:;l~ SFFLORIOPERRUCCI

.. j,_

STEINHARDT & FADER

Attorneys at Law
u.c

Philip J. Morin III Partner Rochelle Park Office Direct Dial: (201) 373-8934
pmorin@fPstlawfirm.com

November

21,2012

VIA HAND DELIVERY

Deputy Clerk. Law Division Union County Courthouse 2 Broad Street Elizabeth, Nl 07027

Re:

Cranford Development Associates, LLC et als. v. Township of

Cranford, Mayor and Council, et als.; Docket No. UNN-L-3759-08

Dear Sir or Madam:

We represent Defendants Township of Cranford and Cranford Planning Board in the above matter. Enclosed please find an origln~' ~nrl "" .. 'opy oC a Hoti~v v lvlvtiUll wl111 Certification of Service, Brief in Support of Motion, Certification of Philip J. Morin ill, Esq. and proposed form of Order. Kindly charge our Superior Court AccountNo. 141889 for the requisite filing fee.

PJMJdg
CC:

Hon. Lisa F. Chrystal, l.S.C. (via hand delivery) Carl R. Woodward Ill, Esq. (via e-mail &U.S.Mail) Stephen M. Eisdorfer, Esq. (via hand deliverv & e-mail) nuzaoetn C. :McKenzie, P.P., P.A. (via hand delivery & e-mail)

_-._ -------_.
.....

-------------------------------Bethlehem Office 60 W Broad St., Suite 102 Bethlehem, PA 18018 (610) 691-7900 phone (610) 691-0841 fax Woodbury Office 108 Euclid Street Woodbury, NJ 08096 (856) 853-5530 phone (856) 853-5531 fax

Rochelle Park Office 218Rt. 17N, Suite 300 Rochelle Park, NJ 07662
(201) 843-5858 pJ'lone (201) 843_587i<~k08876.DOC}

Phillipsburg Office 235Frost Avenue

Phillipsburg, NJ 08865 (908) 454-8300 phone (908) 454-5827 fax

New York Offre 80 Wall Street Suite 815 New York, NY 10005 (212) 792-9070 phone

www.fpsflawfirm.com

FLORIO PERRUCCI STEINHARDT & FADER, L.L.C. 218 Route 17 North, Suite 410 Rochelle Park, NJ 07662 (201) 843-5858 Attorneys for Defendants Township of Cranford and Cranford Planning Board

CRANFORD DEVELOPMENT AS SOCIA TES, LLC, a limited liability Company organized under the laws of the State of New Jersey, et al., Plaintiffs,

SUPERIOR COURT OF NEW JERSEY LAW DIVISION: UNION COUNTY

DOCKET NO. UNNL-3759-08 (Mt. Laurel)

v.
TOWNSHlP OF CRANFORD, MAYOR AND COUNCIL OF TIlE TOWNSHIP or \:,KANrUKJ) and PLANNING BOARD OF THE TOWNSHIP OF CRANFORD, Defendants,

Civil Action

NOTICE OF MOTION

Carl Woodward, Esq. Carella, Byrne, Cecchi, OIstein Brody & Agnello, P.C. 5 Becker Farm Road Roseland, NJ 07068

TO:

Stephen Eisdorfer, Esq. Hill Wallack LLP 202 Carnegie Center Princeton, NJ 08543

Attorneys for Plaintiffs

Elizabeth C. McKenzie, AICP, P.P Elizabeth C. McKenzie, P.P., P .A. 9 Main Street Flemington, NJ 08822

Co-Counsel for Defendants

Special Master
P'~~E T .y~ NOTICE lllCll

ar

';J

O'Clock

in the forenoon

on Friday,

December 7, 2012, or as soon thereafter as counsel may be heard at the Union County Courthouse, 2 Broad Street, Elizabeth, New Jersey, 07207 counsel for the Defendants Township of Cranford and Cranford Planning Board ("Defendants") shall move for an

(OOl0887S.DOC}

Order vacating the July 29 ,2011 Opinion and December 9, 2011 Order and ordering a new trial and the appointment of a new special master.

PLEASE TAKE

FURTHER

NOTICE

that Defendant shall rely on the

accompanying Brief and Certification of Philip J. Morin ill, Esq.

PLEASE TAKE FURTHER

NOTICE that Defendants hereby request oral

argument
PLEASE lAKE FUTHER
this matter for Decenaer 17, 2012.

NOTICE that a conference has been scheduled in

FLORIO, PERRUCCI, STEINHARDT & FADER LLC

Auorneys n ts .

bated:

November 21, 2012

CERTIFICATION

OF SERVICE

The undersigned hereby certifies that Defendants Notice of Motion, Brief, Certification of Philip J. Morin ill, Esq. and proposed form of Order were caused to be served via hand delivery upon the Deputy Cleric, Superior Court, Union County Courthouse, 2 Broad Street, Elizabeth, New Jersey 07202, with a courtesy copy to the chambers of the Honorable Lisa Chrystal, J.S.C., as well as hand delivery upon the following parties: Stepben Eisdorfer, Esq. Hill Wallack LLP 202 Carnegie Center Princeton, NJ 08543 Attorneys for Plaintiffs Elizabeth C. McKenzie, AICP, P.P. Elizabeth C. McKenzie, P.P., P.A. 9 Main Street Flemington, NJ 08822 Special Master The undersigned further certifies that the aforementioned docwnents were caused to be served via regular U.S. Mail and e-mail to the following: Carl Woodward, Esq. Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P .C. 5 Becker Farm Road Roseland, NJ 07068 Co-Counsel for Defendants
I certify that the statements mRtip. hy I GDl. ~..,cu" iliill. Lfany or me

on .. <>ro iruo.

