objections by cda (hekemian) to cranford's objections to site plan hearing findings

7/29/2019 Objections By CDA (Hekemian) to Cranford's Objections to Site Plan Hearing Findings

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202 CARNEGIE CENTER, CN 5226, PRINCETON NJ 08540-5226TELEPHONE: (609) 924 0808 FAX: (609) 452-1882

WWW.HILLWALLACK.COM

STEPHEN EISDORFER, ESQ.PARTNER, LAND USE LITIGATION AND APPLICATIONS

DIRECTDIAL: (609) [email protected]

January 25, 2013

Hon. Lisa F. ChrystalSuperior Court of New Jersey

Union County Court House11th Floor2 Broad St.

Elizabeth, New Jersey 07207

Re: LEHIGH ACQUISITION CORP. v. TOWNSHIP OF

CRANFORD et al,DKT NO. UNN-L-0140-08

CRANFORD DEVELOPMENT ASSOCIATES, LLC et alv. TOWNSHIP OF CRANFORD et al,

DKT NO. UNN-L-003759-08(consolidated)

Dear Judge Chrystal:

Plaintiffs Cranford Development Associates LLC et al (hereinafter

in the above entitled consolidated matter submit this

response to the objections to the report of Special Hearing Officer Douglas

Wolfson filed by defendants Township of Cranford and the Planning Board of

the Township of Cranford . For the reasons

set forth below, the Court should determine that those objections provide no

basis for rejecting the findings and recommendations of the Special Hearing


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Officer. Rather, the Court should adopt the findings and recommendations of

the Special Hearing Officer in their entirety with the clarifications suggested by

CDA in its letter of November 30, 2012, which is attached to this Memorandum

as Appendix 1.

POINT I

THE SPECIAL HEARING OFFICER AND THIS COURT AREREQUIRED TO REVIEW THE APPLICATION UNDER BOTH THE

STANDARDS ESTABLISHED BY THE MUNICIPAL LAND USELAW AND THE SPECIAL STANDARDS GOVERNINGINCLUSIONARY DEVELOPMENTS AUTHORIZED BY COURT-

granting a site- of the issues before the Special

Hearing Officer were governed by two complementary standards those that

generally govern applications for site plan approval under the Municipal Land

Use Law and those that specifically govern inclusionary developments designed

to satisfy municipal fair share housing obligations.

A. STANDARDS UNDER THE MLUL

Like a planning board, the Special Hearing Officer was required to

recommend approval of the application unless it violates specific standards

contained in the land

development ordinance, as amended by Cranford Ordinance No. 2012-11. As

construed by the Supreme Court in Pizzo Mantin Group v. Randolph, 137 N.J.

216 (1994), the Municipal Land Use Law bars the Planning Board from denying

an application on any other grounds. In particular, the Special Hearing Officer


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could not recommend disapproval of the application based solely upon the

general planning considerations, the general purposes of zoning, or general

considerations of the public welfare, but only based upon noncompliance with

the specific standards enumerated in the

ordinances. Id. at 228-230.

The courts have consistently applied the standards enunciated in Pizzo

Mantin. Green Meadows at Montville, L.L.C. v. Planning Board of Montville, 329

N.J. Super. 12, 13 (App. Div. 2000); W.L. Goodfellows and Co. of Turnersville,

Inc. v. Washington Township Planning Board, 345 N.J.Super. 109 (App. Div.

2001); Allocco and Luccarelli v. Holland, 299 N.J. Super 491, 497 (Law Div.

1997).

B.CONSTITUTIONAL FAIR SHARE HOUSINGOBLIGATIONS

The Supreme Court has held that the duties imposed municipalities by

the New Jersey Constitutional have both a "negative" and an "affirmative"

component. Southern Burlington County NAACP v. Mt. Laurel, 67 N.J. 151,179-

80 (1975) (Mt. Laurel I). Municipalities have a "negative" duty not to take

actions that will thwart or preclude the provision of low and moderate income

housing. Id. at 180. Among other things, they must remove all requirements

unnecessary for the protection of public health or safety that directly or

indirectly generate costs or otherwise impede or prevent the construction of

affordable housing.


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In order to meet their Mount Laurel obligations, municipalities, atthe very least, must remove all municipally created barriers to the

construction of their fair share of lower income housing. Thus, tothe extent necessary to meet their prospective fair share andprovide for their indigenous poor (and, in some cases, a portion of

the region's poor), municipalities must remove zoning andsubdivision restrictions and exactions that are not necessary toprotect health and safety. [Southern Burlington County NAACP v.Mt. Laurel Township, 92 N.J.158, 259 (1983) (Mt Laurel II)

See, e.g., Home Builders League of South Jersey v. Berlin Township, 81 N.J. 127

(1983); Toll Brothers, Inc. v. West Windsor, 303 N.J. Super. 518, 541-42 (Law

Div 1996), , 334 N.J. Super. 109 (App. Div. 2001),

pertinent part on opinion below, 173 N.J. 502 (2002); AMG Realty v. Warren

Township, 207 N.J. Super. 388, 445-46 (Law Div. 1984); Urban League of Essex

County v. Mahwah, 207 N.J. Super. at 208-237. This includes elimination of

requirements or standards that would be permissible in other contexts.

Zilinsky v. Board of Adjustment of Verona, 105 N.J. 363, 367-68 (1987).

Municipalities also have an "affirmative" duty to take such positive

actions as may be necessary to actually create a realistic opportunity for the

creation of the units. Mt. Laurel I, 67 N.J. at 179; Mt. Laurel II, 92 N.J. at 260-

62. These positive actions include both enactment of suitable zoning

ordinances and such other exercises of the municipal police power as may be

necessary to make it realistically likely that the housing will be built. Mt.

Laurel II, 92 N.J. at 260-77.

The negative duty to remove restrictions and exactions unnecessary to

protect public health and safety and the affirmative duty to take additional

steps necessary to create realistic housing opportunities do not cease with the


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mere enactment of zoning ordinances. They continue throughout the

development process.

It was never intended in Mount Laurel I that this awesome

constitutional obligation, designed to give the poor a fair chance forhousing, be satisfied by meaningless amendments to zoning orother ordinances. "Affirmative," in the Mount Laurel rule, suggeststhat the municipality is going to do something, and "realistic

opportunity" suggests that what it is going to do will make itrealistically possible for lower income housing to be built. [Mt.Laurel II, 92 N.J. at 261-62.]

These duties, for example, bar planning boards from unduly prolonging the

development application process, from unreasonably denying approvals, from

failing to remove unreasonable restrictions or exactions, and from imposing

unreasonable conditions upon approvals which they grant.

The special duties and standards imposed by the Mt. Laurel principles

upon municipal planning boards are exemplified by the decisions in Morris

County Fair Housing Council v. Boonton Township, 220 N.J.Super. 388 (Law

Div. 1987), , 230 N.J. Super. 345 (App. Div. 1989). In that case, the

Morris Township Planning Board denied an application for site plan approval of

a Mt. Laurelproject. The planning board denied the application on the

grounds that the application violated a zoning requirement that the project

have a landscaped buffer between it and existing adjacent houses. Morris

Township Planning Board emphasized that it was entitled to demand strict

compliance with the terms of its ordinance and that its decision was entitled to

a presumption of correctness. The court (Skillman, J. sitting) held that the

planning board Mt. Laurelstandards.


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220 N.J. Super. at 403-

remove municipally created barriers to the construction of affordable housing

as set forth in Mt. Laurel II, 92 N.J. at 259, the court held that, as applied to

proceedings before municipal planning boards, " the thrust of the Mount Laurel

II opinion . . . [is] that zoning and related provisions should be flexibly applied

in the areas zoned for Mount Laurelhousing." 220 N.J. Super. at 404.

The court held that, in light of this standard, that Morris Township

court found that the Planning Board could and should have granted a design

waiver from the buffer requirement.

On appeal, the Appellate Division affirmed the conclusion and reasoning

of the trial court, modifying the decision only by noting that the relief granted

by the trial court should have been a variance under N.J.S.A. 40:55D-70(c)(2),

rather than a design waiver. Morris County Fair Housing Council v. Boonton

Township, 230 N.J. Super. 345 (App. Div. 1989).

The special duties and standards imposed by the Mt. Laurelprinciples

have been codified and elaborated by the Council on Affordable Housing

("COAH") in regulations implementing the Fair Housing Act of 1985. N.J.S.A.

52:27D-301 et seq. In adopting the Fair Housing Act, the Legislature created

the COAH and charged it with the "mission" of "bringing about statewide

compliance with the Mount Laurelobligation." Hills v. Bernards Township, 103

N.J. 1, 56 (1986). It incorporated into the statute the constitutional standards

enunciated by the Supreme Court. N.J.S.A. 52:27D-2, 3.


