Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 1 of 55 PageID: 3026

DOUGLAS E. GERSHUNY, EXEC. DIR. SOUTH JERSEY LEGAL SERVICES, INC. 745 Market St. Camden, NJ 08102 Phone: 856-964-2010, Ext. 6232 Email: OPomar@lsnj.org By: OLGA D. POMAR, ESQ. Attorneys for Plaintiffs

AARP FOUNDATION LITIGATION 601 E Street, NW Washington, DC 20049 Phone: (202) 434-2060 Email: SSilverstein@aarp.org By: SUSAN ANN SILVERSTEIN, ESQ. Attorneys for Plaintiffs

POTTER & DICKSON 194 Nassau Street Princeton, NJ 08542 Phone: (609) 921-9555 Email: Potterrex@cs.com By: R. WILLIAM POTTER, ESQ. Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE

MT. HOLLY GARDENS CITIZENS IN

ACTION, INC., a New Jersey non-profit

HON. NOEL L. HILLMAN, U.S.D.J.

corporation, MARIA AROCHO, PEDRO

AROCHO, REYNALDO AROCHO, ANA

Case No.: 1:08-cv-02584

AROCHO, CHRISTINE BARNES, VIVIAN

BROOKS, BERNICE CAGLE, LEON

CALHOUN, GEORGE CHAMBERS,

DOROTHY CHAMBERS, SANTOS CRUZ,

ELIDA ECHEVARIA, NORMAN HARRIS,

MATTIE HOWELL, NANCY LOPEZ,

SECOND AMENDED

VINCENT MUNOZ, ANGELO NIEVES,

COMPLAINT

DOLORES NIXON, ELMIRA NIXON,

AND

LEONARDO PAGAN, JAMES POTTER,

DEMAND FOR JURY TRIAL

ROSEMARY ROBERTS, WILLIAM

ROBERTS, EFRAIM ROMERO, HENRY

SIMONS, PHYLLIS SINGLETON, JOYCE

STARLING, ROBERT TIGAR, TAISHA

TIRADO, FLAVIO TOBAR, MARLENE

TOBAR, RADAMES TORRES BURGOS,

RADAMES TORRES-MORENO, LILLIAN

TORRES-MORENO, DAGMAR VICENTE,

ALANDIA WARTHEN, SHEILA WARTHEN,

CHARLIE MAE WILSON and LEONA

WRIGHT,

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 2 of 55 PageID: 3027
Plaintiffs, vs. TOWNSHIP OF MOUNT HOLLY, a municipal corporation of the State of New Jersey, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, as governing body of the Township of Mount Holly, KATHLEEN HOFFMAN, as Township Manager of the Township of Mount Holly, JULES THIESSEN, as Mayor of the Township of Mount Holly, KEATING URBAN PARTNERS, L.L.C., a company doing business in New Jersey, TRIAD ASSOCIATES, INC., a corporation doing business in New Jersey,
Defendants.
I. PRELIMINARY STATEMENT 1. This is a civil rights action challenging Mount Holly Township’s (―Township‖) widescale redevelopment of the neighborhood known as Mt. Holly Gardens (―Gardens‖). Plaintiffs are an association of residents, Mt. Holly Gardens Citizens in Action, Inc., (―CIA‖), and five individual residents (―Residents‖) living in the Gardens, which is a cohesive, ethnically diverse neighborhood within Mt. Holly Township that is predominantly African-American and Hispanic with mostly low and moderate income families. CIA and Residents are challenging the Township’s sweeping redevelopment project that is demolishing existing homes, displacing numerous families, and dismantling and destroying the entire Gardens neighborhood. 2. The Township and its redevelopers have been and currently are aggressively implementing their redevelopment project, ultimately seeking acquisition, through purchase and eminent domain, and total demolition of all 329 homes within the Gardens redevelopment area affordable to current and displaced families and replacement with new, much higher-priced market rate homes intended for households that are more affluent. In carrying out
2

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 3 of 55 PageID: 3028
redevelopment, the Township and its redevelopers have greatly increased blighted conditions and have rendered the Gardens unsafe and unlivable. Among other things, under the implied threat of eminent domain, the Township has systematically acquired, vacated and boarded up more than 200 previously occupied homes—approximately two-thirds of all residential properties within the Gardens—and has demolished to date approximately 70 properties. If not stopped, the Township and its redevelopers will succeed in irrevocably tearing down the most identifiable minority community within Mt. Holly – with the highest rates of African-American and Hispanic homeownership within Burlington County – and permanently displacing hundreds of lower income minority residents from their community where they will no longer be able to afford to live.
3. In prior state court litigation, the Township’s finding of ―blight,‖ i.e., its determination that the Gardens neighborhood met New Jersey’s criteria for designation as an ―area in need of redevelopment,‖ was upheld in April 2005. However, in August 2005 and subsequently upheld on appeal in 2007, CIA’s and Residents’ civil rights and other substantive challenges to the redevelopment plan were dismissed without prejudice as then not being ripe for adjudication.
4. These claims are now unquestionably ripe in light of the Township’s subsequent destructive implementation actions devastating the Gardens community, its adoption of a revised plan, and its presentation of the Redevelopers’ proposed general development plan for the redeveloped community. Specifically, the Township and its redevelopers have unlawfully discriminated against the Residents on the basis of race and national origin in violation of Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1982; the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.; and Equal
3

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 4 of 55 PageID: 3029
Protection under the United States and New Jersey Constitutions. Furthermore, the Township’s actions deprive Residents of just compensation by driving down the value of their homes, while the Township has failed to adequately plan or prepare for replacement housing realistically affordable to current and displaced residents and failed to provide adequate relocation assistance that would enable displaced residents to purchase replacement housing.
5. The Township has also acted arbitrarily, capriciously, unreasonably, ultra vires and unconstitutionally, by first making substantial de facto changes to the redevelopment plan in closed meetings and then adopting an inadequate amended redevelopment plan, in violation of the New Jersey Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq., as well as procedural due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and fundamental fairness protected under Article 1, Paragraph 1 of the New Jersey Constitution. The Township has additionally acted unconstitutionally in violation of the general welfare under Article I, Paragraph 1, of the New Jersey Constitution, by carrying out redevelopment activities that will result in the destruction and substantial net loss of housing affordable to low and moderate income families, as well as the forcible displacement of hundreds of low and moderate income residents from the Gardens community without providing affordable replacement housing.
6. Residents and CIA seek, among other things, declaratory and injunctive relief invalidating the redevelopment plan; mandating that the Township carry out redevelopment in the Gardens in a manner having the least discriminatory adverse impact upon African-American and Hispanic households; and prohibiting implementation without providing adequate affordable replacement housing for all current and displaced Gardens residents. Residents and CIA also
4

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 5 of 55 PageID: 3030
seek damages and/or just compensation sufficient for Residents to secure permanent replacement housing in the local housing market.
II. JURISDICTION 7. Jurisdiction over the Plaintiffs’ claims is conferred on this court by 28 U.S.C. § 1331 (federal question jurisdiction) in that this action arises under the Constitution and laws of the United States; 28 U.S.C. § 1343(a)(4) because the Plaintiffs seek equitable and other relief under Acts of Congress providing for the protection of civil rights under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq.; 42 U.S.C. § 3613 for civil actions under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq.; and 42 U.S.C. § 1983, which provides redress for the deprivation, under color of state law, of rights, privileges and immunities secured to all citizens and persons within the jurisdiction of the United States by the Constitution and laws of the United States. 8. Plaintiffs seek declaratory and injunctive relief against the Defendants pursuant to 28 U.S.C. §§ 2201 and 2202 and injunctive relief pursuant to 42 U.S.C. § 3613(c)(1). 9. In addition, 28 U.S.C. § 1367 confers supplemental jurisdiction on this court over Plaintiffs’ related claims under state law. 10. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because the Plaintiffs’ claims arose in this district.
III. PARTIES A. Plaintiffs
11. Plaintiff Mt. Holly Gardens Citizens in Action (―CIA‖), Inc., is a voluntary membership non-profit corporation composed of residents of Mt. Holly Gardens. Its primary purpose is to advocate for the wellbeing and the betterment of the residents and neighborhood.
5

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 6 of 55 PageID: 3031
Its address is: c/o Santos Cruz, 356 South Martin Ave, Mt. Holly, New Jersey 08060. CIA brings this action on its own behalf and on behalf of its members. The individually named Plaintiffs are members of CIA.
12. Plaintiff Maria Arocho is a resident of Mt. Holly Gardens living at 406 South Martin Street, Mt. Holly, New Jersey 08060. She owns her home. She is Hispanic.
13. Plaintiff Pedro Arocho is a resident of Mt. Holly Gardens living at 316 South Martin Street, Mt. Holly, New Jersey 08060. He owns his home. He is Hispanic.
14. Plaintiffs Reynaldo and Ana Arocho are residents of Mt. Holly Gardens living at 154 Levis Drive, Mt. Holly, New Jersey 08060. They have lived in the Gardens for 19 years. They own their home. They are Hispanic.
15. Plaintiff Christine Barnes is a resident of Mt. Holly Gardens living at 122 Joseph Place, Mt. Holly, New Jersey 08060. She is a tenant. She is White.
16. Plaintiff Vivian Brooks is a resident of Mt. Holly Gardens living at 295 Grant Street, Mt. Holly, New Jersey 08060. She owns property located at 319 South Martin Avenue. She is African-American.
17. Plaintiff Bernice Cagle is a resident of Mt. Holly Gardens living at 281 Grant Street, Mt. Holly, New Jersey 08060. She is a homeowner. She is African-American.
18. Plaintiff Leon Calhoun is a resident of Mt. Holly Gardens living at 113 Levis Drive, Mt. Holly, New Jersey 08060. He is a homeowner. He is African-American.
19. Plaintiffs George and Dorothy Chambers are residents of Mt. Holly Gardens living at 341 South Martin, Mt. Holly, New Jersey 08060. They are homeowners and senior citizens. They are African-American.
6

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 7 of 55 PageID: 3032
20. Plaintiff Santos Cruz is a resident of Mt. Holly Gardens living at 137 Joseph Place, Mt. Holly, New Jersey 08060. He is a homeowner. He is Hispanic.
21. Plaintiff Elida Echevaria is a resident of Mt. Holly Gardens living at 370 South Martin Street, Mt. Holly, New Jersey 08060. She owns her home. She is Hispanic.
22. Plaintiff Norman Harris is a resident of Mt. Holly Gardens living at 313 South Martin Street, Mt. Holly, New Jersey 08060. He is a senior citizen and has lived in the property for 36 years. He is a homeowner. He is African-American.
23. Plaintiff Mattie Howell is a resident of Mt. Holly Gardens living at 118 Levis Drive, Mt. Holly, New Jersey 08060. She has lived there with her family for 37 years. She is a homeowner and a senior citizen. She is African-American.
24. Plaintiff Nancy Lopez is a resident of Mt. Holly Gardens living at 319 North Martin Street, Mt. Holly, New Jersey 08060. She is a homeowner. She is Hispanic.
25. Plaintiff Vincent Munoz is a resident of Mt. Holly Gardens living at 382 South Martin Street, Mt. Holly, New Jersey 08060. He is a senior citizen and a homeowner. He is Hispanic.
26. Plaintiff Dolores Nixon is a resident of Mt. Holly Gardens living at 114 Joseph Place, Mt. Holly, New Jersey 08060. She is a homeowner. She is African-American.
27. Plaintiff Elmira Nixon is a resident of Mt. Holly Gardens living at 21 Saul Place, Mt. Holly, New Jersey 08060. She is an elderly widow and is homebound. She owns her own home and has lived there lived there for 28 years. She is African-American.
28. Plaintiff Angelo Nieves is a resident of Mt. Holly Gardens living at 276 Levis Drive, Mt. Holly, New Jersey 08060. He is a homeowner. He is Hispanic.
7

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 8 of 55 PageID: 3033
29. Plaintiff James Potter is a resident of Mt. Holly Gardens living at 126 Levis Drive, Mt. Holly, New Jersey 08060. He is a homeowner. He is White.
30. Plaintiffs William and Rosemary Roberts are residents of Mt. Holly Gardens living at 346 South Martin Street, Mt. Holly, New Jersey 08060. They are homeowners. They are White.
31. Plaintiff Efraim Romero is a resident of Mt. Holly Gardens living at 115 Joseph Place, Mt. Holly, New Jersey 08060. He is a homeowner. He is Hispanic.
32. Plaintiff Henry Simons is a resident of Mt. Holly Gardens living at 7 Saul Place, Mt. Holly, New Jersey 08060. He has lived there for 23 years. He is a senior citizen and a homeowner. He is White.
33. Plaintiff Phyllis Singleton is a resident of Mt. Holly Gardens living at 128 Joseph Place, Mt. Holly, New Jersey 08060. She is a homeowner. She is African-American.
34. Plaintiff Joyce Starling is a resident of Mt. Holly Gardens living at 23 Saul Place, Mt. Holly, New Jersey 08060. She has lived there for 36 years. She is a homeowner. She is a senior citizen and is African-American.
35. Plaintiff Robert Tigar is a resident of Mt. Holly Gardens living at 353 North Martin Street, Mt. Holly, New Jersey 08060. He is a homeowner. He is White.
36. Plaintiffs Taisha Tirado and Leonardo Pagan are residents of Mt. Holly Gardens living at 211 Levis Drive, Mt. Holly, New Jersey 08060. They are tenants. They are Hispanic.
37. Plaintiffs Flavio and Marlene Tobar are residents of Mt. Holly Gardens living at 226 Levis Drive, Mt. Holly, New Jersey 08060. They are homeowners. They are Hispanic.
38. Plaintiff Radames Torres Burgos is a resident of Mt. Holly Gardens living at 326 South Martin Street, Mt. Holly, New Jersey 08060. He is a homeowner. He is Hispanic.
8

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 9 of 55 PageID: 3034
39. Plaintiffs Radames and Lillian Torres-Moreno are residents of Mt. Holly Gardens living at 308 North Martin Street, Mt. Holly, New Jersey 08060. They are homeowners. He is Hispanic.
40. Plaintiff Dagmar Vicente is a resident of Mt. Holly Gardens living at 371 South Martin Street Mt. Holly, New Jersey 08060. She rents the premises and lives there with two children. She is White.
41. Plaintiff Alandia Warthen is a former resident of Mt Holly Gardens who currently resides at 1130 Sunset Road Apt. 4-A, Burlington, NJ 08016. She lived in the Gardens for over 20 years, most recently at 3 Saul Place, Mt Holly, New Jersey 08060. She is African-American.
42. Plaintiff Sheila Warthen is a former resident of Mt Holly Gardens who currently resides at 1701 Salem Road, Apt. 01, Burlington Township, New Jersey 08016. She lived in the Gardens for 18 years, most recently at 330 North Martin Avenue, Mt Holly, New Jersey 08060. She is African-American.
43. Plaintiff Charlie Mae Wilson is a resident of Mt. Holly Gardens living at 120 Joseph Place, Mt. Holly, New Jersey 08060. She is 78 years old and owns her own home. She is African-American.
44. Plaintiff Leona Wright is a resident of Mt. Holly Gardens living at 208 Levis Drive, Mt. Holly, New Jersey 08060. She is a homeowner and has lived there for 33 years. She is 89 years old and widowed. She is African-American. B. Defendants
45. The Township Defendants, herein referred to as ―Township,‖ are as follows: a. Defendant Township of Mount Holly (―Township‖) is a municipal corporation chartered under the laws of the State of New Jersey.
9

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 10 of 55 PageID: 3035
b. Defendant Township Council of Township of Mount Holly is the governing body of the Township. The Council is responsible for the passage of local ordinances and resolutions, including Ordinance No. 2003-12 adopting the Gardens Redevelopment Plan, Ordinance 2005-07 adopting the West Rancocas Redevelopment Plan, and all ordinances and resolutions related to the effectuation of its redevelopment plan, for the appointment of the Township Manager, and for passing and modifying the Township’s budget.
c. Defendant Kathleen Hoffman is the Township Manager of the Township of Mount Holly and is the chief executive and administrative officer of the Township responsible for the overall administration of the Township's agencies and execution of the Township's laws. Defendant Hoffman is sued herein in her official capacity.
d. Defendant Jules K. Thiessen is the Mayor of the Township of Mount Holly and is responsible, inter alia, for presiding over Township Council meetings and executing bonds, notes, contracts and written obligations of the Township. Defendant Thiessen is sued herein in his official capacity.
46. The Redeveloper Defendants, herein referred to as ―Redevelopers,‖ are as follows: a. Defendant Keating Urban Partners, L.L.C. (―Keating‖) is a limited liability company with offices located at One Liberty Place, New Brunswick, NJ 08901. Defendant Keating entered into a redevelopment agreement with the Township to implement the WR Redevelopment Plan and has been actively engaged since that time in project planning, development, and implementation.
10

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 11 of 55 PageID: 3036
b. Defendant Triad Associates, Inc. (―Triad‖) is a corporation doing business in New Jersey with offices at 238 West Chestnut Avenue, Vineland, NJ 08360, which the Township and/or Keating hired to assist with implementation of the WR Redevelopment Plan, including but not limited to serving as property manager of Township-owned rental properties, preparing the Workable Relocation Assistance Plan (―WRAP‖) and conducting relocation activities. IV. FACTUAL ALLEGATIONS
A. Mt. Holly Gardens Neighborhood 47. Mt. Holly Gardens (―the Gardens‖) is situated on 30 acres of land within downtown
Mt. Holly Township in Burlington County, New Jersey. 48. It is a cohesive, racially and ethnically diverse community. 49. At the time the redevelopment process started in 2000, the neighborhood contained
329 houses. 50. The houses were constructed during the 1950s. 51. Houses are primarily two-story buildings of solid brick construction with joists
made of old-growth hardwood, and are situated in rows of 8 to 10 homes set back approximately 50 feet from the street, allowing for front and back yards.
52. Many homes are well-maintained and have attractively landscaped yards and gardens.
53. Until approximately March 2004 there was a playground area of approximately 14,000 square feet and a community center converted from a dwelling unit, both which the Township owned.
11

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 12 of 55 PageID: 3037
B. Residents of Mt. Holly Gardens 54. According to the 2000 U.S. Census, Burlington County’s total population was
423,394. Of the total population, Whites comprised 323,171—76.3%; African-Americans comprised 62,476—14.8%; and Hispanics comprised 17,632—4.2%.
55. According to the 2000 U.S. Census, Mount Holly Township’s total population was 10,728. Of the total population, Whites comprised 7,101—66.2%; African-Americans comprised 2,231 —20.8%; and Hispanics comprised 942 —8.8%.
56. The residential section of the Gardens redevelopment area corresponds approximately to Blocks 1000, 1001, 1003 and 1009 of U.S. Census Tract 7026.04., Burlington County, New Jersey.
57. Approximately 1,031 residents lived within the Census Blocks corresponding to the residential section of the Gardens redevelopment area. Within the residential section of the Gardens redevelopment area, Whites comprised approximately 203 residents—only 19.7%, compared to 475—46.1% —African-American residents and 297—28.8%—Hispanic residents.
58. Thus, African-American and Hispanic residents comprised the overwhelming majority—nearly 75%—of the residents living in the Gardens redevelopment area.
59. Further, according to the 2000 U.S. Census, the concentration of African-American and Hispanic residents in the Gardens was the highest of any neighborhood in Mt. Holly Township and much higher compared to Burlington County, while the concentration of Whites was comparatively much lower.
a. 46.1% of the Gardens redevelopment area was African-American, compared to only 20.8% for Mt. Holly Township and 14.8 % for Burlington County.
12

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 13 of 55 PageID: 3038
b. 28.8% of the Gardens redevelopment area was Hispanic, compared to only 8.8% for Mt. Holly Township and only 4.2% for Burlington County.
c. Only 19.7% of the Gardens redevelopment area was non-Hispanic, White, compared to 66.2% for Mt. Holly Township and was 76.3% for Burlington County.
d. In addition, approximately 31.5% of Mt. Holly Township’s entire Hispanic population and approximately 21,3% of Mt. Holly Township’s entire AfricanAmerican population lived within the Gardens redevelopment area, compared to only 2.9% of the entire non-Hispanic, White population.
60. Further, according to the 2000 U.S. Census, the median household income in the Gardens redevelopment area was only $30,104, while the median income for the Township was $43,284, and the median income of Burlington County was $58,608.
61. According to the 2000 Census, in Census Tract 7026.04 containing the Gardens, the housing characteristics were as follows:
a. 50% of the households in Census Tract 7026.04 were renters, and 50% were homeowners.
b. 31% of the African-American households were homeowners while the percentage in the entire Township was 13%, and the percentage in the County was 11%.
c. 17% of the Hispanic households were homeowners while the percentage in the entire Township was 8%, and the percentage in the County was 2%.
d. 81% of the owner-occupied households in Census Tract 7026.4 had lived in their homes for at least 9 years, while 72% of the renter-occupied households had lived in their homes for at least 5 years.
13

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 14 of 55 PageID: 3039
e. The median cost of homeownership for owner-occupied homes with mortgages in Census Tract 7026.04 was only $969 a month, compared to $1,536 for the Township and $1,393 for the County.
62. According to the 2000 Census, the Gardens neighborhood therefore had among the highest rates of African-American and Hispanic home ownership in Burlington County.
63. Despite the lower incomes of the Gardens’ households, the community is remarkably stable and has many longtime residents.
64. Residents have a strong sense of community and like that it is racially and ethnically diverse.
65. Many Gardens residents have family and friends living in the neighborhood. 66. Residents enjoy the convenient location of the Gardens and its proximity to schools, employment, businesses, and downtown. 67. The stability of the Gardens neighborhood is attributable in part to lower housing costs than that of Mt. Holly and Burlington County, making the Gardens more affordable for lower income households. 68. According to a more recent survey conducted by Triad in July 2006, the average monthly homeowner cost being paid in the Gardens is $445 and the average rent is $696. 69. In addition, many longtime homeowners of the Gardens, particularly seniors, paid off their mortgages in full and can afford to keep their homes, although they would not be able to purchase much higher-priced homes in the current real estate market on their present incomes. 70. According to a survey conducted by planners commissioned by the Township in 2000, 90% of the households in the Gardens had annual incomes below $40,000, 43% earned between $20,000 and $40,000, and nearly half—47%—earned less than $20,000.
14

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 15 of 55 PageID: 3040
C. Redevelopment Activities Before 2002 71. For almost thirty years, community members and Mt. Holly Township have
engaged in various planning initiatives to improve living conditions in the neighborhood. 72. These planning initiatives included a community-led effort in the 1980’s that
resulted in development of a strategy to increase the homeownership rate through targeted property acquisition and rehabilitation; however, this strategy was never adopted by the Township.
73. Another planning initiative was a housing rehabilitation program known as ―Mt. Holly 2000.‖ Through this program, eleven homeowners in the Gardens obtained grants and loans to fix up their properties.
74. The Township subsequently decided not to support such revitalization efforts. It instead began to plan for a sweeping redevelopment of the entire community that would involve acquisition and demolition of most or all of the Gardens homes.
75. In 2000, the Township began to purchase properties in the Gardens and leave them vacant
76. In 2000, the Council also commissioned a private firm, THP, Inc., to investigate whether the Gardens neighborhood met the criteria of an ―area in need of redevelopment‖ within the meaning of N.J.S.A. 40A:12A-1 et. seq.
77. In November 2000, THP, Inc. prepared a report entitled ―Redevelopment Area Determination Report‖ (―2000 Redevelopment Report‖), which it presented to the Council.
78. As part of the preparation of this 2000 Redevelopment Report, the planners conducted a survey of the Gardens residents.
15

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 16 of 55 PageID: 3041
79. The survey demonstrated that when questioned about the Township’s plans for redevelopment, residents were concerned about displacement and that more than 2/3 of the residents stated that they would prefer to remain living in the Gardens. D. Redevelopment Planning and Adoption of Redevelopment Plan
80. The Township adopted a Master Plan pursuant to the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., dated April 13, 2000.
81. The Master Plan set forth certain goals, which included improving the qualify of Mount Holly’s housing stock, upgrading the Gardens Area, and utilizing the LRHL to Mount Holly’s best advantage.
82. With regard to the upgrade of the Gardens area, the Master Plan stated that one objective of this Master Plan is to upgrade the quality of units and the character of area, and that measures should be taken to reduce the overall density in the Gardens Area, to rehabilitate deteriorated units, and to provide additional amenities.
83. In the land use plan element, the Master Plan characterizes the Gardens as one of two ―high density areas‖ containing some deteriorated units, high proportion of rental properties, and with overcrowding an identified problem. The Master Plan recommended ―redevelopment/revitalization‖ to allow for reduction of density, modernization of housing stock, and improvement to overall perception of the area.
84. On July 30, 2002, Council passed Resolution No. 2002-166 authorizing the Township’s Planning Board to undertake a preliminary investigation and to hold a public hearing to determine whether the Gardens neighborhood was an area in need of redevelopment.
85. The Planning Board subsequently received a report prepared by THP, Inc. entitled ―Redevelopment Area Determination Report,‖ dated September 3, 2002.
16

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 17 of 55 PageID: 3042
86. The September 3, 2002 Redevelopment Area Determination Report was almost identical to the 2000 Redevelopment Report prepared for Council.
87. On September 16, 2002, the Planning Board held the first public hearing on the question whether the Gardens should be designated as a redevelopment area.
88. On October 21, 2002, the Planning Board passed Resolution No. 2002-10, adopting the findings and conclusions of the 2002 Redevelopment Report and recommending that the Township Council designate the Gardens neighborhood as a ―redevelopment area‖ within the meaning of N.J.S.A. 40A:12A-1 et seq.
89. On October 28, 2002, the Council passed Resolution No. 2002-217, accepting the factual findings of the 2002 Redevelopment Report, accepting the Planning Board’s recommendations and formally designating the Gardens neighborhood as an area in need of redevelopment under N.J.S.A. 40A:12A-1 et seq.
90. Resolution No. 2002-217 did not state or otherwise indicate that by designating the Gardens neighborhood as an area in need of redevelopment, homes in the Gardens would be demolished.
91. At the Planning Board hearing and at the Council meeting, Township officials misled Residents by telling them that including their properties in an area in need of redevelopment did not mean that the Township would take their properties by eminent domain.
92. In April 2003, the Council publicly released a document entitled ―The Gardens Area Redevelopment Plan‖ (―Gardens Redevelopment Plan‖).
93. The Gardens Redevelopment Plan provided for the following: a. Total demolition of all the homes in the neighborhood and relocation of all the residents.
17

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 18 of 55 PageID: 3043
b. Building 180 new housing units. c. No construction of any affordable housing units. d. No guarantee that any new housing in the redevelopment community would be
made available for Gardens residents either before or after displacement. e. No guarantee that any new housing in the redevelopment community would be
realistically affordable for Gardens residents. f. Building only 30 rental units, available only to seniors. 94. The proposed 180 new units would be much more expensive than existing homes; therefore, the plan would permanently displace current residents who are predominately lowincome. 95. On August 11, 2003, the Township held a public hearing on the adoption of the Gardens Redevelopment Plan. 96. Over 100 residents appeared before the Council protesting against the proposed redevelopment plan and the demolition of their homes. 97. Among the objections raised by the residents were the following: a. They feel a strong sense of community and have pride in the community.
Many are long-term residents. They feel surrounded by family and friends. They like that it is racially and ethnically diverse. b. Many residents are low-income. Some had been homeless in the past. They are fearful that they will not be able to afford the new units that were being planned for construction and that they will not be able to find other housing in the area they could afford.
18

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 19 of 55 PageID: 3044
c. Some residents, including some elderly homeowners, have paid off their mortgages. They are afraid that if they lose their homes they will never be able to purchase another one.
98. Also on August 11, 2003, Plaintiff CIA submitted to the Township Council detailed written objections to the Gardens Redevelopment Plan with proposed alternatives to demolition of the residents’ homes, including that the Gardens Redevelopment Plan was drafted without meaningful input from the residents and in disregard of the residents’ needs; that it discriminated against African-American and Hispanic residents on the basis of race and ethnicity; that it did not realistically provide for housing that was decent and affordable for the residents, either as to units to be newly constructed in the Gardens area or replacement housing elsewhere in Mt. Holly Township or Burlington County; and that it would cause severe hardship by forcing most residents, many of whom have lived in the Gardens for many years, to lose their homes and move out of their community.
99. On September 8, 2003, the Township Council passed Ordinance No. 2003-12 adopting the Gardens Redevelopment Plan as originally proposed.
100. On October 23, 2003, Plaintiffs CIA and 35 individual residents filed an action in the Superior Court of New Jersey, Law Division, Docket No. BUR-L-003027-03, challenging the designation of the Gardens as an area in need of redevelopment and the adoption of the Gardens Redevelopment Plan under state law and on civil rights and constitutional grounds.
101. In February 2005, the Township Council directed the Planning Board to consider amending the Gardens Redevelopment Plan.
102. On February 21, 2005, the Planning Board held a public hearing concerning a revised redevelopment plan called the West Rancocas Redevelopment Plan (WR Redevelopment
19

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 20 of 55 PageID: 3045
Plan), which encompassed the Gardens neighborhood and increased the area for commercial redevelopment.
103. The WR Redevelopment Plan proposed the following: a. 228 new residential units. b. Permitted residential uses increased up to 50% for two-family dwellings, up to 33% for townhouse/senior apartment combination dwellings, and up to 33% for townhouses. The permitted uses; however, did not include any multifamily rental units. c. Demolition of existing homes and new construction of the above permitted uses. d. Possible rehabilitation of existing units, but rehabilitation was purely optional with no specified amount or percentage of existing residential units that were to be rehabilitated. e. Only 10% of the 228 dwelling units—a total of 23—to be affordable housing units, with the remaining 205 units to be market rate units. f. Commercial development in the area adjacent to the Mt. Holly Bypass Road on the western edge of the redevelopment area.
104. Many Gardens residents appeared and spoke at the Planning Board hearing on February 21, 2005, raising the same objections to the proposed WR Redevelopment Plan that they had raised concerning the Gardens Redevelopment Plan.
105. Also on February 21, 2005, a planning expert, Alan Mallach, FAICP, PP, submitted a report and testified on behalf of the residents regarding the proposed WR Redevelopment Plan.
20

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 21 of 55 PageID: 3046
106. In the report, Mr. Mallach opined that the rehabilitation option under the Plan was at best illusory and that given the lower-income status of most of the Gardens residents, very few if any of the families could afford the 205 market rate units.
107. Mr. Mallach also testified that the Township could improve the Gardens community using much less drastic alternatives than the large-scale acquisition and demolition called for the WR Redevelopment Plan.
108. In addition, Plaintiff CIA submitted detailed written comments to the Planning Board on February 21, 2005, raising numerous objections and recommendations, including: that the WR Redevelopment Plan should mandate as an overriding goal that existing homes be rehabilitated instead of demolished to avoid displacement of residents; that the WR Redevelopment Plan should permit multifamily rental housing—which constituted at least half of the existing residential units in the Gardens—among the permitted uses; that the WR Redevelopment Plan unlawfully discriminated against African-American and Hispanic residents on the basis of race and ethnicity; and that the WR Redevelopment Plan’s limit of 23 affordable housing units was a misapplication of the new growth share regulations promulgated by the New Jersey Council on Affordable Housing (―COAH‖) and was otherwise contrary to the general welfare under the New Jersey Constitution.
109. At the conclusion of the public hearing on February 21, 2005, the Planning Board passed a resolution recommending that the Council adopt the WR Redevelopment Plan, with the recommendation to increase the townhouse permitted use to up to 75% of the total 228 residential units.
110. The Planning Board did not recommend adoption of any amendments addressing the concerns raised by the residents and plaintiffs.
21

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 22 of 55 PageID: 3047
111. On March 14, 2005, the Township Council held a public hearing on the adoption of the WR Redevelopment Plan.
112. Many residents appeared and voiced similar concerns against the WR Redevelopment Plan as stated before the Planning Board.
113. Plaintiffs also submitted written comments similar to those presented to the Planning Board.
114. At the conclusion of the hearing, the Township Council adopted Ordinance 200507, adopting the WR Redevelopment Plan.
115. The Township Council disregarded all of the input it received from the Gardens residents and failed to address the residents’ objections and concerns.
116. The Township officials made false, misleading, and/or inaccurate statements in response to public comments regarding the designation of the Gardens community as an area in need of redevelopment and regarding the adoption of the Gardens Redevelopment Plan and the WR Redevelopment Plan.
117. The Township also took other actions to avoid informing the residents of its plans and to minimize public comment and participation in the redevelopment process.
118. CIA and the other plaintiffs in the state court litigation amended their complaint to allege that the adoption of the WR Redevelopment Plan was in violation of state redevelopment law, civil rights laws, and the federal and state constitutions.
119. On April 17, 2005, the Superior Court, the Hon. John Sweeney, held a bench trial on the issues of whether the Gardens met the statutory criteria of a redevelopment area and whether the WR Redevelopment Plan complied with the requirements of LRHL. On May 5,
22

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 23 of 55 PageID: 3048
2005, the court ruled in favor of the Township and entered judgment dismissing the prerogative writ claims.
120. On August 30, 2005, Judge Sweeney granted the Township summary judgment dismissing without prejudice the residents’ civil rights and constitutional claims upon finding that they were not ripe for adjudication.
121. On July 5, 2007, the New Jersey Superior Court, Appellate Division, affirmed the rulings of the trial court. On December 11, 2007, the New Jersey Supreme Court denied the residents’ petition for certification, and on February 5, 2008, the New Jersey Supreme Court denied the residents’ motion for reconsideration.
122. The Gardens redevelopment project is the only redevelopment initiative in Mt. Holly Township during the last 10 years that calls for large-scale demolition of homes and displacement of residents.
123. The Township conducted a reexamination of its Master Plan in June 2007. 124. The Master Plan Reexamination repeats the discussion of the Gardens in the Master Plan, and notes that the Township is improving the Gardens Area by declaring it a redevelopment area and adopting the WR Redevelopment Plan, which includes residential and non-residential properties, as recommended in the Master Plan. 125. The Reexamination includes a section of specific recommendations, which incorporate the specific proposals set out in the WR Redevelopment Plan for Residential, Commercial, Limited Industrial, and open space uses. The Reexamination does not propose any changes to the Master Plan with regard to the Gardens Area. E. Township’s and Redevelopers’ Implementation of the Redevelopment Plan 1. Acquisition of Properties
23

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 24 of 55 PageID: 3049
126. By 2002, at the time the Gardens Plan was being considered by the Planning Board and Council, the Township had acquired a total of 20 units, which it had intentionally left vacant and boarded up rather than attempting to renovate or sell them.
127. On November 10, 2003, the Township Council enacted Ordinance No. 2003-37, authorizing Township officials to negotiate and acquire all of the properties located in the Gardens redevelopment area by voluntary sale or, if necessary, by condemnation, at a price not to exceed fair market value.
128. After adoption of the WR Redevelopment Plan in 2005, the Township increased its efforts to acquire homes in the Gardens.
129. In or about March 2005, the Township purchased the 62 rental properties from Fry Properties for approximately $53,000 per unit totaling $3.27 million.
130. In or about April 2006, the Township obtained an appraisal report, which determined that the value of a one-bedroom house in the Gardens was $32,000, a two-bedroom house was $39,000, and a three-bedroom house was $49,000.
131. Since 2006, the Township has purchased numerous homes at prices ranging from $32,000 to $49,000, except for two purchases at $64,000 and one purchase at $81,000 for properties that contained two units converted into one larger home.
132. By December 2007, the Township had acquired a total of 219 residential units out of the 329 original homes in the Gardens redevelopment area. Most of these residential units had been occupied by tenants or homeowners before the Township acquired them. The Township had demolished 42 of its acquired units, and kept 165 of the remaining 177 units vacant and boarded.
133. Because the Township had not re-rented or re-sold its units upon acquisition, the Township’s acquisitions increased the overall vacancy rate in the Gardens to nearly 65%.
24

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 25 of 55 PageID: 3050
134. Since December 2007, the Township has demolished an additional 31 residential units, for a total 73 demolished units,
135. The only measures the Township has taken to secure its vacant properties has to put particle board panels on the windows and to plaster large orange ―no trespassing signs‖ on them.
136. The Township has not adequately secured or maintained the houses and yards of the properties it owns, allowing these properties to deteriorate and become vandalized by trespassers.
137. The vacant Township-owned properties have caused and are continuing to cause a severely blighting and deleterious effect on the Gardens neighborhood, created risk of infestation, fire hazards, and mold, and encouraged further disinvestment in the community.
138. The Township and Redevelopers have made and are continuing to make offers to Gardens property owners to purchase units for the prices of $32,000 for a one-bedroom house, $39,000 for a two-bedroom house, and $49,000 for a three-bedroom house.
139. The Township recently initiated the eminent domain process against one absentee property owner to acquire additional properties.
140. On April 12, 2008, the Township Council introduced and passed on first reading Ordinance 2008-12. The Ordinance states that the Township is or will be the owner of all of the properties in the redevelopment area, and authorizes the Mayor, and/or the Township Manager and/or Township Clerk to negotiate and execute a Purchase and Sale Agreement, and all other necessary documents, between the Township and Redevelopers for all of the properties for the minimum purchase price of $9 million and to execute any documents necessary to effectuate the sale, including any documents that may be required for Eminent Domain proceedings.
25

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 26 of 55 PageID: 3051
2. Selection of Redevelopers 141. On February 15, 2006, the Township executed a Redevelopment Agreement with
Defendant Keating. 142. In or about March 2006, Keating hired Triad to conduct the relocation activities
associated with the WR Redevelopment Plan. 143. Pursuant to Exhibit C of the Redevelopment Agreement, Keating was to form a
single purpose limited liability corporation with another redeveloper, Pennrose Properties, with Keating assigning its rights and obligations under the Redevelopment Agreement to the newly formed LLC and maintaining majority ownership. Upon information and belief, the single purpose limited liability corporation described in Exhibit C of the Redevelopment Agreement has not yet been formed and is presently not in existence.
144. Keating subsequently began to take various actions to move the redevelopment project forward including obtaining a survey; negotiating on behalf of the Township for the acquisition of a number of properties; meeting with various professionals such as planners, architects, and engineers; and submitting applications for permits and approvals.
145. On February 23, 2007, the Redevelopers became responsible for property management of the Township-owned properties.
26

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 27 of 55 PageID: 3052
3. Relocation of Gardens Residents 146. On September 28, 2006, the Township submitted a Workable Relocation
Assistance Plan (―WRAP‖), prepared by Defendant Triad, to the New Jersey Department of Community Affairs.
147. The WRAP provided the following: a. Proposed relocation of all current Gardens residents. b. A ―Right of First Opportunity‖ for residents to return to the Gardens area after the redevelopment project is completed. c. No provision that any replacement units realistically affordable to the residents would be created in the Gardens d. No provision that any replacement units realistically affordable to the residents would be created in any other areas in the Township or in the surrounding region. e. All residents on August 1, 2006, would be eligible for relocation assistance. f. Qualified resident homeowners would be eligible, in addition to the $15,000.00 required by N.J.A.C. 5:11-3.7(a), for a $20,000 no-interest loan payable if and when the relocated homeowner sold the replacement dwelling. g. Qualified tenants who moved into non-subsidized rental units were eligible for up to $4,000.00 in assistance as provided by N.J.A.C. 5:113.5 and additional assistance up to $3,500.00.
27

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 28 of 55 PageID: 3053
h. However, homeowners or tenants who used relocation funds to move out the Gardens would not be eligible for additional relocation funds to return to the Gardens if and when any affordable units were ultimately constructed.
148. In November 2006, the Township received notification from the Department of Community Affairs that the WRAP was approved.
149. On November 15, 2006, Triad opened an office in the Gardens to conduct relocation activities.
150. Triad staff began to send letters and notices to tenant households asking them to come in for interviews.
151. After assessing their housing needs, Triad staff started to make efforts to locate housing for these households outside of the Gardens.
152. The Township did not provide any relocation assistance to residents who moved out of the Gardens prior to November 2006.
153. Since the WRAP was approved in November, 2006 through January, 2008, the Township paid relocation funds to 62 families to move out of the Gardens.
154. Of these 62 households, 43, or 69%, were relocated outside of Mt. Holly. 4. Demolition of Units
155. The Township and Redevelopers have and are continuing to dismantle the Gardens community by demolishing homes in the Gardens.
156. As of May 2008, the Township has demolished a total of 73 residential units, most of which were previously occupied by tenants or homeowners.
28

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 29 of 55 PageID: 3054
157. Although the Township claimed that the demolitions of the houses were necessary for health and safety concerns, the units were generally structurally sound, capable of rehabilitation, and did not pose a threat to public safety.
158. To the extent the units were in poor condition and being used by trespassers, this was a result of the Township’s failure to take measures to adequately secure and maintain them. 5. Reduction in Municipal Services
159. Starting in 2000, before the Township even initiated the formal redevelopment planning process, the Township itself began to create blighted conditions in the Gardens.
160. Starting in 2000 and continuing during the course of the redevelopment process, the Township neglected the needs of the Gardens neighborhood by failing to apply for and utilize available funding for community improvements and housing rehabilitation.
161. From January 1999 to the present, the Township entered into regional contribution agreements pursuant to the New Jersey Fair Housing Act, N.J.S.A. 52:27D-301 et seq., with the municipalities of Moorestown, Hainesport, and Westhampton, with the Township receiving more than $4 million to rehabilitate 218 residential units occupied by low and moderate income households within Mount Holly.
162. The Township has not at any time allocated or used any funds from the regional contribution agreements to rehabilitate homes in the Gardens.
163. The Township failed to utilize a $25,000 grant from the New Jersey Department of Community Affairs earmarked for social, educational, and recreational programs for residents at the Gardens community center and in July, 2003 was forced to return the unspent funds.
164. In 2004, the Township removed the only playground equipment in the Gardens and refused to replace it.
29

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 30 of 55 PageID: 3055
165. The Township also failed to conduct proper code enforcement, prompt trash removal, adequate policing, and other basic services needed by the Gardens residents.
166. The Township twice used its vacant properties in the Gardens to conduct live police tactical training, bringing in numerous police officers and vehicles into the Gardens in the early morning hours, without providing advance notice to residents in the neighborhood.
167. The Township’s failure to provide adequate and proper municipal services has negatively impacted upon the community and decreased the quality of life for residents.
168. In spite of the Township’s actions, Gardens residents, through their own efforts, continued to combat significant deterioration of their neighborhood and tried to preserve their quality of life. F. Continued Planning and Changes to WR Redevelopment Plan
169. On March 9, March 23, and April 5, 2006, the Redevelopers held three meetings with Gardens residents.
170. The residents participating in these meetings thought that the purpose of the meetings was to consider revisions to the redevelopment plan.
171. At all three of the meetings, Gardens residents gave input about the redevelopment process and stated that they did not want to lose their homes or to be moved out of the Gardens.
172. The Gardens residents presented to the Redevelopers a list of proposals for revising the WR Redevelopment Plan, which included a guarantee of affordable replacement units for all residents to be displaced who wished to remain in the Gardens.
173. At the third meeting, resident surveys were distributed.
30

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 31 of 55 PageID: 3056
174. In July of 2006, Triad completed the resident survey process. 169 households responded, including 107 tenant households and 60 homeowners.
175. The Triad survey showed that 120 out of the 169 families were interested in either purchasing or renting a new home in the Gardens, only 64 families were interested in purchasing or renting outside of the Gardens, and only 8 households were interested in selling their property.
176. In or about October 2006, the Township and Redevelopers notified the residents of the completion of the Relocation Plan.
177. The WRAP stated that 560 units were being planned for the redevelopment area. 178. During the period between February of 2006 and September 2007, the Redevelopers prepared and revised approximately eight conceptual plans for the redevelopment area, referred to by the Township as ―concept plans‖. 179. Since the adoption of the WR Redevelopment Plan, the Township Council has conducted many discussions during closed executive session. 180. The Township did not provide any public notice or conduct any public meetings regarding the concept plans that were being prepared by the Redevelopers or refer them to the Planning Board for review 181. On or about September 24, 2007, the Township Council approved a concept plan during a closed executive session, in violation of the Open Public Meetings Act, N.J.S.A. 10:406 et seq. Council did not notify the public about its review of the concept plan, offer any opportunity for public input, or provide any subsequent information to the public about the actions taken during the executive session. The concept plan proposed construction of 203 market rate and 25 COAH income restricted apartments and 261 market rate and 31 COAH townhouses.
31

