Professional Documents
Culture Documents
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
Civil Action
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
Erred
The
Above,
By Of by and
53
The
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
On The
Date
Or For
"Cata~yst
That
CDA Was
62
C.
that
Court
Erroneous~y
Conal.uded.
63
"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
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
Trial Transcript
lOT
11T 12T 13T 14T 15T
Trial Transcript
Trial Transcript
September
16T
September 28, 2010 (Morning Session) September 28, 2010 (Afternoon Session) September
Trial
Transcript
17T
Trial
Transcript
18T 19T
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
23T
24T
25T
26T
11
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
29T
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
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
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
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
INTRODUCTORY This the trial brief court Laurel demonstrates did not
that,
understand
fundamental
in Mount
jurisprudence
Consequently, remedy
to the
plaintiff of
Cranford
Planning
Board
jurisdiction
plaintiff's First,
attempt
ensuing our
development require
laws
to
obtain
relief
without
litigation that
before
filing
remedy
suit,
unless
good here
would
have
futile.
plaintiff's made in
efforts and
plainly even if
pretextual plaintiff
in good
faith,
plaintiff would
trial
ruled
plaintiff example
on both
is the first
laws
require
a plaintiff
seeking
builder's that
to demonstrate the
for change"
municipality When
with
its
plaintiff was
asked
Township
already
along
achieving
feared it
would
complete
the
filed
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
element to
of
the
remedy
test
the
municipality
N
prove contrary
project and
lS
clearly
sound Cranford
environmental
principles.
this burden
as demonstrated
a builder's
instead court
builder's a remedy
remedy for a
sua sponte a in
project
proj ect
plaintiff never
never
proposed, at trial.
presented is the
discovery, example
defended error.
third
reversible
assuming a builder's
arguendo remedy
that
plaintiff the
was
indeed of Mount
despite
violations trial
above,
courts to In
to
infringe development
planning
jurisdiction included
hear the
applications
projects
plan
court
regard the
the
Cranford
as to warrant publishing
stripping legally on
it of its
after
conducted in Union
hearings County
application
Courthouse thereby
instead
suppressing This
participation tainted
hearings site
application. and
plaintiff's of its
plan
hearing
judicial hearing
development Board.
approvals
reasons should
as additional
ones
presented and
reverse
court's to
decision
Township
and
fulfill
their
to comply plan,
fashion be
set forth to
housing
amended
responsibilities
under
plaintiff
filed the first Mount Laurel ("Lehigh Action") . Cranford to drafted comply on with
lawsuit
Aa1-10.2 a
seeking
3 regulations ("COAH").
Jersey
Council
Affordable
(workshop meeting
minutes,
dated August
the status
of the Township's
draft Affordable
to develop
and adopt same). ten months a after filing of the builder's action remedy is the
filed
second
This
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
include
component
satisfy
affordable
housing obligations. On March entered 20, 2009, in responses invalidating to motions, the trial court and
an Order
appointing
4.
Aa3653the the
Cranford court
3, 2009, extended
trial
order
inter
Master's
duties
Aa3657-60.
an order consolidating
the Township
has satisfied
On June 23, 2010, the trial CDA and Lehigh's suit negotiation" opinion) On with the separate defense. motions
an order
granting "pre-
the Township's
Aa3673-78;
(written
herein appeals this order vis-a-vis 30, 2010, Division Cranford filed
seeking
and a motion
on short
trial
for a stay
were denied.
Aa3687-89.
2, 2010,
CDA Action,
which
occupied
the better
(14) trial
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
proposed However,
for
denying
remedy,
the
court
awarded
However, such in
proposed to discovery, of
never it
9,
subjected to
a project the
challenge
crucible entered
litigation.
court
also
Wolfson,
"Special Action
"Examiner")
in the the
directed Board
jurisdiction"
over
Cranford In lieu
Planning of the
hear
development
applications
Board.
Aa3707.
Cranford
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
moved
for reconsideration flooding on the after the trial) materials Township should
Irene regarding
hazardous The
by
CDA's in
initial light of
that,
court
its decision
authorized
On January
court denied
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
to raise area
its site to one foot above The order the and also (1) expanded issue "for
of the
referring
determination
Cranford's
request
County
during
On August emergent
6,
2012,
also
filed
application stay
with
Appellate
Division
interlocutory panel
site plan
hearings
to consider
Aa5709-15. to
decision
conduct
7
during
the
workday the
at
Union at
County time
alleging "will
that
hearings of
that
ability See
Cranford
citi zens
Examiner
location
of the
Examiner
presided
over
CDA's
five-day
application On trial
hearing at Union County Courthouse. 10, 2012, the the Examiner of filed the
November court,
with approval
"concurrence"
Special
recommending 93.
On November
21, 2012, Cranford Master remedy biased asserting order and had
trial court denied the motion. On April recommendations final grade Area site plan Birchwood permit 5, 2013, the
Court
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,
Cranford
April Housing
2013,
Township Fair
Planning Plan,
Element
Share
incorporates
the 360-unit
builder's
protest." body
Aa1025-26.
