2012-11-29-Oppositon to Cranford's Proposed Order to Disqualify McKenzie

7/30/2019 2012-11-29-Oppositon to Cranford's Proposed Order to Disqualify McKenzie

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LEHIGH ACQUISITION CORP.,Plaintiffs,

vs.

TOWNSHIP OF CRANFORD andPLANNING BOARD OF THETOWNSHIP OF CRANFORD,Defendants;

and

CRANFORD DEVELOPMENT

ASSOCIATES, LLC, a limited liabilitycompany organized under the laws of

the State of New Jersey, SAMUELHEKEMIAN, PETER HEKEMIAN,JEFFREY HEKEMIAN, and ANN

KRIKORIAN as trustee for RICHARDHEKEMIAN and MARK HEKEMIAN,

Plaintiffs,

vs.

TOWNSHIP OF CRANFORD, MAYORAND COUNCIL OF THE TOWNSHIP

OF CRANFORD and the PLANNINGBOARD OF THE TOWNSHIP OFCRANFORD,Defendants.

SUPERIOR COURT OF NEW JERSEYUNION COUNTY - LAW DIVISION

DOCKET NOS. UNN-L-0140-08UNN-L-003759-08

Civil Action

______________________________________________________________________________

BRIEF AND APPENDIX

OF PLAINTIFFS CRANFORD DEVELOPMENT ASSOCIATES LLC ET AL IN

OPPOSITION TO DEFENDANTS MOTION TO DISQUALIFY ELIZABETH

MCKENZIE FROM SERVING AS SPECIAL MASTER AND TO VACATE THE

DECISION OF THE COURT AWARDING A BUILDERS REMEDY TO

CRANFORD DEVELOPMENT ASSOCIATES

______________________________________________________________________________

Of Counsel and on the Brief:Stephen Eisdorfer, Esq.

HILL WALLACK LLP202 Carnegie CenterPrinceton, New Jersey 08543(609) 924-0808Attorneys for Plaintiffs


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TABLE OF CONTENTS

PROCEDURAL HISTORY ................................................................................ 2

ARGUMENT ................................................................................................... 5

I. MS. MCKENZIES COMMENTS WERE NOT INAPPROPRIATE AND ARENOT GROUNDS FOR DISQUALIFICATION ............................................ 5

A. CRANFORDS ACCUSATIONS ARE BASELESS BECAUSE THEYARE PREMISED ON A MISUNDERSTANDING OF THE FUNCTION

OF THE COURT-APPOINTED MASTER IN THE PRESENT CASE .. 5

B. BASED UPON THE STANDARDS ESTABLISHED BY THE COURTSFOR CONDUCT BY COURT-APPOINTED SPECIAL MASTERS INEXCLUSIONARY ZONING CASES, MS. MCKENZIES CONDUCT

WAS ENTIRELY PROPER ............................................................. 9

C. EVEN IF MEASURED BY THE STANDARDS THAT GOVERNJUDGES, MS. MCKENZIES CONDUCT WAS ENTIRELY PROPER ................................................................................................... 14

II. DEFENDANTS HAVE NOT SATISFIED THE STANDARDS FORRECONSIDERATION UNDER R.4:49-2 ............................................... 17

CONCLUSION .............................................................................................. 22

APPENDIX

Consent order appointing special master, February 3, 2009 .................... Ex. A

Curriculum Vitae of Elizabeth McKenzie, January 4, 2010 ..................... Ex. B

Case management order, April 3, 2009 .................................................... Ex. C

Letter from Elizabeth McKenzie to the Court, July 19, 2010 .................... Ex. D


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Plaintiff Cranford Development Associates et al (collectively CDA)

submits this brief in opposition to the motion filed by defendants Cranford

Township and the Planning Board of Cranford Township to disqualify Elizabeth

McKenzie from serving as special master and to vacate the July 29, 2011

decision of the Court awarding CDA a site-specific builders remedy. The

purported basis for this motion is that Ms. McKenzie has evinced an improper

bias or prejudice in this matter as evidenced by her having occasionally

described herself as an advocate for affordable housing and by certain

remarks made by her during the hearing on CDAs claim for a site specific

remedy in the summer of 2010.1

The Court should deny this motion. First, no matter which standards

govern Ms. McKenzies conduct, her comments were not inappropriate and are

not grounds for disqualification. Second, defendants have not satisfied the

standard under R. 4:49-2 for reconsideration of the Courts decision awarding

a site-specific builders remedy.

1 Cranfords motion was filed on Wednesday, November 21, 2012twelve days aftercounsel received from Ms. McKenzie a final though unsigned copy of the report of SpecialHearing Officer Douglas Wolfson recommending that CDA be granted site plan approval for its

proposed inclusionary development. The three comments by Ms. McKenzie which form theevidentiary basis for the motion were made two months, seven months, and 27 months earlier.