foregoing statements made by me are willfully false, I am subject to punishment

Dated: November 21,2012

FLORIO PERRUCCI STEINHARDT & FADE~ L.L.C. 218 Route 17 North, Suite 410 Rochelle Park, NJ 07662 (201) 843-5858 Attorneys for Defendants Township of Cranford and Cranford Planning Board

CRANFORD DEVELOPMENT AS SOCIA TES, LLC, a limited liability Company organized under the laws of the State of New Jersey, et al., Plaintiffs,

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION: UNION COUNTY

DOCKET NO. UNN-L-3759-08 (Mt. Laurel)

v.
TOWNSHIP OF CRANFORD, MAYOR AND COUNCIL OF TIlE TOWNSHIP OF CRANFORD anti PI.A NNThTG DO_..uu> OF TIIE TOWNSHIP OF CRANFORD, Defendants,

Ch-iI h,-tiuB

--------------------------

BRIEF IN SUPPORT OF DEFENDANTS' TOWNSHIP OF CRANFORD AND CRANFORD PLANNING BOARD'S MOTION FOR RELIEF

On the brief

Philip 1. Morin III, Esq. Seth R. Tipton, Esq.

{OOO76271.DOC 3}

PRELmnNARYSTATEMENT
Special Masters appointed determination
to assist

in Mount Laurel cases prior to a final remedy" are vested with considerable

of the award of a "builder's

authority. Moreover, their factual findings are often critical to the disposition of the case. The significance of the Special Master's role and tbe sensitive nature of the disputes requires the utmost impartiality. The mere specter of partiality or bias is not, and should

not be, tolerated. Consequently, New Jersey Courts have held that Mount Laurel Special

Masters are subject to the strict guidelines of conduct and disqualification that govern the
State's judiciary. Here ,Elizabeth

C. McKen7.ip. ("M~f('

""n2ie"),

lioo1'lOOO proC....,..,ivWll planner,

was

appointed as a Special Master prior to the "builder's remedy" trial phase of this litigation. This appointment was an "evolution" of the traditional role of the special master as outlined in South Burlington County NAACP v. Township of Mt Laurel, 92 N.J. 158 (1983)

("Mt Laurel n"), in which our State Supreme Court contemplated

the

appointment of Special Masters as "impartial experts" who are appointed by the court "to assist municipal officials in developing constitutional zoning and land use regulations"

and "to devise a remedy that will meet with the court's approval" following the determination that a builder's remedy is warranted. Prior to a trial on the merits, McKenzie Id. at 282. expressed her opinion that a builder's Township of Cranford and Cranford

remedy was appropriate.

At trial, Defendants

Planning Board vigorously contested Plaintiff Cranford Development Associates LLC's ("Plaintiff" or "CDA") entitlement to a builder's remedy on numerous grounds.

McKenzie also testified at trial. Following trial, McKenzie provided the Court with her

opinion as to whether Defendants successfully demonstrated that a builder's remedy was not appropriate at trial, which consisted of several days of expert trial testimony by licensed engineers and professional planners. Ultimately, McKenzie's recommendations 2011

were adopted in full by the Court and became the basis for the Court'sJuly29, Opinion and December 9, 2011 Order granting a builder's remedy to CDA.

However, subsequent to the full trial and post-trial motions in the present matter, Special Master McKenzie admitted to a significant predisposition or bias

in

favor of

"affordable housing." -Specifically, the Special Master, in an e-mail exchange amongst counsel, on April 6, 2012, stated as follows: I am _ _ $In gffor~h1e houoin5 Q.~t.c. I llk.e W see towns comply and getting on with it, and I see little value in having litigation hanging over a town's head for what could be years while the politicians in all three branches of the State government argue about how to undermine planning and affordable housing efforts without looking bad. While this statement, standing on its own, could be dismissed as a "one-time"

misstatement or "knee-jerk" reaction, this was not the only situation in which McKenzie identified herself as an "affordable housing advocate." During a recent deposition of

McKenzie in another pending Mt. Laurel litigation, she again identified herself as an "affordable housing advocate" whose "role it is to bring a case to a close preferably through a settlement because that is the fastest way to produce the affordable housing which is the objective of the case." Such words can hardly

he deemed

the statement of an

"impartial expert" whose true role is to provide an "objective" view of the facts and expert testimony in complex Mt. LaurellitigatioD The Special Master's where a builder's remedy is sought

task during the trial of this matter was to objectively

evaluate the testimony and provide an unbiased report to the Court that evaluated the

parties' arguments relating to whether CDA was entitled to a builder's remedy on the property in question, as well as provide her opinion to the Court such a development

as to

the feasibility of

As such, it is impossible to argue that the Special Master's bias or

predisposition would not have influenced her comments during trial about site suitability, her evaluation of the evidence and credibility recommendations

as

to the various

witnesses the parties presented during trial and her reports to the trial court. Even had her predispositions not had an impact on her findings, a neutral observer or participant would certainly have had doubts about the Special Master's impartiality if her admissions were made at an earlier stage of the litigation. It is undeniable that McKenzie's admissions
MH~P.T
1'11~\1M1t

would have been grounds to disqualify her as the Special Jersey Court Rules and the Canons of Judicial Conduct.

to tho Now

Where previously unavailable evidence that would have affected the outcome of a matter is discovered after a final judgment or order, a party may seek relief from that judgment or order pursuant to Rule 4:50-1. Rules 1:7-5 and 4:42-2. Alternatively, Defendants seek relief under

As the foregoing will demonstrate, Defendants are entitled to disqualification would have been virtually

relief here because the Special Master's

unavoidable had her admission of bias been made prior to or during trial, and a different result would likely have followed.