On April
9, 2013, the Township's the adopted the Court on May a 22, plan,
adopted
a resolution April
conducted 2013,
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
seeking the
(1) to CDA
reopen
concerning
site
based
issues, Special
and Master
discovery Laurel
Mount Judge
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
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
and endorsing
Housing
Plan.
Since
it had
under
Mount suit,
to avoid with a
litigation concept
to filing an site,
for
Township
only
rezoning in due
request. diligence.
though the
planned it
completed by
process and
December
developing
Housing its
Plan.
facts a good
demonstrate faith
satisfy
burden
attempt
relief
without
that
additional these
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
due diligence
(2 )
and
explain initial
her
suitable
419-unit in Part
10
importantly,
the
facts
agreed
with
and found,
in effect,
the
unsuitable trial
for
proposed COA a
court
improperLy project,
360-unit
which
never
trial
Cranford
Planning even
Board
and
appointed Laurel
though on the
Mount Board's
rely
section site
details
conducted at of the
plan
working such
evenings take
where
hearings
normally
place,
access
to the hearings
on a development
application
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
efforts
to create
affordable in So.
housing
-L
predate
the
~~~
seminal
decision Laurel,
____________
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
Aa2272-74. the Township Housing developed, Plan and (COAH for were 3 of
endorsed for
Round of
COAH
approval
9T42: 1-11;
Aa1762 COAH
report
confirming
that
petitioned
approval filed) .
COAH
Round
on November Ibid.
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
December despite a
Township
also
affordable
redevelopment project
efforts. shall
("[tJhe units.
redevelopment
include
. ") .
affordable
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
as a part
effort
community"
12
which
housing
plan. COAH
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.
Division
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
Cranford
Laurel
reiterated
December Fair
it directed
to develop of
a new
Share set of
anticipation
adoption
COAH' s This
second
Round
regulations. detailed
included
community,
officials,
and planning
professionals.
On January January
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.
December
31, 2008 to
Element and
Share
Plan See
the
amended
regulations.
5:96-16.2.
these
events
unfolded. of now
of regulations, the
albeit
in January at least
facilitated
Township's
efforts,
regulatory of these
framework efforts,
were of
well
new
August COAH
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
need for
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
to obtain September
substantive 9, 2008
reported
to the public
(1) that
"Cranford is
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
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) ;
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
in developing
CDA was
progress, course of
acknowledged October
weeks
These Planning
debate
and its
"catalyst"
Township's
Mount
Laurel and
compliance
efforts. planning
In
fact,
based engaged
on in
the by
thoughtful Cranford,
comprehensive
process
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
completion asking to
severely
permit
massive
inclusionary request, it
To appreciate have an
the gravity of
essential
understanding
constraints project.
that
Avenue) with
is two The
acres.
Aa3840. and
is already parking
developed lots.
office record to
associated
Aa3841.
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
environmental management As a
including buffers,
issues, of Part
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
at
per
(providing density
a vivid
graphic
depiction and
between
COA's
proposal
sites
Moreover,
COAls proposal
the largest
than the next
development
largest
in Cranford,
in
times
development
In at
fact, least
COA's 800
419-uni t proposed or so
"would
residents" (wherein
"potentially trial
serious
see also
Aa3924
court
"Special
Master
high is
indeed
net
expressed
of the high
unquestionably density
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
October
it to develop support a of
proposed request,
its
provided
than
"conceptual of
plan,
conceptual while
elevation an
proposed
demanding
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:
Its Its
and
In before
the the
afternoon
of
October that
p. P. ,
7, very
2008,
before CDA's a
appearing attorney
Committee Kinsey,
evening,
contacted planner
F.A.I.C.P, to
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
seeking
avoid email
required
precedent,
this
COA's
so-called
specifically, letter,
that
combined after
with the
appearance was
mere
hours
nothing
to create in an It its
negotiating relief
faith
attempt create
without it a to
illusion it a had
burden to
demonstrate
effort
avoid
litigation I, infra.
precondition
Consistent Dr.
CDA
retained 7T68:9.
Kinsey
in preparation
The
In other and
the
evening
October
representatives Cranford
appeared to rezone
Committee
meeting to
asked
newly-acquired
property
19
permit during
its
419-unit
proposed
its brief
presentation,
for a project
four times
larger
any
on a seriously Aa1111
constrained we and
Aa1088; In
(nAnd this
request including
if in
interested
rezoning
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
to
wants
do."
stated: sooner,
nice if you had Board's several point." on or been months Ibid. before new
Planning
diligently
have reached to
a pretty
nexpecting" keenly
suit
aware be
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
timetable
to
complete
your
housing
plan.");
see
also
Aal113
(admitting
of
that
the Township
process"
and Planning
Board
a planning
and that
eager
process. for a
. ") .
rezoning, Board. Council]
to the
attorney is
admitted
CDA's,
typically is
referred
Planning Township
refer it
Aallll-12 wants to
something
step
next
would be
Planning
Board.") (emphasis
added).