The timing of the motion, together with the scantiness of the factual basis, cannot help butsuggest that this motion is not really about a newly discovered bias or prejudice on the partof Ms. McKenzie, but by Cranfords displeasure at the course the case has taken.

This suggestion is perhaps reinforced by the fact that Cranford has not sought to vacateother decisions that might have been affected by Ms. McKenzies bias or prejudice. Forexample, it has not sought to vacate the Courts approval of its settlement with LehighAcquisition LLC, a matter as to which Ms. McKenzie submitted a report and presentedtestimony.


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PROCEDURAL HISTORY

The history of Ms. McKenzies involvement in the present case is familiar

to the Court and will be only briefly summarized here. Ms. McKenzie was

originally appointed as special master in Lehigh Acquisition Corp. v. Township of

Cranford, Dkt. No. UNN-L-0140-08, by order of Judge Espinosa dated February

3, 2009, which is attached as Exhibit A. Ms. McKenzies background was

familiar to all the parties and has repeatedly been provided to the parties as

curriculum vitae attached to her various reports to the Court.2 A copy of this

curriculum vitae is attached as Exhibit B.3

Among other things, in addition to consulting with numerous private

sector parties, she had served as a planning consultant to 51 different

municipal zoning or planning boards and had prepared master plans for 33

municipalities. She had testified as an expert witness in six exclusionary

zoning cases. She had served as court-appointed special master in 36

exclusionary zoning cases. McKenzie Curriculum Vitae (Ex. B).

Neither party objected to appointment of Ms. McKenzie. When the

present litigation was consolidated with the Lehigh Acquisition case, the Court

extended Ms. McKenzies appointment to the present case as well by order

dated April 3, 2009, which is attached as Exhibit C.

Ms. McKenzie provided written and oral opinions to the Court in

connection with the motions for summary judgment on whether Cranford

2Curiously, although defendants include many of Ms. McKenzies reports in theappendix to their motion, they have deleted Ms. McKenzies curriculum vitae from thesereports.

3Exhibit B is the curriculum vita attached to Ms. McKenzies report dated January 4,2010.


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Township was in compliance with its constitutional fair share housing

obligations. After the Court ruled on March 20, 2009 that Cranford was in

violation of its fair share housing obligations, the case entered the remedial

phase. In that connection, Ms. McKenzie provided expert opinions to the Court

in written and oral form on, among other things:

whether entry of a so-called scarce resources restraint was justified

(April 20, 2009),

the extent of Cranfords unmet housing obligation and the suitability ofthe Lehigh and Cranford sites for inclusionary development (January 4, 2010),

issues raised by various motions filed by Lehigh, CDA, and Cranford(March 30, 2010);

suitability of the CDA site and Cranfords unmet housing obligation

(June 22, 2010, July 19, 2010);

suitability of the CDA site and Cranfords unmet housing obligation(oral testimony, September 29, 2010; written report, December 1, 2010);

adequacy of the settlement between Lehigh Acquisition LLC andCranford Township (November 11, 2010); and

extent of compliance by Cranford Township with terms of the Courtsorder of December 9, 2011 (June 22, 2012).

Some of these reports, although not all of them, are included in Cranford

Townships appendix.

The Court approved a settlement agreement between Lehigh Acquisition

and Cranford Township in January 2011. Based upon a 15-day hearing on the

suitability of the CDA site and the extent of Cranfords unmet housing

obligation conducted by the Court in August and September 2010, the Court

rendered a comprehensive opinion awarding CDA a site-specific builders

remedy and determining what additional steps Cranford would have to take to


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bring itself into compliance with its constitutional fair share housing obligation

on July 29, 2011, which was embodied in an ordered entered on December 9,

2011. Pursuant to those orders, hearings were conducted by Court-appointed

Special Hearing Officer Douglas Wolfson during the summer of 2012 on

applications by Lehigh and CDA for relief in the nature of preliminary and final

site plan approval.

Under the supervision of Ms. McKenzie, Cranford has taken many of the

steps necessary to bring itself into compliance with the Courts order of

December 9, 2011. As noted above, Ms. McKenzie issued a preliminary report

dated June 22, 2012, on the extent to which Cranford has taken all the steps

necessary to bring itself into compliance with its constitutional fair share

housing obligation and the Courts order of December 9, 2011. She has not yet

issued a final report.

Throughout the remedial phase of the litigation, Ms. McKenzie has

communicated informally with each of the parties on all aspects of the

proceeding, including settlement possibilities, compliance steps by Cranford,

site suitability issues, and procedures to keep the case moving forward and to

foster cooperation and voluntary compliance.

In addition, she has communicated with Kevin Walsh, staff attorney with

the Fair Share Housing Center, Inc., a housing advocacy organization that has

identified itself as a potential intervenor in the remedy phase of the present

litigation. In its present motion, Cranford focuses in part on a phrase that Ms.

