Cranford seeks dismissal of Birchwood special master

Township alleges biased opinions should bring new trial

CRANFORD — Although the court has been on the side of the Birchwood developers, the township recently filed a motion with the court calling the special master assigned to the case “biased” because she admitted in an email that she supported affordable housing.

The township is asking that the special master be disqualified and a new trial ordered.

S. Hekemian, also known as Cranford Building Associates, might have received the court’s nod last year to build an apartment complex and parking garage on the Birchwood Avenue site, but the township is fighting tooth and nail to show the case was not presented fairly.

On Nov. 21 township attorney Philip Morin filed a motion to not only reverse the judgment handed down by Union County Superior Court Judge Lisa Chrystal but also have special master Elizabeth McKenzie replaced.

Special masters are appointed to assist in cases prior to a final determination in a Mount Laurel“builder’s remedy” case, and are given considerable authority. The township believes McKenzie was not impartial in that role and, in fact, violated her role.

“The mere specter of partiality or bias is not, and should not be, tolerated,” Morin said in the motion submitted in court Nov. 21. Furthermore, the township attorney points out that special masters are subject to the strict guidelines of conduct and disqualification that govern the state’s judiciary.

For example, Morin suggests that prior to trial, McKenzie expressed an opinion that a builder’s remedy was appropriate. The township, on the other hand, Morin stressed, “vigorously” contested this on numerous grounds, but subsequently lost.

According to the motion filed by Morin, which LocalSource obtained, the township attorney pointed to an email exchangeApril 6, 2012that McKenzie had with legal counsel on both sides

“I am … an affordable housing advocate. I like to see towns comply and getting on with it, and I see little value in having litigation hanging over a town’s head for what could be years while the politicians in all three branches of state government argue about how to undermine planning and affordable housing efforts without looking bad,” McKenzie said.

Morin said that while this statement, standing on its own, could be dismissed as a one-time misstatement or “knee jerk” reaction, he does not believe that is so. In fact, he provides evidence taken during a recent deposition involving another pending Mount Laurel litigation where she again identified herself as an “affordable housing advocate,” whose role it is “to bring a case to a close preferably through a settlement because that is the fastest way to produce the affordable housing which is the objective of the case.”

“Such words can hardly be deemed the statement of an impartial expert whose true role is to provide an objective view of the facts,” Morin said when expert testimony in complex Mount Laurel litigation is sought.

The township attorney notes in his motion that the special master’s task during trial was to “objectively” evaluate and provide an “unbiased report” to the court that evaluated both sides’ arguments relating to whether Cranford Development Associates was entitled to a Builder’s Remedy on the Birchwood property issue.

Further, Morin said that it is “undeniable that McKenzie’s admissions would have been grounds to disqualify her as the special master,” according to the New Jersey court rules and canons of judicial conduct.

In the past the township has argued that the court had been very unfair in its judgements, with former mayor Dan Aschenbach going as far as to say that the court “could care less about flooding, school overcapacity and traffic.”

Over two years ago McKenzie was appointed to study the Birchwood case and present findings to the judge. This study revealed that they did not give much weight to residents’ concerns about the proposed development. Rather they focused on the fact the township has a constitutional obligation to provide affordable housing to its residents.

Because the township failed to seek certification with the Council On Affordable Housing by filing a plan outlining how those obligations would be met, they were left open to builder’s remedy cases such as the one brought by Cranford Development Associates, developers of the Birchwood Avenue site.