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The Fair Housing Act specifically mandates that the municipalities that

wish to secure the benefits of substantive certification must demonstrate that

The combination of the elimination of unnecessary housing cost-

generating features from the municipal land use ordinances andregulations, and the affirmative measures in the housing elementand implementation plan make the achievement of themunicipality's fair share of low and moderate income housing

realistically possible. . . [N.J.S.A. 52:27D-314(b)]

The COAH has implemented these constitutional standards through its

regulations, including N.J.A.C. 5:97-10.1 et seq. The COAH has expressly

enactment of ordinances. The COAH has mandated that "[i]n order to receive

and retain substantive certification, municipalities shall eliminate development

standards that are not essential to protect the public welfare and to expedite

(or "fast track") municipal approvals/denials on inclusionary development

applications." N.J.A.C. 5:97-10.1(a).

Th

applications, municipal boards must not challenge the zoning of the site as

shall be whether the design of the inclusionary development is consistent with

the zoning ordinance and the mandate of the Fair Housing Act regarding

unnecessary cost generating features." N.J.A.C. 5:97-10.1(b). Moreover, where

variances or waivers are needed to facilitate the development, "[m]unicipalities

shall be expected to cooperate with developers of inclusionary developments in


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granting reasonable variances necessary to construct the inclusionary

development." Id.

comments published in the New Jersey Register at the time this regulation

then numbered N.J.A.C. 5:93-10.1 et seq.--was promulgated:

RESPONSE: A municipality, to meet its Mount Laurel obligationsmust provide a realistic opportunity for the creation of affordable

housing, including the elimination of barriers to the creation ofaffordable housing. This obligation continues during site planreview. It is not possible to envision every problem that can occurwhen a specific development takes the form of a site plan

application. Although the mapping of sites included in a housingelement may indicate the approximate extent of wetlands, theprecise extent of the wetlands may be greater than originally

envisioned. Whereas the yard requirements imposed on specificdevelopments may seem reasonable on paper, their application on

a site may not allow the completion of a proposed low andmoderate income development. In some cases, such scenariosmight require a plan amendment expanding the number ofmunicipal sites assigned to address the housing obligation.However, in other cases, the granting of reasonable variances will

address potential design problems encountered in developing aninclusionary site. The granting of such variances to further a

s Mount Laurel obligation is consistent with theMLUL.

RESPONSE: At times, the zoning of a specific site may appear tofoster an inclusionary development. However, when designing theproject, the combination of buffer areas, set-backs, distancebetween buildings and environmental regulations may not allowthe developer to complete the entire development. In suchcircumstances, it is expected that the municipality will cooperate

with the developer so that he/she will be able to build the entiredevelopment. . . .

The COAH regulations are applicable to the present case because the

Supreme Court has expressly enjoined the courts to conform to the COAH's


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policy decisions so as to avoid the possibility that cases might have different

outcomes depending upon whether they are decided by COAH or the courts

While the Legislature has left a continuing role under the Act for

the judiciary in Mount Laurelmatters, any such proceedings beforea court should conform wherever possible to the decisions, criteria,and guidelines of the Council. We do not believe the Legislaturewanted lower income housing opportunities to develop in two

different directions at the same time, contrary to soundcomprehensive planning. [Hills Development Corp. v. BernardsTownship, 103 N.J. 1, 63 (1986).]

See, e.g., Toll Brothers, Inc. v. West Windsor, 303 N.J. Super. at 544-45

(applying COAH standards); see generally, Bi-County Development Co. v.

Oakland, 224 NJ Super 455 (Law Div. 1988)

POINT II

THE COURT IS REQUIRED TO REVIEW THE FINDINGS ANDRECOMMENDATIONS OF THE SPECIAL HEARING OFFICERUNDER THE SAME STANDARD BY WHICH APPELLATE

COURTS REVIEW THE FINDINGS OF TRIAL COURTS

This Court is to review the findings and recommendations of the Special

Hearing Officer under the same standards that would be utilized by an

appellate court in reviewing the findings and conclusions of a trial court.

Abbott v. Burke, 199 N.J. 140, 146 n. 2 (2009); State v. Chun, 194 N.J. 54, 93

(2008). The Court must accept the factual findings if supported by substantial

credible evidence on the record, but may consider determinations of law de

novo. Thus, in State v. Chun, the Supreme Court declared:

In reviewing the findings and conclusions set forth by the Special

Master in his report, we employ our ordinary standards of review,considering them in the same manner as we would the findings

and conclusions of a judge sitting as a finder of fact. We thereforeaccept the fact findings to the extent that they are supported by


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substantial credible evidence in the record, see Locurto, supra, 157N.J. at 472, 724 A.2d 234, but we owe no particular deference to

the legal conclusions of the Special Master, see Manalapan Realty,L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d1230 (1995). [Id. at 93.]

The significance of the standard of

in this context is illuminated by its

citation ofState v. Locurto, 157 N.J. 463, 472 (1999). In that opinion, the

Supreme Court held that an appellate court reviewing the findings of trial court

is not permitted to weigh the evidence, assess the credibility of witnesses, or

make conclusions about the evidence. It must merely test whether the

findings could reasonably have been reached on sufficient credible evidence

present in the record :

The Law Division's review of the Municipal Court's implicit

the printed record, and ... the best and most accurate record [oforal testimony] is like a dehydrated peach; it has neither the

v. Ford Motor Co., 19 N.J.Super. 100, 104, 88 A.2d 235

(App.Div.1952). The Appellate Division was also obligated tooperate in that it was not permitted to

conclusions about the evidence. [It was restricted to the test of]

have been reached on sufficient credible evidence present in therecord. State v. Barone, 147 N.J. 599, 615, 689 A.2d 132 (1997)(quoting Johnson, supra, 42 N.J. at 162, 199 A.2d 809). {State v.

Locurto, 157 N.J. at 472 (brackets in original).]

As the analysis bel

consists of demands that this Court should reject the findings of the Special

Hearing Officer and should i weigh the evidence, assess the credibility of

witnesses, or make conclusions about the evidence. Application of the


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standard set forth in Abbottand State v. Chunrequires this Court to reject all

of such demands.

POINT III

THE SPECIAL HEARING OFFICER CORRECTLY FOUND THAT

CDA GAVE SUFFICIENT PRIOR NOTICE OF THE HEARINGS

Cranford Township has objected on various grounds to both the form

and scope of the public notice.

This objection was not raised in a timely manner. CDA requested lists of

the owners of properties within 200 feet of the Block 291, Lot 15.03 (215

Birchwood Avenue) and Block 292, Lot 2 (235 Birchwood Avenue) on May 25

and June 1, 2012. See Exhibit 1,

objections. These requests were reviewed by Cran

municipal engineer, and tax assessor. Id. The list of parties to whom notice

would be given was printed on the site plan application delivered to Cranford

on June 6, 2012. CDA circulated its proposed form of public notice to Philip

Morin, Esq., counsel for Cranford, and to the Special Master by e-mail on July

20, 2012, and solicited their comments. Email from S. Eisdorfer to E.

McKenzie and P. Morin, July 20, 2012, attached as Exhibit A to Certification of

S. Eisdorfer (which is attached as Appendix 2). CDA received no response from

counsel for Cranford. Id.

To effectuate notice 10 days before the scheduled hearing on August 8,

2012, notice had to be in the hands of the relevant newspapers by July 27,

2012. Having received no objections from Cranford either as to the list of


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persons to be given notice or to the form of notice, CDA proceeded to mail the

on July 6, 2012. Certification of S. Smith, August 6, 2012 (Ex. A-1). Cranford

first objected to the form of notice on August 3, 2012-- a week after notice was

given and at a time when any revision in the notice would have required a

postponement of the hearing.

Thus, Cranford knowingly bypassed the opportunity raise its concerns

about the form of notice or the identity of the persons to whom notice would be

given at a time when these could be changed without affecting the date of the

hearing. It did so even though CDA expressly solicited it to identify any

concerns that it might have. It made this tactical choice at the same that it

was petitioning the Court to compel the postponement of the hearing for at

least a month. Under such circumstances, the Township should not be

permitted to be heard on any belated claims as to the form of the notice or the

persons to whom it was given.

In any event, none of objections is justified. First, Cranford

asserts that notice was defective because it listed only the first scheduled date

for hearings and not any subsequent dates. The Appellate Division has

expressly held that the requirement in N.J.S.A. 40:55D-11 that the notice state

requires that only the first hearing date

be specified in the notice. Pond Run Watershed Association v. Township of

Hamilton Zoning Bd. of Adjustment, 397 N.J.Super. 335, 342-43 (App. Div.


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2008).1 Cranford cites no contrary authority and nothing in the language of

the statute requires any different practice.

The Township also asserts that notice should have been given to persons

within 200 feet of the proposed improvement to Birchwood Avenue. N.J.S.A.

40:55D-

of all real property shown on the current tax duplicates located within the State

and within 200 feet in all directions of the property which is the subject of the

privately owned properties off-tract which

the applicant owns, or intends to acquire, for the purpose of providing

infrastructure to serve the proposed project, see, e.g., Brower Development

Corp. v. Planning Board of Township of Clinton, 255 N.J.Super. 262 (App. Div.

1992), the term has never been extended to include proposed improvements of

public infrastructure on publicly owned property.

