IN THE MATTER OF THE TOWNSHIP OF EAST BRUNSWICK FOR A JUDGMENT OF COMPLIANCE, ETC. (L-4013-15 AND L-4282-19, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3115-19
A-3125-19
IN THE MATTER OF THE
TOWNSHIP OF EAST
BRUNSWICK FOR A
JUDGMENT OF COMPLIANCE
OF ITS THIRD ROUND
HOUSING ELEMENT AND
FAIR SHARE PLAN.
_____________________________
HIDDEN OAKS WOODS, LLC,
Plaintiff-Respondent,
v.
TOWNSHIP OF EAST
BRUNSWICK and TOWNSHIP
OF EAST BRUNSWICK
PLANNING BOARD,
Defendant-Appellant.
_____________________________
Submitted May 12, 2021 – Decided July 30, 2021
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket Nos. L-4013-15
and L-4282-19.
Hoagland, Longo, Moran, Dunst & Doukas, LLP,
attorneys for appellant Township of East Brunswick;
and Lawrence B. Sachs, attorney for appellant
Township of East Brunswick Planning Board (Michael
J. Baker, Richard J. Mirra, and Lawrence B. Sachs, of
counsel and on the joint briefs; Joseph D. Palombit, on
the joint brief).
Eckert Seamans Cherin & Mellott, LLC, attorneys for
respondent Hidden Oak Woods, LLC (Frank J. Petrino,
of counsel and on the brief; Victoria D. Britton, on the
brief).
Fair Share Housing Center, attorneys for respondent
(Bassam F. Gergi, of counsel and on the brief).
New Jersey Appleseed Public Interest Law Center,
attorneys for amicus curiae Lawrence Brook Watershed
Partnership and Lower Raritan Watershed Partnership
(Renee Steinhagen, on the brief).
PER CURIAM
In this land use dispute, we have consolidated two appeals for the purpose
of writing a single opinion. In A-3115-19, defendants Township of East
Brunswick (the Township) and Township of East Brunswick Planning Board
(the Planning Board) appeal the Law Division's February 24, 2020 order
reversing the Planning Board's denial of plaintiff Hidden Oak Woods, LLC's
application for preliminary and final site plan approval to construct a 275-unit
A-3115-19
2
residential complex (the complex) with fifty-five affordable housing units. In
A-3125-19, defendants appeal the provision in the Law Division's order
enjoining and restraining the Township's Mayor Brad Cohen from participating
in the Planning Board's hearing and consideration of plaintiff's site plan
application as well as all site plan applications relating to a 2016 Housing
Element and Fair Share Plan (HEFSP) and the 2016 Judgment of Compliance
and Repose. Having considered the parties' arguments in light of the record and
applicable law, we affirm the order reversing the Planning Board's denial of
plaintiff's site plan application but reverse the order enjoining and restraining
Cohen's participation.
I.
This controversy arises from the Township's July 2015 declaratory
judgment action for substantive certification of its affordable housing plan, In
re Township of East Brunswick for a Judgment of Compliance of its Third
Round HEFSP, No. L-4013-15 (Law Div. July 7, 2015). Plaintiff was permitted
to intervene due to its plans to build the complex.
A year later in July 2016, the parties reached a settlement agreement (2016
settlement agreement) resulting in a reduction of the Township's present need
obligation of affordable housing units from 1664 to 1067. Plaintiff's complex
A-3115-19
3
was included for inclusionary development, and plaintiff agreed to set aside
twenty percent of the units for affordable housing. An August 15, 2016 court
order approved the settlement agreement on the basis that it was "fair and
reasonable and in the best interests of those in need of low[-] and moderate[-
]income housing . . . ." That same year, the Township adopted its third-round
HEFSP (2016 HEFSP) as well as an ordinance rezoning the area of plaintiff's
site to permit multi-dwelling apartment housing. Consequently, on December
12, 2016, the court entered a Final Judgment of Compliance and Repose
declaring, among other things, that the Township had complied with its fair
share housing obligation and that the court would retain jurisdiction to ensure
implementation of the order.