As discussed Land
below,
Municipal
Land Use Law and Cranford's referral to the Planning asked whether
Use Ordinance
the
public studies
and existing
perfectly
reasonable
questions,
replied:
"Those if
will there a
be addressed is one."
Planning while
Ibid. in
Thus, zoning,
for
radical
change
the public's
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
COA's failure from the nothing (where puzzles they public less a
whether falsehood
local
resident
asked:
question
numerous attempt
showing relief
good
without
layperson, asked
would happen
Cranford
don't
kind
of
legal was
the
perception
accurate
knew
to quickly
terminate lawsuit
"negotiations" against
builder's
remedy
Cranford.
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
Aa1231. premature
body, a
however,
definitive CDA's
professionals Aa1222
reviewing
proposal
responded. stated
that
(2 )
seriously," for
Township
"ha[s] heard
asked from
input,"
"have
already
did
discuss The
proposal] informed
night's
meeting.") 2008, of
Cranford's the
engineer
indeed
filed
analysis the
development of information
paucity
(Confidential that
Memo,
October conducted
the
engineer
of CDA's short
rezoning shrift.
proposal engineer's
Township
detailed
report
literally
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
that police
it
from
its
and was
minutes what
reveal ty
responsible to permit
would
responding on such
a request seriously so it
intensive it was
due to
diligence do anything to
decision.
less CDA's
been a
response the is
quick
decision,
Mayor appropriately
seriously considering
explained
the [CDAl
proposal,
that
must
[CDA] is
follow due
eager
for
a
in
response,
Township
diligence
Aa1222. CDA found from its the aware Cranford's professionals, fact of the that fact the that actions, to be
record its
also request
shows for
that input
Council you've
the
addressed
attention
at
a number of
you've given
meetings.
to it.")
And we appreciate .
added) .
Nevertheless, CDAwanted
had
passed
now:
looking is
forward
as to Ibid.
whether
a rezoning
to proceed
with."
(emphasis
24
added).
also
again of the
that
he
was
imminent not
which
include of
proposed
very want
conscious to be
planning
process of
within
timeframes that
After
the Mayor
indicated
Cranford attorney
was tried
CDA's a
response whether
and, the
positive body
from
would
body
could
render the
its
without stated
input
professionals
public, The
was premature.
Ibid.
concluded
that
to make things
we follow
due diligence
appropriately."
Aa1236. Mount
In
response,
Mr.
admitted were an
that
the
Township's effort"
compliance to "work
"ongoing
and that
process
and be in a timetable
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
the various
ensuing ways
public to secure
comments, a
Cranford's pursuant
rezoning
and informed
the public
that
implemented the To
referred
meeting, was
assured
once
again, that
Cranford
committed for
to Mount us to
and
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
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
the on
governing two13
body
COA had
before
Cranford Plan.
attorney Plan
process
COA wanted
in that plan
and be part of that process." The Mayor responded corne to much us [with its in that
proposal], its
"it's provided
we take
Mayor
comply
the ask
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
and
the
attorney Board
affirmed to hear
that
Cranford with to to
[wants]
rr
this
matter
Ibid. by
in response is going
question
"Committee
send a letter
and give it
to the Planning
to consider
your application
a top priority."
with assured
concern
about
would
have
heard." to wait
recognized most
CDA would
In the Board
Fair
scheduled
to be
on December
soon
thereafter. by
responded
stating
that
Housing
Plan
right now."
mean that
that
Plan]
"it can't
doesn' t be
adopted the
Affordable
amended [to
include
CDA project]."
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
Fi~ed Its In
Bui~der's Remedy Lawsuit what happened next comes as no surprise. filed its
CDA's
attorney's
expectation, Aall-23.
CDA
suit the very next day. courthouse, and therefore CDA ended
the
"negotiations" complete
opportunity
its review
of CDA's rezoning
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
CDA its
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
eyes, had
not
negotiations
still
reason
additional it
"futile,"
is because
CDA decided
the
The
Township and PLesuuisxq Comp~e ted The And Adopted and Endorsed Its Third P~an
Process
Comp~iance
3,
2008,
after body
numerous discussing
meetings the
of
the of its
substance adopted
over
of a year, amended an
Cranford
new Plan. a
Aa328.
Housing overlay
compliance
package, and
includes
ordinance; of a Myrtle
and Avenue,
affordable Riverfront
as part sites.
2008,
the
adopted and
thereafter Aa330-31.
provided In light
the
Court. the
these
Cranford
completed
comprehensive of 2007.
planning
process
in December
30
The took
above
facts
that
Cranford
affirmative
actions
September
steadfastly receipt of
point
the as
change"
caused These
comply that
required
applicable negotiations
the
engaged
"good
faith
negotiations"
Finally,
these
facts belie
good
faith negotiations
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,
building;
southwest, to the
row
houses
along Care
Wadsworth
east,
Extended
Facility;
Birchwood,
31
Verizon Aa3255.
