2014 02 24 cranford appeal brief

Jeffrey R. Surenian, Esq.Jeffrey R. Surenian and Associates, LLCBrielle Galleria707 Union Avenue, Suite 301Brielle, New Jersey 08730Telephone 732-612-3100Attorneys for Appellants/Cross Respondents, Tp. of Cranford andthe Planning Board of the Tp. of CranfordBy: Jeffrey R. Surenian (Attorney ID: 024231983)

Michael A. Jedziniak (Attorney ID: 012832001)

CRANFORD DEVELOPMENTASSOCIATES, LLC,

Plaintiff,

v.

TOWNSHIP OF CRANFORD AND THEPLANNING BOARD OF THE TOWNSHIPOF CRANFORD,

Defendants

SUPERIOR COURT OF NEW JERSEYAPPELLATE DIVISION

Docket No.: A-005822-12T2

Civil Action

Sat Below:Honorable Lisa F. Chrystal,

J.S.C.

BRIEF AND APPENDIX OF APPELLANTS/CROSS RESPONDENTS, TOWNSHIP OFCRANFORD AND THE PLANNING BOARD OF THE TOWNSHIP OF CRANFORD

Jeffrey R. Surenian And AssociatesA Limited Liability Company707 Union Avenue, Suite 301Brielle NJ 08730(732) 612-3100Attorneys for Appellant

Jeffrey R. Surenian, Esq.Of Counsel and on the Brief

Michael A. Jedziniak, Esq.On the Brief

TABLE OF CONTENTS

TABLE OF TRANSCRIPTS

TABLE OF AUTHORITIES

INTRODUCTORY STATEMENT

PROCEDURAL HISTORY

STATEMENT OF FACTS

PART 1

THE SERIES OF EVENTS CULMINATING IN CDA'SBUILDER'S REMEDY SUIT CLEARLY REVEALS THAT CDAFAILED TO MAKE A GOOD FAITH EFFORT TO OBTAINRELIEF WITHOUT LITIGATION AND DID NOT CAUSECRANFORD TO COMPLY WITH ITS MOUNT LAURELOBLIGATIONS

Cranford Vo~untari~y Sought To Achieve Round3 Comp~iance Before CDA Asked The TownshipTo Rezone The Site For Affordab~e Housing

Recognizing That The Township Was Poised ToAdopt A Round 3 Afordab~e Housing P~an, CDA(A) Proposed A 419-Unit Mount Laure~Deve~opment On A Severe~y Constrained Sitel(B) Demanded Cranford To Make A DecisionWithin Two Weeks; (C) Rushed Through AnAbbreviated Period Of Pretextua~"Negotiations;" And (D) Fi~ed Suit BeforeCranford Comp~eted Its Eva~uation Of CDA'sProposa~

Severe ConstraintsProperty

P~agued the CDA

CDA's "Proposed Project" Constituted AnExtraordinari~y Intensive Use of AnExtraordinari~y Constrained Site

The September 24, 2008 Letter

i-iii

iv-v

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9

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12

16

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18

In the Afternoon of October 7, 2008, CDAInfor.med Its P~anning Expert That It"Expected" To Eii.LeIts Biui.Ldea:'s RemedyComp~aint On November 11, 2008, and"Maybe Sooner"

The October 7, 2008 Council Meeting

The October 21, 2008 Council Meeting

The November 11, 2008 Meeting (The NightBefore CDA Fi~ed Suit)

As CDA's Attorney Prom2sed, CDA Abrupt~yTer.minated "Pre-Suit Negotiations" OnNovember 12, 2008 and Fi~ed ItsBui~der's Remedy Lawsuit

As Mayor Puhak Prom2sed, Unaware ThatCDA Had Fi~ed Suit, He Asked theP~anning Board to Review CDA's Proposa~Expeditiously

Despite The Abrupt Fi~ing of the CDAAction, The Township and P~anningComp~eted The Year-Long Process AndAdopted and Endorsed Its Third RoundComp~iance P~an

PART 2

THE CDA SITE SUFFERS FROM SEVERE CONSTRAINTS, WHICHLED THE SPECIAL MASTER AND THE TRIAL COURT TOCONCLUDE THAT THE SITE IS NOT SUITABLE FOR CDA'S419-UNIT PROPOSED PROJECT