In December 2017, plaintiff filed an application with the Planning Board
for preliminary and final site plan approval of its complex. The complex is
situated on approximately forty-one acres in the Township's multifamily
dwelling apartment zone with frontage on Harts Lane and access to Tices Lane
by way of Eagle Road (Ja844), and access to Harts Lane by way of Mill Brook
Court. The State targeted the location for growth. The complex consisted of
seven four-story buildings comprising 275 rental units with fifty-five, or twenty
percent, dedicated for affordable housing, interspersed with the market-rate
A-3115-19
4
units. Plaintiff sought bulk variances to permit encroachments into the
landscape buffer area, for parking stalls and driveways, and for going beyond
the minimum set back. The Township's land use ordinance permitted twenty-
five percent, but the building coverage was five percent. Thirty-four percent of
the site was allotted for open space even though the ordinance required twenty-
five percent. Under the terms of the 2016 settlement agreement, plaintiff was
responsible for the construction of two new traffic signals, one at the intersection
of Tices Lane and Harts Lane, and the other at Tices Lane and University
Avenue, along with the necessary paving and road striping.
Back in May 2017, plaintiff applied to the New Jersey Department of
Environmental Protection (DEP) for a wetlands permit to disturb a wetlands and
buffer area on the site. On June 20, 2018, the DEP issued a wetlands permit,
GP-6, permitting disturbance of 0.19 acres of wetlands and 0.48 acres of buffer
zone for the construction of a parking lot. Plaintiff's proposed storm water
management system was also approved by the DEP as part of the GP-6 permit,
which expires on June 19, 2023.
After five diverse hearing dates beginning July 18, 2018 and ending
February 13, 2019, the Planning Board denied plaintiff's application. On April
24, the Planning Board adopted a resolution memorializing its denial.
A-3115-19
5
In June, plaintiff filed a complaint in lieu of prerogative writs seeking a
declaratory judgment reversing the Planning Board's decision and the
appointment of a special master. In addition, plaintiff filed a motion to enforce
litigant's rights in the 2016 settlement agreement. The two matters were
consolidated for trial.
Following a one-day trial, the judge reserved decision. On February 24,
2020, the court issued an order and a written opinion entering final judgment in
plaintiff's favor, thereby vacating the Planning Board's denial of plaintiff's site
plan application. In addition, the court directed a limited remand of the site plan
application to the Planning Board to approve the application, including the
minor bulk variances requested, subject to "such other reasonable conditions as
the [Planning] Board may deem necessary." The judge also denied, in part, and
without prejudice, Fair Share Housing Center's (Fair Share) cross-motion to
extinguish the fifty-five rental bonus credits available to the Township for the
project and to revoke the Township's builders' remedy lawsuit immunity. In
addition, the court restrained and enjoined Cohen from any further participation,
as a member of the Planning Board, in the body's consideration and hearing of
plaintiff's application, as well as any other development applications involving
development projects designated or provided for in the 2016 HEFSP and 2016
A-3115-19
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Final Judgment of Compliance and Repose. A Mount Laurel 1 Implementation
Monitor was appointed to review and approve any building or development
applications to ensure that there was no conflict with the 2016 Final Judgment
of Compliance and Repose. Plaintiff's and Fair Share's applications for counsel
fees were denied without prejudice The judge also retained jurisdiction to
enforce its order and related relief.
II.
We address defendants' numerous challenges to February 24, 2020 order
in the order presented.
A. Reversal of The Planning Board's Denial of the Site Plan Application
Defendants argue the trial judge erred in reversing the denial of plaintiff's
preliminary and final site plan application by failing to give proper deference to
the Planning Board and substituting his judgment for the Planning Board's as to
the necessary traffic plan and lack of a wetlands letter of interpretation (LOI)
stemming from the DEP issues. Amici Lawrence Brook Watershed Partnership
and Lower Raritan Watershed Partnership assert that the Planning Board was
correct in requiring an updated wetlands LOI from the DEP under N.J.A.C.
7:7A-4.2(b)(1).
1
S. Burlington Cnty. N.A.A.C.P. v. Mount Laurel Twp., 92 N.J. 158 (1983).
A-3115-19
7
"[A] planning board's authority in reviewing a site plan application is
limited to determining whether the plan conforms with the municipality's zoning
and site plan ordinances." Sartoga v. Borough of W. Paterson, 346 N.J. Super.
569, 581 (App. Div. 2001) (citing W.L. Goodfellows & Co. of Turnersville, Inc.
v. Washington Twp. Planning Bd., 345 N.J. Super. 109, 116 (App. Div. 2001)).
