                NOT FOR PUBLICATION WITHOUT THE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