TABLE OF CONTENTS

PRELIMWARY STATEMENT FACTUAL AND PROCEDURAL IDS TORY LEGAL ARG{]]\ffiNT

I. II. STANDARD FOR RELIEF PURSUANT TO RULE 4:50-1.

2
6 11 15

THE SPECIAL MASTER'S BIAS AS AN "AFFORDABLE HOUSING ADVOCATE" AND EX PARTE REQUESTS FOR EVIDENCE SHOULD HAVE DISQUALIFIED HER FROM PARTICIPATING IN THE LITIGATION 17 A. Special Masters Are Subject to the Same Rules of Conduct as New Jersey State Court Judges 17
B.

McKenzie's Comments Reveal a Predisposition, Interest, Prejudice and/or Bias Sufficient to Hove ni~'l"/'flifiDrl.YD" p,.o_ $.::rv;"6 W'> Byr;&.lul i"'f~"t:r In me

Underlying Litigation CONCLUSION

19 25

FACTUAL AND PROCEDURAL Plaintiffs Cranford Development Hekemian, Jeffrey Hekemian, Associates,

mSTORY
LLC, Samuel Hekemian, Peter

and Ann Krikorian,

as trustee for Richard Hekemian the

(collectively referred to as "Plaintiffs"

or "CDA") filed suit against Defendants

Township of Cranford and the Township

referred to as "Defendants") on November

of Cranford Planning Board (collectively

12, 2008, seeking a builder's remedy

judgment permitting them to build a 419 unit inclusionary residential development on 15.8 acres located at 215 and 235 Birchwood "Site''). Avenue in Cranford, New Jersey (the

After consolidation with a previously filed case, Lehigh Acquisition Corp. v.

Cllllrt grAnt..d

Twp. of Cranfonl No. UNN-L-0140-08.1 this

Pl..intiHo'

D10bOU

i'VI pcu.ua.l

summary judgment on March 20, 2009, finding that Defendants' zoning ordinance did not sufficiently provide for affordable housing. (Cranford Dev. Assocs. v. Cranford, UNN-

L-3759-08, Mar. 20, 2009 Order and Letter Opinion, annexed to the Certification of Philip J. Morin ill, Esq. (hereinafter "Morin Cert.") as Exhibit "A''). However, the

critical issue of whether Plaintiff was entitled to a "builder's remedy" was not determined in the Court's March 20, 2009 Order. Ultimately, that issue was the subject of a trial on

the merits.
By the same Order, Elizabeth C. McKenzie, AICP, PP was appointed as the in the matter. (Thid.) McKenzie's first

special master to "oversee further proceedings"

l'o;,pod
\'Va;)

i~~uro on

January 4, :lUlO. In that report, McKenzie found that the Site was

suitable for the development of 419 residential units, provided minor changes were made for parking issues and sewer capacity.
I

(Report of the Special Master, Jan. 4, 2010,

This matter has since settled.

annexed to the Morin Cert. as Exhibit "B"). This report was issued prior toatrial on the

merits. A.. The 2010 Trial

A full bench trial was conducted between August and September 2010 to
determine whether the site of Plaintiffs' were entitled to

"builder's remedy", i.e.,

whether the proposed development of the Site was suitable for inclusionary residential development During the trial, one of the major issues concerned the Site's storm water

detention capacity. (Supplemental Report of the Special Master, Dec.L, 2010, annexed to the Morin Cert as Exhibit "C"). The flooding issues raised significant doubts as to

whether site would be suitable for the proposed development. During the second day of trial, Plaintiffs' expert, Michael Dipple, P.E., testified
nP.Jl$lrtmp.nt of

that "flood hazard area permits could be obtained [from the New Jersey

Environmental Protection] for th[e] Birchwood Avenue" site. (Cranford Dev. Assocs v. Cranford. UNN-L-3759-08, trial transcript, 61:21-25,relevant afternoon session, dated August 3, 2010,

portions of which are annexed to the Morin Cert. as Exhibit ''D'') that he had not produced

Despite this opinion, Dipple conceded on cross-examination

"any calculations of [the] amount of flood compensation in the flood fringe area," or the locations of "compensation areas." (Id. at 62:1-9.) In fact, Dipple had not submitted any documentation concerning the "compensation areas," and had not "studied it thoroughly." on using an incorrect standard on

M at

62:5-12.)

Further, Dipple had insisted

determining "the floodway and flood plain," and was forced to redesign the project to

comply with the correct standards.i

(Mh at 63:1-14.)

Therefore, although he felt

"confident that a flood hazard area permit c[ould] be obtained," he had no calculations to support that opinion. As McKenzie indicated significant deficiency

in her

report, Dipple 's testimony on this point was a

in Plaintiffs'

case.

Consequently,

McKenzie

immediately

expressed her "dissatisfaction with [Dipple's] issue." (Ex. C at 6.)

original testimony ...

on [the flooding]

McKenzie goes on to explain in her supplemental report that

although she did "lot specifically request . . . additional information" concerning this issue, she "indicated [her] Opinion that the record" was Inadequate. the "plaintiff belatedlv submitted
~(Mltil\n~l inf01'U14tion" on

(ThillJ In response,

AU8UO)l

6,

2010, "ana

testimony regarding the storm water management issues," Although NcKenzie reported that she had

MJ
110t requested the additional

information from Dipple or Plaintiffs, counsel for Plaintiffs reported a much different version of events. On August 9, 2010, this Court indicated that Plaintiffs had attempted to produce an August 6:. 2010 supplemental report from Dipple during the trial. trial transcript, dated August 9,

(Cranford Dev. Assocs v. Cranford, UNN-L-3759-08,

2010, at 5:3-11, relevant portions of which are annexed to the Morin Cert. as Exhibit

''E''). Defendants strenuously objected to admission of the report.

ad. at 6:28-10:19.)

In response to the Defendants' objections, counsel for Plaintiffs explained to this

court that "[ajfter Mr. Dipple's testimony on Tuesday, I was approached by the Special Master, and she said your Engineer may be right, but I'm not comfortable offering an opinion without seeing any calculations." (Id. at 11:7-12.)(emphasis added) Since

Dipple had originally opined that an "FHA permit was not required."