Building
recycling the
facility. zoned
On the date
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
provided
photographs
things
helpless high
by the high
floodwaters,
cars
floodwaters Site
on Birchwood truck
Avenue, aside
includes
of the
(2) a fire
the
impossible frequent
emergency events,
stuck of
middle
showing
flooding
portion
admitted
[on site]
mind
is
(2) that
"there
is no
doubt
[his]
that
significant Flood
flooding Hazard
This dated
admission August 6,
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
events, on
well. rain
December on
2009, record
during depict
heavy that
event,
photographs the a
barricading
Birchwood
Avenue.
rainstorm
"historic
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
buildings
parking
areas
in CDA's
encroached
requiring
it therefore prior
did one
averaging
did
proved
however,
necessary
in the absence
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
as
to
the
man-made
ditch
on
site,
COA's
at trial admitted
buffer
is required.
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
drains and
Ibid. at the
CDA
filed
it even study
Township's in October
decision
carefully of 2008
COA's
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
site
inadequate
sewerage do could
not
the
proper
"believed"
system
proposed
Township's sewer
engineer on his
sanitary
flow based
engineering
engineer's Thus,
miscalculations to the
similar
flooding
complicated
sewer
issues
associated
34
this
proposal approve
make
it
clear
that request
the in
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
emergency several
through
to
point.
5T36:19-22, at trial
explain
surface
one foot
hazard
noted flood
plan
not
calculations 419-unit
Finally,
noted it to
the
did
adequate during
access are
events. the
merely of
a partial COA' s
paucity
analysis
to
address
by the Master.
35
As above
discussed Master to
not the
suitable trial
its did In
court
remedy
project
because,
effect,
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
opined that the Site was indeed she subsequently testimony the Special at reversed trial. her More a
specifically, report
Master
issued
finding,
other
things,
proposal. suitable
Aa4016-65; for an
development
proposed
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
regarding
of CDA's site for a 419-unit project.) of this complete reversal of opinion, the Special
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
request reasons.H)
remedy]
Supplementary
Report,
however,
recommended
CDA
a builder's
it to
construct
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.
remedy,
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
proposed
Aa3866
remedy recommended
for the CDA site is now 360 units not units not 63 affordable units.") for the the
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.
38
added);
Aa3944
(wherein
the
trial
court
granted
.u.)
CDA
a builder's
not for
419 units..
ruling,
the case
court
ignored
the
fact
that
the parties
of
the entire
project
(appropriately
419-uni t
plaintiff
had proposed,
of
CDA's complaint
of the trial.
the trial court also, in effect, its burden test of proof on the third
concerning
site
suitability.
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
Mount
Laurel
failed
reason in the
See Aa3948.
to delay
CDA's
application
or to be biased
or prejudicial
to the
in any way. Examiner, the in turn, took the improper steps of (1)
at Union
normally
conducting
hearings
instead
of during
the evening.
of these
decisions in Cranford
are inconsistent
Planning below,
minimize
participation
of Cranford
by writing
letters
complaints.
22T24:22-25:5;
lS
stating: Board
"This hearing
a Planning of the
at
is part
parcel
litigation
that
before
trial
court]."
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
examined by
Since Board,
"divested process
the of
authorized of the
stripped
the
Cranford
Planning
opportunity their
to ask
questions
in their
official
capacity in
local
knowledge
to process
CDA's
application
of 2012.
During
several CDA's
witnesses
various
approval,
traffic,
architecture,
landscaping,
drainage,
take
their
schedules presented
questions Township. On
various
witnessed
and
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
conditions with
of approval the
of the site
remedy report)
granted The
Aa5837
Special
with
substance
an order
adopting
the and is
plan
permitted a Flood
Birchwood permit
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,
160 N.J.
is challenging
factual
trial are
if any, "by
findings
unsupported
Ibid.
credible Investors
evidence."
(quoting
(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
litigation
to filing
the developer
purported faith
to obtain
-- were
a plainly
pretextual
of "good fear of
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
Township
in good the
especially
fact
Investigation the
simultaneously
pressing
Township
for a quick
43
Court
deems CDA
pretextual to satisfy
pre-suit its
acti vi ty to
faith," further
burden
with
Cranford
would
have
discussions
and was
when
terminated
12, 2008. of disqualifying for a "false found CDA start" that from as CDA it entitlement should to a the its
remedy
have,
court
erroneously
had
satisfied
obligation
A. Fi~ing Itse~f FUrther A
to negotiate
Deve~oper A Of This Good Faith
filing suit.
