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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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EX B
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EX C
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EX D
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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
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