IN THE MATTER OF THE APPLICATION OF THE TOWNSHIP OF BORDENTOWN, COUNTY OF BURLINGTON.
DOCKET NO. A-0357-20
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
March 14, 2022
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION March 14, 2022 APPELLATE DIVISION
Argued February 9, 2022 – Decided March 14, 2022
Before Judges Sumners, Vernoia and Firko.
Bruce I. Afran argued the cause for appellant Mark Bergman.
Michael J. Edwards argued the cause for respondent The Township of Bordentown (Surenian, Edwards & Nolan LLC, attorneys; Michael J. Edwards, of counsel and on the brief; AnnMarie Harrison, on the brief).
Joshua D. Bauers argued the cause for respondent Fair Share Housing Center (Fair Share Housing Center, attorneys; Bassam F. Gergi, of counsel and on the brief).
The opinion of the court was delivered by
FIRKO, J.A.D.
On appeal, Bergman argues the trial court erred by denying his request to testify at the fairness hearing and finding the settlement fairly and reasonably protects the interests of low-income individuals. He also contends special master Mary Beth Lonergan, A.I.C.P., P.P., had a conflict of interest because she, or others in her firm, were simultaneously representing dozens of municipalities in affordable housing settlement negotiations. We disagree and affirm.
On July 2, 2015, the Township filed a verified complaint seeking a declaratory judgment that it satisfied its fair share of affordable housing for its Third Round Mount Laurel obligation, pursuant to COAH‘s 2014 calculation, and it is immune from prospective litigation.2 On November 12, 2015, the
Following immunity and intervention proceedings, the parties engaged in extensive negotiations. At the time, the property was “zoned as R-120 Low Density Residential.” The Township wanted to acquire the property for its Green Acres open space preservation program. On April 3, 2017, the Township awarded a contract for the appraisal of the property to J. McHale and Associates, LLC. The property appraisal indicated “a maximum of [thirteen] building lots” would be permitted under current zoning regulations.
The option agreement provided Bergman nine months—until January 27, 2018—to acquire all rights in the property under the terms and conditions set forth in the agreement. Bergman could extend the initial option period for an additional nine months by notifying the owner “in writing no later than ten . . . business days prior to the expiration of the” option agreement—January 17, 2018—and making four $37,500.00 payments upon exercising the extended
Between May and June 21, 2017, the Township and Bergman had preliminary discussions relative to his proposed development. Bergman did not file an application to rezone the property or seek site plan approval regarding his proposal. The Township informed Bergman it was in the process of determining its affordable housing obligation.
On June 26, 2017, the Township and FSHC3 entered into a settlement agreement (the agreement), which set forth the Township‘s total affordable housing obligations and provided a compliance plan in order to meet those obligations. The agreement recognized the Township had the following affordable housing obligations:
| REHABILITATION OBLIGATION | 11 |
| PRIOR ROUND OBLIGATION |
| (pursuant to | 211 |
| THIRD ROUND (1999-2025) PROSPECTIVE NEED, WHICH INCLUDES THE GAP PERIOD PRESENT NEED, RECOGNIZED BY THE SUPREME COURT, In re Declaratory Judgment Actions Filed by Various Municipalities, 227 N.J. 508 (2017) | 425 |
In order to satisfy the Township‘s Third Round prospective need of 425 units, the agreement identifies multiple compliance mechanisms, including: (1) surplus credits (round two), consisting of residual credits resulting from the Bradford Point site4 for ten units with a rental bonus credit of ten (ten in total); (2) Volunteers of America (VOA) – 1, a senior rental for sixty-four units and special needs for five units (sixty-nine units in total) with a rental bonus credit of five; (3) the Bordentown Waterfront Community (BWC) residual credits, a family or senior rental with eighteen units; (4) the Zieger project, for 227 units, thirty-six units to be affordable housing; (5) the Nissam project, for 230 units, forty units to be affordable housing and over 13% affordable housing to very low-income families; (6) group home (bedrooms) designated for special
Bergman‘s property was not included in the agreement. Therefore, he chose not to meet any further with the Township‘s representatives relative to his development plan for the property. On September 1, 2017, Bergman filed an objection to the Township‘s proposed settlement and compliance plan and sought to include the property in the Township‘s affordable housing allocation.
