The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5822-12T2
CRANFORD DEVELOPMENT ASSOCIATES, APPROVED FOR PUBLICATION
LLC, SAMUEL HEKEMIAN, PETER HEKEMIAN,
JEFFREY HEKEMIAN, and ANN KRIKORIAN April 26, 2016
as trustee for RICHARD HEKEMIAN and
MARK HEKEMIAN, APPELLATE DIVISION
Plaintiffs-Respondents/
Cross-Appellants,
v.
TOWNSHIP OF CRANFORD, MAYOR and
COUNCIL OF THE TOWNSHIP OF CRANFORD,
and THE PLANNING BOARD OF THE
TOWNSHIP OF CRANFORD,
Defendants-Appellants/
Cross-Respondents.
__________________________________________
Argued December 1, 2015 – Decided April 26, 2016
Before Judges Reisner, Leone and Whipple.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket
No. L-3759-08.
Jeffrey R. Surenian argued the cause for
appellants/cross-respondents (Jeffrey R.
Surenian and Associates, attorneys; Mr.
Surenian, of counsel; Mr. Surenian and
Michael A. Jedziniak, on the brief).
Stephen Eisdorfer argued the cause for
respondents/cross-appellants (Hill Wallack,
attorneys; Mr. Eisdorfer and Cameron
MacLeod, on the brief).
The opinion of the court was delivered by
REISNER, P.J.A.D.
In this affordable housing litigation, defendants Township
of Cranford and the Cranford Mayor, Council and Planning Board
(collectively the Township) appeal from a final order dated July
17, 2013, and from a series of interlocutory orders, granting a
builder's remedy to plaintiff Cranford Development Associates,
LLC for the construction of a 360-unit residential development
in Cranford. Plaintiffs cross-appeal from an order denying
their application for counsel fees. We affirm.
I
Judge Lisa F. Chrystal issued a series of lengthy,
comprehensive and correct opinions over the course of the
litigation, and we need not repeat her reasoning here. Nor for
purposes of this opinion is it necessary to reiterate evidence
set forth in detail in the judge's opinions. We will briefly
summarize the litigation, and will discuss additional pertinent
facts when we address the issues on appeal.
By way of background, plaintiffs Cranford Development
Associates and its members, Samuel Hekemian, Peter Hekemian,
Jeffrey Hekemian, and Ann Krikorian as trustee for Richard
Hekemian and Mark Hekemian (collectively CDA) filed suit against
the Township, alleging that Cranford had failed to provide its
2 A-5822-12T2
fair share of low-to-moderate-income housing (affordable
housing), and that its current zoning prohibited the
construction of affordable housing. CDA requested a builder's
remedy to redevelop its roughly sixteen-acre commercial
property, located on Birchwood Avenue, with two buildings that
would provide 419 apartments, fifteen percent of which would be
designated as affordable housing.
In an early phase of the litigation, Judge Chrystal
determined, in an order dated March 20, 2009, that the Township
had failed to comply with its fair share housing obligations
under the Mount Laurel1 doctrine. In her accompanying written
opinion, Judge Chrystal found that "Cranford still has an unmet
housing obligation of 410 housing units," and the Township's
fair share housing plan, filed after the lawsuit was instituted,
was seriously deficient.
Following a fourteen-day bench trial held in 2010, Judge
Chrystal issued a 106-page oral opinion addressing CDA's
entitlement to a builder's remedy. Based on her evaluation of
the expert testimony she found credible, and extensive
recommendations from a court-appointed Special Master, the judge
1
S. Burlington Cty. NAACP v. Mount Laurel Twp., 92 N.J. 158,
198-99 (1983) (Mount Laurel II); S. Burlington Cty. NAACP v.
Mount Laurel Twp., 67 N.J. 151, cert. denied, 423 U.S. 808, 96
S. Ct. 18, 46 L. Ed. 2d 28 (1975) (Mount Laurel I).
3 A-5822-12T2
granted a builder's remedy for the construction of 360
apartments, as opposed to the 419 units CDA originally sought.
