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

COM STEPHEN EISDORFER, ESQ. PARTNER, LAND USE LITIGATION AND APPLICATIONS DIRECT DIAL: (609) 734-6357 SEISDORFER@HILLWALLACK. COM

January 25, 2013 Hon. Lisa F. Chrystal Superior Court of New Jersey Union County Court House 11th Floor 2 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 al v. 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

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 ARE REQUIRED TO REVIEW THE APPLICATION UNDER BOTH THE STANDARDS ESTABLISHED BY THE MUNICIPAL LAND USE LAW AND THE SPECIAL STANDARDS GOVERNING INCLUSIONARY DEVELOPMENTS AUTHORIZED BY COURT-

granting a site-

of the issues before the Special those that

Hearing Officer were governed by two complementary standards

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

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 HOUSING OBLIGATIONS

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. 151,17980 (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.

In order to meet their Mount Laurel obligations, municipalities, at the very least, must remove all municipally created barriers to the construction of their fair share of lower income housing. Thus, to the extent necessary to meet their prospective fair share and provide for their indigenous poor (and, in some cases, a portion of the region's poor), municipalities must remove zoning and subdivision restrictions and exactions that are not necessary to protect 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 26062. 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

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 for housing, be satisfied by meaningless amendments to zoning or other ordinances. "Affirmative," in the Mount Laurel rule, suggests that the municipality is going to do something, and "realistic opportunity" suggests that what it is going to do will make it realistically 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. Laurel project. 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. Laurel standards.

220 N.J. Super. at 403remove 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 Laurel housing." 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. Laurel principles 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 Laurel obligation." 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.

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 costgenerating features from the municipal land use ordinances and regulations, and the affirmative measures in the housing element and implementation plan make the achievement of the municipality'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

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 obligations must provide a realistic opportunity for the creation of affordable housing, including the elimination of barriers to the creation of affordable housing. This obligation continues during site plan review. It is not possible to envision every problem that can occur when a specific development takes the form of a site plan application. Although the mapping of sites included in a housing element may indicate the approximate extent of wetlands, the precise extent of the wetlands may be greater than originally envisioned. Whereas the yard requirements imposed on specific developments may seem reasonable on paper, their application on a site may not allow the completion of a proposed low and moderate income development. In some cases, such scenarios might require a plan amendment expanding the number of municipal sites assigned to address the housing obligation. However, in other cases, the granting of reasonable variances will address potential design problems encountered in developing an inclusionary site. The granting of such variances to further a s Mount Laurel obligation is consistent with the MLUL. RESPONSE: At times, the zoning of a specific site may appear to foster an inclusionary development. However, when designing the project, the combination of buffer areas, set-backs, distance between buildings and environmental regulations may not allow the developer to complete the entire development. In such circumstances, it is expected that the municipality will cooperate with the developer so that he/she will be able to build the entire development. . . . The COAH regulations are applicable to the present case because the Supreme Court has expressly enjoined the courts to conform to the COAH's

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 Laurel matters, any such proceedings before a court should conform wherever possible to the decisions, criteria, and guidelines of the Council. We do not believe the Legislature wanted lower income housing opportunities to develop in two different directions at the same time, contrary to sound comprehensive planning. [Hills Development Corp. v. Bernards Township, 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 AND RECOMMENDATIONS OF THE SPECIAL HEARING OFFICER UNDER 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 therefore accept the fact findings to the extent that they are supported by

substantial credible evidence in the record, see Locurto, supra, 157 N.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.2d 1230 (1995). [Id. at 93.] The significance of the standard of in this context is illuminated by its citation of State 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 [of oral 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 to operate 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 the record. 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 Application of the

witnesses, or make conclusions about the evidence.

standard set forth in Abbott and State v. Chun requires 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

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.

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. 40:55Dof 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

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 seeking implementation of the sitethe Order Granting Remedy in Exclusionary Zoning Litigation entered on December 9, 2011 in the above entitled litigation in the form of preliminary and final site plan approval for a residential development consisting of 360 residential units, of which 15 percent will be units reserved for, and affordable to, low or

moderate income households. The project will include a threestory residential structure over podium parking, a four-story residential structure, and a four-level parking structure, together with drainage structures. The residential units in the uppermost story of each building will include a loft level. The project will also include exterior surface parking spaces. Altogether the project will provide 667 parking spaces. Ingress and egress will be onto Birchwood Avenue. A stretch of Birchwood Avenue will be regraded to 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 PERMITTING STANDARDS ARE NOT PROPER BASES FOR DENYING APPROVAL 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,

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,

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

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 system was safe and the technical storm-water issues were adequately addressed, the subdivision application would have to be granted

because there would be no basis for denial by the Board. [Id. at 35.] 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 other than the municipal agency, the municipal agency shall, in appropriate 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).

Thus, be denied for failure to demonstrate that it complies with State standards governing freshwater wetlands, construction in flood hazard areas, or

must

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 CORRECTLY RECOMMENDED THAT CDA SHOULD BE PERMITTED TO ELEVATE 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 HELD THAT THERE IS NO JUSTIFICATION FOR REQUIRING CDA TO SEEK A HARDSHIP WAIVER FROM NJDEP FLOOD HAZARD AREA PERMIT STANDARDS RATHER THAN PERMITTING CDA TO ELEVATE A STRETCH OF BIRCHWOOD AVENUE.

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. Laurel principles. 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

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

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 at N.J.A.C. 7:13-10 and 11 only if all of the requirements of (b) below are satisfied and, additionally, one or more of the following requirements are satisfied: 1. The Department determines that there is no feasible and prudent alternative to the proposed project, including not pursuing the project, which would avoid or substantially reduce the anticipated adverse effects of the project, and that granting the hardship exception would not compromise the reasonable requirements of public health, safety and welfare, or the environment; ***

(b) To obtain an individual permit based on a hardship exception, the applicant shall demonstrate to the Department that the following requirements are satisfied: *** 4. The hardship was not created by any action or inaction of the applicant 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 the myriad situations addressed specifically by the rules, will be required to do so because the Department believes that full compliance with the rules is the best mechanism available to control 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 are extremely stringent. As a result, the Department has historically issued very few hardship exceptions to the Flood Hazard Area Control Act rules . . . . [Id. Response to Comments 712 and 713.]

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 BIRCHWOOD AVENUE DOES NOT REQUIRE RECONSIDERATION OF THE INCLUSIONARY DEVELOPMENT PROVIDED FOR IN ITS ORDER OF 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

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 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 the

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. 3032. 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

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.

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 conformance with the foregoing conditions and the terms of any permits issued by 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 FOUND THAT CDA SHOULD BE PERMITTED TO ELEVATE A STRETCH OF BIRCHWOOD AVENUE AT ITS OWN EXPENSE.

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

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

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. Laurel decisions 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

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-

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, A5512-05T1; 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).

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 Laurel consent decrees could vindicate their interests through motions to enforce litigant' POINT VI ALL AMPLY SUPPORTED BY THE RECORD BEFORE HIM.
6

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

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

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

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. Cranford seeks to have the Court reweigh the evidence before the Special 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. A14) Page 24, para. 1. Cranford seeks to have the Court reweigh the evidence before the Special Hearing Officer.

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 Page Page Page Page Page Page Page Page Page Page 26, 26, 29, 30, 30, 32, 33, 34, 34, 35, 35, para. para. para. para. para. para. para. para. para. para. para. 2. 3. 3. 2. 4. 1. 2. 2. 3. 2. 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 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 its

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 impediments to the construction of lower income housing without any single one creating 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 to waive such requirements, where this will facilitate the construction of lower income housing and can reasonably be done without jeopardizing public health and safety. [Id. at 405 (emphasis added).]

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.

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 Housing case. 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

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 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 conclusions

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 Manual pp. 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

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:

Ste n Eis rfe phe do r

Stephen Eisdorfer, Esq.

cc:

Philip Morin, Esq. Carl Woodward, Esq. Wendy Berger, Esq. Elizabeth McKenzie, PP Douglas Cohen, Esq.

