court transcript-birchwood avenue decision[1]

8/6/2019 Court Transcript-Birchwood Avenue Decision[1]

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SUPERIOR COURT OF NEW JERSEY

LAW DIVISION, CIVIL PART

UNION COUNTY, NEW JERSEY

DOCKET NO. UNN-L-3759-08

A.D. NO.:___________________

CRANFORD DEVELOPMENT )

ASSOCIATES, LLC, et al )

)

) TRANSCRIPT

Plaintiffs )

vs. ) OF

)

TOWNSHIP OF CRANFORD and ) DECISION

PLANNING BOARD of the )

TOWNSHIP OF CRANFORD )

)

Defendants )

Place: Union County Courthouse

Two Broad Street

Elizabeth, New Jersey 07207

Date: July 29, 2011

BEFORE:

THE HONORABLE LISA F. CHRYSTAL, J.S.C.

TRANSCRIPT ORDERED BY:BRIAN H. FENLON, ESQ. (Carella, Byrne, Cecchi, Olstein,

Brody & Agnello, P.C.)

APPEARANCES:

STEPHEN M. EISDORFER, ESQ. (Hill, Wallack LLP)

Attorney for the Plaintiffs

BRIAN H. FENLON, ESQ. (Carella, Byrne, Cecchi, Olstein,

Brody & Agnello, P.C.)

Attorney for the Defendants

LYNNCOHEN-MOORE

UTOMATED TRANSCRIPTION SERVICES

P.O. Box 1582

Laurel Springs, New Jersey(856) 784-4276


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AUTOMATED TRANSCRIPTION SERVICES 856-784-4276