She conditioned construction on CDA's obtaining all necessary
permits from the New Jersey Department of Environmental
Protection (DEP).2 The judge appointed a special hearing
examiner to oversee final site plan approval.3 After a five-day
hearing, the hearing examiner recommended that the court grant
final site plan approval, and Judge Chrystal accepted that
recommendation.
On this appeal, the Township does not challenge the trial
court's 2009 determination that it failed to comply with its
fair share obligations under Mount Laurel. Rather, the Township
contends that the court erred in granting the builder's remedy
because: (1) CDA failed to negotiate in good faith with the
Township prior to filing suit; (2) CDA was not a "catalyst for
change" in moving the Township toward Mount Laurel compliance;
2
The DEP eventually granted the permits. The DEP's decision is
the subject of a separate appeal, Cranford Development
Associates, LLC, c/o The S. Hekemian Group Flood Hazard Area
Control Act Individual Permit No. 2003-08-0006.1 FHA 110001;
Flood Hazard Area Permit Verification No. 2003-08-0006.1
FHA 110002; and Freshwater Wetlands Transition Area Averaging
Plan No. 2003-08-0006.1 FWW 110001, Challenged by Township of
Cranford, No. A-2157-14 (App. Div. Apr. 26, 2016).
3
As noted later in this opinion, in addition to her other
responsibilities in the builder's remedy litigation, the Special
Master was assigned to assist the special hearing examiner in
the site plan hearing.
4 A-5822-12T2
and (3) the Township proved that CDA's property was not suitable
for the proposed 419-unit development and, according to the
Township, the court could not approve the project with a reduced
number of units. The Township does not challenge the merits of
the final site plan approval. Instead, it argues that the court
erred in appointing a special hearing examiner to oversee the
site plan hearings. The Township also contends that CDA's
hearing notice was deficient and the hearings should have been
held in Cranford rather than in the county courthouse in
Elizabeth.
In a cross-appeal, CDA contends that the trial court erred
in denying its request for counsel fees and costs under the New
Jersey Civil Rights Act, N.J.S.A. 10:6-2.
We must defer to the trial court's factual findings so long
as they are supported by sufficient credible evidence, and we
owe particular deference to the judge's evaluation of witness
credibility. See Toll Bros. v. Twp. of W. Windsor, 173 N.J.
502, 549 (2002); Seidman v. Clifton Sav. Bank, 205 N.J. 150, 169
(2011). We review the court's legal interpretations de novo.
Toll Bros., supra, 173 N.J. at 549. After reviewing the
voluminous record in light of the applicable law, we find no
merit in either the appeal or the cross-appeal, and we affirm
the trial court's challenged orders in all respects.
5 A-5822-12T2
II
We begin by addressing the Township's appeal. Cranford's
first argument, concerning CDA's alleged failure to engage in
good faith negotiations, is without merit. We affirm for the
reasons stated in Judge Chrystal's written opinion dated June
23, 2010, and her oral opinion issued July 29, 2011, and for the
additional reasons stated below.
A builder in CDA's situation is required to engage in good
faith negotiations before filing a Mount Laurel lawsuit. See
Mount Laurel II, supra, 92 N.J. at 218; Oceanport Holding,
L.L.C. v. Borough of Oceanport, 396 N.J. Super. 622, 627 (App.
Div. 2007).4 Cranford argues that CDA's efforts were
insufficient and CDA should have waited longer, and made greater
efforts to negotiate before filing suit. In another case, we
might agree that a six-to-eight-week negotiation process was
insufficient. However, in this case it was clear from its
responses, or non-responses, to CDA's overtures that the
Township had no interest in negotiating with CDA.
4
A developer has standing to file a Mount Laurel suit
challenging the constitutionality of the local zoning without
first proving that it engaged in good faith negotiations.
Oceanport, supra, 396 N.J. Super. at 630. However, once a
plaintiff-developer succeeds in obtaining a ruling that the
ordinance is unconstitutional, it still may not qualify for a
builder's remedy unless it can prove it engaged in good faith
negotiations before filing the lawsuit. Id. at 630-33.