This administrative function is not intended to include the legislative or quasi -
judicial power to prohibit a permitted use. See Stochel v. Planning Bd. of Edison
Twp., 348 N.J. Super. 636, 641-42 (Law Div. 2000). Thus, a planning board's
role in evaluating a site plan application "is somewhat 'circumscribed.'" W.L.
Goodfellows, 345 N.J. Super. at 116 (quoting Shim v. Washington Twp.
Planning. Bd., 298 N.J. 395, 411 (App. Div. 1997)).
In reviewing a planning board's decision, we use the same standard used
by the trial court. Cohen v. Bd. of Adjustment of Borough of Rumson, 396 N.J.
Super. 608, 614-15 (App. Div. 2007). Like the trial court, our review of a
planning board's decision is limited. Smart SMR of New York, Inc. v. Borough
of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). We give deference
to a planning board's decision because it is presumed to be valid, but we will
reverse if its action was arbitrary, capricious, or unreasonable. New Brunswick
Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14
A-3115-19
8
(1999); Zilinsky v. Zoning Bd. of Adjustment of Borough of Verona, 105 N.J.
363, 367 (1987). And the court must determine for itself whether the law has
been applied correctly. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993).
In accordance with N.J.S.A. 40:55D-42, "a developer, as a condition for
approval of a . . . site plan," may be required "to pay [its] pro-rata share of the
cost of providing only reasonable and necessary street improvements . . . located
off-tract but necessitated or required by construction or improvements within
such . . . development." This provision's "plain meaning and obvious legislative
intent was to limit municipal authority only to improvements the need for which
arose as a direct consequence of the particular subdivision or development under
review." N.J. Builders Ass'n v. Mayor & Twp. Comm. of Bernards Twp., 108
N.J. 223, 237 (1987). Thus, a "strong . . . causal nexus" is required between the
"off-site public facilities and [the] private development." Holmdel Builders
Ass'n v. Twp. of Holmdel, 121 N.J. 550, 571 (1990). In addition to this "causal
nexus," the developer may not be saddled with a "disproportionate share of the
cost of [the] improvement[]." See F & W Assocs. v. Cnty. of Somerset, 276 N.J.
Super. 519, 529 (App. Div. 1994) (quoting Holmdel, 121 N.J. at 571). "[A]
planning [board] may not condition site plan approval on a developer paying for
improvements that are unconnected to its development, or if connected, paying
A-3115-19
9
an amount that is disproportionate to the benefits conferred on the developer."
Toll Bros., Inc. v. Burlington Cnty. Bd. of Chosen Freeholders of Burlington,
194 N.J. 223, 245 (2008).
In rejecting the Planning Board's decision, the trial judge initially
expressed that that the entire process was irreparably tainted by Cohen's
statements "evidenc[ing] a clear bias against [plaintiff's] [a]pplication and
appear[ing] intended to undermine the current zoning of [its] property and, for
that matter, the 2016 HEFSP overall." The judge added:
Mayor Cohen's public comments about the
[complex's] property, [plaintiff's] proposed project, and
the sites included in the Township's 2016 HEFSP
clearly demonstrated his pre-judgment of, and bias
against, [plaintiff's] [a]pplication and violated both
N.J.S.A. 40:55D-23(b) and [, N.J.S.A. 40A:9-22.5(d)].
As further proof of the Planning Board's bias, the judge cited another action
involving property subject to the 2016 settlement agreement, H.D. Summerhill,
LLC v. Township of E. Brunswick, No. L-6665-18 (Law Div. Dec. 4, 2018),
wherein he enjoined the Township from taking any action regarding a proposed
ordinance––preventing the plaintiff's proposed inclusionary development from
going forward––sought following changes in the Township's political leadership
after the 2016 settlement agreement, and barred Cohen from further
A-3115-19
10
participation in the Planning Board's consideration of the application .2 The
judge reasoned:
[T]he [c]ourt could not help but view the factual
background and record developed before the Planning
Board in this matter through the lens of the Township's
preceding but concurrent actions that provoked the
[H.D. Summerhill] [l]itigation . . . . The time-line
speaks volumes as to bias and irreparable taint against
the application exhibited by the [Planning] Board and
its members and the resultant arbitrariness,
capriciousness and unreasonableness of the . . . denial
of [plaintiff's] application.