2

I N D E X

July 29, 2011

THE COURT PAGE

DECISION 3


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Decision - The Court


3

THE COURT: -- L-3579-08, Cranford1

Development Associates v. Township of Cranford, et al.2

Can I have the appearances of counsel, please?3

MR. EISDORFER: On behalf of plaintiff,4

Stephen Eisdorfer of the Firm of Hill, Wallack.5

MR. FENLON: Your Honor, on behalf of the6

defendant, Township of Cranford, Brian Fenlon of the7

Firm of Carella, Byrne. Daniel McCarthy, the Township8

Attorney is also in court today.9

THE COURT: Welcome to you. Good to see you10

all today.11

MR. FENLON: The same here.12

THE COURT: The court has provided notice in13

accordance with the New Jersey Court Rules that its14

prepared to render its decision in connection with this15

matter.16

In this Mount Laurel action, this court is17

called upon to decide the very difficult case of18

whether the plaintiffs, Cranford Development19

Associates, Samuel Hekemian, Peter Hekemian, Jeffrey20

Hekemian and Ann Krikorian as Trustee, hereinafter21

referred to as CDA, should be permitted to develop a22

15.8 acre property, owned by the company, located at23

215 and 235 Birchwood Avenue, Cranford, New Jersey, a24

property designated as Block 291, Lot 15.01 and Block25


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4

292, Lot 2, on Birchwood Avenue on Cranford Townships1

Tax Map. See testimony of Hekemian of August 3, 2010,2

Kennedy August 3, 2010 and Kennedy site suitability3

report, paragraph 5, exhibit P-33 in evidence.4

The site is currently developed with two5

office buildings and associated paved parking areas.6

The remainder of the site is mature woods, a mixture of7

evergreen and visidious vegetation and lawn.8

Casino Brook, a narrow stream that is9

attributory of the Rahway River, also known as State10

Water Body 10-24 forms the western edge of the site.11

The southeast corner of the site has another12

ditch, according to aerial photographs in evidence13

P-20A and the testimony of Michael Dipple of August 2,14

2010.15

Plaintiffs propose to develop the site with16

two residential buildings, a garage structure together17

with surface parking, walkways, lawns, open spaces,18

preserved woods, wetlands, wetland buffers and19

recreational amenities.20

Plaintiffs propose a total of 419 dwelling21

units with a standard 15 percent rental set aside of22

affordable housing of 63 units to be marketed23

affirmatively and rented in accordance with applicable24

Council on Affordable Housing rules, hereinafter25


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5

referred to as COAH. See the testimony of August 3 of1

Hekemian, of Kinsey of August 3, and Kinsey site2

suitability report, exhibit P-33, testimony of Michael3

Dipple of August 3, and revised concept plan, P-63A in4

evidence.5

Defendants, Township of Cranford and the6

Council of Township of Cranford and the Planning Board7

of Township of Cranford, hereinafter referred to as8

Cranford strenuously oppose the development9

completely.10

Defendants argue that plaintiffs are not11

seeking to vindicate the Constitutional interest of12

marginalized low and moderate income residence.13

Rather, defendants argue that plaintiffs are14

sophisticated for profit developers who have approached15

the Township with a demand that it grant the developers16

approval for the rezoning or the rezoning of this site17

to allow for a ridiculous density thereon which18

defendants argue involve substantial environmental and19

flooding conditions and concerns and does not have the20

infrastructure to support such a project. Essentially21

the defendants argue that the court should deny22

plaintiffs request for site suitability reasons.23

Defendants have attacked the proposal of24

developer completely but has never offered this court25


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6

another viable, feasible alternative. Defendants1

contend that plaintiffs are not entitled to a builders2

remedy of any sort for the following reasons:3

A) Cranford Development Associates did not4

negotiate in good faith or seek to avoid litigation5

prior to suit.6

B) CDA did not serve as the catalyst in7

vindicating the Mount Laurel mandate but rather rode8

the coattails of an older filed builders remedy.9

C) CDAs proposed development does not10

contain a substantial amount of low and moderate income11

housing as it only proposes that 15 percent set aside12

and contains no very low income component.13

D) The site does not comport with sound14

planning and zoning because it suffers from severe15

flooding, parking issue and lacks the infrastructure16

necessary to support the project.17

E) The court must first determine Cranfords18

fair share obligation before any potential remedy is19

considered.20

F) Determination of Cranfords remaining fair21

share obligation should be undertaken using the more22

flexible standards governing Mount Laurel litigation.23

G) This court must disregard CDAs late filed24

expert reports.25


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7

H) The American rule precludes fee shifting1

here because such relief is not authorized by contract,2

R. 4:42-9 or other enabling Legislation.3

As a note, the court has already ruled on the4

experts report, defendants argument G. This court5

does not see need in this decision to revisit this6

issue.7

These reports went to the very heart of this8

case and were essential in the interest of justice.9

They provided this court insight into many of site10

suitability and environmental concerns and for that11

reason their submission was important to the court12

despite procedural concerns raised by the defendant in13

this regard.14

The court relies on its ruling issued on the15

record September 27, 2010 that these expert reports are16

admissible. See trial transcript from December 27 at17

page 12 through 15.18

Plaintiff on the other hand argue in summary19

that:20

A) an award of a site specific builders21

remedy is not a rare and extraordinary form of relief22

but under Mount Laurel II a form of relief to be23

granted routinely and normatively to successful24

builder/plaintiffs in exclusionary zoning litigation.25


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8

B) Plaintiffs are entitled to a site specific1

builders remedy.2

C) Plaintiffs have demonstrated that Cranford3

was not in compliance with its Constitutional fair4

share housing obligation as of the date this litigation5

was filed.6

D) Plaintiffs have proposed a development7

that makes some substantial contribution to meeting the8

Municipalitys fair share obligation.9

E) Where the Municipality contends that a10

successful plaintiff should be denied a site-specific11

remedy because of planning or environmental reasons, it12

bears the burden of proof.13

F) The court cannot deny a builders remedy14

on the basis of contentions either that the project is15

not financial feasible or that it is excessively16

profitable.17

G) None of the planning or environmental18

considerations asserted by defendants meet their heavy19

burden to divest plaintiffs of entitlement to a20

builder's remedy.21

On March 20, 2009, this court granted22

plaintiffs motion for partial summary judgment holding23

that defendants were in violation of their24

Constitutional fair share housing obligations. By25


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9

prevailing on that motion, plaintiff here argue that1

they have per se satisfied the first requirement for2

entitlement to a builder's remedy, establishing3

defendant Township of Cranfords noncompliance with its4

fair share housing obligation. See Alidean Corporation5

v. Bedminster Township 205 N.J. Super 87 (138) (Law6

Division, 1985). See also plaintiffs trial brief at7

page 5.8

Plaintiffs argue that they have proposed a9

site-specific builder's remedy that proposes to make a10

substantial contribution to Cranfords fair share11

housing obligation as required by Mount Laurel II. See12

Southern Burlington County NAACP v. Mount Laurel13

Township, 92 N.J. 158 (279), a 1983 case referred to14

hereinafter as Mount Laurel II.15

This matter was tried before this court on16

August 2, 3, 5, 9, 10, 11, 12, 13, 16, 17, 18, 2010 as17

well as September 27, 28, 29, 2010. The court heard18

testimony on behalf of plaintiff by Michael Dipple,19

Engineer, Peter Hekemian, owner of the Hekemian and S.20

Hekemian Group (phonetic), David Kinsey, Partner in21

Kinsey & Hand, an urban planner, and Elizabeth Dolan,22

traffic engineer.23

Witnesses on behalf of defendant were John24

Hrebin, a Cranford citizen, Stanley Slachetka, Planning25


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Group Manager from T&M Planning, Richard Marsden,1

Professional Engineer with J&M Engineering, and2

Director of Public Works and Engineering for Cranford,3

and Lee D. Klein, traffic manager at T&M.4

The court conducted a site inspection with5

the attorneys and engineers on August 10, 2011 (sic).6

The parties submitted trial briefs, written summations7

and proposed findings of facts and conclusions of law8

and indeed delivered oral summations on December 13,9

2010.10

Elizabeth C. McKenzie, PPPA, Community11

Planner and Special Master, appointed to this case by12

the Honorable Marianne Espinosa rendered two special13

master reports and answered questions for the attorneys14

and the court.15

Ms. McKenzie, AICP certified and an16

experienced professional planning consultant has been17

involved in litigation in over 200 Municipalities in18

the state of New Jersey. She submitted a letter of19

support on July 19, 2010, a report to the court on20

January 4, 2010, and a supplementary report on December21

1, 2010. She also testified at the conclusion of the22

trial with specific clarity on September 29, 2010.23

Point 1. History of Mount Laurel decision.24

In its 1975 opinion, in Southern Burlington County25


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11

NAACP v. Mount Laurel Township, 67 N.J. 151, cert.1

dend 423 U.S. 808 (1975), Mount Laurel I, the Supreme2

Court of New Jersey held that developing Municipalities3

are obligated under our State Constitution to provide a4

realistic opportunity for the development of low and5

moderate income housing.6

Two years later in 1977, the court created7

the builder's remedy as an incentive for the8

institution of socially beneficial but costly9

litigation such as Mount Laurel. See Toll Brothers v.10

West Windsor 173 N.J. 502 (561) 2002, citing Oakwood at11

Madison v. Township of Madison 72 N.J. 481 (550-551)12

(1977).13

The builder's remedy permitted builders to14

seek court approval for construction of the housing15

project they proposed to the Township prior to or16

during the pendency of the action pursuant to plans17

which they originally represented would guarantee the18

allocation of at least 20 percent of the units to low19

or moderate income families. See Toll Brothers v. West20

Windsor 173 N.J. 502 (561) (2002), citing Oakwood at21

Madison 27 N.J. 551.22

While the builder's remedy was originally23

conceived as a rare form of relief, the court soon24

after reconsidered this standard, ruling that builder's25


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12

remedies must be more readily available to achieve1

compliance with Mount Laurel. See Mount Laurel II 922

N.J. 279.3

A plaintiff in a builder's remedy action must4

first demonstrate that a Municipalitys Land Use5

Ordinances are unconstitutionally exclusionary, Mount6

Laurel I, 67 N.J. 151 Oakwood at Madison 72 N.J.7

550-551.8

Under the Mount Laurel doctrine,9

municipalities have both negative and affirmative10

duties. See Mount Laurel I, 67 N.J 179-180. For11

example, municipalities must not take action to thwart12

the provision of low or moderate income housing, Id13

180.14

They must also take positive actions to15

create a realistic opportunity for the creation of16

units, Id 179. Mount Laurel II 72 N.J. 260-262.17

Therefore, municipalities that fail to zone for18

affordable housing or that zone for less than their19

fair share are in violation of their Constitutional20

obligations, Mount Laurel II, 92 N.J. 216. Indeed this21

court has decided this issue by grant of summary22

judgment to plaintiff on March 20, 2009.23

The New Jersey Legislature implemented the24

Mount Laurel decisions by assigning the Council of25


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13

Affordable Housing, COAH, the responsibility to1

delineate housing regions, determining regional needs2

for low and moderate income housing and allocate that3

need to municipalities within the regions, N.J.S.A.4

52:27D-307, 311, 314, 315. Even if a municipality5

alleges that it has no vacant developable land to meet6

this fair share obligation, it must still attempt to7

comply. See Fair Share Housing Corporation v. Cherry8

Hill, 173 N.J. 393 (407-408) (2002).9

A municipality that asserts a lack of10

sufficient vacant developable land can request an11

adjustment of its obligations, N.J.A.C. 5:93-4.2. COAH12

then assesses how much low and moderate income housing13

may be constructed on the land and based on this14

assessment COAH determines the municipalitys realistic15

development potential, N.J.A.C. 59:93-4.2E.16

If the realistic developmental potential is17

lower than the fair share housing obligation, the18

municipality must still do more than attempt to satisfy19

the lower realistic developmental potential. The20

municipality must take steps to ensure that any21

development or redevelopment on its land results in22

affordable housing.23

These requirements apply to both the24

municipalitys unmet prior round obligations and its25


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14

unmet third round growth share obligations. See1

N.J.A.C. 5:97-5.3B, N.J.A.C. 5:97-5.7.2

Courts are required to evaluate the extent of3

a municipalitys fair share obligation as of the date4

of the filing of the litigation. See Toll Brothers v.5

West Windsor Township 303 N.J. Super. 518 (531) (Law6

Div., 1996) affirmed 334 N.J. Super 109 (App. Div.,7

2002), affirmed 173 N.J. 502 (519) (2002).8

If the trial court finds that the9

municipality has failed to meet its Constitutional10

obligations, the court must order the municipality to11

revise its Zoning Ordinance within a set time period to12

comply with the Constitutional mandate and if the13

municipality fails to adequately revise its Ordinance14

within that time, the court implements the remedies for15

noncompliance, Oceanport Holding, LLC v. Borough of16

Oceanport 396 N.J. Super. 622 (630) (App. Div., 2007).17

Where plaintiff succeeds in demonstrating18

that the municipality has not complied with its fair19

share obligation, two other elements must be met in20

order for a developer to obtain a builder's remedy.21

The plaintiff must show that the project proposal will22

provide a substantial amount of lower income housing,23

and the site must be suitable for the proposed24

development, Mount Laurel II, 92 N.J. 279, 280, holding25


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16

requirements necessary for a successful builder's1

remedy application and there is no indication of bad2

faith or use as a bargaining chip, the court may grant3

a builder's remedy conforming that remedy to principles4

of sound planning, sound municipality land use5

planning, In Re. Township of Denville 247 N.J. Super6

186 (198) (1991).7

However, the court has the discretion to8

soften the impact of construction by phasing a9

development over a period of years to avoid a radical10

transformation, J.W. Fields Company, Inc. 204 N.J.11

Super 445 (453) (1985) citing Mount Laurel II at 280,12

331 and 332.13

Through a builder's remedy and the14

requirements and restrictions that accompany it, the15

courts can ensure that they are complying with the16

Constitutional obligation of affording a realistic17

opportunity for the construction of low and moderate18

income housing, Mount Laurel II 92 N.J. 205.19

Point 2. Recent Appellate Division Ruling.20

This case filed on November 12, 2008 presents several21

complex legal issues, particularly given the current22

historical prospective and in light of the recent23

Appellate Division case, In Re: Adoption of N.J.A.C.24

5:96, Docket Number A-5382-07 T3, Appellate Division25


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October 8, 2010 which pertains to prior round and1