January 25, 2013 Page 44 Appen di ces Plain t iffsCom m en t s on t h e Repor t of t h e Special Hear in g Officer , Novem ber 30, 2012 ................................................................................................... App. 1 Cer t ificat ion of St eph en Eisdor fer , Jan u ar y 24, 2013 ............................. App.2 Em ail fr om S. Eisdor fer t o E. McKen zie an d P. Mor in , Ju ly 20, 2012Ex. A Mem or an du m of Elizabet h McKen zie, May 15, 2012 ..................... Ex. B E-m ail fr om D. Wolfson t o cou n sel, May 16, 2012 ......................... Ex. C Let t er fr om P. Mor in t o Cou r t , Ju ly 24, 2012 ................................. Ex. D Cou r t Or der , Au gu st 6, 2012 ......................................................... Ex. E Tr an scr ipt of t h e t r ial t est im on y of Mich ael Dipple, 9/ 27/ 2010 ............. App. 3 Toll Br ot h er s, In c. v. Town sh ip of West Win dsor , A-5858 97T3 (Au gu st 16, 2000) (u n r epor t ed por t ion of t h e opin ion r epor t ed at 334 N.J. Su per . 109 (App. Div. 2000)........................................................................... App. 4 NJ DEP, New Jer sey St or m wat er Best Pr act ices Man u al pp. 2-8 t o 2-9 (2OO4) ................................................................................................... App. 5

APPENDIX 1

202 CARNEGIE CENTER, CN 5226, PRINCETON NJ 08540-5226 TELEPHONE : (609) 924 0808 F AX : (609) 452-1882 WWW. HILLWALLACK . COM STEPHEN E ISDORFER, E SQ. PARTNER, L AND U SE L ITIGATION AND APPLICATIONS D IRECT D IAL : (609) 734-6357 SEISDORFER@ HILLWALLACK . COM

Novem ber 30, 2012 Hon . Lisa F. Ch r yst al Su per ior Cou r t of New Jer sey Un ion Cou n t y Cou r t Hou se 11t h Floor 2 Br oad St . Elizabet h , New Jer sey 07207 Re: LEHI GH ACQUI SI TI ON CORP. v. TOWNSHI P OF CRANFORD et al , DK T NO. UNN-L-0 1 4 0 -0 8 CRANFORD DEVELOPMENT ASSOCI ATES, LLC et al v. TOWNSHI P OF CRANFORD et al , DK T NO. UNN-L-0 0 3 7 5 9 -0 8 Dear J u dge Ch r yst al: en t it led m at t er su bm it t h e followin g com m en t s on t h e r epor t of Special Hear in g Officer Dou glas Wolfson , Esq. In gen er al, CDA su ppor t s t h e r ecom m en dat ion s of Special Hear in g Officer Wolfson an d u r ges t h e Cou r t t o adopt t h em . As t o a n u m ber of issu es, h owever , t h e r epor t r equ ir es am plificat ion or clar ificat ion . Con cl u si on 9 p. 4 3 (of f -si t e i m pr ovem en t s t o t h e pu bl i c wat er sy st em ) At t h e con clu sion of t h e h ear in g, t h e Special Hear in g Officer dir ect ed cou n sel for plain t iff t o su bm it pr oposed fin din gs an d con clu sion s an d also pr oposed con dit ion s on an y sit e plan appr oval. He dir ect ed cou n sel for Cr an for d t o su bm it object ion s an d cou n t er fin din gs an d con clu sion s. He also

dir ect ed t h e par t ies t o con fer on pot en t ial con dit ion s t o an y sit e plan appr oval an d t o t r y t o agr ee, in sofar as possible, on con dit ion s. 8/ 23 T. 239. On Sept em ber 11, 2012, CDA su bm it t ed a set of pr oposed fin din gs an d an d 35 con cer n ed pu blic wat er . Pr oposed Con dit ion 34 st at ed: 34. An in depen den t t est of t h e level of wat er ser vice available at t h e h ydr an t s in fr on t of t h e pr oject will be con du ct ed by t h e wat er com pan y (or som e ot h er t h ir d par t y agr eed u pon by bot h par t ies) in accor dan ce t h e r elevan t n at ion al st an dar d, NFWA 291. If t h e t est sh ows t h at wat er ser vice at t h e h ydr an t s is sign ifican t ly below 2,000 gallon s per m in u t e, t h en CDA will r eplace t h e exist in g 8 in ch wat er m ain fr om t h e east er n m ost h ydr an t on t h e pr oper t y t o t h e wat er m ain in Bloom in gdale Aven u e wit h a 12 in ch wat er m ain . It m ay elect t o con st r u ct t h is im pr ovem en t it self or t o r eim bu r se Cr an for d for it s pr o r at a sh ar e of t h e r eason able cost of t h e 133-34. t h eir cou n sel an d t h eir en gin eer s m et at t h e Cr an for d Mu n icipal Bu ildin g on Sept em ber 21, 2012 an d discu ssed pr oposed con dit ion s, in clu din g pu blic wat er . On Oct ober 3, 2012, Cr an for d su bm it t ed it s own pr oposed fin din gs an d con clu sion s an d it s own con dit ion s. It s con dit ion 34 was iden t ical t o t h at of CDA. An in depen den t t est of wat er flow was con du ct ed by Am er ican Wat er Com pan y on Oct ober 12, 2012 in t h e pr esen ce of r epr esen t at ives bot h of CDA an d Cr an for d Town sh ip. Th e r esu lt s of t h at t est wer e su bm it t ed t o t h e Special Mast er an d t h e Special Hear in g Officer . Th e t est r esu lt s in dicat ed t h at , at a pr essu r e of 20 pou n ds per squ ar e in ch , t h e flow on t h e t wo h ydr an t s was 2,778 gallon s per m in u t e an d 2,887 gallon s per squ ar e in ch . In ligh t of t h is t est , plain t iffs su bm it t ed r evised pr oposed con dit ion s t o t h e Special Mast er an d t h e Special Hear in g Officer on Oct ober 12, 2012. CDA pr oposed t h at , in accor dan ce wit h it s own t er m s, an y r equ ir em en t t o u pgr ade t h e wat er lin e in Bir ch wood be delet ed. Cr an for d did n ot su bm it an y object ion s t o t h is r evised pr oposal.

35. Th e applican t will m ak e a good fait h effor t t o secu r e t h e con sen t of t h e own er of t h e h ealt h car e facilit y t o con n ect a wat er

lin e fr om t h e pr oposed pr oject t o t h e pu blic wat er lin e in t h e ser vice r oad of t h e h ealt h car e facilit y an d t o acqu ir e t h e pr oper t y r igh t s n ecessar y t o con st r u ct t h e con n ect in g lin e. If it can secu r e t h is con sen t an d pr oper t y r igh t s at r eason able cost wit h in 90 days aft er en t r y of t h e or der gr an t in g sit e plan appr oval, it will con st r u ct an 8 in ch wat er lin e fr om t h e wat er lin e in t h e east er n dr iveway of t h e pr oject t o t h e pu blic wat er m ain in ser vice r oad of t h e h ealt h car e facilit y. If it can n ot do so, t h is con dit ion will t er m in at e. 8/ 23 T. 127-28, 134At t h eir Sept em ber 21, 2012 m eet in g, t h e par t ies fu r t h er discu ssed t h e su ggest ion by Fir e Ch ief Dolan t h at t h e wat er lin e t h r ou gh t h e pr oject also be lin k ed t o t h e wat er lin e in t h e dr iveway of t h e adjacen t h ealt h car e facilit y t o ach ieve a sor t of gr i join t r eview of t h e m u n icipal wat er syst em m ap, h owever , r evealed t h at t h e wat er m ain wh ich t h e Fir e Ch ief assu m ed in h is t est im on y lay in Bir ch wood Aven u e all t h e way t o Cr an for d Aven u e does n ot in fact follow t h at r ou t e. J u st east of 215 Bir ch wood Aven u e, it t u r n s, goes down in t h e dr iveway of t h e adjacen t h ealt h facilit y an d t h en pr oceeds ar ou n d t h at bu ildin g an d ou t t o Cr an for d Aven u e. Th e wat er lin e in t h e dr iveway of t h e h ealt h car e facili t y is t h u s n ot a separ at e wat er lin e bu t is in fact t h e ver y wat er m ain t h at ser ves t h e CDA sit e. An addit ion al lin k t o t h at lin e wou ld n ot h ave t h e ben eficial effect of cr eat in g an y addit ion al gr id. In con n ect ion wit h its r evised pr oposed con dit ion of Oct ober 12, 2012, CDA pr ovided t h is addit ion al in for m at ion t o t h e Special Mast er an d t h e Special Hear in g Officer . In ligh t of t h is n ew in for m at ion , CDA r ecom m en ded t h at , n ot on ly was con n ect in g t o t h is lin e u n lik ely t o be feasible, sin ce it wou ld r equ ir e plain t iffs t o acqu ir e an easem en t t h r ou gh t h e pr oper t y of t h e h ealt h car e facilit y, bu t t h at it wou ld pr ovide lit t le ben efit t o pu blic safet y. CDA t h er efor e pr oposed t h at an y r equ ir em en t t o lin k t o t h e wat er lin e in t h e dr iveway of t h e h ealt h car e facilit y also be delet ed. Cr an for d did n ot object t o t h is r evised pr oposed con dit ion . Th e r ecom m en dat ion s of t h e Special Hear in g Officer ar e in for m ed by t h e for egoin g in t er act ion of t h e par t ies all con du ct ed in con for m it y wit h t h e dir ect ion s of t h e Special Hear in g Officer . For t h is r eason , t h e Special Hear in g Officer pr oper ly con clu ded t h at n o con dit ion s n eed be im posed con cer n in g offsit e im pr ovem en t s con cer n in g pr ovision of pu blic wat er ser vice. CDA u r ges t h e Cou r t t o adopt t h at r ecom m en dat ion .

