·:;l~SFFLORIOPERRUCCI.. j,_ STEINHARDT & FADER

Attorneys at Lawu.c

Philip J. Morin IIIPartner

Rochelle Park OfficeDirect Dial: (201) 373-8934

pmorin@fPstlawfirm.com

November 21,2012

VIA HAND DELIVERYDeputy Clerk. Law DivisionUnion County Courthouse2 Broad StreetElizabeth, Nl 07027

Re: Cranford Development Associates, LLC et als. v. Township ofCranford, 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 inthe above matter.

Enclosed please find an origln~' ~nrl "" .. £'opy oC a Hoti~v v£ lvlvtiUll wl111Certification 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.

PJMJdgCC: 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)

_-._ .....-------_. --------------------------------Rochelle Park Office Phillipsburg Office218Rt. 17N, Suite 300 235Frost AvenueRochelle Park, NJ 07662 Phillipsburg, NJ 08865(201) 843-5858 pJ'lone (908) 454-8300 phone(201) 843_587i<~k08876.DOC} (908) 454-5827 fax

Bethlehem Office60 W Broad St., Suite 102Bethlehem, PA 18018(610) 691-7900 phone(610) 691-0841 fax

Woodbury Office108 Euclid StreetWoodbury, NJ08096(856) 853-5530 phone(856) 853-5531 fax

New YorkOffre80 Wall StreetSuite 815New York, NY 10005(212) 792-9070 phone

www.fpsflawfirm.com

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

CRANFORD DEVELOPMENT · SUPERIOR COURT OF NEW JERSEY·AS SOCIATES, LLC, a limited liability LAW DIVISION: UNION COUNTYCompany organized under the laws ofthe State of New Jersey, et al.,

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

v.··TOWNSHlP OF CRANFORD, MAYOR

AND COUNCIL OF TIlE TOWNSHIPor \:,KANrUKJ) and PLANNING BOARD Civil ActionOF THE TOWNSHIP OF CRANFORD,

NOTICE OF MOTIONDefendants, ··

TO: Stephen Eisdorfer, Esq.HillWallack LLP202 Carnegie CenterPrinceton, NJ 08543Attorneys for Plaintiffs

Carl Woodward, Esq.Carella, Byrne, Cecchi, OIsteinBrody & Agnello, P.C.5 Becker Farm RoadRoseland, NJ 07068Co-Counsel for Defendants

Elizabeth C. McKenzie, AICP, P.PElizabeth C. McKenzie, P.P., P .A.9 Main StreetFlemington, NJ 08822Special 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 NOTICE that a conference has been scheduled in

this matter for Decenaer 17, 2012.

FLORIO, PERRUCCI, STEINHARDT & FADER LLCAuorneys n ts .

bated: November 21, 2012

2

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.HillWallack LLP202 Carnegie CenterPrinceton, NJ 08543Attorneys for Plaintiffs

Elizabeth C. McKenzie, AICP, P.P.Elizabeth C. McKenzie, P.P., P.A.9 Main StreetFlemington, NJ 08822Special 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 RoadRoseland, NJ 07068Co-Counsel for Defendants

Icertify that the statements mRtip. hy on .. <>ro iruo. I GDl. ~·..,cu" iliill. Lfany or me

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

Dated: November 21,2012

3

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

CRANFORD DEVELOPMENTAS SOCIA TES, LLC, a limited liabilityCompany organized under the laws ofthe State of New Jersey, et al.,

SUPERIOR COURT OF NEW JERSEYLAW DIVISION: UNION COUNTY

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

v.TOWNSHIP OF CRANFORD, MAYORAND COUNCIL OF TIlE TOWNSHIPOF CRANFORD anti PI.A NNThTG DO_..uu> Ch-iI h,-tiuB

OF TIIE TOWNSHIP OF CRANFORD,

Defendants,

.--------------------------

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

On the briefPhilip 1.Morin III, Esq.Seth R. Tipton, Esq.

{OOO76271.DOC 3}

PRELmnNARYSTATEMENTSpecial Masters appointed to assist in Mount Laurel cases prior to a final

determination of the award of a "builder's remedy" are vested with considerable

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"), Q lioo1'lOOO proC....,..,ivWllplanner, 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. Id. at 282.