present need municipal housing obligations.2

The Appellate Court in In Re: Adoption of3

N.J.A.C. 5:96 concluded that COAHs revised third round4

rule suffered from many of the same deficiencies as the5

original third round rules unless substantial portions6

of these rules were invalidated and remanded to COAH.7

Se In Re: Adoption slip opinion at 6.8

Defendants argue that the decision in this9

case therefore should be stayed given the uncertainty10

of the municipalitys third round obligation going11

forward in light of that Appellate Division decision.12

Indeed, the court is mindful of the fact that the13

viability of COAH is current in question.14

Plaintiff CDA argues that the Appellate15

Division in In Re: Adoption made substantive rulings16

that potentially affect this courts decision and it17

urges that this court can decide Cranfords past and18

present unmet needs.19

Plaintiff has argued that the Appellate20

Division upheld COAHs determination of so-called prior21

round and present need components of municipal housing22

obligations. See plaintiffs October 15 letter brief,23

page 1, citing In Re: Adoption slip opinion at 50-56,24

66-68 and page 72.25


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18

For Cranford the prior round obligation as1

determined by COAH is 148 units according to2

plaintiffs argument. See also Report of the Special3

Master 12/1/10, thats December 1, 2010 at page 17.4

Based upon the last survey conducted by5

Cranford of physically substandard units occupied by6

low and moderate income houses which according to the7

testimony of Mr. Stanley Slachetka took place8

subsequent to all rehabilitation activities reported by9

defendant, the unmet present need is 53 units according10

to plaintiffs argument. See plaintiffs letter brief11

at page 2.12

Plaintiff addresses four aspects of the In13

Re: Adoption decision that support plaintiffs14

contentions in this case: prior rental bonus credits,15

speculative projects, maximum amount of housing to be16

set aside, and third round prospective need17

obligation.18

A. Prior rental bonus credits. Plaintiffs19

argue that regarding prior rental bonus credits, the20

Appellate Court struck down COAH regulations21

authorizing certain type of bonus credits.22

Specifically it struck down N.J.A.C. 5:97-3.5A, a23

regulation authorization extra bonus credits for rental24

projects that are designated to meet prior round25


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housing obligations but which have not yet been1

constructed. See Slip Opinion at 41-45 and Page 72, oh2

71.3

B. Speculative projects. Plaintiffs argue4

the Appellate Division struck down N.J.A.C. 5:97-3.2A45

a regulation allowing credit for speculative 1006

percent low and moderate income projects, i.e. projects7

that cannot now be developed whether because the8

municipality does not currently control the site, does9

not have sufficient funds to construct the project and10

has not identified an actual developer and operator or11

does not have a definite timetable for construction.12

See Adoption Slip Opinion at page 32-33. According to13

plaintiffs argument, the Appellate Court held that14

such proposals do not create realistic housing15

opportunities.16

C. Maximum amount of housing to be set17

aside. Plaintiffs submit that the Appellate Division18

also struck down N.J.A.C. 5:97-6.4B2 a regulation that19

sets the proportion of units in an inclusionary project20

that can be required to be set aside for sale to low21

and moderate income households at a maximum of 2522

percent. See In Re: Adoption Slip Opinion at 34-41.23

Plaintiffs argue that the Appellate Division24

held that inclusionary projects cannot be required to25


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set aside more than 20 percent of the units for sale to1