Such an extension would have absurd consequences.

theory, an application that requires improvement of several hundred feet of

existing public water pipe within a public street bed would, for example,

require individual mailed notice to all property owners within 200 feet of the

existing street bed. An application that might require improvement of an


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existing public water or sewer pumping station a half mile away from the

proposed project would require individual mailed notice to all property owners

within 200 feet of the pumping station or perhaps even all properties served by

the pumping station.

In the present instance, all of the proposed improvements are

improvements to an existing public street and within the existing public right

In addition, the Township has not demonstrated that any properties

within 200 feet of the proposed street improvement were not provided

individual mail notice. The maps that it has included in Exhibits C and D to

Attachment 1 of its objections suggest that there may in fact not be any such

properties.

Finally, the Township objects to the description of the proposed street

improvement in connection with the proposed project. Specifically, it contends

that the notice gives the impression that it has already been determined that

the street improvement had been or would be approved. The language to which

Cranford objects is the italicized language in the following paragraph of the

notice:

The applicant, Cranford Development Associates, LLC, is seekingimplementation of the site-

the Order Granting Remedy in Exclusionary Zoning Litigationentered on December 9, 2011 in the above entitled litigation in theform of preliminary and final site plan approval for a residentialdevelopment consisting of 360 residential units, of which 15percent will be units reserved for, and affordable to, low or


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moderate income households. The project will include a three-story residential structure over podium parking, a four-story

residential structure, and a four-level parking structure, togetherwith drainage structures. The residential units in the uppermoststory of each building will include a loft level. The project will also

include exterior surface parking spaces. Altogether the project willprovide 667 parking spaces. Ingress and egress will be ontoBirchwood Avenue. A stretch of Birchwood Avenue will be regradedto one foot above the flood hazard area design flood elevation.

In context, the italicized sentence is plainly part of the description of the

project for which CDA was seeking approval. Contrary to the contentions of

the Township, nothing in the notice assumed that, or purported to predict

whether, the Special Hearing Officer would approve the application or any part

of it. The notice merely conformed to the statutory requirement that the notice

must -

11.

POINT IV

THE SPECIAL HEARING OFFICER CORRECTLY FOUND THAT

THE PLAN MIGHT NOT SATISFY NJDEP PERMITTINGSTANDARDS ARE NOT PROPER BASES FOR DENYINGAPPROVAL

The Special Hearing Officer carefully weighed the evidence offered by

CDA and Cranford as to whether the project would satisfy state regulatory

standards as to wetlands, construction in flood hazard areas, and stormwater

management. He affirmatively found that the plan would satisfy all of those

standards. hese findings

are amply supported by credible evidence in the record. As discussed below,


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the evidence, rejecting, for example,

the relevance, credibility, and weight of the testimony of the various expert

witnesses.

The Special Hearing Officer, however, made additional findings on these

points which are just as important. He repeatedly noted that these issues are

properly matters that must be decided by the NJDEP. He found that CDA has

in fact made applications for NJDEP approval of its proposed wetlands

transition area waiver, its stormwater management plan, and flood hazard area

permit. Cranford can raise any concerns that it may have as to these issues

before the NJDEP. Moreover, it has in fact done so. Report at pp. 21, 24, 26.

Letter from R. Marsden to Engineering Supervisor for Union County, NJDEP,

January 3, 2012 (Ex. A-26); Memorandum from R. Marsden to V. Opara,

NJDEP, August 2, 2012 (Ex. A-27). For this reason, objections based on

concerns that the plan may not meet those standards are not legitimate bases

for denying this application.

As noted by the Special Hearing Officer, issues of protection of wetlands,

flood control, and stormwater management are entirely governed by regulations

issued by the NJDEP.2 As the Court recognized in its Order of December 9,


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2012, CDA cannot construct the proposed inclusionary development without

first securing permits from the New Jersey Department of Environmental

Protection. Specifically, because a portion of the project lies in the so-called

Hazard Area Pe

governed by regulations issued by the New Jersey Department of

Environmental Protection, N.J.A.C. 7:13-1 et seq. pursuant to the Flood

Hazard Area Control Act, N.J.S.A. 58:16A-50 et seq. The scope of the NJDEP

review of an application for an individual Flood Hazard Area Permit is very

stormwater management regulations and NJDEP flood hazard regulations.

N.J.A.C. 7:13-11.1(b). In addition, CDA must file an application under the

Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 et seq., for approval of a

wetlands transition area averaging plan.

As found by the Special Hearing Officer, CDA filed application for a

wetlands transition area averaging plan and an individual Flood Hazard Area


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Permit in December 2011. Report at pp. 21, 24, 26. The Flood Hazard Area

Permit application specifically addressed compliance with wetland regulations,

stormwater management regulations and flood hazard regulations. As required

by the NJDEP regulations, N.J.A.C. 7:13-16.1 et seq. CDA provided public

notice, including notice to Cranford Township. Public notices of CDA

application for flood hazard area permit and wetlands permit, December 9,

2011 (Ex. A-19). Cranford Township made extensive submissions to the

NJDEP in opposition to these applications. The NJDEP issued a deficiency

notice requesting additional information as to the flood hazard area permit. In

response, CDA provided supplemental information in February 2012, including

modifications of its proposed detention basin for stormwater management.

NJDEP issued a second deficiency notice identifying one substantive issue,

which as discussed in detail below, can only be addressed with the consent of

Cranford.

For purposes of the review of the site plan application, it would not be

the proper function of a planning board or of the Special Hearing Officer to

assume the functions of the NJDEP. Dowel Associates v. Harmony Township

Land Use Board, 403 N.J.Super. 1, 30-37 (App. Div. 2008). Where the project

requires a permit by the NJDEP, a planning board cannot substitute its

judgment for the NJDEP but must defer to the determination of that agency. As

the Appellate Division held in Dowel, a closely analogous case:

[I]f the DEP determines that the [sanitary sewage} disposal systemwas safe and the technical storm-water issues were adequatelyaddressed, the subdivision application would have to be granted


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because there would be no basis for denial by the Board. [Id. at35.]

The proper function of a planning board or the Special Hearing Officer--

is merely to determine whether it is infeasible for CDA to comply with NJDEP

standards. Id. at 30-35. A determination that compliance with NJDEP

standards is not infeasible does not involve any actual determination as to

compliance with those standards a function reserved to NJDEP but merely a

threshold determination that the applicant has proposed a project sufficiently

specific and detailed that NJDEP could review it. Id.

The proper course where a project requires NJDEP permits is not for the

planning board or the Special Hearing Officer to hear the same evidence that

would be presented to the NJDEP but simply to condition the site plan

approval upon the applicant securing the necessary permits from the NJDEP.

The MLUL provides that

In the event that development proposed by an application for

development requires an approval by a governmental agency otherthan the municipal agency, the municipal agency shall, inappropriate instances, condition its approval upon the subsequent

approval of such governmental agency. . . .[N.J.S.A. 40:55D-22(b)(emphasis added).]

In appropriate circumstances, a planning board must follow this course and it

is reversible error for it to do otherwise. See Dowel, 403 N.J. Super. at 35;

Save Hamilton Open Space v .Hamilton Township Planning Board, 404

N.J.Super. 278 (App. Div. 2008); W.L. Goodfellows and Co. of Turnersville, Inc.

v. Washington Township Planning Board, 345 N.J.Super. 109 (App. Div. 2001).


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Thus, must

be denied for failure to demonstrate that it complies with State standards

governing freshwater wetlands, construction in flood hazard areas, or

stormwater management must be rejected for two reasons. First, the Special

proposed project complies with all relevant

standards are amply supported by credible evidence in the record before him.

Second, because it is NJDEP that must ultimately determine whether these

standards are met, this was not even a proper consideration for the Special

Hearing Officer.

POINT V

THE SPECIAL HEARING OFFICER CORRECTLYRECOMMENDED THAT CDA SHOULD BE PERMITTED TOELEVATE OF A STRETCH OF BIRCHWOOD AVENUE

Cranford particularly objects to the portion of the Special Hearing

at its own expense to

elevate a portion of Birchwood Avenue in front of its property as shown in the

proposed site plan (Ex. A-4). Cranford offers a variety of different objections to

locations in its submission. We shall address them systematically here,

regardless of where they occur.

A. THE SPECIAL HEARING OFFICER CORRECTLY HELDTHAT THERE IS NO JUSTIFICATION FOR REQUIRINGCDA TO SEEK A HARDSHIP WAIVER FROM NJDEPFLOOD HAZARD AREA PERMIT STANDARDS RATHERTHAN PERMITTING CDA TO ELEVATE A STRETCH OF

BIRCHWOOD AVENUE.


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Cranford asserts that CDA should not be permitted to elevate a stretch of

Birchwood Avenue. Rather, it asserts, CDA should be required to seek a

hardship waiver from NJDEP a Permit standards.

the Mt. Laurelprinciples. As set forth above, once the Court has awarded a site

facilitate construction of the court-mandated inclusionary development on that

site. As part of its negative obligations, Cranford is required to remove all

part of its affirmative obligations, the municipality is required to act

affirmatively to facilitate construction of the proposed inclusionary

development on the site.