Fi n di n gs p. 2 3 ; Con cl u si on 1 0 p. 4 4 ; an d Con di t i on 3 4 p. 5 3 (of f -si t e i m pr ovem en t s t o pu bl i c san i t ar y sewer l i n es) Mar sden h ad r ecom m en ded t h at var iou s st r et ch es of t h e san it ar y sewer lin e t ot alin g appr oxim at ely 1,300 lin ear feet ser vin g t h e pr oposed pr oject be r e-lin ed t o m it igat e t h e r isk of fu t u r e sewer lin e failu r es. I t was t h e posit ion of CDA t h at Cr an for d h ad n ot pr oven t h e essen t ial eviden t iar y basis for im posin g an obligat ion t o con t r ibu t e t o off-sit e im pr ovem en t t o t h e san it ar y sewer syst em . Th e Town sh ip h ad n ot offer ed an y eviden ce t h at r e-lin in g t h e 1,300 lin ear feet h as an y r eal n exu s wit h t h e t h r eat en ed fu t u r e r isk s t o t h e syst em cau sed by t h e pr oject . Nor h ad t h e Town sh ip offer ed an y eviden ce as t o t h e m agn it u de of t h e r isk of fu t u r e br eak s in t h e syst em , t h e in cr ease in r isk t h at wou ld be cau sed by t h e addit ion al flow fr om t h e pr oject , or h ow t h at r isk sh ou ld pr oper ly be allocat ed bet ween t h e exist in g con dit ion of t h e syst em --wh ich t h e par t ies agr ee is ver y old, su ffer s fr om ser iou s u n r em ediat ed in flow an d in filt r at ion , an d is alr eady su bject t o br eak s--an d t h e addit ion al bu r den t h at wou ld be placed on t h e syst em by t h e flow fr om t h e pr oject . I n t h e absen ce of su ch eviden ce, CDA u r ged, t h er e is n o basis for det er m in in g t h at t h er e is a su fficien t n exu s bet ween t h e pr oject an d t h e pr oposed off-sit e im pr ovem en t s or t h at som e sh ar e of t h e cost of t h e pr oposed im pr ovem en t s be allocat ed t o t h e pr oject . It pr oposed t o t h e Special Hear in g Officer t h at t h er e sh ou ld be n o con dit ion r equ ir in g CDA t o con st r u ct , or r eim bu r se t h e Town sh ip for an y por t ion of t h e cost of con st r u ct in g, t h is im pr ovem en t . CDA Pr oposed Con clu sion 111. Su bsequ en t t o t h e h ear in g, Mr . Mar sden iden t ified for CDA t h e five segm en t s of sewer lin e ser vin g t h e pr oject t h at h e h ad in m in d wh en h e t est ified: bet ween m an h oles 1 an d 2 (276 lin ear feet ), m an h oles 2 an d 3 (226 lin ear feet ); m an h oles 6 an d 7 (265 lin ear feet ), m an h oles 11 an d 12 (256 lin ear feet ), an d m an h oles 14 an d 15 (300 lin ear feet ). Th ese segm en t s t ot al 1,323 lin ear feet . In accor dan ce wit h th e dir ect ion of t h e Special Hear in g Officer , t h e par t ies discu ssed t h is su bject at t h eir Sept em ber 21, 2012 m eet in g. Followin g t h at m eet in g, Mr . Mar sden u n der t ook t o est im at e t h e cost s of lin in g t h e sewer est im at es ar e set for t h in a spr eadsh eet an d explan at or y e-m ail, wh ich accom pan y t h is let t er .

plain t iffs ar e willin g--in a spir it of accom m odat ion -est im at es as applied t o t h e five segm en t s of sewer lin e wh ich wer e t h e basis for h is t est im on y at t h e h ear in g. In ligh t of Mr . Mar sden an alysis, t h er e is n o

n eed for fu r t h er pr oceedin gs on t h e issu e of off-sit e im pr ovem en t s t o t h e san it ar y sewer syst em . Th e r elevan t dat a can ju st be r ead off Mr . spr eadsh eet .

r elevan t sewer lin e segm en t s, Mr . Mar sden h as est im at r at a sh ar e of t h e cost of labor an d m at er ials is $63,478.88. To t h is, Mr .

br ok en pipe, lat er al & MH lin in g, r oadway r ep

34. Pr ior t o r eceipt of a fin al cer t ificat e of occu pan cy for t h e fir st r esiden t ial u n it in t h e pr oject , CDA sh all pay t h e Town sh ip of Cr an for d an am ou n t equ al t o it s pr o r at a sh ar e of t h e est im at ed Developm en t Capacit y an d Cost Sh ar e An alysis for Pr oposed Residen t ial Developm en t - 215 an d 235 Bir ch in it ially pr epar ed by Rich ar d Mar sden an d m odified by L2A Design dat ed Oct ober 19, 2012, of slip-lin in g t h e followin g segm en t s of t h e pu blic san it ar y sewer lin e ser vin g t h e pr oject : bet ween m an h oles 1 an d 2 (276 lin ear feet ), m an h oles 2 an d 3 (226 lin ear feet ); m an h oles 6 an d 7 (265 lin ear feet ), m an h oles 11 an d 12 (256 lin ear feet ), an d m an h oles 14 an d 15 (300 lin ear feet ). Th e t ot al paym en t sh all equ al $96,487.90 less an y soer ly at t r ibu t able t o t h e pr oject .

at t r ibu t able t o CDA an d ar e n on du plicat ive of ot h er cost s in h is est im at e. Th r ou gh Mr . Mor in , plain t iffs h ave r equ est ed t h at Mr . Mar sden pr ovide a m or e less an y so-called

For t h ese r eason s, CDA r ecom m en ds t h at t h e Cou r t adopt it s pr oposed Con dit ion 34 in lieu of t h e Con dit ion 34 r ecom m en ded by t h e Special Hear in g Officer . Con di t i on 3 5 p. 5 3 (t r ee r epl acem en t ) discu ssed possible con dit ion s t o sit e plan appr oval con cer n in g t r ee r eplacem en t at t h eir Sept em ber 21 m eet in g. At t h at m eet in g Mr . Mar sden r ecom m en ded t h at CDA plan t addit ion al t r ees on a por t ion of t h e pr oper t y at 235 Bir ch wood Aven u e con sist in g of a swat h appr oxim at ely 80 feet deep n or t h of t h e wet lan ds t r an sit ion ar ea bou n dar y an d par allel t o t h at bou n dar y. He r ecom m en ded t h at t h e addit ion al plan t in gs in clu de t h e plan t in g of 10 addit ion al t r ees in t h is swat h . In r espon se, CDA prepar ed a r evised lan dscapin g plan em bodyin g t h is r ecom m en dat ion . Th ey su bm it t ed t h is plan t o Cr an for d on Oct ober 4, 2012 an d t o t h e Special Hear in g Officer an d t h e Special Mast er on Oct ober 16, 2012. Cr an for d h as n ot object ed t o t h is r evised plan . r ecom m en dat ion s wou ld avoid fu t u r e dispu t es on t h is issu e an d pot en t ially t h ese cir cu m st an ces, CDA Con dit ion 35: 35. Th e lan dscapin g plan sh all be am en ded t o con for m t o t h e Lan dscapin g an d Tr ee Replacem en t Plan pr epar ed by L2A Lan d Design an d Pau l Keyes Associat es an d dat ed Oct ober 2, 2012. For t h ese r eason s, CDA r ecom m en ds t h at t h e Cou r t adopt it s pr oposed Con dit ion 35 in lieu of t h e Con dit ion 35 r ecom m en ded by t h e Special Hear in g Officer . CONCLUSION at p. 53, con cer n in g t r ee r eplacem en t , an d t h e h is fin din gs at p. 23, Con clu sion 10 at p. 44, an d Con dit ion 34 at p. 53, con cer n in g off-sit e im pr ovem en t s t o pu blic san it ar y sewer lin es, CDA r espect fu lly u r ges t h e Cou r t t o adopt t h e r ecom m en dat ion s of t h e Special Hear in g Officer in t h eir en t ir et y. As t o t h ose t wo issu es, CDA r ecom m en ds t h at t h e Cou r t adopt t h e con dit ion s pr oposed above, wh ich ar e based u pon post -h ear in g discu ssion s bet ween t h e par t ies car r ied ou t in accor dan ce wit h t h e dir ect ion of t h e Special Hear in g Officer .