low and moderate income houses. Plaintiffs argue that2

the court held that requiring any higher set aside3

would fail to create realistic housing opportunities,4

Id 39-41.5

Plaintiffs argue that COAHs rules provide6

that the proportion of units in an exclusionary project7

that can be required to be set aside for low and8

moderate income households in a rental project is 59

percentage points below the set aside for projects10

incorporating sales units. See N.J.A.C. 9:, sorry,11

strike that, N.J.A.C. 5:97-6.4B6.12

Plaintiffs argue that the Appellate Division13

opinion did not invalidate that standard. Thus, if the14

maximum set aside for sales units is 20 percent, the15

maximum required set aside for rental units is 1516

percent.17

Plaintiffs contend that this is precisely18

what COAH's prior round regulations mandated. Those19

regulations set the maximum set aside that could be20

required for inclusionary projects providing for sale21

of units to low and moderate income households at 2022

percent and set the maximum required set aside for23

projects with rental units at 15 percent. See N.J.A.C.24

5:93-15.5C5.25


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21

Based on this standard, the Appellate1

Division has held that 15 percent is the appropriate2

set aside for builder's remedy for an inclusionary3

rental project. See Toll Brothers v. West Windsor4

Docket Number A-5897, Appellate Division, August 16,5

2000, which the Supreme Court affirmed. See also Toll6

Brothers v. West Windsor 173 N.J. 502 (561) (2002).7

Thus, plaintiffs assert that in light of the8

ruling in Re: Adoption the court should require that 159

percent of the units in the CDA project be set aside10

for low and moderate income households. See11

plaintiffs October 15 letter brief at page 3 to 4.12

Defendants argue on the contrary that CDAs13

15 percent set aside is insufficient according to14

COAHs third round rules. See defendants findings of15

fact and conclusions of law and summation at page 39.16

Defendants question plaintiffs reliance on17

the prior round rules and on the case that was decided18

when the prior round rules were in effect. Defendants19

further argue that a 15 percent set aside as opposed to20

the 20 percent set aside that they allege is proper in21

this case will overburden Cranford because it will then22

be required to make up for the gap this project will23

create.24

D. Third Round prospective need obligations.25


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23

trial evidence in this case prior to the Appellate1

Divisions October 8, 2010 decision, this court will2

not stay its decision even though the continued3

viability of COAH is admittedly questionable.4

The Special Master reviewed the Appellate5

Division decision and indeed modified her6

recommendations after consideration of that decision7

and after hearing the trial testimony of all witnesses8

and experts for both sides. See Report of Special9

Master of December 1, 2001 wherein Ms. McKenzie10

commented on the Appellate Division decision of October11

8, 2010 and noted, and I quote:12

The Appellate Courts October 8, 201013

decision invalidating large portions of COAHs third14

round rules addresses the question of incentives for15

the provision of Affordable Housing. The court stated16

as follows:17

We take judicial notice of the fact that a18

20 percent set aside requirement has been considered19

the norm in the administration of the Mount Laurel20

doctrine and that experts in the field have expressed21

skepticism whether developers will be motivated to22

construct residential developments with affordable23

housing set aside requirements any higher than 2024

percent.25


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24

Current economic conditions and regulatory1

requirements for new housing construction make it even2

more unlikely than in the past that municipal zoning3

requiring more than 20 percent of new residential units4

to be affordable to lower income households would5

provide a realistic opportunity for construction of a6

substantial number of such units. In Re: Adoption slip7

opinion at page 39.8

Based on the opinion expressed by the9

Appellate Court and considering that the previous10

standard for the provision of affordable housing both11

in the outcome of various Mount Laurel cases and in12

COAHs prior round rules have been a maximum set aside13

of 20 percent which was applicable to affordable units14

being sold and a maximum set aside of 15 percent in the15

case of affordable units being rented, there is even16

more support for the notion that the 15 percent17

affordable housing set aside recommended for the CDA18

site is a sufficient a reasonable set aside requirement19

under the circumstances. See Report of the Special20

Master 12/1/10 at page 17-18.21

Admittedly, Mount Laurel and the continued22

COAH viability are in a state of flux. However, since23

all the evidence has been submitte4d and all the briefs24

and arguments have been made, this court can find no25


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25

reason to stay a decision in this case.1

Point 3. Summary of Arguments. Plaintiffs2

have argued that Cranford is a historically3

exclusionary municipality. Since 1980 it has actively4

and successfully zoned for job creating non-residential5

development including zoning for a large office park6

near the Garden State Parkway.7

Plaintiffs contend that between 1990 and 20068

while the population of the municipality remained9

stable, the number of jobs within the municipality10

increased by almost 40 percent. During that same11

period, however, there was no low or moderate income12

housing available with the exception of housing13

restricted to the elderly or the handicapped.14

While the Township maintained ample zoning15

for non-residential uses, plaintiffs contend Cranford16

maintained that it lacked sufficient land to17

accommodate low or moderate income housing and that18

continues to be Cranfords position in its most recent19

housing plan.20

Plaintiff CDA proposes to construct two mid-21

sized luxury apartment buildings together with a22

parking structure on this site. Plaintiffs proposal23

is that these buildings would be comprised of 41924

residential units of which 63 or 15 percent would be25


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26

affordable to and reserved for low and moderate income1

households.2

Peter Hekemian and Michael Dipple described3

the project and the current concept plan during their4

testimony. See also exhibits P-63, P-63A and P-645

showing the proposed building A and building B and the6

proposed concept plan.7

Plaintiffs argue that the issue before this8

court is whether CDA is entitled to a site specific9

builder's remedy on this site and what the magnitude of10

the remedy should be. Defendants however argue that11

since fashioning the builder's remedy as a means of12

compelling municipalities compliance with the Mount13

Laurel mandate, the Supreme Court has warned of the14

danger of builder abuse. Trial courts have been15

repeatedly cautioned that they must ensure this16

remedial device is not used as a weapon to coerce17

municipalities into acceding to unrealistic builder18

demands.19

Defendants argue that although originally20

envisioned as a tool to stimulate affordable housing,21

Mount Laurel has evolved into more of a blank check for22

unreasonable development than a means of vindicating23

this beneficial interest.24

To temper the potential for abuse, the25


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27

Supreme Court imposed several hurdles a builder must1

mount to be considered for a remedy. Defendants2

contend the builder must negotiate in good faith and3

seek to avoid litigation prior to filing suit. Failure4

to do so forecloses any potential remedy.5

Next, defendants argue that the builder must6

be the catalyst driving the municipalitys compliance.7

Additionally, the builder must propose a substantial8

amount of affordable housing.9

Finally, no remedy can issue to a site that10

suffers from environmental or physical constraints or11

if the project would constitute bad zoning and planning12

according to defendants arguments. Each of these13

parties arguments will be addressed.14

In this case, defendants repeatedly argue15

that CDA and its representatives are not white16

knights seeking to vindicate the Constitutional17

interests of marginalized low and moderate income18

families. Rather, defendants argue they are for-profit19

developers who demanded Cranfords approval of an20

unreasonable project on a site that suffers from severe21

environmental and physical constraints and does not22

have the infrastructure to support it.23

Defendants argue simply that the entire24

project should be rejected because it represents bad25


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planning and is too environmentally constrained to1