6 A-5822-12T2
In deciding both CDA's summary judgment motion and the
Township's request for reconsideration after trial, Judge
Chrystal rejected the Township's claim that CDA filed suit prior
to attempting good faith negotiations. Judge Chrystal found
that, before filing suit, CDA had appeared at three meetings of
the municipal governing body (the Committee) and had requested
that the Committee include CDA's proposed development in the
Township's fair housing plan. Despite prior notice, the
Committee did not place the proposal on the agenda for any of
the meetings, did not meet with CDA to discuss the proposal, and
refused to share any of its professionals' reports on the
proposal.
Judge Chrystal found that CDA did not threaten to file a
lawsuit and continually invited discussion, even though the
Committee showed no interest in considering its proposal. The
judge found that, instead of negotiating with CDA, the Committee
instructed CDA to submit its proposal to the Planning Board,
although the Board had no jurisdiction to address whether
Cranford violated the Mount Laurel doctrine and could only make
a recommendation to the Township regarding a rezoning
application. Moreover, as the judge observed, "under Mount
Laurel II, 92 N.J. 158, 342 n.73 (1983), municipalities cannot
7 A-5822-12T2
in the guise of good faith negotiations require that a builder
plaintiff exhaust any local administrative remedy."
In this case, we find no basis to second-guess Judge
Chrystal's finding that CDA satisfied its obligation of good
faith negotiation before filing its lawsuit. As Judge Chrystal
acknowledged in her opinion: "'The court would be short on
realism . . . were it not to note that it takes at least two to
negotiate and the record should be reviewed with that in mind.'"
(quoting Cty. of Monmouth v. Whispering Woods at Bamm Hollow,
Inc., 222 N.J. Super. 1, 9 (App. Div. 1987), certif. denied, 110
N.J. 175 (1988)). Whether the Township's unresponsivenesss was
due to concerns over flooding or because the Township believed
that its fair share obligation was much more limited than the
court eventually concluded that it was, the record supports
Judge Chrystal's finding that the Township was unwilling to
negotiate for the siting of an affordable housing project on the
CDA site.
Moreover, the negotiation process in this case cannot be
viewed without considering the historic context. Ironically,
the Township's appellate brief illustrates that history.
Cranford admits that "after engaging in years of pre-suit
negotiations with the Township," another builder, Lehigh
Acquisition Corp. (Lehigh), finally filed a Mount Laurel
8 A-5822-12T2
builder's remedy lawsuit against the Township in January 2008.
The Township further admits that "[i]n the wake of the Lehigh
Action, Cranford drafted a comprehensive Affordable Housing
Plan." However, the plan was not actually submitted to the
Counsel on Affordable Housing (COAH) until after CDA filed its
lawsuit in November 2008, and the plan did not include the CDA
site.5
Moreover, CDA's predecessor in title, Woodmont Properties,
had conducted negotiations with the Township for approval of a
much more modest affordable housing development in the same
location where CDA later proposed its project (the CDA site).
Woodmont's efforts, which included an application to the
Planning Board (Board) to recommend a rezoning of the property,
proved fruitless. The Board rejected the rezoning plan despite
a favorable recommendation from its own consulting planner.
Clearly, the Township had no intention of ever allowing
affordable housing to be constructed on the CDA site.
On the particular facts of this case, we agree with Judge
Chrystal that CDA's efforts to negotiate were made in good faith
and were sufficient. Our Supreme Court has warned developers
against using litigation threats as a bargaining chip in their
5
The Lehigh and CDA lawsuits were consolidated, and the Township
later reached a settlement with Lehigh.
9 A-5822-12T2
affordable housing applications. Mount Laurel II, supra, 92
N.J. at 280. However, the Township admits that CDA did not
threaten it with litigation. The fact that CDA was privately
preparing to litigate if, as seemed highly likely, the Township
was unreceptive to its proposal, does not mean CDA acted in bad
faith.
For the reasons stated in her opinion, Judge Chrystal
properly rejected the Township's claim that CDA failed to
exhaust administrative remedies by making a rezoning application
to the Board. Faced with a similar argument, the Supreme Court
has held that "[t]here is no such [administrative exhaustion]
requirement in Mount Laurel litigation." Id. at 342 n.73.
