You are on page 1of 57

LEHIGH ACQUISITION CORP., Plaintiffs, vs.

TOWNSHIP OF CRANFORD and PLANNING BOARD OF THE TOWNSHIP OF CRANFORD, Defendants; and CRANFORD DEVELOPMENT ASSOCIATES, LLC, a limited liability company organized under the laws of the State of New Jersey, SAMUEL HEKEMIAN, PETER HEKEMIAN, JEFFREY HEKEMIAN, and ANN KRIKORIAN as trustee for RICHARD HEKEMIAN and MARK HEKEMIAN, Plaintiffs, vs. TOWNSHIP OF CRANFORD, MAYOR AND COUNCIL OF THE TOWNSHIP OF CRANFORD and the PLANNING BOARD OF THE TOWNSHIP OF CRANFORD, Defendants.

SUPERIOR COURT OF NEW JERSEY UNION COUNTY - LAW DIVISION DOCKET NOS. UNN-L-0140-08 UNN-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 BUILDER’S REMEDY TO CRANFORD DEVELOPMENT ASSOCIATES ______________________________________________________________________________ Of Counsel and on the Brief: Stephen Eisdorfer, Esq. HILL WALLACK LLP 202 Carnegie Center Princeton, New Jersey 08543 (609) 924-0808 Attorneys for Plaintiffs

{F:/wdox/docs/014613/00001/02769280; 1}

TABLE OF CONTENTS PROCEDURAL HISTORY ................................................................................ 2 ARGUMENT ................................................................................................... 5 I. MS. MCKENZIE’S COMMENTS WERE NOT INAPPROPRIATE AND ARE NOT GROUNDS FOR DISQUALIFICATION ............................................ 5 A. CRANFORD’S ACCUSATIONS ARE BASELESS BECAUSE THEY ARE PREMISED ON A MISUNDERSTANDING OF THE FUNCTION OF THE COURT-APPOINTED MASTER IN THE PRESENT CASE .. 5 BASED UPON THE STANDARDS ESTABLISHED BY THE COURTS FOR CONDUCT BY COURT-APPOINTED SPECIAL MASTERS IN EXCLUSIONARY ZONING CASES, MS. MCKENZIE’S CONDUCT WAS ENTIRELY PROPER ............................................................. 9 EVEN IF MEASURED BY THE STANDARDS THAT GOVERN JUDGES, MS. MCKENZIE’S CONDUCT WAS ENTIRELY PROPER .. ................................................................................................. 14

B.

C.

II.

DEFENDANTS HAVE NOT SATISFIED THE STANDARDS FOR RECONSIDERATION 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

{F:/wdox/docs/014613/00001/02769280; 1}

i

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 builder’s 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 CDA’s 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. McKenzie’s 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 Court’s decision awarding a site-specific builder’s remedy.

Cranford’s motion was filed on Wednesday, November 21, 2012—twelve days after counsel received from Ms. McKenzie a final though unsigned copy of the report of Special Hearing Officer Douglas Wolfson recommending that CDA be granted site plan approval for its proposed inclusionary development. The three comments by Ms. McKenzie which form the evidentiary 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 but suggest that this motion is not really about a newly discovered “bias” or “prejudice” on the part of Ms. McKenzie, but by Cranford’s displeasure at the course the case has taken. This suggestion is perhaps reinforced by the fact that Cranford has not sought to vacate other decisions that might have been affected by Ms. McKenzie’s bias or prejudice. For example, it has not sought to vacate the Court’s approval of its settlement with Lehigh Acquisition LLC, a matter as to which Ms. McKenzie submitted a report and presented testimony.
1

{F:/wdox/docs/014613/00001/02769280; 1}

1

PROCEDURAL HISTORY The history of Ms. McKenzie’s 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. McKenzie’s 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. McKenzie’s 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
2 Curiously, although defendants include many of Ms. McKenzie’s reports in the appendix to their motion, they have deleted Ms. McKenzie’s curriculum vitae from these reports. 3 Exhibit B is the curriculum vita attached to Ms. McKenzie’s report dated January 4, 2010.