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 32 of 55 PageID: 3057
182. On September 8, 2008 the Township Council passed on first reading Ordinance 2008-25, adopting a Revised West Rancocas Redevelopment Plan (Revised WR Redevelopment Plan), and referred it to the Planning Board for review..
183. The Revised WR Redevelopment Plan contains, inter alia, the following provisions:
(a) It includes as objectives increasing the number of owner-occupied dwelling units by increasing homeownership opportunities for existing and future residents and ensuring that new dwelling units remain affordable.
(b) It calls for acquisition and demolition of all existing homes in the Gardens. (c) It proposes construction of up to 520 housing units and 54,000 square feet of
commercial space in the redevelopment area. Up to 75% of the housing units may be townhouses and up to 50% may be apartments. (d) The Land Use Plan proposes situating the apartments on a vacant land area north of the Gardens, the commercial district on the western side of the redevelopment area along the Mt Holly Bypass Road, and the townhouses on the eastern and southern portions of the redevelopment area. (e) It proposes the replacement of the 11 deed-restricted houses in the Gardens, and creation of 45 additional deed-restricted ―affordable units‖, and states that the current occupants of the existing 11 deed-restricted units would have priority for the replacement units, without any provision for the replacement of the other 273 units formerly occupied by predominately low income families and without any guarantee that any of the affordable units would be
32

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 33 of 55 PageID: 3058
realistically affordable to current and former Gardens residents and would be made available prior to displacement. (f) The Revised WR Redevelopment Plan acknowledges that it is inconsistent with the Township Master Plan because it does not reduce density and because it calls for total demolition rather than rehabilitation of existing homes, but concludes that this inconsistency is warranted based on economic conditions and redeveloper preference. The Plan states that it there would be no adverse impacts to neighboring Westhampton Township land uses and that the Plan is consistent with the State Development and Redevelopment Plan. 184. On September 9, 2008 the Township and Redevelopers held a public meeting at which the Redevelopers presented their proposed plans for redevelopment. This general development plan proposed construction of 228 luxury rental units, and 292 townhouses, totaling 520 housing units, along with 54,000 square feet of commercial development. The construction would take place in phases, with the Phase IA to consist of the apartments and 60 townhouses to be built on vacant land just north of the Gardens, Phase IB to consist of the commercial development to be situated along the Mt Holly Bypass, where North and South Martin Avenues are currently located, and Phases II and III to consist of additional townhouse development in the eastern portion of the Gardens. The Redevelopers’ proposal called for 56 affordable units to be interspersed among the remaining 464 market-rate units. 185. On September 15, 2008 the Planning Board reviewed the Revised WR Redevelopment Plan and heard public comment. The Planning Board members and their professional consultants had not been previously involved in developing or evaluating the Revised Plan. Several Gardens residents appeared before the Planning Board and objected to the
33

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 34 of 55 PageID: 3059
Revised WR Redevelopment Plan because it required taking of their homes and failed to provide affordable replacement housing. Counsel for the residents also testified and submitted written objections. The Planning Board recommended adoption of the Revised WR Redevelopment Plan, without meaningful consideration of the residents’ objections.
186. On September 22, 2008 the Township Council held a public hearing and considered the Ordinance to adopt the Revised WR Redevelopment Plan. Several Gardens residents again appeared and objected to Revised WR Redevelopment Plan. Counsel for the residents also testified and again submitted written objections. The Council voted to adopt the Ordinance on second reading, without meaningful consideration of the residents’ objections. G. Failure to Provide Affordable Replacement Units
187. The Township has estimated that the prices of the new townhouses to be built in the redevelopment area will range from $200,000 to 275,000 and that apartments will rent at approximately $1.65 per square foot, with a one-bedroom unit renting for $1,230 per month. The Redevelopers stated at the public meeting that the apartments are to be priced above current market prices, and the first set of townhouses are expected to cost $240,000.
188. Nearly all Gardens residents cannot afford to purchase or rent the new units. 189. The affordable housing provision in the Revised WR Redevelopment Plan does not constitute adequate replacement housing because it proposes to replace the 329 Gardens homes with only 56 affordable units, without any guarantee that even any of these 56 units would be realistically affordable or available to Gardens residents. H. Harm to Residents and CIA by Township’s and Redeveloper’s Actions 190. By acquiring and vacating properties, failing to maintain the properties it owns, reducing municipal services, demolishing units, and creating increasingly blighted conditions in
34

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 35 of 55 PageID: 3060
the Gardens, the Township and Redevelopers have interfered and are continuing to severely interfere with the Gardens residents’ use and enjoyment of their property and to otherwise injure Gardens residents.
191. Gardens residents risk losing their financial investments in their homes if they continue to make improvements or repairs.
192. Because the Township’s and Redeveloper’s actions have created severely blighted conditions and greatly lowered property values, and because of the imminent threat of condemnation, Gardens residents are unable to sell their home on the private market at a price that provides just compensation and that would enable them to find alternate comparable housing.
193. The Township’s proposed prices for purchase of the properties also do not constitute just compensation and are inadequate to enable residents to purchase decent, safe, and affordable comparable replacement housing.
194. Because of the Township-caused increased vacancy rate, proliferation of abandoned home, and ugly appearance of the neighborhood, Gardens residents increasingly fear for their security and safety, experience pest infestation and mold, cannot enjoy spending time in their yards and open areas, and are embarrassed to have family and friends visit.
195. Gardens residents have experienced and are continuing to experience great stress, anxiety, and grief because of their fear of losing their homes and their strong community ties and becoming unable to find adequate affordable replacement housing.
196. Many former Gardens residents have moved out of the Gardens community because the community had become such an undesirable and unsafe place to live and because eventual eviction or condemnation by the Township appeared inevitable.
35

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 36 of 55 PageID: 3061
197. Many former Gardens residents who moved out of the Gardens under threat of condemnation or eviction have not been able to find comparable replacement housing at locations as desirable as the Gardens community and have been forced to live under worse conditions and/or pay higher housing costs.
198. The Township’s and Redeveloper’s actions have harmed CIA by impeding its ability to organize residents and operate effectively as a representative organization.
199. The Township’s and Redeveloper’s concerted actions render ripe for adjudication the civil rights and constitutional claims that were dismissed by the state court without prejudice for lack of ripeness, including but not limited to the following:
(a) Actions to effectuate the redevelopment of the Gardens between March of 2005 and the present, including the selection of the Redeveloper, the execution of the Redeveloper Agreement, the preparation of the WRAP, the acquisition, vacation, and demolition of properties, the relocation of towthirds of the residents, the creation of severely blighted living conditions, the failure to provide affordable replacement housing to those being displaced, and the injury suffered by the Residents as a result of these actions;
(b) The Township’s formal adoption of a third, revised redevelopment plan in September 2008—five years after the Township’s first redevelopment plan in 2003—that specifically details the number, type, and affordability levels of the housing units;
(c) The Township’s preparation of a Redeveloper general development plan that provides details concerning the type and price of the housing units.
36

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 37 of 55 PageID: 3062
FIRST COUNT UNLAWFUL DISCRIMINATION UNDER THE FAIR HOUSING ACT,
42 U.S.C. § 3601 et seq. 200. Residents and CIA reallege and incorporate by reference the allegations in all previous Paragraphs of this Complaint as if fully pleaded herein. 201. By the actions described above, the Township and Redevelopers have violated and continue to violate the rights of plaintiffs under the Fair Housing Act, 42 U.S.C. § 3601 et seq. and implementing regulations by:
a. Making unavailable or denying dwellings to persons because of race, color and national origin, in violation of 42 U.S.C. § 3604(a) and implementing regulations;
b. Discriminating on the basis of race, color or national origin in the terms, conditions or privileges of services or facilities in connection with the sale or rental of a swelling in violation of 42 U.S.C. § 3604(b) and implementing regulations; and
c. Coercing, intimidating, threatening or interfering with any person's exercise of his or her rights protected under 42 U.S.C. § 3604, in violation of 42 U.S.C. § 3617.
202. The Township’s and Redevelopers’ actions, practices and policies, as described above in the Complaint, have had and continue to have a substantial adverse, disparate impact on African-American and Hispanic households in violation of the Fair Housing Act, 42 U.S.C. § 3604 (a) and (b).
a. The Township’s and Redevelopers’ actions, practices and policies will dismantle and destroy the Gardens, which is predominately African-American and Hispanic and has the most concentrated populations of African-American and Hispanic persons in the Township.
37

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 38 of 55 PageID: 3063
b. The Township’s and Redevelopers’ actions, practices and policies will substantially and disproportionately displace African-American and Hispanic households from the Gardens and from Mt. Holly Township, who are mostly lower and moderate income and who cannot afford the homes that will be constructed in the Gardens or existing housing in the local housing market.
c. The Township’s and Redevelopers’ actions, practices and policies will destroy hundreds of residential homes affordable to lower and moderate income AfricanAmerican and Hispanic Households without providing replacement housing that is affordable to most such households.
203. In addition, the Township’s actions demonstrate that Township officials acted with intent to discriminate, as follows:
a. The Township knew that the residents of the Gardens were predominately AfricanAmerican and Hispanic, and that the Gardens community was one of the most concentrated populations of African-American and Hispanic persons in the Township.
b. The Township decided to abandon efforts to rehabilitate the Gardens and instead initiate a redevelopment project that would require the forcible relocation of all or most Gardens residents.
c. Even before adoption of a redevelopment plan, the Township took actions to create blighted conditions in the Gardens and to drive down the costs of property acquisition and relocation.
d. The Township knew or should have known that the predominately African-American and Hispanic Gardens residents would be unable to afford the proposed new housing to be constructed under its redevelopment plan.
38

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 39 of 55 PageID: 3064
e. The Township also knew or had reason to know that there was an inadequate supply of affordable housing in the area and especially within the Township.
f. The Township knew or had reason to know that Gardens residents would find few affordable housing options within Mt. Holly Township and would be likely be forced to move out to other municipalities.
g. The Township knew or should have known that implementation of its redevelopment plan would therefore result in decreasing the numbers of African-American and Hispanic residents in Mt. Holly.
h. The Township knew or should have known that the African-American and Hispanic residents would experience severe hardship from being forcibly relocated and would have great difficulty in securing adequate replacement housing.
i. The Township officials also knew or had reason to know that the redevelopment would thus cause severe harm to Gardens residents, as they would lose their homes and their community and have great difficulty in finding decent, safe, affordable replacement housing in Mt Holly Township and the surrounding region.
j. The Township officials adopted and began to implement the Gardens Redevelopment Plan, the WR Redevelopment Plan, and the Revised WR Redevelopment Plan with the intent to displace current Gardens residents and force a significant number of them to move out of Mt Holly.
k. The Gardens community, which has the highest concentration of African-American and Hispanic residents in the Township, is the only community the Township has targeted for large-scale displacement and relocation.
39

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 40 of 55 PageID: 3065
l. The Township deviated from procedural and substantive norms by when the Council violated the procedures mandated by the LRHL, N.J.S.A. 40A:12A-1 et seq., and the OPMA, N.J.S.A. 10:4-12 by changing the redevelopment plan by vote in closed session without first conducting a public process to formally amend the plan, curing these statutory violations only after the Residents had brought claims based on these violations, and conducting a sham public process without opportunity for meaningful public input;
m. The Township deviated from procedural and substantive norms by adopting a revised redevelopment plan that is inconsistent with the policies and priorities of the Township’s Master Plan.
n. The Township knowingly and deliberately created adverse and unsafe living conditions at the Gardens by failing to provide adequate essential services, by purchasing properties and leaving them in vacant and deteriorated condition, by demolishing structurally sound units that were capable of rehabilitation, by failing to obtain and expend funds for community improvements, and by failing to support community-led initiatives for improving housing and quality of life in the Gardens.
o. The Township intentionally took action to drive down property values and its acquisition and relocation costs, improperly assessed the value of the properties, and failed to make available to the predominately African-American and Hispanic Gardens residents just compensation and adequate relocation assistance.
p. When the Township adopted the Revised WR Redevelopment Plan in September 2008, the Township knew or should have known of the significant harmful and discriminatory effects that its redevelopment project has had on Gardens residents
40

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 41 of 55 PageID: 3066
since 2003. Nonetheless the Township failed to make changes to the revised redevelopment plan that would have alleviated such harm and discriminatory effects, but instead in adopting the Revised Plan, intentionally continued to perpetuate these harmful and discriminatory impacts upon the residents; q. The Township’s prior history regarding its treatment the Gardens and its adoption of the original and revised redevelopment plans, despite knowledge of its discriminatory effects demonstrate that the Township intended to and did discriminate against plaintiffs on the basis of race, color, and national origin. r. The Township intentionally took action it knew or should have known would coerce, intimidate, threaten and interfere with residents' rights to rent, own, sell, buy and otherwise exercise their rights protected under the 42 U.S.C § 3604 by coercing residents to sell their property to the Township, by leaving the properties it purchased vacant, poorly maintained and attractive to vandalizers and trespassers, by demolishing units attached to units it knew to be occupied by residents, thus frightening the residents and structurally damaging their units, by conducting live police weapons and tactics team trainings in vacant units in view of residents and their children and by sending residents notices of relocation interviews, that they knew or should have known would be coercive, intimidating, threatening and would interfere with residents' rights. 204. By the actions described above, the Township has intentionally, knowingly, and continuously discriminated against African American, Hispanic and other residents of the Gardens neighborhood because of their race, color or national origin, or the racial, color or national origin composition of their neighborhood, in violation of the Fair Housing Act.
41

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 42 of 55 PageID: 3067
205. The Township have intentionally, knowingly, and continuously engaged in the practices described above that have a predictable discriminatory effect with the intent of denying equal housing opportunities to Residents.
206. The actions of the Township and Redevelopers in adopting, revising, and implementing the redevelopment plans for the Gardens have caused and are continuing to cause severe harm to the low and moderate income, predominately African-American and Hispanic Gardens residents.
207. The acts and conduct of the Township and Redevelopers complained of above have caused and continue to cause substantial injury to each of the individual plaintiffs and to plaintiff Citizens in Action.
SECOND COUNT VIOLATION OF CIVIL RIGHTS ACT OF 1866,
42 U.S.C. §1982 208. Residents and CIA reallege and incorporate by reference the allegations in all previous Paragraphs of this Complaint as if fully pleaded herein. 209. The Civil Rights Act of 1866, as amended, 42 U.S.C. § 1982, guarantees that ―[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.‖ 210. By seeking to demolish all 329 homes within the Gardens neighborhood and proposing to construct much more expensive replacement housing units unaffordable to most African-American and Hispanic households living in the Gardens, the Township is intentionally seeking to deprive the plaintiffs and other African-American and Hispanic residents of the same
42

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 43 of 55 PageID: 3068
right to inherit, purchase, lease, sell, hold, and convey real and personal property as is enjoyed by white citizens, in violation of to 42 U.S.C. § 1982.
211. The Township has otherwise intentionally discriminated against Residents and other African-American and Hispanic residents of the Gardens neighborhood as described under the First and Third Counts of this Complaint.
212. The Township has thus violated plaintiffs rights guaranteed under 42 U.S.C. §1982. THIRD COUNT
VIOLATION OF EQUAL PROTECTION CLAUSE OF FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION ACTIONABLE
PURSUANT TO 42 U.S.C. § 1983 213. Residents and CIA reallege and incorporate by reference the allegations in all previous Paragraphs of this Complaint as if fully pleaded herein. 214. The Township has intentionally discriminated against plaintiff Residents and other African-American and Hispanic residents of the Gardens neighborhood as described under the First and Second Counts of this Complaint. 215. The Township has, under color of state law, intentionally deprived the Residents of their rights to equal protection under the law as guaranteed to them by the Fourteenth Amendment of the United States Constitution because of their race, ethnicity and/or national origin, actionable pursuant to 42 U.S.C. § 1983.
FOURTH COUNT VIOLATION OF NEW JERSEY LAW AGAINST DISCRIMINATION,
N.J.S.A. 10:5-1 ET SEQ. 216. Residents and CIA reallege and incorporate by reference the allegations in all previous Paragraphs of this Complaint as if fully pleaded herein.
43

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 44 of 55 PageID: 3069
217. N.J.S.A. 10:5-12.5 of the New Jersey Law Against Discrimination states that ―[i]t shall be unlawful discrimination for a municipality, county or other local civil or political subdivision of the State of New Jersey, or an officer, employee, or agent thereof, to exercise the power to regulate land use or housing in a manner that discriminates on the basis of race, creed, color, national origin, ancestry, marital status, familial status, sex, nationality or handicap‖.
218. As set forth in Counts One through Three, the Township has taken actions that are causing and will continue to cause the disproportionate displacement and forced removal of African-American and Hispanic households, that have reduced and will continue to reduce the overall number of African-American and Hispanic households living in Mt. Holly Township, that discriminate against African-American and Hispanic households living in the Gardens neighborhood in the provision of services or facilities in connection with housing, that will create barriers for African-American and Hispanic households to remain in and move into Mt. Holly Township, and that thus have a discriminatory impact upon the basis of race, color and national origin and perpetuate segregation within Mt. Holly Township in violation of N.J.S.A. 10:5-12.5.
219. In addition to violating the New Jersey Law Against Discrimination due to discriminatory impact, the Township has intentionally discriminated against plaintiffs and other African-American and Hispanic households living in the Gardens neighborhood contrary to N.J.S.A. 10:5-12.5 as described under Counts One through Three of this Complaint.
220. In addition, as set forth previously herein, the Township and Redevelopers have otherwise discriminated against African-American and Hispanic households in the provision of housing in violation of N.J.S.A. 10:5-4 of the LAD.
44

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 45 of 55 PageID: 3070
221. The Township and Redevelopers have thus unlawfully discriminated against plaintiffs in violation of N.J.S.A. 10:5-4 and N.J.S.A. 10:5-12.5 of the New Jersey Law Against Discrimination.
FIFTH COUNT VIOLATION OF EQUAL PROTECTION CLAUSE OF ARTICLE I,
PARAGRAPH 1 OF NEW JERSEY CONSTITUTION 222. Residents and CIA reallege and incorporate by reference the allegations in all previous Paragraphs of this Complaint as if fully pleaded herein. 223. The Township has intentionally discriminated against plaintiff Residents and other African-American and Hispanic residents of the Gardens neighborhood by initiating and implementing a redevelopment project that forcibly displaces these residents as described under the First, Second, Third, Fourth, and Fifth Counts of this Complaint. 224. The Township, under color of state law, has intentionally deprived plaintiffs of their right to equal protection of the law because of their race, ethnicity and/or national origin, in violation of Article I, Paragraph 1 of New Jersey Constitution.
SIXTH COUNT VIOLATION OF THE RIGHT TO DUE PROCESS OF LAW AND FUNDAMENTAL
FAIRNESS AS GUARANTEED BY ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION
225. Residents and CIA reallege and incorporate by reference the allegations in all previous Paragraphs of this Complaint as if fully pleaded herein.
226. The Township failed to provide individualized notice to all owners of properties to be acquired under its redevelopment plans and to otherwise meaningfully inform and give notice to residents of the effects of redevelopment activities upon their constitutionally protected property rights.
45

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 46 of 55 PageID: 3071
227. The Township conducted private meetings with Redevelopers and other entities regarding the redevelopment initiative without giving notice to residents or an opportunity to be heard.
228. The Township Council decided to make revisions to the WR Redevelopment Plan based upon private discussions with the Redevelopers without first holding a public meeting as required by OPMA, N.J.S.A. 10:4-13, conducting a formal process for amending a redevelopment plan as required by the LRHL, N.J.S.A. 40A:12A-7, obtaining recommendations from the Planning Board, and providing notice to the public and an opportunity for residents to he heard with regard to the amendments, instead conducted private meetings with Redevelopers and approved the Redevelopers’ concept plan in a closed session.
229. The Township and Redevelopers continued to aggressively implement this new version of the redevelopment plan which had not been formally adopted.
230. Although the Township attempted to cure these violations by formally revising the WR Redevelopment Plan, the Council members had already decided to adopt the Revised Plan that is fully consistent with the previously approved Redevelopers’ concept plan, and failed to consider any public comment and input, rendering the public process a sham.
231. The Township’s improper actions to amend and implement the redevelopment plan significantly and substantially interfere with and infringe upon the property rights of Residents.
232. The Township’s failure to follow the LRHL’s formal plan amendment procedures, before taking drastic implementation actions destroying and dismantling the Gardens neighborhood, and its failure to conduct an open process allowing for meaningful public input is unjust and arbitrary governmental action, resulting in the unfair treatment of Gardens residents,
46

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 47 of 55 PageID: 3072
and inflicting upon them oppression, harassment, and egregious deprivation causing unjustified harassment, anxiety, and expense.
233. The Township’s actions violate due process and fundamental fairness under the Article 1, Paragraph 1, of the New Jersey Constitution.
SEVENTH COUNT VIOLATION OF THE RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
ACTIONABLE PURSUANT TO 42 U.S.C. § 1983 234. Residents and CIA reallege and incorporate by reference the allegations in all previous Paragraphs of this Complaint as if fully pleaded herein. 235. As set forth above in the Sixth Count of this Complaint, the Township has taken actions that infringe upon and deprive Residents of their property rights without meaningful and adequate notice and opportunity to be heard. 236. The Township, acting under color of state law, has deprived Residents of their rights secured by the Due Process Clause of the Fourteenth Amendment, actionable under 42 U.S.C. § 1983.
EIGHTH COUNT ADOPTION OF THE REVISED WR REDEVELOPMENT PLAN CONTRARY TO THE PROVISIONS OF THE NEW JERSEY LOCAL REDEVELOPMENT AND HOUSING
LAW, N.J.S.A. 40A:12A -1 ET SEQ. AND ARBITRARY, CAPRICIOUS AND UNREASONABLE
237. Residents and CIA reallege and incorporate by reference the allegations in all previous Paragraphs of this Complaint as if fully pleaded herein.
238. The actions of the Township in adopting the Revised WR Redevelopment Plan violate the LRHL, N.J.S.A. 40A:12A-7, and are arbitrary, capricious, and unreasonable as, inter alia:
47

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 48 of 55 PageID: 3073
(a) The Plan was revised without opportunity for meaningful community input and without consideration by the Planning Board and Council of the Residents’ comments;
(b) The Plan does not further several of its own objectives; (c) The Plan is substantially inconsistent with the Township’s Master Plan and
does not demonstrate any legitimate basis for deviating from the Master Plan; (d) The Plan is inconsistent with the State Plan for housing and fails to address
that inconsistency as mandated by N.J.S.A. 40A:12A-7; (e) The Plan is does not address whether it is consistent with the County Master
Plan, as mandated by N.J.S.A. 40A:12A-7; (f) The Plan is inconsistent with the purposes of the LRHL, N.J.S.A. 40A:12A-2,
as it fails to promote the advancement of community interests and physical development which will be most conducive to social and economic improvement and is otherwise arbitrary, capricious, and unreasonable.
NINTH COUNT EXCLUSIONARY REDEVELOPMENT IN VIOLATION OF THE GENERAL
WELFARE UNDER ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION
239. Residents and CIA reallege and incorporate by reference the allegations in all previous Paragraphs of this Complaint as if fully pleaded herein.
240. The general welfare under Article I, Paragraph 1 of the New Jersey Constitution requires municipalities to regulate and use land to promote the public health, safety, and general welfare of people of all incomes and economic status within the municipality, and therefore
48

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 49 of 55 PageID: 3074

prohibits municipalities from using their redevelopment police powers in a manner that displaces

and excludes existing lower-income residents from their community.

241. The Revised WR Redevelopment Plan calls for replacing the 329 residential units

in the Gardens with 520 residential units, of which only 11%—a total of 56—would be

affordable housing units, with the remaining 464 units to be market rate units.

242. The Township is in the process of acquiring and demolishing all of the existing

homes in the Gardens, although the houses were structurally sound and the Township had not

demonstrated that they constituted a substantial threat to health and safety and could not be

restored to standard condition within a reasonable time and at a reasonable expense.

243. Most of the households in the Gardens are lower and moderate income and will

not be able to afford the market rate units called for in the Revised WR Plan.

244. The Township has violated the general welfare under Article I, Paragraph of the

New Jersey Constitution by adopting the Revised WR Redevelopment Plan and by exercising its

redevelopment, eminent domain, and demolition authority and its powers of regulation and use

of land in a manner that fails to promote the public health, safety, and general welfare of people

of all incomes and economic status within Mt. Holly Township, in particular:

a.

The Township has violated the general welfare by destroying existing housing

affordable to and occupied by low and moderate income households formerly and

currently living in the Gardens and forcibly displacing such low and moderate income

residents;

b. Despite its compliance with the recent amendments to the LRHL requiring

replacement of existing subsidized and deed-restricted units, the Township nevertheless

is violating the general welfare under the state constitution by replacing only the existing

49

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 50 of 55 PageID: 3075
11 deed-restricted units and failing to rehabilitate or replace the 300 homes of housing affordable to, and formerly and currently occupied by, low and moderate income households living in the Gardens; c. The Township has further violated the general welfare by implementing its redevelopment plans in a manner that has created unsafe and increasingly blighted conditions, greatly decreased quality of life, interfered with the residents’ use and enjoyment of their property, forced residents to move out of their community, and provided them with inadequate compensation and relocation assistance to enable them to secure comparable decent safe replacement housing in the Township.
PRAYER FOR RELIEF WHEREFORE, Residents respectfully request that the Court enter judgment against the Township and Redevelopers: A. Declaring that the Township and Redevelopers have violated Residents’ rights
under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq.; B. Declaring that the Township and Redevelopers have violated Residents’ rights
under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.; C. Declaring that the Township has violated Residents’ rights under 42 U.S.C. §
1982; D. Declaring that the Township has violated plaintiffs’ rights to equal protection of
the law guaranteed by the Fourteenth Amendment to the United States Constitution; E. Declaring that the Township has violated plaintiffs’ rights to equal protection of the law as guaranteed by Article I, Paragraph 1 of New Jersey Constitution;
50

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 51 of 55 PageID: 3076
F. Declaring the Township has deprived Residents of due process rights guaranteed under the United States Constitution;
G. Declaring the Township has violated due process and fundamental fairness guaranteed under the New Jersey Constitution;
H. Declaring that the undervalued prices being offered and paid by the Township to purchase homes under threat of eminent domain and the amount of relocation benefits being provided violate the requirement of just compensation mandated under Article I, Paragraph 20 of the New Jersey Constitution and the Fifth Amendment of the United States Constitution;
I. Declaring that within the context of redevelopment of lower income communities resulting in low and moderate income homeowners being displaced, payment of fair market value violates the requirement of just compensation where fair market value is less than the replacement value of housing within the local housing market mandated under Article I, Paragraph 20 of the New Jersey Constitution and the Fifth Amendment of the United States Constitution;
J. Declaring the Township’s actions in adopting the Revised WR Redevelopment Plan violate the LRHL and are arbitrary, capricious, unreasonable;
K. Declaring that the Township has violated the general welfare in Article I, Paragraph 1 of the New Jersey Constitution;
L. Preliminarily and permanently enjoining the Township and Redevelopers from further implementing their current Redevelopment Plan;
51

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 52 of 55 PageID: 3077
M. Preliminarily and permanently requiring the Township and Redevelopers to carry out any further redevelopment in the Gardens in a manner having the least discriminatory adverse impact upon African-American and Hispanic households;
N. Preliminarily and permanently prohibiting the Township and Redevelopers from demolishing, removing, purchasing or obtaining through eminent domain residential dwellings within the Gardens, or otherwise implementing redevelopment, without providing for rehabilitation of housing and/or adequate affordable replacement housing for all current and displaced Gardens residents;
O. Damages and/or just compensation sufficient for Residents to secure permanent replacement housing in the local housing market;
P. Preliminarily and permanently compelling the Township to provide the Gardens residents with adequate municipal services, including but not limited to police, fire protection, code enforcement, trash collection and community services;
Q. Awarding compensatory damages; R. Awarding punitive damages; S. Awarding plaintiffs costs of suit; T. Ordering the Township and Redevelopers to pay plaintiffs’ reasonable expert and
attorney’s fees, except that no attorney’s fees are requested by South Jersey Legal Services, Inc; and U. Granting such other relief and the Court deems just and proper.
DEMAND FOR JURY TRIAL Pursuant to Fed. R. Civ. P 38(b), the plaintiffs demand a trial by jury of all issues so triable as of right.
52

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 53 of 55 PageID: 3078

Dated: December 3, 2008

SOUTH JERSEY LEGAL SERVICES, INC. Attorneys for Plaintiffs: Mt. Holly Gardens Citizens In Action, Inc., Ana Arocho, Reynaldo Arocho, Maria Arocho, Pedro Arocho, Christine Barnes, Vivian Brooks, Bernice Cagle, George Chambers, Dorothy Chambers, Elida Echevaria, Norman Harris, Angelo Nieves, Elmira Nixon, Leonardo Pagan, Joyce Starling, Taisha Tirado, Dagmar Vicente, Charlie Mae Wilson, Mattie Howell, Nancy Lopez, Vincent Munoz, Henry Simons, Alandia Warthen, Sheila Warthen, and Leona Wright
By: /s/ Olga D. Pomar OLGA D. POMAR, ESQUIRE
By: /s/ Kenneth M. Goldman KENNETH M. GOLDMAN, ESQUIRE
By: /s/ David M. Podell DAVID M. PODELL, ESQUIRE
AARP FOUNDATION LITIGATION Attorneys for Plaintiffs: Maria Arocho, Reynaldo Arocho, Ana Arocho, Vivian Brooks, Bernice Cagle, Leon Calhoun, Santos Cruz, Mattie Howell, Nancy Lopez, Vincent Munoz, Angelo Nieves, Dolores Nixon, James Potter, Rosemary Roberts, William Roberts, Efraim Romero, Henry Simons, Phyllis Singleton, Robert Tigar, Flavio Tobar, Marlene Tobar, Radames Torres Burgos, Radames Torres-Moreno and Lillian Torres-Moreno, Charlie Mae Wilson, Alandia Warthen, Sheila Warthen, and Leona Wright
By: /s/ Susan Ann Silverstein SUSAN ANN SILVERSTEIN, ESQUIRE
POTTER AND DICKSON Attorneys for Plaintiffs: Leon Calhoun, Santos Cruz, Dolores Nixon, James Potter, Rosemary Roberts, William Roberts, Efraim Romero, Phyllis Singleton, Robert Tigar, Radames Torres Burgos, Radames Torres-Moreno and Lillian Torres-Moreno
By: /s/ R. William Potter R. WILLIAM POTTER, ESQUIRE

53

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 54 of 55 PageID: 3079

L.Civ.R. 11.2 CERTIFICATION

Pursuant to L.Civ.R. 11.2, the undersigned attorneys hereby certify that the matter in

controversy is not the subject of any other action pending in any court, or of any pending

arbitration or administrative proceeding. The undersigned attorneys certify that the foregoing

statements are true. The undersigned attorneys understand that if any of the above statements

made by me are willfully false, the undersigned attorneys are subject to punishment.

Dated: December 3, 2008

SOUTH JERSEY LEGAL SERVICES, INC. Attorneys for Plaintiffs: Mt. Holly Gardens Citizens In Action, Inc., Ana Arocho, Reynaldo Arocho, Maria Arocho, Pedro Arocho, Christine Barnes, Vivian Brooks, Bernice Cagle, George Chambers, Dorothy Chambers, Elida Echevaria, Norman Harris, Angelo Nieves, Elmira Nixon, Leonardo Pagan, Joyce Starling, Taisha Tirado, Dagmar Vicente, Charlie Mae Wilson, Mattie Howell, Nancy Lopez, Vincent Munoz, Henry Simons, Alandia Warthen, Sheila Warthen, and Leona Wright

By: /s/ Olga D. Pomar OLGA D. POMAR, ESQUIRE

By: /s/ Kenneth M. Goldman KENNETH M. GOLDMAN, ESQUIRE

By: /s/ David M. Podell DAVID M. PODELL, ESQUIRE

AARP FOUNDATION LITIGATION Attorneys for Plaintiffs: Maria Arocho, Reynaldo Arocho, Ana Arocho, Vivian Brooks, Bernice Cagle, Leon Calhoun, Santos Cruz, Mattie Howell, Nancy Lopez, Vincent Munoz, Angelo Nieves, Dolores Nixon, James Potter, Rosemary Roberts, William Roberts, Efraim Romero, Henry Simons, Phyllis Singleton, Robert Tigar, Flavio Tobar, Marlene Tobar, Radames Torres Burgos, Radames Torres-Moreno and Lillian Torres-Moreno, Charlie Mae Wilson, Alandia Warthen, Sheila Warthen, and Leona Wright

By: /s/ Susan Ann Silverstein SUSAN ANN SILVERSTEIN, ESQUIRE

54

Case 1:08-cv-02584-NLH-JS Document 73 Filed 12/03/08 Page 55 of 55 PageID: 3080 POTTER AND DICKSON Attorneys for Plaintiffs: Leon Calhoun, Santos Cruz, Dolores Nixon, James Potter, Rosemary Roberts, William Roberts, Efraim Romero, Phyllis Singleton, Robert Tigar, Radames Torres Burgos, Radames Torres-Moreno and Lillian Torres-Moreno By: /s/ R. William Potter R. WILLIAM POTTER, ESQUIRE
55

 
 Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 1 of 28 PageID: 5066

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

MT HOLLY CITIZENS IN ACTION, :

INC., et al.,

:

:

Plaintiffs, :

:

v.

:

:

TOWNSHIP OF MOUNT HOLLY,

:

et al.,

:

:

Defendants. :

:

Civil Action No. 08-2584 (NLH)(JS)
OPINION

Appearances:

DOUGLAS E. GERSHUNY, EXEC. DIR. OLGA D. POMAR DAVID M. PODELL SOUTH JERSEY LEGAL SERVICES, INC. 745 MARKET STREET CAMDEN, NJ 08102 Attorneys for Plaintiffs

R. WILLIAM POTTER POTTER & DICKSON 194 NASSAU STREET PRINCETON, NJ 08542 Attorney for Plaintiffs

SUSAN ANN SILVERSTEIN AARP FOUNDATION LITIGATION 601 E STREET, NW WASHINGTON, DC 20049 Attorney for Plaintiffs

GAETANO MERCOGLIANO SWEENEY & SHEEHAN 216 HADDON AVENUE, SUITE 500 WESTMONT, NJ 08108 Attorney for Defendant Triad Associates, Inc.

M. JAMES MALEY MALEY & ASSOCIATES

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 2 of 28 PageID: 5067
931 HADDON AVENUE COLLINGSWOOD, NJ 08108 Attorney for Defendant Mount Holly Township, et al.
WILLIAM J. DESANTIS BALLARD SPAHR ANDREWS & INGERSOLL LLP PLAZA 1000 - SUITE 500 MAIN STREET VOORHEES, NJ 08043 Attorney for Defendant Keating Urban Partners, L.L.C.
HILLMAN, District Judge
This case involves the redevelopment of the Mount Holly
Gardens neighborhood (the “Gardens”) in Mount Holly, New Jersey.
Plaintiffs are low-income, African-American, Hispanic and “white”
residents of the Gardens, who object to the plan because they
claim they are being forcibly removed from their homes, which are
being replaced in large part with new, much higher-priced market
rate homes.
Currently before this Court are defendants’ motions for
summary judgment, which had been converted from motions to
dismiss on four of plaintiffs’ claims.1 The Court provided the
plaintiffs with additional time to respond to the converted
motions, and then allowed defendants to file reply briefs. The
supplemental briefing is completed, and the remaining claims that
1 The other five counts were dismissed. Since this case was filed over two years ago, it has been extensively litigated with several hearings, the denial of a TRO and preliminary injunction, the filing of a second amended complaint, and the issuance of numerous written Opinions. Litigation over the Gardens redevelopment also precedes this case in New Jersey state court. Overall, the concerns of several Gardens residents have caused the dispute over the blighted neighborhood’s redevelopment plan to spend ten years in the courts.
2

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 3 of 28 PageID: 5068
are now ready for final resolution are plaintiffs’ claims for violations of Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act or FHA), 42 U.S.C. § 3601 et seq. (Count One against all defendants); the Civil Rights Act of 1866, 42 U.S.C. § 1982 (Count Two against the Township); the Equal Protection Clause of the U.S. Constitution, brought pursuant to 42 U.S.C. § 1983 (Count Three against the Township); and Equal Protection Clause of the New Jersey State Constitution (Count Five against the Township), as well a claim for punitive damages.
As this Court previously expressed on several occasions, we recognize that the Gardens redevelopment has had an effect on low-income families, and, correspondingly, minority families. The Court also recognizes that being forced from one’s home is a difficult and emotional issue, compounded by the fear of being unable to afford a comparable place to live. However, as the Court has also expressed previously, plaintiffs have failed to demonstrate that the Township, or the entities assisting the Township in the redevelopment and relocation services, has implemented a plan that has a disparate impact on the Gardens residents as the law defines it. Nor have they shown that the defendants have not been proceeding pursuant to a legitimate governmental interest in the least restrictive way, or have otherwise acted with discriminatory intent. Consequently, as explained more fully below, defendants’ motions will be granted,
3

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 4 of 28 PageID: 5069
and the case will be closed. DISCUSSION2
A. Standard for Summary Judgment Summary judgment is appropriate where the Court is satisfied
that “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is “genuine” if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence “is to be believed and all justifiable inferences are to be drawn in his favor.” Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
2 Because the background and procedural history have been laid out in the Court’s previous Opinions, they will not be restated here.
4

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 5 of 28 PageID: 5070
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). B. Analysis
1. Count One - Fair Housing Act This Court has already analyzed plaintiffs’ Fair Housing Act claim substantively in the context of plaintiffs’ motion for a preliminary injunction. That analysis was adopted in the Court’s most recent Opinion, which converted defendants’ motions to dismiss into ones for summary judgment. That analysis found that plaintiffs had not demonstrated that the redevelopment has had a disparate impact on a protected group, or that defendants did not have a legitimate interest in the redevelopment, or that no alternative course of action would have a lesser impact. Recognizing that plaintiffs’ Fair Housing Act claim had only been
5

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 6 of 28 PageID: 5071
considered in the context of a preliminary injunction, the Court afforded plaintiffs time to gather specific facts to show a genuine issue for trial on these issues. The Court now affirms its prior decision on plaintiffs’ FHA claim because plaintiffs have not provided the requisite proof to take the issues to a jury.
As a preliminary matter, plaintiffs argue that they should be afforded time for discovery, and are prejudiced in their ability to oppose the converted motions because of the lack of discovery. Plaintiffs contend that they require a look into the defendants’ state of mind and intentions, as well as documents that are only within the control of defendants and, thus, unavailable to plaintiffs. Without this information, plaintiffs argue that summary judgment is premature, which is further evidenced by the fact that defendants have not even filed their answers to plaintiffs’ complaint.
Although the Court recognizes the peculiar procedural history that has led to the resolution of summary judgment motions without the filing of answers or the undertaking of formal discovery, this is not a case where plaintiffs are neophytes filing an initial challenge to the Gardens redevelopment plan. Not only has there been extensive proceedings over two years in this Court, most of these issues have been thoroughly litigated in New Jersey state court over the
6

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 7 of 28 PageID: 5072
course of several years preceding this case.3 As pointed out by defendants, plaintiffs have already had the ability to obtain the information they seek through Open Public Records Act requests, as well as through the previous state court litigation. Further, much of the information is available by other means, including from the residents themselves or the Public Advocate, who undertook an investigation of the Township’s relocation practices.4
Moreover, plaintiffs do not specifically identify what information defendants hold to support their claims, and instead request discovery generally, such as depositions of key officials in order to acquire testimony as to their intent to “rid [the Township] of a minority community.” (Pomar Cert., Docket No. 106-41) (“Residents are severely prejudiced by being unable to probe, at a deposition, the attitudes, intent, and motives of the Township officials who made the critical decisions to pursue the Gardens redevelopment project.”). Discovery, however, cannot serve as a fishing expedition through which plaintiffs search for
3 The Court recognizes that the state court case was more narrow than this one, and the civil rights claims had been dismissed as unripe, but none of the discovery plaintiffs contend they need here to supplement the discovery from the state court litigation would save their otherwise deficient claims.
4 In the Court’s February 13, 2009 Opinion, the Court considered and referenced the Public Advocate’s report, which was provided by plaintiffs pursuant to the Court’s November 25, 2008 Order granting plaintiffs’ request to supplement the record with the report.
7

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 8 of 28 PageID: 5073
evidence to support conclusory speculations. Giovanelli v. D.
Simmons General Contracting, 2010 WL 988544, *5 (D.N.J. 2010).
Further, such depositions may be barred by a privilege afforded
to decision-making government officials. See, e.g., U.S. v.
Sensient Colors, Inc., 649 F. Supp. 2d 309, 316 (D.N.J. 2009).5
5 Indeed, in addressing the same argument by plaintiffs in the earlier state court litigation, Judge Sweeney explained,
There are many reasons why discovery is the exception rather than the rule in actions such as this one. First, a public official’s state of mind is rarely an issue and can usually be determined from the record below. There are transcripts, tapes, minutes and the like. Secondly, and no less important, is the consideration that members of the municipal governing bodies and local boards serve without significant remuneration. They would be far less likely to serve if their official actions frequently subjected them to the arduous discovery process. Interrogatories would have to be answered and depositions attended after usual hours of public service. It would place a chilling effect on public service.
Here, I am convinced that the discovery sought would burden the officials involved to a degree that would be totally disproportionate to any usable information that could be recovered. Furthermore, there has already been one hearing in this matter. Although I limited plaintiffs to two expert witnesses, I also afforded them the right to call township officials to testify. They elected, for whatever reason, not to do so. Following that hearing, I determined that the designation of the Gardens as an area in need of redevelopment had substantial credible support in the record, was a designation made in accordance with statutory criteria, and I found no evidence of racial or ethnic bias or animus in the testimony of . . . the town
8

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 9 of 28 PageID: 5074
Overriding all these points with specific reference to plaintiffs’ FHA claim, however, is that in order to prove their claim, none of the discovery plaintiffs claim they lack would save their allegations, as plaintiffs must present their own proof of disparate impact and a more-viable alternative. Stated several times before, Section 3604(a) of the Fair Housing Act makes it unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a) (emphasis added). The FHA can be violated by either intentional discrimination or if a practice has a disparate impact on a protected class. Community Services, Inc. v. Wind Gap Mun. Authority, 421 F.3d 170, 176 (3d Cir. 2005).
Plaintiffs here contend that the Gardens redevelopment plan has a disparate impact on the minorities living in the Gardens. In order to prove their claim, plaintiffs must first establish a prima facie case of disparate impact. Resident Advisory Board v. Rizzo, 564 F.2d 126, 148 (3d Cir. 1977). To show disparate impact, plaintiffs must show that the Township’s actions have had
planner. (August 30, 2005 Opinion, L-3027-03, at 6-7, Def. Ex. A, Docket No. 84-3.)
9

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 10 of 28 PageID: 5075
a greater adverse impact on the protected groups (here, AfricanAmericans and Hispanics) than on others. Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Tp. of Scotch Plains, 284 F.3d 442, 466-67 (3d Cir. 2002).
If a plaintiff establishes his prima facie case, the burden shifts to the defendant to demonstrate justification. The “justification must serve, in theory and practice, a legitimate, bona fide interest of the Title VIII defendant, and the defendant must show that no other alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.” Rizzo, 564 F.2d at 149. Finally, “[i]f the defendant does introduce evidence that no such alternative course of action can be adopted, the burden will once again shift to the Plaintiff to demonstrate that other practices are available.” Id. at 149 n.37. “If the Title VIII prima facie case is not rebutted, a violation is proved.” Id. at 149.
Thus, it is plaintiffs’ burden to show disparate impact, and if they do, it is their burden to rebut the Township’s position6 and demonstrate a more-viable alternative course of action. Plaintiffs have done neither.
To support disparate impact, plaintiffs argue that the
6 In the October 23, 2009 Opinion, the Court found that the Township had already met its burden based on the record before the Court at that time. As explained more fully herein, plaintiffs’ supplemental briefing does not demonstrate a material issue of fact regarding the Township’s legitimate interest and alternative choices.
10

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 11 of 28 PageID: 5076
redevelopment more negatively affects minorities in Mt. Holly
than non-minority residents because the redevelopment is driving
out the minority population of Mt. Holly. Plaintiffs also argue
that the redevelopment plan has a disparate impact on minorities
because the plan is targeted at an area that is populated by
mostly minorities. To support their position, plaintiffs had
previously presented a report of a demographic and statistical
expert, Andrew A. Beveridge, Ph.D. Dr. Beveridge opined that the
redevelopment of the Gardens effectively and significantly
reduces the minority population in Mt. Holly.
The Court had rejected that proof. The Court explained,
Even though plaintiffs have pointed out that the redevelopment of the Gardens has reduced the minority population of Mt. Holly, they have not accounted for how many minorities will move into the new housing. Furthermore, and more importantly for the plaintiffs’ FHA claim of disparate impact, the redevelopment plan does not apply differently to minorities than nonminorities. Several plaintiffs classify themselves as “white,” yet the plan affects them in the exact same way as their minority neighbors. The real effect of the Gardens redevelopment is that there will be less lower-income housing in Mt. Holly. Although the Township may have some obligation with regard to providing a certain number of low-income housing pursuant to other law, the reduction of low-income housing is not a violation of the FHA. The FHA prohibits the Township from making unavailable a dwelling to any person because of race--it does not speak to income. Redevelopment of blighted, low-income housing is not, without more, a violation of the FHA. Here, where fourteen homes are occupied by AfricanAmerican plaintiffs, thirteen homes are occupied by Hispanic plaintiffs, and six homes are occupied by “white” plaintiffs, and all are affected in the same way by the redevelopment, the Court cannot find, on the current record at this preliminary injunction stage,
11