Moreover, it is clear on this record that an application to the
Planning Board for a rezoning recommendation would have been
futile. See Toll Bros., supra, 173 N.J. at 560. The Board had
already rejected a more modest rezoning application filed by
Woodmont.6
6
A municipal governing body is ordinarily required to refer a
proposed zoning change to the local planning board for its input
before adoption of the ordinance. See N.J.S.A. 40:55D-26, -64.
However, such a referral has a strict time deadline; the board
has thirty-five days to report back to the governing body after
which the governing body may act. N.J.S.A. 40:55D-26(a). In
this case, there is no evidence that the Township was actually
contemplating adopting a revised zoning ordinance, nor did the
Township make the referral pursuant to N.J.S.A. 40:55D-26, -64.
Rather, invoking its local ordinance, the Township directed CDA
(continued)
10 A-5822-12T2
The Township's arguments on this point are without
sufficient merit to require further discussion. R. 2:11-
3(e)(1)(E).
III
We reject Cranford's next argument, contending that CDA was
not entitled to a builder's remedy because the Township would
have filed a new fair share housing plan even without the CDA
lawsuit. As CDA proved in the trial court, at the time CDA
filed its lawsuit, the Township was out of compliance with its
Mount Laurel obligations. Moreover, even though the Township
filed a revised fair share plan with COAH shortly after the
lawsuit was instituted, Special Master Elizabeth McKenzie's
report noted that the plan was deficient in important respects.
McKenzie opined that, even if implemented, the plan would not
have satisfied the Township's fair share requirements. In her
2009 opinion, Judge Chrystal credited McKenzie's opinion.
Consequently, in this case, the Township's "catalyst"
argument is a red herring, because the Township did not in fact
bring itself into compliance before or during the litigation.
Rather, at the end of the litigation, the Township complied with
a court order and adopted a revised zoning ordinance under
(continued)
to make a separate application to the board which, as CDA
cogently argues, was a "trip to nowhere."
11 A-5822-12T2
protest. However, even if we consider this argument, it is
meritless.
We cannot agree with the Township's argument that, in
addition to winning the underlying exclusionary zoning lawsuit,
a Mount Laurel plaintiff must also prove that it was a
"catalyst" for change, in order to qualify for a builder's
remedy. The catalyst language is drawn from this quote from
Toll Brothers:
We find that Toll Brothers succeeded at
trial. West Windsor's claim that it was
already compliant and had instituted
amendments to its fair share plan at the
time Toll Brothers initiated its lawsuit
ignores the critical point - it was Toll
Brothers that served as the catalyst for
change and that successfully demonstrated
West Windsor's non-compliance with its
constitutional obligation.
[Toll Bros., supra, 173 N.J. at 560.]
As the quote illustrates, a developer may be entitled to a
builder's remedy, even if a municipality has begun moving toward
compliance before or during the developer's lawsuit, provided
the lawsuit demonstrates the municipality's current failure to
comply with its affordable housing obligations. Ibid. The
quoted language does not mean that a developer must prove, as a
separate element of its case, that the litigation was a catalyst
where, as here and as in Toll Brothers, the lawsuit was filed
before the municipality filed a revised fair share plan with
12 A-5822-12T2
COAH, and the developer proved in the lawsuit that the
municipality was currently not in compliance with its fair share
obligations. See id. at 566-67. In that context, filing the
lawsuit and proving that the existing municipal zoning ordinance
is unconstitutional is the catalyst for change. See Mount
Laurel II, supra, 92 N.J. at 218.
The Township's reliance on Mount Olive Complex v. Mount
Olive Township, 356 N.J. Super. 500 (App. Div.), certif. denied,
176 N.J. 73 (2003), is misplaced. In that case, Mount Olive
Complex (the plaintiff) was not a party to the original Mount
Laurel lawsuit, which was settled. Id. at 506. However, as
part of that settlement, the municipality agreed to let the
plaintiff build forty units of affordable housing as part of a
400-unit planned unit development (PUD) that the plaintiff was
already planning to construct. Id. at 507.
Subsequently, COAH decreased the municipality's fair share
number, and the plaintiff's forty-unit approval was rescinded
after the approvals for the still-unconstructed PUD expired.
Id. at 507-08. Several years later, the municipality changed
its zoning and also amended its fair share plan. Id. at 508-09.