Before
Biui.Ldea:' s
Remedy Sui t
On~y Abso~ ve
Ob~igation Negotiations
In Mount upon
Laurel to
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
II,
supra,
92
N. J.
at
218 (emphasis
the
created to
a legal
burden
on
obtain before of
without
litigation v. Bor.
also
Oceanport 622,
Holding,
L.L.C.
Oceanport, the
627 n.2
(App. Div. to
and the to be
obligation
"separate
attempt
relief
preconditions
remedy" that
a
and that
the
two obligations
attempt to obtain
developer's
relief
without
20
litigation
(emphasis
added).
after
Mount one of
Laurel the
II,
three could that
Eugene
D.
a developer by proving
absolve
obligation
further
"good
negotiations"
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
the Court's
at
the
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
remedy]
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
Division
that, conduct
pre-suit
actions, First, it
two-pronged attempted
analysis. In good
whether without
faith
to
secure
good 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
Litigation."
A consideration
conclusion relief
without
First, the
consider
afternoon
is
states:
no
current
than
that
we will
our
complaint
later
2008,
maybe sooner."
Aa2957. planner
Through about
this CDA's
CDA's
attorney
(1 )
informed
the
strategy,
(2) notified
the planner
to retain
purposes,22 and
begin of the
in support service of
filed
Ibid. dated
Second, November
CDA's Aa11.
builder's Thus,
remedy
as promised, in
attorney
filed
suit almost
7, 2008 email. two documents were objectively demonstrate pretextual that CDA's and, thus, prenot
suit negotiations
clearly
plainly
planner
48
in good faith.
7th
The documents
i i=
that, merely to
between going as
and
November in a
in
2008,
the it was
motions
half-hearted
attempt without
appear
"attempting it was
relief was
litigation," to lure so a
in
instead
trying
Cranford it could
its proposal --
as possible leverage of
- as planned
builder's
remedy
to capitulate
to its
zoning demands. A developer "avoid does not advance the Supreme such Court's a effort to See of
unnecessary supra,
through at 454 of
charade. "avoidance
J. W. Field,
(finding the
unnecessary
litigation" identified
one
"principle II).
policy CDA
Mount
Laurel
Since
to negotiate
suing, of law.
is not 218.
to a builder's
92 N.J.
Cranford
asserts
that
this
Court on
could, the
and
should,
CDA's above.
builder's However,
remedy
solely
two
documents other
of the numerous
unassailable a good
faith
rezoning
litigation.
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
diligence
from
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
does not a
rendered
decision
without
finishing questions
demonstrates
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
CDA
did by
not
in
good
faith, faith
it
cannot
claiming futile. to
futility prove
arguendo
did
further
negotiations The
20-31.
facts
To summarize,
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.
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.
facts
all
make
it with
clear
that,
far
from have
being been
pre-suit
the Township
would
the
Township's Board,
decision that
to
secure was
comment
Planning
decision
absolutely
reasonable
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
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
of
the
under
the
should
referral by
further To the
futile
improper should
alleged
expressly even if it
to elicit like
Planning a
Board,
developers a
to wait
little from
longer the
before
decision
on
rezoning
request
governing were in
assuming
arguendo
would have to a
should due
CDA
remedy
Not Of Her
On~y
The
Decision
The
above
that
the
trial the
court
erred
in granting
Li tigation,
During
course
of this to
separate both
opportunities
consider
this
issue,
it wrong
times.
(written opinion);
Aa3838-949.
53
of
both
opinions, upon
shows
that
the
trial
relied
standard
undoubtedly remedy.
confused For
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
suit
as a bargaining by
process.")
the trial
before doctrine
Mount and in
Laurel
"bargaining
chip"
separa te
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
of
builder's the
litigation court's
chip").
Consequently, its
to negotiate cornrni t a
before
filing is
because
clear
because not
CDAis
attempt
filing
suit. The trial court as well. was equally off the it mark23 relied project about In its July 29,
on the in
Township Such in
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
pretextual
nature
of
the the
negotiations. incriminatory
court
the date of its lawsuit. the Court even court the did to should mention have it
email,
Township's of the in
assertion legal
simply
standard it.
intent that
creating
Cranford
project COA
that the
failed
21,
2008
Report
public's
about
and design
judge
that Cranford
conducting undermines
which
"futility"
of properly
record only
every
negative focused
inference
monthly at
The six
appeared
meetings
without
securing
The
court to
also the
COA' s Board
argument was an
that
the
improper remedies.
to
exhaust
administrative
points
First, that
a review
of these with
their
agendas (October
other
Township (October
business.