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 12 of 28 PageID: 5077
that plaintiffs will succeed on their disparate impact FHA claim.
(Feb. 13, 2009 Op. at 7-8.) In their opposition to the converted motions, plaintiffs
present the same statistics, and further argue that there is disparate impact on minorities because the displaced plaintiffs will not be able to afford the new $200,000+ homes, or the $1,300 to rent these same properties.7 As explained before, however, if none of the plaintiffs can afford the new homes, it is not just the African-American and Hispanic plaintiffs who are impacted by the increased housing prices--it is all Gardens residents, including the Caucasian residents.8 Additionally, as also explained before, plaintiffs have not demonstrated that the Township is preventing minorities from purchasing or moving into the new homes, or otherwise limiting the new residents to nonminorities. Plaintiffs have not provided any proof or statistics to suggest that the new homes created by the redevelopment will be financially out-of-reach for all or most minorities.9
7 Although 464 units will be market rate, 56 will be deedrestricted affordable housing units.
8 Relatedly, plaintiffs argue that because a greater percentage of minority Township residents have been affected by the redevelopment they have demonstrated a disparate impact. Even if this statistic was sufficient to establish a prima facie case, plaintiffs’ FHA claim fails for reasons other than the disparate impact analysis.
9Plaintiffs present statistics that only 21% of AfricanAmerican and Hispanic households in Burlington County would be
12

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 13 of 28 PageID: 5078
Furthermore, under plaintiffs’ logic, any action by the
Township to do anything with regard to the Gardens would result
in a disparate impact, simply because of the racial composition
of the Gardens. The FHA (or any other civil rights law) does not
contemplate that a town will never be permitted to ameliorate a
blighted area inhabited mainly by minorities simply because it
will affect minorities. See, e.g., City of Memphis v. Greene,
451 U.S. 100, 128 (1981) (“Because urban neighborhoods are so
frequently characterized by a common ethnic or racial heritage, a
regulation's adverse impact on a particular neighborhood will
often have a disparate effect on an identifiable ethnic or racial
group. To regard an inevitable consequence of that kind as a
form of stigma so severe as to violate the Thirteenth Amendment
able to afford the new houses, because that percentage of African-American and Hispanic population earns above 80% of the median income ($44,580). (Bev. Cert., Ex. B-2, Docket No. 1064.) This is in contrast to 79% of white Burlington County residents who earn above 80% of the median income. (Id.) These statistics hold little validity to show a disparate impact on the Township’s minority population for several reasons: (1) they take into account the entire population of Burlington County, rather than only Mt. Holly Township, and the towns in Burlington County are of various economic and racial compositions; (2) they do not account for minorities who will move into Mt. Holly Township from outside Burlington County; (3) they do not account for the deed restricted units that will be more affordable; (4) they do not account for a non-minority purchaser who rents to a minority; (5) they do not account for the minorities who will move elsewhere within Mt. Holly Township; and (6) more recent population survey data (from 2008, compared to the 2000 Census data used by plaintiffs’ expert) shows 16,744 African-American and Hispanic households in Burlington County have incomes exceeding $45,000, evidence of the minority population’s ability to occupy all 464 market rate homes.
13

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 14 of 28 PageID: 5079
would trivialize the great purpose of that charter of freedom.”). Finally, it is important to point out that none of the
plaintiffs has been forced out of their homes by the Township without the offer of relocation services. The FHA makes it unlawful to otherwise make unavailable or deny a dwelling to any person because of race. The Township has advised the residents not to move until directed by the Township so that they will be eligible for relocation assistance. All plaintiffs, save for one who was told to leave by her landlord, are still residing in the Gardens. Thus, on this basis alone, plaintiffs’ FHA claim fails.
But even if plaintiffs were able to establish their prima facie case, they have not rebutted the Township’s legitimate interest in the redevelopment, and they have not shown how an alternative course of action would have a lesser impact. Plaintiffs cannot refute that redevelopment of the community to remove blight conditions is a bona fide interest of the state, as explained previously by this Court and by the New Jersey Appellate Division. (See Feb. 13, 2009 Op. at 9, citing Wilson v. City of Long Branch, 142 A.2d 837, 842 (N.J. 1958) (“Community redevelopment is a modern facet of municipal government. Soundly planned redevelopment can make the difference between continued stagnation and decline and a resurgence of healthy growth. It provides the means of removing the decadent effect of slums and blight on neighboring property values, of opening up new areas
14

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 15 of 28 PageID: 5080
for residence and industry.”); Citizens In Action v. Township Of Mt. Holly, 2007 WL 1930457, *13 (N.J. Super. Ct. App. Div. July 5, 2007) (finding that “[t]he dilapidated, overcrowded, poorly designed community [the Gardens], in addition to the high level of crime in the area, is clearly detrimental to the safety, health, morals and welfare of the community”).) It is clear that the Township has a legitimate interest in the redevelopment of the Gardens.
With regard to alternatives, plaintiffs have not identified disputed issues of fact concerning whether the Township failed to show “that no alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.” Rizzo, 564 F.2d at 149. The adequacy of the redevelopment plan, as opposed the rehabilitation plan advocated by Plaintiffs, was extensively analyzed in New Jersey state court. See Citizens In Action v. Township Of Mt. Holly, 2007 WL 1930457, 14 (N.J. Super. Ct. App. Div. 2007) (finding that “the redevelopment designation is based on a record that provides substantial evidence in support of the determination”).10
10Even though that analysis was performed in the context of plaintiffs’ claims under New Jersey's Local Housing and Redevelopment Law, N.J.S.A. 40A:12A-1 to -73 (LHRL), the issue of the sufficiency of the 2005 redevelopment plan was extensively litigated. Thus, collateral estoppel principles may also apply. See In re Graham, 973 F.2d 1089, 1097 (3d Cir. 1992) (citations omitted) (explaining that issue preclusion applies when “(1) the issue sought to be precluded is the same as that involved in the prior action; (2) that issue was actually litigated; (3) it was determined by a final and valid judgment; and (4) the
15

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 16 of 28 PageID: 5081
Plaintiffs have not presented any plan more viable than the one
implemented by the Township.11 They advocate rehabilitation, but
have proposed a plan, as pointed out by defendants, that relies
upon governmental subsidies and upon costs based on property
conditions in 1989. It also does not take into account
rehabilitation costs to rehab owner-occupied homes, which is an
additional $2.5 million, and it does not account for temporary
determination was essential to the prior judgment”). The Court, however, refrains from considering this issue because plaintiffs’ FHA claim, which also concerns the 2008 revised redevelopment plan, was not litigated in state court.
11 The Township has shown that several organizations have attempted to rehabilitate the Gardens in the last 15 or so years. These small scale efforts were ineffective in curing the overall blight of the community, which was a frustrating result for the organizations, the Township, and the residents. (See Sept. 8, 2003 Town Council meeting transcript at 25-26, 31-32, Def. Ex. B.). Plaintiffs argue that it is not their burden to prove a better alternative. Although it is true that the Township must show the other alternatives they considered and rejected, and that the alternative course of action could not “be adopted that would enable that interest to be served with less discriminatory impact,” once that showing is made, the ultimate burden “once again shift[s] to the Plaintiff to demonstrate that other practices are available.” Rizzo, 564 F.2d at 149. Thus, plaintiffs in this case have the obligation to show what alternatives would have better served the community. Of course, this analysis was intended to be performed after a finding of disparate impact, which causes this “alternative course of action” analysis to make more sense in that context--that is, if disparate impact is shown, the Township has the burden of showing it had no choice but to proceed in its chosen path despite the disparate impact. Here, where no disparate impact has been shown, this analysis devolves into plaintiffs’ personal disagreement with the plan, and an argument as to what they believe to be the best course of action. The fact that the Township did not follow a plan sanctioned by the plaintiffs is not the standard for a FHA claim.
16

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 17 of 28 PageID: 5082
relocation costs.12 Simply because the properties could have
been rehabilitated does not mean that rehabilitation was the
feasible option.13
12 Plaintiffs’ residential planning expert, Gary Smith, AIA, AICP, relates in his updated certification that the Township is violating several building codes in its demolition process. The legality of how the Township is currently proceeding under its redevelopment plan is not before the Court. Mr. Smith also opines that the redevelopment plan should be halted, and redirected to save the existing housing stock for rehabilitation. As the Court commented before, however, “[e]ffectively, plaintiffs are seeking to remain living in the blighted and unsafe conditions until they are awarded money damages for their claims and sufficient compensation to secure housing in the local housing market. Although couched at times like an effort to have the development go up around them, like a highway built around a protected tree, or to have their units rehabilitated, this makes little if no practical sense after years of litigation, approved redevelopment plans, and the expenditure of significant public resources. At this late stage, the only real practical remedy is for plaintiffs to receive the fair value for their home as well as proper and non-discriminatory relocation procedures and benefits. . . . The relief they are seeking is inconsistent with proving the fourth element of their FHA claim--namely, that an alternative course of action to eminent domain and relocation is viable.” (Feb. 9, 2009 Op. at 10-11.)
13 The state appellate court commented,
Photographic evidence reveals areas within the Gardens that are dilapidated. Additionally, there was testimony that there was overcrowding and excessive land coverage because of the way the units were arranged in blocks in fee simple ownership. Accordingly, a dilapidated home on one lot had a serious effect on homes on either side of it. Excessive land coverage was also evident where a majority of the rear yards were paved or covered with gravel to accommodate additional parking spaces. Finally, the alleyways created a faulty arrangement or design for the Gardens because it increased the amount of crime in the area. The dilapidated, overcrowded, poorly designed
17

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 18 of 28 PageID: 5083
In short, Plaintiffs have failed to show an impermissible
disparate impact. Even if they have made such a showing, they
have failed to offer sufficient evidence to rebut the Township’s
legitimate governmental purpose or demonstrate illegitimate
discriminatory intent. Therefore, plaintiffs have not
demonstrated that material disputed facts exist as to their FHA
claim. Accordingly, summary judgment must be entered in favor of
defendants on this claim.14
2. Counts Two, Three, Five - Civil Rights Act and State and Federal Equal Protection Clause
Plaintiffs claim that the Township violated the Civil Rights
Act of 1866, 42 U.S.C. § 1982, the Equal Protection Clause of the
U.S. Constitution, brought pursuant to 42 U.S.C. § 1983, and the
Equal Protection Clause of the New Jersey State Constitution. In
community, in addition to the high level of crime in the area, is clearly detrimental to the safety, health, morals and welfare of the community.
Citizens In Action v. Township of Mt. Holly, 2007 WL 1930457, *13 (N.J. Super. Ct. App. Div. 2007).
14 Plaintiffs’ FHA claim was lodged against all defendants, including the construction company selected to undertake the redevelopment, Keating Urban Partners, LLC, and the company hired by Keating to conduct the relocation activities, Triad Associates, Inc. In their previous motion to dismiss, Triad argued, and Keating joined in that argument, that it cannot be held liable under the FHA because it had no part in the drafting and adoption of the Township’s redevelopment plan, and its actions with regard to the relocation activities do not fall within the province of the FHA-protected conduct. Because the Court has found no FHA violation, Triad’s argument will not be considered.
18

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 19 of 28 PageID: 5084
order to prove such claims, plaintiffs must show that they were the target of intentional, purposeful discrimination by the Township. City of Cuyahoga Falls, Ohio v. Buckeye Community Hope Foundation, 538 U.S. 188, 194 (2003) (citation omitted) (“‘Proof of racially discriminatory intent or purpose is required’ to show a violation of the Equal Protection Clause.”); Bradley v. U.S., 299 F.3d 197, 205 (3d Cir. 2002) (stating that in order to establish a claim under the Equal Protection Clause, a plaintiff needs to prove that the actions (1) had a discriminatory effect and (2) were motivated by a discriminatory purpose); Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001) (citations and quotations omitted) (“In order to bring an action under § 1982, a plaintiff must allege with specificity facts sufficient to show or raise a plausible inference of (1) the defendant's racial animus; (2) intentional discrimination; and (3) that the defendant deprived plaintiff of his rights because of race.”); Greenberg v. Kimmelman, 494 A.2d 294, 308 (N.J. 1985) (stating that if a law is facially neutral, “an equal protection claim could succeed only if the statute had an invidious purpose”).
Plaintiffs claim that through the redevelopment plan the Township is intentionally seeking to deprive plaintiffs and other African-Americans and Hispanics of the right to property and equal protection under the law. In the Court’s prior Opinion denying plaintiffs’ request for preliminary injunction, the Court
19

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 20 of 28 PageID: 5085
found that plaintiffs did not demonstrate that the Township “implemented the development plan to intentionally or effectively drive out the minority population of Mt. Holly.” (Feb. 9, 2009 Op. at 7.) Thus, as with their FHA claim, the Township’s motion to dismiss these claims was converted to one for summary judgment, and the Court afforded plaintiffs the opportunity to provide other proof to support their claims of intentional discrimination.
In their response, plaintiffs have failed to provide such proof. As discussed above, plaintiffs first argue that summary judgment is premature, because their ability to prove these intentional discrimination claims is thwarted by the lack of discovery--namely, the depositions of Township officials. As also discussed above, however, even if such depositions were permitted, the Court doubts that any Township official will testify to his or her “discriminatory purpose” in approving the redevelopment plan. See, e.g., Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1064-65 (4th Cir. 1982) (in an FHA case, stating, “Municipal officials acting in their official capacities seldom, if ever, announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a racial minority. Even individuals acting from invidious motivations realize the unattractiveness of their prejudices when faced with their perpetuation in the public
20

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 21 of 28 PageID: 5086
record. It is only in private conversation, with individuals
assumed to share their bigotry, that open statements of
discrimination are made, so it is rare that these statements can
be captured for purposes of proving racial discrimination in a
case such as this.”).
With regard to other methods for proving discriminatory
intent, plaintiffs have had years to gather such proof, including
obtaining affidavits from Gardens residents or other people who
have been involved in the Gardens redevelopment process.
Instead, plaintiffs’ brief details the Township’s alleged
discriminatory actions, but none of the claims are supported by
any documentary or other evidence.15 Rather, plaintiffs tell a
15 Several affidavits by plaintiffs were submitted in support of their motion for preliminary injunction. In their brief, plaintiffs specifically refer to one of them by Santos Cruz to support the claim that the Township’s redevelopment activities lowered the property values of the remaining homes, and the Township took advantage of that situation by pressuring residents to sell their homes at deflated prices that did not represent fair market value. (Pl. Opp. at 31.) This conclusion is based on Mr. Cruz’s “belief.” (Cruz Cert., Docket No. 17-9 (“I believe the houses are worth much more than the Township is offering.”) The other affidavits by plaintiffs in the record contain similar statements as to their “beliefs” and “feelings.” See Ancho Cert., Docket No. 17-7, ¶ 18, “I believe that my home is worth much more than that [$39,000 to $42,000 offered to others] because we invested a great amount of money to make it comfortable for our retirement”); Simons Cert., Docket No. 17-10, ¶ 14, “I believe my house is worth a great deal more than what the Township is offering me,” because it has three bedrooms, a large lot, and it has undergone “costly upgrades.”) These affidavits are insufficient to defeat a summary judgment motion. Celotex, 477 U.S. at 332 (“[C]onclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment. Instead, the affiant must set forth specific facts that reveal a genuine issue of material fact.”).
21

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 22 of 28 PageID: 5087
story, long on accusations and suppositions but short on proof,
of the Township’s ten-year, insidious desire to displace the
minority population of Mt. Holly. If there were merit to these
claims, plaintiffs would be able to annotate their allegations
with factual evidence that would infer such discriminatory
motive.16 They have not done so. See Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,
266-67 (1977) (explaining that the determination as to “whether
invidious discriminatory purpose was a motivating factor demands
a sensitive inquiry into such circumstantial and direct evidence
of intent as may be available,” and identifying objective factors
that may be probative of racially discriminatory intent: (1) the
racial impact of an official action; (2) the historical
Incidentally, these affidavits relate the plaintiffs’ extensive participation in numerous meetings with the Township and the builders over the years.
16 For example, plaintiffs state that “the Township failed to provide adequate compensation and relocation assistance to enable residents to purchase a replacement house in the Township or surrounding region.” (Pl. Opp. at 38.) In the Court’s prior Opinion, however, the Court noted, “The evidence on the record shows that other Garden residents whose homes have been acquired by the Township and have been relocated are pleased with both their compensation and place of relocation. In fact, the evidence demonstrates that many residents now have significantly improved living conditions and are in better circumstances financially. Additionally, the defendants represent, and plaintiffs do not dispute, that none of the people who have been relocated and wanted to remain in Mt. Holly were unable to.” (Feb. 9, 2009 Op. at 12 n.5.) Moreover, it is an undisputed fact that New Jersey statute only requires the Township to pay $4,000 in relocation benefits to tenants, and $15,000 in relocation benefits to homeowners, but the Township has paid $7,500 to tenants and $35,000 to homeowners. (See Def. Statement of Facts, ¶ 23, at 31.)
22

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 23 of 28 PageID: 5088
background of the decision; (3) the sequence of events leading up to the challenged decision, including departures from normal procedures and usual substantive norms; and (4) the legislative or administrative history of the decision).
In contrast, the Township provides transcripts of town council and planning board meetings, where concerned citizens and council members discussed the plans for the Gardens. The Township has also provided letters and affidavits from former Gardens residents, as well as certifications from individuals involved with the redevelopment plan implementation and relocation process. These documents range in date from 2002 through early 2010. The documents show that from the very beginning, the planning board was aware of the sensitive issues that would arise as they undertook the process, the desire to have direct communication with Gardens’ residents, and the Township’s consideration of the residents’ concerns. (See, e.g., Sept. 8, 2003 Town Council meeting transcript at 36-44, Def Ex. B.) Although many viewpoints were expressed by the Gardens’ residents and community activists, with some being supportive and hopeful, while other disenfranchised residents speaking emphatically and eloquently on their negative opinion on the redevelopment plan, their input was welcomed and encouraged.17
17 Plaintiffs refer to the Township’s “secret,” off-therecord meetings among Township officials and the redevelopers where decisions were made without input from the community, and where they presume the true discriminatory intent of the Township
23

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 24 of 28 PageID: 5089
Furthermore, nowhere in plaintiffs’ recitation of the
Township’s motives do plaintiffs specifically acknowledge the
extensive deterioration, crime, and overall unsafe living
conditions the Township was endeavoring to cure. Although
plaintiffs feel that the Township simply wishes to remove all
minorities from the town, evidence in the record supports an
opposing viewpoint--that but-for the significant concern for the
Gardens’ resident’s welfare, and the desire to make the Township
as a whole a safe and pleasant town for all of its citizens,
minority and non-minority, the Township would have never
undertaken the long-overdue project, particularly considering the
challenges that the redevelopment would, and did, inspire.18
Additionally, as noted above and previously, evidence in the
record shows that many relocated residents have been pleased with
was revealed. Although “New Jersey has a strong, expressed public policy in favor of open government, as evidenced by our Open Public Meetings Act, N.J.S.A. 10:4-6 to -21,” Times of Trenton Pub. Corp. v. Lafayette Yard Community Development Corp., 874 A.2d 1064, 1070 (N.J. 2005) (citation omitted), the OPMA sets forth specific instances where closed-door sessions are appropriate, see N.J.S.A. 10:4-12, -13. It is unclear whether these alleged “secret” meetings met the requirements of New Jersey’s OPMA. The Township’s compliance with OPMA is not before the Court, however, and plaintiffs’ allegations concerning these meetings as evidence of discriminatory intent are speculative, and, therefore, of insufficient weight to defeat summary judgment.
18 It seems that plaintiffs could not dispute the ironic observation that if the Township had allowed the Gardens to continue to deteriorate as it had over the years, that it might then be fairly characterized as having a discriminatory intent toward its minority, low-income residents.
24

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 25 of 28 PageID: 5090
the process, and are now in a much better place as a result. It also cannot be forgotten that the redevelopment plan has
gone through three machinations, from the Gardens Area Redevelopment Plan (“GARP”) in 2003, to the West Rancocas Redevelopment Plan (“WRRP”) in 2005, and then to the Revised West Rancocas Redevelopment Plan in September 2008. For each of these plans, the Township Council and the builder heard extensive public comment, testimony, and written objections (as intricately detailed in plaintiffs’ complaint), and even though the 2005 WRRP was approved by the New Jersey Department of Community Affairs and affirmed by the New Jersey state trial and appellate courts, the Township and redevelopers conducted a reevaluation of the plan which resulted in the 2008 Revised WRRP. Despite plaintiffs’ claims that all the plans were adopted without meaningful consideration of the residents’ objections, it seems specious to believe that the Township extensively reevaluated and revised its plans while entertaining numerous opportunities for public comment and objection simply as a ruse to mask its ultimate purpose of “ridding” Mt. Holly of its minority population.
The Court acknowledges that for every governmental action, people will object, for personal reasons, or as a champion for those who cannot speak out for themselves. The Court also acknowledges that governing officials are often not the most
25

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 26 of 28 PageID: 5091
efficient or pragmatic in their decision-making process. When people’s homes are at stake, and when issues concerning race and economic status are involved, the emotions of everyone are amplified. This is evidenced not only by the 10-year litigation concerning the Gardens’ redevelopment, but by the voices of the residents who have expressed the extremes of satisfaction and displeasure with the plan. In addition to the people who feel benefitted by the Township, it is undisputable that people have felt unjustifiably wronged by the Township, which has had to make some hard decisions along the way.
The Court, however, must view the case under the legal framework that constrains this Court’s consideration of these issues, rather than under the emotional contours of the situation. At this summary judgment stage in the context of what proof has been provided, and in deciding what material issues of fact need to be resolved, the weight of the record evidence demonstrates that no reasonable juror could find that the Township acted with intentional discrimination in the development and implementation of the Gardens’ redevelopment plan. Moreover, no additional discovery appears calculated or even remotely likely to provide the missing proofs. Consequently, summary judgment must be entered in favor of the Township on plaintiffs’ intentional discrimination claims.
26

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 27 of 28 PageID: 5092
3. Punitive damage claims Plaintiffs are also seeking punitive damages for all of their claims. The Township had moved to dismiss plaintiffs’ request for punitive damages, arguing that under various legal principles, punitive damages cannot be imposed against a municipality. In the Court’s previous Opinion, all of plaintiffs’ punitive damages requests were dismissed, except for those relating to plaintiffs’ FHA and Civil Rights Act claims (Counts One and Two). The Court reserved decision on these two claims pending consideration of the converted motions. Even though “punitive damages can be awarded in a civil rights case where a jury finds a constitutional violation, even when the jury has not awarded compensatory or nominal damages,” Alexander v. Riga, 208 F.3d 419, 430 (3d Cir. 2000) (citing Curtis v. Loether, 415 U.S. 189 (1974)) (both discussing FHA claims), a finding of a violation is a mandatory prerequisite to any possibility of punitive damages. Because the Court has not found defendants to be liable for plaintiffs’ FHA and civil rights claims, plaintiffs’ punitive damages claims fail as well.19
19For punitive damages, plaintiffs would also need to prove that defendants’ “‘conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.’” Alexander v. Riga, 208 F.3d 419, 430 (3d Cir. 2000) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Plaintiffs cannot make this showing.
27

Case 1:08-cv-02584-NLH-JS Document 114 Filed 01/03/11 Page 28 of 28 PageID: 5093
CONCLUSION For the reasons expressed above, defendants’ converted motions for summary judgment shall be granted on the four remaining claims in plaintiffs’ complaint. An appropriate Order will be entered.

Date: January 3, 2011 At Camden, New Jersey

s/ Noel L. Hillman NOEL L. HILLMAN, U.S.D.J.

28

 
 Case: 11-1159 Document: 003110545952 Page: 1 Date Filed: 05/27/2011

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 11-1159
MT. HOLLY GARDENS CITIZENS IN ACTION, INC., a New Jersey non-profit corporation, ANA AROCHO, VIVIAN BROOKS, GEORGE CHAMBERS, DOROTHY CHAMBERS,
SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, DOLORES NIXON, LEONARDO PAGAN, JAMES POTTER, HENRY SIMONS,
JOYCE STARLING, ROBERT TIGAR, TAISHA TIRADO, RADAMES TORRES BURGOS, LILLIAN TORRES-MORENO, DAGMAR VICENTE, ALANDIA WARTHEN, SHEILA WARTHEN, CHARLIE MAE WILSON and LEONA WRIGHT,
APPELLANTS,
vs.
TOWNSHIP OF MOUNT HOLLY, a municipal corporation of the State of New Jersey, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, as governing body of the Township of Mount Holly, KATHLEEN HOFFMAN, as Township Manager of the Township of Mount Holly, JULES THIESSEN, as Mayor of the Township of Mount Holly, KEATING
URBAN PARTNERS, L.L.C., a company doing business in New Jersey, TRIAD ASSOCIATES, INC., a corporation doing business in New Jersey,
APPELLEES.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Case No. 08-cv-02584 (NLH)

BRIEF ON BEHALF OF APPELANTS

SOUTH JERSEY LEGAL SERVICES, INC. Douglas E. Gershuny, Ex. Dir. 745 Market Street Camden, NJ 08102 (856)964-2010, Ext. 6232 By: Olga D. Pomar, Esq. Attorneys for Appellants

AARP FOUNDATION LITIGATION 601 E Street, NW Washington, DC 20049 (202) 434-2159 By: Susan Ann Silverstein, Esq. Attorneys for Appellants

POTTER & DICKSON 194 Nassau Street Princeton, NJ 08542 (609) 921-9555 By: R. William Potter, Esq. Attorneys for Appellants

On the Brief:

Olga D. Pomar, Esq. Kenneth M. Goldman, Esq. Douglas E. Gershuny, Esq. Susan Ann Silverstein, Esq.

Case: 11-1159 Document: 003110545952 Page: 2 Date Filed: 05/27/2011

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................................................................... iv

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION ...................................................................1

STATEMENT OF ISSUES ...................................................................................1

STATEMENT OF THE CASE..............................................................................2

STATEMENT OF FACTS ....................................................................................6

STATEMENT OF RELATED CASES AND PROCEEDINGS ........................13

STATEMENT OF STANDARD FOR REVIEW ...............................................13

SUMMARY OF ARGUMENT ...........................................................................14

ARGUMENT .......................................................................................................16

I. THE THIRD CIRCUIT SHOULD REVERSE THE DISTRICT COURT’S SUMMARY JUDGMENT DECISION DISMISSING RESIDENTS’ TITLE VIII DISPARATE IMPACT HOUSING DISCRIMINATION CLAIMS ....................................................................16

A. The District Court Misapplied Well-Settled Third Circuit Disparate Impact Precedent Established Under Rizzo By Erroneously Conflating “Disparate Treatment” With “Disparate Impact” Under Title VIII ..................................................18

B. The District Court Erroneously Reasoned That Governmental Action Disproportionately Displacing Minorities By Eliminating Lower Income Housing Is Not Actionable Under Title VIII .............................................................................................20

C. The District Court Improperly Disregarded Resident’s Expert’s Comprehensive Analysis And Opinion Establishing Residents’ Title VIII Prima Facie Case That The Township’s
i

Case: 11-1159 Document: 003110545952 Page: 3 Date Filed: 05/27/2011
Redevelopment Plan Is Having A “Severe” Disparate Impact On African-American And Hispanic Residents Of The Gardens Neighborhood, Mount Holly Township And Burlington County...............................................................................22
D. The District Court Improperly Ignored Genuinely Disputed Issues Of Material Fact That, Under Rizzo, The Township Could Have Taken And Still Can Take Less Destructive Redevelopment Alternatives Having Less Discriminatory Impact..................................................................................................30
II. THE DISTRICT COURT ERRED IN GRANTING THE TOWNSHIP SUMMARY JUDGMENT DISMISSING RESIDENTS’ CLAIMS BECAUSE THERE ARE DISPUTED MATERIAL FACTS THAT THE TOWNSHIP HAS INTENTIONALLY DISCRMINATED AGAINST AFRICANAMERICAN AND HISPANIC HOUSEHOLDS .....................................38
A. The Residents Have Presented Circumstantial Evidence Meeting The Arlington Heights Factors Creating Genuine Factual Disputes That The Township Acted With Discriminatory Intent In Carrying Out Its Redevelopment Of The Gardens Sufficient To Preclude Summary Judgment ................38
1. Compelling adverse disparate impact upon AfricanAmerican and Hispanic residents .............................................41
2. Historical background of the Gardens redevelopment project .......................................................................................41
3. Sequence of events leading to the Township’s decision to demolish the Gardens ...........................................................43
4. Township’s disregard of procedural norms under state redevelopment law ....................................................................44
5. Township’s departure from substantive planning norms .........47
ii

Case: 11-1159 Document: 003110545952 Page: 4 Date Filed: 05/27/2011
B. Evidence Of The Foreseeable Results Of The Township’s Actions Support A Finding Of Intent And Creates A Sufficient Material Factual Dispute To Render Summary Judgment Inappropriate .....................................................................50
C. The District Court Misapplied Summary Judgment Standards by Ignoring Material Facts In Dispute, Impermissibly Weighing The Evidence, And Erroneously Drawing Inferences In Favor Of The Township As Moving Party Rather Than In Favor of Residents ....................................................51
III. THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT WITHOUT ALLOWING APPELLANTS REASONABLE OPPORTUNITY FOR DISCOVERY ...........................56
CONCLUSION ....................................................................................................57 COMBINED REQUIRED F.R.A.P. & 3RD CIR. L.A.R CERTIFICATIONS......................................................................A CERTIFICATION OF SERVICE............................................................................. B
iii

Case: 11-1159 Document: 003110545952 Page: 5 Date Filed: 05/27/2011
TABLE OF AUTHORITIES
Federal Cases Ammons v. Dade County, 783 F.2d 982 (11th Cir. 1986) ......................................50 Bradley v. United States, 299 F.2d 197 (3d. Cir 2002) ..........................................56 Celotex Corporation v. Catrett, 477 U.S. 317 (1986)..............................................56 Chambers v. Philadelphia Board of Education,
587 F.3d 176 (3d Cir. 2009) .................................................................... 14, 27, 34 Charleston Housing Authority v. U.S. Dept. of Agriculture,
419 F.3d 729 (8th Cir. 2005) ................................................................................19 City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995) ...............................17 Columbus Board of Education v. Penick, 443 U.S. 449 (1979)..............................50 Committee Concerning Community Improvement v.
City of Modesto, 583 F.3d 690 (9th Cir. 2009)....................................................41 Community Services, Inc. v. Wind Gap Municipal Authority,
421 F.3d 170 (3d Cir. 2005) .................................................................... 39, 40, 41 Dews v. Town of Sunnyvale, 109 F. Supp. 2d 526 (N.D. Tex. 2000) ....................21 Doeblers' Pennsylvania Hybrids, Inc. v. Doebler, III,
442 F.3d 812 (3d Cir. 2006) ......................................................................... 14, 28 Dowdell v. City of Apopka, 698 F.2d 1181 (11th Cir. 1983) .................................50 General Ceramics Inc. v. Firemen's Fund Ins. Companies,
66 F.3d 647 (3rd Cir. 1995)..................................................................................14 Greater New Orleans Fair Housing Action Center v. St. Bernard Parish,
641 F.Supp.2d 563 (E.D. La. 2009) .....................................................................39
iv

Case: 11-1159 Document: 003110545952 Page: 6 Date Filed: 05/27/2011
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)..........................................16
Hispanics United v. Addison, 988 F. Supp. 1130 (N.D. Ill. 1997)..........................22
Hovsons, Inc. v. Brick Township, 89 F. 3d 1096 (3d Cir. 1996) ............................17
Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir. 1988), aff'd in part, 488 U.S. 15 (1988)............... 19, 21, 22
Kelo v. City of New London, 545 U.S. 469 (2005).................................................40
Kos Pharmaceuticals v. Andrx Corporation, 369 F.3d 700 (3d Cir 2004) ..............53
Lakeside Resorts Enterprises, L.P. v. Board of Supervisors of Palmyra Township, 455 F.3d 154 (3d Cir. 2006) ............................................17
Lapid-Laurel, L.L.C v. Zoning Board of Scotch Plains, 284 F.3d 442 (3d Cir. 2002) .......................................................................... 18, 19
Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977) ....................................................................... 20, 21
Olson v. General Elec. Astrospace, 101 F.3d 947 (3d Cir.1996) ............................14
Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) .............................................................................................50
Pryor v. National Collegiate Athletic Association, 288 F.3d 548 (3d Cir. 2002) .................................................................................41
Reno v. Bossier Parish School Bd., 520 U.S. 471 (1997) .......................................41
Resident Advisory Board v. Rizzo, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908 (1978).............................. 15, 17, 18, 19, 20, 30, 37- 41
Rivera v. Incorporated Village of Farmingdale, ___ F.Supp.2d ___, 2011 WL 1260209 (E.D.N.Y. March 30, 2011)...................................................22
Rivera v. Incorporated Village of Farmingdale, 571 F.Supp.2d 359 (E.D.N.Y. 2008)....................................................................21 v

Case: 11-1159 Document: 003110545952 Page: 7 Date Filed: 05/27/2011
Sherman Ave. Tenants'Ass'n v. District of Columbia, 444 F.3d 673 (D.C. Cir. 2006)..............................................................................41
Smith v. Town of Clarkton, 682 F.2d 1055 (4th Cir 1982) .....................................39 Stewart v. Rutgers University, 120 F.3d 426 (3d Cir. 1997)...................................14 United States v. Weber Aircraft Corp., 465 U.S. 792 (1984)..................................57 Village of Arlington Heights v. Metropolitan Housing
Development Corporation, 429 U.S. 252 (1977) ............................... 15, 19, 39-41 State Cases
Gallenthin Realty Development, Inc. v. Borough of Paulsboro, 91 N.J. 344, 924 A.2d 447 (2007) ................................................................. 45, 47
Jersey City Red. Agency v. Kugler, 58 N.J. 374, 277 A.2d 833 (1971) .................52 Village of South Orange v. Alden Corp., 71 N.J. 362, 365 A.2d 469 (1976) .........52
Federal Statutes 28 U.S.C. § 1331........................................................................................................1 28 U.S.C. § 1343(a)(4)...............................................................................................1 42 U.S.C. § 3601 ........................................................................................... 1, 16, 38 42 U.S.C. § 3604(a) .................................................................................................16 42 U.S.C. § 3613........................................................................................................1 42 U.S.C. §1982 .................................................................................................. 4, 38 42 U.S.C. §1983 .....................................................................................................1, 4
State States and Regulations
vi

Case: 11-1159 Document: 003110545952 Page: 8 Date Filed: 05/27/2011
N.J.S.A. 40A:12:A-6(b) ...........................................................................................45 N.J.S.A. 40A:12:A-7(a) ...........................................................................................45 N.J.S.A. 40A:12A-6.................................................................................................55 N.J.S.A. 40A:12A-1 ............................................................................................ 7, 45 N.J.S.A. 40A:12A-2.................................................................................................47 N.J.S.A. 40A:12A-6(a) ............................................................................................45 N.J.A.C. 5:11-2.1(a).................................................................................................46
Constitutional Provisions 14th Amendment to The United States Constitution ..................................... 4, 15, 38
Federal Rules F.R.A.P 4....................................................................................................................1 F.R.C.P 12(d) ...........................................................................................................56 F.R.C.P 56(d) ...........................................................................................................56 F.R.C.P. 56(c) ................................................................................................... 14, 56 F.R.E. 801 ................................................................................................................53 F.R.E. 803(8)............................................................................................................54
Treatises Mindy Thompson Fullilove, Root Shock: How Tearing Up City
Neighborhoods Hurts America, and What We Can Do About It (2004) .............40
Wendell E. Pritchett, The “Public Menace” of Blight, 21 Yale L. & Pol'y Rev. 1 (2003).........................................................................40 vii

Case: 11-1159 Document: 003110545952 Page: 9 Date Filed: 05/27/2011
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION
Jurisdiction over the Plaintiffs-Appellants’ (“Residents”) claims is conferred on this court by 28 U.S.C. § 1331 (federal question jurisdiction) in that this action arises under the Constitution and laws of the United States; 28 U.S.C. § 1343(a)(4) as the Plaintiffs seek equitable and other relief under Acts of Congress providing for the protection of civil rights under, 42 U.S.C. § 3601 et seq.; 42 U.S.C. § 3613 for civil actions under 42 U.S.C. § 3601 et seq.; and 42 U.S.C. §1983, which provides redress for the deprivation, under color of state law, of rights, privileges and immunities secured to all citizens and persons within the jurisdiction of the United States by the Constitution and laws of the United States.
This appeal is taken from a final judgment of the District Court of New Jersey, entered on Jan. 3, 2011, granting summary judgment to Defendants and dismissing all of Residents’ claims. The Notice of Appeal was filed in a timely manner pursuant to F.R.A.P 4 on Jan.19, 2011.
STATEMENT OF ISSUES 1. Whether the District Court, in dismissing Residents’ Title VIII disparate impact claims on summary judgment, misapplied well settled precedent by: (a) conflating “disparate treatment” with “disparate impact”; and (b) determining that governmental action disproportionately displacing minorities by eliminating lower income housing is not actionable under Title VIII?
1

Case: 11-1159 Document: 003110545952 Page: 10 Date Filed: 05/27/2011
2. Whether the District Court erred in finding that Residents, in opposing summary judgment, had failed to establish any genuine issue of material fact regarding their prima facie case of Title VIII disparate impact where Residents had presented uncontroverted expert evidence showing that the Township’s redevelopment is having a “severe” disparate impact upon African-American and Hispanic residents?
3. Whether the District Court erred in finding that there was no genuine issue of material fact concerning redevelopment alternatives where Residents had presented expert evidence showing that the Township could have taken less destructive redevelopment alternatives having less discriminatory impact?
4. Whether the District Court erred in finding there was no genuine issue of material fact that Township officials had undertaken the Gardens redevelopment with discriminatory intent where residents had presented circumstantial evidence of discriminatory motive meeting the Arlington Heights factors?
5. Whether the District Court erred in converting a motion to dismiss to a summary judgment motion and rendering final judgment in the case even though Residents had been denied any opportunity for discovery?
STATEMENT OF THE CASE This is a civil rights action challenging Defendant-Appellee Mount Holly Township’s (“Township”) wide-scale redevelopment of the predominately
2

Case: 11-1159 Document: 003110545952 Page: 11 Date Filed: 05/27/2011
African-American and Hispanic, low and moderate income neighborhood known as Mt. Holly Gardens (“Gardens”). Plaintiffs-Appellants are an association of residents, Mt. Holly Gardens Citizens in Action, Inc., (“CIA”), and 23 current and former individual residents of the Gardens. The Township and its selected redevelopers, Defendant-Appellees Keating Urban Partners, LLC and Triad Associations, Inc. (“Keating,” “Triad,” or collectively, “Redevelopers”), are seeking to acquire and demolish all 329 homes within the Gardens redevelopment area that are affordable to current and displaced families to make way for new, much higher-priced market rate homes intended for more affluent households. If the redevelopment project proceeds as planned, the Township will succeed in irrevocably tearing down the most identifiable minority community within Mt. Holly, permanently displacing hundreds of lower income minority residents.
In prior state court litigation, in 2005 the Superior Court upheld the Township’s finding that the Gardens neighborhood met New Jersey’s state law criteria for designation as an “area in need of redevelopment.” JA 1360-70; (#1809, pp. 1-10 (5/5/05 Op.). The Trial court dismissed without prejudice the Residents’ civil rights and other substantive challenges to the redevelopment plan as not being ripe for adjudication. JA 1952-64, #84-04, pp. 1-13 (8/30/05 Op.). These rulings were affirmed on appeal. JA 1114-1132, #17-31, pp. 1-19 (App. Div. Op.); JA 1133, #17-32, p. 1 (Sup. Ct. Order).
3

Case: 11-1159 Document: 003110545952 Page: 12 Date Filed: 05/27/2011
The Residents filed their Complaint in federal District Court on May 27, 2008, alleging both disparate impact and intentional discrimination in violation of Title VIII, (First Count), the Civil Rights Act of 1866, as amended, 42 U.S.C. §1982, (Second Count), and violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution because of race, ethnicity and/or national origin, actionable pursuant to 42 U.S.C. §1983. (Third Count) JA 39-40 (Dkt.)1 Residents and CIA sought, among other things, declaratory and injunctive relief invalidating the redevelopment plan, mandating that the Township carry out redevelopment in the Gardens in a manner having the least discriminatory adverse impact upon African-American and Hispanic households, and prohibiting implementation without providing adequate affordable replacement housing for all current and displaced Gardens residents. Residents and CIA also sought damages and/or just compensation sufficient for Residents to secure permanent replacement housing in the local housing market.2
On July 18, 2008, the Residents moved for preliminary injunctive relief and the Defendants moved to dismiss the claims. JA 42 (Dkt.); JA 56-1343; JA 1349-
1 Residents also included two additional constitutional claims (Tenth and Thirteenth Counts) and nine supplemental state law claims. These claims were dismissed early in the litigation and are not the subject of this appeal. JA 39-40 (Dkt.) 2 The Complaint was amended on June 10, 2008 to add additional plaintiffs. JA 41 (Dkt.)
4

Case: 11-1159 Document: 003110545952 Page: 13 Date Filed: 05/27/2011
70. After the Township formally amended its redevelopment plan in September, 2008, Residents moved to amend their complaint. JA 46 (Dkt.). On October 28, 2008, the District Court granted in part and denied in part the motions to dismiss, finding that it had subject matter jurisdiction over the Residents’ discrimination claims, and dismissing certain other claims as moot or as not yet ripe for adjudication. JA 46 (Dkt.). On November 25, 2008 the Court granted in part the motion for leave to amend. JA 48 (Dkt.). On November 26, 2008 Residents requested emergency relief to stop demolitions of Township-owned properties, which was denied. JA 48 (Dkt); JA 1732-1787. On December 4, 2008 and January 14, 2009, Defendants filed motions to dismiss the Second Amended Complaint. JA 50-51 (Dkt.); JA 1949-1968. On February 13, 2009, the District Court issued an Opinion denying preliminary injunctive relief. JA 1969-83, #114, pp. 1-15 (Pr. Inj. Op.). On October 23, 2009, the District Court converted the motions to dismiss the federal discrimination claims to a summary judgment motion, while dismissing the remaining state law and constitutional claims. JA 53 (Dkt.). Summary judgment in favor of the Defendants was entered on January 3, 2011. JA 3-31, #114, pp. 1-29 (SJ Op.); #115, p. 1 (SJ Order).
Residents filed their Notice of Appeal on January 19, 2011, and applied to this Court for a stay pending appeal on January 27, 2011. The Township’s subsequent Motion to Clarify the Stay was denied and the appeal was expedited.
5

Case: 11-1159 Document: 003110545952 Page: 14 Date Filed: 05/27/2011
STATEMENT OF FACTS Originally consisting of 329 rowhomes, the Gardens neighborhood in Mount Holly Township, at one time housed the largest concentration of African-American and Hispanic residents living within the Township. JA 71, 105; #17-04, p. 16, 50 (Beveridge Pr. Inj. Dec. & Exh. G). In the Gardens, Whites comprised only 19.7% of the population, while African-Americans comprised 46.1% and Hispanic comprised 28.8%. This is in stark contrast to the Township, where Whites comprised 66.2%, African-Americans comprised 20.8%, and Hispanics comprised 8.8% of the population, and to Burlington County, where Whites comprised 76.3%, African-Americans comprised 14.8%, and Hispanics comprised 4.2% of the population. JA 68-69; #17-04, pp. 13-14. The Gardens homes were generally affordable to its predominately low and moderate income residents. JA 64-65, #17-04, pp. 9-10 (Beveridge Pr. Inj. Dec.); JA 555-56, #17-08, pp. 1-2 (Arocho Pr. Inj. Dec.); JA 578, #17-09, p. 5 (Brooks Pr. Inj. Dec.); JA 611, #17-11, p.2 (Simons Pr. Inj. Dec.); JA 621, #17-12, p. 2 (Vicente Pr. Inj. Dec.); JA 632, #1714, p. 2 (Wright Pr. Inj. Dec.); JA 1104-1108, #17-30, pp. 1-4 (Res.Survey). In 2000, the Township abandoned efforts to preserve and rehabilitate the neighborhood and instead embarked on a plan to acquire and demolish all Gardens homes and relocate all Gardens residents – the only redevelopment project of that nature pursued by the Township. JA 673-714, #17-17, pp. 1-42 (2000 Red. Rpt.);
6