Nine months after the township accomplished those changes, the
plaintiff filed a Mount Laurel suit demanding a builder's
remedy. Id. at 509.
13 A-5822-12T2
The trial court found the plaintiff failed to prove that,
at the time it filed its lawsuit, the town was non-compliant
with its fair housing obligations. Id. at 510. Hence, the
plaintiff failed to satisfy the first prerequisite for a
builder's remedy – success on the merits of its fair housing
challenge. Ibid. While our opinion affirming the trial court
used the phrase "catalyst for change," in context that language
was synonymous with success at trial resulting in a court-
ordered zoning change to comply with Mount Laurel. Id. at 511.
That is precisely what CDA achieved here and what the plaintiff
in Mount Olive failed to achieve.
The Township's additional arguments on this point are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
IV
Next, we find no abuse of the trial court's discretion in
appointing a special hearing examiner to oversee final site plan
approval. The Township had already agreed to exactly the same
process in the Lehigh settlement, and the record reflects no
objection to the court's order appointing the hearing examiner
in this case. In fact, after the court entered the December 9,
2011 order making the appointment as well as memorializing the
builder's remedy, the Township filed a motion for
14 A-5822-12T2
reconsideration of the builder's remedy based on flooding caused
by Hurricane Irene. However, the Township did not ask the court
to reconsider the appointment of the hearing examiner. The
transcript of the oral argument on the reconsideration motion
does not contain a word of objection to the appointment. We
ordinarily will not consider an issue not raised before the
trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973). However, even if we entertain the claim, it is without
merit.
The court's authority to appoint Special Masters in Mount
Laurel cases is well established. See Mount Laurel II, supra,
92 N.J. at 282-85. Given the Township's record of obstructing
affordable housing projects, and the Planning Board's past
hostility to a much more limited affordable housing plan, the
court's decision to appoint the hearing examiner was justified
in this case. The motion practice which occurred after the
appointment further confirmed the wisdom of the court's action.
In addition to opposing the Township's reconsideration motion,
CDA filed a cross-motion to have the hearing examiner, instead
of the Township, review soil removal permits because the
Township had unreasonably delayed the permit approvals. In fact,
it appeared undisputed that Township officials had publicly
stated that they would not issue the approvals and would issue a
15 A-5822-12T2
stop work order instead. Consequently, the judge gave the
hearing examiner authority to hear any soil permit application
that the Township unduly delayed. As the judge noted, the CDA
project would face various municipal regulatory "hurdles" and
the hearing examiner's participation would likely be needed to
resolve them.7
We recognize that a "trial court (and the master, if one is
appointed) should make sure that the municipal planning board is
closely involved in the formulation of the builder's remedy[,]"
and "should make as much use as they can of the planning board's
expertise and experience so that the proposed project is
suitable for the municipality." Id. at 280. However, the Court
also added the "caveat" that "[t]his does not mean that the
planning board should be permitted to delay or hinder the
project[.]" Ibid.
Contrary to the Township's argument, the Planning Board was
not excluded from the proceedings before the hearing examiner.
The Board had the opportunity to participate in the hearings.
In fact, the Special Master, who was assisting the hearing
7
Other events confirmed the trial court's wisdom in putting an
oversight mechanism in place due to local hostility to the
project. In connection with the soil removal, the Township
filed four municipal court complaints against CDA; the Township
later dismissed the complaints on the day of trial.
16 A-5822-12T2
examiner, sent an initial procedural memo to all parties
instructing that five copies of the applicant's plans and all
supporting documents must be provided to the Board. Finally,
while objecting to the process, the Township does not cite any
alleged substantive errors in the terms of the final site plan
approval.
The Township's arguments concerning the adequacy of the
hearing notice and the location of the hearings were
appropriately addressed by the hearing examiner and the trial
judge, and they are without sufficient merit to warrant further
discussion. R. 2:11-3(e)(1)(E).
V
We likewise find no merit in the Township's challenge to
the terms of the builder's remedy the trial court awarded. The
Township contends that because the trial court awarded 360 units
instead of 419 units, the court must have accepted its argument
that the site was unsuitable for CDA's residential development
project. See Mount Laurel II, supra, 92 N.J. at 279-80 (a
builder's remedy should be granted to a successful developer-
plaintiff, unless the municipality proves that the project is
clearly unsuitable for the site based on environmental or other
substantial planning reasons). We disagree.