(Defs.' August 30, 2010 Ltr. Br. at

3,annexed to the Morin Cert. as Exhibit "P').

Plaintiffs' "goal [lIas] to make the Special Master comfortable," Plaintiffs requested the calculations from Dipple, who circulated the results within days. ad. at 11:12-18.)

Therefore, Plaintiffs explained that they "should [not] be penalized for ... responding to the concerns of a Special Master." Q!h at 12:17-20.)

This Court permitted the introduction of the August 6, 2010 report

18.) That August 6, 2010 supplemental

ad. at 15:9-

report was ultimately crucial to McKenzie's

supplemental report, in which she again recommended a builder's remedy. She explained that the "belatedly submitted adqtional information and tes1.mony regarding the storm

water management issues" had "cleared up a number of questions about the [suitability of theSite.]" (Ex. C at 4,)

B. The 2011 Decision On July 29,2011, this Court issued its decision in the Mt. Laurel builder's remedy litigation brought by CDA against the Township of Cranford and its planning board. In

that decision, this Court adopted nearly each and every fmding made by McKenzie verbatim, quoting directly large sections of McKenzie's Report, noting that they were "credible, well-reasoned and thoughtful." UNN-L-3759-08, (Cranford Dev. Assocs. v. Town of Cranford,

Transcript of Decision dated July 29, 2011 at 29:5, annexed to the

Morin Cert. as Exhibit "G").

That decision was memorialized in a December 9, 2011

uoy-o...mo'o prc;,-tdc1 !1uillug~, mar

Order. (Annexed to the Morin Cert. as PxhihH ''J.T'').

testimony and post-trial findings were all extremely favorable to CDA, as she ultimately recommended that the Township had failed to meet its burden and that CDA be granted a builder's remedy.

C.

E-mails Between McKenzie and Counsel Regarding Her Self-Deemed Role as an "Affordable Housing Advocate".

On April 6, 2012, Kevin D. Walsh, Esq. from the Fair Share Housing Center in Cherry Hill initiated an e-mail chain with McKenzie on which counsel for CDA and the Township were copied. Mr. Walsh indicated that he wished to intervene in the litigation due to "concern[ s about the] Third Round repose at a time when there are no Third Round regulations." In response, McKenzie explained that: [Cranford] will have quite a few credits toward the tlYrd round and can address the third round RDP+. We may not yet know what the reg[ulations] are going to be (who knows if we will ever know that?), but in my opinion a bird in the hand is worth ending the litigation and getting on with it. Your perspective is more long range, but 1 think th.... i., a. 1u, ,u ne sara JOT towns getting the blessing to go '" ahead and comply ASAP. Any deficiency that is uncovered as a result of the eventual adoption of third round reg [ulations] can be addressed in the fourth round. [(April 6, 2012 email from McKenzie to Walsh, annexed to the Morin Cert. as Exhibit "1.")] Walsh responded by criticizing the court's choice to proceed in the case in the absence of Third Round regulations, and its "premature decision."

CIllli!J

After another round of back- and-forth, McKenzie responded as follows: I am a planner and an affordable housing advocate. I like to see towns comply and getting on with it, and 1 see little value in baving litigation hanging over a town's head for what could be years while the politicians in all three branches of the State government argue about how to undermine planninz and affOTti~hlp. hnllQing efforto 'Without looking bad. I appreciate your desire to try to hold onto (and/or fashion) a comprehensive legal framework for the provision of affordable housing where no one else is

10

stepping up to the plate, but I do not see that the approach I have recommended in Cranford will in any way contribute to confusion or destruction of precedent and predictability. I have already pointed out that if there is a deficiency in Cranford's third round approach, it can be made up in the fourth round - this is an approach COAH itself took when sites in a certified plan where acquired as open space or developed at less than anticipated density.
[Q!W!J]

D.

McKenzie's Sworn Testimony RegardiD2 Her Role as a Special Master and "Affordable Housing Advocate".

While McKenzie may claim that her statement in the April 6, 2012 e-mail exchange is being taken "out of context" or a "knee-jerk" response, Defendants are aware
o ...t loa.:oi au., vtUl;iJ.

V""'''L)lUu.ln

wmcn MCK.eDZle as embraced her role as an "affordable h

housing advocate. t1 On this second occasion, her admission was made in a sworn deposition. ~k{.enzie was recently deposed in the matter of Elegant Properties LLC v. Township of Hazlet, Docket No. MON-L-1559-08, in which it was alleged by counsel for the Township that McKenzie had a conflict of interest due to the fact that Douglas Wolfson, Esq., was Plaintiff Elegant Properties LLC's counsel during the same period of time that he served as a court-appointed mediator and special hearing officer in the instant litigation.3 While it is Defendants' understanding that no determination was made by the court as to the alleged conflict, Ms. McKenzie voluntarily stepped down as the

Court-appointed Special Master and her deposition was scheduled pursuant to an order of

the court.

3 Counsel is unaware of any disclosure in this case to date by either McKenzie or Wolfson of the alleged conflict or their respective roles in the ~ litigation.

11

Surprisingly, in her deposition, McKenzie did not shy away from her self-defined role

as Special

Master/"affordable housing advocate" - instead, she embraced it- noting

that in a municipality where she perceives it "wants not to do it", she becomes an "advocate" against the municipality:

Q [Counsel for Hazlet]: You've been appointed by courts as a M01.mt Laurel special
master in a number of cases, right? A [McKenzie]: Yes.
Q:

What's your role?