Case: 11-1159 Document: 003110545952 Page: 15 Date Filed: 05/27/2011
JA 1222-29, #17-35, pp. 1-8 (Acq. Prog.Memo); JA 1253, #17-36, p. 24 (Master Plan); JA 2134-4, #106-08, pp. 2-12 (Pipes SJ Dec.) In 2002, the Township declared the area blighted, or “in need of redevelopment,” pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq. (“LRHL”). JA 773815, #17-21, pp. 1-42 (2002 Red. Rpt.); JA 2175, #106-12, p.1 (Res. 2002-166); JA 2201-03, #106-14, pp. 1-3(Res. 2002-10); JA 2204, #106-15, p. 1 (Res. 200217). The Township subsequently adopted its first redevelopment plan in 2003, and amended it in 2005 and 2008. JA 842-866; #17-23, pp. 1-25 (GA Red. Plan); JA 951-953, #17-25, pp. 1-3 (Am. Ord. 2003-12); JA 954-980, #17-26, pp. 1-27 (WR Red. Plan); JA 1033-34, #17-29, pp. 1-3 (Ord. 2005-07); JA 1572-75, #37-01, pp. 1-4 (Ord. 2008-05); JA 1576-1618, #37-02, pp. 1-43 (Rev. WR Red. Plan). All three plans, adopted despite strong resident opposition, have called for the Township’s acquisition of all Gardens homes by purchase or eminent domain, the Township’s displacement and relocation of all Gardens residents out of the community, total demolition of all Gardens homes and replacing them with newly constructed, more expensive housing beyond the financial reach of current Gardens residents. JA 842-866, #17-23, pp. 1-25 (GA Red. Plan); JA 914- 931, #17-24, pp. 10-65 (8/11/03 Mtg. Trans.); JA 954-980, #17-26, pp. 1-27 (WR Red. Plan); JA 996-1010, #17-27, pp. 16-30 (2/21/05 Mtg. Trans.); JA 1019-1030; #17-28, pp. 213 (3/14/05 Mtg. Trans.); JA 1576-1618, #37-02, pp. 1-43 (Rev. WR Red. Plan);
7

Case: 11-1159 Document: 003110545952 Page: 16 Date Filed: 05/27/2011
JA 2264-66, # 106-21, pp. 8-10 (9/15/08 Mtg. Min.); JA 2271-72, #106-22, pp. 3-4 (9/22/08 Mtg. Min.).
The current version of the plan provides for construction of 292 townhouses and 226 apartments, of which the Township has designated only 28 owneroccupied and 28 rental units as “low” and “moderate income housing.” JA 158788, #37-02, pp. 12-13 (Rev. WR Red. Plan); JA 1601, #37-02, p. 26 (Rev. WR Red. Plan; JA 2254; #106-20, p. 1 (Twp. Press Rel.). Only the eleven households who currently live in deed-restricted Gardens units are provided a preference for the subsidized units. JA 1601; #37-02, p. 26 (Rev. WR Red. Plan). Furthermore, the Township has not guaranteed that even these “low and moderate income” units will be realistically affordable to most Gardens residents. JA 64-66, 98-100, #1704, pp. 9-11, 43-46 (Beveridge Pr. Inj. Dec. & Exh. D); JA 1601; #37-02, p. 26 (Rev. WR Red. Plan); JA 2044, #106-02, p. 4 (Beveridge SJ Dec.). The remaining market-rate townhouses are expected to sell for $200,000 to $270,000 and apartment rentals to start at $1,230 per month, rendering this housing clearly out of reach for current Gardens residents. JA 66-67, #17-04, pp. 11-12 (Beveridge Pr. Inj. Dec.); JA 1141; #17-33, p. 8 (12/6/07 Twp. Letter to NJ Publ. Adv.); JA 2948; #106-02, p. 8 (Beveridge SJ Dec.).
In 2005, the Township selected Keating as the master redeveloper. JA 22062248; #106-17, pp. 1-43 (Red. Agreem.). The redevelopment is to be done in
8

Case: 11-1159 Document: 003110545952 Page: 17 Date Filed: 05/27/2011
phases, with the first phase to take place on vacant land immediately north of the Gardens. JA 2254, #106-20, p. 1 (9/9/08 Twp. Press Rel.). Even though the Township and Keating did not need the land that Residents were occupying within the Gardens until later in the redevelopment process, the Township nonetheless started to aggressively implement the redevelopment plan against Gardens residents soon after hiring Keating.
In 2006, the Township adopted a Workable Relocation Assistance Plan (“WRAP”), prepared by Triad. JA 1035-1054, #17-29, pp. 1-39. The Township then began to acquire large numbers of Gardens houses and to move out Gardens residents. JA 1098-99, #17-30, pp. 6-7 (Twp. Status Rpt); JA 1371, #30-02, p. 2 (Hoffman Pr. Inj. Dec.). The Township offered property owners only between $32,000 and $49,000 for their homes, prices based on recent sales to the Township in the redevelopment area and reflecting the impossibility of selling the homes on the private market. JA 591-606, #17-10, pp. 8-23 (Cruz Pr. Inj. Dec., Exh. A); JA 2308-2362, #106-27, pp. 1-55 (Acq. Res.). The Township vacated and warehoused properties it acquired, allowing them to deteriorate, greatly increasing the vacancy rate, and exacerbating blighted conditions. JA 389, 391-94, #17-06, pp. 7, 9-12 (Smith Pr. Inj. Dec.); JA 557-558, #17-08, pp. 3-4 (Arocho Pr. Inj. Dec.); JA 57677, #17-09, pp. 3-4, 8 (Brooks Pr. Inj. Dec.); JA 586-87, #17-10, pp. 3-4 (Cruz Pr. Inj. Dec.); JA 622-23, #17-12, pp. 3-4 (Vicente Pr. Inj. Dec.); JA 2373, 2379-80;
9

Case: 11-1159 Document: 003110545952 Page: 18 Date Filed: 05/27/2011
#106-30, pp. 7, 13-14 (Smith SJ Dec.). The Township also demolished many of its newly acquired and vacated rowhome properties – even though numerous Gardens homeowners still lived in adjoining attached houses – failing to properly restore sidewalks and the walls and roofs of the remaining occupied homes, causing extensive damage to some houses, and further isolating Gardens residents within their community. JA 398, #17-06, pp. 16 (Smith Pr. Inj. Dec.); JA 557, #17-08, p. 4 (Arocho Pr. Inj. Dec.); JA 578-79, #17-09, pp. 5-7 (Brooks Pr. Inj. Dec.); JA 586, #17-10, p. 3 (Cruz Pr. Inj. Dec.); JA 623, #17-12, p. 4 (Vicente Pr. Inj. Dec.); JA 1096, 1098-99, #17-30, pp. 4, 6-7 (Twp. Status Rpt); JA 1137, 1140-41, #1733, pp. 4, 7-8 (12/6/07 Twp. Letter to NJ Publ. Adv.); JA 1147, #17-33, p. 14 (12/12/07 Twp. Statement to NJ Publ. Adv.); JA 1372, #30-02, p. 2 (Hoffman Pr. Inj. Dec.); JA 2130-32, #106-07, pp. 3-5 (Cruz SJ Dec.); JA 2365-66, #106-28, pp. 1-2 (11/26/08 Letter); JA 2374- 79; #106-30, pp. 8-13 (Smith SJ Dec.).
Many property owners, living under increasingly unlivable conditions and the threat of eminent domain, sold their Gardens homes. JA 1098-99, #17-30, pp. 6-7 (Twp. Status Rpt.); JA 1372, #30-02, p. 2 (Hoffman Pr. Inj. Dec.). By August, 2008 the Township was able to acquire 232 of the 355 Gardens lots, leaving approximately 100 families still living in the Gardens. JA 1372, #30-02, p. 2 (Hoffman Pr. Inj. Dec.). Gardens residents had difficulty finding replacement housing in the area. JA 626-630, #17-13, pp. 1-5 (Warthen Pr. Inj. Dec.); JA 1688-
10

Case: 11-1159 Document: 003110545952 Page: 19 Date Filed: 05/27/2011
1731, #54-02, pp. 1-44 (NJ Publ. Adv. Rpt). Relocation assistance was provided only to persons residing in the Gardens as of August 1, 2006. JA 1043, #17-29, p. 9 (WRAP). Although in prior surveys Gardens residents had expressed a strong desire to remain in the neighborhood, most Gardens residents were relocated out of Mount Holly Township. JA 739-765, #17-19, pp. 1-27 (2000 Resident Survey); JA 1104-1108, #17-30, pp. 1-5 (Resident Survey); JA 1158, #17-33, p. 23 (1/24/08 Twp. Resp. to NJ Publ. Adv.); JA 1160-64, #17-33, pp. 1-5 (Reloc. Chart).
The Township and Keating could have adopted less drastic redevelopment alternatives instead of the total demolition they are implementing in the Gardens that would have been much less destructive to the Gardens neighborhood, allowing many Gardens residents to remain a part of the redeveloped community. JA 399407, #17-06, pp.17-25 (Smith Pr. Inj. Dec.); JA 656-669, #17-16, pp. 14-27 (Mallach Rpt); JA 1165-1216, #17-34, pp. 1-52 (Biber Plan); JA 2133-44, #10608, pp. 2-12 (Pipes SJ Dec.); JA 2380-90, #106-30, pp. 14- 24 (Smith SJ Dec.). Such alternatives included a rehabilitation component, combining new construction with rehabilitation, phasing of redevelopment so that Gardens residents would not have to move out of the area while construction was in progress, providing affordable replacement units for displaced residents, and providing adequate compensation and relocation assistance to enable Gardens residents to find replacement housing in the redeveloped area or immediate vicinity. JA 399-407;
11

Case: 11-1159 Document: 003110545952 Page: 20 Date Filed: 05/27/2011
#17-06, pp.17-25 (Smith Pr. Inj. Dec.); JA 656-669, #17-16, pp. 14-27 (Mallach Rpt); JA 2380-90, #106-30, pp. 14- 24 (Smith SJ Dec.). The Township did not meaningfully consider such alternatives and selected a redevelopment strategy that effectively has had the greatest adverse and disparate impact on Gardens residents. JA 75-76, #17-04, pp. 20-21 (Beveridge Pr. Inj. Dec.); JA 399-400, #17-06, pp. 1718 Smith Pr. Inj. Dec.); JA 656-669, #17-16, pp.6-19 (Mallach Rpt.); JA 1508-19, #34-03, pp. 4-15 (Smith Pr. Inj. Reply Dec.); JA 2047-48, #106-02, pp. 7-8 (Beveridge SJ Dec.); JA 2133-47, #106-08, pp. 2-15 (Pipes SJ Dec.); JA 2380-90, #106-30, pp. 14- 24 (Smith SJ Dec.).
The Township officials, in adopting and implementing the redevelopment plans for the Gardens, intended to rid the Township of what they viewed as an undesirable population. JA 1222-29, #17-35, pp. 1-8 (Prop. Acq. Memo); JA 2145-47, #106-08, pp. 13-15 (Pipes SJ Dec.); JA 2249-50, #106-18, pp. 1-2 (Boas Memo). They knew that Gardens residents had limited financial means and would not be able to afford either the new replacement units or most of the housing for sale or rent in the Township. JA 643-650, #17-16, pp. 1-8 (2/21/05 SJLS Comments); JA 739-765, #17-19, pp. 1-27 (2000 Survey); JA 875- 79, 882-86, 890-95, 898-905, 908, 910-11, 913-15, 917-19, 930-31, 937-38; #17-24, pp. 9-13, 16-20, 24-29, 32-39, 42, 44-45, 47-49, 51-53, 64-65, 71-72 (8/11/03 Mtg. Trans.); JA 1000, 1002, 1004-09; #17-27, pp. 20, 22-23, 24-29, 108-113 (2/21/05 Mtg.
12

Case: 11-1159 Document: 003110545952 Page: 21 Date Filed: 05/27/2011
Trans.); JA 1020-25, 1028-29; #17-28, pp. 3-8, 11-12 (3/14/05 Mtg. Trans.); JA2159-2166; #106-10, pp. 1-8 (8/11/03 SJLS Comments); JA 2167-2174, #10611, pp. 1-8 (3/14/05 SJLS Comments); JA 2264-66, # 106-21, pp. 8-10 (9/15/08 Mtg. Min.); JA 2271-72, #106-22, pp. 3-4 (9/22/08 Mtg. Min.). They also paid the property owners inadequate compensation that did not enable them to purchase comparable replacement housing in the Township or the immediate vicinity, while creating unsafe and undesirable conditions and thus putting increased pressure on Gardens residents to give up and sell their homes. JA 73-74, #17-04, pp. 18-19 (Beveridge Pr. Inj. Dec.); JA 558-60, #17-08, pp. 4-6 (Arocho Pr. Inj. Dec.); JA 587-589, 591-609, #17-10, pp. 4-6, 18-26 (Cruz Pr. Inj. Dec. & Exh. A-B); JA 613, #17-11, p. 3 (Simons Pr. Inj. Dec.); JA 633-34, #17-14, pp. 3-4 (Wright Pr. Inj. Dec.); JA 1688-1731, #54-02, pp. 1-44 (NJ Publ. Adv. Rpt); JA 2047-51, #106-02, pp. 7-11 (Beveridge SJ Dec.); JA 2371- 80, #106-30, pp. 5-14 (Smith SJ Dec.).
STATEMENT OF RELATED CASES AND PROCEEDINGS Counsel for appellants are not aware of any other case or proceeding that is in any way related, completed, pending, or about to be presented before this Court or any other court or agency, state or federal.
STATEMENT OF STANDARD FOR REVIEW In reviewing a District Court’s grant of summary judgment, the Third Circuit applies “the same test that the District Court should have utilized initially.”
13

Case: 11-1159 Document: 003110545952 Page: 22 Date Filed: 05/27/2011
Olson v. General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir.1996) The Third Circuit’s review of the grant of summary judgment is plenary. Id. Under F.R.C.P. 56(c), summary judgment “is proper only where there is no genuine issue of material fact for the factfinder to decide” and the moving party is entitled to judgment as a matter of law. Olson, at 951. “The inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Chambers v. Philadelphia Board of Education, 587 F.3d 176, 181 (3d Cir. 2009) The reviewing court “should not weigh the evidence and determine the truth itself, but should instead determine whether there is a genuine issue for trial.” Doeblers' Pennsylvania Hybrids, Inc. v. Doebler, III, 442 F.3d 812, 820 (3d Cir. 2006). Further, the non-moving party’s competent facts presented in opposition “are taken as true and inferences are drawn in a light most favorable to the non-movant.” General Ceramics Inc. v. Firemen’s Fund Ins. Companies, 66 F.3d 647, 651 (3rd Cir. 1995) ; Olson, at 951. In discrimination cases, “[t]his standard is applied with added rigor. . . where intent and credibility are crucial issues.” Stewart v. Rutgers University, 120 F.3d 426, 431 (3d Cir. 1997).
SUMMARY OF ARGUMENT In granting summary judgment dismissing Residents’ housing discrimination claims under Title VIII of the Civil Rights Act of 1968, the District
14

Case: 11-1159 Document: 003110545952 Page: 23 Date Filed: 05/27/2011
Court misapplied well settled Third Circuit disparate impact precedent established under Resident Advisory Board v. Rizzo, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908 (1978). Contrary to Rizzo, the court conflated “disparate treatment” with “disparate impact” under Title VIII and ignored Rizzo and settled authority from around the country in reasoning that governmental action disproportionately displacing minorities by eliminating lower income housing is not actionable under Title VIII.
The District Court also improperly disregarded the Residents’ expert’s comprehensive analysis and opinion establishing Residents’ Title VIII prima facie case that the Township’s redevelopment plan is having a “severe” disparate impact on minority residents of the Gardens neighborhood, Mount Holly Township and Burlington County, and ignored genuinely disputed issues of material fact that, under Rizzo, the Township could have taken and still can take less destructive redevelopment alternatives having less of a discriminatory impact.
The District Court further erred in granting summary dismissing Residents’ intentional discrimination claims against the Township under Title VIII and the Equal Protection Clause of 14th Amendment to the United States Constitution. The Residents had presented circumstantial evidence meeting the factors that the Supreme Court had established in Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 265-69 (1977) (“Arlington
15

Case: 11-1159 Document: 003110545952 Page: 24 Date Filed: 05/27/2011
Heights”) for proving discriminatory intent sufficient to preclude summary judgment, as well evidence showing that the foreseeable result of the Township’s actions supported an inference of discriminatory motive.
The District Court also misapplied summary judgment standards by impermissibly weighing the evidence and erroneously drawing inferences in favor of the Township as moving party rather than in favor of Residents in opposing summary judgment, as well improperly granting summary judgment dismissing Resident’s claims without allowing Residents the reasonable opportunity to conduct any discovery in this case.
ARGUMENT I. THE THIRD CIRCUIT SHOULD REVERSE THE DISTRICT
COURT’S SUMMARY JUDGMENT DECISION DISMISSING RESIDENTS’ TITLE VIII DISPARATE IMPACT HOUSING DISCRIMINATION CLAIMS. In 1968, Congress enacted the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., to combat housing discrimination throughout the nation. Title VIII makes it “unlawful to refuse to sell or rent . . . or otherwise make unavailable or deny a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a). The “broad remedial intent of Congress” is “embodied in the Act,” Havens Realty Corp. v. Coleman, 455 U.S. 363, 381 (1982) and as such Title VIII’s scope is “broad and inclusive” and should be given “a generous construction.” City of
16

Case: 11-1159 Document: 003110545952 Page: 25 Date Filed: 05/27/2011
Edmonds v. Oxford House, Inc., 514 U.S. 725, 731 (1995). See also Hovsons, Inc. v. Brick Township, 89 F. 3d 1096, 1106 (3d Cir. 1996) (acknowledging broad Congressional remedial intent underlying Title VIII); Lakeside Resorts Enterprises, L.P. v. Board of Supervisors of Palmyra Township, 455 F.3d 154, 157 (3d Cir. 2006) (“we are to give a ‘generous construction’ to the statute's ‘broad and inclusive’ language”) (quotation omitted).
In the Third Circuit, it has long been established that a plaintiff may establish a prima facie case of housing discrimination under Title VIII by showing discriminatory effect, i.e. “adverse disparate impact,” without having to demonstrate any discriminatory intent, i.e., “disparate treatment.” Resident Advisory Board v. Rizzo, 564 F.2d 126, 147-49 (3d Cir. 1977), cert. denied, 435 U.S. 908 (1978). The Rizzo court explained that “[e]ffect, not motivation, is the touchstone because a thoughtless housing practice can be as unfair to minority rights as a willful scheme." Id. at 148, n. 31. Further, under Rizzo, if a plaintiff establishes a prima facie case, the burden shifts to defendant to demonstrate justification that “must serve, in theory and practice, a legitimate, bona fide interest of the Title VIII defendant, and the defendant must show that no other alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.” Id. at 149. “If the defendant does introduce evidence that no such alternative course of action can be adopted, the burden will once again
17

Case: 11-1159 Document: 003110545952 Page: 26 Date Filed: 05/27/2011
shift to the plaintiff to demonstrate that other practices are available.” Id. at 149 n. 37. See also, Lapid-Laurel, L.L.C v. Zoning Board of Scotch Plains, 284 F.3d 442, 466-67 (3d Cir. 2002).
A. The District Court Misapplied Well-Settled Third Circuit Disparate Impact Precedent Established Under Rizzo By Erroneously Conflating “Disparate Treatment” With “Disparate Impact” Under Title VIII.
The District Court acknowledged that “the Gardens redevelopment has had an effect on low-income families, and correspondingly, minority families” and that “being forced from one’s home is a difficult and emotional issue, compounded by the fear of being unable to afford a comparable place to live.” JA 6, #114, p. 3 (SJ Op.). The court nevertheless concluded that the redevelopment plan did not have a disparate impact upon minority residents because “importantly for the plaintiffs’ FHA claim of disparate impact, the redevelopment plan does not apply differently to minorities than non-minorities” residing in the Gardens. JA 14, #114, p. 11 (SJ Op.). The court emphasized that “it is not just the African-American and Hispanic plaintiffs who are impacted by the increased housing prices – it is all Gardens residents, including the Caucasian residents.” JA 15, #114, p. 12 (SJ Op.).
The District Court’s interpretation of Title VIII improperly conflates “disparate treatment” With “disparate impact. The essence of disparate impact under Title VIII is a facially neutral governmental action that adversely and disproportionately affects a protected group. Rizzo, supra. Disparate impact does
18

Case: 11-1159 Document: 003110545952 Page: 27 Date Filed: 05/27/2011
not require that the challenged action must absolutely and exclusively impact a protected minority group; rather, disparate impact is established by showing the relative comparative harm, i.e., that the group of persons adversely affected, compared to the larger relevant population, is comprised disproportionately of members of a protected class. See Rizzo, supra, (disparate impact found in favor of minority public housing applicants despite white public housing applicants also adversely affected); Lapid Laurel, supra, at 466-67 (applying Rizzo, “the plaintiff must show that the Township's action had a greater adverse impact on the protected group . . . than on others). See also, Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 938 (2d Cir. 1988), aff'd in part, 488 U.S. 15 (1988) (proper focus is on “disproportionate burden on minorities”).
Indeed, the Eighth Circuit in Charleston Housing Authority v. U.S. Dept. of Agriculture, 419 F.3d 729 (8th Cir. 2005) expressly rejected the same flawed interpretation of Title VIII that the District Court adopted below. The Housing Authority argued on appeal that the minority tenants' disparate impact claims challenging demolition should fail because the tenants did not demonstrate that similarly situated non-minority persons were being treated any differently. In rejected this argument, the Court explained that the “Tenants, however, did not allege disparate treatment, they alleged disparate impact….[T]he Tenants need prove no more than that the conduct of the defendant actually or predictably results
19

Case: 11-1159 Document: 003110545952 Page: 28 Date Filed: 05/27/2011
in discrimination; in other words, that it has a discriminatory effect.” Charleston, at 741. See also Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1291 (7th Cir. 1977) (Arlington Heights II) (“the fact that the conduct complained of adversely affected white as well as nonwhite people, however, is not by itself an obstacle to relief under the Fair Housing Act”). Accordingly, the District Court below seriously misconstrued Title VIII disparate impact law, mandating reversal.
B. The District Court Erroneously Reasoned That Governmental Action Disproportionately Displacing Minorities By Eliminating Lower Income Housing Is Not Actionable Under Title VIII.
The District Court further erred in ruling that the Township’s destruction of the Gardens is not actionable under Title VIII because “the real effect of the Gardens redevelopment is that there will be less lower-income housing in Mt. Holly” and “reduction of low-income housing is not a violation of the FHA” which “does not speak to income.” JA 14, #114, p. 11 (SJ Op.). The District Court cited no support for this proposition and inexplicably ignored significant federal court decisions over the past 30 years repeatedly ruling that destruction or exclusion of low and moderate income housing does in fact violate disparate impact under Title VIII where protected lower income minorities would be disproportionately adversely affected by the loss or denial of such housing.
Indeed, the Third Circuit’s decision in Rizzo is just such a case. The Third
20

Case: 11-1159 Document: 003110545952 Page: 29 Date Filed: 05/27/2011
Circuit found that the housing authority’s refusal to permit construction of public housing in a predominantly white neighborhood had a much greater adverse effect on minorities because more minorities had lower incomes qualifying them for public housing. See also, Arlington Heights II, supra, at 1291 (minority plaintiffs had actionable Title VIII claim where municipality’s zoning preventing construction of low-cost housing disproportionately excluded lower income African-Americans in need of such housing); Huntington Branch, supra, 938 (municipality violated Title VIII by refusing to allow low-income subsidized housing in a predominately white neighborhood since minorities, because of their lower income status, were more likely to be in need of and eligible for such housing); Dews v. Town of Sunnyvale, Texas, 109 F. Supp. 2d 526, 565-66 (N.D. Tex. 2000) (zoning ordinance effectively banning apartments found to have a discriminatory effect upon African-Americans because they were in greater need of rental housing); Rivera v. Incorporated Village of Farmingdale, 571 F.Supp.2d 359, 369 (E.D.N.Y. 2008) (challenge to redevelopment project eliminating housing occupied by lower income Latino workers and replacing it with higher priced units unaffordable to such residents actionable under Title VIII because even if the municipality “had the best of intentions, the result of the plan disproportionately injured the Latino population in need of low income housing”). Thus, the District Court’s reasoning is fundamentally flawed and contrary to settled Title VIII law.
21

Case: 11-1159 Document: 003110545952 Page: 30 Date Filed: 05/27/2011
C. The District Court Improperly Disregarded Resident’s Expert’s Comprehensive Analysis And Opinion Establishing Residents’ Title VIII Prima Facie Case That The Township’s Redevelopment Plan Is Having A “Severe” Disparate Impact On African-American And Hispanic Residents Of The Gardens Neighborhood, Mount Holly Township And Burlington County.
A prima facie case of Title VIII disparate impact can be established through statistical data comparing the relative percentage of protected class members versus non-protected class members affected. See Huntington Branch, supra, at 937-38; see also Hispanics United v. Addison, 988 F. Supp. 1130, 1156-57 (N.D. Ill. 1997) ("using town-wide demographics for comparison to the affected population is a perfectly legitimate method of establishing discriminatory effect”); Rivera v. Incorporated Village of Farmingdale, ___ F.Supp.2d ___, 2011 WL 1260209, at *7-*9 (E.D.N.Y. March 30, 2011)(in denying Village’s summary judgment motion, court accepted plaintiff’s expert’s statistical demographic analysis that redevelopment plan eliminating rental housing would disproportionally harm Village’s Hispanic residents).
In opposing summary judgment, the Residents presented uncontroverted expert evidence that the Township’s redevelopment project “is having a severe disparate impact on African-American and Hispanic residents in the Gardens, in Mount Holly Township and in Burlington County.” JA 68, #17-04, p. 13 (Beveridge Pr. Inj. Dec.); JA 2044; # 106-02, p. 4 (Beveridge SJ Dec.). Residents’ expert, Dr. Andrew Beveridge, demonstrated that as of the 2000 Census nearly
22

Case: 11-1159 Document: 003110545952 Page: 31 Date Filed: 05/27/2011
75% of the people living in the Gardens were minority residents—46% AfricanAmerican and 28.8% Hispanic – and thus “the Gardens contains a highly concentrated minority population (African-American and Hispanic), indeed more so than any other area of Mt. Holly.” JA 71, #17-04, p.16 (Beveridge Pr. Inj. Dec.). Further, Dr. Beveridge showed that while the Gardens’ demolition will affect only about 2.7% of all non-Hispanic White households in Mt. Holly, it has and will impact 22.5% of all African-American households and 32.3% of all Hispanic households living in Mt. Holly. JA 71, #17-04, p.16 (Beveridge Pr. Inj. Dec.). Thus, Dr. Beveridge concluded by demolishing the Gardens, “AfricanAmericans are more than 8 times more likely to be negatively affected, and the Hispanics are more than 11 times more likely to be negatively affected, than are non-Hispanic Whites.” JA 71, #17-04, p.16 (Beveridge Pr. Inj. Dec.). Dr. Beveridge subsequently affirmed that 2008 census data demonstrated that the “same pattern of results found in 2000 hold for 2008.” JA 2046, #106-02, p. 6 (Beveridge SJ Dec.).
Furthermore, Dr. Beveridge demonstrated that the Township’s redevelopment project is displacing minority families from homes that have been affordable to them. Gardens residents “were and are mainly a group of extremely and very low income homeowners and tenants,” with median household incomes significantly less compared to Mt. Holly Township and Burlington County, most
23

Case: 11-1159 Document: 003110545952 Page: 32 Date Filed: 05/27/2011
with annual household incomes less than $40,000 and almost half less than $20,000. JA 64, #17-04, p. 9 (Beveridge Pr. Inj. Dec.). Existing homes in the Gardens have been “generally affordable either as rentals or as ownership units” to households “with even lower incomes,” since the homeowner “monthly expenses are very low, and the rentals are among the lowest in Burlington County.” JA 64, #17-04, p. 9 (Beveridge Pr. Inj. Dec.). Thus, “for families with limited means,” the Gardens “represented a very attractive affordable housing opportunity.” JA 65; #17-04, p. 10 (Beveridge Pr. Inj. Dec.).
The market rate units called for in the revised WR Redevelopment Plan to be built where the Gardens now stands will sell for $200,000 to $270,000. The monthly rents for the new apartments will be at least $1,320. As Dr. Beveridge explained, these prices are “well out of reach” of almost all Gardens residents, especially since the Township is paying Gardens homeowners only $32,000, $39,000 and $49,000 for existing one, two and three bedroom homes respectively. JA 66, #17-04, p. 11 (Beveridge Pr. Inj. Dec.); JA 2044, 2049, #106-02, pp. 4, 9 (Beveridge SJ Dec.). In addition, the relocation assistance that the Township provides for in the WRAP “is woefully inadequate to make the market rate units affordable to low income households like those in the Gardens” JA 66, #17-04; p. 11 (Beveridge Pr. Inj. Dec.) and do “little to mitigate the severe disparate impact on African-American and Hispanic residents.” JA 2049, #106-02, p. 9 (Beveridge
24

Case: 11-1159 Document: 003110545952 Page: 33 Date Filed: 05/27/2011
SJ Dec.). Thus, except for the few proposed affordable units, “there is no possibility that the current residents could afford moving into the new housing without substantial additional resources,” JA 2048, #106-02, p. 8 (Beveridge SJ Dec.). Even this small number are targeted to benefit households earning 80% of the median area income, which would still be unaffordable to most Gardens families, the vast majority of whose household incomes are less than 50% of the median area income. JA 65-66, #17-04, pp. 10-11 (Beveridge Pr. Inj. Dec.).
Dr. Beveridge further opined that since “only those households with incomes above 80 percent of area median income will be able afford to move to the redeveloped community” under the proposed market prices, “approximately only 21% of African-American and Hispanic households would be able to afford the new market rate housing, compared to approximately 79% non-Hispanic White households.” JA 2048, #106-02, p. 8 (Beveridge SJ Dec.). Since the Gardens was comprised of nearly 75% African-American and Hispanic residents prior to redevelopment, JA 71, #17-04, p. 16 (Beveridge Pr. Inj. Dec.), “the redeveloped area will be mostly non-Hispanic White and will have drastically less AfricanAmericans and Hispanic residents than before redevelopment.” JA 2048, #106-02, p. 8 (Beveridge SJ Dec.).
Similarly, the price of available owner-occupied and rental units in the rest of Mt. Holly and immediate surrounding area are unaffordable to Gardens
25

Case: 11-1159 Document: 003110545952 Page: 34 Date Filed: 05/27/2011
residents. As Dr. Beveridge showed, only a handful of market rate units in the local area would be affordable to Gardens residents, with the “overwhelming of majority” of market rate units “far beyond their reach, even taking into account the current provision of relocation assistance in the WRAP.” JA 73-74, #17-04, pp. 1819 (Beveridge Pr. Inj. Dec.). Dr. Beveridge’s analysis of updated area home listings is consistent with his earlier findings “as to the scarcity of affordable housing options for displaced Gardens residents in the Mt. Holly area.” JA 2049, #106-02, p. 9 (Beveridge SJ Dec.). Thus, the redevelopment project “has and will continue to remove from the current and past residents of the Gardens affordable housing opportunities, while forcing them to search, often in vain, for comparable housing.” JA 68, #17-04, p. 13 (Beveridge Pr. Inj. Dec.). See also JA 560, # 1708, p. 6 (Arocho Pr. Inj. Dec.); JA 624-0625, #17-12, pp. 5-6 (Vicente Pr. Inj. Dec.); JA 628, # 17-13, p. 3 (Warthen Pr. Inj. Dec.).
Therefore, the “ongoing destruction of affordable housing by the WR Redevelopment Project has had and will continue to have serious consequences for all low income residents, most particularly including African American and Hispanic residents of the region, who are more likely to be low-income.” JA 75, #17-04, p. 20 (Beveridge Pr. Inj. Dec.). “Especially hard hit” have been “AfricanAmerican and Hispanic households who had lived and currently live in the Gardens” who “have virtually no chance of replacing their current housing with
26

Case: 11-1159 Document: 003110545952 Page: 35 Date Filed: 05/27/2011
housing equally affordable.” JA 75, #17-04, p. 20 (Beveridge Pr. Inj. Dec.). Thus, according to Dr. Beveridge, “[m]y conclusions set forth in the [earlier] Declaration regarding the severe disparate impact of African-American and Hispanic residents in the Gardens, in Mt. Holly Township, and in Burlington County similarly still hold true.” JA 2044, #106-02, p. 4 (Beveridge SJ Dec.).
Since on summary judgment “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn” in the Residents’ favor, Chambers, supra, 587 F.3d at 181, this expert evidence, establishing Residents’ prima facie Title VIII disparate impact claim, clearly sufficed to defeat summary judgment. Indeed, the Township never challenged the underlying statistical demographic data or presented any competent expert evidence refuting Dr. Beveridge, and the District Court acknowledged that Residents have made a showing that a greater percentage of minority Township residents have been affected by the redevelopment. JA 15, #114, p. 12, fn. 8. (SJ. Op.).3 Therefore, there was no basis whatsoever for granting the Township summary judgment.
The District Court, however, impermissibly “weigh[ed] the evidence” to “determine the truth” of Dr. Beveridge’s opinion rather than simply determining
3 The District Court dismissed this evidence without further discussion, stating that “[E]ven if this statistic was sufficient to establish a prima facie case, the plaintiffs’ FHA claim fails for reasons other than the disparate impact analysis,” JA 15, #114, p. 12, fn. 8 (SJ Opinion), thus ignoring well-settled precedent where comparable statistics establishes a prima facie case, as previously discussed above.
27

Case: 11-1159 Document: 003110545952 Page: 36 Date Filed: 05/27/2011
“whether there [was] a genuine issue for trial.” Doeblers', supra, 442 F.3d at 820. The Trial Court sua sponte critiqued Dr. Beveridge’s methodology and concluded that Dr. Beveridge’s statistical evidence – showing that only a small percentage of African-American and Hispanic households in the County (21%) would be able to afford the new homes to be built in the redeveloped neighborhood, while a much higher percentage of white residents (79%) would be able to afford those same homes – “hold little validity to show disparate impact.” JA 16; #114, p. 13 (SJ Op.). Without citing any legal or other support, the Court criticized Dr. Beveridge’s selection of the comparison population (County wide) without any explanation as to why such a county wide analysis would not be appropriate. JA 16; #114, p.13 (SJ Op.). The Court further contended that the expert analysis did not account for minorities who will move into Mt Holly from outside the County, without offering any proof that the demographics of the surrounding counties differ from those of Burlington County so significantly as to alter the expert’s conclusions. JA 16; #114, p. 13 (SJ Op.).
The District Court also incorrectly stated that Dr. Beveridge’s analysis did not account for the 11% deed-restricted unit, ignoring the evidence that showed that the deed-restricted units would be affordable to households earning up to 80% of median income, while most Gardens residents had incomes below 50% of median income. JA 64; #17-04, p. 9 (Beveridge Pr. Inj. Dec); JA 66; #17-04, p.
28

Case: 11-1159 Document: 003110545952 Page: 37 Date Filed: 05/27/2011
11(Beveridge Pr. Inj. Dec). The court further criticized Dr. Beveridge for not accounting for the possibility of minority renters, although the townhouses are, according to the Township’s plan, designed for homeownership, and there is no reason to assume that the new townhouses would rent at prices affordable to a significant number of minority residents.4 The Court below also claimed that the Residents’ expert did not consider the fact that minorities are moving (presumably from the Gardens) within Mt. Holly, even though the data in the record showed that less than 1/3 of Gardens residents were being relocated within Mt Holly. JA 1160; #17-33, pp. 27-31 (Reloc. Chart); JA 1156; #17-33, p. 23(1/24/08 Twp. Resp. to NJ Publ. Adv.).
Finally, the District Court referred to recent census data to argue that because there are almost 17,000 African-American and Hispanic households in the County who could afford the new homes, a minority population could theoretically occupy all 464 market rate houses, improperly considering only the numbers of the minority population, rather than the manner in which they are disproportionately
4 Indeed, Dr. Beveridge has shown that the new proposed rental units, considerably smaller in size than the townhouses, are out of reach for Gardens residents and for most minority households, so there is no reason to expect the townhomes to be more accessible to minority renters. JA 2048; #106-02, p. 11 (Beveridge SJ Dec.).
29

Case: 11-1159 Document: 003110545952 Page: 38 Date Filed: 05/27/2011
affected, as required under a disparate impact analysis. 5 JA 16; #114, p. 13 (SJ Op.). The court’s severely flawed critique of Residents’ expert evidence, neither grounded in legal precedent nor supported by professional opinion, at most sets a framework for a material dispute, but cannot justify the District Court’s outright rejection of Residents’ expert proofs and grant of summary judgment.
D. The District Court Improperly Ignored Genuinely Disputed Issues Of Material Fact That, Under Rizzo, The Township Could Have Taken And Still Can Take Less Destructive Redevelopment Alternatives Having Less Discriminatory Impact.
The District Court similarly erred in holding that the Residents “have not shown how an alternative course of action would have a lesser impact” under Rizzo. JA 17; #114, p. 14 (S J Op.). In doing so, the court again failed to accept as true the analysis and opinions of Residents’ planning expert, failed to draw all reasonable inferences in Residents’ favor, and improperly weighed and assessed the truth of Mr. Smith’s opinions.
Mr. Gray Smith, Residents’ planning expert, described various options for rehabilitating and improving the Gardens neighborhood and eliminating or reducing the blighted conditions in a less costly manner without wholesale acquisition and demolition of all existing houses and relocation of all residents. JA 399-407; #17-06, pp. 17-25 (Smith Pr. Inj. Dec.); JA 2380, #106-30, pp.14-15
5 The District Court also ignored the fact that Dr. Beveridge had updated his Declaration to include the newer census information. JA 2044-2045; #106-02 pp. 4-5.( Beveridge SJ Dec.).
30

Case: 11-1159 Document: 003110545952 Page: 39 Date Filed: 05/27/2011
(Smith SJ Dec.). According to the expert, a redevelopment plan that focused primarily on rehabilitation of existing Gardens homes and additional neighborhood amenities, combined with limited and targeted acquisition, selective demolition and new construction and including many more infill affordable units would “meet the stated goals of the Township's original Redevelopment Plan” and would “eliminate blight and comply with state and local public policy criteria” under the LRHL. JA 406-407; #17-06, pp. 24-25 (Smith Pr. Inj. Dec.); JA 2382; #106-30, p. 16 (Smith SJ Dec.). Further, despite “the damages caused by recent Township and Redeveloper actions,” such an “alternative neighborhood redevelopment plan” currently “is viable and still implementable,” would be “considerably less costly, easier to accomplish,” and would “retain local residents” while providing “modern affordable housing.” JA 406-407, #17-06, pp. 24-25 (Smith Pr. Inj. Dec.); JA 2382; #106-30, p. 16 (Smith SJ Dec.) In his declaration, the expert provided planning recommendations for a rehabilitation approach, listed potential funding sources, and identified developers engaged in housing rehabilitation. JA 399-407; #17-06, pp. 17-25 (Smith Pr. Inj. Dec.).
Moreover, Dr. Beveridge, in reviewing the alternatives that the planning expert had outlined, stated that in his opinion such less drastic measures would permit many more minority Gardens residents “to stay either in their current affordable units or move into newly constructed or substantially renovated
31

Case: 11-1159 Document: 003110545952 Page: 40 Date Filed: 05/27/2011
affordable homes, and therefore not be permanently displaced from their community.” JA 75; #17-04, p. 20 (Beveridge Pr. Inj. Dec.). In addition, these alternatives would significantly lessen the adverse impact of African-American and Hispanic families in the region, since affordable housing opportunities for low income residents would be eliminated.” JA 75; #17-04, p. 20 (Beveridge Pr. Inj. Dec.). Accordingly, Dr. Beveridge states that in his opinion “if these alternatives had been or were to be implemented, it would significantly lessen the adverse impact of the Project upon African-American and Hispanic households and families.” JA 75; #17-04, p. 20 (Beveridge Pr. Inj. Dec.); JA 2047-48; #106-02, pp. 7-8 (Beveridge SJ Dec.).
The Township disputed the viability of these alternative approaches to redevelopment through the Certifications of Kathleen Hoffman, Township Manager (stating belief as to why Mt Holly 2000 rehabilitation program too costly, disputing some of Mr. Smith’s statements regarding availability of housing subsidies, and concluding that complete redevelopment with demolition and relocation was needed) and Redeveloper Michael Scencindiver (after looking at some deteriorated, vacant property in the Gardens, decided that rehabilitation would be too costly, and stating that new construction is favored by federal and state entities over rehabilitation.). JA 1376-77; #30-02, pp. 6-7 (Hoffman Pr. Inj. Dec.); JA 1416; #30-04, p. 5 (Sencindiver Pr. Inj. Dec.). In response, Residents’
32

Case: 11-1159 Document: 003110545952 Page: 41 Date Filed: 05/27/2011
expert stated, inter alia, that the Township’s witnesses were not experts, that there were inconsistencies between the estimate by the City employee and the actual experience of the Township in rehabilitating homes, that the witnesses evaluated only the most seriously deteriorated and vacant properties, that the comparisons between rehabilitation and new construction costs were inaccurate, and that rehabilitation was encouraged by HUD and undertaken by many developers. JA 1507-08; #34-03, pp. 3-4 (Smith 2d Pr. Inj. Dec.); JA 2381-82; #106-30, pp. 15-16 (Smith SJ Dec.). At best, the “evidence” presented by the Township’s witnesses simply showed that material factual disputes existed regarding redevelopment alternatives, and in no way justified the Trial Court’s grant of summary judgment.
In addition, Residents showed through expert evidence that there were other ways in addition to a rehabilitation approach that the Township could lessen the discriminatory impacts. “Even if the Township proceeds with 100% demolition of the existing housing and 100% relocation of existing residents, it is a feasible alternative to construct a new residential community….within a sequential plan that allows new units to be built without disturbing the existing community.” JA 2389; #106-30, p. 23 (Smith SJ Dec.). The Township also could pay residents sufficient compensation and relocation assistance to enable them to purchase a replacement unit within or in the vicinity of the redevelopment area. JA 2389; #106-30, p. 23 (Smith SJ Dec.). Instead, even though the Gardens homes are not
33

Case: 11-1159 Document: 003110545952 Page: 42 Date Filed: 05/27/2011
needed for phase one of construction, the Township “made every effort to dismantle the existing community before even beginning construction of the new units, JA 2390; #106-30, p. 24 (Smith SJ Dec.), conducting destructive demolitions and reducing services, while, as discussed above, providing inadequate compensation and relocation benefits. JA 72- 75; #17-04 pp. 17-20 (Beveridge Pr. Inj. Dec.); JA 2049; #106-02, p. 9 (Beveridge SJ Dec.).
Residents also presented evidence that Township never meaningfully considered a rehabilitation approach and repeatedly rejected less destructive approaches to addressing problems in the Gardens. JA 2136; #106-06, pp. 4-5 (Pipes SJ Dec.); JA 2386-2387; #106-30, pp. 21-22 (Smith SJ Dec.). Indeed, the Residents’ evidence credibly demonstrated that the Township had pursued a course having the most discriminatory impact – exacerbating blight, conducting destructive demolitions, and pressuring residents to move out even before the Township was ready to move ahead with construction, while offering inadequate compensation and relocation – evidencing the greatest disregard for the needs and interests of Gardens residents.
Instead of recognizing that this record clearly demonstrated “sufficient disagreement” on the issue of redevelopment alternatives, Chambers, supra, at 181, the District Court misapplied the law, improperly analyzed and weighed the evidence, and erroneously drew all inferences in favor of the moving party. First,
34