On May 18, 2018, Bergman‘s attorney submitted a letter to the court advising he and his client “would not be appearing at the fairness hearing but that [Bergman] wished to make a statement.” On June 12, 2018, Bergman submitted a pro se written statement of his objections to the proposed settlement to the court.
At the June 18, 2018 fairness hearing, the trial court permitted Bergman to make a statement and cross-examine witnesses. The judge addressed Bergman‘s arguments and explained:
[First], [Bergman‘s concerns are] not directly in front of me today. What‘s in front of me today is whether there is a realistic opportunity for affordable housing, [which] I think that there is based on [special master] Lonergan‘s testimony.
[Second], and I have this in other cases. I have it even being more actively litigated than this. It‘s—
and I get the impression you‘re in the real estate business, so you know that things change, just like the rest of life and if something changes here then we‘ll come back and we‘ll have to see.
. . . .
[Third,] you may be right. As a matter of fact, I would be surprised if you were not right, that some of these things are not going to happen, but then the question is what is going to happen?
And I think that response to your concerns, I‘m not going to get into whether I think your policy arguments are right or wrong because I don‘t really think that‘s the role of the Court. . . . I‘m not here for policies. I‘m here to do what the Supreme Court says.
So based upon this[,] I do find that there‘s a realistic opportunity.
On June 29, 2018, the trial court entered an order approving the Township‘s settlement with the FSHC based on Lonergan‘s testimony. The court noted the agreement‘s fair share methodology reduced the Township‘s Third Round obligation by thirty-two percent “as an incentive to settle the case,” which it had “been amendable to . . . in lieu of litigating the appropriate fair share methodology.”
Notwithstanding entry of the order, during a court conference, the judge “directed the parties to engage in discussions to see whether . . . [Bergman]‘s
On January 17, 2018, Bergman did not notify the property‘s owner in writing of his intention to extend the initial option period, as required in the option agreement. A week later on January 24, 2018, the Township announced it was ceasing all negotiations with Bergman regarding the property and his proposed development. Three days later, on January 27, 2018, Bergman‘s option agreement expired. After Bergman‘s option agreement expired and was not renewed by him, the property‘s owner reentered into negotiations with the Township for its purchase of the property, which culminated in the sale of the property to the Township on May 3, 2018.
On June 7, 2019, Bergman filed a motion to set aside the trial court‘s June 29, 2018 order and argued: (1) “during the court-ordered negotiations [the Township] had taken undisclosed measures to acquire [the property] for
On June 11, 2019, the Township and FSHC entered into an amended agreement, unrelated to Bergman‘s motion, which was submitted to the trial court on June 18, 2019, for approval. The amended agreement also provided for 425 units to satisfy the Township‘s Third Round obligation. In sum, the Township‘s Third Round sites included:
- Affordable housing credit for ten existing family rental homes, plus ten bonus credits from Bradford Pointe, a 100% affordable development, plus ten bonus credits
- Sixty-nine existing homes, comprised of sixty-four age-restricted rentals and five special needs units, plus five bonus credits for the special needs units from a 100% affordable development with VOA
- Eighteen proposed family or age-restricted rental homes from an inclusionary development, BWC
- Thirty-six proposed family rental homes, plus thirty-six bonus credits, from an inclusionary development with Zieger
Forty proposed family rental homes, plus forty bonus credits, from an inclusionary development with Nissim - Nineteen proposed age-restricted homes from an inclusionary development with Kevin Johnson Senior Project
- Fourteen group homes
- Ten proposed family homes to be constructed by Habitat for Humanity
- Eleven proposed market-to-affordable homes
- Sixty-five proposed rental homes to be built as a 100% affordable development by VOA, which was to be publicly subsidized
A new fairness hearing was requested to address modifications to the proposed amended agreement and to “determine whether the [a]mend[ed] [agreement] [was] fair and reasonable to the interest of the region‘s low- and moderate-income households, while simultaneously determining whether [the Township‘s fair share plan], as a whole, creates a realistic opportunity for the construction of the Township‘s fair share of the regional need.”