Aal088-98
meeting);
Aa1215-25
21st meeting);
Aa1252-61
(November
Further,
the of fact
not
agenda. "proposing"
that
merely
to rezone the
reasonable under
Township
another been
course
it would input of
irresponsible and to
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
of the above,
the
court
erred
not only to
filing
but
failed
purportedly
negotiations
have been
it filed
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
above,
three-part inter
plaintiff in
remedy in
plaintiff
(ii)
"cata~yst or change." The progressing Element was mere record shows that Cranford Township was steadily Housing CDA
to complete
of its compliant
openly weeks
of this the
In fact, Board
lawsuit to
Planning
scheduled
hearing
58
adopt
its
Housing To the
Plan. contrary,
Thus,
CDA
was
not
the
"catalyst to
tbat
efforts
cata~yst
comply
caused
Mount
Laurel
obligations
CDA to
i~e its
An elaboration
A.
The First
of these points
E~ement
Demonstrate
"Fair and
On The Date
For Cbange"
Of
II More
the
three-part
test
for
to secure
to a in a
(1 )
must a
(2) the
plaintiff and
with
"substantial" to demonstrate
set-aside; that
be unable is clearly
plaintiff's
proj ect"
92 N.J. at 279-80. the must three-part do more Laurel test simply on the further Thus,
in litigation" a town
that of
did not In
its
suit.
plaintiff
demonstrate in Toll
that
municipal Supreme
----------------that only of
Brothers,
the
unambiguously a developer on
"success prove
litigation" the
meant is
that
municipality be
"tbe
non-compliant
for
suit,
but
also
must
59
cata~yst
cbange."
Court between
causal
remedy burden
lawsuit
it characterized
"catalyst Ibid.
as the "critical point" of the analysis. Brothers, the Appellate principle matter, facts Division
Toll
again of
where of
standard Olive
Complex Court to
Tp. of Mount
Olive,
(2002), "remanded
Supreme
granted the
certification Division
summarily
Appellate v.
in
Toll
Brothers "
Tp.
added)
of
(emphasis in for
the
came
response guidance
to
the
request Mount
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
affirmed the
prior was
deny
plaintiff Complex
v.
"catalyst Olive,
Olive
Tp.
of Mount
Such direct
60
and parallel
by the
and the
Division
eliminates that
developer change"
demonstrate to secure
entitlement
remedy. the lower Co. Supreme Court created the Mount Laurel developers 1, 55 doctrine (see Hills it is
(1986), a
Court a
saw
fit
to does it
catalyst the
After of lower
developer if
advance
(1)
a builder's is moving
lawsuit to
file
municipality spent on
would and
(3)
speciously do exactly
lawsuit doing
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
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
record
irrefutably
literally at the
the
adopting suit.
a new
Affordable
Plan
Indeed, it could
before on
which the
suit
November Affordable
12,
2008
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
CDA
It was file
than the
racing
to
its
compliance
process.
Therefore,
the trial
court
erred
in finding
'succeeded' in Mount Laurel litigation for a builder's remedy." See also Van
and
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
its
burden
of
the
first
element
of
the
test. demonstrating are clear that See CDA was clearly of not the
change
Statement
Facts,
supra,
12-31.
To summarize,
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
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
standard. Tp.,
referring 87
v. Bedminster court
supported by
CDA
for
noting and
Township has
settled this
Action
"CDA
(finding process
a catalyst
because both
in the
litigation" determine
the was
actions in
"required of
the
court
Cranford
violation true,
its
fair
share and
These not
while a
give
conclusion by
comply.
facts
referenced
Board because
progress
but despite them. court (with relied Lehigh) on, in and the
trial
CDA's
Township's Long
a crucial that
fact.
after
held by
a plaintiff In
qualifies the
as a "successful of a
participating the
ordinance, emphasized
Supreme
Court
Brothers
that
the plaintiff
64
be the
"catalyst
change." Division
Compare opinion
205
N.J.Super. a
at
138 merely
(Law to
requiring
"participate" with
ordinance) requiring a
173 N. J. 560
Action, the
"cause"
Indeed, it may
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
through
suit. of
Cranford's
to comply CDA to
Action
caused already
opposite. year of
the it begun
engaged 24,
almost
September
2008,
~ong after
the Township
developing
its Round
3 plan,
with CDA
the property
in question
65
money
may
represent
a level
for
the
developer, in this
but case
standard
articulated
by the Supreme
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
"catalyst
change."
Cranford
first
builder's the
remedy for
test. change,
Therefore,
by
finding
CDA
catalyst
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
Laurel a
II
makes
clear if
that its
developer
is
not is
remedy
"proposed
92
proj ec t "
N.J.
of
the
ruled for in
that
the
project the
Consequently,
recognition
Township
66
its
burden the to
under court
the
third
element have
of
the
test,
trial
should remedy.
declared the
that
entitled sponte
a builder's CDA
trial
court
awarded a
a very
different never
360-unit
proposed,
to discovery finding a
for
granting legal
nonetheless, by our
ignored Mount
Court
Laurel
II. basis
This for
reversible Court to
error, rule
another is not
independent entitled A.
to a builder's
The
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
including from
CDA Mount
routinely
rely
on
passage
II in support
of their
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
Aa3852. on
confers also
plaintiffs
a builder's such
remedy,
this passage
imposes
plaintiffs.
matter,
the
interested inter
parties alia
evaluate
determine sound 92 N. J. is
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
requirement For
present it is
"proposed to
project" a
has
many
essential
to assess to
whether
pursue
it.