permit the project to go forward. However, defendants2

have never offered a realistic, appropriate alternative3

plan that this court could consider.4

Indeed, the court is sensitive to the5

widespread opposition to the project in Cranford. See6

defendants findings of fact/conclusions of law and7

summation, page 60, paragraphs 34-35.8

Recently, this court has received several9

inappropriate non-evidential letters from citizens10

opposing the project. Since these letters are outside11

the scope of the evidence presented in court during12

trial, they simply cannot be considered by this13

court.14

The Special Master recommended a builder's15

remedy for CDA in her reports of January 4, 2010 and16

December 1, 2010. On January 4, 2010, she concluded,17

The site is in my opinion suitable for an18

exclusionary residential development of the magnitude19

proposed. See report of Special Master 1/4/10 at page20

31.21

She did, however, suggest certain specific22

caveats to address flooding, drainage, parking,23

environmental and set aside issues. See Special Master24

report of 1/4/10 at page 25-29.25


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29

In her December 1, 2010 report, the Special1

Master opined that nothing rose to the level of2

disqualifying the site from an award of a builder's3

remedy. This language in her report was consistent4

with her clear credible, well-reasoned and thoughtful5

testimony of September 29, 2010 at trial.6

She modified her recommendations, however,7

and concluded:8

As a result of both the testimony presented9

at trial and a careful reading of the Appellate Courts10

October 8, 2010 decision invalidating substantial11

portions of the COAH third round rules, I have modified12

the recommendations presented in the January 4, 201013

report of the Special Master in this case.14

The builder's remedy recommended for the CDA15

site is now for 360 units not 419 units and for 5416

affordable units, not 63 affordable units.17

A revised plan is recommended to be prepared18

for submission at the time of the site plan approval,19

showing an increased front yard setback, an additional20

buffer along the eastern lot line, compliance with an21

on site parking standard of at least 1.85 spaces per22

unit and the removal of one residential floor from23

building A.24

It is recommended that if the court sees fit25


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30

to approve a builder's remedy for the CDA site, a1

condition be included requiring the storm water2

management plan submitted to the NJDPEP must include an3

analysis of and measures to address the sites existing4

hydraulic conditions whether de facto or otherwise so5

that off site drainage and flooding impacts are not6

worsened as a result of the development of the CDA7

site. Further, the percentage of impervious service8

coverage on the site should not be increased over that9

which exists today, considering both of the lots10

comprising the CDA site.11

The court could elect to award the builder's12

remedy based solely on the Townships unsatisfied prior13

round and rehabilitation obligation or the court could14

invite the Township to submit a revised housing element15

and fair share plan now that would qualify Cranford for16

repose through the end of 2018. The latter alternative17

would not ordinarily be recommended in the absence of a18

calculation of the third round fair share obligation,19

number resolutions (phonetic) to the Constitutional20

fair share obligation have been eschewed by the court.21

In Cranfords case, however, the paucity of22

vacant developable land within the Township has already23

been demonstrated in the Townships existing housing24

element and fair share plan and it is clear that a25


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31

vacant land adjustment will be warranted irrespective1

of the magnitude of the third round obligation aside to2

Cranford. The township could calculate how much3

capacity it has to satisfy a third round obligation and4

the court could approve a plan addressing that5

capacity.6

The only uncertainty would be the extent of7

the unmet need remaining once a third round number has8

been assigned to the Township by COAH or successor9

agency. The Township already has excess senior housing10

units that could be applied to that unmet need once it11

is calculated.12

Regardless of which approach the court13

chooses to take in this matter, I do not believe that14

the number of affordable units to be generated by the15

recommended builder's remedy will be too many for16

Cranford. See report of the Special Master December 1,17

2010 at page 24-25.18

The court in this case has considered the19

credibility, incentives, bias and motivation of all20

witnesses who testified in this case. And in rendering21

its decision, I will comment on each of them in turn.22

A. Good faith negotiations. Under23

J.W. Fields Company v. Franklin 204 N.J. Super. 461 and24

Mount Laurel II 92 N.J. 342, Note 73, a builder must25


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32

negotiate in good faith and attempt to obtain relief1

without litigation to be considered for a site specific2

remedy. Mount Laurel should not be used as an3

untenable bargaining chip in a builders negotiation4

with the municipality, see Mount Laurel II 92 N.J.5

280. The threat of Mount Laurel litigation should not6

be invoked simply because the municipality approvals7

for projects containing no lower income housing are not8

forthcoming. Courts have held that proofs of such9

threat shall be sufficient to defeat Mount Laurel10

litigation by the developer.11

On June 23, 2010, this court granted partial12

summary judgment to CDA on the issue of good faith13

negotiations, holding that there is no evidence that14

CDA negotiated in bad faith. Nevertheless defendants15

have argued at great length in this trial that CDA did16

not negotiate in good faith or seek to avoid litigation17

prior to filing suit. They claim that additional18

evidence came to light during the trial that further19

demonstrates CDAs bad faith and requires the court to20

revisit its earlier holding. Defendants contend that21

despite Cranfords best efforts and willingness to work22

with CDA, in spite of coercive tactics and unreasonable23

demands, CDA filed this action in the hopes of24

obtaining court approval to build this grossly25


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33

unreasonable project.1

Defendants argue that this is precisely the2

misuse of a builder's remedy that the courts were3

concerned about when they created it. See Toll4

Brothers 173 N.J. 561 where the Supreme Court again5

acknowledges the controversy engendered by the remedy6

which it endorsed after much deliberation and with a7

great deal of concern and caution.8

Defendants contend that Mr. Kinsey testified9

that he was retained for purposes of litigation and not10

in connection with selecting and/or redesigning CDAs11

project as the site was selected, purchased and a12

concept plan prepared long beforehand. They argue that13

the evidence at trial demonstrate the unreasonable and14

indeed impossible request hoisted upon Cranford on15

October 7, 2008 where Cranford was asked to approve the16

project and rezone CDAs property by the October 2117

meeting or else.18

Off the record, one second.19

(Off the record. On the record)20

THE COURT: Defendants contend that the court21

should reconsider its earlier interlocutory ruling on22

bad faith as it is encouraged to do in its sound23

discretion and in the interest of justice, citing24

Lombardi v. Masso, Docket Number A-14209, June 29,25


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34

2010, slip opinion at page 11, citing R. 4:42-2 and see1

also Gonzalez v. Ideal Tile Importing Company2

371 N.J. Super 349 (356) (App Div., 2004) wherein3

judges are not obliged to slavishly follow an erroneous4

or uncertain interlocutory ruling, affirmed 84 N.J. 4155

(2005). See also Johnson v. Cyklop Strapping6

Corporation 220 N.J. Super 250 (264) (App. Div., 1987),7

holding that the power to revisit interlocutory orders8

prior to the entry of final judgment is endowed with an9

unmistakable substantive context by the common10

understanding which underlines our jurisprudence of11

what is fair, right and just in the circumstances,12

cert. denied 110 N.J. 196 (1988) Ford v. Weissman13

188 N.J. Super. 614 (619) (App. Div., 1983) holding14

that prior to entry of final judgment a judge has15

complete power over its interlocutory orders and may16

revise them when it would be consistent with the17

interest of justice to do so.18

Defendants maintain that here it is clear19

that CDA did not negotiate in good faith nor seek to20

avoid litigation prior to filing suit. It simply went21

through pretextual motions prior to doing so and never22

bargained at all. Instead it presented the Township23

with a Hobsons choice, approve in two weeks its24

massive and unreasonable development unlike any other25


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35

in the Township on a site located in a flood plane1

which suffers from a variety of zoning and planning2

issues, or subject itself to a second Mount Laurel3

suit.4

The court previously decided the good faith5

issue on June 23, 2010 and ruled and I cite to my6

decision, June 23, 2010, at page 12.7

In this case, there is no evidence that8

Cranford Development negotiated in bad faith. There is9

no evidence that they threatened litigation if10

settlement negotiations were not reached. Under an11

objective standard, there is no evidence including12

witness testimony for which a reasonable fact finder13

could find that the plaintiff filed the instant14

litigation prematurely in the absence of any litigation15

threats.16

On the contrary, Cranford Development17

presented evidence that it appeared at three regular18

Township Committee meetings and three workshop meetings19

over a period of eight weeks to request that the20

Township rezone the property. There is ample evidence21

that Cranford Development attempted to engage Mayor22

Puhak and the Township Committee in negotiations prior23

to the present litigation. Therefore, the motion for24

summary judgment to strike the Townships good faith25


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36

defense was granted.1

The court has considered these arguments2

again presented at trial and in defendants brief and3

despite the trial testimony and evidence elicited on4

this subject at trial, this court will not modify its5

earlier decision on this issue.6

At trial, Peter Hekemian testified about the7

background of the proposed project dating back to the8

spring of 2008 when the property was identified in9

September 2008 when title closed. He also outlined a10

similar project in Englewood, New Jersey and testified11

about the concept plan here. See P-63A. Specifically,12

he testified about attempts to obtain approval for the13

project.14

The court also heard detailed testimony from15

Stanley Slachetka on behalf of Cranford about16

Cranfords fair share housing analysis, exhibit D-66,17

the Planners report, D-96 and Slachetkas certification18

