IN THE MATTER OF THE APPLICATION OF THE TOWNSHIP OF BORDENTOWN, ETC. (L-1579-15, BURLINGTON COUNTY AND STATEWIDE)
272 A.3d 413
N.J. Super. Ct. App. Div.2022Background
- The Township of Bordentown sought a declaratory judgment that it met its Third Round Mount Laurel affordable-housing obligations; Fair Share Housing Center (FSHC) intervened and negotiated a settlement with the Township.
- Developer Mark Bergman held an option to buy a 17.04-acre site and proposed 250 units (40 affordable); the Township/FSHC settlement did not include his property.
- Special master Mary Beth Lonergan was appointed to assist the court; the parties negotiated an amended settlement allocating 425 Third Round units using mechanisms including bonuses, credits, inclusionary and 100% affordable projects.
- Bergman objected, sought to include his site, and attempted to participate at fairness hearings; the trial court allowed cross-examination but barred Bergman from testifying about his personal development plans.
- Bergman challenged (1) exclusion from testifying, (2) that the settlement improperly reduced units via bonus/credit stratagems without a detailed ‘‘realistic opportunity’’ analysis, and (3) an alleged conflict of interest by the special master.
- The Law Division approved the amended settlement and entered final judgment of compliance and repose; Bergman appealed and the Appellate Division affirmed.
Issues
| Issue | Plaintiff's Argument (Bergman) | Defendant's Argument (Township/FSHC) | Held |
|---|---|---|---|
| Whether Bergman should have been allowed to testify at the fairness hearing | Bergman: his testimony about his site and lost building opportunity was relevant to fairness and realistic-opportunity analysis | Township/FSHC: his testimony was purely personal and irrelevant to whether the settlement as a whole provides a realistic opportunity | Held: Trial court did not abuse discretion; testimony was personal and not required for fairness review; Bergman could cross-examine witnesses |
| Whether Bergman was improperly seeking a builder's remedy via the fairness process | Bergman: vacating the settlement would allow his project to proceed | Township/FSHC: Bergman was attempting to obtain a builder's remedy in the wrong forum; fairness hearings are not a substitute for builder's-remedy litigation | Held: Court correctly treated Bergman’s position as a bootstrapped builder's-remedy claim and did not err in limiting relief |
| Whether the court had to perform a separate economic/COAH-based ‘‘realistic opportunity’’ analysis before accepting bonus credits and other reduction stratagems | Bergman: trial court must analyze whether the economic rationale for COAH bonuses still applies and whether credits undermine fairness | Township/FSHC: Mount Laurel IV permits courts to apply COAH methodologies and to accept bonus credits; courts need only ensure the overall plan is fair and provides realistic opportunity | Held: Court properly relied on Mount Laurel IV authority; it was not required to reprove COAH rationales for bonuses so long as the overall plan is fair and reasonable |
| Whether special master Lonergan had a disqualifying conflict of interest | Bergman: Lonergan (or her firm) simultaneously advises municipalities and courts, creating an appearance of impropriety | Township/FSHC: Lonergan had no direct financial interest in this matter and served in an advisory role | Held: No disqualifying conflict shown; Deland permits part-time planners to serve as masters absent a financial interest; Lonergan’s role was advisory and Court’s independent decision-making sufficed |
Key Cases Cited
- In re Adoption of N.J.A.C. 5:96 & 5:97 (Mount Laurel IV), 221 N.J. 1 (2015) (authorizes courts to apply COAH methodologies, permits bonus credits, and urges prompt voluntary municipal compliance)
- In re Declaratory Judgment Actions Filed By Various Muns., 227 N.J. 508 (2017) (clarifies trial-court guidance and FSHC participation after COAH’s failure to promulgate valid Third Round rules)
- S. Burlington Cnty. N.A.A.C.P. v. Mount Laurel Twp. (Mount Laurel II), 92 N.J. 158 (1983) (establishes realistic-opportunity standard and builder's-remedy framework)
- E./W. Venture v. Borough of Fort Lee, 286 N.J. Super. 311 (App. Div. 1996) (sets factors for fairness hearing assessing protection of lower-income interests)
- Deland v. Twp. of Berkeley, 361 N.J. Super. 1 (App. Div. 2003) (special-master conflict doctrine; financial interest disqualifies, part-time planner roles are permissible absent financial ties)
- Rova Farms Resort v. Invs. Ins. Co. of Am., 65 N.J. 474 (1974) (standard for appellate review of trial-court findings)