Respect fu lly su bm it t ed, HILL WALLACK LLP By :

Ste n Eis rfe phe do r

St eph en Eisdor fer , Esq.

En c. cc: Car l R. Woodwar d III, Esq. Ph ilip Mor in , Esq. Dou glas Wolfson , Esq. Elizabet h McKen zie, PP Dou glas Coh en , Esq.

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Township of Cranford,

Union County,

New Jersey

SUMMARY OF POST DEVELOPMENT CAPACITY AND COST SHARE ANALYSIS

FOR PROPOSED RESIDENTIAL DEVELOPMENT - 215 AND 235 BIRCHWOOD AVENUE
POST MAX FLOW RATE (cfs) EXIST PROP MAX UP DOWN PIPE PIPE MAX FLOW RATE STREAM STREAM DIA LENGTH FLOW FROM MH # MH # (Inches) (Ft.) RATE DEVELOPMENT (CFS) (cfs) 1 2 21 387 1/236 1/394 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 14% DCA $ COST TWP % CDA % TOTAL TWP % DCA % COST REDUCTION PER MAX MAX COST FOR COST FOR FOR LINING DUE TO MAX 70 LINEAR YEAR PIPE USAGE USAGE LINING PIPE LINING PIPE PIPE FOOT DETERIORATION

1/519 1/674 1/674 1/674 1/674 1/674 1/779 1/779 1/779 1/779 1/9: 1/9: 1/9: 1/9: 1/9: 1/: 86

1/42 1/61 1/61 1/61 1/61 1/61 1/69 1/69 1/69 1/69 1/79 1/79 1/79 1/79 1/79 1/82

1/7: 1/61 1/61 1/61 1/61 1/61 1/53 1/53 1/53 1/53 1/43 1/43 1/43 1/43 1/43 1/3:

!% !211/11! !% !!!!38-711/11! !% !!!!!!9-566/99! !% !!!!!2: -255/23! !% !!!!!!27-574/: 5! !% !211/11! !% !!!!33-711/11! !% !!!!22-34: /8: ! !% !!!!!22-471/32! !% !!!!!!!!: -87: /89! !% !211/11! !% !!!!35-311/11! !% !!!!23-146/63! !% !!!!!23-275/59! !% !!!!!!21-572/56! !% !211/11! !% !!!!35-411/11! !% !!!!23-196/37! !% !!!!!23-325/85! !% !!!!!!21-615/79! !% !231/11! !% !!!!26-231/11! !% !!!!!!8-62: /83! !% !!!!!!!8-711/39! !% !!!!!!!!7-647/35! !% !231/11! !% !!!!43-151/11! !% !!!!26-: 45/75! !% !!!!!27-216/47! !% !!!!!!24-961/72! !% !231/11! !% !!!!36-: 31/11! !% !!!!25-: 49/: 3! !% !!!!!21-: 92/19! !% !!!!!!!!: -554/84! !% !231/11! !% -151/11! !% !!!!3: !!!!27-848/24! !% !!!!!23-413/98! !% !!!!!!21-691/58! !% !231/11! !% !!!!58-631/11! !% !!!!38-499/13! !% !!!!!31-242/: 9! !% !!!!!!28-424/61! !% !231/11! !% !!!!41-831/11! !% !!!!28-816/4: ! !% !!!!!24-125/72! !% !!!!!!22-2: 3/68! !% !261/11! !% !!!!89-861/11! !% !!!!64-81: /38! !% !!!!!36-151/84! !% !!!!!!32-646/14! !% !261/11! !% !!!!47-561/11! !% !!!!35-96: /83! !% !!!!!22-6: 1/39! !% !!!!!!!!: -: 78/75! !% !261/11! !% -961/11! !% !!!!6: !!!!51-92: /15! !% !!!!!2: -141/: 7! !% !!!!!!27-477/73! !% !261/11! !% !!!!46-661/11! !% !!!!35-356/: 1! !% !!!!!22-415/21! !% !!!!!!!!: -832/64! !% !261/11! !% !!!!51-611/11! !% !!!!38-732/: 2! !% !!!!!23-989/1: ! !% !!!!!!22-186/27! !% !261/11! !% -511/11! !% !!!!3: !!!!31-977/57! !% !!!!!!!9-644/65! !% !!!!!!!!8-449/95! % 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! !% -451/11! !% !!94: !!!615-354/96! !% !!!446-1: 7/26! !% !!!!399-293/7: ! !% !!961-642/31! !% !!!621-: 78/21! !% !!!44: -675/21! !% 3-136/23! !!!!3:

21 21 21 23 23 23 23 23 23 26 26 26 26 26 26 U BM PU

337 353 354 237 378 327 353 4: 7 367 636 354 4: : 348 381 2: 7 5471

1/391 1/391 1/391 1/391 1/391 1/496 1/496 1/496 1/496 1/718 1/718 1/718 1/718 1/718 1/7: 3

1/394 1/394 1/394 1/394 1/394 1/394 1/394 1/394 1/394 1/394 1/394 1/394 1/394 1/394 1/394

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Engineering Department Last Revised: 11/9/2012

Page - 1

From: To: Cc: Subject: Date: Attachments:

Philip Morin Stephen M. Eisdorfer Douglas M. Cohen; Marsden, Richard Birchwood Sanitary Sewer Shared Cost Investigation as per Court Request Tuesday, October 16, 2012 12:46:35 PM Summary of Post Development Capacity and Cost Share Analysis.xls 1C-4_AssetManagement-FiratSever.pdf

In furtherance of our discussion last week and our recent meeting with our engineering professionals, I have attached a chart entitled "Summary of Post Development Capacity and Cost Share Analysis" which Mr. Marsden developed (formatted from the Table #5 summary in the "Sanitary Sewer Capacity Study" prepared by L2A) that shows CDA's proposed usage of our sanitary sewer infrastructure, and the recommended shared cost needed to maintain this system under the additional projected flow caused by this development. Mr. Marsden used the existing maximum flow rates established in the "Sanitary Sewer Capacity Study" prepared by L2A. However, he modified the proposed maximum flow rates from the development for the new unit count of 360, from the original unit count of 422. The preliminary cost for the lining of the pipe only was projected from 2010 cost quotes. The incidental and other costs i.e., mobilization, traffic control and, restoration and cleanup cost projections, came from projections taken from the 2007 stimulus grant project for the South Avenue sanitary sewer pipe lining. As suggested by CDA, Mr. Marsden reviewed the flow meter summary charts in the "Sanitary Sewer Capacity Study," and found that infiltration of ground water only ranged from 3% to 9% increase in the average daily flows during rain events at the metered locations. This only comes to an average of 6% increase or a 0.04 cfs increase in existing maximum flow in the piping system. This only shows that there is infiltration in our sanitary sewer system. What we need is a correlation between the degradation observed to date and the degradation that would occur in the future if the piping system is not rehabilitated. We would then be able to estimate the depreciation value of the sanitary sewer system. Barring that extensive investigation, Mr. Marsden searched and found a sanitary sewer rehabilitation program that did something very similar. I attach an abstract entitled "Adding Value to sanitary Sewers - An Important Asset of Municipalities." The City of Marco Island in Florida did a rehabilitation project where they did an existing sewers assessment and rehabilitation analysis. The conclusion lead to a chart that shows a descending curve of the anticipated depreciation in value of the sanitary sewer pipe and manholes without rehabilitation up to 80 years. The City of Marco Island has a similar aged sanitary sewer system, like Cranford's, that was constructed between 1943 and 1960's, and that has similar infiltration issues. This chart shows that there is a 14% reduction in the value of the piping system over 70 years. CDA was concerned that his original cost share analysis did not include the deteriorated value of the piping system that has already occurred. They stated that they should not be burdened with that portion of the rehabilitation costs. This abstract provides us with an estimate of the depreciation value of the sanitary sewer system. The last column of the chart entitled "Summary of Post Development Capacity and Cost Share Analysis" provides that cost reduction factor. This development will impact our old system by adding 69% more flow to the piping system at their entrance into the system and more then 29% more flow at the point where the system leave Cranford and enters into the regional Rahway Valley Sewerage Authority main system. Whether CDA contributes the $292,025.00 to the rehabilitation of the entire system reach, or they improved those portions of the sanitary sewer piping system that has increased design capacity reduction issues, due to their introduction of more flow, by lining those portions themselves. Mr. Marsden has already presented those sections of pipe as the sections between MH #1 & MH #3, MH #6 & MH #7, MH #10 & MH #11, and MH #13 & MH #14.