McKenzie used in an exchange of e-mails with Mr. Walsh in April of 2012.


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ARGUMENT

POINT I

MS. MCKENZIES COMMENTS WERE NOT INAPPROPRIATE

AND ARE NOT GROUNDS FOR DISQUALIFICATION

A. CRANFORDS ACCUSATIONS ARE BASELESS BECAUSE

THEY ARE PREMISED ON A MISUNDERSTANDING OF

THE FUNCTION OF THE COURT-APPOINTED MASTER IN

THE PRESENT CASE.

At the heart of defendants argument is a fundamental mistakethat the

court-appointed special master ought to be neutral as to desirability of low and

moderate income housing in general or as to Cranford in particular.

As the Supreme Court made clear in Southern Burlington County NAACP

v. Mt. Laurel Township, 92 N.J. 158 (1983)(Mt. Laurel II), this Court itself is not

supposed to be neutral as to the desirability of affordable housing in general or

as to Cranford in particular. In 1975, the Supreme Court had held that

municipalities had a mandatory constitutional obligation to plan and provide

for their fair share of the unmet regional need for safe, decent housing

affordable to low and moderate income households. Southern Burlington

County NAACP v. Mt. Laurel Township, 67 N.J. 151 (1975)(Mt. Laurel I). In Mt.

Laurel II, the Supreme Court concluded that there had been widespread non-

compliance with this constitutional obligation. Mt. Laurel II, 92 N.J. at 199. In

light of this fact, the Supreme Court held that the judiciary cannot permit this

noncompliance to continue but instead must play an active role in the

enforcement of this constitutional mandate:

To the best of our ability, we shall not allow it to continue. This

Court is more firmly committed to the original Mount Laurel


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doctrine than ever, and we are determined, within appropriatejudicial bounds, to make it work. The obligation is to provide a

realistic opportunity for housing, not litigation. We have learnedfrom experience, however, that unless a strong judicial hand is

used, Mount Laurel will not result in housing, but in paper,

process, witnesses, trials and appeals. (Id. at 199.)

The Court expressed its determination to to put some steel into the Mt. Laurel

doctrine. Id. at 199.

The Court emphasized the role of the judiciary in upholding and

enforcing the constitution. While the courts do not themselves build housing,

they must enforce the Constitution. Id. at 213, 352. To that end, the courts

must exercise [their] traditional constitutional duty to end an abuse of the

zoning power. Id. at 213 n. 7.

The Court focused in particular on the affirmative remedial role of the

trial courts once they have determined that a municipality is in violation of its

constitutional fair share housing obligations. In that context, the Court

declared that the trial courts must affirmatively exercise their remedial powers

to make sure the opportunity for low and moderate income housing found in

the new ordinance will be as realistic as judicial remedies can make it. Id. at

214.

Third, the decisions are intended to increase substantially theeffectiveness of the judicial remedy. In most cases, upon

determination that the municipality has not fulfilled its

constitutional obligation, the trial court will retain jurisdiction,order an immediate revision of the ordinance (including, ifnecessary, supervision of the revision through a court appointedmaster), and require the use of effective affirmative planning andzoning devices. The long delays of interminable appellate reviewwill be discouraged, if not completely ended, and the opportunity


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for low and moderate income housing found in the new ordinancewill be as realistic as judicial remedies can make it. [Id. at 214.]

In furtherance of this purpose, the Supreme Court elaborately spelled

out both the remedial steps that the trial courts should take once they have

determined that the defendant municipality is in violation of its fair share

housing obligations and the breadth of the remedial powers that are available

for this purpose. Id. at. 278-93. In its explanation of the remedial

responsibilities of the trial courts, the Supreme Court emphasized that the

outcome of the remedial phase of exclusionary zoning litigation must be actual

compliance with the Constitution and the Mount Laurel obligations, whether

achieved through voluntary remedial action by the municipality or through a

judgment containing one or more of many orders available in the event of non-

compliance along with the action of the municipality conforming to such

orders. Id. at 290. The Court also emphasized throughout that accomplishing

this purpose would require the strong hand of the judge in the trial court. Id.

at 292.

Thus, once a trial court has determined that the municipal defendant is

not in compliance with its constitutional housing obligations, the court itself

cannot be neutral toward low and income housing in general or the provision of

low and moderate income housing in that municipality. To the contrary, it is

obligated to affirmatively exercise its remedial powers to achieve the purpose of

actual compliance with the constitutional mandate and to make the

opportunity for low and moderate income housing as realistic as judicial

remedies can make it.