Case: 11-1159 Document: 003110545952 Page: 43 Date Filed: 05/27/2011
the Court erred in relying on the findings of the state court, contending that the adequacy of the redevelopment plan, as opposed to the rehabilitation plan” had been extensively litigated, even while noting that the issues in state court were limited to technical compliance with the LRHL. JA 18-19; #114, pp. 15-16 (SJ Op.).6 Next, the District Court misinterpreted the evidence, contending that the Residents “propose a plan, as pointed out by defendants, that relies upon government subsidies and upon costs based on property conditions in 1989,” even though the Residents had proferred the 1989 Biber Plan not as a blueprint to be followed, but as evidence the Township refused to consider viable alternatives. JA 19; #114, p. 16 (SJ Op.).
The Court further erroneously contended Residents’ plan did not consider rehabilitation costs and did not account for temporary relocation. JA 19; #114, p. 16 (SJ Op.). In addition, the Court impermissibly weighed the evidence regarding the feasibility of a rehabilitation alternative. The Court accepted without question the Township’s representations regarding rehabilitation costs of $2.5 million, while summarily rejecting Mr. Smith’s expert testimony comparing relative costs and
6 In fact, the state courts only examined the validity of the blight designation and the conformity of the plan with the technical requirements of the LRHL, and expressly refused to consider the Residents’ Title VIII claims for lack of ripeness. JA 1952-64, #84-04, pp. 1-13 (8/30/05 Opinion); JA 1114-1132, #17-31, pp. 1-19 (App. Div. Op.). At no time, therefore, did the state courts analyze whether rehabilitation was a feasible, less discriminatory alternative.
35

Case: 11-1159 Document: 003110545952 Page: 44 Date Filed: 05/27/2011
finding that acquisition, demolition, relocation, site preparation, and new construction is more expensive than a scaled-down rehabilitation plan. JA 406-407; #17-06, pp. 24-25; JA 1508-19, #34-03, pp. 4-15 (Smith Pr. Inj. Reply Dec.)7
The Court also impermissibly drew inferences favorable to the moving party. The Court relied on self-serving statements of the Township Council contained in the public hearing Transcripts about the Township’s consideration and rejection of “small scale efforts” to infer that the Township had no viable alternatives to its redevelopment proposal, while failing to consider other evidence in those Transcripts that showed that the Council completely ignored the valid objections of every Gardens resident who testified regarding the redevelopment plan and their proposals for less discriminatory approaches for eliminating blight. JA 19; #114, p. 16 (SJ Op.); JA 0652; #17-16, p. 10 (Mallach Report); JA 2536-37, 2540-41; #112-03, pp. 57-58, 61-62 (9/8/03 Mtg. Trans.); JA 2136; #106-06, pp. 45 (Pipes SJ Dec.) In addition, the Court relied on language in the New Jersey Appellate Division decision upholding the blight designation to conclude that rehabilitation was not feasible, even though the appellate court did not rule on that
7 In a footnote, the District Court rejected Mr. Smith’s expert analysis and expressed its own opinion regarding the feasibility of rehabilitation, without citing any legal or expert support, stating that at this stage relocation was the “only real practical remedy.” JA 20; #114, p. 17 (SJ Opinion). The Court again engaged in impermissible weighing and evaluating the evidence, instead of recognizing the clear dispute of material fact created by the conflicting opinions of Mr. Smith and the Township’s and Redevelopers’ representatives.
36

Case: 11-1159 Document: 003110545952 Page: 45 Date Filed: 05/27/2011
issue, as well ignoring evidence presented by Residents’ experts as to how those blighted conditions could be otherwise addressed though rehabilitation.8 JA 399; #17-06, p. 17 (Smith Pr. Inj. Dec.)
In addition, the Court misstated the law when it concluded that even if a disparate impact had been shown, Residents “failed to offer sufficient evidence to rebut the Township’s legitimate governmental purpose or demonstrate illegitimate discriminatory intent.” JA 21; #114, p. 18 (SJ Op.). First, as discussed above in Point I-A, Rizzo does not require any showing of “illegitimate discriminatory intent” under a disparate impact claim. Second, under Rizzo, even if the Township has a legitimate government purpose, that does not negate the Township’s burden of showing there are no less discriminatory alternatives.
The District Court additionally misinterpreted Title VIII by inaccurately characterizing Residents’ argument that any action to “ameliorate a blighted area inhabited mostly by minorities” would not be permitted under Title VIII. JA 16; #114, p. 13 (SJ Op.). However, Residents have never argued that there must be
8 In addition to Mr. Smith, Residents had also previously retained another planning expert, Mr. Alan Mallach, AIA, AICP. In 2005, Mr. Mallach prepared two reports that the Residents submitted as comments on the second version of the redevelopment plan and he testified before the Township Planning Board at the time they were reviewing that plan in February, 2005. Mr. Mallach advised the Board that there were many viable alternatives to total destruction of the Gardens that would correct the blighted conditions identified by the Township in the Gardens. JA 652; #17-16, p. 10 (Mallach Report); JA 670; #17-16, p. 28 (Mallach Supp. Report); JA 990; #17-27, p. 10 (2/21/05 Mtg. Trans.).
37

Case: 11-1159 Document: 003110545952 Page: 46 Date Filed: 05/27/2011
absolutely no discriminatory effect, but rather under Rizzo the Township must utilize realistic alternatives having the least discriminatory effect. Indeed, as Residents’ experts had demonstrated in the record below, the Township could have used any one of several less discriminatory alternatives to eliminate blight than total demolition of the Gardens.
Accordingly, the District Court’s erroneous analysis of law and evidence is fatally flawed and this Court should reverse the District Court’s grant of summary judgment dismissing Residents’ Title VIII disparate impact claims.
II. THE DISTRICT COURT ERRED IN GRANTING THE TOWNSHIP SUMMARY JUDGMENT DISMISSING RESIDENTS’ CLAIMS BECAUSE THERE ARE DISPUTED MATERIAL FACTS THAT THE TOWNSHIP HAS INTENTIONALLY DISCRMINATED AGAINST AFRICANAMERICAN AND HISPANIC RESIDENTS.
A. The Residents Have Presented Circumstantial Evidence Meeting The Arlington Heights Factors Creating Genuine Factual Disputes That The Township Acted With Discriminatory Intent In Carrying Out Its Redevelopment Of The Gardens Sufficient To Preclude Summary Judgment.
Separate from the Title VIII disparate impact discrimination claim discussed above in Point I, Residents brought three additional claims asserting that the Township has intentionally discriminated against them based on race and national origin in violation of Title VIII , 42 U.S.C. § 3601 et seq., 42 U.S.C. §1982; and equal protection under of 14th Amendment to the United States Constitution.
38

Case: 11-1159 Document: 003110545952 Page: 47 Date Filed: 05/27/2011
Although these claims have their unique elements, proof of intentional discrimination is a critical component of each. See Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 265-69 (1977) (“Arlington Heights”); see also Rizzo, supra, 546 F.2d at 140, 144-45.
In proving intentional discrimination, a plaintiff need not show “that the challenged action rested solely on racially discriminatory purposes.” Arlington Heights, at 265. Proof that purposeful discrimination was a “motivating factor” is sufficient. Arlington Heights, at 265-66. See also Community Services, Inc. v. Wind Gap Municipal Authority, 421 F.3d 170, 177 (3d Cir. 2005).
Further, direct evidence alone is not required to establish intentional discrimination, but rather ”demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights, at 266; Rizzo, at 141. See Smith v. Town of Clarkton, 682 F.2d 1055, 1066 (4th Cir 1982) (in opposing public housing, court found Mayor’s statements expressing concern about “an influx of undesirables” and residents’ public hearing statements expressing concerns that the “new people” would “dilute” their schools and threaten their safety were “camouflaged racial expressions”); Greater New Orleans Fair Housing Action Center v. St. Bernard Parish, 641 F.Supp.2d 563, 571-72 (E.D. La. 2009)(within historical context of passing municipal ordinance banning construction of multi-family rental housing, court found references to “ghetto,”
39

Case: 11-1159 Document: 003110545952 Page: 48 Date Filed: 05/27/2011
“crime,” “blight,” and “shared values” as being “racially-loaded”).9
The Supreme Court in Arlington Heights enumerated the following factors
that could establish discriminatory intent: 1) the disparate impact of the decision,
i.e. whether it bears more heavily on one race than another; 2) the historical
background of the decision, especially if it reveals a series of official actions taken
for invidious purposes; 3) the specific sequence of events leading up to the
challenged decision, which could shed light on the decision maker’s purposes; 4)
departures from the normal procedural sequence; and 5) substantive departures,
such as when factors usually considered important by the decision maker strongly favor a decision contrary to the one reached. Id. at 267-68.10 The Arlington
Heights factors are not intended to be “exhaustive” and a plaintiff need not
establish each and every factor to show that racially discriminatory intent existed.
9 Indeed, “blight” historically has been “a facially neutral term infused with racial and ethnic prejudice” that has been often used “to justify the removal of blacks and other minorities from certain parts of the city.” Wendell E. Pritchett, The “Public Menace” of Blight, 21 Yale L. & Pol’y Rev. 1, 6 (2003). See also Kelo v. City of New London, 545 U.S. 469, 521-22 (2005) (Thomas, J., dissenting) (“Urban renewal projects have long been associated with the displacement of blacks. . . ”). One scholar has estimated that 1,600 African-American neighborhoods have been destroyed since the 1960s in the name of urban renewal. Mindy Thompson Fullilove, Root Shock: How Tearing Up City Neighborhoods Hurts America, and What We Can Do About It 17 (2004). 10 The same Arlington Heights factors establishing intentional discrimination under equal protection are applicable as well to Residents’ claims under Title VIII and the Civil Rights Act of 1866. See Rizzo, supra, at 140, 144-45; Greater New Orleans, supra, at 568-77.
40

Case: 11-1159 Document: 003110545952 Page: 49 Date Filed: 05/27/2011
Id. at 268. See Rizzo, supra, at 140-45; Pryor v. National Collegiate Athletic Association, 288 F.3d 548, 562-65 (3d Cir. 2002).
1. Compelling adverse disparate impact upon AfricanAmerican and Hispanic residents.
The “impact of the official action” and “whether it bears more heavily on one race than another” is the “important starting point” for assessing discriminatory purpose. Arlington Heights at 267-68. In Reno v. Bossier Parish School Bd., 520 U.S. 471 (1997), the Court explained that the “impact of an official action is often probative of why the action was taken in the first place since people usually intend the natural consequences of their action.” Id. at 487.
In Point I, Residents compellingly demonstrated that the Township’s Gardens redevelopment project disproportionately adversely impacts AfricanAmerican and Hispanic residents in the Township and County. These proofs are sufficient to infer discriminatory intent to defeat summary judgment and present this issue for trial. See 2922 Sherman Ave. Tenants’Ass’n v. District of Columbia, 444 F.3d 673, 682-85 (D.C. Cir. 2006); The Committee Concerning Community Improvement v. City of Modesto, 583 F.3d 690, 702-06 (9th Cir. 2009).
2. Historical background of the Gardens redevelopment project.
The Residents also presented a history of the Gardens community that created inferences of discriminatory motives. Township officials were fully aware
41

Case: 11-1159 Document: 003110545952 Page: 50 Date Filed: 05/27/2011
of the demographics of the neighborhood, based upon observations of the neighborhood and the participation of Gardens residents at public meetings and hearings.11 One Township official stated that “the Gardens and the residents of the Gardens were a matter of distaste, scorn, embarrassment, and neglect.” JA 2249, #106-13, p. 1 (Boas Memo)12 As discussed in Point I-D above, officials gave minimal support for community-led initiatives to revitalize the community, and as early as 2000, before instituting any formal planning process to determine whether the neighborhood was blighted, completely abandoned efforts to rehabilitate the Gardens. JA 673-714, #17-17, pp. 1-42 (2000 Red. Rpt.); JA 1222-29, #17-35, pp. 1-8 (Acq. Program Memo); JA 2134-4, #106-08, pp. 2-12 (Pipes SJ Dec.) The Township even repudiated approximately $2 million it received through state Regional Contribution Agreements that was expressly intended for rehabilitating lower-income homes in Mt. Holly. JA 2142, #106-18, p. 10 (Pipes SJ Dec.) The Township’s refusal to seriously consider alternative solutions to improve the quality of life in the Gardens community and eliminate blight without displacing residents is indicative of the Township’s intent to dismantle and destroy this minority community.
11 JA 767-71, #17-20, p. 2-6 (9/16/02 Mtg. Min.); JA 874-931, 934-36, #17-24, pp. 8- 65, 68-70 (8/11/03 Mtg. Trans.). 12 Without benefit of discovery, Residents have not been able to confirm the author or establish the date of this memo obtained from the Township, but from the context, it is assumed that it was written by then-council member Joan Boas.
42

Case: 11-1159 Document: 003110545952 Page: 51 Date Filed: 05/27/2011
3. Sequence of events leading to the Township’s decision to demolish the Gardens.
The Residents further presented circumstantial evidence showing that
several years before the redevelopment plan was adopted in 2003, the Township
undertook a series of actions with discriminatory intent. The Township began
acquiring residential properties through tax foreclosures and purposefully
warehousing the properties as vacant rather than returning the properties to the
market. By the time that Township had declared the Gardens blighted in 2002, the
Township’s own vacant properties amounted to a vacancy rate of 7% –
exacerbating blighted conditions within the Gardens.13 During this same time, the
Township also began reducing municipal services to residents. JA 557, #17-08, p.
3 (Arocho Pr. Inj. Dec.); JA 576-77, #17-09, pp. 3-4 (Brooks Pr. Inj. Dec.); JA
2138, 2140-41, 2143, 2147, #106-08, pp. 6, 8-9, 11, 15 (Pipes SJ Dec.).
13 In 2000, the Gardens had a vacancy rate of 14%, with most of the vacant properties were privately owned.. JA 677, 704-14, #17-19, pp. 5, 32-42 (2000 Red. Rpt). By 2002, the vacancy rate had risen to 18%. JA 777, #17-21, p. 5 (2002 Red. Rpt.) While the Township’s redevelopment studies blame the vacancies on the prevalence of absentee owners and deterioration of properties, the 2002 Report acknowledges that the Township had acquired 23 units of the 327 units in the Gardens, or 7%, and had kept these units vacant. JA 781, #17-21, p. 9. In addition, Residents submitted a memo obtained from the Township entitled “Mount Holly Gardens Acquisition Program” which admits that the Township was considering a plan to purchase and demolish 15 units in anticipation of future redevelopment, and recognized that acquiring and “banking” properties would reduce future relocation costs. JA 1224, #17-35, p. 8. (Acq. Prog. Memo). Although the memo is undated, the context makes clear it was written after 1999 and before early 2001. JA 1223, #17-35, p. 7. Without benefit of discovery, Residents do not have more information regarding the author or other circumstances surrounding the memo.
43

Case: 11-1159 Document: 003110545952 Page: 52 Date Filed: 05/27/2011
Further, many Gardens residents had strongly voiced concerns at public hearings that they feared they would be forced out of their community. JA 767-71, #17-20, p. 2-6 (9/16/02 Mtg. Min.); JA 914- 931, #17-24, pp. 10-65 (8/11/03 Mtg. Trans.). In order to reduce opposition to the redevelopment project, Township officials gave residents false assurances – first, that that the project did not necessarily involve eminent domain, and later, when the plan was unveiled, that the plan was developed with residents’ interests in mind, that residents would not be displaced from the community, and would be provided replacement housing. JA 767, 772, #17-20, pp. 2, 7 (9/16/02 Mtg. Min.); JA 871-72, 934, 936, 938, 941-43, #17-24, pp. 5-6, 68, 70, 72, 75-77 (8/11/08 Mtg. Trans.). While residents testified about the diverse minority composition of the Gardens, the Township specifically targeted the Gardens – the neighborhood with the highest concentration of AfricanAmerican and Hispanic residents – as the only neighborhood slated for drastic and destructive redevelopment in the Township. JA 771, #17-20, p. 6 (9/16/02 Mtg. Min.); JA 911, 923, #17-24, pp. 47, 57 (8/11/03 Mtg. Trans.); JA 997, 1000, #1727, pp. 17, 24, (9/21/05 Mtg. Trans.); JA 1022, #17-28, p. 4-5 (3/14/05 Mtg. Trans.); JA 1253, #17-36, p. 24 (Master Plan).
4. Township’s disregard of procedural norms under state redevelopment law
The Residents’ evidence further demonstrates that the Township did not conduct this redevelopment planning process in an open, transparent process
44

Case: 11-1159 Document: 003110545952 Page: 53 Date Filed: 05/27/2011
consistent with all requirements of the LRHL, N.J.S.A. 40A:12A-1 et. seq. The LRHL mandates that a municipal governing body must first pass a resolution authorizing its planning board to conduct a preliminary study to determine whether blight criteria are met. N.J.S.A. 40A:12A-6(a). The planning board must then hold public hearings regarding its blight findings. N.J.S.A 40A:12:A-6(b). The LRHL further mandates that “[n]o redevelopment project shall be undertaken or carried out” until after the planning board hearing process is completed, the governing body formally declares the area blighted, and then adopts by ordinance after public comment a redevelopment plan. N.J.S.A 40A:12:A-7(a). See generally, Gallenthin Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344, 924 A.2d 447 (2007).
In this case, however, in 2000 the Township Council conducted its own blight study out of public view, without the required referral to the planning board and without any public hearings. Although the Township Council eventually “cured” its failure to comply with the LRHL’s procedures two years later in 2002 by passing the required resolution authorizing the planning board to conduct the “preliminary study,” by that time the Township had in effect already begun to implement its redevelopment agenda contrary to the LRHL by acquiring and warehousing vacant properties in the Gardens, as discussed above. JA 2175, #106-
45

Case: 11-1159 Document: 003110545952 Page: 54 Date Filed: 05/27/2011
12, p. 1 (Res. 2002-166).14 In addition, the Township and Redevelopers proceeded with relocation in a
manner deviating from state law. They submitted a relocation plan that contained significant inconsistencies with the redevelopment plan then in effect, such as the discrepancies as to number of units to be built in the redeveloped community, and that failed to provide meaningful information about the opportunities for replacement housing.15 Without instituting condemnation proceedings or giving residents notice to vacate that would trigger eligibility for relocation, as contemplated by N.J.A.C. 5:11-2.1(a), the Township picked an arbitrary date of August 1, 2006 to trigger eligibility for relocation assistance. JA 1043, #17-29, p. 9 (WRAP). As a result, the Township did not provide assistance to the approximately 92 resident households who had moved out prior to August, 2006, while offering relocation to those willing to move in anticipation of eventually
14 Residents are not relitigating this issue decided in state court, but rather use these facts to demonstrate that the Township’s procedures were unusual. 15 The redevelopment plan called for 228 new units, while the WRAP anticipated 520 units. JA 962, #17-26, p. 9; (WR Red. Plan); JA 560, #17-29, p. 6 (WRAP). While the WRAP contained a provision regarding first refusal for newly constructed units, it never specified whether any of the new units would be realistically affordable to Gardens residents or available prior to displacement, nor did it warn residents that if they needed relocation benefits to make the initial move out of the Gardens, they would receive no further assistance to enable them to buy a replacement unit. JA 145-46, #17-26, p.11-12.
46

Case: 11-1159 Document: 003110545952 Page: 55 Date Filed: 05/27/2011
being forced out through eminent domain.16 This evidence regarding deviations from procedural norms supports an
inference that although the Township was outwardly going through the motions of conducting public hearings and complying with relocation requirements, it had privately decided to dismantle the Gardens neighborhood and displace its predominately minority residents from the municipality.
5. Township’s departure from substantive planning norms. One of redevelopment’s stated goals is “promoting the physical development that will be most conducive to the social and economic improvement of the State and its several municipalities.” N.J.S.A. 40A:12A-2. See, Gallenthin, supra. As discussed under Point I-D, the record demonstrates that instead of using the redevelopment process to advance this goal, the Township officials selected a method of redeveloping the community that is most harmful to residents and most costly to the taxpayers and general public. Their refusal to consider less destructive alternatives is contrary to “responsible and reasonable Township planning process, in accordance with sound, comprehensive, professional and ethical planning principles,” JA 2386. #106-30, p. 20, and thus a departure from substantive norms. Furthermore, even assuming that the Township had no choice but to pursue
16 According to the 2002 Study, there were 269 households living in the Gardens, while the WRAP states there were 177 households remaining in 2006. JA 777, #17-21, p. 5; JA 1039, #17-29, p. 5.
47

Case: 11-1159 Document: 003110545952 Page: 56 Date Filed: 05/27/2011
total acquisition and demolition of the Gardens, the Residents presented ample evidence illustrating how the Township’s timing and manner in implementing the plan also constituted a departure from substantive norms. Instead of preserving the neighborhood until residents could be relocated and building replacement houses for existing residents before their housing was demolished, the Township chose to start aggressively acquiring and demolishing properties while the Gardens neighborhood was still intact, several years before actually needing the land where the occupied homes stood. JA 2254, #106-20, p. 1 (9/9/08 Twp. Press Rel.); JA 2389-90, #106-30, pp. 23-24 (Smith SJ Dec.)
The Residents’ expert also established that the Township conducted demolitions that were either not necessary or required solely due to Township’s own failure to properly secure and maintain its vacant properties. JA 392, 396, 398 #17-06, pp. 10, 14, 16 (Smith Pr. Inj. Dec.); JA 2374-75, #106-30, pp. 7-8 (Smith SJ Dec.). Further, the demolitions were disruptive, and caused damage to adjoining houses and removal of sidewalks.17 After demolishing the homes, the Township did not properly even seal the roofs and newly exposed exterior walls of the
17 JA 398, #17-06, p. 16 (Smith Pr. Inj. Dec.); JA 558, #17-08, p. 4 (Arocho Pr. Inj. Dec.); JA 578- 80, #17-09, pp. 5-7 (Brooks Pr. Inj. Dec.); JA 586- 87, #17-10, pp. 3- 4 (Cruz Pr. Inj. Dec.); JA 2130- 31, #106-07, pp. 3-4 (Cruz SJ Dec.); JA 237475, #106-30, pp. 8-9 (Smith SJ Dec.)
48

Case: 11-1159 Document: 003110545952 Page: 57 Date Filed: 05/27/2011
remaining occupied homes,18 The Residents also demonstrated that the Township’s redevelopment-related
activity lowered the real estate values, so that it became impossible for residents to sell their homes on the private real estate market.19 The Township took advantage of this situation by pressuring residents to sell their homes at deflated prices that did not represent fair market value, and were insufficient to purchase a replacement house in the surrounding area, ensuring that most Gardens residents would be forced to move out of the Township.20 At the same time, the increasingly blighted conditions the Township created in the Gardens gave residents little incentive to invest in their properties and added pressure on them to move.21 As a result, the Township succeeded in displacing approximately 169 households even without
18JA 2130- 31, #106-07, pp. 3-4 (Cruz SJ Dec.); JA 2375- 79, #106-30, pp. 9-13 (Smith SJ Dec.). 19 JA 591-606, #17-10, pp. 8-23 (Cruz Pr. Inj. Dec., Exh. A). 20 JA 73-74, #17-04, pp. 18-19 (Beveridge Pr. Inj. Dec.); JA 558-60, 567-73, #1708, p. 4-6, 13-19 (Arocho Pr. Inj. Dec. & Exh G); JA 588-89, 591-609, #17-10, pp. 5-6 (Cruz Pr. Inj. Dec. & Exh. A-B); JA 612, 614-19, #17-11, pp. 3, 5-10 (Simons Pr. Inj. Dec. & Exh. A-B); JA 1990-95, #106-02, pp. 7-11 (Beveridge SJ Dec.); JA 2131-32, #106-07, p. 4-5 (Cruz SJ Dec.) 21 JA 391-95,398-99 #17-06, pp. 9-13, 16-17 (Smith Pr. Inj. Dec.); JA 558, #17-08, p. 4 (Arocho Pr. Inj. Dec.); JA 581-83, #17-09, p. 8-10 (Brooks Pr. Inj. Dec.); JA 587, #17-10, p. 4 (Cruz Pr. Inj. Dec.); JA 2379-80, #106-30, pp. 13-14 (Smith SJ Dec.).
49

Case: 11-1159 Document: 003110545952 Page: 58 Date Filed: 05/27/2011
resorting to eminent domain.22 Residents have thus clearly presented sufficient evidence that the Township
not only demonstrated a glaring lack of concern for the needs and interests of the residents, but conveyed the message that the Residents were obstacles to and not participants in the redevelopment process. Such behavior of governmental officials towards their constituents must by all standards of civil decency be a deviation from the norm sufficient to infer discriminatory purpose.
B. Evidence Of The Foreseeable Results Of The Township’s Actions Support A Finding Of Intent And Creates A Sufficient Material Factual Dispute To Render Summary Judgment Inappropriate.
The Supreme Court has recognized the probative value of evidence that a defendant acted with knowledge of the likely result of its action as a means of proving discriminatory purpose. While it is true that voluntary acts and "awareness of consequences" alone do not necessitate a finding of discriminatory intent, Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979), "actions having foreseeable and anticipated disparate impact are relevant evidence to prove the ultimate fact, forbidden purpose.” Columbus Board of Education v. Penick, 443 U.S. 449, 464 (1979). See also, Ammons v. Dade County, 783 F.2d 982 (11th Cir. 1986); Dowdell v. City of Apopka, 698 F.2d 1181 (11th Cir. 1983).
As discussed above, Township officials knew that the Gardens was a diverse
22 JA 777, #17-21, p. 5 (2000 Red. Rpt); JA 1372, #30-02, p. 2 (Hoffman Pr. Inj. Dec.).
50

Case: 11-1159 Document: 003110545952 Page: 59 Date Filed: 05/27/2011
low-income community with a high proportion of African-American and Hispanic residents who would have difficulty in finding affordable housing within the Township. Residents have thus shown that the discriminatory effects of the Township’s actions – removal of low income minority population from the Township – were undeniably foreseeable,
C. The District Court Misapplied Summary Judgment Standards by Ignoring Material Facts In Dispute, Impermissibly Weighing The Evidence, And Erroneously Drawing Inferences In Favor Of The Township As Moving Party Rather Than In Favor of Residents.
The Court erroneously stated that the Residents had failed to support their claims with any documentary evidence, ignoring the volumes of Township documents such as Transcripts, resolutions, ordinances, reports, plans, and internal memos that the Residents had proffered into evidence, cited throughout this brief. JA 24, #114, p. 21 (SJ Op.). The Court incorrectly contended, for example, that the Residents’ claims that the Township lowered the prices of the Gardens homes through its redevelopment activities and pressured them to sell at less than fair market value were based upon “opinions” and “beliefs” set forth in “conclusory, self-serving affidavits.” JA 24, #114, p. 21, fn. 15 (SJ Op.). The Court ignored the Township’s own appraisal report that contained an unambiguous admission that that the Township’s redevelopment project was adversely affecting property values and making it impossible to sell Gardens homes on the private market. It was this
51

Case: 11-1159 Document: 003110545952 Page: 60 Date Filed: 05/27/2011
appraisal which served as the basis for the Township’s valuation of the homes, and as the sale price for the unit in question was determined based upon the Township’s recent acquisitions of other Gardens homes, this valuation that would clearly not constitute just compensation in a condemnation proceeding. Village of South Orange v. Alden Corp., 71 N.J. 362, 367-68, 365 A.2d 469 (1976); Jersey City Red. Agency v. Kugler, 58 N.J. 374, 277 A.2d 833 (1971). 23
Next, the Court improperly concluded that residents were being successfully relocated. It impermissibly relied on its prior findings in its Preliminary Injunction Opinion to conclude that residents were “pleased” with their new homes, enjoyed improved living situations, and were even better off financially. JA 25, #114, p. 22, fn. 16 (SJ Op.). These findings were presumably based on the Certification of Ms. Marcia Holt, an employee of Keating, submitted in opposition to the Preliminary Injunction Motion. Ms. Holt’s self-serving characterizations of Gardens residents’ motives for moving and their attitudes toward their new place
23 The Township’s appraisal stated that “market values in the Mount Holly Gardens neighborhood have declined during recent years because approximately half of the units are vacant and boarded up. As the units are acquired by the Township, and the revitalization project gets closer to its start date, the primary market for the available units will be the Township.” JA 593, #17-10, p. 10. The appraisal further noted an “adverse site condition” – “[A]s mentioned throughout this report, the subject neighborhood is part of a Township revitalization program. Approximately half of the units in the Mount Holly Gardens neighborhood are boarded up and vacant. The neighborhood is no longer attractive or feasible for future homebuyers and/or investors.” JA 593, #17-10, p. 10.
52

Case: 11-1159 Document: 003110545952 Page: 61 Date Filed: 05/27/2011
of residence is pure hearsay.24 F.R.E. 801, 802. Furthermore, Ms. Holt provided
only anecdotal evidence regarding selected residents, and while she mentioned
there were a few instances where the household’s monthly housing costs remained
the same or decreased, she did not ever discuss whether any homeowners were forced to assume significant new debt in order to relocate. 25
Furthermore, while accepting Ms. Holt’s testimony at face value, the District
Court ignored evidence that raised clear factual disputes as to whether the
relocation was successful and whether residents were “pleased,” including the
Declaration of a former Gardens resident, Ms. Alandia Warthen, and the Report of
the New Jersey Public Advocate. JA 626-630, #17-13, pp. 1-6; JA 1688-1731, #54-
24 While evidentiary standards may be relaxed for purposes of preliminary injunction motions, these statements were not competent evidence and should not have been considered for purposes of summary judgment. Kos Pharmaceuticals v. Andrx Corporation, 369 F.3d 700 (3d Cir 2004).
25 The only direct evidence of former residents’ satisfaction with their new living arrangement is one Certification formerly submitted by the Township in state court proceedings made by a tenant made in 2007 shortly after relocating to a new unit, and even that statement contains no information about whether the tenant’s housing costs and general financial circumstances changed after moving from the Gardens. JA 2559-2562, #112-03, pp. 77-80 (Bryant Cert.). The Township also submitted one hearsay document, a letter from a Gardens property owner expressing interest in selling her property to the Township, and again offering no information about her circumstances after relocation. JA 2563-64; #112-03, pp. 8182 (Brito Letter).
53

Case: 11-1159 Document: 003110545952 Page: 62 Date Filed: 05/27/2011
02, pp. 1-44 (NJ Publ. Adv. Rpt) 26 Finally, the Court accepted without question
the Township’s representation that residents who wanted to remain in Mount Holly
were able to do so. JA 25, #114, p. 22, fn. 16 (SJ Op.). At the same time, it
ignored all of the evidence submitted by Residents to the contrary, including the
statistical data that showed that two-thirds of the displaced residents were relocated
outside of the Township, the resident surveys and public meeting Transcripts
where Gardens residents expressed a strong desire to remain in the neighborhood,
the expert testimony regarding the shortage of affordable housing in the region,
and the Declarations of Gardens residents describing their limited income and difficulty in finding affordable housing in the Township.27
The Court also erroneously characterized the testimony before the Council
and Planning Board in an unjustifiably favorable light for the benefit of the
26 The NJ Public Advocate Report is admissible pursuant to F.R.E. 803(8) as a public record or report of a public agency setting forth factual findings resulting from an investigation made pursuant to authority granted by law.
27 JA 67-68, 71-75, #17-04, pp. 12-13, 16-20 (Beveridge Pr. Inj. Dec.); JA 560, #17-08, p. 6 (Arocho Pr. Inj. Dec.); JA 578, #17-09, p. 5 (Brooks Pr. Inj. Dec.); JA 588-89, #17-10, pp. 5-6 (Cruz Pr. Inj. Dec.); JA 624-625, #17-12, pp. 5-6 (Vicente Pr. Inj. Dec.); JA 633, #17-14, p. 3 (Wright Pr. Inj. Dec.); JA 739-765, #17-19, pp. 1-27 (2000 Resident Survey); JA 914- 931, #17-24, pp. 10-65 (8/11/03 Mtg. Trans.); JA 996-1010, #17-27, pp. 16-30 (2/21/05 Mtg. Trans.); JA 1019-1030; #17-28, pp. 2-13 (3/14/05 Mtg. Trans.); JA 1104-1108, #17-30, pp. 1-5 (Resident Survey Results); JA 1158, #17-33, p. 23 (1/24/08 Twp. Resp. to NJ Publ. Adv.); JA 1160-64, #17-33, pp. 1-5 (Reloc. Chart); JA 2044, 2046-51, #106-02, pp. 4, 611 (Beveridge Summ. Jdg. Dec.); JA 2264-66, # 106-21, pp. 8-10 (9/15/08 Mtg. Min.); JA 2271-72, #106-22, pp. 3-4 (9/22/08 Mtg. Min.).
54

Case: 11-1159 Document: 003110545952 Page: 63 Date Filed: 05/27/2011
Township, stating that “many viewpoints were expressed” and some were “supportive and hopeful,” while in reality, every Gardens resident who spoke at the hearings opposed the plan that called for their forced relocation, and their input was ignored.28 The Court inferred without basis that Township officials “welcomed and encouraged” residents’ input, even though the public hearings in question were mandated by the LRHL, N.J.S.A 40A:12A-6, 7. JA 26, #114, p. 23 (SJ Op.)29 The Court further assumed that the Township officials acted out of “significant concern for the Gardens residents’ welfare” JA 27, #114, p. 24 (SJ Op.), accepting at face value their self-serving statements, while completely ignoring the evidence presented by the Residents that showed these statements were directly contradicted by the officials’ actions, as discussed in detail above. Similarly, the Court interpreted the Township’s revisions of the redevelopment plan to mean that the Township was interested in public input, JA 28, #114, p. 25 (SJ Op.). The District Court ignored evidence that the Redevelopers had prepared “concept plans” upon which the revisions were based, ignoring residents’ concerns, and the Court failed
28 JA 26, #114, p. 23 (SJ Opinion); JA 914- 931, #17-24, pp. 10-65 (8/11/03 Mtg. Trans.); JA 996-1010, #17-27, pp. 16-30 (2/21/05 Mtg. Trans.); JA 1019-1030; #17-28, pp. 2-13 (3/14/05 Mtg. Trans.); JA 2264-66, # 106-21, pp. 8-10 (9/15/08 Mtg. Min.); JA 2271-72, #106-22, pp. 3-4 (9/22/08 Mtg. Min.). 29 There were 3 resident meetings conducted outside the statutorily mandated process, but they were conducted by Keating and not by the Township. JA 109495, #17-30, pp. 2-3 (Twp Status Rpt. ); JA 1432-1437; #30-11, pp. 1-3; #30-12, pp. 1-3 (Mtg. Notices). The Court also did not consider Residents’ evidence that their input was largely ignored. JA 589-90, #17-10, pp. 6-7 (Cruz Pr. Inj. Dec.).
55

Case: 11-1159 Document: 003110545952 Page: 64 Date Filed: 05/27/2011
to draw inferences favorable to the non-moving party that the redevelopment plan was amendedto accommodate the needs of the selected redevelopers rather than out of concern for the residents. JA 1102-03, #17-30, pp. 10-11 (Twp. Suppl. Status Rpt); JA 1139-41, #17-33, pp. 6-8 (12/6/07 Twp Letter to NJ Publ. Adv.).
III. THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT WITHOUT ALLOWING RESIDENTS REASONABLE OPPORTUNITY FOR DISCOVERY.
F.R.C.P. 56(c), governing summary judgment, provides for the entry of summary judgment, after adequate time for discovery. Celotex Corporation v. Catrett, 477 U.S. 317, 322 (1986) (emphasis added). Where the party opposing the motion demonstrates that for specified reasons it is unable to present facts essential to its opposition, the court is obligated to deny the motion, order a continuance for appropriate discovery or provide another just order. F.R.C.P 56(d); Bradley v. United States, 299 F.2d 197, 206-07 (3d. Cir 2002). See also F.R.C.P 12(d).
The Residents were most significantly prejudiced by lack of discovery regarding their intentional discrimination claims, as these involve the state of mind of municipal actors and critical facts exclusively within the Township’s knowledge and control. Although Residents presented sufficient proofs of circumstantial evidence under the Arlington Heights test, as discussed above, Residents were denied opportunity for discovery of direct evidence from the Township. The District Court‘s reason for denying discovery, that it doubted that a Township
56

Case: 11-1159 Document: 003110545952 Page: 65 Date Filed: 05/27/2011
official would ever admit to racial animus in a deposition, is in direct contradiction to F.R.C. P 26(b). JA 24-25, #114, p. 21-22 (SJ Op.). 30
The District Court also erroneously decided that discovery was not warranted because the Residents had already been in litigation over the redevelopment plan for several years and could obtain certain Township documents through Open Public Records requests, even though the scope of discovery is far wider than that of public information requests. United States v. Weber Aircraft Corp., 465 U.S. 792, 803 (1984). JA 9-10, #114, p. 6-7 (SJ Op.).
Finally, the District Court summarily concluded that no discovery “appeared calculated or even remotely likely to provide the missing proofs,” without discussing the specific discovery proposed in Residents’ Rule 56 Declaration. JA 29, #114, p.26 (SJ Op.). The District Court’s ruling is inconsistent with Rule 26 and Rule 56 and mandates reversal of summary judgment.
CONCLUSION For all the foregoing reasons, it is respectfully requested that the Order granting Appellees summary judgment be reversed, and the matter be remanded for discovery and a plenary trial.
30 As explained in the Resident’s Rule 56(f) Declaration, no discovery had been conducted in this case. JA 2424-31, #106-41, pp. 1-8. Indeed, during the two and a half years the matter was in litigation, the Defendants had never even answered the Complaint.
57

Case: 11-1159 Document: 003110545952 Page: 66 Date Filed: 05/27/2011

Dated: May 27, 2011

Respectfully submitted, By: /s/ Olga D. Pomar, Esquire OLGA D. POMAR, ESQUIRE SOUTH JERSEY LEGAL SERVICES, INC. Attorneys for Appellants
By: /s/ Susan Ann Silverstein, Esq. SUSAN ANN SILVERSTEIN, ESQ. AARP FOUNDATION LITIGATION Attorneys for Appellants
/s/ R. William Potter R. WILLIAM POTTER, ESQ. POTTER & DICKSON Attorneys for Appellants

58

Case: 11-1159 Document: 003110545952 Page: 67 Date Filed: 05/27/2011

COMBINED REQUIRED F.R.A.P. & 3RD CIR. L.A.R CERTIFICATIONS In accordance with the Federal Rules of Appellate Procedure and the 3rd

Circuit Local Appellate Rules, I hereby certify that:

1. I am a member in good standing of the Bar of the United States Court of

Appeals for the Third Circuit.

2. This Brief complies with type-volume limitations of F.R.A.P. 32(a)(7)(B)

because the principal portions of the Brief contain 13,887 words according to the

“Word Count” function of the MS Office Word 2007 software program, excluding

the parts of the brief exempted by F.R A.P. 32(a)(7)(B)(iii).

3. This Brief complies with the type-face limitations of F.R.A.P. 32(a)(5)

and the type-style requirements of F.R.A.P. 32(a)(6) because the brief has been

prepared in proportionally spaced typeface using 14 point Times New Roman in

MS Office Word 2007. 4. This Brief complies with 3rd Cir. L.A.R 3l.l(c) because text in the

electronic copy of this Brief is identical to the text in the paper copies. The

electronic copy of this Brief was scanned for viruses by Norton Anti-Virus Internet

Security (Version 17.8.0.5) and no viruses were detected.

Dated: May 27, 2011

By: /s/ Olga D. Pomar, Esquire OLGA D. POMAR, ESQUIRE SOUTH JERSEY LEGAL SERVICES, INC. Attorneys for Appellants

A

Case: 11-1159 Document: 003110545952 Page: 68 Date Filed: 05/27/2011
CERTIFICATION OF SERVICE I certify that in addition to electronic service and in accordance with F.R.A.P. 25(c)(1)(B) & (4) and 3rd Cir. L.A.R. 31.1(a), one paper copy of Appellants’ Brief was served on May 27, 2011, to each of the following counsel of record for Appellees by first class regular mail at their offices listed below:

M. James Maley, Jr., Esq.Maley & Associates 931 Haddon Avenue Suite 210 Collingswood, NJ 08108 (Counsel for Appellees Township of Mt. Holly, Township Council of Mt. Holly, Kathleen Hoffman, and Brooke Tidswell IIII)

William DeSantis, Esq. Ballard Spahr Andrews & Ingersoll, LLP Plaza 1000 Main #500 Voorhees, NJ 08043 (Counsel for Appellee Keating Urban Partners, L.L.C.)

Guy Mercogliano, Esq. Sweeney & Sheehan, P.C. Sentry Office Plaza, Suite 500 216 Haddon Avenue Westmont, NJ 08108 (Counsel for Appellee Triad Associates, Inc.)