In the present instance, the undisputed evidence is that CDA requires a

Flood Hazard Area Permit to construct the proposed inclusionary development.

Report at 35. If NJDEP does not grant the permit, construction of the project is

impossible and provision of low and moderate income housing on the site will

be thwarted. Id. NJDEP has issued a deficiency notice on the grounds that

Building A, which lies within the flood fringe, does not have a roadway access

that is elevated one foot above the flood hazard design elevation. Specifically,

NJDEP has interpreted its regulation, N.J.A.C. &:13-11.5(h)(2), to require not

only that there be on-site roadway access elevated one foot above the flood

hazard design elevation but also that the public street onto which that


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driveway exits also be elevated one foot above the flood hazard design elevation.

Report at 30.

Elevating Birchwood Avenue in the vicinity of the westernmost driveway

would bring the project into compliance with N.J.A.C. 7:13-11.5(h) (2), as

construed by NJDEP. Report at 30-31. There is no other feasible means of

doing so. Id. at 31-32.

As found by the Special Hearing Officer, the proposed elevation of

Birchwood Avenue does not create any threat to public health and safety. To

the contrary, it will enhance public health and safety. Report at pp. 32-35. As

acknowledged by Cranford Fire Chief Dolan, it will provide an access to the site

for emergency vehicles, such as fire equipment, even under flood conditions.

In addition, because elevation of the roadway will also involve installation of

additional storm drains, it will decrease the amount of stormwater that flows

down Birchwood Avenue. Id.

Thus,

improvement is creating a municipal obstacle to inclusionary development that

is It violates both the

Mt. Laurel II.

Cranford urges that CDA be required to attempt to develop the project in

a manner that violates NJDEP regulations and to seek relief from the NJDEP

under its hardship waiver regulation, N.J.A.C. 7:13-9.8. Given the Special

on public health and safety, Cranford offers no justification for this position


23/91

other than its implicit preference to obstruct inclusionary development on the

site rather than facilitating it. Certainly, there can be no public policy

justification for an insistence on a design that NJDEP has determined to be in

where the

public health safety than the non-compliant design. Id. at 35.

Cranford offered no expert testimony as to whether NJDEP would be

likely to grant a waiver under N.J.A.C. 7:13-9.8. Precisely because it is feasible

ordinance in a manner that fully complies with NJDEP standards, this would

foreseeably be, at best, a disfavored request for hardship waiver under N.J.A.C.

7:13-9.8.

Hardship waivers are governed by N.J.A.C. 7:13-9.8, which provides in

pertinent part:

7:13-9.8 Hardship exception for an individual permit

(a) The Department shall issue an individual permit for an activity

that does not comply with one or more of the requirements atN.J.A.C. 7:13-10 and 11 only if all of the requirements of (b) beloware satisfied and, additionally, one or more of the followingrequirements are satisfied:

1. The Department determines that there is no feasible and

prudent alternative to the proposed project, including not pursuingthe project, which would avoid or substantially reduce theanticipated adverse effects of the project, and that granting the

hardship exception would not compromise the reasonablerequirements of public health, safety and welfare, or theenvironment;

***


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(b) To obtain an individual permit based on a hardship exception,

the applicant shall demonstrate to the Department that thefollowing requirements are satisfied:

***4. The hardship was not created by any action or inaction of theapplicant or its agents.3

In connection with the promulgation of the current regulation in 2007,

the NJDEP explained the policies that govern its implementation of this

regulation. Adopted Repeal and New Rules: N.J.A.C. 7:13, 39 N.J.Reg. 4573(a)

(Nov. 5, 2007). It stressed that the standards set forth in N.J.A.C. 7:13-9.8

embody the policy that the best implementation of the Flood Hazard Area

standards is full compliance and that an applicant who can comply with those

standards must do so.

All applicants who can design a project to comply with any of themyriad situations addressed specifically by the rules, will berequired to do so because the Department believes that fullcompliance with the rules is the best mechanism available tocontrol flooding and protect the environment. ]Id. Response to

Comments 707 and 708].

NJDEP has consciously the made the criteria for a hardship waiver in this

regulation very stringent because it envisions and intends that that very few

projects will qualify for such a waiver.

Due to the importance of requiring projects to meet all design and

construction standards of the Flood Hazard Area Control Act rules,the standards for issuing a hardship exception to these rules areextremely stringent. As a result, the Department has historically

issued very few hardship exceptions to the Flood Hazard AreaControl Act rules . . . . [Id. Response to Comments 712 and 713.]


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Plainly, if full compliance with the Flood Hazard Area standards can be

achieved by a modest off-site improvement involving a short stretch of a local

public street, CDA cannot satisfy the waiver criterion

to full compliance with those standards. N.J.A.C.

7:13-9.8(a)(1).

In addition, a hardship waiver is only available if

-

9.8(b)(4). If CDA has not first exhausted the option of securing approval by

Cranford or by the Court for the construction that would enable full

compliance and avoid the need for a waiver, it cannot demonstrate that the

contention that CDA must first attempt to develop its project in a manner that

does not comply with NJDEP standards and to seek relief from those standards

under N.J.A.C. 7:13-9.8 is amply supported by the his findings and the

relevant law. Report at 35.

B. CDA PROPOSAL TO ELEVATE A STRETCH OF BIRCHWOODAVENUE DOES NOT REQUIRE RECONSIDERATION OF THE

INCLUSIONARY DEVELOPMENT PROVIDED FOR IN ITS ORDEROF DECEMBER 9, 2011

Cranford seizes upon this issue to assert for the third time that the

Court should reconsider its opinion and order determining that the CDA site is

suitable for construction of a 360 unit inclusionary development and awarding

In light of the


26/91

any legitimate basis.

The site plan application that CDA filed with the Special Hearing Officer

ber 9, 2012. The

only new feature is that CDA has proposed an off-site improvement the

elevation of a short stretch of Birchwood Avenue in the vicinity of the

westernmost driveway, which is necessary to conform to NJDEP Flood Hazard

Area Permit standards as specifically construed by NJDEP in connection with

its Flood Hazard Permit application. The Special Hearing Officer has found

that the proposed off-site improvement can be made without detriment to the

public and without cost to Cranford or taxpayers. In light of this finding, there

is utterly no factual basis for an application to the Court to reconsider its

determination that the site is suitable.

Cranford contends that CDA misled the Court as to the condition of the

site at trial. s granting Flood Hazard Permits in prior

applications in which the ingress and egress were onto streets that were within

the flood fringe and at elevations below the flood hazard design elevation, CDA

reasonably anticipated that NJDEP would continue to do so. Report at pp. 30-

32.

Indeed, one of the projects for which NJDEP granted a Flood Hazard Area

Permit was the Riverfront Redevelopment Project, the one new inclusionary

multifamily project in Cranford that the Township has supported and claimed

credit for. As shown by the permit itself, the entire Riverfront Redevelopment


27/91

Project site and all the surround streets are within the flood fringe. Indeed,

the NJDEP specifically found that all the public streets that provide access to

the site would be under two feet of water in a one hundred year flood event.

Report at p. 30-31; NJDEP Flood Hazard Area Verification and Individual

Permit, Riverfront Redevelopment Project, Feb. 2, 2010, at p.4 25. (Ex. A-22).

The NJDEP did not find that this violated under N.J.A.C. 7:13-11.5(h)(2). It

merely required signage on the street. Id at p. 4 26. This permit was granted

just seven months before the trial in this case. The terms of the permit granted

by the NJDEP to the Riverfront Redevelopment project were precisely those that

7/2010 Tr.

47, attached as Appendix 3..

To the surprise of CDA, NJDEP construed the standards in N.J.A.C.

7:13-11.5(h)(2) in the present application in manner different from its

construction of that regulation in connection with the Riverfront

Redevelopment project in February 2010. In response, CDA in good faith

regulations. As found by the Special Hearing Officer, it has done so in the only

feasible manner that would comply NJDEP standards. It also done so in a

manner that is not detrimental to the residents and that imposes no costs on

the taxpayers of Cranford. Report at pp. 30-35. Nothing in these facts suggests

any misrepresentation to the Court or lack of candor by CDA at the trial in

2010.


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In its order of December 9, 2012, the Court itself anticipated the

possibility that NJDEP review might require modification of the project. It

expressly provided that CDA could make such modifications. Paragraph 4(j) of

the Order provided:

j) Plaintiffs may alter the layout of the project set forth in

Exhibits P-63 and P-63A to bring the project into conformancewith the foregoing conditions and the terms of any permits issuedby NJDEP.

In the present instance, the modification required was very modest and has no

impact on the magnitude or layout of the project or the number of low or

moderate income units provided.

C. THE SPECIAL HEARING OFFICER CORRECTLY FOUNDTHAT CDA SHOULD BE PERMITTED TO ELEVATE A

STRETCH OF BIRCHWOOD AVENUE AT ITS OWNEXPENSE.

