award

applications

pursuant remedy.

rezoning CDA

of the builder's court

Moreover, concerning In trial

ask the trial prior to,

for any relief or after above,

the Planning of the

during,

trial. the

light court

principles reason

articulated the

simply

to take

radical

action

of usurping

the power

of the

Planning
B.

Board to process
The
Tria~

CDA's development
Vio~a

application.
Ob~iga tion to O The P~anning

Court

Uti~ize

The

"Experience

and

ted Its Expertise

Board

Our expertise

Supreme of

Court

has

long

recognized See, e.g.

the

value v.

of Bd.

the of

planning

boards.
81

Kramer

Adjustment, court to

Sea

Girt,

45 N.J. that

268,

296

(1965) 'who

(requiring are and

trial

"recognize with their

local

officials

thoroughly interests

familiar

community's

characteristics of its people

and are the proper the best

")

representatives to Ward In indeed bodies

are undoubtedly land 16, use 23

equipped (quoting added) laws

[render v. fact,

municipal 16
N.J.

decisions] .r

Scott, the

(1954)) (emphasis noted boards that and our

Supreme that

Court

in Kramer planning proper

presume "will act

municipal

governing

fairly

and with added). decided

motives and for valid reasons." In light Laurel and of the above,

Ibid.

(emphasis

when the Supreme sought boards to make when

Court

Mount

II, it understandably of planning

use of the expertise awarding a builder's

expertise

remedy: The trial court (and the master, if one is appointed) should make sure that the municipal planning board is closely involved in the formulation of the builder's remedy. This does not mean that the planning board should be permitted to delay or hinder the project or to reduce the amount of lower income housing required. However, with this caveat, the trial court and master should make as much use as they can of the planning board's expertise and experience so that the proposed project is suitable for the municipality. [92 N.J. Ci ting quoted opinion. 280 (emphasis added}.J about land once supra, use again planning, in 2002 at 513.
fI

"concerns this

the the

Supreme Toll

Court

principle

in

Brothers

Toll Bros,

173 N.J.

82

Despi te relying

the

emphasis experience the trial

by the and

Supreme Court of sponte Examiner"

on trial

courts on

on the

expertise sua

planning

boards,

December 9, Wolfson, to Esq.

2011,

court

appointed

Douglas him

as the

~Special over

Hearing the on

and directed

"assume

jurisdiction" public

Cranford CDA' s site

Planning plan the

Board and to application. Examiner, the that: of the

rr

"conduct Aa3702-08. trial ~[t]rial municipal Aa3852. announcing Aa3947-48. from relied the

hearings" just

Oddly, expressly are

before in its

appointing July 29,

court

noted urged Board

2011 opinion

courts

to make as much use as possible expertise and followed the experience. this

Planning The its

court, decision

however, to appoint

statement in this

by case. Board have

Examiner the

Instead process,

of erroneously the Board's trial court

eliminating and the

Planning should

Master

on

the the

expertise. of law discussed order, Planning plan the

Such

action

directly

contravened Per the the

principles court's of the site and

above. indeed "assumed public despite another

trial

Examiner and

jurisdiction on by

Board"

"conducted In fact, took

hearings" obj ection

CDA' s

application.
31

Cranford

others,

the

Examiner

The Examiner and the trial court both rejected several written obj ections by Cranford residents concerning the time and venue of the CDAhearings. 22T24: 22-25: 5. The Examiner responded to the obj ections by stating: "This is a judicial proceeding. It is not a Planning Board hearing at Town Hall. This is part and
31

83

irregular County Hall

step

(1)

by

conducting

the

CDA

hearings instead

at

Union

Courthouse,

in the City of Elizabeth, Board meetings during

of Township and

where

the Planning

normally

take place;

(2) by conducting the evening.

the hearings of these

the day, instead are

of during with to of

Each

decisions in

inconsistent and tends

typical minimize

Planning

Board

meetings

Cranford

participation

by Cranford

citizens

and other members

the pUblic.
C.