Prior to a trial on the merits, McKenzie expressed her opinion that a builder's

remedy was appropriate. At trial, Defendants Township of Cranford and Cranford

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

2

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

were adopted in full by the Court and became the basis for the Court'sJuly29, 2011

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 andgetting on with it, and I see little value in having litigation hanging over atown's head for what could be years while the politicians in all threebranches of the State government argue about how to undermine planningand 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 inwhich 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 where a builder's remedy is sought

The Special Master's task during the trial of this matter was to objectively

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

3

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 as to the feasibility of

such a development 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

would have been grounds to disqualify her as the Special MH~P.T 1'11~\1M1t to tho Now

Jersey Court Rules and the Canons of Judicial Conduct.

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. Alternatively, Defendants seek relief under

Rules 1:7-5 and 4:42-2. As the foregoing will demonstrate, Defendants are entitled to

relief here because the Special Master's disqualification would have been virtually

unavoidable had her admission of bias been made prior to or during trial, and a different

result would likely have followed.

4

TABLE OF CONTENTS

PRELIMWARY STATEMENT 2

FACTUAL AND PROCEDURAL IDS TORY 6

LEGAL ARG{]]\ffiNT 11

I. STANDARD FOR RELIEF PURSUANT TO RULE 4:50-1. 15

II. THE SPECIAL MASTER'S BIAS AS AN "AFFORDABLE HOUSINGADVOCATE" AND EX PARTE REQUESTS FOR EVIDENCE SHOULDHAVE DISQUALIFIED HER FROM PARTICIPATING IN THELITIGATION 17

A. Special Masters Are Subject to the Same Rules of Conduct as New Jersey StateCourt Judges 17

B. McKenzie's Comments Reveal a Predisposition, Interest, Prejudice and/or BiasSufficient to Hove ni~'l"/'flifiDrl.YD" p,.o_ $.::rv;"6 W'> Byr;&.lul i"'f~"t:r In meUnderlying Litigation 19

CONCLUSION 25

5

FACTUAL AND PROCEDURAL mSTORY

Plaintiffs Cranford Development Associates, LLC, Samuel Hekemian, Peter

Hekemian, Jeffrey Hekemian, and Ann Krikorian, as trustee for Richard Hekemian

(collectively referred to as "Plaintiffs" or "CDA") filed suit against Defendants the

Township of Cranford and the Township of Cranford Planning Board (collectively

referred to as "Defendants") on November 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 Avenue in Cranford, New Jersey (the

"Site''). After consolidation with a previously filed case, Lehigh Acquisition Corp. v.

Twp. of Cranfonl No. UNN-L-0140-08.1 this Cllllrt grAnt..d 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

special master to "oversee further proceedings" in the matter. (Thid.) McKenzie's first

l'o;,pod \'Va;) i~~uroon 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. (Report of the Special Master, Jan. 4, 2010,

IThis matter has since settled.

6

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 a "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

that "flood hazard area permits could be obtained [from the New Jersey nP.Jl$lrtmp.nt of

Environmental Protection] for th[e] Birchwood Avenue" site. (Cranford Dev. Assocs v.

Cranford. UNN-L-3759-08, trial transcript, afternoon session, dated August 3, 2010,

61:21-25,relevant portions of which are annexed to the Morin Cert. as Exhibit ''D'')

Despite this opinion, Dipple conceded on cross-examination that he had not produced

"any calculations of [the] amount of flood compensation in the flood fringe area," or the

locations of "compensation areas." (Id. at 62:1-9.) Infact, Dipple had not submitted any

documentation concerning the "compensation areas," and had not "studied it thoroughly."

M at 62:5-12.) Further, Dipple had insisted on using an incorrect standard on

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

7

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 in her report, Dipple 's testimony on this point was a

significant deficiency in Plaintiffs' case. Consequently, McKenzie immediately

expressed her "dissatisfaction with [Dipple's] original testimony ... on [the flooding]

issue." (Ex. C at 6.) 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. (ThillJ In response,

the "plaintiff belatedlv submitted ~(Mltil\n~l inf01'U14tion" on AU8UO)l 6, 2010, "ana

testimony regarding the storm water management issues," ®MJ

Although NcKenzie reported that she had 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.