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In this remedial context, the Supreme Court authorized the trial court to

appoint a hybrid master as its agent to facilitate the remedial process and

recommended that trial courts should do so routinely. Id. at 281-85. The

hybrid master is to perform a variety of functions:

In our view the master is of potential help to all concerned: to the

municipality, to the plaintiffs, to the court and counsel. He or sheis an expert, a negotiator, a mediator, and a catalyst--a person whowill help the municipality select from the innumerablecombinations of actions that could satisfy the constitutionalobligation, the one that gives appropriate weight to the manyconflicting interests involved, the one that satisfies not only the

Constitution but, to some extent, the parties as well.

***

The master will work closely not only with the governing body but

with all those connected with the litigation, including plaintiffs, theboard of adjustment, planning board and interested developers.He or she will assist all parties in discussing and negotiating therequirements of the **455 new regulations, the use of affirmativedevices, and other activities designed to conform to the Mount

Laurelobligation. The parties will presumably give the master'ssuggestions great weight, since the revised ordinance will be

submitted to the master for his or her review andrecommendations prior to its submission to the court. During thecourse of the revision process, the master will report periodically tothe court on the progress of the revision process. At the end ofthe 90 day period, on notice to all the parties, the revised

ordinance will be presented in open court and the master willinform the court under oath, and subject to cross-examination,whether, in his or her opinion, that ordinance conforms with thetrial court's judgment. [Id. at 283-84.]

The Supreme Court did not envision that this hybrid master would be

neutral or indifferent to the desirability of provision of affordable housing in

general or in the defendant municipality in particular. As the trial courts

agent, the masters role is to assure that the municipality actually creates

opportunities within the municipality for the creation of safe, decent housing


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affordable to low and moderate income households to satisfy its constitutional

fair share housing obligation. The masters duty, like that of the trial court, is

to assure that the opportunities within the municipality for low and moderate

income housing are as realistic as judicial remedies can make it.

Among other things, the master necessarily serves the trial court as the

protector of the interests of low income households in need of housing. See,

e.g, Toll Brothers, Inc. v. Township of West Windsor, 173 N.J. 502 (2002);

East/West Venture, Inc. v. Borough of Fort Lee, 286 N.J.Super. 311 (App. Div.

1996). For example, in the context of a claim for a builders remedy, the

special master must advise the court as to how much additional low and

moderate income housing must be provided to satisfy the municipalitys fair

share housing obligation, how much should properly be provided in the

builder-plaintiffs projectand whether the builders site is one that is

sufficiently suitable to create a realistic opportunity for the construction of any

such housing.

In this context, the court-appointed master mustbe an advocate for

affordable housing. A master who is neutral on the desirability of affordable

housing in general or on the desirability of provision of affordable housing in

the defendant municipality would be failing to perform the very task for which

he or she has been appointed.

In the present instance, Cranford has accused Ms. McKenzie of improper

bias or prejudice because she has characterized herself as an advocate for

affordable housing. This accusation is baseless because it is premised on a


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misunderstanding of her function as the court-appointed master in the

remedial proceedings in the present litigation.

B. BASED UPON THE STANDARDS ESTABLISHED BY THE

COURTS FOR CONDUCT BY COURT-APPOINTED SPECIALMASTERS IN EXCLUSIONARY ZONING CASES, MS.

MCKENZIES CONDUCT WAS ENTIRELY PROPER

In Mt. Laurel II, supra, the Supreme Court was at some pains to spell out

the proper limits on the conduct of hybrid masters appointed by the trial

courts in exclusionary zoning cases. Measured by those standards, the conduct

of Ms. McKenzie was entirely proper.

As noted above, the Supreme Court characterized the function of these

individuals as hybrid masters. It explained that thehybrid master would

not perform the function of traditional masters under, for example, R. 4:41.

They would not hold hearings or make formal findings. Rather the master

would serve as an expert, a negotiator, a mediator, and a catalyst. The

master would be in communication with all the potential players, not only the

parties but also other interested individuals and entitiessuch as elected

officials, board of adjustment, planning board and interested developers. Mt.

Laurel II, 92 N.J. at 283-84. In this role, the master can help the parties with

the innumerable combinations of actions that could satisfy the constitutional

obligation with awareness ofthe many conflicting interests involved. Id. at

283. The hybrid master is to interact with the parties and the issues in ways

that might not be appropriate for the trial court itself, so as to free the court

from what the Supreme Court characterized as unwise direct over-

involvement with the parties and the issuesk6.


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Clearly the Supreme Court envisioned for example that the special

master would have ex partecontacts with the parties and with non-parties,

would receive and consider information not in the record before the Court, and

would use the full range of the resources available to one who serves as an

expert, a negotiator, a mediator, and a catalyst. The resources might include,

but certainly are not limited to, provision of technical information, friendly

advice, appeals to reason or to higher moral values, cajolery, persuasion, stern

warnings, and a thousand others. See, e.g., id. at 288n.42. The master may do

his or her work, for example, at public meetings of the municipal governing

body, across the desks of state officials, in the field on potential housing sites,

in the business offices of developers, in community meetings in church

basements, in the drafting rooms of planners or engineers, or at the conference

tables of lawyers. In general, none of these activities would be proper for the

trial court judge.

