Birchwood Opinion Not Biased, Court Rules
By
December 19, 2012
December 19, 2012
CRANFORD
— The court has denied the township’s motion to seek the
disqualification of the special master of
the Birchwood Avenue project.
In a brief filed in
November, township officials accused court-appointed special master Elizabeth
McKenzie of bias. At the Nov. 27 township committee meeting, attorney Philip
Morin said the township filed the brief in an attempt to have McKenzie
disqualified after she declared herself an “affordable housing advocate.”
During Monday night’s
special meeting, Morin said the court denied Cranford’s motion. “The basis of the motion was the special
master who was working hand-in-hand with the court on this was biased, based
upon her statement that she is an affordable housing advocate,” Morin
explained. “The court denied the motion. That was a disappointing result, but
not surprising.”
Commissioner Kevin
Campbell, who also attending the hearing, said the court cast the matter in the
context of a motion for reconsideration, instead of seeing it from a bias point
of view.
Cranford Development
Associates is seeking to build 149 units (correction: 360 units) on the
property that now houses offices. The township has argued that the size of the
proposed development is too big for the property and that it already has
flooding issues that create a hazard to public safety during inclement weather.
CDA sued the township in a builder’s remedy lawsuit, arguing that Cranford has not
met its affordable housing requirements.
The case went to trial
in 2010. The special master wrote two opinions for the court, first finding
that the builder’s remedy was appropriate and then, in December 2010, she
issued another report saying although there are some environmental issues at
the site, she didn’t find them to be unmanageable.
The accusations of bias
came about after McKenzie wrote in an April 6, 2012, e-mail exchange among
counsel, “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 the State government argue about how to undermine planning and
affordable housing efforts without looking bad.”
“While this statement,
standing on its own, could be dismissed as a ‘one-time’ misstatement or
‘knee-jerk’ reaction, this was not the only situation in which McKenzie
identified herself as an ‘affordable housing advocate,’” Morin said. He added
that in another pending Mt. Laurel litigation, 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.”