Seizing

Jurisdiction

Was

Prejudicia~
of Cranford

P~anning Board, the Residents and Any Other Interested Parties Under planning and, as any circumstances, is a "nuclear above, to

To The Township,

seizing option"

jurisdiction use

from

board

in land

jurisprudence violates the

discussed Court's

such trial

extreme courts Laurel

action to defer

Supreme boards at

directive as possible Vlew of

to planning 92 N.J. and

as much In in and

in Mount the

litigation. local

280.

(1)

Board's issues

knowledge

expertise Township tha t

addressing (2) the the CDA

flooding

throughout

Cranford issues shown

enormous site,

flooding the trial

and environmental court should have

plagued

particular

deference

to the board's

"expertise

and experience."

parcel of the litigation that 22T24:22-25:5 (emphasis added).

84

is

before

[the

trial

court]."

In Examiner For

addition was

to

being

legally

unj ustified, and unj ust hearing in

appointing several Union

the ways.

clearly

prej udicia132 the

example,

conducting

five-day hours the

at

County

Courthouse ability Since to these

during

business in would

suppressed

local

residents' Aa5678-80. massive a local court to

participate residents this

hearings.

22T24-25; by

be most was

impacted

CDA's on

development, level. also By

decision Board

clearly

prej udicial the

stripping

of

its

jurisdiction, board

trial

eliminated

the

individual

members'

ability

discharge

their duties

in an official

capacity. the trial the court sua for set

In addition sponte

to the above,

the procedure altered and

instituted

substantively applications and

procedures decisions

processing forth

development Rules

reviewing

in the

of Court

the MLUL. site plan rendered parties

First , it application the decision to challenge instead Board

required when, in

the trial fact, the

court local it

to rule board

on CDA's have

should

itself.
COAl S

Second,

forced approval

aggrieved at the it

development Law

Appellate placed to the

Division Planning the

of in

the the

Division.

Third, of

anomalous

position

having

challenge

outcome

of

As the Special Master noted, participation by the public is an important part of the process and indeed is required under the MLUL: See Exhibit B "[TJ he process adopted by the Court in these matters was never intended to preclude the public's right to access to and participation of the hearings in the same manner as if these applications were being submitted for approval under the MLUL."
32

85

development planning Thus, if

application rarely, on

when, if ever,

under

normal

circumstances, a decision. the of

boards affirmed

challenge decision

such could

appeal,

this

disrupt and review

established

procedures

for the judicial

processing

land use applications. In conducting sum, the stripping hearings the Board of its jurisdiction was and

at Union

County

Courthouse

illegal

and prejudicial
D.

to those most impacted

by this lawsuit.

ILLegaL Seizure of Jurisdiction From The PLanning Board Tainted CDA's Site PLan Hearing And, A Fortiori, Rendered Void Its FinaL DeveLopment ApprovaL A finding was by this Court would COA's
a

that

sei zure

of also

Planning invalidate

Board the and

jurisdiction trial would court's

erroneous of

a fortiori

approval require

development to the

application Planning the Board

therefore based

remand

Board. would in

Naturally, make

upon the application and conclusions

presented, and would

its own

findings

not be bound court.

any way by those rendered In sum, Township's COA's in the

by the Examiner event that

and the trial this III Court above

unlikely in Point

rej ects and

the

arguments

I through Court

affirms

builder's

remedy,33 this

should

(1) void

appointment

33 A finding that COA is not entitled to a builder's remedy pursuant to Points I, II and/or III above provides a second independent reason to conclude that COA's application for preliminary and final site plan approval - which was based on the builder's remedy order - is void as a matter of law. Under no circumstance could the approval stand if the this Court rules
86

of the Examiner (2) void approval; final

and reinstate granting direct approval,

the Planning COA preliminary

Board's and for

jurisdiction; site plan and novo

the order and (3)

final

COA if

to it

reapply so

preliminary for de

site

plan

chooses,

hearings.
POINT V THE TRIAL COURT ERRED IN FAILING TO FIND PLAINTIFFS' PUBLIC NOTICE RELATING TO THE SITE HEARINGS WAS LEGALLY DEFICIENT, RENDERING THE PLAN PROCEEDINGS VOID THAT PLAN SITE