On August 9, 2019, the parties entered into a consent order to set aside Bergman‘s motion because the June 29, 2018 order became moot since a new fairness hearing was required as a result of the proposed amended settlement. As part of the parties’ consent order, Bergman was “entitled to be heard and
On October 16, 2019, the trial court commenced the fairness hearing over three non-sequential days.7 During the second day of the fairness hearing, the trial court rejected Bergman‘s request to testify because his arguments were limited to his “personal situation.” The trial court reiterated its function was solely to determine “whether or not [the amended agreement] was a fair agreement that provides a realistic opportunity for low[-] and moderate[-] income housing.” The trial court added: “There is nothing that obligates a town to go with a specific development plan, as opposed to another one, provided that [the chosen plan] provides the opportunity for realistic low[-] and moderate[-] income housing.”
Special master Lonergan testified in response to both the fairness of the amended settlement agreement and Bergman‘s arguments, which were previously summarized in an October 14, 2014 email to her. Lonergan recommended the trial court approve the amended settlement agreement and noted the housing element of the Fair Share Plan provided a realistic opportunity for the Township to construct its fair share of the regional need for
II.
A final determination made by a trial court conducting a non-jury case is “subject to a limited and well-established scope of review.” Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). We review a trial court‘s interpretation of law de novo. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). However, “we give deference to the trial court that heard the witnesses, sifted the competing evidence, and made reasoned conclusions.” Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015). We will “not disturb the factual findings and legal conclusions of the trial judge unless” convinced that those findings and conclusions were “so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.” Rova Farms Resort v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).
Trial courts have broad discretion when reviewing a municipality‘s Mount Laurel fair share plan for constitutional compliance. Mount Laurel IV, 221 N.J. at 30. And, trial “courts should endeavor to secure, whenever possible, prompt voluntary compliance from municipalities.” Id. at 33. A trial court‘s factual “findings should not be disturbed ‘when supported by adequate, substantial and credible evidence.‘” Toll Bros. v. Twp. of W. Windsor, 173
A trial court must conduct a fairness hearing before it approves a municipality‘s Mount Laurel Fair Share Plan. Livingston Builders, Inc. v. Twp. of Livingston, 309 N.J. Super. 370, 374 (App. Div. 1998). The sole purpose of a fairness hearing is to assess “whether the settlement is ‘fair and reasonable,” i.e., “whether it adequately protects the interests of the persons on whose behalf the action was brought.” Sutter v. Horizon Blue Cross Blue Shield of N.J., 406 N.J. Super. 86, 101-02 (App. Div. 2009) (reviewing settlement between health insurer and class representative) (quoting Morris Cnty. Fair Hous. Council v. Boonton Twp., 197 N.J. Super. 359, 369-71 (Law Div. 1984)); see also Builders League of S. Jersey, 386 N.J. Super. at 471-72 (noting fairness hearings for class action settlements and land use litigation to be the same). Cf. Mount Laurel I, 67 N.J. 151.
A municipality‘s fair share plan settlement is fair and reasonable when it “adequately protects the interests of lower-income persons on whose behalf the affordable units proposed by the settlement are to be built.” E./W. Venture v. Borough of Fort Lee, 286 N.J. Super. 311, 328 (App. Div. 1996). A fairness hearing requires the trial court to consider: (1) “the number of affordable
In conducting a fairness hearing, a trial court has broad “discretion to ‘employ the procedures that it perceives will best permit it to evaluate the fairness of the settlement.‘” Sutter, 406 N.J. Super. at 101 (quoting In re Cmty. Bank of N. Va., 418 F.3d 277, 316 (3d Cir. 2005)). “The ‘nature and extent of the hearing . . . rests within the sound discretion of the court.‘” Id. at 102 (quoting Boonton Twp., 192 N.J. Super. at 370); see also In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 358 n.33 (3d Cir. 2010) (noting trial courts are afforded considerable “discretion ‘to employ the procedures that [the court] perceives will best permit it to evaluate the fairness of the settlement‘” (quoting In re Cmty. Bank of N. Va., 418 F.3d at 316)).