Dated: May 27, 2011

By: /s/ Olga D. Pomar, Esquire OLGA D. POMAR, ESQUIRE SOUTH JERSEY LEGAL SERVICES, INC. Attorneys for Appellants

B

Case: 11-1159 Document: 003110545953 Page: 1 Date Filed: 05/27/2011

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Case No: 11-1159
MT. HOLLY GARDENS CITIZENS IN ACTION, INC., a New Jersey non-profit corporation, ANA AROCHO, VIVIAN BROOKS, GEORGE CHAMBERS, DOROTHY CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE
HOWELL, NANCY LOPEZ, DOLORES NIXON, EONARDO PAGAN, JAMES POTTER, HENRY SIMONS, JOYCE STARLING, ROBERT TIGAR, TAISHA
TIRADO, RADAMES TORRES BURGOS, LILLIAN TORRES-MORENO, DAGMAR VICENTE, ALANDIA WARTHEN, SHEILA WARTHEN, CHARLIE MAE
WILSON and LEONA WRIGHT,
APPELLANTS,
vs.
TOWNSHIP OF MOUNT HOLLY, a municipal corporation of the State of New Jersey, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, as governing body of the Township of Mount Holly, KATHLEEN HOFFMAN, as Township Manager of the
Township of Mount Holly, JULES THIESSEN, as Mayor of the Township of Mount Holly, KEATING URBAN PARTNERS, L.L.C., a company doing business in New Jersey, TRIAD ASSOCIATES, INC., a corporation doing business in New Jersey,
APPELLEES.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Case No. 08-cv-02584 (JHR)

JOINT APPENDIX VOL. 1 OF 7 PP. 1 - 55
ON BEHALF OF APPELANTS

SOUTH JERSEY LEGAL SERVICES, INC. Douglas E. Gershuny, Ex. Dir. 745 Market Street Camden, NJ 08102 (856)964-2010, Ext. 6232 By: Olga D. Pomar, Esq. Attorneys for Appellants

AARP FOUNDATION LITIGATION 601 E Street, NW Washington, DC 20049 (202) 434-2159 By: Susan Ann Silverstein, Esq. Attorneys for Appellants

POTTER & DICKSON 194 Nassau Street Princeton, NJ 08542 (609) 921-9555 By: R. William Potter, Esq. Attorneys for Appellants

Case: 11-1159 Document: 003110545953 Page: 2 Date Filed: 05/27/2011
JOINT APPENDIX TABLE OF CONTENTS
VOLUME ONE #116 Notice of Appeal..............................................................................................1 #115 Order of District Court granting summary judgment
(entered January 3, 2011) ................................................................................3 #114 Opinion of District Court granting summary judgment (entered January 3, 2011)...........................................................................................4 District Court Civil Docket ......................................................................................32
VOLUME TWO #17-04 Declaration of Andrew A. Beveridge, Ph.D in support
of Plaintiffs-Appellants’ Motion for Preliminary Injunction......................56 #17-04 Exhibit A, Curriculum Vitae ..............................................................78 #17-04 Exhibit B, Census Block Map of Gardens Area .................................95 #17-04 Exhibit C, Chart, Various Cost and Affordability Calculations ........96 #17-04 Exhibit D, Chart Showing HUD and NJ Median Income Data .........98 #17-04 Exhibit E, Chart, Availability of Low-Income
Affordable Housing .........................................................................101 #17-04 Exhibit F, Chart, Racial Composition in Mt. Holly .........................103 #17-04 Exhibit G, Map, Percent Minority in Mt. Holly ...............................105 #17-04 Exhibit H, Chart, Expected Loss of Affordable Housing ................106 #17-04 Exhibit I, Chart, Census Data ...........................................................108 #17-04 Exhibit J, Raw CHAS Tables for 2000 ............................................121
i

Case: 11-1159 Document: 003110545953 Page: 3 Date Filed: 05/27/2011
#17-05 Exhibit K, Single Family Home Listings from www.realtor.com .....................................................................126
#17-05 Exhibit L, Condo and Townhouse Listings from www.realtor.com .....................................................................348
#17-05 Exhibit M, Rental Listings from www.realtor.com ..........................364 #17-06 Declaration of Declaration of Gray Smith, AIA, AICP in support
of Plaintiffs-Appellants’ Motion for Preliminary Injunction .................383 #17-06 Exhibit A, Curriculum Vitae ............................................................408 #17-07 Exhibit C, Photographs ....................................................................409
VOLUME THREE #17-08 Declaration of Ana Arocho in support of Plaintiffs-Appellants’
Motion for Preliminary Injunction ..........................................................555 #17-08 Exhibit A, Photograph.......................................................................561 #17-08 Exhibit B, Photograph .......................................................................562 #17-08 Exhibit C, Photograph .......................................................................563 #17-08 Exhibit D, Photograph ......................................................................564 #17-08 Exhibit E, Photograph .......................................................................565 #17-08 Exhibit F, Photograph ......................................................................566 #17-08 Exhibit G, Triad Interview Notice ....................................................567 #17-09 Declaration of Vivian Brooks in support of Plaintiffs-Appellants’
Motion for Preliminary Injunction ..........................................................574 #17-10 Declaration of Santos Cruz in support of Plaintiffs-Appellants’
Motion for Preliminary Injunction...........................................................584
ii

Case: 11-1159 Document: 003110545953 Page: 4 Date Filed: 05/27/2011
#17-10 Exhibit A, Appraisal of 376 S. Martin Ave., Mt Holly, NJ .............591 #17-10 Exhibit B, 3 Trend Real Estate Listings, Mt. Holly, NJ ..................607 #17-11 Declaration of Henry Simons in support of Plaintiffs-Appellants’
Motion for Preliminary Injunction...........................................................610 #17-11 Exhibit A, June 2, 2007 Letter ..........................................................614 #17-11 Exhibit B, Contract of Sale ..............................................................615 #17-12 Declaration of Dagmar Vicente in support of Plaintiffs-Appellants’
Motion for Preliminary Injunction ..........................................................620 #17-13 Declaration of Alandia Warthen in support of Plaintiffs-Appellants’
Motion for Preliminary Injunction...........................................................626 #17-14 Declaration of Leona Wright in support of Plaintiffs-Appellants’
Motion for Preliminary Injunction ..........................................................631 #17-15 Declaration of Olga D. Pomar, Esq. in support of
Plaintiffs-Appellants’ Motion for Preliminary Injunction ......................636 #17-16 Exhibit A, Feb. 21, 2005 SJLS Comments to Twp. Pl. Bd. .............643 #17-16 Exhibit B, Alan Mallach, AIA, AICP,
Feb. 2005 Report to Twp. Pl. Bd. .....................................................651 #17-16 Exhibit C, Alan Mallach, AIA, AICP , March 2005
Suppl. Report to Twp. Pl. Bd. ...........................................................670 #17-17 Exhibit D1, 2000 Redevelopment Area Determination Report .......673 #17-18 Exhibit D2, 2000 Redevelopment Area Determination
Report Photographs ..........................................................................715 #17-19 Exhibit E, 2000 Neighborhood Issues Analysis - Survey.................739 #17-20 Exhibit F, Minutes of Sept. 16, 2002 Twp. Pl. Bd. Meeting ............766
iii

Case: 11-1159 Document: 003110545953 Page: 5 Date Filed: 05/27/2011
#17-21 Exhibit G1, 2002 Redevelopment Area Determination Report ........773 #17-22 Exhibit G2, 2002 Redevelopment Area Determination
Report Photographs ...........................................................................816 #17-23 Exhibit H, Gardens Area Redevelopment Plan ................................842 #17-24 Exhibit I, Transcript of Aug. 11, 2003 Twp. Council Meeting ........867 #17-25 Exhibit J, Twp. Amended Ordinance 2003-12 .................................951 #17-26 Exhibit K, West Rancocas Redevelopment Plan ..............................954 #17-27 Exhibit L, Transcript of Feb. 21, 2005 Twp. Pl. Bd. Meeting ..........981 #17-28 Exhibit M, Transcript of March 14, 2005
Twp. Council Meeting.....................................................................1018 #17-29 Exhibit N, Twp. Ordinance 2005-07...............................................1033
VOLUME FOUR #17-29 Exhibit O, Workable Relocation Assist. Plan .................................1035 #17-29 Exhibit P, Workable Relocation Assist. Plan Appendix.................1054 #17-30 Exhibit Q, Citizens in Action et al v. Township of
Mount Holly, Docket No. BUR-L-3027-03, May 25, 2007 Twp. Counsel’s Status Report to Court ...................1093 #17-30 Exhibit R, Citizens in Action et al v. Township of Mount Holly, Docket No. BUR-L-3027-03, June 19, 2007 Twp. Counsel’s Supplemental Report to Court.......1100 #17-30 Exhibit S, Resident Survey Results.................................................1104 #17-30 Exhibit T, Concept Plan ..................................................................1109
iv

Case: 11-1159 Document: 003110545953 Page: 6 Date Filed: 05/27/2011
#17-31 Exhibit U, Citizens in Action et al v. Township of Mount Holly, Docket No. A-1059-05T3, July 5, 2007 NJ App. Div. Opinion.................................................1114
#17-32 Exhibit V, Citizens in Action et al. v. Township of Mount Holly, Sept. Term 2007, No. 61,445, Feb. 5, 2008 NJ Supreme Court Order............................................1133
#17-33 Exhibit W, Twp. Counsel’s Letter to NJ Public Advocate, Dec. 6, 2007.....................................................................................1134
#17-33 Exhibit X, Twp. Statement to NJ Public Advocate. Dec. 12, 2007...................................................................................1146
#17-33 Exhibit Y, Twp. Response to NJ Public Advocate’s Questions, Jan. 24, 2008....................................................................................1149
#17-33 Exhibit Z, Relocation Chart ............................................................1160
#17-34 Exhibit AA, Dec. 1989 Mount Holly Gardens Acquisition and Development Plan................................................1165
#17-35 Exhibit BB, Dec. 28, 2007 SJLS Public Records Request to Twp. ..............................................................1217
#17-35 Exhibit CC, SJLS March 20, 2008 Public Records Request to Twp. ..............................................................1219
#17-35 Exhibit DD, Undated Twp. Acquisition Program Memo ...............1222
#17-36 Exhibit EE, April 2000 Twp. Master Plan .....................................1230
#17-36 Exhibit FF, June 2007 Twp. Master Plan Reexamination .............1303
#17-37 Exhibit GG, Minutes of Sept. 10, 2007 Twp. Council Meeting .....1335
#17-37 Exhibit HH, Twp. Ordinance 2008-12 ...........................................1340
#17-37 Exhibit II, Minutes of May, 27, 2008 Twp. Council Meeting ........1343
v

Case: 11-1159 Document: 003110545953 Page: 7 Date Filed: 05/27/2011

#18-06

Exhibit D to Declaration of M. James Maley, Esq, in support of Defendant-Appellee Township’s Motion to Dismiss, Citizens in Action et al. v. Mount Holly Township, Docket No. BUR-L-3027-03, June 20, 2004 Opinion ....................1349

#18-09 Exhibit G to Declaration of M. James Maley, Esq, in support of Defendant-Appellee Township’s Motion to Dismiss, Citizens in Action et al. v. Mount Holly Township, Docket No. BUR-L-3027-03, May 5, 2005 Opinion ......................1360

#30-02 Certification of Kathleen Hoffman in opposition to Plaintiffs-Appellants’ Preliminary Injunction Motion ..........................1371

#30-02 Exhibit A, Summary Sheet, Sources and Uses of funds ................1380

#30-02 Exhibit B, Joseph T. Kenney, April 28, 2004 Rehab Work Write-up ....................................................................1382

#30-02 Exhibit C, Joseph T. Kenney Resume ............................................1387

#30-02 Exhibit D, Minutes of Sept. 24, 2007 Twp. Council Meeting ........1392

#30-03 Certification of Marcia Holt in opposition to Plaintiffs-Appellants’ Preliminary Injunction Motion ..........................1394

#30-03 Exhibit A, Notices of Demolitions .................................................1408

#30-04 Certification of Michael Scencindiver in opposition to Plaintiffs-Appellants’ Preliminary Injunction Motion ......................1412

#30-04 Exhibit A, U.S. HUD Manual Excerpts .........................................1418

#30-05 Certification of Jim Maley in opposition to Plaintiffs-Appellants’ Preliminary Injunction Motion ..............................................................1426

#30-11 Exhibit F, March 3, 2006 Notice to residents of 3 meetings .........1432

#30-12 Exhibit G, March 3, 2006 Notice to residents of 2 meetings .........1435

#30-13 Exhibit H, Citizens in Action et al. v. Township of

vi

Case: 11-1159 Document: 003110545953 Page: 8 Date Filed: 05/27/2011
Mount Holly, Docket No. BUR-L-3027-03, Transcript of June 27, 2007 hearing................................................1438
VOLUME FIVE
#34-02 Second Declaration of Olga D. Pomar, Esq. in reply and in support of Plaintiffs-Appellants’ Motion for Preliminary Injunction ...........................................................................1459
#34-02 Exhibit A, Citizens in Action et al. v. Township of Mount Holly, Docket No. BUR-L-3027-03, July 26, 2004 Order .......................................................................1461
#34-02 Exhibit B, Citizens in Action et al. v. Township of Mount Holly, Docket No. BUR-L-3027-03, March 13, 2006 Order ...................................................................1465
#34-02 Exhibit C, Citizens in Action et al. v. Township of Mount Holly, Docket No. A-1099-05T3, May 1, 2007 App. Div. Remand Order .........................................1467
#34-02 Exhibit D, Citizens in Action et al. v. Township of Mount Holly, Docket No. A-1099-05T3, May 29, 2007 App. Div. Suppl. Order ...........................................1468
#34-02 Exhibit E, Citizens in Action et al. v. Township of Mount Holly, Docket No. A-1099-05T3, Sept. 11, 2007 App. Div. Stay Order ..............................................1469
#34-02 Exhibit F, Real Estate Listings provided by Triad .........................1470
#34-03 Declaration of Gray Smith, AIA, AICP, in reply and in support of Plaintiffs-Appellants’ Motion for Preliminary Injunction.....................1505
#34-03 Exhibit A, Resume .........................................................................1520
#34-03 Exhibit B, 1st Excerpt from U.S. HUD Manual ............................1521
#34-03 Exhibit C, 2nd Excerpt from U.S. HUD Manual ...........................1535
vii

Case: 11-1159 Document: 003110545953 Page: 9 Date Filed: 05/27/2011
#37-01 Twp. Ordinance 2008-05, submitted by Defendant-Appellee Township ...... …………………………………..1572
#37-02 Revised West Rancocas Redevelopment Plan, submitted by Defendant-Appellee Township, Part 1 ...........................1576
#37-03 Revised West Rancocas Redevelopment Plan, submitted by Defendant-Appellee Township, Part 2 ...........................1619
#54-01 Supplemental Declaration of Olga D. Pomar, Esq. in support of Plaintiffs-Appellants’ Motion for Preliminary Injunction ................1686
#54-02 Exhibit A, New Jersey Public Advocate Nov. 2008 Report, “Evicted from the American Dream: The Redevelopment of Mount Holly Gardens”................................................................1688
#65-02 Declaration of Olga D. Pomar, Esq. in support of PlaintiffsAppellants application for Temporary Restraining Order.................... 1732
#65-07 Exhibit E, Photographs................................................................... 1737
#65-08 Exhibit F, Suppl. Report of Gray Smith, AIA, AICP .................... 1740
#65-09 Declaration of Nancy Lopez in support of Plaintiffs-Appellants application for Temporary Restraining Order ...................................... 1759
#67-03 Certification of Thomas Casey in opposition to PlaintiffsAppellants application for Temporary Restraining Order.................... 1762
#71 Plaintiff-Appellants’ Second Amended Complaint...............................1788
#76-01 (Second) Certification of Marcia Holt in opposition to Plaintiffs-Appellants’ Motion for Preliminary Injunction (redacted) ...1843
#76-02 Exhibit C, Aug. 28, 2007 Twp. Letter to Ms. Roberts ...................1877
#76-02 Exhibit D, Triad’s Notices to residents ..........................................1879
#76-02 Exhibit E, Real estate listing of 7850 W Brown St., Peoria, AZ and photographs ...........................................................1900
viii

Case: 11-1159 Document: 003110545953 Page: 10 Date Filed: 05/27/2011
#76-02 Exhibit H, Summary page from website www.realtor.com ...........1920
#76-02 Exhibit R, Photographs ...................................................................1923
#76-03 Certification of Thomas Mastrangelo in opposition to Plaintiffs-Appellants’ Motion for Preliminary Injunction.....................1929
#76-04 Citizens in Action et al. v. Township of Mount Holly, Docket No. BUR-L-3027-03, Certification of Carlos Rodriguez .........1935
#81-01 Second Supplemental Declaration of Olga D. Pomar, Esq. in support of Plaintiffs-Appellants’ Motion for Preliminary Injunction ................1944
#81-02 Exhibit A, Citizens in Action et al. v. Township of Mount Holly, Docket No. BUR-L-3027-03, Certification of Lyra Baedresingh.................................................. 1946
#84-03 Certification of Twp. Counsel in support of Defendant-Appellee Township’s Motion to Dismiss Second Amended Complaint ..............1949
#84-04 Exhibit A, Citizens in Action et al. v. Township of Mount Holly, Docket No. BUR-L-3027-03, Aug. 30, 2005 Opinion ........1952
#84-05 Exhibit C, In The Matter of the Application of the Township of Mount Holly, Docket No. BUR-L-2531-02, Feb. 16, 2006 Third Round Final Judgment of Compliance and Repose ..............1965
#94 Opinion Denying Plaintiffs-Appellants’ Motion for Preliminary Injunction ...........................................................................1969
VOLUME SIX
#106-01 Plaintiffs-Appellants Responding Statement of Material Facts in opposition to Defendant-Appellees Summary Judgment Motion........1984
#106-02 Declaration of Andrew A. Beveridge, Ph.D in opposition to Defendant-Appellees Summary Judgment Motion .............................2041
#106-03 Exhibit A, Curriculum Vitae ......................................................... 2052
ix

Case: 11-1159 Document: 003110545953 Page: 11 Date Filed: 05/27/2011
#106-04 Exhibit B, Chart, Expected Loss of Affordable Housing ............. 2069 #106-05 Exhibit C, Listings in Mount Holly and Environs .........................2071 #106-06 Exhibit D, Listings in Wide Area, Including Mt. Holly,
$84,000 or Less ............................................................................ 2077 #106-07 Declaration of Santos Cruz in opposition to Defendant-Appellees
Summary Judgment Motion ................................................................2128 #106-08 Declaration of Kent Pipes in opposition to Defendant-Appellees
Summary Judgment Motion .................................................................2133 #106-09 Declaration of Olga D. Pomar, Esq. in opposition to
Defendant-Appellees Summary Judgment Motion ..............................2149 #106-10 Exhibit A, SJLS Aug. 11, 2003 Comments to Twp. Council........2159 #106-11 Exhibit B, SJLS March 14, 2005 Comments to Twp. Council .....2167 #106-12 Exhibit C, Twp. Council Resolution 2002-166. ...........................2175 #106-13 Exhibit D, Transcript of Sept. 16, 2002 Twp. Pl. Bd. Hearing......2176 #106-14 Exhibit E, Twp. Pl. Bd. Resolution 2002-10. ...............................2201 #106-15 Exhibit F, Twp. Council Resolution 2002-217. ............................2204 #106-16 Exhibit G, Twp. Pl. Bd. Resolution #10 .......................................2205 #106-17 Exhibit H, Master Redevelopment Agreement..............................2206 #106-18 Exhibit I, Twp. Undated Memo “From Joan” ...............................2249 #106-19 Exhibit J, Twp. Ordinance 2003-37. .............................................2251 #106-20 Exhibit K, Twp. Sept. 9, 2008 Press Release ................................2254 #106-21 Exhibit L, Minutes of Sept. 15, 2008 Twp. Pl. Bd Meeting..........2257
x

Case: 11-1159 Document: 003110545953 Page: 12 Date Filed: 05/27/2011
#106-22 Exhibit M, Minutes of Sept. 22, 2008 Twp. Council Meeting. .....2269 #106-23 Exhibit N, Minutes of Oct. 14, 2008 Twp. Pl. Bd Meeting...........2276 #106-24 Exhibit O, Agenda for Sept. 30, 2009 Twp. Pl. Bd Meeting.........2284 #106-25 Exhibit P, SJLS Sept. 15, 2008 Comments to Twp. Pl. Bd. .........2286 #106-26 Exhibit Q, SJLS Sept. 22, 2008 Comments to Twp. Council........2297 #106-27 Exhibit R, Twp. Council Resolutions Authorizing Purchases
of Gardens properties .....................................................................2308 #106-28 Exhibit S, Nov. 26, 2008 Letter from Twp. Counsel.....................2363 #106-29 Exhibit T, July 21, 2009 Letter from Twp. Counsel......................2365 #106-30 Declaration of Gray Smith in opposition to Defendant-Appellees
Summary Judgment Motion .................................................................2367 #106-31 Exhibit A1, Photographs ................................................................2391 #106-32 Exhibit A2, Photographs ...............................................................2394 #106-33 Exhibit A3, Photographs ................................................................2397 #106-34 Exhibit A4, Photographs ................................................................2400 #106-35 Exhibit A5, Photographs ................................................................2403 #106-36 Exhibit A6, Photographs ................................................................2406 #106-37 Exhibit A7, Photographs ................................................................2409 #106-38 Exhibit A8, Photographs ................................................................2412 #106-39 Exhibit A9, Photographs ................................................................2413 #106-40 Exhibit A10, Photographs ..............................................................2418
xi

Case: 11-1159 Document: 003110545953 Page: 13 Date Filed: 05/27/2011
106#-41 Rule 56(f) Declaration of Olga D. Pomar, Esq. in opposition to Defendant-Appellees Summary Judgment Motion..........................2421
VOLUME SEVEN
#111-01 Exhibit A to Defendant-Appellee Triad’s Brief in support of Defendants-Appellees’ Motion for Summary Judgment, Excerpts from Complaint .....................................................................2432
#111-05 Exhibit E to Defendant-Appellee Triad’s Brief in support of Defendants-Appellees’ Motion for Summary Judgment, Professional Service Agreement ..........................................................2438
#112-01 Defendant-Appellee Township’s Statement of Undisputed Facts in support of Defendants-Appellees’ Motion for Summary Judgment .............................................................................2445
#112-02 Certification of Township’s Counsel in support of DefendantsAppellees’ Motion for Summary Judgment .........................................2477
#112-03 Exhibit A, Transcript of Aug. 19, 2002 Twp. Pl. Bd. Meeting .....2482
#112-03 Exhibit B, Transcript of Sept. 8, 2003 Twp. Council Meeting......2514
#112-03 Exhibit C, Jan. 12, 2010 Letter from Santos Cruz, waiver, and e-mail communication.............................................................2555
#112-03 Exhibit D, Citizens in Action et al. v. Township of Mount Holly, Docket No. BUR-L-3027-03, Certification of Valorie Bryant......2559
#112-03 Exhibit E, June 25, 2004 Letter from Peggy J. Brito.....................2563
#112-03 Exhibit G, Contract of sale between Twp. and Ms. Best for 3 Saul Place, Mt. Holly, NJ......................................................2675
#112-03 Exhibit H, Charts, 2008 U.S. Census Data ....................................2679
#112-03 Exhibit P, Office of Admin. Law, Carter v. Twp of Mount Holly, OAL Docket No. CAF 4320-09, Sept. 29, 2009 Decision ............2774
xii

Case: 11-1159 Document: 003110545953 Page: 14 Date Filed: 05/27/2011

DOUGLAS E. GERSHUNY, EXEC. DIR. SOUTH JERSEY LEGAL SERVICES, INC. 745 Market St. Camden, NJ 08102 Phone: 856-964-2010, Ext. 6232 Email: OPomar@lsnj.org By: OLGA D. POMAR, ESQ. Attorneys for Plaintiffs

POTTER & DICKSON 194 Nassau Street Princeton, NJ 08542 Phone: (609) 921-9555 Email: Potterrex@cs.com By: R. WILLIAM POTTER, ESQ. Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE Case No.: 1:08-cv-02584

MT. HOLLY GARDENS CITIZENS IN

ACTION, INC., a New Jersey non-profit

District Judge: HON. NOEL L.

corporation, ANA AROCHO, VIVIAN

HILLMAN, U.S.D.J.

BROOKS, GEORGE CHAMBERS,

DOROTHY CHAMBERS, SANTOS CRUZ,

ELIDA ECHEVARIA, NORMAN HARRIS,

MATTIE HOWELL, NANCY LOPEZ,

DOLORES NIXON, LEONARDO PAGAN,

JAMES POTTER, HENRY SIMONS, JOYCE

STARLING, ROBERT TIGAR, TAISHA

TIRADO, RADAMES TORRES BURGOS,

NOTICE OF APPEAL

LILLIAN TORRES-MORENO, DAGMAR

VICENTE, ALANDIA WARTHEN, SHEILA

WARTHEN, CHARLIE MAE WILSON and

LEONA WRIGHT,

Plaintiffs, vs.

TOWNSHIP OF MOUNT HOLLY, a municipal corporation of the State of New Jersey, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, as governing body of the Township of Mount Holly, KATHLEEN

0001

Case: 11-1159 Document: 003110545953 Page: 15 Date Filed: 05/27/2011

HOFFMAN, as Township Manager of the Township of Mount Holly, JULES THIESSEN, as Mayor of the Township of Mount Holly, KEATING URBAN PARTNERS, L.L.C., a company doing business in New Jersey, TRIAD ASSOCIATES, INC., a corporation doing business in New Jersey,
Defendants.

Notice is hereby given that Mt Holly Gardens Citizens in Action, Ana Arocho, Vivian Brooks, Santos Cruz, Mattie Howell, Nancy Lopez, Dolores Nixon, James Potter, Henry Simons, Robert Tigar, Radames Torres Burgos, Lillian Torres-Moreno, Charlie Mae Wilson, Alandia Warthen, Sheila Warthen, and Leona Wright, plaintiffs in the above named case, herby appeal to the United States Court of Appeals for the Third Circuit from the final judgment granting defendants summary judgment and dismissing all of plaintiffs’ claims entered in this action on January 3, 2011.

Dated: January 17, 2011

SOUTH JERSEY LEGAL SERVICES, INC. Attorneys for Plaintiffs: Mt. Holly Gardens Citizens In Action, Inc., Ana Arocho, Vivian Brooks, Bernice Cagle, George Chambers, Dorothy Chambers, Elida Echevaria, Norman Harris, Leonardo Pagan, Joyce Starling, Taisha Tirado, Dagmar Vicente, Charlie Mae Wilson, Mattie Howell, Nancy Lopez, Henry Simons, Alandia Warthen, Sheila Warthen, and Leona Wright
By: /s/ Olga D. Pomar OLGA D. POMAR, ESQUIRE

POTTER AND DICKSON Attorneys for Plaintiffs: Santos Cruz, Dolores Nixon, James Potter, Robert Tigar, and Radames Torres Burgos
By: /s/ R. William Potter R. WILLIAM POTTER, ESQUIRE

2

0002

CasCea1s:e0:81-c1v-1-01255984-NDLoHcu-JmSenDt:o0c0u3m11e0n5t 41519553FilePda0g1e/:0136/11 DPatgeeF1ileodf :10P5a/2g7e/I2D0:151094
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

MT HOLLY CITIZENS IN ACTION, :

INC., et al.,

:

:

Plaintiffs, :

:

v.

:

:

TOWNSHIP OF MOUNT HOLLY,

:

et al.,

:

:

Defendants. :

:

Civil Action No. 08-2584 (NLH)(JS)
ORDER

For the reasons expressed in the Court’s Opinion filed today,
IT IS HEREBY on this 3rd day of January, 2011 ORDERED that defendants’ converted motions for summary judgment [74, 84, 86, 112] are GRANTED; and it is further ORDERED the Clerk of the Court shall mark this matter as CLOSED.

At Camden, New Jersey

s/ Noel L. Hillman NOEL L. HILLMAN, U.S.D.J.

0003

CaseCa1s:0e8: -1c1v-10125984-NDLoHc-uJmSenDt:o0c0u3m1e1n0t514154953FiledPa0g1e/0: 31/711 PDaagte F1iloefd2: 805P/a2g7e/2ID01: 15066

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

MT HOLLY CITIZENS IN ACTION, :

INC., et al.,

:

:

Plaintiffs, :

:

v.

:

:

TOWNSHIP OF MOUNT HOLLY,

:

et al.,

:

:

Defendants. :

:

Civil Action No. 08-2584 (NLH)(JS)
OPINION

Appearances:

DOUGLAS E. GERSHUNY, EXEC. DIR. OLGA D. POMAR DAVID M. PODELL SOUTH JERSEY LEGAL SERVICES, INC. 745 MARKET STREET CAMDEN, NJ 08102 Attorneys for Plaintiffs
R. WILLIAM POTTER POTTER & DICKSON 194 NASSAU STREET PRINCETON, NJ 08542 Attorney for Plaintiffs
SUSAN ANN SILVERSTEIN AARP FOUNDATION LITIGATION 601 E STREET, NW WASHINGTON, DC 20049 Attorney for Plaintiffs
GAETANO MERCOGLIANO SWEENEY & SHEEHAN 216 HADDON AVENUE, SUITE 500 WESTMONT, NJ 08108 Attorney for Defendant Triad Associates, Inc.
M. JAMES MALEY MALEY & ASSOCIATES

0004

CaseCa1s:0e8: -1c1v-10125984-NDLoHc-uJmSenDt:o0c0u3m1e1n0t514154953FiledPa0g1e/0: 31/811 PDaagte F2iloefd2: 805P/a2g7e/2ID01: 15067
931 HADDON AVENUE COLLINGSWOOD, NJ 08108 Attorney for Defendant Mount Holly Township, et al.
WILLIAM J. DESANTIS BALLARD SPAHR ANDREWS & INGERSOLL LLP PLAZA 1000 - SUITE 500 MAIN STREET VOORHEES, NJ 08043 Attorney for Defendant Keating Urban Partners, L.L.C.
HILLMAN, District Judge
This case involves the redevelopment of the Mount Holly
Gardens neighborhood (the “Gardens”) in Mount Holly, New Jersey.
Plaintiffs are low-income, African-American, Hispanic and “white”
residents of the Gardens, who object to the plan because they
claim they are being forcibly removed from their homes, which are
being replaced in large part with new, much higher-priced market
rate homes.
Currently before this Court are defendants’ motions for
summary judgment, which had been converted from motions to dismiss on four of plaintiffs’ claims.1 The Court provided the
plaintiffs with additional time to respond to the converted
motions, and then allowed defendants to file reply briefs. The
supplemental briefing is completed, and the remaining claims that
1 The other five counts were dismissed. Since this case was filed over two years ago, it has been extensively litigated with several hearings, the denial of a TRO and preliminary injunction, the filing of a second amended complaint, and the issuance of numerous written Opinions. Litigation over the Gardens redevelopment also precedes this case in New Jersey state court. Overall, the concerns of several Gardens residents have caused the dispute over the blighted neighborhood’s redevelopment plan to spend ten years in the courts.
2
0005

CaseCa1s:0e8: -1c1v-10125984-NDLoHc-uJmSenDt:o0c0u3m1e1n0t514154953FiledPa0g1e/0: 31/911 PDaagte F3iloefd2: 805P/a2g7e/2ID01: 15068
are now ready for final resolution are plaintiffs’ claims for violations of Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act or FHA), 42 U.S.C. § 3601 et seq. (Count One against all defendants); the Civil Rights Act of 1866, 42 U.S.C. § 1982 (Count Two against the Township); the Equal Protection Clause of the U.S. Constitution, brought pursuant to 42 U.S.C. § 1983 (Count Three against the Township); and Equal Protection Clause of the New Jersey State Constitution (Count Five against the Township), as well a claim for punitive damages.
As this Court previously expressed on several occasions, we recognize that the Gardens redevelopment has had an effect on low-income families, and, correspondingly, minority families. The Court also recognizes that being forced from one’s home is a difficult and emotional issue, compounded by the fear of being unable to afford a comparable place to live. However, as the Court has also expressed previously, plaintiffs have failed to demonstrate that the Township, or the entities assisting the Township in the redevelopment and relocation services, has implemented a plan that has a disparate impact on the Gardens residents as the law defines it. Nor have they shown that the defendants have not been proceeding pursuant to a legitimate governmental interest in the least restrictive way, or have otherwise acted with discriminatory intent. Consequently, as explained more fully below, defendants’ motions will be granted,
3
0006

CaseCa1s:0e8: -1c1v-10125984-NDLoHc-uJmSenDt:o0c0u3m1e1n0t514154953FiledPa0g1e/0: 32/011 PDaagte F4iloefd2: 805P/a2g7e/2ID01: 15069
and the case will be closed. DISCUSSION2
A. Standard for Summary Judgment Summary judgment is appropriate where the Court is satisfied
that “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is “genuine” if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence “is to be believed and all justifiable inferences are to be drawn in his favor.” Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
2 Because the background and procedural history have been laid out in the Court’s previous Opinions, they will not be restated here.
4
0007

CaseCa1s:0e8: -1c1v-10125984-NDLoHc-uJmSenDt:o0c0u3m1e1n0t514154953FiledPa0g1e/0: 32/111 PDaagte F5iloefd2: 805P/a2g7e/2ID01: 15070
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). B. Analysis
1. Count One - Fair Housing Act This Court has already analyzed plaintiffs’ Fair Housing Act claim substantively in the context of plaintiffs’ motion for a preliminary injunction. That analysis was adopted in the Court’s most recent Opinion, which converted defendants’ motions to dismiss into ones for summary judgment. That analysis found that plaintiffs had not demonstrated that the redevelopment has had a disparate impact on a protected group, or that defendants did not have a legitimate interest in the redevelopment, or that no alternative course of action would have a lesser impact. Recognizing that plaintiffs’ Fair Housing Act claim had only been
5
0008

CaseCa1s:0e8: -1c1v-10125984-NDLoHc-uJmSenDt:o0c0u3m1e1n0t514154953FiledPa0g1e/0: 32/211 PDaagte F6iloefd2: 805P/a2g7e/2ID01: 15071
considered in the context of a preliminary injunction, the Court afforded plaintiffs time to gather specific facts to show a genuine issue for trial on these issues. The Court now affirms its prior decision on plaintiffs’ FHA claim because plaintiffs have not provided the requisite proof to take the issues to a jury.
As a preliminary matter, plaintiffs argue that they should be afforded time for discovery, and are prejudiced in their ability to oppose the converted motions because of the lack of discovery. Plaintiffs contend that they require a look into the defendants’ state of mind and intentions, as well as documents that are only within the control of defendants and, thus, unavailable to plaintiffs. Without this information, plaintiffs argue that summary judgment is premature, which is further evidenced by the fact that defendants have not even filed their answers to plaintiffs’ complaint.
Although the Court recognizes the peculiar procedural history that has led to the resolution of summary judgment motions without the filing of answers or the undertaking of formal discovery, this is not a case where plaintiffs are neophytes filing an initial challenge to the Gardens redevelopment plan. Not only has there been extensive proceedings over two years in this Court, most of these issues have been thoroughly litigated in New Jersey state court over the
6
0009

CaseCa1s:0e8: -1c1v-10125984-NDLoHc-uJmSenDt:o0c0u3m1e1n0t514154953FiledPa0g1e/0: 32/311 PDaagte F7iloefd2: 805P/a2g7e/2ID01: 15072
course of several years preceding this case.3 As pointed out by defendants, plaintiffs have already had the ability to obtain the information they seek through Open Public Records Act requests, as well as through the previous state court litigation. Further, much of the information is available by other means, including from the residents themselves or the Public Advocate, who undertook an investigation of the Township’s relocation practices.4
Moreover, plaintiffs do not specifically identify what information defendants hold to support their claims, and instead request discovery generally, such as depositions of key officials in order to acquire testimony as to their intent to “rid [the Township] of a minority community.” (Pomar Cert., Docket No. 106-41) (“Residents are severely prejudiced by being unable to probe, at a deposition, the attitudes, intent, and motives of the Township officials who made the critical decisions to pursue the Gardens redevelopment project.”). Discovery, however, cannot serve as a fishing expedition through which plaintiffs search for
3 The Court recognizes that the state court case was more narrow than this one, and the civil rights claims had been dismissed as unripe, but none of the discovery plaintiffs contend they need here to supplement the discovery from the state court litigation would save their otherwise deficient claims.
4 In the Court’s February 13, 2009 Opinion, the Court considered and referenced the Public Advocate’s report, which was provided by plaintiffs pursuant to the Court’s November 25, 2008 Order granting plaintiffs’ request to supplement the record with the report.
7
0010

CaseCa1s:0e8: -1c1v-10125984-NDLoHc-uJmSenDt:o0c0u3m1e1n0t514154953FiledPa0g1e/0: 32/411 PDaagte F8iloefd2: 805P/a2g7e/2ID01: 15073
evidence to support conclusory speculations. Giovanelli v. D.
Simmons General Contracting, 2010 WL 988544, *5 (D.N.J. 2010).
Further, such depositions may be barred by a privilege afforded
to decision-making government officials. See, e.g., U.S. v.
Sensient Colors, Inc., 649 F. Supp. 2d 309, 316 (D.N.J. 2009).5
5 Indeed, in addressing the same argument by plaintiffs in the earlier state court litigation, Judge Sweeney explained,
There are many reasons why discovery is the exception rather than the rule in actions such as this one. First, a public official’s state of mind is rarely an issue and can usually be determined from the record below. There are transcripts, tapes, minutes and the like. Secondly, and no less important, is the consideration that members of the municipal governing bodies and local boards serve without significant remuneration. They would be far less likely to serve if their official actions frequently subjected them to the arduous discovery process. Interrogatories would have to be answered and depositions attended after usual hours of public service. It would place a chilling effect on public service.
Here, I am convinced that the discovery sought would burden the officials involved to a degree that would be totally disproportionate to any usable information that could be recovered. Furthermore, there has already been one hearing in this matter. Although I limited plaintiffs to two expert witnesses, I also afforded them the right to call township officials to testify. They elected, for whatever reason, not to do so. Following that hearing, I determined that the designation of the Gardens as an area in need of redevelopment had substantial credible support in the record, was a designation made in accordance with statutory criteria, and I found no evidence of racial or ethnic bias or animus in the testimony of . . . the town
8
0011

CaseCa1s:0e8: -1c1v-10125984-NDLoHc-uJmSenDt:o0c0u3m1e1n0t514154953FiledPa0g1e/0: 32/511 PDaagte F9iloefd2: 805P/a2g7e/2ID01: 15074
Overriding all these points with specific reference to plaintiffs’ FHA claim, however, is that in order to prove their claim, none of the discovery plaintiffs claim they lack would save their allegations, as plaintiffs must present their own proof of disparate impact and a more-viable alternative. Stated several times before, Section 3604(a) of the Fair Housing Act makes it unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a) (emphasis added). The FHA can be violated by either intentional discrimination or if a practice has a disparate impact on a protected class. Community Services, Inc. v. Wind Gap Mun. Authority, 421 F.3d 170, 176 (3d Cir. 2005).
Plaintiffs here contend that the Gardens redevelopment plan has a disparate impact on the minorities living in the Gardens. In order to prove their claim, plaintiffs must first establish a prima facie case of disparate impact. Resident Advisory Board v. Rizzo, 564 F.2d 126, 148 (3d Cir. 1977). To show disparate impact, plaintiffs must show that the Township’s actions have had
planner. (August 30, 2005 Opinion, L-3027-03, at 6-7, Def. Ex. A, Docket No. 84-3.)
9
0012

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:32/161 PDaagtee1F0ileodf :2085P/2a7g/e2I0D1:15075
a greater adverse impact on the protected groups (here, AfricanAmericans and Hispanics) than on others. Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Tp. of Scotch Plains, 284 F.3d 442, 466-67 (3d Cir. 2002).
If a plaintiff establishes his prima facie case, the burden shifts to the defendant to demonstrate justification. The “justification must serve, in theory and practice, a legitimate, bona fide interest of the Title VIII defendant, and the defendant must show that no other alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.” Rizzo, 564 F.2d at 149. Finally, “[i]f the defendant does introduce evidence that no such alternative course of action can be adopted, the burden will once again shift to the Plaintiff to demonstrate that other practices are available.” Id. at 149 n.37. “If the Title VIII prima facie case is not rebutted, a violation is proved.” Id. at 149.
Thus, it is plaintiffs’ burden to show disparate impact, and if they do, it is their burden to rebut the Township’s position6 and demonstrate a more-viable alternative course of action. Plaintiffs have done neither.
To support disparate impact, plaintiffs argue that the 6 In the October 23, 2009 Opinion, the Court found that the Township had already met its burden based on the record before the Court at that time. As explained more fully herein, plaintiffs’ supplemental briefing does not demonstrate a material issue of fact regarding the Township’s legitimate interest and alternative choices.
10
0013

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:32/171 PDaagtee1F1ileodf :2085P/2a7g/e2I0D1:15076
redevelopment more negatively affects minorities in Mt. Holly
than non-minority residents because the redevelopment is driving
out the minority population of Mt. Holly. Plaintiffs also argue
that the redevelopment plan has a disparate impact on minorities
because the plan is targeted at an area that is populated by
mostly minorities. To support their position, plaintiffs had
previously presented a report of a demographic and statistical
expert, Andrew A. Beveridge, Ph.D. Dr. Beveridge opined that the
redevelopment of the Gardens effectively and significantly
reduces the minority population in Mt. Holly.
The Court had rejected that proof. The Court explained,
Even though plaintiffs have pointed out that the redevelopment of the Gardens has reduced the minority population of Mt. Holly, they have not accounted for how many minorities will move into the new housing. Furthermore, and more importantly for the plaintiffs’ FHA claim of disparate impact, the redevelopment plan does not apply differently to minorities than nonminorities. Several plaintiffs classify themselves as “white,” yet the plan affects them in the exact same way as their minority neighbors. The real effect of the Gardens redevelopment is that there will be less lower-income housing in Mt. Holly. Although the Township may have some obligation with regard to providing a certain number of low-income housing pursuant to other law, the reduction of low-income housing is not a violation of the FHA. The FHA prohibits the Township from making unavailable a dwelling to any person because of race--it does not speak to income. Redevelopment of blighted, low-income housing is not, without more, a violation of the FHA. Here, where fourteen homes are occupied by AfricanAmerican plaintiffs, thirteen homes are occupied by Hispanic plaintiffs, and six homes are occupied by “white” plaintiffs, and all are affected in the same way by the redevelopment, the Court cannot find, on the current record at this preliminary injunction stage,
11
0014

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:32/181 PDaagtee1F2ileodf :2085P/2a7g/e2I0D1:15077
that plaintiffs will succeed on their disparate impact FHA claim.
(Feb. 13, 2009 Op. at 7-8.) In their opposition to the converted motions, plaintiffs
present the same statistics, and further argue that there is disparate impact on minorities because the displaced plaintiffs will not be able to afford the new $200,000+ homes, or the $1,300 to rent these same properties.7 As explained before, however, if none of the plaintiffs can afford the new homes, it is not just the African-American and Hispanic plaintiffs who are impacted by the increased housing prices--it is all Gardens residents, including the Caucasian residents.8 Additionally, as also explained before, plaintiffs have not demonstrated that the Township is preventing minorities from purchasing or moving into the new homes, or otherwise limiting the new residents to nonminorities. Plaintiffs have not provided any proof or statistics to suggest that the new homes created by the redevelopment will be financially out-of-reach for all or most minorities.9
7 Although 464 units will be market rate, 56 will be deedrestricted affordable housing units.
8 Relatedly, plaintiffs argue that because a greater percentage of minority Township residents have been affected by the redevelopment they have demonstrated a disparate impact. Even if this statistic was sufficient to establish a prima facie case, plaintiffs’ FHA claim fails for reasons other than the disparate impact analysis.
9Plaintiffs present statistics that only 21% of AfricanAmerican and Hispanic households in Burlington County would be
12
0015

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:32/191 PDaagtee1F3ileodf :2085P/2a7g/e2I0D1:15078
Furthermore, under plaintiffs’ logic, any action by the
Township to do anything with regard to the Gardens would result
in a disparate impact, simply because of the racial composition
of the Gardens. The FHA (or any other civil rights law) does not
contemplate that a town will never be permitted to ameliorate a
blighted area inhabited mainly by minorities simply because it
will affect minorities. See, e.g., City of Memphis v. Greene,
451 U.S. 100, 128 (1981) (“Because urban neighborhoods are so
frequently characterized by a common ethnic or racial heritage, a
regulation's adverse impact on a particular neighborhood will
often have a disparate effect on an identifiable ethnic or racial
group. To regard an inevitable consequence of that kind as a
form of stigma so severe as to violate the Thirteenth Amendment
able to afford the new houses, because that percentage of African-American and Hispanic population earns above 80% of the median income ($44,580). (Bev. Cert., Ex. B-2, Docket No. 1064.) This is in contrast to 79% of white Burlington County residents who earn above 80% of the median income. (Id.) These statistics hold little validity to show a disparate impact on the Township’s minority population for several reasons: (1) they take into account the entire population of Burlington County, rather than only Mt. Holly Township, and the towns in Burlington County are of various economic and racial compositions; (2) they do not account for minorities who will move into Mt. Holly Township from outside Burlington County; (3) they do not account for the deed restricted units that will be more affordable; (4) they do not account for a non-minority purchaser who rents to a minority; (5) they do not account for the minorities who will move elsewhere within Mt. Holly Township; and (6) more recent population survey data (from 2008, compared to the 2000 Census data used by plaintiffs’ expert) shows 16,744 African-American and Hispanic households in Burlington County have incomes exceeding $45,000, evidence of the minority population’s ability to occupy all 464 market rate homes.
13
0016

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:33/101 PDaagtee1F4ileodf :2085P/2a7g/e2I0D1:15079
would trivialize the great purpose of that charter of freedom.”). Finally, it is important to point out that none of the
plaintiffs has been forced out of their homes by the Township without the offer of relocation services. The FHA makes it unlawful to otherwise make unavailable or deny a dwelling to any person because of race. The Township has advised the residents not to move until directed by the Township so that they will be eligible for relocation assistance. All plaintiffs, save for one who was told to leave by her landlord, are still residing in the Gardens. Thus, on this basis alone, plaintiffs’ FHA claim fails.
But even if plaintiffs were able to establish their prima facie case, they have not rebutted the Township’s legitimate interest in the redevelopment, and they have not shown how an alternative course of action would have a lesser impact. Plaintiffs cannot refute that redevelopment of the community to remove blight conditions is a bona fide interest of the state, as explained previously by this Court and by the New Jersey Appellate Division. (See Feb. 13, 2009 Op. at 9, citing Wilson v. City of Long Branch, 142 A.2d 837, 842 (N.J. 1958) (“Community redevelopment is a modern facet of municipal government. Soundly planned redevelopment can make the difference between continued stagnation and decline and a resurgence of healthy growth. It provides the means of removing the decadent effect of slums and blight on neighboring property values, of opening up new areas
14
0017

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:33/111 PDaagtee1F5ileodf :2085P/2a7g/e2I0D1:15080
for residence and industry.”); Citizens In Action v. Township Of Mt. Holly, 2007 WL 1930457, *13 (N.J. Super. Ct. App. Div. July 5, 2007) (finding that “[t]he dilapidated, overcrowded, poorly designed community [the Gardens], in addition to the high level of crime in the area, is clearly detrimental to the safety, health, morals and welfare of the community”).) It is clear that the Township has a legitimate interest in the redevelopment of the Gardens.
With regard to alternatives, plaintiffs have not identified disputed issues of fact concerning whether the Township failed to show “that no alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.” Rizzo, 564 F.2d at 149. The adequacy of the redevelopment plan, as opposed the rehabilitation plan advocated by Plaintiffs, was extensively analyzed in New Jersey state court. See Citizens In Action v. Township Of Mt. Holly, 2007 WL 1930457, 14 (N.J. Super. Ct. App. Div. 2007) (finding that “the redevelopment designation is based on a record that provides substantial evidence in support of the determination”).10
10Even though that analysis was performed in the context of plaintiffs’ claims under New Jersey's Local Housing and Redevelopment Law, N.J.S.A. 40A:12A-1 to -73 (LHRL), the issue of the sufficiency of the 2005 redevelopment plan was extensively litigated. Thus, collateral estoppel principles may also apply. See In re Graham, 973 F.2d 1089, 1097 (3d Cir. 1992) (citations omitted) (explaining that issue preclusion applies when “(1) the issue sought to be precluded is the same as that involved in the prior action; (2) that issue was actually litigated; (3) it was determined by a final and valid judgment; and (4) the
15
0018