In 2012,

a pre-hearing the Township

submission raised

to

the

Examiner

on August to

3, the

several notice were of

issues the

relating site plan

sufficiency Aa5678-80. Examiner forth and

of COA' s written These the objections trial

hearings. by the set

summarily For

dismissed the

court.

Aa5842. was

reasons

herein,

COA's

form of notice

deficient notice to

under

the MLUL and site the

and case law interpreting therefore plan Order Board the Examiner

the mandatory lacked

requirements, hear COA' s reverse

jurisdiction this Court

application. dated April

Therefore, 5, 2013

should

and remand

the matter

to the

Planning

for a de novo hearing. First, the Notice will ambiguously be re-graded, the nature states that not a "stretch" of with

Birchwood

Avenue

and does

set forth

any reasonable

clarity

of the matter

to be considered

that COA was place.

never

entitled

to a builder's

remedy

In the

first

87

under N.J.S.A. grading

40:55D-11.

To simply

identify

a "stretch"

of re-

does not provide proposed. represented the of

any information For instance,

on the extent the public would

or amount not know

of re-grading if a "stretch"

two feet, or two miles. Notice a improperly of presumes that Avenue will be the will rethe

Additionally, proposed occur. graded re-grading Aa5682 to

"stretch" of .")

Birchwood Avenue added). issue

(" raJ stretch it

Birchwood (emphasis

elevate

Thus,

clear implication been determined. As the of a result of of

to a lay person The misleading of both Birchwood CDA's the

is that this nature

has already is fatal. scope of

of the Notice nature the of the

ambiguous and to

elevation the status fails

Avenue authority

improper the

implication roadway, the

raise

Notice

to properly Perlmart 234, 239

inform v.

the public Lacey Twp. 1996) ;

Bd.,

of the nature Planning see also

of the 295 Run (App.

application. N.J. Super. Watershed

Bd. , Pond 335

(App. Tp.

Div.

v. Hamil ton

Zoning

397 N. J. Super. was deficient a determination

Div. 2008). of law and

As a result, should have

CDA's Notice resulted In

as a matter that the

Hearing

Officer

lacked did as a

jurisdiction not determine of

to hear the matter. whether additional parties of a

Second, must be

CDA

noticed

result Avenue

the

proposed

re-grading

"stretch" of CDA's

of Birchwood property.

outside CDA only

88

of the property requested

boundaries radius

In fact,

200 foot

lists which sought lots.

relating are

to

Block

291, owned

Lot by

15.01 CDA.

and

Block

292, CDA

Lot

2,

the properties

Aa5687-708.

never of its

any property This is a

owners' fatal

lists beyond when it

the four corners comes to

mistake

jurisdiction

under the MLUL. The Appellate that owned use is by the the Division of the but has unequivocally hearing over includes the See, (App. held that property not only to
v.

subj ect

property

applicant to 255 the

which

applicant e. g., Div.

intends Dev. As

for

access Bd.,

development. 262

Brower 1992). of

Planning requested Avenue, feet of

N.J.Super. of an

CDA

re-grading it should

unidentified

"stretch"

Birchwood within 200

have

notified The

all property Examiner the and

owners the

Birchwood should

Avenue. have found notice

trial

court and 200

therefore required

declared

Notice

deficient within

CDA to provide Avenue

to all property proceeding. the Special in these right same

owners

feet of Birchwood Ironically, "the process to

before

as stated by

above, the

Master matters to

stated was to if

that never and these

adopted preclude of were B, the

Court public's in

intended

the

access as

participation applications See Exhibit

hearings

the

manner

being

submitted

for approval

under

the MLUL." given the

attached

hereto.