Severe and Regu~ar Flooding

Significant Freshwater Wet~ands Issues

The Site Lacks Sufficient Sanita~Sewer Capacity

Additiona~ Constraints

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31

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The Above Facts Demonstrate (A) TheReasonab~eness of the Township's DueDi~igence Before Responding To CDA rs DemandFor A Quick Response To Its Rezoning Requestand (B) The Site Is Not Suitab~e For theProposed Project

PART 3

THE COURT SUA SPONTE SEIZED JURISDICTION FROM THEPLANNING BOARD AND APPOINTED A "SPECIAL HEARINGEXAMINER" WHO CONDUCTED PUBLIC HEARINGS ON THECDA SITE PLAN APPLICATION OUTSIDE THE NORMAL TIMEAND LOCATION OF REGULAR PLANNING BOARD HEARINGS

LEGAL ARGUMENT

STANDARD OF REVIEW

POINT I

THE TRIAL COURT ERRED IN RULING THAT CDASATISFIED ITS BURDEN TO MAKE A GOOD FAITH ATTEMPTTO OBTAIN RELIEF WITHOUT LITIGATION BEFORE FILINGSUIT

Introduction

A. A Deve~oper Must Negotiate In Good FaithBefore Fi~ing A Btui.Ldea:'s Remedy Suit AndCan On~y Abso~ve Itse~f Of This Ob~igationBy Demonstrating That FUrther Good FaithNegotiations Wou~d Have Been FUti~e

B. The Tria~ Court Shou~d Have Disqua~ifiedCDA From Securing A Bui~der's Remedy Because(1) CDA Did Not Negotiate In Good FaithBefore Fi~ing Suit, And (2) CDA Did NotProve That FUrther Good Faith Negotia tionsWou~d Have Been "FUti~e"

1. CDA Did Not Make A Good FaithObtain Re~ief WithoutTo

Litigation"

2. CDA Did Not Demonstrate ThatFUrther "Good Faith Negotiations" Wou~dHave Been "FUti~e"

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C. The Tria~ Court Erred Not On~y ByFai~ing To Acknow~edge The Signiricance OfThe Facts Discussed Above, But AJso byBasing Her Decision On Irre~evant Facts andLega~ Standards

POINT II

THE TRIAL COURT ERRED IN RULING THAT CDASATISFIED ITS BURDEN ON THE FIRST ELEMENT OF THEBUILDER'S REMEDY TEST BECAUSE CDA WAS NOT THE"CATALYST FOR CHANGE

Introduction

A. The First E~ement or the Bui~der'sRemedy Test Is Two-Pronged, and Requires aP~aintirr To Demonstrate (1) That TheMunicipa~ity Had Not Satisfied Its "FairShare" or Arrordab~e Housing On The Date OrSuit; and (2) That It Was the "Cata~yst ForChange"

B. The Record P~ain~y Revea~s That CDA WasNot The "Cata~yst For Change"

C. The Tria~ Court Erroneous~y Conal.uded.that CDAWas The "Cata~yst ror Change"

POINT III

THE TRIAL COURT ERRED BY GRANTING A BUILDER'SREMEDY AFTER THE TOWNSHIP ESTABLISHED THEUNSUITABILITY OF THE SUBJECT PROPERTY FOR THE419-UNIT PROJECT CDA PROPOSED AN ERROR THETRIAL COURT COMPOUNDED BY AWARDING A REMEDY FOR A360-UNIT PROJECT THAT CDA NEVER PROPOSED, NEVERSUBJECTED TO DISCOVERY, AND NEVER PRESENTED ATTRIAL

A. The Supreme Court in Mount Laure~ IIRequired Deve~opers to Present a "ProposedProject" To Faci~itate A Determination orInter AJia Whether The Proposa~ Is "C~ear~yContrary To Sound Land Use P~anning"

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B. CDAProposed A 419-Unit Project In ItsComplaint, Through Discovery And At Trial;And Demanded The Right To Develop TheProposed Project If The Township Failed ToCarry Its Burden On Site Suitability

C. At Trial, The Township Convinced TheSpecial Master To Reverse Her PreviousConclusion That The Site Was Indeed SuitableFor CDA's 419-Unit Proposed Project

D. Although The Township Established ThatCDA's 419-Uni t: Proposed Project Was ClearlyContrary To Sound Land Use Planning, TheTrial Court Improperly Failed To Deny ABuilder's Remedy