A: My role as master is - basically my role is to bring the case to a close preferably through a settlement because that is the fastest way to produce the affordable lroltling which is the objective of the case. So, you know, my clients ultimately are low and moderate income households ~nti T morle with the porti"., to try tu cwwcvt: a sonmon mat will end the litigation and produce affordable housing ~nd then my job, assuming that there is a settlement, is then to assist the municipality in bringing their ordinances and they're [sic] housim elements into conformity with the COAH regulations which the court[ s] tend to use to guide them in deciding whether a town is in compliance with its obligations or not Occasionally where there is not able to be a settlement or resolution, an amicable resolution of the case I will have to advise the judge whether it's a difference of opinion between the parties and I will have to advise the judge as to my recommendation. The judge does what a judge will do. Imake recommendations in those cases where there is not a settlement.
Q:

And in that role you try to be impartial; right?

A:
Q:

Yes.
Inthat role you're not particularly an advocate for either side, are you?

A: I am an advocate for affordable hOllC!ing Tf 91t1>.0.. Dido io inth~ -rra.] vC l'J.uUu~Lu~ affordable housing whether the developer basically wants to get out from under or whether the town wants not to do it, then you could say Ibecome an advocate against one or the other in those situations, but, in general, Iam an advocate for affordable housing and in my role as master I try to work with both parties to achieve the solution that works. See Sept. 5,2012 Deposition Transcript of Elizabeth McKenzie, 19:1 to 20:17 (attached hereto as Exhibit K).

12

Q: What is the difference [between court appointed mediators and court appointed masters]? Well, as a mediator you're just charged with attempting to settle a case. As a master the role is different and your role includes advising the judge as to the outcome. See Exhibit 1(, rr, 25:22 to26:1.
A:

13

LEGAL ARGUMENT A court-appointed Special Master who holds him or herself out as a "affordable housing advocate" is not an "impartial expert." "Advocacy" is for "one who assists, pleads or prosecutes for another'" - not for a supposedly objective master whose role it is to assist the court in evaluating a complex factual and legal analysis of whether a community which has arguably violated the Supreme Court-created Constitutional obligation that a municipali\)' provide affordable horsing and, ignificantly, whether a developer is entitled to the "extraordinary" award of a builder's remedy. As a threshold matter, Defendants note that because the initial evidence of McKenzie's bias was learned at such a late date after the trial of this
m~ttpr

Qnd

confirmation of that bias was only recently obtained, the present motion is procedurally unique. A full trial has been conducted, and the order with respect to a builder's remedy was entered on December 9, 2011. While Defendants filed a subsequent motion for

reconsideration, McKenzie self-description as an "affordable housing advocate" was not known at the time, Furthermore, there is no final judgment yet entered in this matter although a conference has been scheduled for December 17,2012 to presumably address the proposed final order submitted by CDA. Because Defendants had no evidence and were otherwise unaware of McKenzie's bias during trial, th~y could not have made a standard motion for disqualification nursuant
to

Rule 1: fL]

-2

At

or boorco tcial.

D~~uiliull.:s

rnaxe me

instant

motion,

therefore, pursuant to Rule 4:50-1 because the proceedings essentially have been completed. However, were this Court to determine that Rule 4:50-1 is improperly
4

See Black's Law Dictionary (7th Ed. 1999).

14

invoked, the same relief requested herein could be granted pursuant toRule 1:7-5, which allows a judge to correct any error capable of producing an unjust result, without regard to whether an objection was made at trial. Alternatively, if this Court determines that its December 9, 2011 Order is still interlocutory, this Court could revisit the issue pursuant to Rule 4:42-2, which provides that any interlocutory order "shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice."

In sum, the New Jersey Court Rules grant considerable latitude to this Court to
accomplish justice in whatever way it deems appropriate. this Motion nursuant andlor 4:42-1.
tn R111p. .4:50-1,

Therefore, Defendants make l'w:suwn to Kwes 1:"/-5

~d,

in tho a.ltvn~t.iv~,

I.

STANDARD FOR RELIEF

PURSUANT rule

TO RULE 4:50-1

Rule 4:50-1 is a procedural

grounded

in equitable principles

which

"reconcilejs] the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." Manning Engr'g, mc. v. Hudson Cty. Park Comm'n., 74 N.J. 113, 120 (1977). A party may move for relief from a "final judgment or order" where new evidence is

"discovered . . .which would probably [have] alter[ ed] the judgment or order and which

[evidence] bv due dilizence

l'.nl11A

T\O*

hA,vo 1:>oon diooo'Y~nxl

ill. t.Uu~

UJ

uiove ror a new

trialunder R. 4:49." Rule 4:50-1(b). Such a motion must be made within one year of the
judgment or order from which the applicant seeks relief. Rule 4:50-2.

As the Order

imposing the builder's remedy was entered on December 9, 2011, this motion is timely under Rule 4:50-2.

15

A. Newly Discovered Evidence

To be entitled to relief due to newly discovered evidence, Rule 4:50-1(b), a movant must demonstrate ''that the evidence [1] would .:rrobably have changed the result, [2J that itwas unobtainable by the exercise of due diligence for use at the trial, and [3] that the evidence was not merely cumulative." Springfield, 83 N.J. 438, 445 (1980). Quick Chek Food Stores v. Twp. of brought pursuant to this rule does not

A motion

permit "an attempt to remedy a belated realization of the inaccuracy of an adversary's proofs." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009). For example, in was
tlu;;

DEG, the movant sought relief from a judgment by arguing that its expert rt~rt newly discovered evidence. movant had the Ibid. The COlin
TPjpr.tpA tl-..C' -eua>-ont, notW., ~,

timi

and opportunity to have obtained that evidence prior to trial. Ibid.

Its failure to exercise due diligence did not warrant relief. Conversely here, Defendants

had no such opportunity to uncover McKenzie's predisposition to "affordable housing

advocacy. II B. Exceptional Circumstances

Alternatively, Defendants make the present Motion for relief 4:50-1(f),

pursuant

to Rule

which

requires

a movant

to demonstrate

"exceptional

circumstances."