(Cranford Dev. Assocs v. Cranford, UNN-L-3759-08, trial transcript, dated August 9,

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

2 Dipple had originally opined that an "FHA permit was not required." (Defs.' August 30, 2010 Ltr. Br. at3,annexed to the Morin Cert. as Exhibit "P').

8

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 ad. at 15:9-

18.) That August 6, 2010 supplemental 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." (Cranford Dev. Assocs. v. Town of Cranford,

UNN-L-3759-08, 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

Order. (Annexed to the Morin Cert. as PxhihH ''J.T''). uoy-o...mo'o prc;,-tdc1 !1uillug~,mar

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.

9

C. E-mails Between McKenzie and Counsel Regarding Her Self-DeemedRole 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 tlYrdround and can address the third round RDP+. We may notyet know what the reg[ulations] are going to be (whoknows ifwe will ever know that?), but inmy opinion a birdin the hand is worth ending the litigation and getting onwith it. Your perspective is more long range, but 1 thinkth....'" i., a. 1u, ,u ne sara JOTtowns getting the blessing to goahead and comply ASAP. Any deficiency that isuncovered as a result of the eventual adoption of thirdround reg [ulations] can be addressed in the fourth round.

[(April 6, 2012 email from McKenzie to Walsh, annexed tothe 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 liketo see towns comply and getting on with it, and 1 see littlevalue in baving litigation hanging over a town's head forwhat could be years while the politicians in all threebranches of the State government argue about how toundermine 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 theprovision of affordable housing where no one else is

10

stepping up to the plate, but I do not see that the approach Ihave recommended in Cranford will in any way contributeto confusion or destruction of precedent and predictability.I have already pointed out that if there is a deficiency inCranford's third round approach, it can be made up in thefourth round - this is an approach COAH itself took whensites in a certified plan where acquired as open space ordeveloped at less than anticipated density.

[Q!W!J]

D. McKenzie's Sworn Testimony RegardiD2 Her Role as a SpecialMaster 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.eDZlehas embraced her role as an "affordable

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 determinationwas 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 allegedconflict 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 specialmaster 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 preferablythrough a settlement because that is the fastest way to produce the affordable lroltlingwhich is the objective of the case. So, you know, my clients ultimately are low andmoderate income households ~nti T morle with the porti"., to try tu cwwcvt: a sonmon matwill end the litigation and produce affordable housing ~nd then my job, assuming thatthere is a settlement, is then to assist the municipality in bringing their ordinances andthey're [sic] housim elements into conformity with the COAH regulations which thecourt[ s] tend to use to guide them in deciding whether a town is in compliance with itsobligations or not

Occasionally where there is not able to be a settlement or resolution, an amicableresolution of the case I will have to advise the judge whether it's a difference of opinionbetween the parties and I will have to advise the judge as to my recommendation. Thejudge does what a judge will do. Imake recommendations in those cases where there isnot a settlement.

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

A: Yes.

Q: 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 orwhether the town wants not to do it, then you could say Ibecome an advocate against oneor the other in those situations, but, in general, Iam an advocate for affordable housingand inmy role as master I try to work with both parties to achieve the solution thatworks.

See Sept. 5,2012 Deposition Transcript of Elizabeth McKenzie, 19:1 to 20:17 (attachedhereto as Exhibit K).

12

Q: What is the difference [between court appointed mediators and court appointedmasters]?

A: Well, as a mediator you're just charged with attempting to settle a case. As amaster the role is different and your role includes advising the judge as to the outcome.See Exhibit 1(, rr, 25:22 to26:1.

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 objectivemaster 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] 7 -2 At or bo£orco 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. Therefore, Defendants make

this Motion nursuant tn R111p. .4:50-1, ~d, in tho a.ltvn~t.iv~, l'w:suwn to Kwes 1:"/-5

andlor 4:42-1.