{F:/wdox/docs/014613/00001/02769280; 1}

2

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 Cranford’s unmet housing obligation and the suitability of the 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 Cranford’s unmet housing obligation (June 22, 2010, July 19, 2010); ■ suitability of the CDA site and Cranford’s unmet housing obligation (oral testimony, September 29, 2010; written report, December 1, 2010); ■ adequacy of the settlement between Lehigh Acquisition LLC and Cranford Township (November 11, 2010); and ■ extent of compliance by Cranford Township with terms of the Court’s order of December 9, 2011 (June 22, 2012). Some of these reports, although not all of them, are included in Cranford Township’s 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 Cranford’s unmet housing obligation conducted by the Court in August and September 2010, the Court rendered a comprehensive opinion awarding CDA a site-specific builder’s remedy and determining what additional steps Cranford would have to take to

{F:/wdox/docs/014613/00001/02769280; 1}

3

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 Court’s 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 Court’s 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.

{F:/wdox/docs/014613/00001/02769280; 1}

4

ARGUMENT POINT I MS. MCKENZIE’S COMMENTS WERE NOT INAPPROPRIATE AND ARE NOT GROUNDS FOR DISQUALIFICATION A. CRANFORD’S 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 mistake—that 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 noncompliance 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 5

{F:/wdox/docs/014613/00001/02769280; 1}

doctrine than ever, and we are determined, within appropriate judicial bounds, to make it work. The obligation is to provide a realistic opportunity for housing, not litigation. We have learned from 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 the effectiveness 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, if necessary, supervision of the revision through a court appointed master), and require the use of effective affirmative planning and zoning devices. The long delays of interminable appellate review will be discouraged, if not completely ended, and the opportunity

{F:/wdox/docs/014613/00001/02769280; 1}

6

for low and moderate income housing found in the new ordinance will 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 noncompliance 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.”
{F:/wdox/docs/014613/00001/02769280; 1}

7

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 she is an expert, a negotiator, a mediator, and a catalyst--a person who will help the municipality select from the innumerable combinations of actions that could satisfy the constitutional obligation, the one that gives appropriate weight to the many conflicting 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, the board of adjustment, planning board and interested developers. He or she will assist all parties in discussing and negotiating the requirements of the **455 new regulations, the use of affirmative devices, and other activities designed to conform to the Mount Laurel obligation. The parties will presumably give the master's suggestions great weight, since the revised ordinance will be submitted to the master for his or her review and recommendations prior to its submission to the court. During the course of the revision process, the master will report periodically to the court on the progress of the revision process. At the end of the 90 day period, on notice to all the parties, the revised ordinance will be presented in open court and the master will inform the court under oath, and subject to cross-examination, whether, in his or her opinion, that ordinance conforms with the trial 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 court’s agent, the master’s role is to assure that the municipality actually creates opportunities within the municipality for the creation of safe, decent housing
{F:/wdox/docs/014613/00001/02769280; 1}

8

affordable to low and moderate income households to satisfy its constitutional fair share housing obligation. The master’s 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 builder’s remedy, the special master must advise the court as to how much additional low and moderate income housing must be provided to satisfy the municipality’s fair share housing obligation, how much should properly be provided in the builder-plaintiff’s project and whether the builder’s 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 must be 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

{F:/wdox/docs/014613/00001/02769280; 1}

9

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 SPECIAL MASTERS IN EXCLUSIONARY ZONING CASES, MS. MCKENZIE’S 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 the “hybrid” 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 entities—such 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 of “the 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 overinvolvement” with the parties and the issuesk6.
{F:/wdox/docs/014613/00001/02769280; 1}

10

Clearly the Supreme Court envisioned for example that the special master would have ex parte contacts 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 parte contacts with the parties, he or she should not have ex parte contacts with the trial court. Id. at 284n.40. He or she should not be someone who has had prior involvement in the litigation—not for