Trial courts adjudicating Mount Laurel declaratory judgment actions “should employ flexibility in assessing a” municipality‘s compliance plan. Mount Laurel IV, 221 N.J. at 33. The Fair Housing Act of 1985 (FHA) and the Municipal Land Use Law authorize municipalities to use various means to provide for their “fair share of low[-] and moderate[-]income housing.”
We first address Bergman‘s argument that the trial court erred by not allowing him to testify at the fairness hearing. He contends his proffered testimony was a factor “relevant to the ‘fairness’ issue.” E./W. Venture, 286 N.J. Super. at 328. Bergman claims the term “any other factors” “embraces all evidence that reasonably relates to the fundamental fairness of the settlement” and “whether it provides a ‘realistic’ affordable housing opportunity.” Because Bergman asserts the amended settlement agreement reduced the Township‘s Third Round obligations, he claims his testimony was relevant, and his proposed development could have satisfied the Township‘s affordable housing obligation.
The sole purpose of a fairness hearing is to assess whether the proposed “settlement is ‘fair and reasonable,‘” Sutter, 406 N.J. Super. at 101-02 (quoting Boonton Twp., 197 N.J. Super. at 369-71), i.e., “whether it adequately protects the interests of lower-income persons on whose behalf the affordable units proposed by the settlement are to be built,” E./W. Venture, 286 N.J. Super. at 328. As such, the trial “court ‘must eschew any rubber stamp approval in favor of an independent evaluation, yet, at the same time, it must stop short of the detailed and thorough investigation that it would undertake if it were actually trying the case.‘” Sutter, 406 N.J. Super. at 102 (quoting Builders League of S.
We discern no basis to disturb the trial court‘s decision barring Bergman‘s testimony. The court was well within its discretion in finding Bergman‘s proffered testimony was purely personal in nature—concerning his development project. Moreover, Bergman was allowed to participate in the fairness hearing by examining witnesses. The purpose of a fairness hearing is not to determine if there exists an alternative plan, which may more efficiently provide low-income units, but rather is restricted to the question of whether the parties’ current plan provides “a realistic opportunity for the municipality to achieve its ‘fair share of the present and prospective regional need for low[-] and moderate[-]income housing.‘” S. Burlington Cnty. N.A.A.C.P. v. Twp. of Mount Laurel (Mount Laurel II), 92 N.J. at 205.
Next, Bergman argues the trial court erred by finding he “was seeking to compel, in the wrong forum, a builder‘s remedy.” A builder‘s remedy provides a developer with the means to bring “about ordinance compliance through litigation.” Mount Olive Complex v. Twp. of Mount Olive (Mount Olive II), 356 N.J. Super. 500, 505 (App. Div. 2003) (quoting Allan-Deane Corp. v. Twp. of Bedminster, 205 N.J. Super. 87, 138 (Law Div.1985)). A builder‘s remedy should be granted if: (1) the “developer succeeds in Mount Laurel litigation“; (2) the developer “proposes a project providing a substantial9
amount of lower income housing“; and (3) the developer‘s proposal is not “contrary to sound land use planning.” Mount Laurel II, 92 N.J. at 279–80. A “builder‘s remedy [may] not be denied solely because the municipality prefers some other location for lower income housing, even if it is in fact a better site.” Id. at 280. Builder remedies are granted “where appropriate, on a case-by-case basis.” Id. at 218.
A developer does not have an “inherent right to a builder‘s remedy,” however. Tanenbaum v. Twp. of Wall Bd. of Adjust., 407 N.J. Super. 446, 457 (Law. Div. 2006), aff‘d, 407 N.J. Super. 371, 376 (App. Div. 2009) (affirming the trial court‘s “conclusions substantially on the basis of his written opinion“). A builder‘s remedy is only appropriate “after a [trial] court has had the opportunity to fully address constitutional compliance and has found constitutional compliance wanting.” Mount Laurel IV, 221 N.J. at 35-36. Consequently, only a municipality that satisfies its Mount Laurel obligations “obtain[s] immunity from a builder‘s remedy.” Id. at 14.