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:33/121 PDaagtee1F6ileodf :2085P/2a7g/e2I0D1:15081
Plaintiffs have not presented any plan more viable than the one
implemented by the Township.11 They advocate rehabilitation, but
have proposed a plan, as pointed out by defendants, that relies
upon governmental subsidies and upon costs based on property
conditions in 1989. It also does not take into account
rehabilitation costs to rehab owner-occupied homes, which is an
additional $2.5 million, and it does not account for temporary
determination was essential to the prior judgment”). The Court, however, refrains from considering this issue because plaintiffs’ FHA claim, which also concerns the 2008 revised redevelopment plan, was not litigated in state court.
11 The Township has shown that several organizations have attempted to rehabilitate the Gardens in the last 15 or so years. These small scale efforts were ineffective in curing the overall blight of the community, which was a frustrating result for the organizations, the Township, and the residents. (See Sept. 8, 2003 Town Council meeting transcript at 25-26, 31-32, Def. Ex. B.). Plaintiffs argue that it is not their burden to prove a better alternative. Although it is true that the Township must show the other alternatives they considered and rejected, and that the alternative course of action could not “be adopted that would enable that interest to be served with less discriminatory impact,” once that showing is made, the ultimate burden “once again shift[s] to the Plaintiff to demonstrate that other practices are available.” Rizzo, 564 F.2d at 149. Thus, plaintiffs in this case have the obligation to show what alternatives would have better served the community. Of course, this analysis was intended to be performed after a finding of disparate impact, which causes this “alternative course of action” analysis to make more sense in that context--that is, if disparate impact is shown, the Township has the burden of showing it had no choice but to proceed in its chosen path despite the disparate impact. Here, where no disparate impact has been shown, this analysis devolves into plaintiffs’ personal disagreement with the plan, and an argument as to what they believe to be the best course of action. The fact that the Township did not follow a plan sanctioned by the plaintiffs is not the standard for a FHA claim.
16
0019

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:33/131 PDaagtee1F7ileodf :2085P/2a7g/e2I0D1:15082
relocation costs.12 Simply because the properties could have
been rehabilitated does not mean that rehabilitation was the
feasible option.13
12 Plaintiffs’ residential planning expert, Gary Smith, AIA, AICP, relates in his updated certification that the Township is violating several building codes in its demolition process. The legality of how the Township is currently proceeding under its redevelopment plan is not before the Court. Mr. Smith also opines that the redevelopment plan should be halted, and redirected to save the existing housing stock for rehabilitation. As the Court commented before, however, “[e]ffectively, plaintiffs are seeking to remain living in the blighted and unsafe conditions until they are awarded money damages for their claims and sufficient compensation to secure housing in the local housing market. Although couched at times like an effort to have the development go up around them, like a highway built around a protected tree, or to have their units rehabilitated, this makes little if no practical sense after years of litigation, approved redevelopment plans, and the expenditure of significant public resources. At this late stage, the only real practical remedy is for plaintiffs to receive the fair value for their home as well as proper and non-discriminatory relocation procedures and benefits. . . . The relief they are seeking is inconsistent with proving the fourth element of their FHA claim--namely, that an alternative course of action to eminent domain and relocation is viable.” (Feb. 9, 2009 Op. at 10-11.)
13 The state appellate court commented,
Photographic evidence reveals areas within the Gardens that are dilapidated. Additionally, there was testimony that there was overcrowding and excessive land coverage because of the way the units were arranged in blocks in fee simple ownership. Accordingly, a dilapidated home on one lot had a serious effect on homes on either side of it. Excessive land coverage was also evident where a majority of the rear yards were paved or covered with gravel to accommodate additional parking spaces. Finally, the alleyways created a faulty arrangement or design for the Gardens because it increased the amount of crime in the area. The dilapidated, overcrowded, poorly designed
17
0020

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:33/141 PDaagtee1F8ileodf :2085P/2a7g/e2I0D1:15083
In short, Plaintiffs have failed to show an impermissible
disparate impact. Even if they have made such a showing, they
have failed to offer sufficient evidence to rebut the Township’s
legitimate governmental purpose or demonstrate illegitimate
discriminatory intent. Therefore, plaintiffs have not
demonstrated that material disputed facts exist as to their FHA
claim. Accordingly, summary judgment must be entered in favor of defendants on this claim.14
2. Counts Two, Three, Five - Civil Rights Act and State and Federal Equal Protection Clause
Plaintiffs claim that the Township violated the Civil Rights
Act of 1866, 42 U.S.C. § 1982, the Equal Protection Clause of the
U.S. Constitution, brought pursuant to 42 U.S.C. § 1983, and the
Equal Protection Clause of the New Jersey State Constitution. In
community, in addition to the high level of crime in the area, is clearly detrimental to the safety, health, morals and welfare of the community.
Citizens In Action v. Township of Mt. Holly, 2007 WL 1930457, *13 (N.J. Super. Ct. App. Div. 2007).
14 Plaintiffs’ FHA claim was lodged against all defendants, including the construction company selected to undertake the redevelopment, Keating Urban Partners, LLC, and the company hired by Keating to conduct the relocation activities, Triad Associates, Inc. In their previous motion to dismiss, Triad argued, and Keating joined in that argument, that it cannot be held liable under the FHA because it had no part in the drafting and adoption of the Township’s redevelopment plan, and its actions with regard to the relocation activities do not fall within the province of the FHA-protected conduct. Because the Court has found no FHA violation, Triad’s argument will not be considered.
18
0021

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:33/151 PDaagtee1F9ileodf :2085P/2a7g/e2I0D1:15084
order to prove such claims, plaintiffs must show that they were the target of intentional, purposeful discrimination by the Township. City of Cuyahoga Falls, Ohio v. Buckeye Community Hope Foundation, 538 U.S. 188, 194 (2003) (citation omitted) (“‘Proof of racially discriminatory intent or purpose is required’ to show a violation of the Equal Protection Clause.”); Bradley v. U.S., 299 F.3d 197, 205 (3d Cir. 2002) (stating that in order to establish a claim under the Equal Protection Clause, a plaintiff needs to prove that the actions (1) had a discriminatory effect and (2) were motivated by a discriminatory purpose); Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001) (citations and quotations omitted) (“In order to bring an action under § 1982, a plaintiff must allege with specificity facts sufficient to show or raise a plausible inference of (1) the defendant's racial animus; (2) intentional discrimination; and (3) that the defendant deprived plaintiff of his rights because of race.”); Greenberg v. Kimmelman, 494 A.2d 294, 308 (N.J. 1985) (stating that if a law is facially neutral, “an equal protection claim could succeed only if the statute had an invidious purpose”).
Plaintiffs claim that through the redevelopment plan the Township is intentionally seeking to deprive plaintiffs and other African-Americans and Hispanics of the right to property and equal protection under the law. In the Court’s prior Opinion denying plaintiffs’ request for preliminary injunction, the Court
19
0022

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:33/161 PDaagtee2F0ileodf :2085P/2a7g/e2I0D1:15085
found that plaintiffs did not demonstrate that the Township “implemented the development plan to intentionally or effectively drive out the minority population of Mt. Holly.” (Feb. 9, 2009 Op. at 7.) Thus, as with their FHA claim, the Township’s motion to dismiss these claims was converted to one for summary judgment, and the Court afforded plaintiffs the opportunity to provide other proof to support their claims of intentional discrimination.
In their response, plaintiffs have failed to provide such proof. As discussed above, plaintiffs first argue that summary judgment is premature, because their ability to prove these intentional discrimination claims is thwarted by the lack of discovery--namely, the depositions of Township officials. As also discussed above, however, even if such depositions were permitted, the Court doubts that any Township official will testify to his or her “discriminatory purpose” in approving the redevelopment plan. See, e.g., Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1064-65 (4th Cir. 1982) (in an FHA case, stating, “Municipal officials acting in their official capacities seldom, if ever, announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a racial minority. Even individuals acting from invidious motivations realize the unattractiveness of their prejudices when faced with their perpetuation in the public
20
0023

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:33/171 PDaagtee2F1ileodf :2085P/2a7g/e2I0D1:15086
record. It is only in private conversation, with individuals
assumed to share their bigotry, that open statements of
discrimination are made, so it is rare that these statements can
be captured for purposes of proving racial discrimination in a
case such as this.”).
With regard to other methods for proving discriminatory
intent, plaintiffs have had years to gather such proof, including
obtaining affidavits from Gardens residents or other people who
have been involved in the Gardens redevelopment process.
Instead, plaintiffs’ brief details the Township’s alleged
discriminatory actions, but none of the claims are supported by
any documentary or other evidence.15 Rather, plaintiffs tell a
15 Several affidavits by plaintiffs were submitted in support of their motion for preliminary injunction. In their brief, plaintiffs specifically refer to one of them by Santos Cruz to support the claim that the Township’s redevelopment activities lowered the property values of the remaining homes, and the Township took advantage of that situation by pressuring residents to sell their homes at deflated prices that did not represent fair market value. (Pl. Opp. at 31.) This conclusion is based on Mr. Cruz’s “belief.” (Cruz Cert., Docket No. 17-9 (“I believe the houses are worth much more than the Township is offering.”) The other affidavits by plaintiffs in the record contain similar statements as to their “beliefs” and “feelings.” See Ancho Cert., Docket No. 17-7, ¶ 18, “I believe that my home is worth much more than that [$39,000 to $42,000 offered to others] because we invested a great amount of money to make it comfortable for our retirement”); Simons Cert., Docket No. 17-10, ¶ 14, “I believe my house is worth a great deal more than what the Township is offering me,” because it has three bedrooms, a large lot, and it has undergone “costly upgrades.”) These affidavits are insufficient to defeat a summary judgment motion. Celotex, 477 U.S. at 332 (“[C]onclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment. Instead, the affiant must set forth specific facts that reveal a genuine issue of material fact.”).
21
0024

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:33/181 PDaagtee2F2ileodf :2085P/2a7g/e2I0D1:15087
story, long on accusations and suppositions but short on proof,
of the Township’s ten-year, insidious desire to displace the
minority population of Mt. Holly. If there were merit to these
claims, plaintiffs would be able to annotate their allegations
with factual evidence that would infer such discriminatory
motive.16 They have not done so. See Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,
266-67 (1977) (explaining that the determination as to “whether
invidious discriminatory purpose was a motivating factor demands
a sensitive inquiry into such circumstantial and direct evidence
of intent as may be available,” and identifying objective factors
that may be probative of racially discriminatory intent: (1) the
racial impact of an official action; (2) the historical
Incidentally, these affidavits relate the plaintiffs’ extensive participation in numerous meetings with the Township and the builders over the years.
16 For example, plaintiffs state that “the Township failed to provide adequate compensation and relocation assistance to enable residents to purchase a replacement house in the Township or surrounding region.” (Pl. Opp. at 38.) In the Court’s prior Opinion, however, the Court noted, “The evidence on the record shows that other Garden residents whose homes have been acquired by the Township and have been relocated are pleased with both their compensation and place of relocation. In fact, the evidence demonstrates that many residents now have significantly improved living conditions and are in better circumstances financially. Additionally, the defendants represent, and plaintiffs do not dispute, that none of the people who have been relocated and wanted to remain in Mt. Holly were unable to.” (Feb. 9, 2009 Op. at 12 n.5.) Moreover, it is an undisputed fact that New Jersey statute only requires the Township to pay $4,000 in relocation benefits to tenants, and $15,000 in relocation benefits to homeowners, but the Township has paid $7,500 to tenants and $35,000 to homeowners. (See Def. Statement of Facts, ¶ 23, at 31.)
22
0025

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:33/191 PDaagtee2F3ileodf :2085P/2a7g/e2I0D1:15088
background of the decision; (3) the sequence of events leading up to the challenged decision, including departures from normal procedures and usual substantive norms; and (4) the legislative or administrative history of the decision).
In contrast, the Township provides transcripts of town council and planning board meetings, where concerned citizens and council members discussed the plans for the Gardens. The Township has also provided letters and affidavits from former Gardens residents, as well as certifications from individuals involved with the redevelopment plan implementation and relocation process. These documents range in date from 2002 through early 2010. The documents show that from the very beginning, the planning board was aware of the sensitive issues that would arise as they undertook the process, the desire to have direct communication with Gardens’ residents, and the Township’s consideration of the residents’ concerns. (See, e.g., Sept. 8, 2003 Town Council meeting transcript at 36-44, Def Ex. B.) Although many viewpoints were expressed by the Gardens’ residents and community activists, with some being supportive and hopeful, while other disenfranchised residents speaking emphatically and eloquently on their negative opinion on the redevelopment plan, their input was welcomed and encouraged.17
17 Plaintiffs refer to the Township’s “secret,” off-therecord meetings among Township officials and the redevelopers where decisions were made without input from the community, and where they presume the true discriminatory intent of the Township
23
0026

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:34/101 PDaagtee2F4ileodf :2085P/2a7g/e2I0D1:15089
Furthermore, nowhere in plaintiffs’ recitation of the
Township’s motives do plaintiffs specifically acknowledge the
extensive deterioration, crime, and overall unsafe living
conditions the Township was endeavoring to cure. Although
plaintiffs feel that the Township simply wishes to remove all
minorities from the town, evidence in the record supports an
opposing viewpoint--that but-for the significant concern for the
Gardens’ resident’s welfare, and the desire to make the Township
as a whole a safe and pleasant town for all of its citizens,
minority and non-minority, the Township would have never
undertaken the long-overdue project, particularly considering the
challenges that the redevelopment would, and did, inspire.18
Additionally, as noted above and previously, evidence in the
record shows that many relocated residents have been pleased with
was revealed. Although “New Jersey has a strong, expressed public policy in favor of open government, as evidenced by our Open Public Meetings Act, N.J.S.A. 10:4-6 to -21,” Times of Trenton Pub. Corp. v. Lafayette Yard Community Development Corp., 874 A.2d 1064, 1070 (N.J. 2005) (citation omitted), the OPMA sets forth specific instances where closed-door sessions are appropriate, see N.J.S.A. 10:4-12, -13. It is unclear whether these alleged “secret” meetings met the requirements of New Jersey’s OPMA. The Township’s compliance with OPMA is not before the Court, however, and plaintiffs’ allegations concerning these meetings as evidence of discriminatory intent are speculative, and, therefore, of insufficient weight to defeat summary judgment.
18 It seems that plaintiffs could not dispute the ironic observation that if the Township had allowed the Gardens to continue to deteriorate as it had over the years, that it might then be fairly characterized as having a discriminatory intent toward its minority, low-income residents.
24
0027

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:34/111 PDaagtee2F5ileodf :2085P/2a7g/e2I0D1:15090
the process, and are now in a much better place as a result. It also cannot be forgotten that the redevelopment plan has
gone through three machinations, from the Gardens Area Redevelopment Plan (“GARP”) in 2003, to the West Rancocas Redevelopment Plan (“WRRP”) in 2005, and then to the Revised West Rancocas Redevelopment Plan in September 2008. For each of these plans, the Township Council and the builder heard extensive public comment, testimony, and written objections (as intricately detailed in plaintiffs’ complaint), and even though the 2005 WRRP was approved by the New Jersey Department of Community Affairs and affirmed by the New Jersey state trial and appellate courts, the Township and redevelopers conducted a reevaluation of the plan which resulted in the 2008 Revised WRRP. Despite plaintiffs’ claims that all the plans were adopted without meaningful consideration of the residents’ objections, it seems specious to believe that the Township extensively reevaluated and revised its plans while entertaining numerous opportunities for public comment and objection simply as a ruse to mask its ultimate purpose of “ridding” Mt. Holly of its minority population.
The Court acknowledges that for every governmental action, people will object, for personal reasons, or as a champion for those who cannot speak out for themselves. The Court also acknowledges that governing officials are often not the most
25
0028

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:34/121 PDaagtee2F6ileodf :2085P/2a7g/e2I0D1:15091
efficient or pragmatic in their decision-making process. When people’s homes are at stake, and when issues concerning race and economic status are involved, the emotions of everyone are amplified. This is evidenced not only by the 10-year litigation concerning the Gardens’ redevelopment, but by the voices of the residents who have expressed the extremes of satisfaction and displeasure with the plan. In addition to the people who feel benefitted by the Township, it is undisputable that people have felt unjustifiably wronged by the Township, which has had to make some hard decisions along the way.
The Court, however, must view the case under the legal framework that constrains this Court’s consideration of these issues, rather than under the emotional contours of the situation. At this summary judgment stage in the context of what proof has been provided, and in deciding what material issues of fact need to be resolved, the weight of the record evidence demonstrates that no reasonable juror could find that the Township acted with intentional discrimination in the development and implementation of the Gardens’ redevelopment plan. Moreover, no additional discovery appears calculated or even remotely likely to provide the missing proofs. Consequently, summary judgment must be entered in favor of the Township on plaintiffs’ intentional discrimination claims.
26
0029

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:34/131 PDaagtee2F7ileodf :2085P/2a7g/e2I0D1:15092
3. Punitive damage claims Plaintiffs are also seeking punitive damages for all of their claims. The Township had moved to dismiss plaintiffs’ request for punitive damages, arguing that under various legal principles, punitive damages cannot be imposed against a municipality. In the Court’s previous Opinion, all of plaintiffs’ punitive damages requests were dismissed, except for those relating to plaintiffs’ FHA and Civil Rights Act claims (Counts One and Two). The Court reserved decision on these two claims pending consideration of the converted motions. Even though “punitive damages can be awarded in a civil rights case where a jury finds a constitutional violation, even when the jury has not awarded compensatory or nominal damages,” Alexander v. Riga, 208 F.3d 419, 430 (3d Cir. 2000) (citing Curtis v. Loether, 415 U.S. 189 (1974)) (both discussing FHA claims), a finding of a violation is a mandatory prerequisite to any possibility of punitive damages. Because the Court has not found defendants to be liable for plaintiffs’ FHA and civil rights claims, plaintiffs’ punitive damages claims fail as well.19
19For punitive damages, plaintiffs would also need to prove that defendants’ “‘conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.’” Alexander v. Riga, 208 F.3d 419, 430 (3d Cir. 2000) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Plaintiffs cannot make this showing.
27
0030

CaseC1a:s0e8:-c1v1--012155894-NDLHoc-JuSmeDnto:c0u0m31e1n0t 514154953FiledP0a1g/e0:34/141 PDaagtee2F8ileodf :2085P/2a7g/e2I0D1:15093
CONCLUSION For the reasons expressed above, defendants’ converted motions for summary judgment shall be granted on the four remaining claims in plaintiffs’ complaint. An appropriate Order will be entered.

Date: January 3, 2011 At Camden, New Jersey

s/ Noel L. Hillman NOEL L. HILLMAN, U.S.D.J.

28
0031

CasCe:a1se1:-111:0589-cv-D0o2c5u8m4-eNnLt:H0-J0S3110A5s45o9f:5035/19P/2a0g1e1: 4053:28DPaMteEFDilTed: 051/2o7f /224011
APPEAL, CLOSED
U.S. District Court District of New Jersey [LIVE] (Camden) CIVIL DOCKET FOR CASE #: 1:08−cv−02584−NLH−JS

MT HOLLY GARDENS CITIZENS IN ACTION, INC. et al v. TOWNSHIP OF MOUNT HOLLY et al Assigned to: Judge Noel L. Hillman Referred to: Magistrate Judge Joel Schneider Cause: 42:405 Fair Housing Act
Plaintiff

Date Filed: 05/27/2008 Date Terminated: 01/03/2011 Jury Demand: Plaintiff Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: Federal Question

MT HOLLY GARDENS CITIZENS IN ACTION, INC. a New Jersey non−profit corporation

represented by OLGA D. POMAR SOUTH JERSEY LEGAL SERVICES, INC. 745 MARKET STREET CAMDEN, NJ 08102 (856) 964−2010 X.6232 Email: opomar@lsnj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL SOUTH JERSEY LEGAL SERVICES, INC. 745 MARKET STREET CAMDEN, NJ 08102 (856) 964−2010 Ext. 6274 Email: dpodell@lsnj.org ATTORNEY TO BE NOTICED

Plaintiff PEDRO AROCHO

represented by OLGA D. POMAR SOUTH JERSEY LEGAL SERVICES, INC. 745 MARKET STREET CAMDEN, NJ 08102 (856) 964−2010 X.232 Email: opomar@lsnj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff REYNALDO AROCHO

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff ANA AROCHO

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY
0032

CasCe:a1se1:-111:0589-cv-D0o2c5u8m4-eNnLt:H0-J0S3110A5s45o9f:5035/19P/2a0g1e1: 4063:28DPaMteEFDilTed: 052/2o7f /224011

ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff LYRA BAEDRESINGH

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff CHRISTINE BARNES

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff BERNICE CAGLE

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff LEON CALHOUN

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff GEORGE CHAMBERS

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff DOROTHY CHAMBERS

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff SANTOS CRUZ

represented by OLGA D. POMAR
(See above for address)
0033

CasCe:a1se1:-111:0589-cv-D0o2c5u8m4-eNnLt:H0-J0S3110A5s45o9f:5035/19P/2a0g1e1: 4073:28DPaMteEFDilTed: 053/2o7f /224011

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ELIDA ECHEVARIA

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff NORMAN HARRIS

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff MATTIE HOWELL

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff NANCY LOPEZ

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff VINCENT MUNOZ

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff ELMIRA NIXON

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address)
0034

CasCe:a1se1:-111:0589-cv-D0o2c5u8m4-eNnLt:H0-J0S3110A5s45o9f:5035/19P/2a0g1e1: 4083:28DPaMteEFDilTed: 054/2o7f /224011

ATTORNEY TO BE NOTICED

Plaintiff LEONARDO PAGAN

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff ROSEMARY ROBERTS

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff WILLIAM ROBERTS

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff LISSETTE RODRIGUEZ

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff EFRAIM ROMERO

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff HENRY SIMONS

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff JOYCE STARLING

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff TAISHA TIRADO

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY
0035

CasCe:a1se1:-111:0589-cv-D0o2c5u8m4-eNnLt:H0-J0S3110A5s45o9f:5035/19P/2a0g1e1: 4093:28DPaMteEFDilTed: 05/2o7f /224011

ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff RADAMES TORRES−MORENO

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff LILLIAN TORRES−MORENO

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff DAGMAR VICENTE

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff CHARLIE MAE WILSON

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff LEONA WRIGHT

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Maria Arocho

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Vivian Brooks

represented by OLGA D. POMAR
(See above for address)
0036

CasCe:a1se1:-111:0589-cv-D0o2c5u8m4-eNnLt:H0-J0S3110A5s45o9f:5035/19P/2a0g1e1: 5003:28DPaMteEFDilTed: 056/2o7f /224011

LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Angelo Nieves

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Dolores Nixon

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Robert Tigar

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff James Potter

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Phyllis Singleton

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Flavio Tobar

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY
0037

CasCe:a1se1:-111:0589-cv-D0o2c5u8m4-eNnLt:H0-J0S3110A5s45o9f:5035/19P/2a0g1e1: 5013:28DPaMteEFDilTed: 057/2o7f /224011

ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Marlene Tobar

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Radames Burgos

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Sheila Warthen

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Alandia Warthen

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

V. Defendant TOWNSHIP OF MOUNT HOLLY a municipal corporation of the State of New Jersey
Defendant

represented by M. JAMES MALEY , JR. MALEY &ASSOCIATES 931 HADDON AVENUE SUITE 210 COLLINGSWOOD, NJ 08108−2111 856−854−1515 Email: jmaley@maleyassociates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by
0038

CasCe:a1se1:-111:0589-cv-D0o2c5u8m4-eNnLt:H0-J0S3110A5s45o9f:5035/19P/2a0g1e1: 5023:28DPaMteEFDilTed: 058/2o7f /224011

TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY as governing body of the Township of Mount Holly

M. JAMES MALEY , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
KATHLEEN HOFFMAN as Township Manager of the Township of Mount Holly

represented by M. JAMES MALEY , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
BROOKE TIDSWELL III as Mayor of the Township of Mount Holly

represented by M. JAMES MALEY , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
KEATING URBAN PARTNERS, L.L.C. a company doing business in New Jersey

represented by WILLIAM J DESANTIS BALLARD SPAHR LLP 210 LAKE DRIVE EAST SUITE 200 CHERRY HILL, NJ 08002−1163 856−761−3400 Email: desantisw@ballardspahr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
TRIAD ASSOCIATES, INC. a corporation doing business in New Jersey

represented by GAETANO MERCOGLIANO SWEENEY &SHEEHAN SENTRY OFFICE PLAZA SUITE 701 216 HADDON AVE. WESTMONT, NJ 08108 856−869−5600 Email: guy.mercogliano@sweeneyfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

M. JAMES MALEY , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
JULES K. THIESSEN as Mayor of the Township of Mount Holly

represented by M. JAMES MALEY , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/27/2008

# Docket Text
1 COMPLAINT against TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, BROOKE TIDSWELL III, KEATING URBAN PARTNERS, L.L.C., TRIAD ASSOCIATES, INC. ( Filing fee $ 350 receipt number 2013968.) JURY DEMAND, filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ,
0039

CasCe:a1se1:-111:0589-cv-D0o2c5u8m4-eNnLt:H0-J0S3110A5s45o9f:5035/19P/2a0g1e1: 5033:28DPaMteEFDilTed: 059/2o7f /224011

05/29/2008 05/29/2008 05/29/2008 05/29/2008 05/29/2008

VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. (SUMMONS NOT SUBMITTED)(Attachments: # 1 Civil Cover Sheet)(nf, ) (Entered: 05/28/2008)
2 NOTICE of Appearance by DAVID M. PODELL on behalf of CHRISTINE BARNES, BERNICE CAGLE, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, PEDRO AROCHO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO (PODELL, DAVID) (Entered: 05/29/2008)
3 Request for Summons to be Issued by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH as to TOWNSHIP OF MOUNT HOLLY. (PODELL, DAVID) (Entered: 05/29/2008)
4 Request for Summons to be Issued by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH as to TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY. (PODELL, DAVID) (Entered: 05/29/2008)
5 Request for Summons to be Issued by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH as to KATHLEEN HOFFMAN. (PODELL, DAVID) (Entered: 05/29/2008)
6 Request for Summons to be Issued by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN
0040

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 0534:28 PDMateEFDiTled: 0150/2o7f/20411

05/30/2008 06/04/2008
06/10/2008 06/12/2008
06/19/2008 06/19/2008 06/27/2008
06/27/2008

TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH as to BROOKE TIDSWELL III. (PODELL, DAVID) (Entered: 05/29/2008)
7 Summons Issued as to TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, BROOKE TIDSWELL III. Days Due − 20. (js) (Entered: 05/30/2008)
8 AFFIDAVIT of Service for Summons and Complaint on Defendants Township of Mount Holly, Township Council of Township of Mount Holly, Mount Holly Township Manager Kathleen Hoffman, and Mount Holly Township Mayor Brooke Tidswell, III by Amy Pinkas, Paralegal, South Jersey Legal Services, Inc., served on Vicki Conover, Mount Holly Township Deputy Clerk on June 3, 2008, filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. (PODELL, DAVID) (Entered: 06/04/2008)
9 AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL against all defendants all defendants., filed by MT HOLLY GARDENS CITIZENS IN ACTION, INC..(POMAR, OLGA) (Entered: 06/10/2008)
10 CERTIFICATE OF SERVICE by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH re 9 Amended Complaint (POMAR, OLGA) (Entered: 06/12/2008)
11 Application and Proposed Order for Clerk's Order to extend time to answer. (MALEY, MAURICE) (Entered: 06/19/2008)
12 Clerk's Order to extend time to answer as to TOWNSHIP OF MOUNT HOLLY answer due 7/18/2008; TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY answer due 7/18/2008; KATHLEEN HOFFMAN answer due 7/18/2008; BROOKE TIDSWELL III answer due 7/18/2008. (js) (Entered: 06/20/2008)
13 MOTION for Leave to Appear Pro Hac Vice by David M. Podell and South Jersey Legal Services, Inc. for Susan Ann Silverstein and AARP Foundation Litigation by BERNICE CAGLE, LEON CALHOUN, SANTOS CRUZ, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ROSEMARY ROBERTS, WILLIAM ROBERTS, EFRAIM ROMERO, HENRY SIMONS, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. (Attachments: # 1 Certification of Susan Ann Silverstein, # 2 Certification of Douglas E. Gershuny, # 3 Proposed Order, # 4 Certificate of Service)(PODELL, DAVID) (Entered: 06/27/2008)
Setting Deadlines as to 13 MOTION for Leave to Appear Pro Hac Vice by David M. Podell and South Jersey Legal Services, Inc. for Susan Ann Silverstein and AARP Foundation Litigation. Motion Hearing set for 7/21/2008 before Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (js) (Entered: 06/30/2008)

0041

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 0535:28 PDMateEFDiTled: 0151/2o7f/20411

07/16/2008 07/17/2008 07/17/2008 07/18/2008
07/18/2008 07/18/2008 07/18/2008

14 Letter from Counsel for Plaintiffs to The Honorable Joseph H. Rodriguez, in lieu of a formal motion, requesting leave, pursuant to L.Civ.R. 7.2(b), to file a brief in excess of the 40−page limit, in support of a motion for a preliminary injunction (faxed and mailed today both to Chambers and Defendants). (Attachments: # 1 Receipts for Fax of Letter to Chambers and all Defendants)(PODELL, DAVID) (Entered: 07/16/2008)
15 Letter from M James Maley. (MALEY, M.) (Entered: 07/17/2008)
16 LETTER ORDER addressed to Counsel permitting the filing of a brief in excess of the page limitations. Signed by Judge Joseph H. Rodriguez on 7/17/08. (js) (Entered: 07/18/2008)
17 MOTION for Preliminary Injunction by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. (Attachments: # 1 Brief in Support of Motion for Preliminary Injunction, # 2 Text of Proposed Order, # 3 Declaration of Andrew A. Beveridge, Ph.D. with Exhibits A−J, # 4 Declaration of Andrew A. Beveridge, Ph.D. Exhibits K−M, # 5 Declaration of Gray Smith, AIA, AICP with Exhibit A, # 6 Declaration of Gray Smith, AIA, AICP Exhibit C, # 7 Declaration of Ana Arocho, # 8 Declaration of Vivian Brooks, # 9 Declaration of Santos Cruz, # 10 Declaration of Henry Simons, # 11 Declaration of Dagmar Vicente, # 12 Declaration of Alandia Warthen, # 13 Declaration of Leona Wright, # 14 Declaration of Olga D. Pomar, Esq., # 15 Declaration of Olga D. Pomar, Esq. Exhibits A−C, # 16 Declaration of Olga D. Pomar, Esq. Exhibit D−1, # 17 Declaration of Olga D. Pomar, Esq. Exhibit D−2, # 18 Declaration of Olga D. Pomar, Esq. Exhibit E, # 19 Declaration of Olga D. Pomar, Esq. Exhibit F, # 20 Declaration of Olga D. Pomar, Esq. Exhibit G−1, # 21 Declaration of Olga D. Pomar, Esq. Exhibit G−2, # 22 Declaration of Olga D. Pomar, Esq. Exhibit H, # 23 Declaration of Olga D. Pomar, Esq. Exhibit I, # 24 Declaration of Olga D. Pomar, Esq. Exhibit J, # 25 Declaration of Olga D. Pomar, Esq. Exhibit K, # 26 Declaration of Olga D. Pomar, Esq. Exhibit L, # 27 Declaration of Olga D. Pomar, Esq. Exhibits M &N, # 28 Declaration of Olga D. Pomar, Esq. Exhibits O &P, # 29 Declaration of Olga D. Pomar, Esq. Exhibits Q R S T, # 30 Declaration of Olga D. Pomar, Esq. Exhibit U, # 31 Declaration of Olga D. Pomar, Esq. Exhibit V, # 32 Declaration of Olga D. Pomar, Esq. Exhibits W X Y Z, # 33 Declaration of Olga D. Pomar, Esq. Exhibit AA, # 34 Declaration of Olga D. Pomar, Esq. Exhibits BB CC DD, # 35 Declaration of Olga D. Pomar, Esq. Exhibits EE &FF, # 36 Declaration of Olga D. Pomar, Esq. Exhibits GG HH II, # 37 Certificate of Service for Electronic Filing)(PODELL, DAVID) (Entered: 07/18/2008)
18 First MOTION to Dismiss for lack of jurisdiction failure to state a claim by TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, BROOKE TIDSWELL III. Responses due by 8/4/2008 (Attachments: # 1 Brief, # 2 Certification, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Text of Proposed Order)(MALEY, M.) (Entered: 07/18/2008)
Setting Deadlines as to 17 MOTION for Preliminary Injunction. Motion Hearing set for 8/18/2008 before Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (js) (Entered: 07/21/2008)
Setting Deadlines as to 18 First MOTION to Dismiss for lack of jurisdiction failure to state a claim. Motion Hearing set for 8/18/2008 before Judge Joseph H. Rodriguez. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON

0042

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 0536:28 PDMateEFDiTled: 0152/2o7f/20411

07/21/2008
07/28/2008
07/29/2008
07/29/2008 07/30/2008 08/01/2008 08/01/2008

THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (js) (Entered: 07/21/2008)
19 CERTIFICATE OF SERVICE by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH re 17 MOTION for Preliminary Injunction by Sylvanna R. Scott, Office Manager, South Jersey Legal Services, Inc. on Defendants Keating Urban Partners, L.L.C. and Triad Associates, Inc. by 2−3 day priority mail (PODELL, DAVID) (Entered: 07/21/2008)
20 Rule 7.1 Letter for extension of return date re 18 First MOTION to Dismiss for lack of jurisdiction failure to state a claim filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. (PODELL, DAVID) (Entered: 07/28/2008)
21 WAIVER OF SERVICE Returned Executed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. KEATING URBAN PARTNERS, L.L.C. waiver sent on 5/30/2008, answer due 7/29/2008. (PODELL, DAVID) (Entered: 07/29/2008)
22 Letter from M. James Maley, Jr., Attorney for Township Defendants, Requesting Adjournment of Plaintiffs' Motion for Preliminary Injunction. (MALEY, M.) (Entered: 07/29/2008)
23 Letter from David M. Podell, attorney for Plaintiffs, to The Honorable Joseph H. Rodriguez requesting that Defendants' Motion To Dismiss and Plaintiffs' Motion for a Preliminary Injunction be considered contemporaneously (faxed and mailed to all parties) re 20 Rule 7.1 Letter,, 22 Letter. (PODELL, DAVID) (Entered: 07/30/2008)
24 Letter from M. James Maley. (MALEY, M.) (Entered: 08/01/2008)
25 WAIVER OF SERVICE Returned Executed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. TRIAD ASSOCIATES,
0043

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 0537:28 PDMateEFDiTled: 0153/2o7f/20411

08/04/2008 08/07/2008 08/07/2008 08/07/2008 08/11/2008 08/14/2008 08/14/2008 08/14/2008 08/19/2008
08/19/2008
08/20/2008

INC. waiver sent on 6/13/2008, answer due 8/12/2008. (PODELL, DAVID) (Entered: 08/01/2008)
26 ORDER granting 13 Motion for Leave to Appear Pro Hac Vice. Signed by Magistrate Judge Joel Schneider on 8/4/08. (js) (Entered: 08/04/2008)
Judge Magistrate Judge Joel Schneider added. Judge Magistrate Judge Ann Marie Donio no longer assigned to case. (th, ) (Entered: 08/07/2008)
27 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) by KEATING URBAN PARTNERS, L.L.C.. Responses due by 8/19/2008 (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(DESANTIS, WILLIAM) (Entered: 08/07/2008)
Setting Deadlines as to 27 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6). Motion Hearing set for 9/2/2008 before Judge Joseph H. Rodriguez. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (js) (Entered: 08/08/2008)
29 ORDER REASSIGNING CASE. Case reassigned to Judge Judge Noel L. Hillman for all further proceedings. Judge Judge Joseph H. Rodriguez no longer assigned to case. Signed by Chief Judge Garrett E. Brown, Jr. on 8/11/08. (js) (Entered: 08/14/2008)
28 MOTION to Dismiss by TRIAD ASSOCIATES, INC.. (Attachments: # 1 Notice of Motion, # 2 Order, # 3 Brief Brief, # 4 Certificate of Service, # 5 Proof of Mailing, # 6 Exhibit Exhibit A)(MERCOGLIANO, GAETANO) (Entered: 08/14/2008)
Setting Deadlines as to 28 MOTION to Dismiss. Motion Hearing set for 9/15/2008 before Judge Joseph H. Rodriguez. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (js) (Entered: 08/14/2008)
Pro Hac Vice fee as to Susan Ann Silverstein: $ 150, receipt number 100 307911 (js) (Entered: 08/14/2008)
30 BRIEF in Opposition re 17 MOTION for Preliminary Injunction filed by TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certification of Kathleen Hoffman, # 2 Certification of Marcia Holt, # 3 Certification of Micheal Sencindiver, # 4 Certification of Jim Maley, # 5 Exhibit A to Jim Maley Cert, # 6 Exhibit B to Maley Cert, # 7 Exhibit C to Maley Cert, # 8 Exhibit D to Maley Cert, # 9 Exhibit E to Maley Cert, # 10 Exhibit F to Maley Cert, # 11 Exhibit G to Maley Cert, # 12 Exhibit H to Maley Cert, # 13 Certificate of Service)(MALEY, M.) (Entered: 08/19/2008)
31 BRIEF in Opposition re 18 First MOTION to Dismiss for lack of jurisdiction failure to state a claim, 27 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) (Entered: 08/20/2008)
32 Rule 7.1 Letter for extension of return date re 28 MOTION to Dismiss by Defendant Triad Associates Inc. filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES
0044

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 0538:28 PDMateEFDiTled: 0154/2o7f/20411

08/21/2008 08/22/2008 08/29/2008
08/29/2008 09/19/2008
09/29/2008 10/03/2008 10/09/2008 10/17/2008

TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, KATHLEEN HOFFMAN, ANA AROCHO. (PODELL, DAVID) (Entered: 08/20/2008)
33 Letter from Olga D. Pomar, Esq., Counsel for Plaintiffs, with Joint Request of Counsel to Extend Deadlines for Filing of Reply Briefs from August 26 to August 29, 2008, for Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction and Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion to Dismiss (faxed and mailed to all parties and chambers) re 30 Brief in Opposition to Motion,, 31 Brief in Opposition to Motion,,. (PODELL, DAVID) (Entered: 08/21/2008)
(TEXT ORDER) ORDERED that plaintiffs' reply in support of their motion for preliminary injunction shall be due August 29, 2008, and defendants' reply brief in support of their motion to dismiss shall be due August 29, 2008. By Judge Noel L. Hillman on 8/22/08. (sa, ) (Entered: 08/22/2008)
34 REPLY to Response to Motion re 17 MOTION for Preliminary Injunction filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Declaration of Olga D. Pomar (Second), # 2 Declaration of Gray Smith (2), # 3 Certificate of Service)(POMAR, OLGA) (Entered: 08/29/2008)
35 REPLY to Response to Motion re 18 First MOTION to Dismiss for lack of jurisdiction failure to state a claim filed by TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certificate of Service For Reply Brief)(MALEY, M.) (Entered: 08/29/2008)
36 RESPONSE in Opposition re 28 MOTION to Dismiss by Defendant Triad filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) (Entered: 09/19/2008)
37 Letter from M. James Maley, Jr.. (Attachments: # 1 Ordinance 2008−25 Approving Redevelopment Plan, # 2 West Rancocas Redevelopment Plan Part I, # 3 West Rancocas Redevelopment Plan Part II)(MALEY, M.) (Entered: 09/29/2008)
38 ORDER directing deft. Twp. of Mt. Holly to file a brief by 10/10/08. Signed by Judge Noel L. Hillman on 10/3/08. (js) (Entered: 10/07/2008)
39 BRIEF Letterbrief to Judge Hillman Pursuant to October 3, 2008 Order filed by TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certificate of Service)(MALEY, M.) (Entered: 10/09/2008)
40 BRIEF in response to Township Letter Brief filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR
0045

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 0539:28 PDMateEFDiTled: 0155/2o7f/20411

10/17/2008
10/17/2008
10/22/2008 10/23/2008 10/24/2008 10/24/2008 10/28/2008 10/28/2008 11/02/2008 11/03/2008 11/07/2008 11/07/2008
11/14/2008

VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) (Entered: 10/17/2008)
41 MOTION to Amend/Correct 9 Amended Complaint by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Brief, # 2 Proposed Second Amended Complaint, # 3 Text of Proposed Order, # 4 Certificate of Service)(POMAR, OLGA) (Entered: 10/17/2008)
Setting Deadlines as to 41 MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint. Motion Hearing set for 11/17/2008 before Magistrate Judge Joel Schneider. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (js) (Entered: 10/20/2008)
42 Letter from M. James Maley, Jr. regarding Judge Hillman's Recusal Issues. (MALEY, M.) (Entered: 10/22/2008)
43 Letter from Plaintiffs' Counsel Regarding Recusal Issues. (POMAR, OLGA) (Entered: 10/23/2008)
44 Letter from counsel for Keating Urban Partners, LLC regarding recusal. (DESANTIS, WILLIAM) (Entered: 10/24/2008)
45 Letter from Gaetano Mercogliano, Counsel for Triad Associates, regarding recusal. (MERCOGLIANO, GAETANO) (Entered: 10/24/2008)
46 OPINION FILED. Signed by Judge Noel L. Hillman on 10/28/08. (js) (Entered: 10/28/2008)
47 ORDER granting in part and denying in part 18 Motion to Dismiss; granting in part and denying in part 27 Motion to Dismiss; granting in part and denying in part 28 Motion to Dismiss. Signed by Judge Noel L. Hillman on 10/28/08. (js) (Entered: 10/28/2008)
48 Rule 7.1 Letter for extension of return date re 41 MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint filed by TOWNSHIP OF MOUNT HOLLY. (MALEY, M.) (Entered: 11/02/2008)
49 ORDER granting request to obtain an automatic extension to respond to motions. Signed by Judge Noel L. Hillman on 11/3/08. (th, ) (Entered: 11/04/2008)
50 Letter from Gaetano Mercogliano, counsel for Triad Associates request for automatic extension. (MERCOGLIANO, GAETANO) (Entered: 11/07/2008)
51 Rule 7.1 Letter for extension of return date re 41 MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint Request for Automatic Extension to file a response to Plaintiff's Motion for Leave to Amend and Supplement the Complaint filed by TRIAD ASSOCIATES, INC.. (MERCOGLIANO, GAETANO) (Entered: 11/07/2008)
52 RESPONSE to Motion re 41 MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint Defendant Triad Associates, Inc.'s Response to Plaintiffs' Motion to Amend and Supplement Complaint filed by TRIAD ASSOCIATES, INC.. (Attachments: # 1 Certificate of Service Certificate of Service, # 2 Proof of Mailing, # 3 Exhibit A)(MERCOGLIANO, GAETANO) (Entered: 11/14/2008)
0046

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 0630:28 PDMateEFDiTled: 0156/2o7f/20411

11/17/2008 11/18/2008
11/24/2008 11/24/2008
11/24/2008
11/25/2008 11/25/2008 11/25/2008

53 BRIEF in Opposition re 41 MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint filed by TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certificate of Service)(MALEY, M.) (Entered: 11/17/2008)
54 MEMORANDUM in Support re 17 MOTION for Preliminary Injunction Requesting to Supplement Record filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Declaration of Counsel, # 2 Exhibit Public Advocate Report)(POMAR, OLGA) (Entered: 11/18/2008)
55 Letter from Plaintiffs' Counsel regarding Preliminary Injunction Motion re 17 MOTION for Preliminary Injunction. (POMAR, OLGA) (Entered: 11/24/2008)
56 REPLY BRIEF to Opposition to Motion re 41 MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint Replying to Defendant Triad filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) (Entered: 11/24/2008)
57 REPLY BRIEF to Opposition to Motion re 41 MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint Replying to Defendant Township filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) (Entered: 11/24/2008)
58 Letter from M. James Maley in Response to re 54 Memorandum in Support of Motion,,. (MALEY, M.) (Entered: 11/25/2008)
NOTICE of Hearing on Motion 17 MOTION for Preliminary Injunction : Motion hearing set for 12/5/2008 3:00 PM in Camden − Courtroom 3A before Judge Noel L. Hillman. Telephone Conference set for 11/25/2008 2:00 PM Lead Counsel Olga Pomar, Esq. to initiate call before Judge Noel L. Hillman.(gn, ) (Entered: 11/25/2008)
60 Minute Entry for proceedings held before Judge Noel L. Hillman: Telephone Conference held on 11/25/2008 re: 17 Preliminary Injunction Motion issues on demolitions. Plaintiff's 41 Motion to Amend Complaint−Granted in part Denied in part. Ordered motion hearing set for December 5, 2008 at 3:00 PM. Orders to be entered. (Court Reporter/Recorder Ted Formaroli.) (gn, ) (Entered: 11/26/2008)

0047

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 0631:28 PDMateEFDiTled: 0157/2o7f/20411

11/25/2008 11/25/2008 11/25/2008 11/25/2008 11/26/2008 11/26/2008 11/26/2008
11/26/2008 11/26/2008 11/26/2008
11/26/2008 12/02/2008 12/02/2008