Unfortunately,

deficient

notice

In this case, that is precisely

what occurred.

89

The Township

therefore

respectfully

requests

that the Court

find that the Notice result, the site and/or

was inadequate plan hearings

as a matter are void

of law and, as a due to lack of

jurisdiction

adequacy

of Notice. CONCLUSION

For the reasons to reverse and, court's and the In trial the

set forth court's absence

above, Appellants decision to grant a ruling,

urge this Court CDA to a builder's reverse that in the

remedy trial Board

of

such

decision a

to seize "Special

jurisdiction Hearing

from

Planning stead. of the

appoint Appellants

Examiner" that the

its

Finally,

seek

declaration

Notice

CDA development

hearings

was legally

insufficient.

JEFFREY R. SURENIAN AND ASSOCIATES, Attorneys for Appellants

LLC

Dated:

February

24, 2014

90

FILED, Clerk of the Appellate Division, February 18, 2014, A-005822-12

ORDER ON MOTION

LEHIGH ACQUISITIONS CORP. V. TOWNSHIP OF CRANFORD AND THE PLANNING BOARD OF THE TOWNSHIP OF CRANFORD, ETAL MOTION FILED: 01/23/2014

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-005822-12T2 MOTION NO. M-004058-13 BEFORE PART H JOSE L FUENTES JUDGE (S):

BY:

TOWNSHIP OF CRANFORD AND THE PLANNING BOARD OF THE TOWNSHIP OF CRANFORD

ANSWER(S) FILED: SUBMITTED TO COURT: February 13, 2014 ORDER THIS MATTER HAVING BEEN DULY PRESENTED TO THE COURT, IT IS, ON THIS 14th day of February, 2014, HEREBY ORDERED AS FOLLOWS: MOTION BY APPELLANT-CROSS RESPONDENT

MOTION TO FILE OVERLENGTH BRIEF 90 PAGES GRANTED

SUPPLEMENTAL:

FOR THE COURT:

JOSE L FUENTES, P.J.A.D. L-000140-08

ORDER - REGULAR
SKB

UNION
MOTION

MEMORANDUM
TO:
Douglas K. Wolfson, Esquire; Philip Morin, Esquire; Nick Giuditta, Esquire; Stephen Eisdorfer, Esquire; Wendy Berger, Esquire Elizabeth C. McKenzie, AICP, PP May 15, 2012 Suggested Procedures for Site Plan Submissions, Reviews and Approvals for Lehigh and CDA Inclusionary Developments

FROM: DATE: SUBJECT:

The purpose of this memorandum is to set forth suggested procedures to follow in submitting, reviewing and approving site plan applications for the two inclusionary developments that were the subject of the Court's approvals in Cranford. As you are all aware, the Judge appointed Douglas K. Wolfson, Esquire, to sit as the Hearing Officer on these applications. him in his review in my role as the Court-appointed Master. I will be assisting However, it will be

important to the process to make certain that all of Cranford's professionals have an opportunity to review and comment on these applications and to participate in the hearings. Moreover, the process adopted by the Court in these matters was

never intended to preclude the public's rights to access to and participation in the hearings in the same manner as if these applications were being submitted for approval under the MLUL.

Doug Wolfson and I have discussed certain of the issues associated with this process. We both agree that there is no need to undertake the formal process of declaring an application complete in order to start the review clock ticking. However, I want to caution both developers that if there are missing items that the Township's professionals or Doug Wolfson or I believe are necessary to the review and approval of the application, then these items will be requested and it could hold up the hearing process. We would encourage both developers to communicate freely and informally with Cranford's staff and professionals to -1-

make certain that all issues are appropriately addressed in the submission. Similarly, we would urge Cranford's professionals to let these developers know immediately if missing information is holding up the review or will be required to be evaluated prior to approval.