Here, the trial court noted Bergman‘s objections to be a “bootstrapped” builder‘s remedy by which to circumvent the Township‘s immunity. Specifically, the court noted:
He happens to be a developer. There‘s a specific remedy for developers when it comes to [Mount] Laurel litigation, called a builder‘s remedy, if that‘s
what he might want to do with a certain plot of land as a developer. . . . [I]t‘s one thing to object to the [Mount] Laurel plan on fairness grounds, but if the whole reason he‘s here . . . [is] as a developer, [he] want[s] [his] property in [the plan][,] [i]sn‘t that a builder‘s remedy as opposed to an objection to a fair share plan?
In response, the record shows Bergman‘s counsel admitted he had hoped by vacating the current fair share plan, Bergman “might actually get to the same place” as a builder‘s remedy “without the need for a new litigation.” We are unpersuaded. The trial court‘s barring of Bergman‘s testimony was well within its discretion and does not warrant reversal.
C.
Finally, on the issue of his proffered testimony, Bergman argues the trial court erred because the Township had “manipulated out of existence an actual building opportunity.” A municipality is not inherently required to rezone property for purposes of inclusionary development. See Mount Olive II, 356 N.J. Super. at 507. If a municipality can achieve its fair-share obligation without a specific property, i.e., the municipality‘s fair share plan is fair and reasonable without the property‘s inclusion, then the municipality may restrict the use of the property as reasonable. See ibid.; Mount Olive Complex v. Twp. of Mount Olive (Mount Olive I), 340 N.J. Super. 511, 538 (App. Div. 2001). In Mount Laurel II, the Court specifically held:
Mount Laurel is not designed to sweep away all land use restrictions or leave our open spaces and natural resources prey to speculators. Municipalities consisting largely of conservation, agricultural, or environmentally sensitive areas will not be required to grow because of Mount Laurel. . . . As for those municipalities that may have to make adjustments in their lifestyles to provide for their fair share of low[-] and moderate[-]income housing, they should remember that they are not being required to provide more than their fair share. . . . [O]nce a community has satisfied its fair share obligation, the Mount Laurel doctrine will not restrict other measures, including large-lot and open area zoning, that would maintain its beauty and communal character.
A municipality achieves its fair-share obligation via its “units actually constructed, under construction, or approved by [the municipality‘s] final development plan.” Mount Olive II, 356 N.J. 510-11. As such, so long as a municipality‘s fair share plan is fair and reasonable, the municipality has satisfied its Mount Laurel obligations and may restrict the use of all property not included in the plan as reasonable. But see Mount Laurel IV, 221 N.J. at 33-34 (noting if the “goal cannot be accomplished, with good faith effort and reasonable speed, . . . then the [trial] courts may authorize exclusionary zoning actions seeking a builder‘s remedy to proceed against the [municipality]“).
Here, the property was zoned as low density residential at the time Bergman entered into the option contract. At no time did Bergman file any application for rezoning of the property. In May 2017, the Township informed Bergman that the property would be considered for additional affordable housing, along with other properties. And, the proposals were “entirely inconsistent with the Township‘s current zoning” regularities. During the second fairness hearing, the Township‘s representative testified “[t]here was always interest in [the] property for the purpose . . . [of] affordable housing. . . . [but] [i]t was rejected . . . because the [Township] was concerned with its proximity in a blast zone to a compressor station.”
Clearly, the Township had not “manipulated out of existence an actual building opportunity,” but rather rejected the property for legitimate reasons in favor of alternative locations. Indeed, the Township achieved its fair-share obligation without including the property and was entitled to restrict the use of the property as it deemed reasonable. See Mount Olive II, 356 N.J. Super. at 507; Mount Olive I, 340 N.J. Super. at 538.
Next, Bergman contends the amended settlement agreement “truncates and reduces by a large margin,” approximately thirty percent, “the number of affordable units ever to be constructed . . . through the use of stratagems such as rental bonus credits and deed restricting homes.” Bergman summarizes various “stratagems” that he contends the Township unconstitutionally employed to reduce its margin,10 but he does not argue the use of the stratagems in and of themselves to be unconstitutional. Rather, Bergman argues that trial courts are required to provide a “realistic opportunity” analysis prior to accepting bonus credits or other reduction stratagems.