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APPENDIX 2

LEHIGH ACQUISITION CORP., Plain t iffs, vs. TOWNSHIP OF CRANFORD an d PLANNING BOARD OF THE TOWNSHIP OF CRANFORD, Defen dan t s; an d CRANFORD DEVELOPMENT ASSOCIATES, LLC, a lim it ed liabilit y com pan y or gan ized u n der t h e laws of t h e St at e of New Jer sey, SAMUEL HEKEMIAN, PETER HEKEMIAN, J EFFREY HEKEMIAN, an d ANN KRIKORIAN as t r u stee for RICHARD HEKEMIAN an d MARK HEKEMIAN, Plain t iffs, vs. TOWNSHIP OF CRANFORD, MAYOR AND COUNCIL OF THE TOWNSHIP OF CRANFORD an d t h e PLANNING BOARD OF THE TOWNSHIP OF CRANFORD, Defen dan t s.

SUPERIOR COURT OF NEW JERSEY UNION COUNTY - LAW DIVISION DOCKET NOS. UNN-L-0140-08 UNN-L-003759-08 Civil Act ion

CERTI FI CATI ON OF STEPHEN EI SDORFER

STEPHEN EISDORFER, bein g of fu ll age an d du ly swor n , deposes an d says: 1. I am an at t or n ey adm it t ed t o t h e bar in t h e St at e of New Jer sey

an d a par t n er in t h e fir m of Hill Wallack , LLP. In t h at capacit y, I r epr esen t

plain t iffs Cr an for d Developm en t Associat es et al (h er ein aft er CDA) in t h is m at t er an d am fam iliar wit h t h e h ist or y of t h is lit igat ion . 2. CDA cir cu lat ed it s pr oposed for m of pu blic n ot ice t o Ph ilip Mor in ,

Esq., cou n sel for Cr an for d, an d t o t h e Special Mast er by e-m ail on Ju ly 20, 2012, an d solicit ed t h eir com m en t s. A copy of t h is e-m ail is at t ach ed as Exh ibit A. CDA r eceived n o r espon se fr om cou n sel for Cr an for d. 3. Wh en t h e issu e of wh er e t h e h ear in g on CDAs sit e plan applicat ion

sh ou ld be h eld ar ose, CDA su ggest ed t o Special Mast er Elizabet h McKen zie t h at it be h eld in Cr an for d. Ms. McKen zie n ot ed t h is su ggest ion in h er Mem or an du m of May 15, 2012, wh ich is at t ach ed as Exh ibit B. In r espon se t o t h is su ggest ion , t h e Special Hear in g Officer det er m in ed on May 16, 2012, t h at t h e h ear in g sh ou ld be h eld in t h e Un ion Cou n t y Cou r t Hou se an d n ot ified t h e par t ies of t h is det er m in at ion by e-m ail m em or an du m on t h at . A copy of t h is e-m ail m em or an du m is at t ach ed Exh ibit C. 4. Cr an for d did n ot t h en seek r eview of t h is det er m in at ion by t h e

Cou r t . Th e par t ies t h en wor k ed wit h t h e Special Mast er an d t h e Special Hear in g Officer t o ar r an ge m u t u al agr eeable dat es for t h e h ear in gs. Th ey agr eed t h at t h e h ear in gs wou ld com m en ce on Au gu st 8, 2012, an d t o t h e ext en t possible wou ld con t in u e on su ccessive days. 5. Cr an for d fir st sou gh t r eview by t h is Cou r t by let t er dat ed Ju ly 24,

2012, an d or ally at a t eleph on ic con fer en ce h eld by t h e Cou r t t h e followin g day. A copy of t h e Let t er fr om Ph ilip Mor in , Esq. t o t h e Cou r t dat ed Ju ly 24, 2012, is at t ach ed as Exh ibit D.

6.

At t h at poin t , CDA opposed h oldin g t h e h ear in g in Cr an for d bot h

for t h e r eason s set for t h in Special Hear in g Officer Wolfson s m em or an du m an d becau se ch an gin g t h e ven u e of t h e h ear in g wou ld also r esu lt in a su bst an t ial delay an d a disr u pt ion of t h e plan s t h at h ad been pain st ak in gly wor k ed ou t for t h e h ear in g. 7. By or der dat ed Au gu st 2, 2012, wh ich is at t ach ed as Exh ibit E, t h e

Cou r t con fir m ed t h e det er m in at ion of t h e Special Hear in g Officer . ____________________________ St eph en Eisdor fer Dat ed: Jan u ar y 24, 2012 I cer t ify t h at t h e for egoin g st at em en t s m ade by m e ar e t r u e. I am awar e t h at if an y of t h ese st at em en t s ar e willfu lly false, I am su bject t o pu n ish m en t . ____________________________ St eph en Eisdor fer Dat ed: Jan u ar y 24, 2012

APPENDIX 2 Exhibit A
Stephen M . Eisdorfer
From: Sent: To: Cc: Subject: Attachments: Stephen M. Eisdorfer Friday, July 20, 2012 5:30 PM ecmcke@embarqmail.com; 'Philip Morin' dc@shekemiangroup.com CDA v. Cranford - draft public notice Notice of Public Hearing 8-8-2012 (02684393).DOC

For your information, attached is a draft of the public notice that CDA proposes to use for the site plan application. I would welcome your comments.

St ephen M . Eisdor fer , Esq.

seisdor fer @ hillwallack.com Dir ect : (609) 734-6357; Fax: (609) 452-1888 202 CARNEGI E CENTER, P.O. B OX 5226 PRI NCETON , N J 08543-5226 WWW .H I L L WAL L ACK .COM

APPENDIX 2 Exhibit B

MEMORANDUM
TO: FROM: DATE: Douglas K. Wolfson, Esquire; Philip Morin, Esquire; Nick Giuditta, Esquire; Stephen Eisdorfer, Esquire; Wendy Berger, Esquire Elizabeth C. McKenzie, AICP, PP May 15, 2012

SUBJECT: Suggested Procedures for Site Plan Submissions, Reviews and Approvals for Lehigh and CDA Inclusionary Developments ________________________________________________________________ The purpose of this memorandum is to set forth suggested procedures to follow in submitting, reviewing and approving site plan applications for the two inclusionary developments that were the subject of the Court's approvals in Cranford. As you are all aware, the Judge appointed Douglas K. Wolfson, Esquire, to sit as the Hearing Officer on these applications. I will be assisting him in his review in my role as the Court-appointed Master. However, it will be important to the process to make certain that all of Cranford's professionals have an opportunity to review and comment on these applications and to participate in the hearings. Moreover, the process adopted by the Court in these matters was never intended to preclude the public's rights to access to and participation in the hearings in the same manner as if these applications were being submitted for approval under the MLUL. Doug Wolfson and I have discussed certain of the issues associated with this process. We both agree that there is no need to undertake the formal process of declaring an application complete in order to start the review clock ticking. However, I want to caution both developers that if there are missing items that the Township's professionals or Doug Wolfson or I believe are necessary to the review and approval of the application, then these items will be requested and it could hold up the hearing process. We would encourage both developers to communicate freely and informally with Cranford's staff and professionals to -1-

make certain that all issues are appropriately addressed in the submission. Similarly, we would urge Cranford's professionals to let these developers know immediately if missing information is holding up the review or will be required to be evaluated prior to approval. The Submission Ten (10) copies of the plans and ALL accompanying documents should be submitted. The first five sets should be submitted directly to the following parties: Douglas K. Wolfson, Esquire Elizabeth C. McKenzie, AICP, PP Philip Morin, Esquire Nick Giuditta, Esquire Peter Van Den Kooy, PP The second five sets should be submitted to the Planning Board for distribution to the following: Township Engineer Township Zoning Officer Planning Board Office Construction Code Official Public File Copy The Planning Board reserves the right to request more copies of some or all of the material submitted, should any of the Board members request it, but the Board understands that its role in this will be unofficial. -2-