The judge's analysis did not stop there, as he also found that the Planning
Board's resolution should be overturned on its merits. He determined that the
Planning Board "continually requested additional road improvements . . . that
were not necessitated or required by [the] development[] but were intended to
address existing traffic conditions" in the Township. The Planning Board's
denial of the application on the basis that plaintiff would not agree to implement
the most expensive traffic plan violated "both the applicable provisions of the
[Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163] and the [2016]
[s]ettlement . . . as a matter of law" because it constituted an "unlawful
2
As in this matter, the judge appointed a special master in H.D. Summerhill to
ensure compliance.
A-3115-19
11
condition," particularly where plaintiff had agreed to a reasonable alternative
that would mitigate the project's traffic impact.
As to the wetlands LOI, the judge determined that the Planning Board's
findings of fact in its resolution were "materially inaccurate" and lacked
"sufficient evidential support." He found that the LOI did not expire on June
30, 2017, but was valid when the DEP issued the GP6 permit in June 2018. In
addition, the record revealed a DEP official's unrebutted statement that no other
wetland approvals were required for the construction of the complex. Thus, the
judge reasoned the Planning Board's decision to deny the application on the
ground of an expired and invalid LOI was "clearly arbitrary, capricious,
unreasonable, contrary to applicable law and simply wrong." Additionally, the
judge determined the Planning Board's refusal "to grant two minor, typical bulk
variances for a reduction of the perimeter buffer and parking setbacks ,"
considering unrefuted expert testimony and the Council on Affordable Housing
(COAH) regulations mandating granting "inclusionary developers reasonable
3
variances," was also "arbitrary, capricious[,] and unreasonable[]."
The judge further held that the Planning Board's denial violated the terms
3
Defendants concede on appeal that these variances would have been granted
had the application not been denied on other grounds.
A-3115-19
12
of the 2016 Final Judgment of Compliance and Repose and the Township's
HEFSP:
By denying the subject [a]pplication, the [Planning]
Board substituted its judgment for that of this [c]ourt
on such issues as site suitability and intended use. The
suitability of the site for multi-family inclusionary
development was extensively analyzed, and ultimately
supported, by the . . . Township's governing body, the
Planning Board, and the Township's professionals
before the site was included in the Township's HEFSP
and before the Township was granted a [2016] Final
Judgment of Compliance and Repose. It cannot be
emphasized enough that [the order] has shielded [the
Township] from builders['] remedy lawsuits through
July 2025 and reduced its fair share affordable housing
obligation for the Third Round compliance period by
[thirty-six percent].
In sum, the judge concluded the Planning Board's action was arbitrary,
capricious, and unreasonable based on the combination of: (1) plaintiff "not
get[ting] a fair and impartial hearing of its [a]pplication because of . . . bias"
against the complex; and (2) the demand that plaintiff make the most expensive
traffic improvements and the need for a new LOI were "utterly specious and just
plain wrong."
For the reasons articulated by the judge in his written opinion, we agree
with the reversal of the Planning Board's resolution denying plaintiff's site plan
application. The Planning Board's decision was not entitled to any deference
A-3115-19
13
because its action was clearly arbitrary, capricious, and unreasonable. At worse,
the application should have granted approval conditioned on a new LOI, which
plaintiff was willing to accept. See PRB Enters., Inc. v. S. Brunswick Planning
Bd., 105 N.J. 1, 10 (1987) (holding a planning board may impose appropriate
conditions in conjunction with the grant of final site plan approval); W.L.
Goodfellows, 345 N.J. Super. at 111-12, 117-18 (holding that the planning board
should have granted the site plan application conditioned on the acquisition of
the drainage easement to carry excess stormwater across the adjoining property).
Unlike Field v. Mayor & Council of Franklin Twp., 190 N.J. Super. 326, 329-
33 (App. Div. 1983) (sewage disposal was deferred until the final approval and
construction stages due to inadequate information) and Morris Cnty. Fair Hous.
Council v. Boonton Twp., 228 N.J. Super. 635, 642-46 (Law Div. 1988) (site
plan denied due to lack of stormwater management proposal), relied upon by
defendants to support their contention that conditional approval was improper,
plaintiff provided sufficient information to the Planning Board and the DEP, but
was waiting for the state agency to provide a document.