and chronology of this litigation and Cranfords19

affordable housing planning efforts, see D-80.20

Nothing in the testimony presented nor the21

exhibits persuaded this court that Cranford is entitled22

to a good faith defense to this exclusionary zoning23

litigation. See Mount Laurel II, 92 N.J. 220, 221.24

By prevailing on March 20, 2009, the motion25


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37

for partial summary judgment, plaintiffs have satisfied1

the first requirement for entitlement to a builder's2

remedy. See Allan-Dean Corp. v. Bedminster 205 N.J.3

Super 87 (138).4

B. Plaintiff as a catalyst to change.5

Defendants argue that CDA was not the catalyst in6

vindicating the Mount Laurel mandate with regard to7

Cranfords Constitutional fair share housing8

obligations. Relying on the opinion in the Allan-Dean9

Corp. v. Bedminster defendants claim that CDA merely10

rode the coattails of an earlier filed suit by Lehigh11

Acquisition Corporation hereinafter referred to a12

Lehigh and as a result should be denied a builder's13

remedy. See Allan-Dean, 205 N.J. Super. at 138.14

Defendants contend that since it was Lehighs15

suit that was the catalyst driving Cranfords16

compliance, CDA should not be able to take advantage of17

the builder's remedy.18

Plaintiffs argue that the Allan-Dean decision19

does not disqualify CDAs builder's remedy application20

because unlike in Allan-Dean this case involves a21

plaintiff who did participate in the litigation22

determining Cranfords compliance with fair share23

housing requirements, 205 N.J. Super 138, holding that24

a builder's remedy should be denied where a developer25


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38

enters the suit only after the portion of the trial1

invalidating the Townships Ordinance.2

Though Lehighs complaint was filed first,3

CDA participated in the litigation, finding the4

municipality in violation of its Constitutional fair5

share obligations. CDA, therefore, claims it should be6

not precluded from the award of the builder's7

remedy.8

In Allan-Dean Corp. v. Bedminster the9

builder's remedy is described as a way to bring about10

Mount Laurel compliance by inducing and rewarding11

litigation which starts the rezoning process,12

205 N.J. Super. 141. Once the process has begun, there13

is no need for further remedies, Id.14

Thus, Allan-Dean held that in order to15

qualify for a builder's remedy the developer must be a16

Mount Laurel plaintiff involved in compliance17

litigation and must bring about the process leading to18

Ordinance compliance, Id 138.19

The court has considered the arguments and20

finds that CDA did meet the qualifications for a21

builder's remedy outlined in Allan-Dean. Although CDA22

filed its claim subsequent to the filing of Lehighs23

claim, CDA was involved in the process of litigation24

and indeed the reasons for this courts March 20, 200925


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39

order granting partial consolidation of the CDA and1

Lehigh cases was because both cases required the court2

to determine whether Cranford was in violation of its3

fair share obligations.4

Moreover, although the Lehigh case was5

settled, CDA has fully litigated this case, including6

14 trial days, a site inspection, full briefing and7

submissions for the court. Indeed, Cranford cannot8

argue that CDA was not a catalyst for change simply9

because it settled with Lehigh the first filed lawsuit.10

For these reasons, the court rejects defendants11

argument that the plaintiffs builder's remedy should12

be denied on this basis.13

C. Substantial amounts of low and moderate14

income housing. As discussed earlier in the discussion15

of In Re: Adoption of N.J.A.C. 5:96 Supra., page 17-1916

of this decision, plaintiff argues that COAH rules17

provide that the proportion of units in an inclusionary18

project that can be required to be set aside for low19

and moderate income households in a rental project is 520

percentage points below the set aside for projects21

incorporating sales units. See N.J.A.C. 5:97-6.4B6.22

Plaintiffs further argue that the Appellate23

Division opinion in In Re Adoption did not invalidate24

this standard. Thus plaintiffs contend that if the25


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40

maximum required set aside for sales unit is 201

percent, the maximum set aside for rental units is 152

percent. The Special Master also endorsed this3

interpretation of the In Re Adoption opinion.4

Plaintiffs further contend that the Supreme5

Court and the Appellate Division have expressly held6

that a builders plaintiff who sets aside 15 percent of7

the units in a proposed inclusionary project to be8

rented to low and moderate income families and9

individuals satisfies the requirement that a10

builder/plaintiff made a substantial contribution11

towards meeting the municipalitys fair share housing12

obligation. See Toll Brothers v. Township of West13

Windsor 2000 N.J. Super. Lexis 333 at 12-13, Appellate14

Division, August 16, 2000 and Toll Brothers v. West15

Windsor 173 N.J. 502 (561) (2002).16

In Toll Brothers the defendant municipality17

appealed from the trial court decision granting a site18

specific builder's remedy for a project in which 1519

percent of the units would be low and moderate income20

rental units. The Appellate Division declared21

Defendants argue that the court should have22

required a 20 percent set aside, the standard set by23

the court in Mount Laurel II. We disagree.24

Extensively analyzing COAH regulations, the Master25


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41

concluded that a 15 percent set aside was appropriate.1

Judge Carchman agreed with the Masters analysis. It2

was his view that the proposed project with a 153

percent set aside of rental units would substantially4

benefit the Township.5

It is true that the court in Mount Laurel II6

observed that in a builder's remedy case, a 20 percent7

set aside appears to us to be a reasonable minimum.8

Mount Laurel II 92 N.J. 158, note 37. However, because9

of the profit developers need to generate on market10

units to subsidize affordable units, it soon became11

apparent that the building community viewed 20 percent12

as the maximum feasible set aside, J.W. Fields Company,13

Inc., 204 N.J. Super. at 467.14

If a set aside is too high, affordable15

housing will not be built, Allan-Dean 205 N.J. Super.16

116. Further, a 15 percent set aside conforms to COAH17

guidelines.18

Toll Brothers advances COAH policy by19

proposing to build a substantial number of family20

rental units but this requires a deeper subsidy from21

the developer. See Toll brothers v. Township of West22

Windsor 2000 N.J. Super. Lexis 333 at 12-13. See also23

Mount Laurel II 92 N.J. 158, note 37, holding that what24

is substantial in a particular case will be for the25


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42

trial court to decide.1

This determination should be made based on2

factors such as size of the project and the proportion3

of the municipalitys fair share that the development4

will fulfill.5

The Supreme Court specifically affirmed this6

holding in Toll Brothers v. West Windsor 173 N.J. 561.7

This is consistent with maximum permissible required8

set asides authorized in COAHs first and second round9

regulations which set the maximum at 20 percent for10

sales housing and 15 percent for rental housing.11

N.J.A.C. 5:93-15.5C5.12

Although COAHs third round regulations13

purported to authorize maximum permissible required set14

asides at a higher level, N.J.A.C. 5:97-6.4B6, these15

regulations were invalidated by the Appellate Division16

in Re Adoption of N.J.A.C. at page 34-41.17

The Appellate Division struck down those18

regulations on the grounds that the higher maximum set19

aside failed to create realistic opportunities for the20

construction of affordable housing, id at 39-41. In21

light of that decision, the holding of the Appellate22

Division and the Supreme Court are binding upon this23

court. Therefore, according to plaintiffs, the 1524

percent set aside for this project would constitute a25


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43

substantial amount of low and moderate income housing1

under COAHs rules.2

Defendants argue that this percentage is not3

sufficient, stating that plaintiffs are mistaken in4

relying on prior round rules and Toll Brothers decision5

made while the prior round rules were in effect in6

making this determination. They further contend that a7

15 percent set aside would prove to be a burden on8

Cranford because they would be forced to make up for9

this gap.10

The Special Master, however, was satisfied11

with the 15 percent set aside. She opined based on the12

opinion expressed by the Appellate Court in In Re13

Adoption and considering the previous standard for14

provision of affordable housing both in the outcome of15

various Mount Laurel cases and in COAHs prior round16

rules having a maximum set aside of 20 percent which17

was applicable to affordable units being sold and a18

maximum set aside of 15 percent in the case of19

affordable units being rented, there is now even more20

support for the notion that the 15 percent affordable21

housing set aside recommended for the CDA site is a22

sufficient and reasonable set aside requirement under23

the circumstances. See Special Master report 12/1/1024

at page 18.25


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44

Upon careful consideration of the arguments1

of both parties, the opinion of the Special Master and2

the In Re Adoption opinion, this court is satisfied3

that the 15 percent set aside is sufficient in this4

case where rental units are proposed constituting a5

substantial amount of low and moderate income housing6

and will not unduly burden Cranford and will7

substantially benefit the town similar to the findings8

of Judge Carchman in Toll Brothers v. West Windsor 3039

N.J. Super. 518.10

Number 4. Site suitability. A. Flooding11

and storm water management. Cranford argues that the12

site suffers from severe flooding, is encumbered by13

wetlands and has a net buildable area of roughly 614

acres of the 15.8 acre site. The court notes that15

there is a discrepancy between the parties as to16

whether the land is 15.8 or 15.9 acres in size. The17

court will rely on the calculation of the Special18

Master which found 15.8 acres.19

Defendants argue that these substantial20

environmental concerns have not been and cannot be21

adequately addressed by plaintiffs experts. As a22

result, defendants argue that CDA has not established23

that it will be able to obtain necessary flood hazard24

area storm water management and fresh water wetlands25


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45

permits hereinafter referred to as FHA permits and1

approvals from the New Jersey Department of2

Environmental Protection hereinafter referred to as3

NJDEP.4

Moreover, defendants contend that this site5

is currently zoned 01 which permits the construction of6

low density office buildings. It is roughly 15.8 acres7

in size with a topography that is considerably flat,8