Doug Wolfson's fees are to be split between the parties. Mine are to be paid by Cranford Township. The costs of the reviews by the Township's professionals was an issue that was not addressed in Judge Chrystal's December 9, 2011 Order, but it would seem reasonable to expect that those costs would be borne by the developer in each case. Arrangements should be made to establish escrow accounts with Cranford so that these professional fees and costs can be paid as required by law. The Review The initial set of professional reviews should be undertaken within 30 calendar days of the submission. Please note that the review should not be limited to completeness - it should be a full blown substantive review. To the extent that corrected or supplementary information is found to be needed, the applicant should be notified as soon as the necessity is found so as not to delay the process. Professional reviews should be completed on time even if the requested information has not yet been provided by the applicant. If the missing information is critical to a portion of the review, its absence and its impact on the review can be noted. Assuming that issues are raised and changes are required to the plans, the applicant will need to submit the revisions, along with whatever supplementary information has been requested as soon as it can be arranged. Professional reviews of any revised or supplemented plans should be completed within 14 calendar days of receipt of the revisions and supplements requested. We are all human, and there may be good reasons to extend a review period to accommodate a professional's schedule. Any requests for reasonable -3-

extensions should be addressed to the applicant as well as the Master and the Hearing Officer. If there is a need to decide on the reasonableness of an extension, the Hearing Officer will decide. If the applicant believes that a requested supplement to the submission is unreasonable and unnecessary, this should be brought to the attention of the Township as well as the Master and the Hearing Officer. If it becomes necessary to decide on the reasonableness of a requested supplement, the Hearing Officer will decide. The Hearing Once the application has been reviewed by the Township's professionals and has been revised to reflect their comments and concerns, it will be ready for a public hearing. The hearing shall be duly noticed pursuant to the MLUL and proof of service shall be provided in accordance with applicable law. Doug Wolfson intends to hold the public hearings in an empty courtroom at the Union County Courthouse. The hearings will be held during the day. Steve Eisdorfer has suggested another alternative, to make it more convenient for the public to participate, and that is to hold the hearings in Cranford during the evening hours, still with Doug Wolfson presiding and me in attendance. I would suggest that the attorneys for the two plaintiffs, the Township's attorneys and Doug Wolfson confer on this issue and reach a decision well in advance, because whether a courtroom or meeting space in Cranford is needed, it will be necessary to set a schedule well in advance. The public will be invited to participate in exactly the same manner as they would be invited to participate in any other public hearing on an application before the -4-

Planning Board. The Rules of Evidence, etc., that apply to Planning Board hearings will apply to these hearings. The applicant will present the application and witnesses. The witnesses will be subject to questioning and crossexamination. Following the applicant's presentation, the Township may present witnesses. After that, the public will be invited to present testimony and witnesses, as well. The Master and the Hearing Officer will ask any questions they may have at appropriate times as determined by the Hearing Officer. At the conclusion of the hearings, counsel for both the applicant and the Township's will prepare and submit recommended findings and conclusions and conditions of approval. The Court Master will resolve these submissions in a recommended form of resolution to the Hearing Officer. The Hearing Officer, once satisfied with the resolution, will submit it to Judge Chrystal for approval. The applicant will be responsible for publishing notice of the decision so that the time period for appeals can begin to run.

-5-

APPENDIX 2 Exhibit C
Stephen M . Eisdorfer
From: Sent: To: Subject: Douglas Wolfson <DWolfson@sseclaw.com> Wednesday, May 16, 2012 8:14 AM 'Elizabeth C. McKenzie'; 'Philip Morin'; 'Nick Giuditta'; Stephen M. Eisdorfer; WBerger@coleschotz.com RE: Cranford Development Review Procedures for CDA and Lehigh

Betsy, than you for your comprehensive memo regarding the process to be followed for implementing the Court's award of a builder's remedy in this case. With regard to Mr. Eisdorfer's suggestion to consider holding the meetings in the Township's municipal building, I believe that to be inconsistent with the fact that the "application" is simply a delegation through the appointment of the special master and the hearing officer, of the Court's power to award and implement a builder's remedy, purely a judicial proceeding. If the Court chose to conduct the hearing itself, it would certainly be in Her Honor's Court Room - not Town Hall. This delegated proceeding should be viewed by the public as such, and in the same manner as if it were being conducted by the Court, with the same deference and respect typically expected to be seen in a court room. Conducting the meeting anywhere else, diminishes the seriousness and formality of the proceeding. We all know from our collective experiences what Local Board meetings can be like, and the emotions that can be fueled by those opposed to development proposals. That concern, it seems to me, and based upon my own experiences as a hearing officer in like circumstances, is heightened in an affordable housing context. Accordingly, the process to consider the appropriateness of the builder's remedy will be implemented in the Union County Court House.

From: Elizabeth C. McKenzie [mailto:ecmcke@embarqmail.com] Sent: Tuesday, May 15, 2012 4:44 PM To: Douglas Wolfson; 'Philip Morin'; 'Nick Giuditta'; 'Stephen M. Eisdorfer'; WBerger@coleschotz.com Subject: Cranford Development Review Procedures for CDA and Lehigh

Attached please find my memo in the above captioned matter. All comments are welcome, but please respond sooner rather than later, as Lehigh is ready to go in! If I have left any procedural issue out, please let me know so I can correct it. I did not address the need for technical review meetings - those will be scheduled by me at the request of either party to facilitate matters - but if informal contact amongst the professionals takes care of any issues, I see no need to add to the cost of the reviews by scheduling meetings that may not be necessary.

APPENDIX 2 Exhibit D

APPENDIX 2 Exhibit E

Dipple - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Birchwood Avenue right away.

APPENDIX 3
47

It doesnt -- you can see

where the dark blue line starts to come into the property, that's where it would go over the curb and then go into that flat area that's in front of the existing office building. Q Now do you have experience with, with DEP on

guest parking and, and in, in streets that are in flood hazard areas? A We have -- yeah, we have some on one of our sites.

There was some proposed parking within the flood hazard area and -- at on one of the, one of the access drives. Q And well, based on your experience, what's

your opinion on how DEP would handle guest parking on, on Birchwood Avenue if, if it were proposed? A I, I believe -- yeah. Were looking at guest

parking so in all likelihood they have a provision in the ordinance about parking within an area prone to flooding and what they require you to do in, in most instances is to, to place signs along the parking area indicating that this is an area that's prone to flooding. So it warns people that, you know, obviously

before a large storm event is, is coming, people are pretty much aware that its gonna be a heavy rain, very heavy rain, you know, storm event the next day or coming soon so seeing the sign there that says its

B VUP N BUFE USBOTDSJQUJP O!TFSWJDFT

967.895.5387

APPENDIX 4
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION A-5858-97T3 A-5900-97T3

TOLL BROTHERS, INC., a Delaware Corporation, Plaintiff-Respondent, v. TOWNSHIP OF WEST WINDSOR, a municipal corporation of the State of New Jersey located in Mercer County, MAYOR AND COUNCIL OF THE TOWNSHIP OF WEST WINDSOR, and THE PLANNING BOARD OF THE TOWNSHIP OF WEST WINDSOR, Defendants-Appellants. Argued May 1, 2000 - Decided August 16, 2000 Before Judges Havey, A.A. Rodrguez and Collester. On appeal from Superior Court of New Jersey, Law Division, Mercer County, whose opinion is reported at 303 N.J. Super. 518 (Law Div. 1996). Gerald J. Muller argued the cause for appellant Planning Board of the Township of West Windsor in A-5858-97T3 and A5900-97T3 (Miller, Porter & Muller, attorneys; Mr. Muller, on the joint brief). Karen L. Cayci argued the cause for appellants Township of West Windsor and Mayor and Council of the Township of West Windsor (Herbert, Van Ness, Cayci and Goodell, attorneys; Ms. Cayci, on the joint brief). Henry A. Hill argued the cause for respondent (Hill Wallack and Flaster, Greenberg, Wallenstein, Roderick, Spirgel,

Zuckerman, Skinner & Kirchner, attorneys; Mr. Hill, Kenneth E. Meiser, Stephen M. Eisdorfer and Carl S. Bisgaier, of counsel and on the brief). PER CURIAM The following discussion addresses issues not discussed in Judge Carchman's opinion reported at 303 N.J. Super. 518 (Law Div. 1996). Within weeks after Judge Carchman delivered his opinion, Toll Brothers submitted a revised builder's remedy which, after months of negotiation and mediation by the courtappointed master, John Lynch, evolved into a proposal for 1,165 units: 400 single-family detached, 130 townhouses and 635 apartments, 175 of which would be affordable to low and moderate income families. Ultimately, it was determined that the Township would be entitled to an additional 115 rental bonus credits, thereby satisfying 290 units of its fairshare obligation. By April 18, 1997, Judge Carchman had resolved all of the remaining disputes between Toll Brothers and defendants over the builder's remedy, and Toll Brothers revised its fair-share plan. As approved by Judge Feinberg in March 1998, the revised plan deleted sites 1, 2, 7 and 8 of the original compliance plan, added several other sites or projects, and utilized a Regional Contribution Agreement with the City of Trenton.