E. The Trial Court Compounded Its Error BySua Sponte Granting A Builder's Remedy For A360-Unit Project That CDA Never Proposed,Subjected to Discovery, Or Defended At Trial

POINT IV

THE TRIAL COURT COMMITTED ERRONEOUSLY STRIPPEDTHE PLANNING BOARD OF ITS JURISDICTION AND SUASPONTEAPPOINTED A "SPECIAL HEARING EXAMINER" TOUSURP THE PLANNING BOARD'S STATUTORY ROLE TOPROCESS CDA'S DEVELOPMENT APPLICATION

A. The Trial Court Without Justification OrEven Making Any Findings Improperly StrippedThe Cranford Planning Board Of ItsJurisdiction To Process CDA's DevelopmentApplication

B. The Trial Court Violated Its Obligationto Utilize The "Experience and Expertise OfThe Planning Board

C. Seizing Jurisdiction Was Prejudicial ToThe Planning Board, the Residents ofCranford Township, and Any Other InterestedParties

D. Illegal Seizure of Jurisdiction From ThePlanning Board Tain ted CDA's Si te PlanHearing And, A Fortiori, Rendered Void ItsFinal Development Approval

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POINT V

THE TRIAL COURT ERRED IN FAILING TO FIND THATPLAINTIFFS' PUBLIC NOTICE RELATING TO THE SITEPLAN HEARINGS WAS LEGALLY DEFICIENT, RENDERINGTHE SITE PLAN PROCEEDINGS VOID

CONCLUSION

EXHIBIT A: ORDER GRANTING APPELLANTS LEAVE TOFILE OVERLENGTH BRIEF, DATED FEBRUARY 14, 2014

EXHIBIT B: PROCEDURAL MEMO OF THE SPECIALMASTER, DATED MAY 15, 2012

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90

TABLE OF TRANSCRIPTS

For ease of reference, Appellants herein provide a list of thevarious transcripts involved in the instant appeal and therelevant citing designation.

CITING DESIGNATION DESCRIPTION OF TRANSCRIPT

IT October 7, 2008 Transcript ofCranford Township Committee Meeting

October 21, 2008 Transcript ofCranford Township Committee Meeting

November 11, 2008 Transcript ofCranford Township Committee Meeting

August 2, 2010 - Trial Transcript











2T

3T

4T

5T

6T

7T

8T

9T

lOT

11T

12T

13T

14T

15T September 27, 2010 - Trial Transcript

16T September 28, 2010(Morning Session)

17T September 28, 2010(Afternoon Session)

Trial Transcript

Trial Transcript

18T September 29, 2010 - Trial Transcript

19T July 29, 2011Trial Decision

20T JanuaryRulings

26,on

2012 Transcript ofCranford's Motion for

Reconsideration

21T July 25, 2012Management Conference

22T August 8, 2012Site Plan HearingsHearing Examiner"Courthouse




Transcript of Post-

Transcript of Case

TranscriptBefore theat Union




of COAl s"Special

County

of COAl s"Special

County

of COAls"Special

County

of COA IS"Special

County

26T August 23, 2012 Transcript of COA ISSite Plan Hearings Before the "Special

11

Hearing Examiner"Courthouse

at Union County

27T April 1, 2010 Transcript of OralArgument on Four Motions before Hon.Lisa Chrystal, J.S.C.

28T January 20, 2012 Transcript of OralArgument onReconsideration

Cranford'sbefore

MotionHon.

forLisa

Chrystal, J.S.C.

29T April 22, 2013 Transcript of theTownship's Mount Laurel Compliance-----------------Hearing

III

TABLE OF AUTHORITIES

CASES PAGE

Allan-Deane Corp. v. Bedminster Tp.,205 N.J.Super. 87 (Law Div. 1985) 64-5

Balsamides v. Protameen Chern., Inc.,160 N.J. 352 (1999) 42

Brower Dev. v. Planning Bd.,255 N.J.Super. 262 (App. Div. 1992) 89

Hills Development Co. v. Bernards Tp.,103 N.J. 1 (1986) 61

In re Adoption of N.J.A.C. 5:94 and5:95, 390 N.J.Super. 1 (App. Div. 2007) 13

J.W.Field Co., Inc. v. Tp. of Franklin,204 N.J.Super. 445 (Law Div. 1985) 46, 47, 49, 78