As forth in his Report, the Special Hearing Officer found, based upon his

evaluation of the testimony of the five expert witnesses who appeared--

Ph.D, and Cranford Fire Chief Leonard Dolan--that the proposed elevation of

Birchwood Avenue does not create any threat to public health and safety. To

the contrary, it would enhance public health and safety. Report at pp. 32-35.

As acknowledged by Cranford Fire Chief Dolan, it will provide an access to the

site for emergency vehicles, such as fire equipment, even under flood

conditions. In addition, because elevation of the roadway will also involve


29/91

installation of additional storm drains, it will decrease the amount of

stormwater that flows down Birchwood Avenue. Id.

As forth in the eport, this determination

involved a carefully weighing of the relevance, weight, and credibility of these

witnesses. Report at pp. 32-35. It is amply supported by credible evidence in

the record.

Cranford urges that the Court should not accept the findings of the

Special Hearing Officer, but should itself re-weigh the evidence, reassess the

credibility of witnesses, and make different conclusions about the evidence.

Under the standards set forth in Abbott, supra, and State v. Chun, supra, this

would be ou

engage in the wholesale reevaluation of this testimony would defeat the whole

purpose of appointing the Special Hearing Officer.4

D. THE COURT HAS THE POWER TO GRANT THIS RELIEF


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Cranford asserts that the Court does not have the power to require it to

permit CDA to elevate a portion of Birchwood Avenue

assertion misconceives its own constitutional obligations. As noted above, the

constitution as construed in the Mt. Laureldecisions imposes on municipalities

negative and affirmative obligations. It imposes on municipalities the negative

obligation not to create obstacles to the construction of low and moderate

income housing and an affirmative obligation to facilitate the development of

such housing. Once the Court has found the municipality to have failed to

satisfy its fair constitutional share housing obligation and has ordered a site

specific remedy, these negative and affirmative obligations specifically attach to

the inclusionary development authorized by the Court.

The courts have consistently held that these constitutionally mandated

negative and affirmative obligations require municipalities to facilitate provision

of necessary infrastructure for inclusionary developments. As the court

declared in Toll Brothers, Inc. v. West Winsdor, 303 N.J. Super. 518, 543 (Law

Div. 1996), , 334 N.J. Super. 109 (App. Div. 2000),

in pertinent part on opinion below, 173 N.J. 502, 558-59 (2002),

have an affirmative obligation to facilitate provision of the infrastructure

Thus, for example, where

necessary to facilitate the construction of inclusionary developments,

municipalities have been required to vacate adjacent public streets, Menk Corp.

v. Township Committee of Barnegat, 389 N.J. Super. 263 (Law Div. 2006), or

reverse the vacation of such streets, Howell Properties, Inc. v. Township of


31/91

Brick, 347 N.J. Super. 573 (App. Div.), certif. denied, 174 N.J. 192 (2002).

Similarly, they must affirmatively assist in the provision of public water and

sewer service. Toll Brothers, Inc. v. West Winsdor, 173 N.J. 502, 558-59 (2002);

Dynasty Building. Corp. v. Upper Saddle River, 267 N.J. Super. 611,

616(App.Div.1993), certif. denied, 135 N.J. 467, appeal dismissed, 135 N.J.

468 (1994); Samaritan Center, Inc. v. Englishtown, 294 N.J. Super. 437 (Law

Div. 1996).

Cranford asserts that this constitutional obligation does not extend to

street improvements or to precisely the form of street improvement sought in

the present instance. It attempts to distinguish each of the cases cited above

on that basis, but cites no contrary authority. The refined distinctions made by

Cranford do not negate the broad principle enunciated by the Supreme Court

and enforced by the lower courts in a wide variety of contexts.5

These constitutional obligations are judicially enforceable. It is well

established that the courts in New Jersey have the inherent equitable power to

effectuate their own decisions. See, e.g., Welser v. Welser, 54 N.J.Super. 555,

563-


32/91

have inherent power to enforce their own judgments and should see to it that

they are enforced when they are called upon to do so. To deprive a court of

power to execute its judgments is to impair its jurisdiction, and the general

rule is that every court having jurisdiction to render a particular judgment has

inherent power and authority to enforce it, and to exercise equitable control

The Supreme Court has particularly emphasized the breadth of the

remedial power of the trial courts in exclusionary zoning cases so as to fully

vindicate the constitutional rights of low and moderate income households. Mt.

Laurel II, 92 N.J. at 285-90. The trial courts have freely exercised that power to

prevent a wide variety of local obstructions to the construction of low and

moderate income housing. See, e.g., Howell Properties, Inc. v. Township of Brick,

supra(prohibiting vacation of road by town adjacent to inclusionary project);

Samaritan Center, Inc. v. Borough of Englishtown, 294 N.J.Super. 437 (Law Div.

1996)(ordering municipality to cooperate to provide public water to affordable

housing project in adjacent community); Menk Corp. v. Township Committee of

Barnegat, supra(ordering vacation of street required for construction of

inclusionary project); Tomu Development Co., Inc. v. Borough of Carlstadt, A-

5512-05T1; 2008 WL 4057912 (App. Div. August 29, 2008) (appointing

compliance monitor to perform municipal permitting function); Dynasty Bldg.

Corp. v. Borough of Upper Saddle River, 267 N.J.Super. 611 (App. Div. 1993)

(ordering regional sewerage to cooperate with developer of affordable housing to

provide sanitary sewer service).


33/91

effectuation of a judicial decision, the plaintiff may properly bring that

obstruction before the court in an a

court may properly grant any equitable relief that will remove the obstruction.

Abbott v. Burke, 206 N.J. 332, 342, 359, 368-72 (2011); Loigman v.

Middletown, 308 N.J.Super. 500, 503 (App. Div. 1998), see also Abbott v.

Burke, 170 N.J. 537 (2002)( Abbott VIII); 163 N.J. 95, 100 01 (2000) ( Abbott

VI). In particular, the courts have held that alleged municipal obstruction to

the implementation of judicial decisions granting site-specific builder remedies

can

and that the courts can properly grant any relief necessary to remove those

obstructions. See, e.g., Morris County Fair Housing Council v. Boonton Tp., 220

N.J.Super. 388 (Law Div. 1987)(relief against obstructive tactics by planning

board in considering site plan applications for inclusionary development),

on other grounds, 230 N.J.Super. 345 (App. Div. 1989); cf. Mount Olive Complex

v. Township of Mount Olive, 340 N.J.Super. 511, 531 (App. Div. 2001) (appellate

had already established that parties to Mount Laurelconsent decrees could

vindicate their interests through motions to enforce litigant' 6

POINT VI

ALL AMPLY SUPPORTED BY THE RECORD BEFORE HIM.

Loigman v. Middletown, 308 N.J.Super. at 503.


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At pages 13 through 22 of its objections, Cranford objects point-by-point

to the findings of fact made by the Special Hearing Officer. CDA will respond to

these objections point-by-

It should be noted what is not at issue. Cranford does not dispute the

extensive findings by the Special Hearing Officer that the proposed

development fully conforms to the specific terms for this development set forth

findings by the Special Hearing Officer that, except for two waivers expressly

requested in its application, the proposed development fully conforms with the

applicable Cranford zoning and site plan ordinances. Finally, Cranford does

not object to the findings by the Special Hearing Officer that the project

conforms to the statewide Residential Site Improvement Standards, N.J.A.C.

5:21-1 et seq. The remaining issues, although indisputably important, are

very narrow.

The vast majority of objections follow a common pattern. The

Special Hearing Officer, based upon his evaluation of the expert testimony, has

made a specific findings supported with citation to evidence in the record.

Cranford urges the Court to re-weigh the evidence, reassess the credibility of

witnesses, and reach specific different conclusions about the evidence.

Because the Special Hearing Officer has carefully set forth the basis in

the record for each of these findings and because, as discussed above, it is not


35/91

properly the function of this Court re-weigh the evidence, CDA will not provide

shows that his findings are amply supported by credible evidence in the record.

For objections that fall into this pattern, CDA will therefore simply note

that Cranford seeks to have the Court reweigh the evidence before the Special

Hearing Officer.

Page 2, para. 2

This is presented as an objection only to the form of the report. To the

extent that it is an objection to

CDA to elevate a portion of Birchwood Avenue, it is unsound for the reasons

set forth in Point V(D) above.

Page 5, para. 1

The language that Cranford seeks insert in this paragraph is incomplete

and misleading. As indicated in the Memorandum by Special Master McKenzie

of May 15, 2012, when the issue of where the hearing should be held was

raised, CDA suggested that it be held in Cranford. In response to this

suggestion, the Special Hearing Officer determined on May 16, 2012, that the

hearing should be held in the Union County Court House. Cranford did not

seek review of this determination by the Court. The parties then worked with

the Special Master and the Special Hearing Officer to arrange mutual agreeable

dates for the hearings. They agreed that the hearings would commence on

August 8, 2012, and to the extent possible would continue on successive days.