As envisioned by the Supreme Court, the function of the hybrid master

is not to be judicial or quasi-judicial. He or she performs no adjudicatory role.

At most, the master provides advice to the court that must ultimately be

presented in open court and exposed to cross-examination. Id. at 284.

In specifying the role of the hybrid master, the Supreme Court

delineated some guidelines for conduct that were particular to that role. While

the master may have ex partecontacts with the parties, he or she should not

have ex partecontacts with the trial court. Id. at 284n.40. He or she should

not be someone who has had prior involvement in the litigationnot for


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example, an expert witness who has previously consulted with a party in

connection with the subject matter of the litigation. Id. at 284. The mode and

amount of payment of the special master should be fixed ahead of time, so that

there can be no imputation of improper financial motive. Id. at. 281n. 38.

The Supreme Court stressed that not just anyone would do for this role.

It noted, however, that there are persons available who are expert in the field of

low income housing and have studied it for many years. Id. at 293. In

particular, the Court noted that while persons performing this role must not

currently be in the pay of any party, they may be persons who have a general

bias on the subject of low income housing, even a bias that is well known.

Id. at 293.

In the present case, Ms. McKenzie was appointed with a mandate that

closely tracked the broad mandate described by the Supreme Court. Among

other things, she was to conduct and hold such conferences or meetings with

the parties as are necessary regarding settlement and any and all other matters

as part of this litigation. Order of February 3, 2009,3 (Ex. A).

Based upon the standards established by the Supreme Court, Ms

McKenzies conduct was entirely proper. It would not have been improper for

her to hold or express strong views favorable to provision of affordable housing,

whether to Mr. Walsh or to anyone else.

There certainly was nothing wrong with her holding strong views on the

desirability of the provision of affordable housing in Cranford. Similarly, there

was certainly nothing wrong with her acting as the protector of the interests of


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low and moderate income households in the provision of affordable housing in

Cranford. As court-appointed special master in the remedial phase of

litigation involving a municipality that had already been found to be in violation

of its constitutional fair share housing obligation, that was her job. Moreover, it

was proper for her to speak in that role and express those views wherever in

her judgment doing so would foster ultimate resolution of the litigation.

Finally, as protector of the interests of low and moderate income persons,

it was proper for her to caution CDA during trial that she was not yet satisfied

that they had demonstrated that the proposed inclusionary project could safely

be constructed on the site.4 Her role neither to favor the builder plaintiff nor

the municipal defendant. Her role as protector of the interests of the low and

moderate income persons was, on one hand, to foster the creation of housing

opportunities so as to bring Cranford into compliance with its constitutional

housing obligations, and, on the other, to assure that any such construction

would be safe for occupancy by low and moderate income households and was

reasonably likely to be approved by the NJDEP. In that role, her actions were

entirely proper. As Cranford notes in its brief, this fact was placed on the

4 Ms. McKenzie had been placed in a somewhat awkward posture by the sequence ofproofs. She had recommended to the Court that Cranford present its evidence as to drainageand risks of flooding first, so that CDA could then respond to those proofs. Letter from E.McKenzie to the Court, July 19, 2010 at p. 1 (attached as Exhibit D). These were issues as to

which Cranford bore the burden of proof. Mt. Laurel II, 92 N.J. at 279-80; AMG Reality v.Warren Township, 207 N.J. Super. at 388, 447 (Law Div. 1984); Orgo Farms v. Colts Neck, 192N.J. Super. 599, 605-606 (Law Div. 1983). In its discretion, the Court could properly haveestablished this order of proofs. Center Garage Co. v. Columbia Ins. Co.,96 N.J.L. 456 (Ct. Err.App, 1921); Local Union 560, I. B. T. v. Eazor Exp. Inc., 95 N.J.Super. 219 (App. Div. 1967).Had the proofs been presented in that sequence, the depth of Ms. McKenzies concerns wouldhave emerged prior to CDAs proofs and CDA could have addressed those concerns in theordinary course. It was only because the proofs were, in some sense, presented out of sequencethat Ms. McKenzie had to separately express her cautions to CDA after it had presented itstestimony.


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record during the proceedings, the parties presented arguments as to whether

CDA should be permitted to present further proofs on these issues, and the

Court, exercising its discretion to control the order of proofs, determined to

permit CDA to do so.