only 6 acres of which is constrained and reasonably9

developable.10

Nevertheless CDA proposes construction of 41911

units in two buildings A and B which will house 88 and12

331 units respectively. See testimony of August 3,13

2010 transcript at page 15, 21, 53-54.14

The flooding and storm water management15

issues were the subject of substantial and significant16

trial testimony.17

By memo dated October 20, 2008 as part of18

Cranfords review of the September 2008 concept plan,19

Township engineer Richard Marsden advised the Township20

Committee that Casino Brook was a very sensitive area21

and prone to regular flooding and that care be taken to22

ensure that existing conditions were not worsened by23

this project which would require an FHA permit from the24

NJ-DEP. See testimony of August 12, 2008 and exhibit25


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46

D-55.1

Richard Marsden also testified at trial on2

August 12, 2010. His credible testimony regarding the3

severe flooding and serious flood impact on Cranford4

are of great concern to this court and were considered5

together with the testimony on this topic by the6

Special Master.7

Mr. Marsden outlined the history of flooding8

in the Birchwood area through his detailed specific9

testimony and review of exhibits D-37, D-45, D-48, -49,10

D-50, D-113, D-170, D-98. This court took his concerns11

about sanitary sewer issues, water storage, impervious12

coverage and flooding very seriously. Indeed these are13

very substantial in this courts determination as to14

whether there are environmental constraints that render15

the site unsuitable for a builder's remedy.16

On October 14, 2009 Cranfords consulting17

engineer, Thomas Creeland, in his first report18

concluded that the project would require an FHA permit19

from NJ-DEP and that the 100 year flood plane floodway20

and encroachment lines would need to be determined,21

that CDA would have to demonstrate that the proposed22

development would not increase upstream or downstream23

flooding.24

Regarding storm water management, he noted25


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47

the presence of an existing on-site storm water1

detention system. See exhibits D-94, trial testimony2

August 2, 2010.3

Plaintiffs engineering expert, Michael4

Dipple, in an October 29, 2009 report and in his clear5

testimony on August 2, 2010, and again on September 27,6

2010 opined that the FHA was properly depicted on the7

flood emergency management agency, hereinafter FIMA,8

flood insurance maps. See exhibits P-39, P-39A.9

Mr. Dipples testimony on this point was10

based on models of the amount of flood water that can11

be stored on the site. He prepared a conceptual flood12

hazard grading plan showing how the property could be13

regarded to create additional flood storage under14

buildings A and B as permitted by NJ-DEP regulations,15

citing to N.J.A.C. 7:13-10.5M, also exhibit P-82 in16

evidence.17

At trial CDA relied upon the testimony of Mr.18

Dipple who opined that the necessary permits could19

absolutely be obtained for this project. His site20

investigation report of May 28, 2008, exhibit D-43,21

which was submitted to CDA as part of its due diligence22

in acquiring the property indicted that the sites only23

environmental constraint was the large area of fresh24

water wetlands and drainage dishes along the northern25


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48

and eastern portions of the site. See trial testimony1

August 2, 2010.2

CDA later submitted a revised plan based upon3

the FHA study performed by Dipple confirming that the4

entire footprint of building A was located in the flood5

plane. See August 2 trial testimony.6

CDA thus relocated building A after Dipple7

conceded that a substantial portion of the site was8

located in the floodway and could not be developed.9

Building A in its reconfigured state is proposed to be10

built on stilts because it is located partly in the11

flood hazard area. See transcript of testimony,12

August 3, 2010.13

Some units were shifted to building B but14

there was no reduction in units. See Dipple testimony15

August 2, 2010.16

Mr. Dipples testimony was extensive about17

his flood hazard studies and whether the project meets18

NJ-DEP storage requirements. Testifying about P-39,19

P-39A and P-63, he thoroughly outlined storm water20

analysis. See also P-82, P-87, P-88, P-89, P-90, P-9121

and P-93, P-92 rather, drainage area maps and Mr.22

Dipple testified clearly that NJ-DEP permits were23

absolutely feasible.24

Indeed Ms. McKenzies testimony was clear25


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49

that sound planning requires balancing the good of1

Mount Laurel housing against the adverse environmental2

impact. Defendants have not proven the contrary of3

Dipples testimony and his flood storage models4

outlined during his testimony.5

Defendants argue that the evidence adduced at6

trial revealed Cranfords concern regarding flooding on7

this site to be well founded as exhibited by the8

sincere testimony and photography of Mr. John Hrebin.9

Mr. Hrebin has resided in Cranford for the past 3410

years near the Birchwood site and has witnessed11

Birchwood in a flooded condition on many occasions.12

He photographed one of these flooding events13

on April 15, 2007. See trial transcript of August 9,14

2010 and exhibit D-25A through D and 25N.15

This photographic evidence was very moving16

and of concern to this court and Mr. Hrebin indeed17

presented a heartfelt picture of significant flood18

water management issues heretofore unaddressed by19

Cranford for many years.20

CDAs expert, Dipple, did admit that the21

flooding is extensive and testified candidly that there22

is no doubt in his mind that the site has a significant23

flooding problem which was confirmed by his FHA study.24

See trial testimony of August 3, 2010.25


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50

Defendants further argue that flooding not1

only affects the location and density of residential2

dwellings but also the location of onsite parking.3

NJ-DEP regulations requires residential parking to be4

elevated at least one foot above the FHA elevation.5

The reason for this is simple, in case of emergency,6

ingress and egress must be provided for emergency7

vehicles.8

The testimony was also concerning and the9

court was persuaded that ingress and egress proposed by10

plaintiff for emergency vehicles was not sufficient11

given the density proposed. Plaintiff contends however12

that these plans can be modified to comply with NJ-DEP13

regulations and indeed CDA and Cranfords experts all14

acknowledge that any builder's remedy will be15

contingent upon the receipt of necessary DEP16

permits.17

Plaintiffs for example point out that18

development in flood hazard areas of regulated waters19

is governed by regulations issued by the NJ-DEP,20

N.J.A.C. 7:13-1 et seq. pursuant to the Flood Hazard21

Area Control Act, N.J.S.A. 58:16A-50 et seq. The flood22

hazard area consists of the floodway in the flood23

fringe, N.J.A.C. 7:13-1.2.24

The floodway consists of the stream channel25


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51

and the adjacent areas. It includes the area necessary1

to carry the volume of water that the stream would2

carry during a 100-year flood event. The flood fringe3

is the remainder of the flood hazard area. See4

N.J.A.C. 7:13-2.3, figure A. See P-39 and 39A in5

evidence.6

As shown by the flood hazard area map7

prepared by Michael Dipple, a portion of the site is8

within the flood hazard area of Branch 10-24 of the9

Rahway River, a stream locally known as Casino Brook.10

See exhibit P-39 and P-39A.11

There is no dispute as to the accuracy of12

this map. The location and boundaries of the flood13

hazard area were corroborated by the photographs14

offered by defendants through Mr. Hrebins testimony15

which showed that the flooding during the 100-year16

storm is located within the floodway and flood fringe17

as delineated on the flood hazard area map, exhibits18

D-25 and P-39A.19

Construction within the flood fringe is20

permissible assuming the developer secures an21

appropriate permit from the DEP. In particular, an22

applicant may construct in accordance with the permit23

issued pursuant to N.J.A.C. 7:13-9.1 et seq. provided24

that he demonstrates that the project will satisfy the25


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52

permit requirement set forth in N.J.A.C. 7:13-10 and1

11. See also N.J.A.C. 7:13-9.1A. Thus, all2

development on this project would obviously be subject3

to NJ-DEP approval and that issue is not before this4

court. Moreover, even Cranfords experts conceded that5

if the DEP issued the necessary permits the developer6

could comply.7

For a residential structure, such as proposed8

by CDA, the permit requirement is that the construction9

involve no net fill within the flood fringe area, see10

N.J.A.C. 7:13-10.4. This standard requires that the11

development not reduce the floor storage capacity12

within the flood fringe area. To show that these13

standards can be met, CDA's engineer, Dipple,14

convincingly modeled the amount of flood waters that15

can be temporarily stored on this site and prepared a16

conceptual flood hazard grading plan.17

To satisfy DEP standards, the development18

must not reduce the flood storage capacity within the19

flood fringe area. Mr. Dipples plan showing how the20

property could be re-graded to create additional flood21

storage to offset the flood storage that would be lost22

through construction includes flood storage underneath23

buildings A and B as permitted by NJ-DEP regulations.24

See N.J.A.C. 7:13-10.5M. See conceptual proposed flood25


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fringe modification plan, exhibit P-82 and P-83, flood1

hazard area sections.2

This plan preserves the existing flood3

storage capacity and actually creates an additional4

27,000 cubit feet of flood storage capacity, an5

increase of 10 percent which was candidly acknowledged6

by defendants engineer at trial.7

The court found Dipples plan a creative way8

to address the current flood storage problems in9

Cranford which may actually improve flood water storage10

in the area in a way that is not currently possible and11

that has not heretofore been addressed by Cranford.12

The principal additional permit requirements13

are lowest finished floor and must be at least one foot14

above the flood hazard elevation, N.J.A.C. 7:13-11.5I15

and K as reflected in the conceptual proposed flood16

fringe modification plan P-82 and P-83, showing that17

CDA can satisfy this requirement by elevating the18

lowest floor of the building.19

The parking must to the extent feasible be20

elevated at least one foot above the flood hazard21

elevation, N.J.A.C. 7:13-11.6e. Through the conceptual22

design as reflected in P-82, flood hazard area sections23

P-83, plaintiffs argue that the vast majority of the24

parking can be provided outside the flood fringe. The25


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parking under building A can be elevated at least one1