Plaintiff persuasively showed the traffic plan demanded by the Planning
Board required it to pay for road improvements beyond the traffic increase
related to the complex's construction. Moreover, defendants concede that, as
A-3115-19
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part of the 2016 settlement agreement, plaintiff was responsible only for two
new traffic signals along with the necessary paving and road striping that it was
still willing to construct. Given the well-settled principle that settlements rank
high as a matter of public policy, and that their terms should be adhered to
"absent . . . fraud or other compelling circumstances," Cumberland Farms, Inc.
v. N.J. Dep't of Envtl Prot., 447 N.J. Super. 423, 438 (App. Div. 2016) (quoting
Nolan v. Lee Ho, 120 N.J. 465, 472 (1990)), the Planning Board's denial is
reversed as it violates the parties' settlement.
B. Rental Bonus Credits
Defendants assert that the judge erred by not definitively ruling that the
Township was entitled to a fifty-five-unit rental bonus credit for the complex
under the 2016 Final Judgment of Compliance and Repose because the
Township has at least until December 2023 to fulfill that condition of immunity
from builders' remedy lawsuits. The judge denied without prejudice Fair Share's
cross-motion that the rental bonus credits be extinguished subject to "possible
renewal in the event of the Planning Board's failure to comply with the [o]rder
and accompanying directives."
Rental bonuses are extra credits a municipality may receive toward its fair
share obligation for permitting affordable rental housing to be expeditiously
A-3115-19
15
built, thereby reducing the municipality's fair share obligation. In re Adoption
of N.J.A.C. 5:96 & 5:97, 416 N.J. Super. 462, 493 (App. Div. 2010), aff'd as
modified sub nom. In re Adoption of N.J.A.C. 5:96, 215 N.J. 578 (2013). The
Township would receive 110 credits towards its fair share obligation even
though it would only produce fifty-five rental units. N.J.A.C. 5:97-3.5(a).
The judge did not abuse his discretion in denying Fair Share's motion
without prejudice. See A & M Farm & Garden Ctr. v. Am. Sprinkler Mech.,
LLC, 423 N.J. Super. 528, 532 (App. Div. 2012). Entitlement to the rental bonus
credits was an ongoing issue contingent on the completion of the complex with
the fifty-five affordable housing units. For the judge to determine definitively
whether the Township was entitled to the credits was premature because the
clock had run on neither the Planning Board's implementation of his order
reversing its denial of the site plan nor the construction of the complex's fifty-
five affordable housing units. Thus, the status of the Township's rental bonus
credits was appropriately placed on the back burner.
C. Enjoining Mayor Cohen's Participation in Future Planning Board
Proceedings
Defendants assert that the judge abused his discretion in enjoining and
restraining Cohen from participating in the Planning Board's consideration of
all site plan applications relating to the 2016 HEFSP and the 2016 Final
A-3115-19
16
Judgment of Compliance and Repose. They claim the judge misapplied the
MLUL, N.J.S.A. 40:55D-23(b), and the Local Government Ethics Law (LGEL),
N.J.S.A. 40A:9-22.5(d), in overemphasizing a statement made by the Planning
Board's Chairperson and not Cohen, as evidence of Cohen's personal bias against
plaintiff's complex. The judge noted that Cohen remarked:
And the fact that the applicant was not willing to do an
updated LOI . . . it concerns me . . . I am disheartened
by the fact that [plaintiff is] not willing to go that extra
step to give me that level of confidence that I talked
about earlier.
Defendants also cite the judge's reference to Cohen's alleged "unrestrained
participation and advocacy in [plaintiff's] Planning Board proceedings" in his
finding that there was a conflict of interest.
The record is clear that Cohen, who became mayor in January 2017, after
the 2016 Final Judgment of Compliance and Repose, did not welcome the
increase of affordable housing in the Township. In May 2018, he reiterated that
he has a history of opposing "COAH driving residential development", and that
the Township's COAH obligations should not be "driving" the Township's
master plan. In July 2018, he stated that the Township's affordable housing
obligation "comes second" to the needs of the Township. In his remarks before
voting to deny plaintiff's site plan application, Cohen said "that this . . . part of
A-3115-19
17
a COAH application should have no bearing on the process [by which] we
review an application and the standards that we hold every application to ." Yet,
despite these views, the judge should not have enjoined Cohen's participation.