According to Bergman, a “realistic opportunity” analysis requires a trial court to weigh the facts of the case, and determine whether: (1) “the economic rationale that motivated COAH . . . to allow the use of . . . bonus credits still prevailed at the time of hearing;” and (2) “the loss of . . . units due to rental and other credits undermined the fundamental fairness of the settlement,” relying on the Court‘s holding in Mount Laurel IV. “As the Supreme Court has made clear, the trial court, acting in COAH‘s place, may apply COAH‘s former rules ‘if persuaded that the techniques proposed . . . will promote . . . [the
First, although not advanced by Bergman, the use of bonus credits and reduction stratagems are constitutional under common law. These stratagems were originally adopted and codified within COAH‘s First and Second Round methodologies,
Most recently, in 2007, multiple appellants contested “the validity of these credits and bonus credits” claiming “the award of bonuses and credits unconstitutionally dilutes the affordable housing required to meet the identified statewide need.” In re N.J.A.C. 5:94 & 5:95, 390 N.J. Super. at 81. Appellants requested this court “to hold that: (1) no unit can receive a credit unless the unit actually exists; and (2) no unit can be credited unless it is likely
In 2015, our Court “declared COAH defunct and eliminated the FHA‘s exhaustion-of-administrative-remedies requirement.” In re Declaratory Judgment Actions, 227 N.J. at 515 (citing Mount Laurel IV, 221 N.J. at 5-6). In response, the Court “provided for a judicial forum to adjudicate affordable housing disputes once more” and “instructed the courts to follow certain guidelines ‘gleaned from the past.‘” Ibid. (quoting Mount Laurel IV, 221 N.J. at 29-30). Such guidelines specifically included that “Mount Laurel judges may exercise the same level of discretion [as COAH] when evaluating a municipality‘s plan for Mount Laurel compliance,” including “the allowance of bonus credits towards satisfaction of a municipality‘s affordable housing obligations.” Mount Laurel IV, 221 N.J. at 31-32. On October 16, 2016, COAH‘s Second Round rules expired, including its reduction stratagems. See generally
[H]ere let me just talk briefly about COAH and there‘s been a lot of back and forth and the [c]ourt sort of indicated, you know, sometimes where it‘s convenient to talk about the COAH regulations are coming in, and other times it‘s no, COAH is defunct, and does COAH have any meaning in today‘s world post Mount Laurel IV, and the [c]ourt would simply indicate that the spirit of those COAH regulations are something that the [c]ourt can consider in an overall analysis of whether or not the plan is fair, and that is clearly articulated in Mount Laurel.
The trial court held “bonus credits have been permissible from the inception of Mount Laurel through COAH. The [c]ourt sees no reason to reject it now. It‘s common, it‘s acceptable, it‘s ubiquitous and it‘s appropriate.” The parties cite the Second Round rules and seemingly rely on an understanding that in Mount Laurel IV, the Court created common law11 “Third Round” methodologies, which include and incorporate the Second Round reduction stratagems. See In re Declaratory Judgment Actions, 227 N.J. at 515 (“[W]e provided for a judicial forum to adjudicate affordable housing disputes once more . . . [and] directed [the] [courts] [to] ascertain affordable housing need using the
Second, in Mount Laurel IV, the Court specifically identified and instructed trial courts to approve “the allowance of bonus credits towards satisfaction of a municipality‘s affordable housing obligations.” 221 N.J. at 31-33. Furthermore, the Court specifically “provided a process by which a town might obtain the equivalent of substantive certification for its fair share housing plan and avoid exclusionary zoning actions, after a court assessed the town‘s fair share responsibility.” In re Declaratory Judgment Actions, 227 N.J. at 523 (emphasis added) (citing Mount Laurel IV, 221 N.J. at 5-6, 9-20). In addition, the Court “gave the trial courts considerable flexibility in assessing need, allocating it by region and municipality, and in evaluating municipal plans for compliance, [but] did identify some parameters for the courts’ actions.” Id. at 525 (citing Mount Laurel IV, at 29-33). Beyond those parameters, the Court specifically “did not limit the work of the trial courts except to attempt to cabin the time within which progress would be made toward recapturing the lost opportunity to advance municipal compliance with affordable housing obligations.” Ibid. (citing Mount Laurel IV, 221 N.J. at 33).