17 A-5822-12T2
The Township's argument concerning site suitability is
based on a distortion of the Special Master's recommendations
and the trial court's decision. Neither the Special Master nor
the trial court found that the site was unsuitable for the
project. In fact, even in her post-trial supplemental report
the Special Master reiterated her conclusion that the site could
be appropriate for a 419-unit development. However, based on
planning considerations, such as a perceived need to set the
apartment buildings further back from the street, lowering the
height of one of the buildings, ensuring adequate parking, and
the like, she recommended changes that would result in the
construction of fewer units. None of her proposed changes were
based on a finding that the site was environmentally
inappropriate for the proposed multi-unit development.
Much of the fourteen-day bench trial was devoted to hearing
expert testimony on the feasibility of constructing such a
relatively large housing development in an area that was subject
to periodic flooding. While acknowledging the property's
environmental constraints, the Special Master concluded that the
proposed development was likely to decrease rather than
exacerbate flooding in the area. In particular, the project
would involve razing a large building that was sitting directly
in the floodway, thereby improving drainage. The project would
18 A-5822-12T2
also reduce the percentage of impervious cover on the entire
property, and would increase the extent to which the property
could safely retain some flood water. Those measures could
protect the rest of the neighborhood against flooding.
The judge, who credited CDA's expert witnesses on those
points, agreed with the Special Master. Like the Special
Master, Judge Chrystal found that CDA understood the water-
related issues the property presented and had a "creative" plan
to address them. She noted that CDA intended to regrade the
property and add ten percent of flood storage to that which
currently existed, in addition to constructing an access
driveway outside the flood hazard area. The judge observed that
CDA's plan "may actually improve flood water storage in the area
[beyond CDA's property] in a way that is not currently possible
and that has not heretofore been addressed by Cranford." The
judge wrote:
Astrong argument has been advanced
that this plan actually improves flood
control in Cranford. It removes the
existing buildings at 215 Birchwood Avenue
from the floodway, thus keeping flood waters
closer to the channel of the stream. It
increases the flood storage capacity of the
site, thus lowering the peak flood levels in
the homes downstream.
Given that no recent upgrades to flood
control in Cranford were presented from the
point of view of flood control, the court
notes that this project potentially has the
19 A-5822-12T2
promise to improve Cranford's overall
ongoing flood problems.
The judge noted that the Township had challenged CDA's
ability to develop the site but had presented no proof that the
project could not be built while complying with DEP regulations.
In fact, the Township's engineering expert, Richard Marsden,
conceded that if CDA was willing to absorb the cost, the water
issues on the site could be addressed and the development could
be constructed. Based on the extensive record presented at the
bench trial, Judge Chrystal concluded that plaintiff would
likely be able to satisfy any DEP requirements regarding flood
hazard areas and storm water management. However, the judge
acknowledged that, ultimately, DEP would decide whether to issue
flood hazard area, storm water management, and other
environmental permits for the construction.
Contrary to the Township's argument, the trial court
clearly did not find that the proposed project was
environmentally unsuitable. Further, we cannot agree with the
Township's proposed "all or nothing" approach to the builder's
remedy. In essence, the Township argues that the court either
had to permit 419 units as the builder's remedy or reject the
builder's remedy altogether, sending CDA back to the proverbial
drawing board. That approach would encourage repetitive
litigation, contrary to the policy expressed in Mount Laurel II,
20 A-5822-12T2
that builder's remedy lawsuits should be streamlined as much as
possible so as to produce results (i.e., constructed affordable
housing) rather than more litigation. 92 N.J. at 290-91; see
also Toll Bros., supra, 173 N.J. at 561-63. Allowing the court
to revise a builder's proposed project, so long as the
development is suitable for the site, serves the fundamental
purpose of Mount Laurel to produce affordable housing.8 See
Mount Laurel II, supra, 92 N.J. at 326-28 (holding that the sale
of a portion of the developer's property during the litigation,
requiring a revised building plan, did not moot the litigation
or bar a builder's remedy).