Court's
proposed
requirement
ensures
essential of
court
parameters whether
plaintiff's has
so that satisfied
can
determine
the municipality
its burden
by proving
project
68
is
"contrary
to
sound
planning hazard.
principles,
" Ibid.
27
or
represents
environmental
of a developer Court,
to propose
a project, benefit
as of
developer
excess, the
which state.
created all,
throughout
After that
if the municipality
proves
the proposed
project
the remedy
"should be denied."
to
all
these
allowing
trial the
award
a builder's after
on a project
never
proposed,
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),
its
burden
suitability to the
remedy still
test
contrary
Court's Laurel
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
and they
will, have
propose nothing
benefi t
excessive to lose in
developers court
actually simply
from
their down
since
scale
Reversing an
this
have that
extraordinarily
- it would it will
if a developer the
chooses Supreme
excessive, prescribed
suffer
the
consequences
- its builder's
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.
Aa16.
entire
process
focused
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
See, the
e.g.
T25:24 day on
419-unit the
last
court's
opinion propose
centered a total
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
design post-
lengthy up
the
leading CDA
remained a 4l9-uni t a 15
sought
to construct pledged to
provide
affordable the
expressly
in this case is site suitability 15Tll-19-20. significant . which The trial court
419-unit that of
also
recognized on this
environmental
lS
issues
piece
very "
Not only did CDA clearly unit project, its burden it made
articulate
clear that
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
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
suitability articulated
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
the
Master
initially
concluded
that
the she
site drew
CDA's
proposed suitability
conclusion in the
proposal
crucible
litigation. dated
(Special in of my the
Pre-Trial
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
the plaintiff
has
to
finding the
CDA
site
to be Master
for
the
Special
violated that
principles are
Aa4113 with
(noting
"there
some
planning
issues raised
the development
the
testimony
presented
at
the
trial
which,
in
my the
concerns
including and
(Aa4113-14);
issues
concerning
layout
the
proposed
buildings
(Aa4119-20;
Aa4120-21); that
problems
with
driveway
even
though
the of
court
to at the
the the
Master,
clear
sufficient not
proofs
to convince its
that
suitable
for
419-unit
project.
Al.though Proposed
The
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
it
effectively unit project embraced for CDA's Master] testimony Special concluding the
the CDA
419and
conclusion
419-unit
not
proposal.
Aa3897
(noting that
419 units
"[the based
could
recommend the
entire
added);
Aa3943-44
(adopting
suitability remedy
builder's
recommended
73
is
now
for
360
units
and not
Court
failed on
that
its
element sponte
remedy
Instead,
-- a project and
proposed,
discovery,
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
as required
Supreme
92 N.J. for
any
at 279-80,
knui.Ldex t s:
it evaluated
remedy.
See
(finding
that
testimony
by
the
Township's to show
satisfy
burden
Laurel site
focused
the inquiry -
whether
the
'proposed project"
property II,
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
added)
Township is court
established contrary to
project trial
planning,"
to a builder's more
Laurel In
been
explicit standard
applying parcel, of
site
the Supreme is
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
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
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
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
Sua sponte
of plaintiff's
proposed
First, the
failed
principle the it
Supreme
established the
Laurel for
suitability a
proposed
principle site.
illustrated
92 N.J. at 280, 330. CDA the never same even time, of sought unduly public as the
remedy and, an at
prejudices CDA.
enormous satisfied
amount its of
burden CDA's
court's
rejection
project.
It was
therefore
patently remedy
prejudicial
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
Court's must
laws In
this
CDA frame of of
argued the
essence on the
that date
court
world"
suit
Aa3649 shortfall in
determined zoning
the
filing
of assert
Thus, acti vi ty
developers is
that
irrelevant,
because
a town 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
whether
"proposed the
clearly first
planning," project."
developer
must
present
"proposed to empower
developers of
to a builder's it that
lS
adoption court
ordinances,
is clearly the
by then different
plaintiff
to
significantly
had proposed. this follow Court should reverse Laurel remedy the trial
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.,
- an act Cty
unwarranted v. Boonton
Morris 388 to
Housing 1987),
Super.
Skillman
an
application Planning
upon the prerogatives far less invasive the even instant though case.
Township court
Board
ordered the
Skillman
request to the
Planning
Board,
in stark
contrast
Cranford To matter,
had acted egregiously. the Morris County Fair the Housing Council Board in of the
parties
vigorously
accused
Planning
frustrating Public
Advocate
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
the court
seize
jurisdiction
but
instead
merely
asked
for expeditious by an
review
of
denials
or
conditioned
approvals
experienced
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
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.
that
the
Board and
(3)
violated an order
( 1)
settlement of the
agreement, rights, as
in aid
litigant's actions
Judge
thereafter and a
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
draconian Cranford
case. of may
Specifically, or the
Judge
Skillman of in a
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
Cranford the
Board
Indeed, Planning
is void
of any act
Board
or would,
applications
pursuant remedy.
rezoning CDA
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
Board
Our expertise
Supreme of
Court
has
long
the
value v.
of Bd.
the of
planning
boards.