Joseph Kushner Hebrew Acad., Inc. v.Tp. of Livingston, 2013 WL 4607526(App. Div. 2013) 47

K. Hovnanian Shore Acquis. v. Tp. Of Berkeley2003 WL 23206281 (App. Div. 2003) 61

Kramer v. Bd. of Adjustment, Sea Girt,45 N.J. 268 (1965) 81-2

Morris Co. Fair Housing Council v. Tp.of Boonton, 209 N.J. Super. 393(Law Div. 1985) 61, 79, 80, 81

Mount Olive Complex v. Tp. of Mount Olive,174 N.J. 359 (2002) 60

Mount Olive Complex v. Tp. of Mount Olive,340 N.J.Super. 511 (App. Div. 2001) 60

Mount Olive Complex v. Tp. of Mount Olive,356 N.J.Super. 500 (App. Div. 2003) 60

IV

Oceanport Holding, L.L.C. v. Bor. OfOceanport, 396 N.J.Super. 622 (App. Div. 2007) .. 45, 47

Perlmart v. Lacey Twp. Planning Bd.,295 N.J.Super. 234 (App. Div. 1996) 88

Pond Run Watershed v. Hamilton Tp.,397 N.J.Super. 335 (App. Div. 2008) 88

Rova Farms Resort, Inc. v. Investors Ins.Co. of Am., 65 N.J. 474 (1974) 42

So. Burlington County N.A.A.C.P. v.Tp. of Mount Laurel, 67 N.J. 151 (1975) 11

So. Burlington County N.A.A.C.P. v.Tp. of Mount Laurel, 92 N.J. 158 (1983) passim

Toll Brothers v. Tp. of W. Windsor,173 N.J. 502 (2002) passim

Van Dalen v. Washington Tp.,120 N.J. 234 (1990) 62

Ward v. Scott,16 N.J. 16 (1954} 82

STATUTES

N.J.S.A. 40:55D-11 88

N.J.S.A. 40:55D-28 53

N.J.S.A. 40:55D-64 53

REGULATIONS

N.J.A.C. 5:96-16.2 14

v

INTRODUCTORY STATEMENT

This brief demonstrates that, although well-intentioned,

the trial court did not understand four fundamental principles

in Mount Laurel jurisprudence or the application of the facts to

these principles. Consequently, the trial court (1) erroneously

granted a builder's remedy to the plaintiff and (2) improperly

stripped the Cranford Planning Board of jurisdiction to hear

plaintiff's ensuing development application.

First, our laws require a developer to make a good fai th

attempt to obtain relief without litigation before filing a

builder's remedy suit, unless it can prove that additional good

faith negotiations would have been futile. The facts here

clearly show that plaintiff's pre-suit efforts were plainly

pretextual and not made in good faith, and that, even if

plaintiff had negotiated in good faith, plaintiff did not prove

that additional goods faith negotiations would have been futile.

Nevertheless, the trial court erroneously ruled that plaintiff

satisfied its burden on both issues. This is the first example

of reversible error.

Second, our laws require a plaintiff seeking a builder's

remedy to demonstrate that it was the "catalyst for change" that

caused the municipality to comply with its Mount Laurel----------------obligations. When plaintiff first asked Cranford to rezone its

site, the Township was already well along the way to achieving

1

compliance and plaintiff feared that Cranford would complete the

compliance process before it filed suit. Therefore, plaintiff

was no "catalyst for changeN and indeed its lawsuit was

completely unnecessary to cause Cranford to comply. The trial

court, however, applied the wrong standard and concluded that

plaintiff was a "catalyst for change.N

example of reversible error.

Third, the third element of the builder's remedy test

This is the second

requires the municipality to prove that the plaintiff's

"proposed projectN lS clearly contrary to sound land use

planning and environmental principles. Cranford clearly

satisfied this burden as demonstrated by the fact that the trial

court refused to award plaintiff a builder's remedy for the 419-

unit project it proposed. However, instead of denying the

builder's remedy as required, the trial court sua sponte awarded

a remedy for a less dense 360-unit project a proj ect that

plaintiff never proposed, never presented in discovery, and

never defended at trial. This is the third example of

reversible error.