Cranford first sought review by this Court by letter dated July 24, 2012, and


36/91

orally at a telephonic conference held by the Court the following day. At that

point, CDA opposed holding the hearing in Cranford both for the reasons set

the venue of the hearing would also result in a substantial delay and a

disruption of the plans that had been painstakingly worked out for the hearing.

By order dated August 2, 2012, the Court confirmed the determination of the

Special Housing Officer. Certification of Stephen Eisdorfer, January 24, 2013,

attached at Appendix 2.

Page 5, para. 2

This objection to the adequacy of the notice of the hearing should be

rejected for the reasons set forth in Point III above.

Pages 15, para. 3 to 16, para. 2.

Cranford seeks to have the Court reweigh the evidence before the Special

Hearing Officer.

Page 18, para. 2.


Hearing Officer. In addition, the objection does not accurately characterize the

testimony of Mr. Dipple, which is set forth at 8/9 T 35-40; 8/21 T 103-105,

8/22 T. 37-40 and his Sanitary Sewer Capacity Study, Tables 1 and 2 (Ex. A-

14)

Page 24, para. 1.


Hearing Officer.


37/91

Page 24, para. 2.

This is presented as an objection only to the form of the report. To the

ext

standards, it should be rejected for the reasons set forth in Point IV above.

Page 26, para. 2.Page 26, para. 3.



Page 33, para. 2.Page 34, para. 2.Page 34, para. 3.


These objections

proposed elevation of a stretch of Birchwood Avenue should be rejected for the

reasons set forth in Point V above.

Page 37, paras. 1 and 2.

the Special Hearing Officer

ions of its

ordinance appears to be inconsistent with its objection to Page 39, para. 4 its

very next objection. To the extent the objection asserts that there is no

authority for a waiver of the tree replacement provisions of its ordinance, this

assertion is wrong as a matter of law. The tree replacement provision of

by Cranford Ordinances 136-23 (L)(1)-(3). These are

design standards. They can, and, in suitable circumstance, must be waived


38/91

under the Municipal Law Use Law, N.J.S.A. 40:55D-51(b), and the regulations

of the COAH, N.J.A.C. 5:97-10.1(b).

The objection also does not accurately describe the applicable legal

standard. As discussed above in Point I(B), Cranford has a constitutional

obligation to affirmatively facilitate construction of the inclusionary project

obligation to grant variances and waivers where doing so will not substantially

public health or safety. This duty codified in N.J.A.C. 5:97-10.1(b), as set forth

in Point I(B). In Morris County Fair Housing Council v. Boonton Township,

supra--a case that antedates the promulgation by COAH of its regulations on

site plan approval the court addressed the appropriate standard for granting

design waiver variances for inclusionary projects under Mt. Laurel II. The court

rejected the claim that design waivers could only be granted where the

Rather, the court noted,

Many normal construction and design standards are impedimentsto the construction of lower income housing without any single onecreating an insurmountable obstacle to such development.Therefore, the obvious intent of [of the Morris Township site plan

ordinance], consistent with the direction in Mount Laurel II that

92 N.J. at 259, is to confer broad authority upon the board towaive such requirements, where this will facilitate the constructionof lower income housing and can reasonably be done withoutjeopardizing public health and safety. [Id. at 405 (emphasisadded).]


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As set forth above, the COAH subsequently codified a similar standard into its

own regulations.

plan. In accordance with the terms of the Court order, it provides for a 10 foot

wide landscaped buffer between the driveway and the lot line for the health

care facility which will be landscaped with a dense row of arborvitae in addition

to the existing deciduous trees. Also in accordance with the terms of the Court

order, it provides for a dense buffer of evergreens along the south side of the

buildings between the buildings and single family houses on Wadsworth

Terrace. More street trees will be planted along Birchwood Avenue in addition

to the existing street trees. There will foundation plantings along the

foundations of the buildings and ornamental trees in the court yards and near

the entrances.

Existing trees will remain undisturbed in the wetlands areas, in the

wooded areas at the south end of the site, in the buffer along the eastern edge

of the site, and on the street in front of the buildings. These include mature

trees with heights of 30 feet and diameters of 16, 18, 24, and 36 inches and

some trees as high as 79 feet.

Nonetheless, approximately 72 existing trees will have to be removed to

make way for the proposed structures. Under the terms of tree replacement

these trees with 295 new trees. CDA proposes instead to plant only

approximately 180 new trees 108 more tree than will be removed.


40/91

No witness testified that planting 295 trees rather 180 is necessary to

protect public health and safety. In this respect, the case is closely analogous

to the extensive landscaped buffer ordered waived in the Morris County Fair

Housingcase.

To the contrary, the only area in which 115 additional trees could

realistically be planted is in the state-designated floodway. These trees, even if

only 3 inches in diameter today, will ultimately grow to diameters of 24 or 36

inches. As found by the Special Hearing Officer, they will increasingly block the

floodway, obstructing the flow in severe weather and serving as traps for loose

branches and other detritus that would yet further obstruct the floodway.

Requiring the planting of 295 trees to replace the 72 that will be removed

would add to the cost and burden of constructing the 360 unit inclusionary

development authorized by the Court. Because it is not necessary to protect

public health or safety, a waiver is justified under the constitutional standard

as set forth in Morris County Fair Housing, supra.

Page 39, para. 4.

As set forth at page 6 of Comments on the Report of the Special

Hearing Officer (November 30, 2012), a copy of which is attached as Appendix

2, this conclusion should be modified in light of the post-hearing meeting held

by the parties in accordance with the direction of the Special Hearing Officer.

Rather than the open-ended language included in the Report or the no less

vague language urged by Cranford, this conclusion should be replaced with


41/91

and magnitude of tree replacement recommended by Mr. Marsden

engineer.

Page 39, para. 6.

CDA does not object to the condition proposed by Cranford.

Page 39, para. 7.

These objections to the Special Hearing Officers findings and conclusions

concerning elevation of Birchwood Avenue should be rejected for the reasons

set forth in Point IV above.

Page 41, para. 8.

As noted by the Special Hearing Officer, the only open issue as to off-site

approximately 1,300 linear feet of sanitary sewer line. As set forth at pages 4

he Special Hearing Officer, Cranford

has subsequently provided CDA with a figure for its pro rata contribution to

the upgrading these sewer line segments. CDA has, with one qualification,

accepted that figure. In light of this development, CDA has proposed

replacement language conclusions

and recommended conditions on this subject.

Page 46, para. 1

CDA does not object to this correction.

Page 53, para. 32.

This condition requires CDA to construct turnouts at specified points on

the internal driveway to permit vehicles to move out of the way of emergency


42/91

vehicles. Cranford objects only to the last sentence of this condition, which

permits these turnouts to be Cranford made

this objection to the Special Master and the Special Hearing Officer when they

circulated a draft of set findings, conditions, and conclusions. The Special

Hearing Officer, acting with the advice of the Special Master, rejected this

objection. This Court should similarly reject it.

The use of permeable pavers, which are designed to provide a drivable

surface that nonetheless permits rainwater to the pass through and to be

absorbed into the soil below, are approved and actively recommended by the

NJDEP as required best practices to minimize stormwater runoff. NJDEP, New

Jersey Stormwater Best Practices Manualpp. 2-8 to 2-9 (2OO4), attached as

Appendix 5. They are endorsed in Cranford Ordinances 136-45(A)(1). Because

they are permeable, they are not included in calculations of impermeable

coverage.

cover must not exceed pre-existing impervious cover and to comply with

NJDEP stormwater management requirements. Cranford, however, offers no

valid health or public safety justification for its objection. To the contrary, its

objection conflicts with the general approval of pervious paving by the NJDEP

and Cranford ordinance, the testimony by Mr. Marsden at the hearing on

the desirability of minimizing the amount of stormwater that must be detained


43/91

in drainage structures, and the very extensive testimony by Mr. Slachetka at

development.

Plaintiffs therefore urge the Court to reject this objection.

CONCLUSION

For all the foregoing reasons, the Court should determine that Cranford

objections provide no basis for rejecting the findings and recommendations of

the Special Hearing Officer. Rather, the Court should adopt the findings and

recommendations of the Special Hearing Officer in their entirety with the

clarifications suggested by CDA in its letter of November 30, 2012.

Respectfully submitted,HILL WALLACK LLP

By: StephenEisdorferStephen Eisdorfer, Esq.

cc: Philip Morin, Esq.Carl Woodward, Esq.Wendy Berger, Esq.Elizabeth McKenzie, PPDouglas Cohen, Esq.