I Defendants argue that Tolls Brothers was not entitled to a builder's remedy because it failed to act in good faith. They claim that Toll Brothers should have continued negotiations to revise the zoning ordinance or sought a variance before filing suit. Defendants' good faith argument relies on selected quotes from Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158 (1983) (Mount Laurel II), including: Builder's remedies will be afforded to plaintiffs in Mount Laurel litigation where appropriate, on a case-by-case basis. Where the plaintiff has acted in good faith, attempted to obtain relief without litigation, and thereafter vindicates the constitutional obligation in Mount Laurel-type litigation, ordinarily a builder's remedy will be granted, provided that the proposed project includes an appropriate portion of low and moderate income housing and provided further that it is located and designed in accordance with sound zoning and planning concepts, including its environmental impact. [ 92 N.J. at 218 (emphasis added).] Thus: Care must be taken to make certain that Mount Laurel is not used as an unintended bargain-ing chip in a builder's negotiations with the municipality, and that the courts not be used as the enforcer for the builder's threat to bring Mount Laurel litigation if municipal approvals for projects containing no lower income housing are not forthcoming. Proof of such threats shall be sufficient to defeat Mount Laurel litigation by that developer. [ Id. at 280.] Judge Carchman awarded a builder's remedy because Toll Brothers succeeded in the litigation and proposed to build a substantial amount of affordable housing. Toll Brothers, Inc. v. Township of West Windsor, 303 N.J. Super. 518, 575 (Law Div. 1996). A developer is entitled to a builder's remedy if (1) it succeeds in Mount Laurel litigation, (2) it proposes a project with a substantial amount of affordable housing, and (3) the site

is suitable, i.e., the municipality fails to meet its burden of proving that the site is environmentally constrained or construction of the project would represent bad planning. Mount Laurel II, supra, 92 N.J. at 279-80; Allan-Deane Corp. v. Bedminster Township, 205 N.J. Super. 87, 138 (Law Div. 1985); J.W. Field Co., Inc. v. Franklin Township, 204 N.J. Super. 445, 450 (Law Div. 1985); Orgo Farms & Greenhouses, Inc. v. Colts Neck Township, 204 N.J. Super. 585, 588-89 (Law Div. 1985); AMG Realty Co. v. Warren Township, 207 N.J. Super. 388, 447 (Law Div. 1984). Although, as defendants

point out, the COAH mediation process under the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329, is favored over the use of builder's remedy litigation, the structure of the FHA is to encourage municipalities to avoid the threat of a builder's remedy by entering the administrative process. Hills Dev. Co. v. Bernards Township, 103 N.J. 1, 3536 (1986). Municipalities declining to subject themselves to COAH's jurisdiction " will be subject to litigation and the remedies provided by Mount Laurel II." Ibid. We are unaware of any case where a builder has met the three-prong test entitling it to a builder's remedy and failed to act in good faith. Indeed, Judge Serpentelli in J.W. Field Co, Inc., supra, 204 N.J. Super. at 454, observed that, in his experience, " it is very difficult to prove that a suit has been brought unnecessarily or as a leverage mechanism." In any event, we find no bad faith here. Beginning in September 1992, Toll Brothers corresponded with the Planning Board concerning a plan for developing site 6 with 670 single-family dwellings, which would generate 100 affordable units. In December 1992, it presented the Board with a conceptual plan for 671 single-family dwellings, fifty affordable rental units and satisfaction of the additional fifty units through a Regional Contribution Agreement. Thereafter, Toll Brothers withdrew its request to rezone the property because the Township's interest and cooperation began to diminish in December 4

1992, and the Township Planner's report of March 17, 1993, was highly critical and completely unsupportive of the rezoning proposal. Throughout the summer and fall months of 1993, Toll Brothers continued communications with the Planning Board, cautioning that amended zoning ordinances would be necessary to implement the project. During case management conferences, Toll Brothers' counsel stated that it would " very much like to settle the case," and would do so on terms more favorable to the Township than it would be prepared to offer after the pending COAH regulations took effect. Clearly, it was to Toll Brothers' advantage to reach a settlement rather than commit to several years of litigation. Defendants' suggestion that Toll Brothers should have sought variances for its project is of dubious merit. The size of the property, its importance in the Township's compliance plan and the number of variances needed to build conventional single-family dwellings made the project an ill-suited candidate for variance relief. Indeed, it is questionable whether the Planning Board would even have had jurisdiction over the project, since it would appear the project would require one or more special reasons variances under N.J.S.A. 40:55D-70d. II Defendants next challenge the builder's remedy awarded by Judge Carchman on several bases. First, they claim that the court erred in permitting Tolls Brothers to argue that the Township's ordinances were unduly cost-generating without allowing defendants to present proofs and to cross-examine on the issue. Second, they contend that the court and the master applied legally erroneous standards in determining whether the ordinances were in fact unduly cost-generating. Specifically, defendants contend that the fifteenpercent set-aside authorized by the court, rather than a twenty-percent set-aside, was arbitrary. Also, they argue that Toll Brothers could have utilized a pump station for a 5

portion of the site and that the court should have required Toll Brothers to provide more recreational space. Defendants also argue that the court unduly intruded upon the municipal planning and zoning prerogatives of the Planning Board and governing body by ordering them to adopt the builder's remedy ordinance. Finally, they argue that the court erred in failing to make specific factual findings on Toll Brothers' plan to build a substantial number of multi-family housing on the site when it had previously asserted that only single-family dwellings were marketable. John Madden, defendants' professional planner, criticized Toll Brothers' initial proposal for approximately 700 single-family dwellings and 100 to 125 affordable units because in his view the plan represented a poor use of such a large site and a waste of an opportunity for the Township to generate a substantial number of affordable units. Despite the fact that the judge held that Toll Brothers was entitled to a builder's remedy, one aspect of Toll Brothers' proposal concerned him, the generating of a sufficient number of affordable units available to low-income families. Extensive negotiations ensued between Toll Brothers and Lynch after which Toll Brothers increased the number of affordable units to 175, which, with the 115-unit rental bonus, would generate 290 credits, thereby satisfying nearly one-third of the Township's fair share. Defendants criticized the number of ordinance changes proposed by Toll Brothers. After Lynch submitted a revised report on the ordinance changes, the judge conducted a hearing after which he addressed each of the disputed issues. The order establishing standards for the builder's remedy was entered on July 30, 1997. We reject defendants' argument that they were deprived of the opportunity to present proofs and the right to cross-examine during the builder's remedy phase of the trial. After Toll Brothers outlined the ordinance changes needed to implement its proposed 6

project, defendants responded that Toll Brothers was not entitled to any change in any ordinance unless the ordinance had been challenged during the compliance phase of the litigation. Lynch disagreed, commenting that the type of changes sought by Toll Brothers are of a type of relief ordinarily associated with the award of a builder's remedy. We disagree with defendants that the court had to find that the ordinances affecting Toll Brothers' project were unduly cost-generative before it could order defendants to rezone the parcel to accommodate the proposed units. Moreover, the fact that Toll Brothers raised questions about the ordinance provisions only in the builder's remedy phase of the case is of no moment. As Lynch observed, " the initial compliance hearing, although quite lengthy in this case, is conducted for the purpose of making threshold determinations of compliance, not focusing on the details of ordinance language. Site yields, site suitability, and overall fair share obligations, including credits, are addressed in the compliance phase." Many of the changes sought by Toll Brothers were technical and were resolved by agreement. The more substantial changes ordered by Judge Carchman have been challenged specifically by defendants on appeal, and the challenges are addressed below. In short, a builder is entitled to construct its project if it prevails in the compliance phase of the trial, unless the municipality can show that the project is clearly contrary to sound land-use planning. Mount Laurel II, supra, 92 N.J. at 279-80. Defendants have not made that showing. The July 30, 1997 order, establishing builder's remedy standards, allows Toll Brothers to choose the manner in which it will sewer the property, either through a gravity line or a force main and pumping station. This finding was consistent with Lynch's recommendation that Toll Brothers be given the option of choosing how to sewer that portion of the site that lay in the Duck Pond Run watershed. Defendants objected to a 7