Therefore, pursuant to Mount Laurel IV, the trial court here was not required to provide an analysis of whether “the economic rationale that motivated COAH . . . to allow the use of . . . bonus credits still prevailed at the time of hearing.” Thus, the trial court was free to accept all bonus credits and reduction stratagems so long as the municipality‘s fair share plan, as a whole, was fair and reasonable. E./W. Venture, 286 N.J. Super. at 328.
Third, the purpose of the Court‘s Mount Laurel IV decision was to expedite municipalities’ voluntary compliance with their Mount Laurel obligations. “Rules to govern the [T]hird [R]ound cannot wait further while time is lost . . . . A remedy must be put in place to eliminate the limbo in which municipalities, New Jersey citizens, developers, and affordable housing
[C]ourts should endeavor to secure, whenever possible, prompt voluntary compliance from municipalities in view of the lengthy delay in achieving satisfaction of towns’ Third Round obligations. If that goal cannot be accomplished, with good faith effort and reasonable speed, and the town is determined to be constitutionally noncompliant, then the court may authorize exclusionary zoning actions seeking a builder‘s remedy to proceed against the towns . . . .
[Id. at 33-34.]
The purpose of the Court‘s Mount Laurel IV decision is consistent with the Court‘s long endorsed “policy of encouraging the settlement of litigation.” Boonton Twp., 197 N.J. Super. at 366; see also Mount Laurel II, 92 N.J. at 352 (“[T]he Mount Laurel obligation is to provide a realistic opportunity for housing, not litigation.“).
We conclude Bergman‘s proposed “realistic opportunity” analysis directly contradicts the Court‘s avowed goal in Mount Laurel IV. First, requiring every trial court to consider whether “the economic rationale that motivated COAH . . . to allow the use of . . . bonus credits still prevailed at the time of hearing” for each and every individual municipality, would substantially delay every municipality‘s compliance with its individual Mount Laurel obligation. Second, an analysis of that scale would require an in-depth
The Court has repeatedly recognized that a legislative or administrative remedy would better handle such considerations. In re Declaratory Judgment Actions, 227 N.J. at 531; Mount Laurel IV, 221 N.J. at 34 (“It is our hope that an administrative remedy will again become an option for those proactive municipalities that wish to use such means to obtain a determination of their housing obligations and the manner in which those obligations can be satisfied.“). Third, Bergman‘s proposed analysis would interfere with a municipality‘s voluntary compliance with their Mount Laurel obligations.
Bonus credits and reduction stratagems are “part of a comprehensive scheme to encourage municipalities and developers to build affordable . . . units in the future.” In re N.J.A.C. 5:94 & 5:95, 390 N.J. at 82 (quoting Calton Homes, Inc. v. Council on Affordable Hous., 244 N.J. Super. 438, 457 (App. Div. 1990)). And, such stratagems “are an appropriate tool to create incentives for types of housing that may not otherwise be provided in the municipality.” Id. at 83 (internal quotation marks omitted). As a result, a trial court may not interfere with a municipality‘s fair share plan based on the allocation of bonus credits and reduction stratagems, so long as it is, as a whole, fair and reasonable. E./W. Venture, 286 N.J. Super. at 328.
Finally, Bergman argues Lonergan had a conflict of interest because she, and her firm, actively represent municipalities as both special masters and as advisors. Bergman argues “Lonergan and her firm are caught in a revolving door: [first] advising large numbers of courts . . . as to the validity of municipal affordable housing proposals[;] and then . . . representing dozens of municipalities . . . using the very same methodologies and advocating that [such methodologies] . . . satisfy [Mount] Laurel doctrine.” In response, the Township claims Lonergan had neither “a financial interest in the matter” nor was “directly linked” to any party who had such an interest.