44/91

January 25, 2013

Page 44

Appendi ces

Plain t iffsComment s on the Report of the Special Hearing Officer , November30, 2012................................................................................................... App. 1

Cert ification of Stephen Eisdorfer, Janu ary 24, 2013 ............................. App.2

Email from S. Eisdorfer to E. McKenzie and P. Morin , Ju ly 20, 2012Ex. AMemorandu m of Elizabeth McKenzie, May 15, 2012 ..................... Ex. B

E-mail from D. Wolfson to counsel, May 16, 2012 ......................... Ex. CLett er from P. Morin to Court , Ju ly 24, 2012................................. Ex. DCourt Order, August 6, 2012 .........................................................Ex. E

Transcript of the tr ial t estimony of Michael Dipple, 9/ 27/ 2010 ............. App. 3

Toll Brothers, Inc. v. Township of West Windsor, A-5858 97T3 (August 16,2000) (unr eported port ion of the opinion r eported at 334 N.J. Super. 109(App. Div. 2000)........................................................................... App. 4

NJDEP, New Jersey Stormwater Best Practices Manual pp. 2-8 to 2-9 (2OO4)................................................................................................... App. 5


45/91

20 2 CARNEGI E CENTER, CN 5226, PRINCETON NJ 08540-5226TELEPHONE: (609) 9 24 0808 FAX: (609)452-1882

WWW.HILLWALLACK.COM

STEPHEN EISDORFER, ESQ.PARTNER , LAND USE LITIGATION ANDAPPLICATIONS

D IRECT D IAL : (609)[email protected]

November 30, 2012

Hon. Lisa F. ChrystalSuperior Court of New Jersey

Union Coun ty Cour t House11th Floor2 Br oad St.Elizabeth , New J ersey 07207

Re: LEHI GH ACQUISITION CORP. v. TOWNSHI P OFCRANFORD et al,DKT NO. UNN-L-0140-08

CRANFORD DEVELOPMENT ASSOCIATES, LLC et alv. TOWNSHI P OF CRANFORD et al,

DKT NO. UNN-L-003759 -08

Dear J udge Chrystal:

ent itl ed matter submi t t he following comm ent s on th e report of Special Hearin gOfficer Douglas Wolfson, Esq.

In general, CDA supports the recommendations of Special HearingOfficer Wolfson and urges the Cour t to adopt th em. As to a number of issues,

however, th e report requ ires amplification or clari fication.

Conclusion 9 p. 43 (off-sit e im provement s t o th e public water syst em )

At the conclusion of the hearing, the Special Hearing Officer directedcounsel for plain tiff t o submi t p roposed findings and conclu sions and alsoproposed cond it ions on any site plan approval. He dir ect ed counsel forCranford to submi t objections and counterfindings and conclu sions. He also


46/91

directed t he part ies to confer on potential condi tions t o any site plan approvaland to try to agree, insofar as possible, on condit ions. 8/ 23 T. 239. OnSeptember 11, 2012, CDA submitted a set of proposed findings and

and 35 concern ed pu blic water.

Proposed Condit ion 34 stat ed:

34. An in dependent t est of the level of water service available atth e hydr ants in front of th e project will be condu cted by the watercompany (or some oth er th ird par ty agreed u pon by both part ies)in accordance th e relevant national standard, NFWA 291. If thetest shows that water service at th e hydrant s is significant ly below2,000 gallons per m inu te, then CDA will r eplace th e existin g 8 inchwater main from the easternmost hydrant on the property to thewater m ain in Bloomin gdale Avenu e with a 12 inch water m ain. It

may elect to constr uct th is impr ovement i tself or to reimbu rseCranford for its pro rata share of the reasonable cost of the

133-34.

th eir coun sel and their engineers met at th e Cranford Mu nicipal Bui ldin g onSeptember 21, 2012 and discussed pr oposed condit ions, inclu ding publi cwater. On October 3, 2012, Cranford submi tt ed its own proposed findings andconclu sions and its own condi tions. Its condi tion 34 was ident ical to th at ofCDA.

An independent test of water flow was conducted by American WaterCompany on October 12, 2012 in th e presence of representat ives both of CDAand Cranford Township. The resu lts of that test were subm itt ed to th e SpecialMaster and th e Special Hearing Officer . The test resu lt s indicated that, at apressure of 20 poun ds per square inch, the flow on the two hydrants was 2,778gallons per min u te and 2,887 gallons per square inch.

In light of th is test, plain tiffs subm itt ed revised pr oposed conditi ons toth e Special Master and t he Special Hear ing Officer on October 12, 2012. CDA

proposed that, i n accordance with its own t erm s, any r equir ement t o upgradeth e water li ne in Bir chwood be deleted. Cranford did n ot submit any objectionsto this revised proposal.

35. The appli cant will make a good faith effort to secur e th econsent of the owner of the health care facilit y to connect a water


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lin e from the proposed project to th e public water l ine in th eservice road of the health care facility and to acquire the propertyri ght s necessary to constr uct the conn ecting line. If it can secureth is consent and pr opert y ri ght s at reasonable cost wi th in 90 daysafter entr y of the order grant ing site plan approval, it will constr uct

an 8 inch water line from t he water lin e in th e eastern dri veway ofth e project t o the public water main in service road of the healthcare facilit y. If it cann ot do so, th is condi tion will term inate. 8/ 23T. 127-28, 134-

At their September 21, 2012 meeting, t he par t ies fu r ther discu ssed thesuggestion by Fir e Chief Dolan that the water line through th e project also belinked t o the water line in th e dr iveway of th e adjacent health care facilit y toachieve a sort of gri

join t review of the municipal water system map, however , revealed that thewater m ain wh ich the Fire Chief assumed in hi s testimony lay in Bir chwood

Avenue al l the way to Cr an for d Avenue does not in fact fol low that rou te. Justeast of 215 Birchwood Avenue, it turns, goes down in the driveway of theadjacent health facilit y and then pr oceeds around t hat bu ildin g and out t oCranford Avenu e. The water line in th e dr iveway of the health care facili ty isth us not a separate water lin e bu t i s in fact th e very water main t hat serves theCDA site. An additi onal link to that lin e would n ot have th e beneficial effect ofcreating any addit ional grid.

In conn ection wi th its r evised pr oposed condit ion of October 12, 2012,CDA provided t hi s additional inform ation t o the Special Master and th e SpecialHearing Officer. I n light of th is new information, CDA recommended that, notonly was conn ecting to th is line un lik ely to be feasible, since it wou ld requir eplaint iffs to acqu ire an easement t hr ough th e propert y of the health carefacilit y, bu t th at it wou ld provide lit tle benefit to public safety. CDA th ereforeproposed th at any requir ement to lin k t o th e water li ne in the dri veway of thehealth care facili ty also be deleted.

Cranford d id not object t o th is revised pr oposed condit ion.

The recommendations of the Special Hearing Officer are informed by theforegoing int eraction of the parties all condu cted in conformity with th e

dir ections of the Special Hearing Officer . For th is reason, the Special HearingOfficer properly concluded that no conditions need be imposed concerning off-site improvements concerning provision of public water service. CDA urges theCourt to adopt that recommendation.


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Fin din gs p. 23; Conclusion 10 p. 44; and Condi t ion 3 4 p. 53 (off-sit eimprovements to public sanitary sewer l ines)

Marsden had r ecomm ended th at various stretches of the sani tary sewer lin e

totaling approximately 1,300 linear feet serving the proposed project be re-linedto mit igate the risk of futu re sewer l ine failu res. It was th e positi on of CDAth at Cranford had n ot proven th e essent ial evident iary basis for imposing anobligation t o cont ri bu te to off-sit e improvement to th e sanitary sewer system.The Township had not offered any evidence that re-lining the 1,300 linear feethas any real nexus with t he thr eatened futu re risks to the system caused byth e project. Nor h ad the Townsh ip offered any evidence as to th e magnitu de ofth e ri sk of fu tu re breaks in t he system, th e increase in r isk t hat wou ld becaused by th e additional flow from th e project, or h ow that r isk shou ld pr operl ybe allocated between the existing condition of the system--which the partiesagree is very old, suffers fr om serious u nr emediated in flow and in filtr ation, and

is already subject to br eaks--and th e additional burden that would be placedon th e system by t he flow from t he project. In th e absence of such evidence,CDA urged, th ere is no basis for determining th at there is a su fficient nexusbetween the project and the proposed off-site improvements or that some shareof th e cost of th e proposed improvements be allocated to the project. Itproposed to the Special Hearing Officer that there should be no conditionrequ ir ing CDA to constr uct, or r eimburse th e Townsh ip for any portion of thecost of constructin g, th is improvement . CDA Proposed Conclu sion 111.

Subsequent to th e hearin g, Mr . Marsden ident ified for CDA the fivesegments of sewer line serving the project t hat he had in min d when hetestified: between manh oles 1 and 2 (276 li near feet), manh oles 2 and 3 (226lin ear feet); manholes 6 and 7 (265 l inear feet), manholes 11 and 12 (256 linearfeet), and manh oles 14 and 15 (300 li near feet). These segment s total 1 ,323lin ear feet.