The Township's position is also contrary to the Supreme
Court's direction that, "in the formulation of the builder's
remedy[,]" the trial court, and any appointed Special Master,
"should make as much use as they can of the planning board's
expertise and experience so that the proposed project is
suitable for the municipality." Mount Laurel II, supra, 92 N.J.
at 280. We find it implicit in that language that a trial court
has authority to mold the builder's remedy by reducing the
8
We need not address here the extreme situation posited by the
Township, where a developer proposes a project of clearly
inappropriate magnitude, which a municipality rejects when it
might otherwise have approved a more modest project. As
previously noted, in this case the Township was not going to
voluntarily accept any affordable housing project on this site.
21 A-5822-12T2
number of units allowed, based on appropriate planning
considerations, whether suggested by a planning board or a
court-appointed special master. That is precisely what the
trial court did here. See Toll Bros., supra, 173 N.J. at 510
(noting that the trial court, whose decision was affirmed, left
for a later phase of the trial the "specifics" of the builder's
remedy); see also id. at 574 (describing the grant of a
builder's remedy as a "dynamic" and "flexible proceeding").
VI
Addressing the cross-appeal we find no merit in CDA's
argument that the New Jersey Civil Rights Act (CRA), N.J.S.A.
10:6-2, authorized a fee award in this case. The CRA, which was
enacted in 2004, L. 2004, c. 143, § 2, provides in relevant
part:
c. Any person who has been deprived of
any substantive due process or equal
protection rights, privileges or immunities
secured by the Constitution or laws of the
United States, or any substantive rights,
privileges or immunities secured by the
Constitution or laws of this State, or whose
exercise or enjoyment of those substantive
rights, privileges or immunities has been
interfered with . . . may bring a civil
action for damages and for injunctive or
other appropriate relief. . . .
. . . .
f. In addition to any damages, civil
penalty, injunction or other appropriate
relief awarded in an action brought pursuant
22 A-5822-12T2
to subsection c. of this section, the court
may award the prevailing party reasonable
attorney's fees and costs.
[N.J.S.A. 10:6-2(c), (f).]
The CRA was intended to protect against deprivations of
substantive constitutional rights, and substantive statutory
rights. Tumpson v. Farina, 218 N.J. 450, 473 (2014).
[T]he Legislature adopted the CRA for the
broad purpose of assuring a state law cause
of action for violations of state and
federal constitutional rights and to fill
any gaps in state statutory anti-
discrimination protection. See L. 2004, c.
143; see also S. Judiciary Comm., Statement
to Assemb. Bill No. 2073, at 1 (May 6, 2004)
(stating that "to protect and assure against
deprivation of the free exercise of civil
rights which are guaranteed and secured
under the New Jersey Constitution and
federal Constitution, this bill provides a
remedy when one person interferes with the
civil rights of another . . . . [and
further] is intended to address potential
gaps which may exist under [the New Jersey
Law Against Discrimination (LAD) and bias
crime statutory causes of action]").
[Owens v. Feigin, 194 N.J. 607, 611 (2008)
(alterations in original).]
However, as the Court recently held, "[t]o establish a
violation of the Civil Rights Act in this case, plaintiffs must
prove that (1) 'the Constitution or laws of this State'
conferred on them a substantive right." Tumpson, supra, 218
N.J. at 473 (emphasis added). CDA did not meet that criterion.
The substantive constitutional right at issue in this case
23 A-5822-12T2
belongs not to the developer but to "lower income citizens"
seeking to live in affordable housing. Mount Laurel II, supra,
92 N.J. at 220. As the Court previously noted, "the builder's
remedy was developed not for the benefit of builders but to
advance the constitutional interest in affordable housing."
Toll Bros., supra, 173 N.J. at 580 (citing Hills Development Co.
v. Bernards Township, 103 N.J. 1, 54 (1986)). In this
situation, the developer has not been "deprived" of a
constitutional right, within the meaning of the CRA, because no
such right has been "conferred" on it. See N.J.S.A. 10:6-2(c);
Tumpson, supra, 218 N.J. at 473. Therefore we cannot conclude
that a developer that prevails in Mount Laurel litigation is
entitled to fees under the CRA.