Baumann v. Marinaro, 95 N.J. 380, 395 (1984); see also Palko v Palko, 73 N.J. 395, 398 (1977) (''No categorization can be made of the situations which would warrant redress
WlU~l

suusecuon t-r'):).

rms catch-all provision is designed to "achieve equity and

justice."

Court !nv. Co. v. Perillo. 48 N.J. 334,341 (1966). The possibility that impropriety contributed to the judgment from which relief is

sought

is a

sufficient

"exceptional

circumstancej]."

For example,

in Manning

16

Engineering,. , ~

74 N.J. at 130, the Supreme Court affirmed the trial court's was entitled to relief of a

determination that the Hudson County Park Commission

judgment ordering it to pay the plaintiff, Manning Engineering, a sum owed pursuant to a contract The Court explained that because Manning Engineering's principal had

admitted to participation in a kickback scheme involving public contracts, there were

exceptional circumstances Manning Engineering. justifying relief from the judgment requiring payment to

Id. at 13031; see also Thompson v. City of Atlantic City. 190

N.J. 359,382-83 (2007) (invalidating settlement agreement entered into between Atlantic City and the mayor that was tainted by numerous conflicts of interest). With these standards in minn,
the follm,rms dloouo"ion

will

ut;wum;Lrdte

that

Defendants are entitled to relief from this COurt'S judgment due to both the presence of newly discovered evidence and exceptional circumstances. Rule 4:50-1 (b), (f). As noted

above, Defendants further rely on Rule 1:7-5 and Rule 4:42-2 for relief as well.

II.

THE SPECIAL MASTER'S BIAS AS AN "AFFORDABLE HOUSING ADVOCATE" AND EX PARTE REQUESTS FOR EVIDENCE SHOULD HAVE DISQUALIFIED HER FROM PARTICIPATING IN THE LmGATION

"[J]ustice must satisfy the appearance of justice." Offutt v. U.S., 348 U.S. I I , 14 (1954).

"1 am an advocate for affordable housing.

2012).

II

Elizabeth C. McKenzie, AICP, PP (Sept.

5,

A. Special Masters Are Subject to the Same Rules of Conduct as New Jersey State Court Judges. Special masters are vested with considerable often acritical component of the court's judgment. authority, and their findings are Consequently, special masters are See

held same rigorous rules of conduct that govern New Jersey State Court Judges.

11

Deland v. Twp. of Berkeley, 361 N.J. Super. 1, 12-13 (App. Div.), certii. denied, 178 N.J. 32 (2003). This rule comports with federal jurisprudence on the matter. See, e.g., In re Kempthome, 449 F.3d ]265, 1269 (D.C. Cir. 2006) ("[A] special master is subject to the same ethical restrictions as a judge when the special master serves as the 'functional equivalent' of a judge even though the special master is under a judge's 'control. "'); In re Joint Eastem & Southern Dist. Asbestos Litigation, 737 F. Supp. 735. 739 (E.n.N.Y. 1990) ("In general a special master . . . should be considered a judge for purposes of judicial ethics rules.") (citing Belfiore v. N.Y. Times Co., 826 F.2d 177, 185 (2d Cir. 1987) (same)). The Appellate Division cip.c1~inn hn1r1,..,o
in DolAnd ArOoo in th... VVUU;<A.t

vI" lVluWll

Laurel litigation. There, the special master, David was "the planner for developer-plaintiffs

Kinsey, disclosed

to the court that he

in other Mount Laurel cases, It and that he "held

financial interests both in those developers and in a developer who [stood] to benefit from the planner's recommendations as a special master." 361 N.J. Super. at 12-13. The

Appellate Division held that "in view of the sensitivity of Mount Laurel cases, the special masters who provide recommendations

to judges in those cases must be subject to

substantially the same conflict of interests as judges, including Rule 1:12-1(f)." Id. at 1213. Rule 1:12-1(f) provides that a judge "shaH be disqualified ... when there is any .

reason which

might preclude a fair and unbiased hearing and judgment, or which might

reasonaniy ieao counselor the parties to believe so." Consequently, any conflict that creates doubt as to the "impartiality of the judicial decision-making process" requires

a thorough

analysis.

Id. at 13; Magill v. Casel. 238

18

N.J. Super. 57,65 (App. Div. 1990) ("A challenged judge who bears the motion should painstakingly set forth the objective and subjective bases for the ultimate decision.").

It

is clear, therefore,

that Special Master McKenzie, like any special master

appointed pursuant to Mt. Laurel II, is subject to the same stringent professional conduct rules as the judges of this State. Moreover, as in Deland, a rigorous examination of the activities and statements of McKenzie is warranted, given the "sensitivity" of the present matter and the public interests implicated by its outcome.

B. McKenzie's Comments Reveal a Predisposition, Interest, Prejudice

and/or Bias Sufficient to Have Disqualified Her From Serving as Special Master in the Underlying Litigation
Pursuant to Rule 1:12-1(f) and Deland, a special master "shall be disqualified ... when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counselor the parties to believe so." See also Code of Judicial Conduct, Canon 3(CXl) (IIA judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. "); Rule 1:14 (adopting the Code of Judicial Conduct); N.J.S.A. 2A:15-49 ("No judge of any court shall sit on the trial . of any matter in controversy ... when he ... [1 h]as given his

opinion upon a matter in question in such action; or [2 i]s :interested in the event of such action."). Similarly, a judge may disqualified where she has "given an opinion upon a

matter in question in the action."

R. 1: 12- H d).

SllhSlWinn

(11) i e "dirootod

prilXLa.ril;r- At

statements made outside of the declarant's role as a judge."

State v. Marshall. 148 N.J.

89, 96, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L.Ed.2d 88 (1997). The critical importance of an independent and impartial judiciary is reflected in the low threshold a movant must meet to disqualify

a special

master on these grounds.