Cranford relies upon Deland v. Township of Berkeley, 361 N.J.Super. 1

(App. Div. 2003), for the proposition that court-appointed special masters in

exclusionary zoning cases are subject to the same standards of conduct as

judges. That is not what the court held in Deland. Rather, in an opinion

crafted with evident precision by Judge Stephen Skillmanone of the three

original Mt. Laureljudges designated by the Supreme Courtthe Appellate

Division held only that a Mount Laurelspecial master is subject to

substantially the same conflict of interest rulesas a judge. Id. at 4 (emphasis

added). Judge Skillman, who was well aware of the non-judicial role played by

hybrid master under Mt. Laurel II, carefully did not make the sweeping

holding that Cranford attributes to him.

C. EVEN IF MEASURED BY THE STANDARDS THAT

GOVERN JUDGES, MS. MCKENZIES CONDUCT WAS

ENTIRELY PROPER

Under R. 1:12-1(d) or (f) and N.J. S.A. 2A:15-49(c), a judge must be

disqualified if he or she has expressed an opinion or otherwise acted in a way

that indicates such bias or prejudice that he or she cannot impartially decide

the case. As noted in the foregoing point, these provisions to do not by their

terms apply to a hybrid master appointed under Mt. Laurel II, since such a


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master does not decide cases. His or her role is, at most, advisory. He or she

is not a judge and does not perform a judicial or quasi-judicial function.

Even if governed by this standard, Ms. McKenzies conduct was entirely

proper.

A judge is not to lightly withdraw from a case on the mere suggestion of

bias or prejudice. It is not only unnecessary for a judge to withdraw from a

case upon a mere suggestion that he is disqualified: it is improper for him to do

so unless the alleged cause of recusal is known by him to exist or is shown to

be true in fact. Hundred E. Credit Corp. v.. Eric Schuster Corp., 212 N.J.Super.

350, 358 (App.Div.), certif. denied, 27 N.J. 156 (1958)), certif. denied, 107 N.J.

60, 61 (1986). The same standard should govern a court-appointed special

master.

It is clear that a judge is not to be disqualified because of prejudice

arising from the judges general business, political or social relations. 536

Broad Street v. Valco Mortgage Co., 135 N.J.Eq. 581, 583 (Ch. 1944), affirmed

mem. on opinion below, 136 N.J.Eq. 513 (E. & A. 1945). Thus, for example, a

judge who has adopted children and may be inferred to be generally favorable

toward adoption is not by that fact disqualified from hearing a contested

adoption case. Sorentino v. Family and Children's Soc. of Elizabeth, 74 N.J. 313,

318-19 (1977). Rather the bias or prejudice must be specific to the facts or

parties to the case.

The relevant standard was set forth by the Supreme Court in Liteky v.

United States, 510 U.S. 540 (1994). The Court held that statements by a judge


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that purportedly evince bias or prejudice are not grounds for disqualification

unless they displaya deep-seated favoritism or antagonism that would make

fair judgment impossible. The Court declared:

[O]pinions formed by the judge on the basis of facts introduced orevents occurring in the course of the current proceedings, or ofprior proceedings, do not constitute a basis for a bias or partialitymotion unless they display a deep-seated favoritism or antagonismthat would make fair judgment impossible. Thus, judicial remarksduring the course of a trial that are critical or disapproving of, oreven hostile to, counsel, the parties, or their cases, ordinarily donot support a bias or partiality challenge.... Not establishing biasor partiality ... are expressions of impatience, dissatisfaction,

annoyance, and even anger, that are within the bounds of what

imperfect men and women, even after having been confirmed asfederal judges, sometimes display. [Id. at 55556].

Compare State v. Leverette, 64 N.J. 569, 571 (1974) (no disqualification where

trial judge expressed displeasure with defense counsel who failed to appear for

five successive calendar calls); State v. J.J., 397 N.J.Super. 91, 103

(App.Div.2007), appeal dismissed, 196 N.J. 459 (2008) (no disqualification

although trial judge's comments were sometimesstern); and Panitch v.

Panitch, 339 N.J.Super. 63, 68 (App.Div.2001)(no disqualification where Family

Part judge stated during conference call, referring to plaintiff, I'll put the

[expletive deleted] guy in jail, ordered plaintiff to produce the [expletive

deleted] documentation, and threatened to call the senior partner of law firm

employing plaintiff); with State v. Perez, 356 N.J.Super. 527, 53233

(App.Div.2003) (recusal warranted where trial judge's comments lumped

[defendant] together with an identifiable minority against whom the judge was

expressing anger, and ... suggested that the judge's lack of belief in the validity


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of defendant's request [for a translator] was based, at least in part, on the

supposed improper conduct of the minority group to which he belonged); and

State v. Utsch, 184 N.J.Super. 575, 581 (App.Div.1982) (recusal warranted

where defendant's attorney made unwarranted personal attack on municipal

court judge, who was justified in recusing himself).