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

Rule 4:50-1 is a procedural rule 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." Quick Chek Food Stores v. Twp. of

Springfield, 83 N.J. 438, 445 (1980). A motion brought pursuant to this rule does not

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

DEG, the movant sought relief from a judgment by arguing that its expert rt~rt was

newly discovered evidence. Ibid. The COlin TPjpr.tpA tl-..C' -eua>-ont, notW.£, ~, tlu;;

movant had the 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 pursuant to Rule

4:50-1(f), 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

determination that the Hudson County Park Commission was entitled to relief of a

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 justifying relief from the judgment requiring payment to

Manning Engineering. Id. at 130·31; 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 HOUSINGADVOCATE" AND EX PARTE REQUESTS FOR EVIDENCE SHOULDHAVE DISQUALIFIED HER FROM PARTICIPATING IN THELmGATION

"[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. II Elizabeth C. McKenzie, AICP, PP (Sept. 5,

2012).

A. Special Masters Are Subject to the Same Rules of Conduct as NewJersey State Court Judges.

Special masters are vested with considerable authority, and their findings are

often acritical component of the court's judgment. Consequently, special masters are

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

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 Kinsey, disclosed to the court that he

was "the planner for developer-plaintiffs in other Mount Laurel cases, It and that he "held

financial interests both in those developers and ina 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 12-

13. 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, Prejudiceand/or Bias Sufficient to Have Disqualified Her From Serving asSpecial 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-Hd). SllhSlWinn (11) ie "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

"mere appearance of bias may require disqualification." Panitch v. Panitch, 339 N.J.

Super. 63, 67 CAppoDiv. 2001) (quoting Marshall, supra, 148 N.J. at 279). Ultimately,

the inquiry is simply if"areasonably, fully informed person [would] have doubts about

the [special master's] impartiality?" 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, Iwant 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 a

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

appointed to assist the court.

The present motion is not premised on Defendants' dissatisfaction with

McKenzie'S fin~s 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 process." Her task as Special Master was to provide her

recommendations 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.

Clearly, McKenzie's bias, evidence by her April 6, 2012 e-mail snd September 5, 2012

deposition. nertainpA tn the crux 0% tho n:1Qtk,rb\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

person [to] have doubts about the [special master's] impartiality." DeNike, 196 N.J. at

514.

Issues that were merely procedurally objectionable reveal manifestations of this

bias when viewed through the lens of this new evidence. For example, during trial

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 ~ request to

Plaintiffs to submit asupplemental expert report. S

The assistance McKenzie 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 theimpact of existing conditions on the [Site as to] stormwatermanagement, making the assumption that, in its presentcondition, the parking lot on the east side of the propertyfunctions as a stonnwater detention system. [McKenzie]has also requested that [plaintiffs' expert] provide aconceptual stormwater management plan showing how, ifthat assumption is made, the proposed project couldcomply with State stormwater regulations."

[(Ltr. fro Stephen H!':tiorfP-l', I!'~q,> ~d Aus. 17, 2010,annexed to the Morin Cert,asExhibit "J").

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

Fat 1.)

Insum, McKenzie repeatedly intervened to assist the Plaintiffs whenever they

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

parte request to a party that thev elicit addltinn~l tp~N"",t.'\D.)" Or' 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 tothis issue not to relitigate the issue, but only as evidence relevant to McKenzie's now-admitted bias in favorof 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 self-

proclaimed 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 4:50·1(b). and the three-part tP.c:.t --Ouick Chek,

83 N.J. at 445. First, McKenzie's 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 bias was not divulged by her until very

recently. Therefore,itwas unavailable at trial.

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,

pleads or prosecutes for another. ,,6 The Special Master's role is to assist thp ('/'\urt 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. As Defendants have demonstrated, McKenzie has not

complied with this mandate.

Accordingly, it is respectfully submitted that, pursuant to the high standards

required for impartiality of a Special Master in Mt Laurellitigatio~ this Court should

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.

6 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 410Rochelle Park, NJ 07662(201) 843-5858Attorneys for DefendantsTownship of Cranford and Cranford Planning Board

CRANFORD DEVELOPMENfASSOCIATES, LLC, a limited liabilityCompany organized under the laws ofthe State of New Jersey, et al.,

SUPERIOR COURT OF NEW JERSEYLAW DMSION: UNION COUNTY

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

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

Civil Adion

Defendants, CERTIFICATION OF PHILIP J.MORIN m, ESQ.

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

1. Iam 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-captionedmatter from August 9,2010.

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

this Court.

8. 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

2