In

19

fact, amovant

need not "prove actual prejudice on

the

part" of the special master, as Panitch v. Panitch, 339 N.J.

"mere appearance of bias may require disqualification."

Super. 63, 67 CAppoDiv. 2001) (quoting Marshall, supra, 148 N.J. at 279). Ultimately, the inquiry is simply if"areasonably, the [special master's] impartiality?" fully informed person [would] have doubts about DeNike
V.

Cupo, 196 N.J. 502, 514 (2008)

("[J]udges must avoid acting in a biased way or in a manner that may be perceived

as

partial. To demand any less would invite questions about the impartiality of the judges system and thereby threaten the integrity of our judicial process.") (internal quotations, alteration and citations omitted). A sinzle. isnlated
C'.on'llneont th:d d~D1onO"tl;,,~ " "c...Vllt:; l1itJ.:S

against a party merits

a new trial. For example, in State v. Perez~ 356 N.J. Super. 527, 532 CAppoDiv. 2003), the judge when ordering that the defendant was entitled to an interpreter, stated: "These Spanish people coming in here and saying, I want an interpreter. Somewhere this has to stop." On appeal, the Appellate Division held that these comments reflected a clear bias which should have disqualified the trial judge. Id. at 533. Our courts have made clear

that an expression of bias towards a litigation or his position is unacceptable from judge.

In accordance with Deland, such bias is unacceptable from a special master

appointed to assist the court. The present McKenzie'S fin~s motion is not premised on Defendants' dissatisfaction with

or conclusions.

Instead, McKeru.ie's recent comments reveal a

predisposition, interest or bias that casts significant doubt as to the "impartiality" of her "decision-making recommendations process." Her task as Special Master was to provide her

to the Court and determine

whether the Site was suitable for the

20

development of a large apartment complex that would include a significant affordable housing component. Her own comments regarding

~erposition as an advocate

insured

that her decision was a pre-determined

one.

Therefore, as an "affordable housing advocate" who disdains both the legislative process and municipalities that do not chose to, in her own words, "comply and getO on with it", her bias is self-evident. Defendants in this case had the right to defend againsta

builder's remedy claim which is subject to a legitimate dispute over the suitability of development based on significantly detrimental planning and environmental issues. 2012

Clearly, McKenzie's bias, evidence by her April 6, 2012 e-mail deposition. nertainpA
tn

snd September 5,

the crux 0% tho n:1Qtk,r b\Jfv.lC;her,

ann wnnout doubt make her

much less likely to reject a plan for the development

of additional affordable housing,

even if that housing is being proposed on an unsuitable site. McKenzie's self-proclaimed status

as a public

housing advocate would certainly cause a ''reasonable, fully informed DeNike, 196 N.J. at

person [to] have doubts about the [special master's] impartiality."

514.
Issues that were merely procedurally objectionable reveal manifestations of this For example, during trial

bias when viewed through the lens of this new evidence.

McKenzie made several ex parte requests to Plaintiffs' counsel to supplement the record. At the conclusion of Dipple's August 3,2010 testimony, Defendants had established that

Dipple had failed to perform certain storm water capacity calculations for the Site. Defendants and their experts had maintained since the beginning of the litigation that the flooding issues were the primary reason for the Site not being suitable for the proposed development Recognizing that this was a serious deficiency

in

Plaintiffs'

proofs,

21

counsel for Plaintiffs explained that McKenzie made a specific, ex ~ Plaintiffs to submit a supplemental expert report. The assistance McKenzie
S

request to

gave

to Plaintiffs is not limited to this single occasion.

On August 17, 2010, McKenzie made an ex parte request to Plaintiffs that they: "provide her and the Court with calculations modeling the impact of existing conditions on the [Site as to] stormwater management, making the assumption that, in its present condition, the parking lot on the east side of the property functions as a stonnwater detention system. [McKenzie] has also requested that [plaintiffs' expert] provide a conceptual stormwater management plan showing how, if that assumption is made, the proposed project could comply with State stormwater regulations." annexed to the Morin Cert, as Exhibit "J").

[(Ltr. fro

Stephen H!':tiorfP-l',

I!'~q,> ~d

Aus. 17, 2010,

On ~(4USt 19,2010, Plamtiffs forwarded another supplemental report from Dipple. (Ex.
Fat 1.)

In sum,
faltered.

McKenzie repeatedly intervened to assist the Plaintiffs whenever they

Although the fact that she made these requests may not have been

se

improper, it evidences her admitted bias or predisposition in favor of Plaintiffs. Plaintiffs admitted that McKenzie specifically requested the evidence she deemed necessary for her to reach the conclusion that she intended to reach; t.bat the Site was suitable for the Plaintiffs' proposed development. These requests would be akin to a judge making an ex
addltinn~l tp~N"",t.'\D.)"
Or'

parte

request to a party that thev elicit

m1:roduoo

~dd11.iQua1

evidence during the pendency of trial.

Those actions would undoubtedly

suggest

to

S The impropriety of this g ~ contactwas litigated before this Court during trial. Defendants cite to this issue not to relitigate the issue, but only as evidence relevant to McKenzie's now-admitted bias in favor of Plaintiffs.

22

neutral observers that the judge was biased in favor of that party from whom the evidence was requested.