{F:/wdox/docs/014613/00001/02769280; 1}

11

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 McKenzie’s 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

{F:/wdox/docs/014613/00001/02769280; 1}

12

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
Ms. McKenzie had been placed in a somewhat awkward posture by the sequence of proofs. She had recommended to the Court that Cranford present its evidence as to drainage and 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, 192 N.J. Super. 599, 605-606 (Law Div. 1983). In its discretion, the Court could properly have established 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. McKenzie’s concerns would have emerged prior to CDA’s proofs and CDA could have addressed those concerns in the ordinary course. It was only because the proofs were, in some sense, presented out of sequence that Ms. McKenzie had to separately express her cautions to CDA after it had presented its testimony.
4

{F:/wdox/docs/014613/00001/02769280; 1}

13

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 Skillman—one of the three original Mt. Laurel judges designated by the Supreme Court—the Appellate Division held only that “a Mount Laurel special master is subject to substantially the same conflict of interest rules as 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. MCKENZIE’S 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

{F:/wdox/docs/014613/00001/02769280; 1}

14

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. McKenzie’s 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 judge’s 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

{F:/wdox/docs/014613/00001/02769280; 1}

15

that purportedly evince bias or prejudice are not grounds for disqualification unless they display “a 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 or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.... Not establishing bias or 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 as federal judges, sometimes display. [Id. at 555–56]. 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 “sometimes stern”); 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, 532–33 (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

{F:/wdox/docs/014613/00001/02769280; 1}

16

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. McKenzie’s 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

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

{F:/wdox/docs/014613/00001/02769280; 1}

17

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 trial’s 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 trial’s refusal to reconsider based upon new evidence tendered by movant). Ms. McKenzie’s views on affordable housing are hardly a secret. As Cranford’s 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 order would have been entered as a final judgment. Under the idiosyncratic procedures established in 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 final judgment is for Cranford to take the final steps mandated by the Court’s order. The considerations of finality and conservation of judicial resources that counsel caution in entertaining motions for reconsideration or rehearing of final decisions are fully applicable in present situation. Thus, although this case is technically governed by R. 4:42-2, which concerns interlocutory 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 Court’s exercise of its discretion to reconsider or rehear the matter is the same as the standard under R. 4:49-2. D'Atria v. D'Atria, supra at 401.

{F:/wdox/docs/014613/00001/02769280; 1}

18

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 Cranford’s 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. McKenzie’s 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. McKenzie’s 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 CDA’s 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

{F:/wdox/docs/014613/00001/02769280; 1}

19

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. 2232; 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

{F:/wdox/docs/014613/00001/02769280; 1}

20

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 CDA’s right to commence construction upon its securing the necessary NJDEP permits and approvals. Order Granting Builder’s Remedy, Ex. B. It was not the Court’s 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 Court’s 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

{F:/wdox/docs/014613/00001/02769280; 1}

21

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 to deny 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 builder’s remedy. HILL WALLACK LLP Attorneys for Plaintiffs By Dated: November 29, 2012

Stephen Eisdorfer
Stephen Eisdorfer, Esq.

{F:/wdox/docs/014613/00001/02769280; 1}

22

EX A

EX B

EX C

EX D

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 delivering copies to counsel for all parties at the following addresses shown below: Philip J. Morin III, Esq. Florio Perrucci Steinhardt & Fader, LLC 218 Route 17 North Rochelle Park, NJ 07662 Carl R. Woodward III, Esq. Carella, Bain, Byrne, Gilfillan, Cecchi, Stewart & Olstein 5 Becker Farm Road Roseland, NJ 07068. I certify that foregoing statements made by me are true. I am aware that if any of the foregoing statements made by are willfully false, I am subject to punishment. HILL WALLACK LLP Attorneys for Plaintiffs Cranford Development Associates By ___________________________ Stephen Eisdorfer, Esq.

Dated: November 29, 2012

{F:/wdox/docs/014613/00001/02769280; 1}

23