We review de novo the trial judge's order governing conflicts of interest,
including the statutory and common law. Piscitelli v. City of Garfield Zoning
Bd. of Adjustment, 237 N.J. 333, 350 (2019) (citing Dunbar Homes, Inc. v.
Zoning Bd. of Adjustment of Twp. of Franklin, 233 N.J. 546, 559 (2018)). "The
overall objective 'of conflict of interest laws is to ensure that public officials
provide disinterested service to their communities' and to 'promote confidence
in the integrity of governmental operations.'" Id. at 349 (quoting Thompson v.
City of Atlantic City, 190 N.J. 359, 364 (2007)). Resolving whether a conflict
of interest prevented Mayor Cohen from participating in matters affecting
plaintiff's application is governed by the LGEL, N.J.S.A. 40A:9-22.1 to -22.25,
the MLUL, and the common law. Piscitelli, 237 N.J. at 349-50.
"The [LGEL] applies to all municipal office holders, including mayors
. . . [and] members of planning boards and zoning boards of adjustment." Id. at
350; see also N.J.S.A. 40A:9-22.3(g). In adopting the LGEL, the Legislature
pronounced:
a. Public office and employment are a public trust;
A-3115-19
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b. The vitality and stability of representative
democracy depend upon the public's confidence in the
integrity of its elected and appointed representatives;
c. Whenever the public perceives a conflict between
the private interests and the public duties of a
government officer or employee, that confidence is
imperiled;
d. Governments have the duty both to provide their
citizens with standards by which they may determine
whether public duties are being faithfully performed,
and to apprise their officers and employees of the
behavior which is expected of them while conducting
their public duties. . . .
[N.J.S.A. 40A:9-22.2.]
Thus, the LGEL aims to "make ethical standards in state and local
government 'clear, consistent, uniform in their application, and enforceable on
a statewide basis.'" Grabowsky v. Twp. of Montclair, 221 N.J. 536, 552 (2015)
(quoting Wyzykowski, 132 N.J. at 531 ).
In that regard, N.J.S.A. 40A:9-22.5(d) provides that:
[n]o local government officer or employee shall act in
his [or her] official capacity in any matter where he [or
she], a member of his [or her] immediate family, or a
business organization in which he [or she] has an
interest, has a direct or indirect financial or personal
involvement that might reasonably be expected to
impair his [or her] objectivity or independence of
judgment.
A-3115-19
19
The MLUL applies specifically to members of municipal planning boards,
and it provides that no member of a board "shall be permitted to act on any
matter in which he [or she] has, either directly or indirectly, any personal or
financial interest." N.J.S.A. 40:55D-69; see also Piscitelli, 237 N.J. at 352;
Grabowsky, 221 N.J. at 552.
Like the statutory requirements of the LGEL and the MLUL, in
Wyzykowski, the Court enunciated the four situations under the common law
where a public official is disqualified on conflict-of-interest grounds. 132 N.J.
at 525-26. Specifically, an official is disqualified when he or she has:
(1) "[d]irect pecuniary interests," when an official votes
on a matter benefitting the official's own property or
affording a direct financial gain; (2) "[i]ndirect
pecuniary interests," when an official votes on a matter
that financially benefits one closely tied to the official,
such as an employer, or family member; (3) "[d]irect
personal interest," when an official votes on a matter
that benefits a blood relative or close friend in a non-
financial way, but in a matter of great importance, . . .
and (4) "[i]ndirect [p]ersonal [i]nterest," when an
official votes on a matter in which an individual's
judgment may be affected [such as] membership in
some organization and a desire to help that organization
further its policies.
[Ibid.]
The overarching principle of the conflict-of-interest provisions under the
LGEL, the MLUL, and the common law is that "[a] citizen's right to 'a fair and
A-3115-19
20
impartial tribunal' requires a public official to disqualify himself or herself
whenever 'the official has a conflicting interest that may interfere with the
impartial performance of his [or her] duties as a member of the public body.'"
Piscitelli, 237 N.J. at 352-53 (quoting Grabowsky, 221 N.J. at 551). In resolving
whether an official has a disqualifying interest, "[t]he question is not 'whether a
public official has acted dishonestly or has sought to further a personal or
financial interest; the decisive factor is 'whether there is a potential for conflict.'"