In the present matter, that result is no different. 'The requests made by McKenzie
to Plaintiffs to assist them in the trial in this matter are clear manifestations of her selfproclaimed bias as an "advocate" in favor of affordable housing. The fact that doubt

exists as to McKenzie's impartiality would have been sufficient for her disqualification, and Defendants need not prove actual prejudice. Pantich, 339 N.J. Super. at 67. Of course" the evidence of Mckenzie's bias did not surface until after judgment was entered in the present matter. Nevertheless, this newly discovered evidence justifies relief pursuant to the standards of Rule 4:501(b). and the three-part 83 N.J. at 445. First, McKenzie's
tP.c:.t

--Ouick Chek,

reports were critical to this Court's findings oflaw and

fact, and were adopted at length. through this Court's dispositive opinion on July 29,

2011. McKenzie's bias as an "affordable housing advocate" tainted the findings that she
made in her two reports. Consequently, had this eviderce surfaced earlier and McKenzie been disqualified it is almost certain that the outcome of the present matter would have been different. Second, the evidence of McKenzie's recently. Therefore,itwas unavailable at trial. bias was not divulged by her until very

Third, the trial dealt with the suitability of the Site for inclusionary development.
J<,.";;:1 ..
ft'Q

o "'ov.:onm.,'o

bi".:>, a.u.U

a.J.l]

l11ULlull

.rur ner oisquauncation, would not have

been cumulative evidence.

Thus,' the three factors in Quick Chek are present, and

Defendants are entitled to relief from the judgment in this matter pursuant to Rule 4:50-

1(b).

23

The evidence of McKenzie's

bias also constitutes exceptional

circumstances

justifying relief pursuant to Rule 4:50-1 (f).

As discussed, courts have granted public

entities relief from final judgments where there is evidence of impropriety that may have tainted the validity of the judgment. Due to the public interest implicated by Mount

Laurel,it is essential that the participants in the litigation are held to the highest standards of conduct. The failure to observe those standards sufficiently taints the underlying

judgment to justify relief in the present case.

A court-appointed Special Master who holds him or herself out as a "affordable

housing advocate" is not an "impartial expert" "Advocacy" is fur "one who

assists,
('/'\urt

pleads or prosecutes for another. ,,6 The Special Master's role is to assist thp

in

evaluating a complex factual and legal situation to determine whether a developer is entitled to "extraordinary" award of a builders remedy.

It has

been made abundantly

clear by our Supreme Court that in this role, the Special Master must be as objectiveas the judge she is assisting. complied with this mandate. Accordingly, it is respectfully submitted that, pursuant As Defendants have demonstrated, McKenzie has not

to

the high standards this Court should

required for impartiality of a Special Master in Mt Laurellitigatio~

hold that the findings of fact and conclusions of law as recommended by the Special Master and as adopted by this Court in its July 29, 2011 Opinion and December 9, 2011
Orcip.l'

should--

v<l<:'atod

And

thio

n:ua~r

b...

.,,,,Lwwcu

1\u

a new

mal wnn a new Special

Master that represents the true "impartial expert" that the Mt. Laurel II decision requires.

See Black's Law Dictionary (7th Ed. 1999).

24

CONCLUSION

For the foregoing reasons, Defendants respectfully request that this Court grant its Motion for Relief from the Court's December 9,2011 Order, vacate the July 29,2011 Opinion and December 9, 2011 Order and schedule this matter for a new trial witha

new

Special Master.
FLORIO PERRUCCI STEINHARDT & FADER, L.L.C. Attn or Derendants

Dated: November 20,2012

25

FLORIO PERRUCCI STEINHARDT & FADER, L.L.C. 218 Route 17North~ Suite 410 Rochelle Park, NJ 07662 (201) 843-5858 Attorneys for Defendants Township of Cranford and Cranford Planning Board

CRANFORD DEVELOPMENf ASSOCIATES, LLC, a limited liability Company organized under the laws of the State of New Jersey, et al., Plaintiffs,

SUPERIOR COURT OF NEW JERSEY LA W DMSION: UNION COUNTY

DOCKET NO. UNN-L-3759-08 (Mt. Laurel)

v.
TOWNSHIP OF CRANFORD, MA YOR AND COUNCIL OF TIffi TOWNSHIP : or CKANl'UKU and PLANNING BOARD: OF TIIE TOWNSHIP OF CRANFORD, Defendants,

Civil Adion

CERTIFICATION OF PHILIP J. MORIN m, ESQ.

I, PHILIP J. MORIN ill, offull age, hereby certify and say: 1.

I am a partner with the law firm of Florio Perrueci Steinhardt

&

Fader,

LLC, which represents Defendants

the Township of Cranford et also in the above-

captioned matter. As such, I am familiar with the facts herein.

2.

Attached as Exhibit "A" is this Court's March 20, 2009 Order in the

above-captioned matter.

3.

Attached as Exhibit "B" is the Report of the Special Master, Elizabeth C.

McKenzie, AICP~ PP dated January 4,2010. 4. Attached as Exhibit "C" is the Supplemental Report of the Special Master,

dated December 1, 2010.

5.

Attached asExhibit "D" are relevant portions of the Trial Transcript from

the above-captioned matter from the afternoon session of August 3,2010.

6.

Attached as Exhibit "E" are relevant portions of the Trial Transcript from

the above-captioned matter from August 9,2010.

7. this Court.
8.

Attached as Exhibit "F' is Defendants' August 30, 2010 Letter Brief to

Attached as Exhibit "0" is a copy of relevant portions of this Court'sJuly

29,2011 decision, dated July 29, 2011. 9. Attached as Exhibit "H" is this Court's December 9, 2011 Order in the

above-captioned matter.

10.

Attached as Exhibit "I" is a copy of an April 6, 2012 e-mail from

Elizabeth C. McKenzie to Kevin D. Walsh, Esq. 11. Attached as Exhibit "J" is a copy of an August 17 2010 letter from

Stephen Eisdorfer, Esq. to Carl Woodward, Esq. 12. Attached as Exhibit "K" is a copy of the deposition transcript of Elizabeth

C.McKenzie, AICP, PP in the matter entitled Millennium Properties LLC v. Township of Hazlet, Docket No. MON-L-1559-08, dated September 5,2012. I hereby certify that the foregoing statements are true and that I am aware that if any of the foregoing statements are willfully false, I am subject to punishment

Date: November 20, 2012