Birchwood Opinion Not Biased, Court Rules

By Cranford ChronicleCranford Chronicle
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.”