Cranford has offered no evidence demonstrating that Ms. McKenzie

harbors a deep-seated favoritism or antagonism that would make fair

judgment impossible. To the contrary, they have merely offered evidence of

permissible general attitudes and of Ms. McKenzies conscientiously attempt to

perform her duty as she understood it.

POINT II

DEFENDANTS HAVE NOT SATISFIED THE STANDARDS FOR

RECONSIDERATION UNDER R.4:49-2

This is the second reconsideration motion brought by Cranford. The

municipality had ample opportunity to raise all the issues permitted under R.

4:49-2 in its prior motion, which was denied by the Court in an opinion

rendered on January 26, 2012. The only grounds for reconsideration even

potentially available to Cranford under R. 4:49-2 is that it has brought new or

additional information to the Court's attention which it could not have

provided at trial. Cummings v. Bahr, 295 N.J.Super. 374, 384-385

(App.Div.1996). Palombi v. Palombi, 414 N.J.Super. 274, 288-89 (App. Div.

2010); D'Atria v. D'Atria, 242 N.J.Super. 392, 401 (Ch.Div.1990).5

5Although the order entered by the Court granting a builders remedy in this matter istechnically not final, it did resolve all issues as to all parties. In any case but an exclusionary


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Reconsideration on this ground is available, however, only when there is

good reason for it to reconsider new information. Town of Phillipsburg v. Block

1508, Lot 12, 380 N.J.Super. 159, 178 (App. Div. 2005)(upholding trials

refusal to reconsider based upon new evidence tendered by movant). The

federal courts, construing the F. R. Civ. Pro.59(e), the federal analogue to R.

4:49-2, have addressed in more detail what new evidence satisfies this

standard. The court should not entertain a motion for reconsideration unless:

(1) the facts discovered are of such a nature that they would probably change

the outcome; (2) the facts alleged are actually newly discovered and could not

have been discovered earlier by proper diligence; and (3) the facts are not

merely cumulative or impeaching. E.g., Infusion Resources, Inc. v. Minimed,

Inc., 351 F.3d 688, 696-97 (5th Cir. 2003) (upholding trials refusal to

reconsider based upon new evidence tendered by movant).

Ms. McKenzies views on affordable housing are hardly a secret. As

Cranfords own papers demonstrate, she volunteers them freely when asked.

Her role throughout the remedial proceedings in the present case has openly

been one of the protecting the interests of poor people in housing in Cranford.

zoning case governed by the procedural principles established Mt. Laurel II, supra, the orderwould have been entered as a final judgment. Under the idiosyncratic procedures establishedin Mt. Laurel II, a final judgment cannot be entered until the municipal defendant actually

brings itself into compliance. All that remains in the present case for the Court to enter finaljudgment is for Cranford to take the final steps mandated by the Courts order. Theconsiderations of finality and conservation of judicial resources that counsel caution inentertaining motions for reconsideration or rehearing of final decisions are fully applicable inpresent situation.

Thus, although this case is technically governed by R. 4:42-2, which concernsinterlocutory orders, see Johnson v. Cyklop Strapping Corp., 220 N.J.Super. 250, 257, 263(App.Div.1987); cf. Lombardi v. Masso, 207 N.J. 517 (2011), the proper standard for the Courtsexercise of its discretion to reconsider or rehear the matter is the same as the standard underR. 4:49-2. D'Atria v. D'Atria, supraat 401.


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That point of view has pervaded the reports that she has submitted to the

Court and her testimony at the site suitability hearing. There is nothing here

that is new or that could not have been readily discovered by inquiry before,

during, or after the site suitability hearing in the summer of 2010. Indeed, one

of Cranfords key pieces of evidence is remarks that Ms. McKenzie made to

counsel for CDA during that hearing which were fully placed on the record at

the time and were the subject of argument by counsel.

Moreover, Cranford has not demonstrated that the new items of

evidence are of such a nature that they would probably change the outcome.

Ms. McKenzies role was, at most, advisory. However persuasive her analysis of

the planning issues might have been, it was the Court that made all the

decisions. It did so with the benefit not only of Ms. McKenzies expert opinions

but also with the benefit of expert opinions offered by engineers and planners

tendered by Cranford. At most, the new information might have provided some

(very scanty) basis for impeaching cross-examination.

On the critical issues, such as flooding, there was ultimately little

difference among the experts. To the contrary, defendants expert Creelman

expressly agreed with the flood hazard area study performed by CDAs expert

Dipple, which delineated the extent of the floodway and flood fringe on the

property. Dipple, 8/2 T. 32-39; Dipple Flood Hazard Area Report (Ex. P-39);

Flood Hazard Area Map (Ex. P-39A); Creelman, 9/29 T. 25-28. The location

and boundaries of the flood hazard area were fully corroborated by the various

photographs offered by defendants, which show that the flooding, even during


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a 100-year-storm, is located within the floodway and flood fringe as delineated

on the Flood Hazard Area Map. Dipple, 8/2 T. 48, Hrebin, 8/9 T. 35-44;

Hrebin Photos (Ex. D-25); Marsden, 8/12 T. Marsden Photos (Ex. D-121).