pump station and force main as a means of sewering the Duck Pond Run watershed portion of the site, arguing that Toll Brothers should assist in the construction of and tie into the Duck Pond Run interceptor. This aspect of the trial judge's builder's remedy is sustainable in fact and in law. The municipality had authorized its first Mount Laurel project, Steward's Watch, to utilize a pumping station. It intends to allow pumping stations and force mains for the Copperfield and Planned Residential Retirement Community sites. Toll Brothers' predecessor-in-title had been authorized to use a pumping station until a gravity line was built close to the site. In short, a project utilizing a pumping station is not " clearly contrary to sound land use planning," ibid., nor is the ordinance requirement for a gravity system " necessary to protect health and safety." Id. at 259. Defendants argue that the court should have required a twenty-percent set-aside, the standard set by the Court in Mount Laurel II. We disagree. Extensively analyzing COAH regulations, the master concluded that a fifteen-percent set-aside was appropriate. Judge Carchman agreed with the master's analysis and added that, through COAH's rental bonus credit rules, Toll Brothers' project generated 296 (later recalculated to 290) affordable units. It was his view that the proposed project, with a fifteen-percent set-aside of rental units, would substantially benefit the Township. It is true that the Court in Mount Laurel II observed that in a builder's remedy case a " 20% [ set-aside] appears to us to be a reasonable minimum." Id. at 279 n.37. However, because of the profit developers need to generate on market units to subsidize affordable units, it soon became apparent that the building community viewed twenty percent as the maximum feasible set-aside. J.W. Field Co. Inc., supra, 204 N.J. Super.

at 467. If a set-aside is too high, affordable housing will not be built. Allan-Deane, supra, 205 N.J. Super. at 116. Further, a fifteen-percent set-aside conforms to COAH guidelines. Toll Brothers advances COAH policy by proposing to build a substantial number of family rental units, but this requires a deeper subsidy from the developer. Moreover, there appears to be no prejudice to the municipality. As the judge pointed out, in July 1988, the Township reached a settlement with Toll Brothers' predecessor-in-title which called for the construction of 1,500 units at a fifteen-percent set-aside. Defendants next protest that portion of the order revising the ordinance to reduce the amount of recreational space. The ordinance had required common open space equal to the lesser of twenty-five percent of the development area, excluding the area for singlefamily lots, or twenty percent of the gross development area. Toll Brothers requested that the ordinance be amended to eliminate open-space requirements for that part of the development consisting exclusively of single-family detached homes, but preserving the open-space requirements as to apartments and townhouses. The master concluded that, as to this development, less open space for the single-family area was appropriate since so much of the property (one-third, about 100 acres) was environmentally constrained land which could not be developed. Madden submitted a certification in response, citing other planning sources which called for more active open space. It was his opinion that there should be a baseball or soccer field in the development and that twelve to fifteen acres of recreation area should be included. Judge Carchman observed that Madden's certification had introduced " new factual issues and elements into the mix" and was " too little too late in this process." The judge disposed of the issue based on his confidence in the master's judgment. In our view, the 9

judge's resolution of the dispute is amply supported by substantial evidence and constituted a reasonable exercise of his discretion. Lastly, we reject defendants' argument that the court's order requiring defendant's to review, introduce and pass an ordinance implementing the builder's remedy was an abrogation of " the governing body's paramount legislative power to plan and zone for its municipality." Defendants rely on the following excerpt from our opinion in East/ West Venture v. Borough of Fort Lee, 286 N.J. Super. 311, 330 (App. Div. 1996): But the soundness of the planning of Mount Laurel housing and the " suitability" of the site implicate the exercise of the municipality's legislative powers in amending its master plan and zoning ordinance, as well as all of the statutory notice and public hearing safeguards provided to the public under the MLUL and other pertinent provisions of Title 40. Nothing in Mount Laurel II or other controlling case law allows shortcutting those legislative safeguards. Defendants have taken the above quote out of context. In East/ West Venture the municipality reached a settlement agreement with the developer; at issue there was the procedure to be followed when third parties objected to the settlement. We held that a trial court's review of the fairness of the settlement, that is, whether it sufficiently advances the interest of low- and moderate-income households, does not preclude objectors from challenging, on non Mount Laurel grounds, the ordinance which implements the settlements. Id. at 328-30. This is not a case where the parties reached a settlement. Affirmed.

10

11

APPENDIX 5
Tusf f u! G buvsf t ; !Ui f !ef tjho!pg su f !df bjo!t u f u sf t!ps!qpsu !u f sf pg bz!jodm ! g bu t!ps!bsf bt!u bu jpot i !n vef f vsf i !dbo!cf

dpw sf e!x ju !qf sw f i jpvt!n bu sjbm boetdbqf e-!boe0 f -!m ps!ef tjhof e! u df jw !svopg/!G ybn qm-!u g p!sf f g ps!f f sbgjd!dbm joh n n f bt vsf t ! t vdi ! bt! djsdmt -! spu t -! n f ejbot -! boe! jtm ! dbo! cf ! w hf u f e! ps! m dbqf e/! Tvdi ! g bu t f bsjf boet f bu boet f vsf sf evdf !u f !bn pvou pg qf sw ! dpw s! boe!qspw ! bo!pqqpsu z! u u ! boe!qpttjcm jog u f ! svopg i ! !jn jpvt f jef voju p!t psf z! jm sbu g g !bek ou jn qf sw spn bdf ! jpvt! tu f u tvsg t/!X i f o! dvsct!bsf !of df tt bsz! u bjou u g sf ! bdf p!n bjo! sbgjd!tbg u f z!boe0 ps!n f f u f yjtu joh!sf hvm jpot-!tu f u bu sf !svopg!n bz!cf !ejsf du e!u i f tf !g bu t!u spvhi !dvsc!dvu g f p!u f vsf i t/
Tjef x bmt ;!Tjef x bm!sf r vjsf n f ou ju jo!sf tjef ou !bsf bt!bsf !bm l l t!x i jbm tp!tqf djg e!jo!Tvcdi bqu s!5!pg i f !STJT!boe jf f !u

bsf !cbtf e!po!u f !tu f u zqf !boe!ef w m f ou f otju i sf !u f pqn !jou z/!Nvojdjqbm hvm jpot!pgf o!ejdu f !u f !sf r vjsf n f ou !sf bu u bu i t g t jef x bmt ! jo! opo.sf t jef ou ! ef w m f ou u qspw ! t bg ! qf ef t u ps! l jbm f pqn ! p! jef f sjbo! n pw n f ou Q ef t u f /! f sjbo! u g sbgjd qbu f sot ! dpot jef sf e! x i f o! ef u sn jojoh! u f ! qm n f ou pg t jef x bmt ! jodm ! u f ! qsf t f odf ! pg t di ppmu f i bdf ! ! l vef i ! t ti pqqjoh!df ou st-!sf dsf bu f jpobmg ju t-!i boejdbq!bddf tt-!boe!qvcm sbotqpsu jpo!g ju t/!Tjef x bmt!dbo ! bdjmjf jd!u bu bdjmjf l cf !n bef !pg sw !qf jpvt! n bu sjbm vdi !bt!qpspvt!qbw n f ou f -!t f !ps!dpodsf u -!ps!ef t jhof e! u f p!qspw !svopg!tu jef g psbhf boe!jog u jpo!jo!u f js!tu !cbtf /!X i f sf !jn qf sw jm sbu i pof jpvt!n bu sjbm f !jt!vtf e-!tjef x bmt!dbo!cf !ejtdpoof du e!g l f spn u f !esbjobhf ! tztu n -!x i jdi !bm t!t pn f !pg i f !svopg!g !u f n !u .jog u f !jo!bek ou sw i f m px !u g spn i p!sf jm sbu bdf !qf jpvt!bsf bt/ Beeju jpobm u t!sf hbsejoh!vodpoof du e!jn qf sw !ef bjm f jpvt!tvsg !jt!qsf tf ou e!cf m / bdf f px

C/!Q j oh!boe!Esj w x bz!Bsf bt bsl f

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O x !K stf z!Tu x buf s!Cf t u!Nbobhf n f ou sbdujdf t !Nbovbm !D bquf s!3;!M !Jn qbdu!Ef w m f ou!U di ojr vf t ! !G csvbsz!3115!!Q !3.: f f psn !Q ! i px f pqn f f bhf