In accordance with the direction of the Special Hearing Officer, thepart ies discussed th is subject at t heir September 21, 2012 meetin g. Followingth at m eetin g, Mr . Marsden undertook to estim ate the costs of lining th e sewer

estimates are set forth in a spreadsheet and explanatory e-mail, whichaccompany th is lett er.

plaint iffs are willing--in a spirit of accomm odation- -estim ates as applied t o th e five segment s of sewer lin e which were th e basis forhis testimony at th e hearing. In l ight of Mr. Marsden analysis, there is no


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need for further proceedings on the issue of off-site improvements to thesanit ary sewer system. The relevant data can just be read off Mr.spreadsheet.

relevant sewer lin e segment s, Mr . Marsden has estim at

rata share of th e cost of labor and m ateri als is $63,478.88. To th is, Mr .

broken pi pe, lateral & MH l in ing, roadway rep

34. Pr ior to receipt of a final cer ti ficate of occupancy for the fir stresident ial uni t i n th e project, CDA shall pay the Townsh ip ofCranford an amoun t equal to its pr o rata share of th e estimated

Development Capacit y and Cost Shar e Analysis for ProposedResident ial Development - 215 and 235 Bir chin iti ally pr epared by Richard Marsden and modified by L2A Designdated October 19, 2012, of slip-lining the following segments of thepu bli c sanit ary sewer line serving the project: between man holes 1and 2 (276 l inear feet), manholes 2 and 3 (226 linear feet);manholes 6 and 7 (265 linear feet), manholes 11 and 12 (256lin ear feet), and manh oles 14 and 15 (300 l inear feet). The totalpayment shall equal $96,487.90 less any so-

erly attr ibut able to theproject.

attr ibu table to CDA and are nondu plicative of other costs in h is estimate.

Through Mr. Morin , plaint iffs have requested th at Mr . Marsden pr ovide a more

less any so-called


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For these reasons, CDA recommends that the Court adopt its proposedCondi tion 34 in lieu of the Condi tion 34 r ecomm ended by th e Special HearingOfficer.

Condit ion 35 p. 53 (t ree replacem ent )

discussed possible conditions to site plan approval concerning treereplacement at their September 21 meeting. At that meeting Mr. Marsdenrecommended t hat CDA plant additional t rees on a portion of the propert y at235 Birchwood Avenue consisting of a swath approximately 80 feet deep northof th e wetlands tr ansition area boundary and parallel to th at boundary. Herecommended th at th e additional plan tin gs include the plant ing of 10additional t rees in th is swath.

In response, CDA prepared a revised landscaping plan embodying this

recommendation. They submi tt ed th is plan to Cran ford on October 4, 2012and to th e Special Hearing Officer and t he Special Master on October 16, 2012.

Cranford has not objected to this revised plan.

recommendations would avoid fu tu re disput es on t hi s issue and potent iallythese circumstances, CDA

Condition 35:

35. The landscaping plan shall be amended to conform to theLandscapin g and Tree Replacement Plan prepared by L2A LandDesign and Paul Keyes Associates and dated October 2, 2012.

For these reasons, CDA recommends that the Court adopt its proposedCondi tion 35 in lieu of the Condi tion 35 r ecomm ended by th e Special HearingOfficer.

CONCLUSION

at p. 53,

concern ing tree replacement, and the his fin dings at p. 23, Conclusion 10 at p.44, and Condit ion 34 at p. 53, concern ing off-site improvements to publi csani tary sewer lin es, CDA respectful ly u rges th e Cour t to adopt t herecomm endations of the Special Hearing Officer in th eir ent irety. As to thosetwo issues, CDA recommends th at t he Court adopt the conditi ons proposedabove, which are based upon post-hearing discussions between the partiescarried out in accordance with the direction of the Special Hearing Officer.


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Respectful ly subm itt ed,HILL WALLACK LLP

By: StephenEisdorfer

Stephen Eisdorfer, Esq.

Enc.cc: Carl R. Woodward III, Esq.

Phi lip Morin , Esq.Douglas Wolfson, Esq.Elizabeth McKenzie, PPDouglas Cohen, Esq.


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UPSTREAM

MH #

DOWNSTREAM

MH #

PIPEDIA

(Inches)

PIPELENGTH

(Ft.)

EXIST

MAX

FLOWRATE

(cfs)

PROP MAX

FLOW RATEFROM

DEVELOPMENT

(CFS)

POST

MAX

FLOWRATE

(cfs)

TWP %MAX

USAGE

CDA %MAX

USAGE

COST

PERLINEAR

FOOT

TOTALCOST FOR

LINING PIPE

TWP %COST FOR

LINING PIPE

DCA % COSTFOR LINING

PIPE

14% DCA $

REDUCTIONDUE TO MAX 70

YEAR PIPE

DETERIORATION

1 2 21 387 1/236 1/394 1/519 1/42 1/7: !%!211/11! !%!!!!38-711/11! !%!!!!!!9-566/99! !%!!!!!2: -255/23! !%!!!!!!27-574/: 5!

2 3 21 337 1/391 1/394 1/674 1/61 1/61 !%!211/11! !%!!!!33-711/11! !%!!!!22-34: /8: ! !%!!!!!22-471/32! !%!!!!!!!!:-87: /89!

3 4 21 353 1/391 1/394 1/674 1/61 1/61 !%!211/11! !%!!!!35-311/11! !%!!!!23-146/63! !%!!!!!23-275/59! !%!!!!!!21-572/56!

4 5 21 354 1/391 1/394 1/674 1/61 1/61 !%!211/11! !%!!!!35-411/11! !%!!!!23-196/37! !%!!!!!23-325/85! !%!!!!!!21-615/79!

5 6 23 237 1/391 1/394 1/674 1/61 1/61 !%!231/11! !%!!!!26-231/11! !%!!!!!!8-62: /83! !%!!!!!!!8-711/39! !%!!!!!!!!7-647/35!

6 7 23 378 1/391 1/394 1/674 1/61 1/61 !%!231/11! !%!!!!43-151/11! !%!!!!26-: 45/75! !%!!!!!27-216/47! !%!!!!!!24-961/72!

7 8 23 327 1/496 1/394 1/779 1/69 1/53 !%!231/11! !%!!!!36-: 31/11! !%!!!!25-: 49/: 3! !%!!!!!21-: 92/19! !%!!!!!!!!:-554/84!

8 9 23 353 1/496 1/394 1/779 1/69 1/53 !%!231/11! !%!!!!3: -151/11! !%!!!!27-848/24! !%!!!!!23-413/98! !%!!!!!!21-691/58!

9 10 23 4:7 1/496 1/394 1/779 1/69 1/53 !%!231/11! !%!!!!58-631/11! !%!!!!38-499/13! !%!!!!!31-242/: 9! !%!!!!!!28-424/61!

10 11 23 367 1/496 1/394 1/779 1/69 1/53 !%!231/11! !%!!!!41-831/11! !%!!!!28-816/4:! !%!!!!!24-125/72! !%!!!!!!22-2: 3/68!

11 12 26 636 1/718 1/394 1/9: 1/79 1/43 !%!261/11! !%!!!!89-861/11! !%!!!!64-81: /38! !%!!!!!36-151/84! !%!!!!!!32-646/14!

12 13 26 354 1/718 1/394 1/9: 1/79 1/43 !%!261/11! !%!!!!47-561/11! !%!!!!35-96:/83! !%!!!!!22-6:1/39! !%!!!!!!!!: -: 78/75!

13 14 26 4:: 1/718 1/394 1/9: 1/79 1/43 !%!261/11! !%!!!!6:-961/11! !%!!!!51-92: /15! !%!!!!!2: -141/: 7! !%!!!!!!27-477/73!

14 15 26 348 1/718 1/394 1/9: 1/79 1/43 !%!261/11! !%!!!!46-661/11! !%!!!!35-356/: 1! !%!!!!!22-415/21! !%!!!!!!!!:-832/64!

15 16 26 381 1/718 1/394 1/9: 1/79 1/43 !%!261/11! !%!!!!51-611/11! !%!!!!38-732/: 2! !%!!!!!23-989/1: ! !%!!!!!!22-186/27!

16 17 26 2:7 1/7:3 1/394 1/: 86 1/82 1/3: !%!261/11! !%!!!!3: -511/11! !%!!!!31-977/57! !%!!!!!!!9-644/65! !%!!!!!!!!8-449/95!

UPUBM 5471 66: -671/11%!!! 447-273/68%!!! 334-4: 8/54%!!!! 2: 3-232/8:%!!!!!

!%!!894-495/11! !%!!!581-738/6: ! !%!!!423-867/52! !%!!!!379-: 81/62!

!%!!94: -451/11! !%!!!615-354/96! !%!!!446-1: 7/26! !%!!!!399-293/7: !

!%!!961-642/31! !%!!!621-: 78/21! !%!!!44: -675/21! !%!!!!3: 3-136/23!

Township of Cranford, Union County, New Jersey

SUMMARY OF POST DEVELOPMENT CAPACITY AND COST SHARE ANALYSISFOR PROPOSED RESIDENTIAL DEVELOPMENT - 215 AND 235 BIRCHWOOD AVENUE

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Engineering Department

Last Revised: 11/9/2012 Page - 1


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From: Philip Morin

To: Stephen M. Eisdorfer

Cc: Douglas M. Cohen; Marsden, Richard

Subject: Birchwood Sa

objections by cda (hekemian) to cranford's objections to site plan hearing findings

Documents