The parties agreed that at the present time an office building and its

parking are located in the floodway. Flood Hazard Area Map (Ex. P-39A).

Under the proposed plan, this building will be removed. No buildings or

impervious coverage will be located in the floodway. Dipple, 8/2 T. 65; Revised

Concept Plan (Ex. P-63A).

Building A and portions of Building B would be located in the flood

fringe. Such construction is permitted if standards established by NJDEP are

met. To show that these standards can be met, CDAs engineer Dipple modeled

the amount of flood waters that can be temporarily stored on the site. Dipple,

9/27 T. 18-20; Dipple Flood Hazard Area Permitting Report (Ex. D-80). To

satisfy NJDEP standards, the development must not reduce the flood storage

capacity within the flood fringe area. Dipple then prepared a plan to show how

the property could be regraded to create additional flood storage to offset the

flood storage that would be lost through the construction. Dipple, 9/27 T. 22-

32; Conceptual Proposed Flood Fringe Modification Plan (Ex. P-82). This plan

includes flood storage underneath Buildings A and Building B, as permitted by

NJDEP regulations. Dipple, 9/27 T. 24-26, 28-32; Conceptual Proposed Flood

Fringe Modification Plan (Ex. P-82); Flood Hazard Area Sections (Ex. P-83).

This plan not only preserves the existing flood storage capacity, but actually

creates an additional 27,000 cubic feet of flood storage capacity, an increase of


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10 percent. Dipple, 9/27 T. 27-28; Dipple Flood Hazard Area Permitting Report

(Ex. D-80). Defendants engineer Creelman independently performed his own

analysis and reached a similar conclusion. Creelman, 9/29 T. 25-28.

Creelman acknowledged that this would satisfy the NJDEP flood storage

requirements. Creelman, 9/29 T. 27-28.

In addition, flooding and stormwater management are matters that are

comprehensively regulated by the NJDEP. CDA will have to secure from the

NJDEP a flood hazard permit and approval of its stormwater management plan.

The Court expressly conditioned CDAs right to commence construction upon

its securing the necessary NJDEP permits and approvals. Order Granting

Builders Remedy, Ex. B. It was not the Courts role to perform the regulatory

functions of the NJDEP. For the Court to have engaged in detailed assessment

of the specifics of the conceptual plans offered by CDA for compliance with

NJDEP flood hazard and stormwater management standards would have

exceeded the Courts proper role. Dowel Associates v. Harmony Township Land

Use Board, 403 N.J.Super. 1, 30-37 (App. Div. 2008).

In light of these realities, Cranford has not demonstrated that its items of

purportedly new evidence are of such a nature that they would probably

change the outcome.

In sum, Cranford has not demonstrated that its items of purportedly new

evidence are 1) of such a nature that they would probably change the outcome,

2) actually newly discovered and could not have been discovered earlier by

proper diligence; or 3) not merely cumulative or impeaching. Not only has it


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failed to satisfy all the essential criteria for reconsideration; it has failed to

satisfy any of them.

CONCLUSION

For all the foregoing reasons, plaintiffs Cranford Development Associates

LLC et al respectfully urge the Court todeny the motion by defendants

Cranford Township and the Planning Board of Cranford Township to disqualify

Elizabeth McKenzie from serving as special master and to vacate the July 29,

2011 decision of the Court awarding CDA a site-specific builders remedy.

HILL WALLACK LLPAttorneys for Plaintiffs

By Stephen Eisdorfer, Esq.

Dated: November 29, 2012


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EX A


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CERTIFICATION OF SERVICE

I certify that the foregoing notice of motion and supporting brief and

appendix have been served this day or earlier by e-mail or fax and by deliveringcopies to counsel for all parties at the following addresses shown below:

Philip J. Morin III, Esq.Florio Perrucci Steinhardt & Fader, LLC218 Route 17 North

Rochelle Park, NJ 07662

Carl R. Woodward III, Esq.Carella, Bain, Byrne, Gilfillan, Cecchi, Stewart & Olstein5 Becker Farm Road

Roseland, NJ 07068.

I certify that foregoing statements made by me are true. I am aware thatif any of the foregoing statements made by are willfully false, I am subject topunishment.

HILL WALLACK LLPAttorneys for Plaintiffs CranfordDevelopment Associates

By ___________________________

Stephen Eisdorfer, Esq.

Dated: November 29, 2012

2012-11-29-Oppositon to Cranford's Proposed Order to Disqualify McKenzie

Documents

Transcript of 2012-11-29-Oppositon to Cranford's Proposed Order to Disqualify McKenzie