Id. at 353 (quoting Grabowsky, 221 N.J. at 554). To answer that question, a
court must determine "whether the circumstances could reasonably be
interpreted to show that [a conflicting interest] had the likely capacity to tempt
the official to depart from his [or her] sworn public duty." Ibid. (quoting
Wyzykowski, 132 N.J. at 523).
Courts should, however, apply the conflict-of-interest rules cautiously, as
"[l]ocal governments would be seriously handicapped if every possible interest,
no matter how remote and speculative, would serve as a disqualification of an
official." Grabowsky, 221 N.J. at 554 (alteration in original) (quoting
Wyzykowski, 132 N.J. at 523). Indeed, public officials "cannot and should not
be expected to be without any personal interest in the decisions and policies of
government." N.J.S.A. 40A:9-22.4; see also Grabowsky, 221 N.J. at 554 ("It is
A-3115-19
21
essential that municipal offices be filled by individuals who are thoroughly
familiar with local communities and concerns."). Accordingly, "the nature of
an official's interest must be carefully evaluated based on the circumstances of
the specific case." Grabowsky, 221 N.J. at 554 (citing Van Itallie v. Borough
of Franklin Lakes, 28 N.J. 258, 268 (1958)).
Applying these principles, we conclude the trial judge mistakenly applied
the LGEL, the MLUL, and the common law to enjoin Cohen from participating
in any Planning Board proceedings involving plaintiff's complex and all other
developments covered by the 2016 HEFSP and the 2016 Final Judgment of
Compliance and Repose. The mayor's comments, while showing his disregard
for affordable housing, are not tantamount to a conflict of interest regarding
plaintiff's complex or any other development pending before the Planning Board
due to his direct or indirect pecuniary or personal interest having a likely
capacity to tempt him to depart from his sworn public duty. See Piscatelli, 237
N.J. at 352-53. Moreover, as discussed below, due to the appointment of a
Mount Laurel Implementation Monitor, Mayor Cohen's participation in the
proceedings will be subject to close examination by a neutral observer.
Therefore, the disqualification of Cohen is unwarranted.
A-3115-19
22
D. Mount Laurel Implementation Monitor
Defendants contend the judge abused his discretion in appointing a Mount
Laurel Implementation Monitor because the Planning Board's denial of
plaintiff's site plan application was based on traffic improvement and
environmental documentation concerns and not a violation of the 2016 HEFSP,
the 2016 Judgment of Compliance and Repose, or Mount Laurel affordable
housing mandates. Thus, with no pattern of non-compliance with the
Township's affordable housing obligations, the appointment was contrary to the
law.
Our Supreme Court has specifically approved the liberal use of special
masters to assist the court in fashioning remedies in the complex world of Mount
Laurel litigation. S. Burlington Cnty. N.A.A.C.P., 92 N.J. at 281-85, 293.
Based upon our conclusions above that the Planning Board's denial of plaintiff's
site plan application was arbitrary, capricious, and unreasonable, the judge did
not abuse his discretion by appointing an Implementation Monitor to ensure that
the Township carried out its affordable housing requirements.
E. Counsel Fees
Under Rule 1:10-3, a judge has the discretion to award counsel fees in a
motion to enforce litigant's rights. Defendants contend that the judge abused his
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discretion in denying plaintiff's and Fair Share's applications for counsel fees
without prejudice, instead of with prejudice because there was no basis for
counsel fees.
The judge did not abuse his discretion in denying without prejudice the
counsel fees application given plaintiff's on-going efforts to construct the
complex and his retention of jurisdiction with respect to enforcement of the 2016
Judgment of Compliance and Response. The uncertainty of future action on the
complex justified the judge's decision not to foreclose a future counsel fees
request. This is similar to our conclusion above that the judge did not abuse his
discretion in denying without prejudice Fair Share's cross-motion to extinguish
the Township's rental bonus credits until there is finality as to whether the
complex will be built.
F. Advisory Opinion
Defendants contend the trial judge erred in issuing "an advisory opinion"
in his February 24, 2020 order regarding potential relief in the event defendants
failed to comply with the order. The contention is without sufficient merit to
warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). Simply put,
we see no harm in the judge's comments as defendants were not subjected to any
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adverse ruling. The judge was merely admonishing defendants of the potential
impact if orders were violated.
Affirmed in part and reversed and remanded in part.
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