This result is not inconsistent with the purpose of the
Legislature in enacting the fee section of the CRA. The CRA
"was intended to apply to cases . . . where a citizen deprived
of a substantive right, could not otherwise afford to retain
counsel." Tumpson, supra, 218 N.J. at 480. Unlike other
constitutional litigation in which counsel fees are needed to
make the litigation financially feasible for wronged plaintiffs,
in Mount Laurel litigation the possibility of a builder's remedy
provides developers with ample financial incentive to file suit.
24 A-5822-12T2
Moreover, if the Legislature intended to permit counsel
fee awards in builder's remedy lawsuits, we anticipate that it
would have provided that remedy in the Fair Housing Act (FHA),
which specifically addressed the implementation of Mount Laurel.9
But it did not do so. By contrast, for example, the Legislature
authorized fees to a prevailing plaintiff in suits under the Law
Against Discrimination, which bars discrimination in housing.
N.J.S.A. 10:5-12(g), -27.1.
To the extent we can glean the Legislature's intent from
the FHA, it favored mediation and the COAH process, rather than
the filing of lawsuits:
When enacting the FHA, the Legislature
provided "various alternatives to the use of
the builder's remedy as a method of
achieving fair share housing," including the
COAH mediation and review process, which was
"the State's preference for the resolution
of existing and future disputes involving
exclusionary zoning. . . ." N.J.S.A.
52:27D-303.
[Toll Bros., supra, 173 N.J. at 563.]
The FHA was enacted in 1985. L. 1985, c. 222. We find it
highly unlikely that the Legislature, in later enacting the CRA,
9
The possibility of a court-created fee shifting rule in Mount
Laurel litigation was mentioned in Toll Brothers. However, the
Court did not adopt that approach in its opinion. 173 N.J. at
566 (majority), 580-81 (Stein, J., concurring in part and
dissenting in part).
25 A-5822-12T2
had changed its view toward Mount Laurel litigation and intended
to provide additional incentives for developer lawsuits. See
Hills Development, supra, 103 N.J. at 49 ("The legislative
history of the [FHA] makes it clear that it had two primary
purposes: first, to bring an administrative agency into the
field of lower income housing to satisfy the Mount Laurel
obligation; second, to get the courts out of that field.").
Such a construction of the CRA would be incompatible with one of
the fundamental purposes of the FHA.10 See Tumpson, supra, 218
N.J. at 478-79. Indeed, CDA has not cited a single case in
which a developer was awarded counsel fees in Mount Laurel
litigation.11
10
We note that, at the present time, the Court has suspended
operation of the FHA provisions giving compliant municipalities
substantial protection from builder's remedy lawsuits, and has
created an alternative process. In re Adoption of N.J.A.C. 5:96
& 5:97, 221 N.J. 1 (2015); see N.J.S.A. 52:27D-301 to -329. The
Court rendered that decision due to COAH's repeated failure to
adopt valid third round fair share regulations. In re Adoption,
supra, 221 N.J. at 5-6. However, COAH's current non-compliance
with its statutory responsibilities has no bearing on our
interpretation of the CRA, which was enacted in 2004. See id.
at 34 (acknowledging the Legislature's preference, expressed in
the FHA, for administrative remedies instead of litigation).
11
CDA's reliance on Dunn v. State Department of Human Services,
312 N.J. Super. 321 (App. Div. 1998), is misplaced. That case
construed the Federal Fair Housing Act, which conferred both
standing and a right to counsel fees upon prevailing, to any
person "aggrieved" by a discriminatory act. The definition of
"aggrieved" was very broad, encompassing any person who "claims
to have been injured by a discriminatory housing practice." Id.
at 331 (quoting 42 U.S.C.A. § 3602(i)(1)).
26 A-5822-12T2
VII
To summarize, we find that the trial court's decisions,
which resulted in the orders challenged here, were supported by
sufficient credible evidence and were legally correct. To the
extent not specifically addressed herein, the parties' arguments
are without sufficient merit to warrant discussion. R. 2:11-
3(e)(1)(E). Accordingly, we affirm on the appeal and the cross-
appeal.
Affirmed.
27 A-5822-12T2