Finally, assuming arguendo that plaintiff was indeed

enti t.Le d to a builder's remedy despite the violations of Mount

Laurel law described above, our laws only permit trial courts to

infringe upon a planning board's jurisdiction to hear

development applications of projects included In the

2

municipality's plan in the most egregious circumstances. In this

case, the trial court improperly stripped the Cranford Planning

Board of its jurisdiction by replacing it with a "Special

Hearing Examiner," without regard to the applicable law and

without any finding that the Cranford Board had acted or

intended to act so egregiously as to warrant stripping it of its

jurisdiction. Furthermore, after publishing legally insufficient

notice, the Examiner conducted hearings on plaintiff's

development application in Union County Courthouse during work

hours, instead of the evenings at Town Hall, thereby suppressing

public participation in the hearings on the application. This

error tainted plaintiff's site plan hearing and requires

judicial invalidation of its development approvals and a re-

hearing properly before the Planning Board.

For all these reasons as well as additional ones presented

below, this Court should reverse the trial court's decision and

permit the Township and Planning Board to fulfill their

responsibilities to comply in the fashion set forth in the 2008

affordable housing plan, as will be amended to address the

Township's responsibilities under any new laws.

3

PROCEDURAL HISTORyl

On January 16, 2008, after engaging In years of pre-suit

negotiations with the Township, plaintiff Lehigh Acquisition Corp.

("Lehigh"), filed the first Mount Laurel builder's remedy lawsuit

against Cranford ("Lehigh Action") . Aa1-10.2 In the wake of the

Lehigh Action, Cranford drafted a comprehensive Affordable

Housing Plan seeking to comply with the Round 3 regulations of

the New Jersey Council on Affordable Housing ("COAH").

e.g. Aa1277-78 (workshop meeting minutes, dated August 11, 2008,

discussing the status of the Township's draft Affordable Housing

Plan and a schedule to develop and adopt same).

On November 12, 2008, roughly ten months after filing of the

Lehigh Action, plaintiff CDA filed a second builder's remedy

law suit against Cranford ("CDA Action"). This action is the

subject of this appeal. Aall-21.

On December 3, 2008, the Cranford Planning Board adopted an

Affordable Housing Plan to comport with COAH's second set of Round

3 regulations, which plan represented the culmination of a year-

This section provides a recitation of the most significantprocedural events in this complex litigation. Due to theinextricably-intertwined nature of the procedural and factualaspects of this appeal, additional procedural events are alsoincluded in the Statement of Facts, infra.

"Aa" refers to the Appellant's Appendix. The varioustranscripts in this case are identified in the Table of Contentsherein, and shall be cited, for instance, as "4T8: 3-4" meaningthe fourth transcript, page 8, lines 3 to 4. A Table ofContents for the transcripts are provided above.

4

long planning process. Aa247-327. The Township Committee endorsed

the plan on December 9, 2008. Aa330-31. This plan did not

include the CDA site as a component to satisfy its affordable

housing obligations.

On March 20, 2009, in responses to motions, the trial court

entered an Order invalidating the Township's Zoning Ordinance and

appointing a Special Master, Elizabeth C. McKenzie, P.P. Aa3653-

4. Cranford does not dispute this order. On April 3, 2009, the

trial court entered an order which, inter alia, extended the

Master's duties to the CDA Action. Aa3657-60. On June 30, 2009,

the trial court entered an order consolidating the Lehigh and CDA

Actions on the narrow issue of whether the Township has satisfied

it Mount Laurel obligations. Aa3661-63.

On June 23, 2010, the trial court entered an order granting

CDA and Lehigh's separate motions to strike the Township's "pre-

suit negotiation" defense. Aa3673-78; see also Aa3968-93 (written

opinion) Cranford herein appeals this order vis-a-vis CDA.

On July 29 and 30, 2010, Cranford filed an emergent motion

with the Appellate Division seeking interlocutory review of the

June 23, 2010 order and a motion on short notice with the trial

court for a stay of the CDA trial pending appeal. Both motions

were denied. Aa3687-89. On August 2, 2010, trial began in the

5

2014 02 24 cranford appeal brief

Documents

cda site

nightbefore cda fi

abrupt fi

cda abrupt

surenian attorney id

cranford developmentassociates

townshipof cranford

township of cranfordjeffrey