81
Kramer
Adjustment, court to
Sea
Girt,
45 N.J. that
268,
296
(1965) 'who
trial
local
officials
thoroughly interests
familiar
community's
[render v. fact,
municipal 16
N.J.
decisions] .r
Scott, the
Supreme that
Court
municipal
governing
fairly
motives and for valid reasons." In light Laurel and of the above,
Ibid.
(emphasis
Court
Mount
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
by the and
on trial
courts on
on the
expertise sua
planning
boards,
2011,
court
appointed
Douglas him
as the
~Special over
Hearing the on
and directed
"assume
jurisdiction" public
"conduct Aa3702-08. trial ~[t]rial municipal Aa3852. announcing Aa3947-48. from relied the
hearings" just
before in its
court
2011 opinion
courts
to make as much use as possible expertise and followed the experience. this
court, decision
however, to appoint
statement in this
Examiner the
Instead process,
Planning should
Master
on
the the
Such
action
directly
trial
Examiner and
jurisdiction on by
Board"
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
step
(1)
by
conducting
the
CDA
hearings instead
at
Union
Courthouse,
of Township and
where
the Planning
normally
take place;
of during with to of
Each
decisions in
typical minimize
Planning
Board
meetings
Cranford
participation
by Cranford
citizens
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
discussed Court's
such trial
action to defer
Supreme boards at
as much In in and
in Mount the
litigation. local
280.
(1)
Board's issues
knowledge
flooding
throughout
enormous site,
plagued
particular
deference
to the board's
"expertise
and experience."
is
before
[the
trial
court]."
In Examiner For
addition was
to
being
legally
the ways.
clearly
example,
conducting
at
County
during
business in would
suppressed
local
hearings.
22T24-25; by
be most was
impacted
CDA's on
decision Board
clearly
stripping
of
its
jurisdiction, board
trial
eliminated
the
individual
members'
ability
discharge
their duties
in an official
In addition sponte
to the above,
instituted
procedures decisions
processing forth
development Rules
reviewing
in the
of Court
required when, in
court local it
to rule board
on CDA's have
should
itself.
COAl S
Second,
forced approval
aggrieved at the it
development Law
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
application rarely, on
when, if ever,
under
normal
boards affirmed
challenge decision
such could
appeal,
this
established
procedures
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.
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
erroneous of
a fortiori
approval require
development to the
therefore based
remand
Board. would in
Naturally, make
its own
findings
unlikely in Point
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
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,
submission raised
to
the
Examiner
on August to
3, the
issues the
summarily For
dismissed the
court.
Aa5842. was
reasons
herein,
COA's
form of notice
deficient notice to
under
and case law interpreting therefore plan Order Board the Examiner
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
never
entitled
to a builder's
remedy
In the
first
87
40:55D-11.
To simply
identify
a "stretch"
of re-
of re-grading if a "stretch"
two feet, or two miles. Notice a improperly of presumes that Avenue will be the will rethe
"stretch" of .")
Birchwood (emphasis
elevate
Thus,
ambiguous and to
Avenue authority
improper the
raise
Notice
inform v.
(App. Tp.
Div.
v. Hamil ton
Zoning
Hearing
Officer
lacked did as a
Second, must be
CDA
noticed
result Avenue
the
proposed
re-grading
"stretch" of CDA's
of Birchwood property.
boundaries radius
In fact,
200 foot
relating are
to
Block
291, owned
Lot by
15.01 CDA.
and
Block
292, CDA
Lot
2,
the properties
Aa5687-708.
never of its
owners' fatal
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
which
intends Dev. As
for
access Bd.,
development. 262
Brower 1992). of
N.J.Super. of an
CDA
re-grading it should
unidentified
"stretch"
have
notified The
owners the
Birchwood should
trial
therefore required
declared
Notice
deficient within
owners
before
as stated by
above, the
Master matters to
stated was to if
Court public's in
intended
the
access as
hearings
the
manner
being
submitted
for approval
under
attached
hereto.
Unfortunately,
deficient
notice
what occurred.
89
The Township
therefore
respectfully
requests
jurisdiction
adequacy
of Notice. CONCLUSION
For the reasons to reverse and, court's and the In trial the
of
such
decision a
to seize "Special
jurisdiction Hearing
from
appoint Appellants
its
Finally,
seek
declaration
Notice
CDA development
hearings
was legally
insufficient.
LLC
Dated:
February
24, 2014
90
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:
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
SUPPLEMENTAL:
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
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.
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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
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
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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
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
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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.
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