A special master‘s role is purely advisory. Deland v. Twp. of Berkeley, 361 N.J. Super. 1, 12 (App. Div. 2003). Special masters may be appointed by a trial court to render opinions, propose findings, issue recommendations, and assist “the court in other similar ways as [the court] may direct.” Id. at 8; see also Mount Laurel II, 92 N.J. at 281-85 (authorizing trial courts assigned to hear Mount Laurel cases to appoint special masters). A “special master is only authorized to make recommendations,” however, “and may not be delegated decision-making authority.” Deland, 361 N.J. Super. at 8 (citing Mount Laurel II, 92 N.J. at 284-85). Instead, “[i]t is the trial court that must ultimately determine, independently, whether or not the municipality has conformed to its
A special master is subject to “substantially the same conflict of interest rules as judges.” Ibid. Under
Under
“[W]e recognize[d] that most Mount Laurel special masters are planners who serve in this role on a part-time basis and also provide advice to developers and municipalities involved in other Mount Laurel litigation.” Id. at 12. Moreover, although the current system of appointment of special masters for Mount Laurel cases “creates the inherent potential for conflict,” our holding was limited to conflict of interests caused by a special master‘s financial interests. See id. at 12-13 (holding once the special master became aware of his financial interests in the matter, the special master “should have refrained from providing any recommendation to the court“).
In Deland, we recognized that an assignment as a Mount Laurel special master is generally part-time employment. Id. at 12. And, most Mount Laurel special masters also serve as planners, providing “advice to developers and municipalities involved in other Mount Laurel litigation[s].” Ibid. Thus, a special master may “simultaneously represent[] dozens of municipalities in crafting affordable housing plans containing the same methodologies on which [he or] she is advising the trial court,” unless the special master has a financial interest in the case, either via his or her employment as a planner or interests in the benefits of the case, see id. at 12-13. Based upon our careful review of the record, Lonergan did not have a financial conflict of interest in this matter and Bergman‘s argument is devoid of merit.
The COAH rules, which Mount Laurel IV requires trial courts use, support the order under review. See 221 N.J. at 29-34. We conclude the
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Notes
In 1999, COAH‘s Second Round rules expired. In re Adoption of N.J.A.C. 5:96 & 5:97 ex rel. New Jersey Council on Affordable Hous. (Mount Laurel IV), 221 N.J. 1, 8 (2015). As such, promulgation of COAH‘s Third Round rules was originally due in 1999. Ibid. Although COAH twice attempted to adopt Third Round rules, first in 2004, see 36 N.J.R. 5895(a) (Dec. 20, 2004), and then in 2008, see 40 N.J.R. 237(a) (Jan. 22, 2008); 40 N.J.R. 515(a) (Jan. 22, 2008), reviewing courts found several key aspects of COAH‘s two attempted Third Round rules “to be invalid and violative of the Mount Laurel doctrine.” In re Declaratory Judgment Actions, 227 N.J. at 514-15 (citing In re Six Month Extension of N.J.A.C. 5:91–1 et seq., 372 N.J. Super. 61 (App. Div. 2004); In re Adoption of N.J.A.C. 5:94 & 5:95 (In re N.J.A.C. 5:94 & 5:95), 390 N.J. Super. 1 (App. Div. 2007); In re Adoption of N.J.A.C. 5:96 & 5:97, 416 N.J. Super. 462 (App. Div. 2010)). Consequently, for sixteen-plus years, “COAH failed to adopt a set of valid regulations to govern the” Third Round. Ibid.
In response, on March 14, 2014, the Court directed COAH if it “did not adopt Third Round [r]ules by November 17, 2014, the Court would entertain applications for relief . . . . [and] ‘if such a request [was] granted, actions may be commenced on a case-by-case basis before the Law Division or in the form of “builder[‘]s remedy” challenges.‘” See Mount Laurel IV, 221 N.J. at 9-10 (fifth alteration in original) (quoting In re Adoption of N.J.A.C. 5:96 & 5:97, 220 N.J. 355, 355-56 (2014)).
Here, Bergman‘s proposal does not include a substantial amount of lower income housing. Bergman‘s original proposal included 250 units, with only forty low-income units (16%). His forty low-income units would provide for merely 5.28% of the Township‘s fair share allocation of 757 units. Finally, the record does not reflect whether the remaining 200 units could be categorized as “lease cost.” Despite the fact that Bergman describes his proposal sets forth a “substantial” and “sizeable” number of low-income units, the record does not indicate his proposal would provide the Township with the substantial number of units mandated under the Mount Laurel II factors. Ibid.