foot above the flood hazard level and the smaller2

number of remaining surface parking spaces can be3

elevated above the flood hazard level.4

At least one access driveway must be5

maintained which is elevated at least one foot above6

the flood hazard elevation. See N.J.A.C. 7:13-116d-2.7

The conceptual plan as reflected in the proposed flood8

fringe modification plan P-82 and P-83 show that an9

existing access driveway can be maintained that is10

outside the flood hazard area.11

Plaintiffs maintain that the evidence show12

that the project can be designed and engineered to13

comply with all of these standards. Defendants have14

questioned the details of the conceptual modeling but15

have not proven to the contrary. Nor have defendants16

provided this court with a viable alternative model.17

A strong argument has been advanced that this18

plan actually improves flood control in Cranford. It19

removes the existing buildings at 215 Birchwood Avenue20

from the floodway, thus keeping flood waters closer to21

the channel of the stream. It increases the flood22

storage capacity of the site, thus lowering the peak23

flood levels in the homes downstream.24

Given that no recent upgrades to flood25


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control in Cranford were presented from the point of1

view of flood control, the court notes that this2

project potentially has the promise to improve3

Cranfords overall ongoing flood problems. That no4

development improvement nor storm water management has5

been done at this site in recent years was obvious6

during the courts site inspection.7

The court, the experts and the Special Master8

observed the property, the Canoe Brook (sic) stream,9

the Casino Brook stream and the wetlands. Drainage10

appeared nonfunctioning. Indeed the area appeared in11

great need of improvement an presents an opportunity to12

the town to address flooding and storm water management13

in the general area which will be undertaken by CDA in14

this project.15

Indeed the Special Master testified at trial16

credibly and consistent with her report on this issue17

and I quote,18

Up until the time of the report of the19

Special Master was prepared, the Townships engineering20

professionals have asserted that the site was in a21

flood plane but no documentation had been submitted in22

support of that allegation. There were no maps23

presented that confirmed that the site was or was not24

in a flood plane although it seemed obvious that at25


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57

I also paid close attention to the testimony1

presented by both sides regarding storm water2

management and drainage issues because it has become3

evident to me that another characteristic of this site4

beside the fact that it is partially in a flood plane5

is that it functions as a kind of detention basin.6

Even the portions of the site that are located outside7

of the flood plane hold water during storm events.8

Thus a potentially adverse consequence of development9

might be that the grading changes caused by the10

redevelopment of this site might actually increase11

flooding during storm events on other properties in the12

neighborhood and downstream.13

I have spoken openly to both parties during14

the course of the trial about what we were learning15

about the site and the issues surrounding its16

development and I had made it clear to both sides that17

I was not entirely satisfied with the information18

initially presented by the plaintiffs expert with19

respect to storm water management.20

I indicated that I was no longer concerned21

about the flood plane delineation. The engineers for22

both parties seem to agree about the extensive flooding23

on the site and where the line separating the floodway24

from the flood hazard area lied.25


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Consequently the only remaining flood plane1

issue was the developers ability to satisfy the NJ-DEP2

zero net fill requirement within the flood hazard area.3

This is ultimately a matter to be determined by the4

NJ-DEP.5

The testimony of the plaintiffs engineer has6

demonstrated the likelihood that NJ-DEP regulations7

will be able to be satisfied.8

The Special Master concluded,9

As I indicated previously in this report, I10

am now satisfied based on the testimony presented at11

trial that we know where the flood hazard area and12

floodway are located on the site and we have a pretty13

clear picture of how the extent of the flood plane will14

affect its development.15

The developer has estimated the amount of16

additional flood storage that would need to be created17

on the site in order to obtain the NJ-DEP zero net fill18

standard within the flood hazard area and has expressed19

its confidence that such storage can be accommodated in20

a reasonable way and that the CDA site can be developed21

as currently proposed in accordance with all applicable22

NJ-DEP requirements. I am comfortable that this is the23

case.24

Moreover, I am not convinced that even if I25


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59

am wrong and this is not the case nothing will be1

undertaken at this site that is not approved by the NJ-2

DEP. No matter how many units the court approves for3

this site, NJ-DEP will be reviewing all of the4

requisite permit applications for the development of5

the CDA site and may as a result of such reviews,6

require additional measures to be taken in the sites7

development.8

If this should result in a modification to9

CDAs proposed layout or even a downward adjustment to10

the total number of units that can be built on the CDA11

site, so be it.12

As previously noted, the plaintiff has known13

all along that it will have to deal with the14

requirements of the NJ-DEP in development of this site15

regardless of what is approved by the court.16

Although permit applications have not as yet17

been submitted to the NJ-DEP, the filing of such18

applications is not a prerequisite to securing a19

builder's remedy. In fact the filing of a permit20

application to the NJ-DEP is not even required prior to21

obtaining preliminary site plan approval. It is22

however a required condition of any site plan approval23

and a prerequisite for obtaining a construction24

permit.25


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What is important here is the likelihood1

demonstrated by the testimony that the developer can2

obtain the site approvals and permits and that the site3

can be developed along the lines proposed. See report4

of Special Master 12/1/10 at page 11-12.5

Thus the Special Master testified that she6

took the flooding issues seriously in Cranford and she7

credibly, carefully and thoughtfully recommended the8

court grant the builder's remedy since permits are a9

condition of site plan approval. However, she could10

not recommend the entire 419 units based on the11

testimony offered.12

The issue of storm water management was also13

the subject of much testimony and evidence and Ms.14

McKenzie obviously expressed her concern but was15

obviously satisfied. See Special Master report 12/1/1016

at page 2 to 3. She acknowledged in her testimony that17

NJ-DEP would be required to review the plans and may18

require changes.19

She clearly and convincingly testified that20

the site has a drainage function and presents an21

opportunity for storm water management for the Township22

of Cranford.23

Moreover, Richard Marsden, Director of Public24

Works, an engineer for Cranford, credibly delineated25


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the detention potential on the site.1

The court was impressed with his candid2

testimony but notes that neither defendants planner3

nor engineer offered any feasible alternatives to this4

plan. Moreover, their testimony was persuaded by the5

general consensus of the unpopularity of this site in6

Cranford.7

Defendants argued and the court is satisfied8

that storm water management has been and remains a9

critical issue in Cranford. In September 2008,10

Cranford passed its own DEP model storm water11

management Ordinance, see D-169.12

Cranford has constructed numerous flood13

control projects to address this issue but has taken no14

significant action to address flood control in the15

Birchwood area of this project.16

Plaintiffs argue that NJ-DEP regulates storm17

water management in developments such as this one. See18

N.J.A.C. 7:8-1 et seq. Regulations govern the amount19

and rate of runoff, see N.J.A.C. 7:8-5.4; the quality20

of runoff, 7:8-5.5, and the extent of groundwater21

recharge.22

Under N.J.A.C. 7:8-5.5 developments which do23

not increase the existing impervious surface by a24

quarter acre or more are exempt from the runoff quality25


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standards. For purposes of this standard, impervious1

surface is defined as a surface that has been covered2

with a layer of material so that it is highly resistant3

to infiltration by water. See 7:8-1.2.4

Because the proposed project will reduce the5

area of impervious surfaces by approximately 12,0006

square feet, it may be exempt from this requirement.7

Developments in urban redevelopment areas are exempt8

from ground water recharge standards, see N.J.A.C.9

7:8-5.4A2ii. For purposes of this standard, urban10

development areas are defined as previously developed11

portions of areas delineated on the site plan policy12

map as the metropolitan planning area designated13

centers (indiscernible). See N.J.A.C. 7:8-1.2.14

Because the property has previously been developed and15

lies within the metropolitan planning area, the16

development may be exempt from this standard.17

The developer may elect to satisfy any one of18

a variety of standards promulgated by NJ-DEP governing19

the amount and rate of runoff under a number of20

different standards. See N.J.A.C. 7:8-5.4A3,21

7:8-5.4A3I.22

They may comply by showing through hydraulic23

analysis that for storm water leaving the site post24

construction runoff hydrographs for the Q10 100-year25


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storm events do not exceed at any point the1

preconstruction runoff hydrographs for the stated storm2

events.3

Plaintiffs prepared conceptual models of4

preconstruction and post construction storm water and5

prepared a plan for detaining storm water to comply6

with the regulatory standard.7

Defendan

court transcript-birchwood avenue decision[1]

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