The Submission

Ten (10) copies of the plans and ALL accompanying documents should be submitted. parties: The first five sets should be submitted directly to the following

Douglas K. Wolfson, Esquire Elizabeth C. McKenzie, AICP, PP Philip Morin, Esquire Nick Giuditta, Esquire Peter Van Den Kooy, PP

The second five sets should be submitted to the Planning Board for distribution to the following:

Township Engineer Township Zoning Officer Planning Board Office Construction Code Official Public File Copy

The Planning Board reserves the right to request more copies of some or all of the material submitted, should any of the Board members request it, but the Board understands that its role in this will be unofficial.

-2-

Doug Wolfson's fees are to be split between the parties. Mine are to be paid by Cranford Township. The costs of the reviews by the Township's professionals

was an issue that was not addressed in Judge Chrystal's December 9,2011 Order, but it would seem reasonable to expect that those costs would be borne by the developer in each case. Arrangements should be made to establish escrow accounts with Cranford so that these professional fees and costs can be paid as required by law.

The Review

The initial set of professional reviews should be undertaken within 30 calendar days of the submission. Please note that the review should not be limited to

completeness - it should be a full blown substantive review. To the extent that corrected or supplementary information is found to be needed, the applicant

should be notified as soon as the necessity is found so as not to delay the process. Professional reviews should be completed on time even if the If the missing

requested information has not yet been provided by the applicant.

information is critical to a portion of the review, its absence and its impact on the review can be noted.

Assuming that issues are raised and changes are required to the plans, the applicant will need to submit the revisions, along with whatever supplementary information has been requested as soon as it can be arranged.

Professional reviews of any revised or supplemented plans should be completed within 14 calendar days of receipt of the revisions and supplements requested.

We are all human, and there may be good reasons to extend a review period to accommodate a professional's schedule. Any requests for reasonable

-3-

extensions should be addressed to the applicant as well as the Master and the Hearing Officer. If there is a need to decide on the reasonableness of an

extension, the Hearing Officer will decide.

If the applicant believes that a requested supplement to the submission is unreasonable and unnecessary, this should be brought to the attention of the Township as well as the Master and the Hearing Officer. If it becomes necessary to decide on the reasonableness of a requested supplement, the Hearing Officer will decide.

The Hearing

Once the application has been reviewed by the Township's professionals and has been revised to reflect their comments and concerns, it will be ready for a public hearing. The hearing shall be duly noticed pursuant to the MLUL and proof of service shall be provided in accordance with applicable law.

Doug Wolfson intends to hold the public hearings in an empty courtroom at the Union County Courthouse. The hearings will be held during the day.

Steve Eisdorfer has suggested another alternative, to make it more convenient for the public to participate, and that is to hold the hearings in Cranford during the evening hours, still with Doug Wolfson presiding and me in attendance. would suggest that the attorneys for the two plaintiffs, the Township's attorneys and Doug Wolfson confer on this issue and reach a decision well in advance, because whether a courtroom or meeting space in Cranford is needed, it will be necessary to set a schedule well in advance. I

The public will be invited to participate in exactly the same manner as they would be invited to participate in any other public hearing on an application before the

-4-

Planning Board. The Rules of Evidence, etc., that apply to Planning Board hearings will apply to these hearings. The applicant will present the application and witnesses. examination. witnesses. The witnesses will be subject to questioning and crossFollowing the applicant's presentation, the Township may present After that, the public will be invited to present testimony and

witnesses, as well. The Master and the Hearing Officer will ask any questions they may have at appropriate times as determined by the Hearing Officer.

At the conclusion of the hearings, counsel for both the applicant and the Township's will prepare and submit recommended findings and conclusions and conditions of approval. The Court Master will resolve these submissions in a recommended form of resolution to the Hearing Officer. The Hearing Officer, once satisfied with the resolution, will submit it to Judge Chrystal for approval.

The applicant will be responsible for publishing notice of the decision so that the time period for appeals can begin to run.

-5-