61 OPINION filed. Signed by Judge Noel L. Hillman on 11/25/2008. (gn, ) (Entered: 11/26/2008)
62 ORDER granting in part and denying in part 41 Plaintiff's Motion to Amend. Signed by Judge Noel L. Hillman on 11/25/08. (gn, ) (Entered: 11/26/2008)
63 ORDER Plaintiff's to file a letter by 4 p.m. on November 26, 2008 clarrifying the effects of this Court's opinion of October 28, 2008 and the amendment of the complaint on pending motion preliminary injunction. Signed by Judge Noel L. Hillman on 11/25/2008. (gn, ) (Entered: 11/26/2008)
64 ORDER Granting Plaintiff's request to supplement the record 54 advocates report, without prejudice. Signed by Judge Noel L. Hillman on 11/25/2008. (gn, ) (Entered: 11/26/2008)
59 Letter from Defendant, Triad Assoc., Inc.. (MERCOGLIANO, GAETANO) (Entered: 11/26/2008)
NOTICE of Hearing on Motion 17 MOTION for Preliminary Injunction : Motion hearing set for 12/5/2008 03:00 PM in Camden − Courtroom 3A before Judge Noel L. Hillman. (gn, ) (Entered: 11/26/2008)
65 MOTION for Temporary Restraining Order by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, BROOKE TIDSWELL III, ANA AROCHO. (Attachments: # 1 Memorandum of Law, # 2 Declaration of Counsel, # 3 Exhibit A to Declaration of Counsel, # 4 Exhibit B to Declaration of Counsel, # 5 Exhibit C to Declaration of Counsel, # 6 Exhibit D to Declaration of Counsel, # 7 Exhibit E to Declaration of Counsel, # 8 Exhibit F to Declaration of Counsel, # 9 Declaration of Plaintiff Nancy Lopez, # 10 Certificate of Service)(POMAR, OLGA) (Entered: 11/26/2008)
66 Letter from Plaintiffs' Counsel re 17 MOTION for Preliminary Injunction, 63 Order,. (POMAR, OLGA) (Entered: 11/26/2008)
67 BRIEF in Opposition re 65 MOTION for Temporary Restraining Order filed by TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certification of M. James Maley, Jr., # 2 Certification of Scott Kipp, # 3 Certification of Thomas Casey)(MALEY, M.) (Entered: 11/26/2008)
68 Minute Entry for proceedings held before Judge Noel L. Hillman: Motion Hearing held on 11/26/2008 re 65 MOTION for Temporary Restraining Order filed by EFRAIM ROMERO, VINCENT MUNOZ, MT HOLLY GARDENS, et al. Ordered Motion Denied. Ordered preliminary injunction hearing set for December 5, 2008 at 3:00 PM. Order to be entered. (Court Reporter/Recorder Frank Gable.) (gn) (Entered: 11/26/2008)
69 ORDER Denying 65 Motion for TRO. Signed by Judge Noel L. Hillman on 11/26/08. (gn, ) (Entered: 11/26/2008)
70 BRIEF as a Supplement to the Township's Motion to Dismiss filed by TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certification of Counsel, # 2 Certificate of Service)(MALEY, M.) (Entered: 12/02/2008)
71 AMENDED COMPLAINT Second Amended Complaint and Demand for Jury Trial in compliance with Court's Order of 11−25−2008 (Documents 61 and 62) against all defendants all defendants., filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO,
0048

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 0632:28 PDMateEFDiTled: 0158/2o7f/20411

12/03/2008 12/03/2008
12/04/2008 12/04/2008 12/04/2008 12/04/2008 12/04/2008 12/04/2008

HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO.(PODELL, DAVID) (Entered: 12/02/2008)
72 Letter from M. James Maley, Jr.. (MALEY, M.) (Entered: 12/03/2008)
73 AMENDED COMPLAINT Re−Filing of Second Amended Complaint and Demand for Jury Trial in compliance with Court's Order of 11−25−2008 (Documents 61 and 62) (Added new parties on Docket) against JULES K. THIESSEN, TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, KEATING URBAN PARTNERS, L.L.C., TRIAD ASSOCIATES, INC., filed by Maria Arocho, Vivian Brooks, Angelo Nieves, Dolores Nixon, Robert Tigar, James Potter, Phyllis Singleton, Flavio Tobar, Marlene Tobar, Radames Burgos, Sheila Warthen, Alandia Warthen, CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO.(PODELL, DAVID) (Entered: 12/03/2008)
74 MOTION to Dismiss Notice of Defendant Triad Associates, Inc. to Dismiss Plaintiffs' Second Amended Complaint by TRIAD ASSOCIATES, INC.. (Attachments: # 1 Order, # 2 Notice of Motion to Dismiss, # 3 Brief in Support of Motion, # 4 Certificate of Service Certifificate of Service, # 5 Proof of Mailing, # 6 Exhibit A, # 7 Exhibit B)(MERCOGLIANO, GAETANO) (Entered: 12/04/2008)
75 MOTION to Seal or Otherwise Restrict Public Access by JULES K. THIESSEN, TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, BROOKE TIDSWELL III. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Brief Brief in Support of Motion to Seal, # 3 Certification Certification of Service)(MALEY, M.) (Entered: 12/04/2008)
76 BRIEF in Opposition re 17 MOTION for Preliminary Injunction filed by JULES K. THIESSEN, TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, BROOKE TIDSWELL III. (Attachments: # 1 Certification Certification of Marcia Holt − REDACTED, # 2 Exhibit Exhibits to Holt Certification − REDACTED, # 3 Certification Certification of Thomas Mastrangelo, # 4 Certification Certification of Carlos Rodriguez, # 5 Certificate of Service Certificate of Service)(MALEY, M.) (Entered: 12/04/2008)
77 CERTIFICATION in Opposition re 75 MOTION to Seal or Otherwise Restrict Public Access filed by JULES K. THIESSEN, TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, BROOKE TIDSWELL III. (Attachments: # 1 Exhibit Exhibits A−D of Holt Certification, # 2 Exhibit Exhibit E of Holt Certification, # 3 Exhibit Exhibits F−Q of Holt Certification, # 4 Exhibit Exhibit R of Holt Certification)(MALEY, M.) (Entered: 12/04/2008)
78 Letter from Plaintiffs' counsel re 72 Letter, 17 MOTION for Preliminary Injunction, 70 Brief, 76 Brief in Opposition to Motion,,. (POMAR, OLGA) (Entered: 12/04/2008)
Setting Deadlines as to 75 MOTION to Seal or Otherwise Restrict Public Access AND 74 MOTION to Dismiss Notice of Defendant Triad Associates, Inc. to Dismiss Plaintiffs' Second Amended Complaint. Motion set for 1/5/2009 before Judge Noel L. Hillman. The motion will be decided on the papers. No appearances required unless notified by the court. (js) (Entered: 12/05/2008)

0049

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 063:28 PDMateEFDiTled: 0159/2o7f/20411

12/05/2008 12/09/2008 12/17/2008 12/17/2008
12/30/2008
01/14/2009

79 Minute Entry for proceedings held before Judge Noel L. Hillman: Motion Hearing held on 12/5/2008 re 65 MOTION for Temporary Restraining Order filed by EFRAIM ROMERO, VINCENT MUNOZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., LEON CALHOUN, ELIDA ECHEVARIA, CHRISTINE BARNES, LEONA WRIGHT, NORMAN HARRIS, ELMIRA NIXON, LILLIAN TORRES−MORENO, JOYCE STARLING, SANTOS CRUZ, RADAMES TORRES−MORENO, ROSEMARY ROBERTS, BERNICE CAGLE, NANCY LOPEZ, MATTIE HOWELL, WILLIAM ROBERTS, LEONARDO PAGAN, ANA AROCHO, DAGMAR VICENTE, PEDRO AROCHO, CHARLIE MAE WILSON, TAISHA TIRADO, GEORGE CHAMBERS, REYNALDO AROCHO, BROOKE TIDSWELL III, DOROTHY CHAMBERS, HENRY SIMONS. (Court Reporter Carl Nami) (js) (Entered: 12/08/2008)
80 Letter from Gaetano Mercogliano and Shaena Doherty. (MERCOGLIANO, GAETANO) (Entered: 12/09/2008)
81 MEMORANDUM in Support re 17 MOTION for Preliminary Injunction in Response to Holt Certification filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, Maria Arocho, Vivian Brooks, Angelo Nieves, Dolores Nixon, Robert Tigar, James Potter, Phyllis Singleton, Flavio Tobar, VINCENT MUNOZ, Marlene Tobar, Radames Burgos, Sheila Warthen, Alandia Warthen, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Declaration of counsel, # 2 Exhibit A)(POMAR, OLGA) (Entered: 12/17/2008)
82 Rule 7.1 Letter for extension of return date re 74 MOTION to Dismiss Notice of Defendant Triad Associates, Inc. to Dismiss Plaintiffs' Second Amended Complaint filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, Maria Arocho, Vivian Brooks, Angelo Nieves, Dolores Nixon, Robert Tigar, James Potter, Phyllis Singleton, Flavio Tobar, VINCENT MUNOZ, Marlene Tobar, Radames Burgos, Sheila Warthen, Alandia Warthen, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (POMAR, OLGA) (Entered: 12/17/2008)
83 RESPONSE in Opposition re 74 MOTION to Dismiss Notice of Defendant Triad Associates, Inc. to Dismiss Plaintiffs' Second Amended Complaint filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, Maria Arocho, Vivian Brooks, Angelo Nieves, Dolores Nixon, Robert Tigar, James Potter, Phyllis Singleton, Flavio Tobar, VINCENT MUNOZ, Marlene Tobar, Radames Burgos, Sheila Warthen, Alandia Warthen, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) (Entered: 12/30/2008)
84 Second MOTION to Dismiss Plaintiffs' 2nd Amended Complaint, Motion Date 2/17/09 by TOWNSHIP OF MOUNT HOLLY. Responses due by 2/2/2009 (Attachments: # 1 Brief in Support of Motion to Dismiss 2nd Amended Complaint,
0050

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 0634:28 PDMateEFDiTled: 0250/2o7f/20411

01/14/2009 01/16/2009 01/16/2009
01/20/2009 01/20/2009 01/20/2009 01/21/2009 01/22/2009
01/22/2009 01/28/2009 01/30/2009 02/13/2009

# 2 Certification of Counsel, # 3 Exhibit A of Cert of Counsel, # 4 Exhibit B to Cert of Counse, # 5 Exhibit C to Cert of Counsel, # 6 Exhibit D to Cert of Counsel, # 7 Exhibit E to Cert of Service, # 8 Exhibit F of Cert of Counsel, # 9 Text of Proposed Order for Motion to Dismiss 2nd Amended Complaint, # 10 Certificate of Service)(MALEY, M.) (Entered: 01/14/2009)
Setting Deadlines as to 84 Second MOTION to Dismiss Plaintiffs' 2nd Amended Complaint. Motion set for 2/17/2009 before Judge Noel L. Hillman. The motion will be decided on the papers. No appearances required unless notified by the court. (js) (Entered: 01/15/2009)
85 Letter from J. Connell. (Attachments: # 1 Subpoena)(CONNELL, JOHN) (Entered: 01/16/2009)
88 Transcript of Proceedings held on 11/25/2008, before Judge Noel L Hillman. Court Reporter/Transcriber Ted Formaroli, Telephone number 856−635−9054. NOTICE REGARDING REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this Transcript. If no such notice is filed, the transcript will be made remotely available in electronic format to the public without redaction after ninety(90) calendar days. The redaction policy is located on our website at www.njd.uscourts.gov. Transcripts may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for release of transcript restriction. After that date it may be obtained through PACER. Redaction Request due 2/6/2009. Redacted Transcript Deadline set for 2/17/2009. Release of Transcript Restriction set for 4/16/2009. (nf, ) (Entered: 01/21/2009)
86 MOTION to Dismiss by KEATING URBAN PARTNERS, L.L.C.. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(DESANTIS, WILLIAM) (Entered: 01/20/2009)
87 Letter from M. JAMES MALEY, JR. re 85 Letter. (MALEY, M.) (Entered: 01/20/2009)
Setting Deadlines as to 86 MOTION to Dismiss. Motion set for 2/17/2009 before Judge Noel L. Hillman. The motion will be decided on the papers. No appearances required unless notified by the court. (js) (Entered: 01/22/2009)
89 Letter from Plaintiffs' Counsel re 87 Letter, 85 Letter. (Attachments: # 1 Exhibit December 23 2008 letter, # 2 Exhibit December 30 2008 Letter, # 3 Exhibit January 15 2009 E−mail)(POMAR, OLGA) (Entered: 01/21/2009)
90 Rule 7.1 Letter for extension of return date re 84 Second MOTION to Dismiss Plaintiffs' 2nd Amended Complaint, Motion Date 2/17/09, 86 MOTION to Dismiss filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, Maria Arocho, Vivian Brooks, Angelo Nieves, Dolores Nixon, Robert Tigar, James Potter, Phyllis Singleton, Flavio Tobar, VINCENT MUNOZ, Marlene Tobar, Radames Burgos, Sheila Warthen, Alandia Warthen, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (POMAR, OLGA) (Entered: 01/22/2009)
91 Letter from John Connell, Esquire. (CONNELL, JOHN) (Entered: 01/22/2009)
92 Letter from Plaintiffs' counsel. (POMAR, OLGA) (Entered: 01/28/2009)
93 Letter from M. James Maley to Olga Pomar re 92 Letter. (MALEY, M.) (Entered: 01/30/2009)
94 OPINION FILED. Signed by Judge Noel L. Hillman on 2/13/09. (js) (Entered: 02/13/2009)

0051

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 0635:28 PDMateEFDiTled: 0251/2o7f/20411

02/13/2009 02/13/2009
02/17/2009
02/23/2009 02/24/2009 03/09/2009 04/01/2009
04/21/2009

95 ORDER denying 17 Motion for Preliminary Injunction; granting 75 Motion to Seal. Signed by Judge Noel L. Hillman on 2/13/09. (js) (Entered: 02/13/2009)
97 Transcript of Proceedings held on 12/5/2008, before Judge Noel L. Hillman. Court Reporter/Transcriber Carl J. Nami, Telephone number 856−757−5019. NOTICE REGARDING REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this Transcript. If no such notice is filed, the transcript will be made remotely available in electronic format to the public without redaction after ninety(90) calendar days. The redaction policy is located on our website at www.njd.uscourts.gov. Transcripts may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for release of transcript restriction. After that date it may be obtained through PACER. Redaction Request due 3/6/2009. Redacted Transcript Deadline set for 3/16/2009. Release of Transcript Restriction set for 5/14/2009. (nf, ) (Entered: 02/20/2009)
96 RESPONSE in Opposition re 84 Second MOTION to Dismiss Plaintiffs' 2nd Amended Complaint, Motion Date 2/17/09, 86 MOTION to Dismiss filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, Maria Arocho, Vivian Brooks, Angelo Nieves, Dolores Nixon, Robert Tigar, James Potter, Phyllis Singleton, Flavio Tobar, VINCENT MUNOZ, Marlene Tobar, Radames Burgos, Sheila Warthen, Alandia Warthen, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) (Entered: 02/17/2009)
98 Letter from M. James Maley Jr. re: Adjournment of Motion to Dismiss Plaintiffs' Second Amended Complaint re Set/Reset Motion and RRDeadlines/Hearings, 96 Response in Opposition to Motion,,, 84 Second MOTION to Dismiss Plaintiffs' 2nd Amended Complaint, Motion Date 2/17/09. (Attachments: # 1 Text of Proposed Order Order Extending Motion Date to March 16, 2009)(MALEY, M.) (Entered: 02/23/2009)
99 ORDER resetting defendant's motion to dismiss to 3/16/09. Signed by Judge Noel L. Hillman on 2/24/09. (js) (Entered: 03/03/2009)
100 REPLY BRIEF to Opposition to Motion re 84 Second MOTION to Dismiss Plaintiffs' 2nd Amended Complaint, Motion Date 2/17/09 filed by TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certificate of Service for Reply Brief)(MALEY, M.) (Entered: 03/09/2009)
CLERK'S QUALITY CONTROL MESSAGE: GAETANO MERCOGLIANO, does not have a correct e−mail address listed with the court and is not receiving his/her notices of electronic filing in this case. Pursuant to local rule 10.1 and court procedures, counsel and unrepresented parties are required to notify the court of any mailing or e−mail address changes. The court has deleted the invalid e−mail address. Attorneys should review the ECF link on our web site for information on maintaining your account and unrepresented parties, or those attorneys without access to maintaining their account, should notice the Clerk. (sa, ) (Entered: 04/01/2009)
CLERK'S QUALITY CONTROL MESSAGE: GAETANO MERCOGLIANO, does not have a correct e−mail address listed with the court and is not receiving his/her notices of electronic filing in this case. Pursuant to local rule 10.1 and court procedures, counsel and unrepresented parties are required to notify the court of any mailing or e−mail address changes. The court has deleted the invalid e−mail address. Attorneys should review the ECF link on our web site for information on maintaining your account and unrepresented parties, or those attorneys without access to maintaining their account, should notice the Clerk. (sa, ) (Entered: 04/21/2009)

0052

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 0636:28 PDMateEFDiTled: 0252/2o7f/20411

07/29/2009 10/23/2009 10/23/2009 11/13/2009 11/16/2009 12/22/2009
01/15/2010 01/19/2010 01/19/2010 02/18/2010

101 Letter from M. James Maley − Re: Supplement to Motion to Dismiss re 84 Second MOTION to Dismiss Plaintiffs' 2nd Amended Complaint, Motion Date 2/17/09. (Attachments: # 1 Certification of Service)(MALEY, M.) (Entered: 07/29/2009)
102 OPINION FILED. Signed by Judge Noel L. Hillman on 10/23/09. (js) (Entered: 10/26/2009)
103 ORDER granting in part and denying in part and continued in part 74 Motion to Dismiss ; 84 Motion to Dismiss and 86 Motion to Dismiss, etc. Signed by Judge Noel L. Hillman on 10/23/09. (js) (Entered: 10/26/2009)
104 Letter from Plaintiffs' counsel re 102 Opinion. (POMAR, OLGA) (Entered: 11/13/2009)
105 TEXT ORDER: ORDERED that plaintiffs' request for an extension of time to submit supplemental briefing is GRANTED; plaintiffs' brief shall be due by December 21, 2009, and defendants' response shall be due January 20, 2010.By Noel L. Hillman, on November 16, 2009 (gn) (Entered: 11/16/2009)
106 BRIEF in Opposition to Summary Judgment Motion filed by ANA AROCHO, PEDRO AROCHO, REYNALDO AROCHO, Vivian Brooks, Radames Burgos, BERNICE CAGLE, LEON CALHOUN, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., VINCENT MUNOZ, ELMIRA NIXON, Angelo Nieves, Dolores Nixon, LEONARDO PAGAN, James Potter, ROSEMARY ROBERTS, WILLIAM ROBERTS, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, Phyllis Singleton, JULES K. THIESSEN, TAISHA TIRADO, LILLIAN TORRES−MORENO, RADAMES TORRES−MORENO, Robert Tigar, Flavio Tobar, Marlene Tobar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen. (Attachments: # 1 Statement Responding Statement of Material Facts, # 2 Declaration Decl of A. Beveridge, # 3 Exhibit Beveridge Exh A, # 4 Exhibit Beveridge Exh B, # 5 Exhibit Beveridge Exh C, # 6 Exhibit Beveridge Exh D, # 7 Declaration Decl of S Cruz, # 8 Declaration Decl of K Pipes, # 9 Declaration Decl of O Pomar, # 10 Exhibit Pomar Exh A, # 11 Exhibit Pomar Exh B, # 12 Exhibit Pomar Exh C, # 13 Exhibit Pomar Exh D, # 14 Exhibit Pomar Exh E, # 15 Exhibit Pomar Exh F, # 16 Exhibit Pomar Exh G, # 17 Exhibit Pomar Exh H, # 18 Exhibit Pomar Exh I, # 19 Exhibit Pomar Exh J, # 20 Exhibit Pomar Exh K, # 21 Exhibit Pomar Exh L, # 22 Exhibit Pomar Exh M, # 23 Exhibit Pomar Exh N, # 24 Exhibit Pomar Exh O, # 25 Exhibit Pomar Exh P, # 26 Exhibit Pomar Exh Q, # 27 Exhibit Pomar Exh R, # 28 Exhibit Pomar Exh S, # 29 Exhibit Pomar Exh T, # 30 Declaration Decl of G Smith, # 31 Exhibit Smith Exh A1, # 32 Exhibit Smith Exh A2, # 33 Exhibit Smith Exh A3, # 34 Exhibit Smith Exh A4, # 35 Exhibit Smith Exh A5, # 36 Exhibit Smith Exh A6, # 37 Exhibit Smith Exh A7, # 38 Exhibit Smith Exh A8, # 39 Exhibit Smith Exh A9, # 40 Exhibit Smith Exh A10, # 41 Declaration R 56(f) Decl of Pomar, # 42 Certificate of Service)(POMAR, OLGA) (Entered: 12/22/2009)
107 Letter from M. James Maley, Jr. re 106 Brief,,,,,,,, 105 Docket Annotation,. (Attachments: # 1 Text of Proposed Order Proposed Order for Extension of Time to File Response)(MALEY, M.) (Entered: 01/15/2010)
108 TEXT ORDER: ORDERED that all defendants' replies to plaintiffs' opposition to the converted summary judgment motion shall be due on February 19, 2010. By Judge Noel L. Hillman on 1/19/2010. (gn ) (Entered: 01/19/2010)
MOTION for Summary Judgment by JULES K. THIESSEN, BROOKE TIDSWELL III, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, TOWNSHIP OF MOUNT HOLLY, TRIAD ASSOCIATES, INC.(SEE DOC. NO. 112 BRIEF/CONVERTED SUMMARY JUDGMENT MOTION (gn ) (per Chambers of Judge Noel L. Hillman) (Entered: 10/04/2010)
109 Letter from M. James Maley, Jr. re: Request to File Oversized Brief re 106 Brief,,,,,,,,. (MALEY, M.) (Entered: 02/18/2010)

0053

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 0637:28 PDMateEFDiTled: 0253/2o7f/20411

02/18/2010 02/19/2010 02/19/2010
02/24/2010 01/03/2011 01/03/2011 01/03/2011 01/19/2011
01/19/2011
01/19/2011

110 TEXT ORDER: ORDERED that defendant's request 109 to file an over−length brief is GRANTED; defendant's brief shall not exceed 50 pages. By Judge Noel L. Hillman on February 18, 2010. (gn) (Entered: 02/18/2010)
111 Letter from Brief to Plaintiffs' Responding Statement of Material Facts in Opposition to the Motion for Summary Judgment re 106 Brief,,,,,,,,. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(MERCOGLIANO, GAETANO) (Entered: 02/19/2010)
112 BRIEF in Support of Summary Judgment filed by KATHLEEN HOFFMAN, JULES K. THIESSEN, BROOKE TIDSWELL III, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Statement of Undisputed Facts, # 2 Certification of M. James Maley, Jr., # 3 Exhibit A through E and G through P to Maley Cert., # 4 Exhibit Exhibit F to Maley Cert., # 5 Certificate of Service)(MALEY, M.) (Entered: 02/19/2010)
113 AMENDED DOCUMENT by KATHLEEN HOFFMAN, JULES K. THIESSEN, BROOKE TIDSWELL III, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, TOWNSHIP OF MOUNT HOLLY. Amendment to 112 Brief, Amended Certificate of Service. (MALEY, M.) (Entered: 02/24/2010)
114 OPINION. Signed by Judge Noel L. Hillman on 1/3/2011. (drw, ) (Entered: 01/03/2011)
115 ORDER granting Defts' converted motions for summary judgment 74 , 84 , 86 &112 . The Clerk shall CLOSE this matter. Signed by Judge Noel L. Hillman on 1/3/2011. (drw, ) (Entered: 01/03/2011)
***Civil Case Terminated. (drw, ) (Entered: 01/03/2011)
116 NOTICE OF APPEAL by ANA AROCHO, Vivian Brooks, Radames Burgos, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., Dolores Nixon, LEONARDO PAGAN, James Potter, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, LILLIAN TORRES−MORENO, Robert Tigar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen. Filing fee $ 455, receipt number 0312−3520549. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. Appeal Record due by 2/2/2011. (POMAR, OLGA) (Entered: 01/19/2011)
117 MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) by ANA AROCHO, Vivian Brooks, Radames Burgos, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, NANCY LOPEZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., Dolores Nixon, LEONARDO PAGAN, James Potter, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, LILLIAN TORRES−MORENO, Robert Tigar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen. (Attachments: # 1 Declaration of Santos Cruz, # 2 Exhibit A, # 3 Exhibit B, # 4 Declaration of Nancy Lopez, # 5 Declaration of Counsel, # 6 Exhibit A, # 7 Exhibit B, # 8 Exhibit C, # 9 Exhibit D, # 10 Exhibit E, # 11 Exhibit F, # 12 Exhibit G, # 13 Exhibit H, # 14 Brief in support of stay motion, # 15 Text of Proposed Order granting stay)(POMAR, OLGA) (Entered: 01/19/2011)
118 MOTION to Stay re 117 MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) Certificate of Service by ANA AROCHO, Vivian Brooks, Radames Burgos, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, MT HOLLY GARDENS

0054

CasCea:s1e1:-1:10589-cv-0D2o5c8u4m-NenLtH: -0J0S3110A5s4o5f9: 5035/19P/2a0g1e1: 0638:28 PDMateEFDiTled: 0254/2o7f/20411

01/20/2011 01/20/2011 01/20/2011
01/20/2011 01/31/2011 02/03/2011 03/16/2011

CITIZENS IN ACTION, INC., Dolores Nixon, LEONARDO PAGAN, James Potter, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, LILLIAN TORRES−MORENO, Robert Tigar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen. (POMAR, OLGA) (Entered: 01/19/2011)
CLERK'S QUALITY CONTROL MESSAGE − The Motion to Stay # 118 filed by O.Pomar on 01/19/2011 was submitted incorrectly as a Motion. PLEASE RESUBMIT THE Certificate Of Service USING Certificate of Service found under the Service of Process menu. This submission will remain on the docket unless otherwise ordered by the court. (tf, ) (Entered: 01/20/2011)
Set Deadlines as to 117 MOTION to Stay re 116 Notice of Appeal (USCA). Motion set for 2/22/2011 before Judge Noel L. Hillman. The motion will be decided on the papers. No appearances required unless notified by the court. (tf, ) (Entered: 01/20/2011)
119 CERTIFICATE OF SERVICE by ANA AROCHO, Vivian Brooks, Radames Burgos, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., Dolores Nixon, LEONARDO PAGAN, James Potter, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, LILLIAN TORRES−MORENO, Robert Tigar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen re 117 MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) (POMAR, OLGA) (Entered: 01/20/2011)
120 Letter from Counsel requesting expedited hearing on motion for stay re 117 MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA). (POMAR, OLGA) (Entered: 01/20/2011)
121 MEMORANDUM OPINION &ORDER Denying 117 Motion to Stay. Signed by Judge Noel L. Hillman on 1/31/11. (js) (Entered: 01/31/2011)
122 TRANSCRIPT REQUEST by ANA AROCHO et al (UNNECESSARY FOR APPEAL PURPOSES) re: 16 Notice of Appeal (lec) (Entered: 02/03/2011)
123 ORDER of USCA as to 116 granting a Stay and Injunctive Relief Pending Appeal.(Craven, Shannon) (Entered: 03/16/2011)

0055

 
 Case: 11-1159 Document: 003110559421 Page: 1 Date Filed: 06/10/2011

o. 11-1159

U ITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
MT. HOLLY GARDENS CITIZENS IN ACTION, INC., a New Jersey non-profit corporation, ANA AROCHO, VIVIAN BROOKS, GEORGE CHAMBERS, DOROTHY CHAMBERS,
SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, DOLORES NIXON, LEONARDO PAGAN, JAMES POTTER, HENRY SIMONS, JOYCE STARLING, ROBERT TIGAR, TAISHA TIRADO, RADAMES TORRES BURGOS, LILLIAN TORRES-MORENO, DAGMAR VICENTE, ALANDIA WARTHEN, SHEILA
WARTHEN, CHARLIE MAE WILSON and LEONA WRIGHT,
APPELLA TS, vs.
TOWNSHIP OF MOUNT HOLLY, a municipal corporation of the State of New Jersey, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, as governing body of the Township of Mount Holly, KATHLEEN HOFFMAN, as Township Manager of the Township of Mount Holly, JULES THIESSEN, as Mayor of the Township of Mount Holly, KEATING
URBAN PARTNERS, L.L.C., a company doing business in New Jersey, TRIAD ASSOCIATES, INC., a corporation doing business in New Jersey,
APPELLEES.
O APPEAL FROM THE U ITED STATES DISTRICT COURT FOR THE DISTRICT OF EW JERSEY Civil Action o. 08-cv-02584 ( LH)
BRIEF FOR APPELLEES, TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL
OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, and JULES THIESSEN

MALEY & ASSOCIATES, P.C. 931 Haddon Avenue Collingswood, New Jersey (856) 854-1515 (telephone) (856) 858-2944 (Facsimile) Attorney for Appellees, Township of Mount Holly, Township Council of Mount Holly, Kathleen Hoffman & Jules Theissen

On the Brief: M. James Maley, Jr., Esq. Emily K Givens, Esq. Erin E. Simone, Esq. M. Michael Maley, Esq.

Case: 11-1159 Document: 003110559421 Page: 2 Date Filed: 06/10/2011
Table of Contents
TABLE OF CONTENTS...................................................................................................... i
TABLE OF AUTHORITIES ..............................................................................................iii
COUNTER STATEMENT OF FACTS .............................................................................. 1
STANDARD OF REVIEW ................................................................................................ 5
ARGUMENT ...................................................................................................................... 6
I. SUMMARY OF ARGUMENT ........................................................................... 6
II. THE DISTRICT COURT PROPERLY GRANTED SUMMARY JUDGMENT TO THE TOWNSHIP.................................................................... 7
A. APPELLANTS FAILED TO ALLEGE FACTS SUFFICIENT TO SUPPORT THEIR FHA CLAIMS ............................................................. 7
1. Appellants Statistics did not Show Disparate Adverse Impact . .................................................................... 8
a. Appellants Failed to Credibly Allege a Disproportionate Burden on Minorities in the Gardens ........................................................................ 10
b. Appellants Failed to Show a Disparate Impact on the General Minority Population ..................... .15
c. Appellants Statistics Fail to Show a Segregative Effect .............................................................. 18
2. Appellants’ Allegations Fail to Show Intentional Discrimination .............................................................................. 22
a. Removal of Blight was the Motivating Factor for the Township’s Actions ........................................................... 24
b. There is not Discriminatory Impact ................................... 26
i

Case: 11-1159 Document: 003110559421 Page: 3 Date Filed: 06/10/2011
c. The Historical Background Demonstrates No Discriminatory Intent ......................................................... 26
d. The Administrative History and Sequence of Events Leading Up to the Adoption of the Redevelopment Plan Show No Discriminatory Intent ................................. 28
e. There were no Departures from Normal Procedural or Substantive Norms ......................................................... 31
3. The Township Established a Bona Fide Interest and Proof of No Less Restrictive Means ...................................................... 34
4. Appellants Failed to Make Credible Allegations of Less Restrictive Means ................................................................... 37
a. Appellants’ Fact Allegations Show that Rehabilitation is Financially Unfeasible ............................ 38
b. The Facts of Record Show that Rehabilitation is Not Less Discriminatory .................................................... 46
5. Adoption of Appellants Standard for Fair Housing Violation in the Redevelopment Context Will Severely Limit Municipal Redevelopment.................................................. 50
a. Amicus United States Misstates Appellants Statistical Allegations......................................................... 53
B. The Township was Properly Granted Summary Judgment on Appellants’ Equal Protection Claims ........................................................ 55
C. No Violations of Civil Rights Act............................................................. 57
III. APPELLANTS FAILED TO DEMONSTRATE HOW ADDITIONAL DISCOVERY WOULD BENEFIT THEM ............................. 58
Conclusion .......................................................................................................... 61
ii

Case: 11-1159 Document: 003110559421 Page: 4 Date Filed: 06/10/2011
Table of Authorities Cases
Advo, Inc. v. Philadelphia Newspapers, Inc., 51 F.3d 1191 (3d Cir. 1995) ...........38 Alexander v. Whitman, 114 F.3d 1392 (3d Cir. 1997).......................................55,56 Anjelino v. New York Times Co., 200 F.3d 73 (3d Cir. 1999).................................9 American Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575 (3d Cir. 2009)..............................................................................................5 Anjelino v. New York Times Co., 200 F.3d 73 (3d Cir. 1999).................................9 Betsey v. Turtle Creek Assoc., 736 F.2d 983 (4th Cir. 1984) .................................12 Blair v. Scott Specialty Gases, 283 F.3d 595 3d Cir. 2002) ..............................................................................................................6 Bonvillian v. Lawler-Wood Housing, LLC, 242 Fed. Appx. 159 (5th Cir. 2007) ........................................................................................................................11 Brown v. Philip Morris Inc., 250 F.3d 789 (3rd Cir. 2001).....................................57 Buono v. City of Newark, 249 F.R.D. 469 (D.N.J.2008) ........................................60 Chambers ex rel. Chambers v. School Dist. of Philadelphia Bd. of Educ., 587 F.3d 176 (3d Cir. 2009)................................................................................55,56 Citizens Financial Group, Inc. v. Citizens Nat. Bank of Evans City, 383 F.3d 110 (3d Cir. 2004)....................................................................................................21 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)....................55,56 City of Memphis v. Greene, 451 U.S. 100 (1981)..............................................13,50 Community Services, Inc. v. Wind Gap Mun. Auth., 421 F.3d 170 (3d Cir. 2005) ........................................................................................................................10
iii

Case: 11-1159 Document: 003110559421 Page: 5 Date Filed: 06/10/2011
Cramer v. United States, 325 U.S. 1 (1945) ............................................................28 Doe v. City of Butler, Pa. 892 F.2d 315 (3d Cir. 1989) ..........................................11 Eastampton Center, L.L.C. v. Tp. of Eastampton, 155 F. Supp. 2d 102 (D.N.J. 2001)....................................................................................................8,22,52 E.C. v. Antar, 120 F. Supp. 2d 431, 440 (D.N.J. 2000)...........................................59 Edwards v. Johnston County Health Dept., 885 F.2d 1215 (4th Cir. 1989)..10,13,53 Felicioni v. Administrative Office of Courts, 961 A.2d 1207 (N.J. Super., A.D. 2008)................................................................................................................56 Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 924 A.2d 447 (N.J. Sup. Ct. 2007) ...........................................................................................34,50,51,53 Groach Assoc. #33, L.P. v. Louisville/Jefferson County Metro Human Relations Comm’n., 508 F.3d 366 (6th Cir. 2007)..................................................11 Hallmark Developers, Inc. v. Fulton County, Georgia, 466 F.3d 1276 (8th Cir. 2006) ..............................................................................................................9,11 Harris v. McRae, 448 U.S. 297 (1980) ....................................................................26 Hazelwood School Dist. v. U.S., 433 U.S. 299 (1977) ........................................9,17 Heffron v. Adamar of New Jersey, Inc., 270 F. Supp. 2d 562 (D.N.J. 2003). ..........6 Hispanics United of DuPage County, v. Village of Addison, Illnois, 988 F. Supp. 1130 (N.D. Ill. 1997) .....................................................................................44 Horvath v. Keystone Health Plan East, Inc., 333 F.3d 450 (3d Cir. 2003) .............58 Huntington Branch NAACP v. Town of Huntington, 844 F.2d 926 (2nd Cir.), aff’d 488 U.S. 15 (1988).................................................................................10 In re Graham, 973 F.2d 1089 (3d Cir. 1992) ...........................................................28
iv

Case: 11-1159 Document: 003110559421 Page: 6 Date Filed: 06/10/2011
In re Northwestern Mut. Life Ins. Co. Sales Practices Litigation, 70 F. Supp. 2d 466 (D.N.J. 1999)................................................................................................58 In re TMI Litig., 193 F.3d 613, 716 (3d Cir. 1999).................................................39 Intern. Brotherhood of Teamsters v. U.S., 431 U.S. 324 (1977)...............................9 Izzo v. Borough of River Edge, 843 F.2d 765 (3d Cir. 1988).................................52 J & J Snack Foods Corp. v. Earthgrains Co., 220 F. Supp. 2d 358, 368 (D.N.J. 2002)............................................................................................................39 Jean v. Nelson, 711 F.2d 1455 (11th Cir. 1983)......................................................26 Jones v. HUD, 390 F. Supp. 587 (E.D.La. 1974) ....................................................14 Jones v. U.S. Dept. of Housing and Urban Development (HUD), 390 F. Supp. 579 (D.C.La. 1974)........................................................................................29 Kelo v. New London, 545 U.S. 469 (2005).............................................................34 Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156 (3d Cir. 2009) .........38 Koorn v. Lacey Tp., 78 Fed. Appx. 199, 2003 WL 22366923 (3d Cir. 2003).....9,11 Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Tp. of Scotch Plains, 284 F.3d 442 (3d Cir. 2002)..................................................................................9,10 Lewis v. Harris, 908 A.2d 196 (N.J. Sup. Ct. 2006)................................................57 Lynch v. J.P. Stevens & Co., Inc., 758 F. Supp. 976 (D.N.J. 1991) .......................39 Maldonado v. Ramirez, 757 F.2d 48 (3d Cir. 1985)................................................38 McCauley v. City of Jacksonville, N.C., 739 F. Supp. 278 (E.D.N.C. 1989).........29 McCleskey v. Kemp, 481 U.S. 279 (1987)..............................................................26 McKnight v. Hayden, 65 F. Supp. 2d 113 (E.D.N.Y. 1999) ...................................24
v

Case: 11-1159 Document: 003110559421 Page: 7 Date Filed: 06/10/2011
Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977)..................................................................................17,18,34,44 Mitchell v. Cellone, 389 F.3d 86 (3d Cir. 2004) .....................................................13 Moore v. Detroit School Reform Bd., 293 F.3d 352 (6th Cir. 2002) ......................32 Mountain Side Mobile Estate Partnership v. Sect. of Housing and Urban Dev., 56 F.3d 1243 (10th Cir. 1995)........................................................................11 Pa. Prot. & Advocacy, Inc. v. Pa. Dept. of Pub. Welfare, 402 F.3d 374 (3d Cir. 2005)....................................................................................5,6 Resident Advisory Bd. v. Rizzo, 564 F.2d 126 (3d Cir. 1977) ....................................................................................................passim Rogers v. Lodge, 458 U.S. 613 (1982) ....................................................................27 Sadler v. 218 Housing Corp., 417 F. Supp. 348 (N.D.Ga. 1976)............................47 Shannon v. U. S. Dept. of Housing and Urban Dev., 436 F.2d 809 (3d Cir. 1970) ........................................................................................................................47 Shaw by Strain v. Strackhouse, 920 F.2d 1135 (3d Cir. 1990) ...............................39 South Camden Citizens in Action v. New Jersey Dep’t of Env. Prot., 254 F. Supp. 2d 486 (D.N.J. 2003) ................................................................................20,47 Strykers Bay Neighborhood Council, Inc. v. City of New York, 695 F. Supp. 1531 (S.D.N.Y. 1988) ..............................................................................................21 Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810 (4th Cir. 1995) ................29 United States v. Branella, 972 F. Supp. 294 (D.N.J. 1997)................................22,23 United States v. City of Birmingham, Mich., 727 F.2d 560 (6th Cir. 1984)...........61 United States v. O’Brien, 391 U.S. 367 (1967) .......................................................29 United States v. Sensient Colors, Inc., 649 F. Supp. 2d 309 (D.N.J. 2009)............60
vi

Case: 11-1159 Document: 003110559421 Page: 8 Date Filed: 06/10/2011
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) ..........................................................................................passim Ybarra v. Town of Los Altos Hills, 503 F.2d 250 (9th Cir. 1974)..........................15 Yokem v. Griffith, 167 F. Supp. 120 (D.N.J. 1958)................................................38
Statutes N.J.S.A. 20:4-1 et seq. .............................................................................................33 N.J.S.A. 20:4-5.........................................................................................................44 N.J.S.A. 40:4-6....................................................................................................33,43 N.J.S.A. 40A:12A-1 et seq....................................................................................1,56 N.J.S.A. 40A:12A-5.................................................................................................51 N.J.S.A. 47:1A-1 et seq............................................................................................59 N.J.S.A. 52:31B-1 et seq..........................................................................................33 42 U.S.C. §3601.........................................................................................................6 42 U.S.C. §3604......................................................................................................7,8 42 U.S.C. §1982.......................................................................................................57
ew Jersey Admnistrative Code N.J.A.C. 5:11-3.7(a).................................................................................................33
Other 114 Cong. Rec. 2985 (1968) ...............................................................................21,47 U. S. Const. Amend. XIV ........................................................................................55
vii

Case: 11-1159 Document: 003110559421 Page: 9 Date Filed: 06/10/2011
COU TERSTATEME T OF THE FACTS Counsel for Appellants are exponents of the principle that repetition creates belief. There are simply insufficient permissible pages to even attempt a point by point response to Appellants’ alleged issues, let alone its argument. Despite the pertinacious attempts by Appellants to create a morass of mythical factual issues and divert judicial attention, it is a remarkable aspect of this litigation that very few vital facts are actually in dispute. It is undisputed that the Gardens area of Mount Holly is the only blighted residential neighborhood in the Township as found by the Township pursuant to the Local Redevelopment and Housing Law (N.J.S.A. 40A:12A-1 et seq.) and as validated by the New Jersey Superior Court trial court, the Appellate Division and the New Jersey Supreme Court (JA1790, ¶3 & JA1810, ¶119-121). It is undisputed that the New Jersey Superior Court found the 2002 blight designation was based on the established record that showed “the general condition of the structures [were] substandard, dilapidated, obsolescent and in some cases unsafe and unsanitary.” (JA1369). It is undisputed that through the State Court review, both the State Trial and Appellate Courts specifically found no evidence of discriminatory intent on the part of the Township in the designation of blight or in the adoption of the redevelopment plan. (JA1121, JA1128, JA1960 & JA1963). It is undisputed that neither the 2003 Redevelopment Plan, nor the 2005
1

Case: 11-1159 Document: 003110559421 Page: 10 Date Filed: 06/10/2011
Redevelopment Plan called for “acquisition of all Gardens homes” or “displacement and relocation of all Gardens residents out of the community.” (Appellant’s Brief, p.7). Rather, the 2003 Redevelopment Plan “authorize[d]” the Township to acquire properties through the use of eminent domain, but anticipated that the Township would work with affected property owners to appropriately redevelop their own properties, and that the residents might have to relocate during construction. (JA0863). Similarly, the 2005 Redevelopment Plan “authorize[d]” acquisition, but specifically included a rehabilitation component. (JA0979 & JA0972). Temporary relocation again was anticipated. (JA0978).
It is undisputed that Mount Holly Township has acquired over 200 of the Townhouses in the area through voluntary sales over the last ten (10) years and has not begun a single eminent domain proceeding.1 (JA2017, ¶130). These former residents sold their home or relocated for many reasons: some related to the planned redevelopment and some unrelated to the implementation of the Redevelopment Plan, including threatened foreclosure of their homes, new jobs, Section 8 issues, non-payment of rent, to attend a new school, overcrowding of the residence, N.J. District attorney seizure of their home, and death. (JA1850-1874, ¶11.a, ¶12.b, ¶23a-b, ¶26.a-c &e-f, ¶27.b, ¶27.d, &¶29.b).
Of those former residents who relocated through the Township relocation 1 Although this year the Township has started the appraisal and negotiation
process that precedes eminent domain actions.
2

Case: 11-1159 Document: 003110559421 Page: 11 Date Filed: 06/10/2011
office, Plaintiffs made no credible allegation that persons had difficulty finding replacement housing at their desired location. It is undisputed that many of the former residents’ economic situations improved as a result of the relocation process.2 (JA1850-1870, ¶11b, ¶12.g, ¶13.d, ¶14.d-e, ¶17.b, ¶18, ¶20.c, ¶23.b, ¶24.e, ¶26.a-b & ¶26.e) It is undisputed that the one former resident alleged by Plaintiffs to have had difficulty finding replacement housing was Alandia Warthen, who moved in 2005 as a result of her landlord’s actions, not the Township’s; moreover, Ms. Warthen moved before the Township’s relocation office was opened in November, 2006. (JA0627-0628, ¶7 & 10; & JA2675-2678; & JA1815, ¶149).
It is further undisputed that not all Gardens residents wanted to remain in the Gardens. Residential surveys from 2000 and 2006 showed that 33% and 39%, respectively, of the residents polled expressed an interest in living in a new neighborhood. (JA0743 & JA1627). The injunction contains evidence of the locations of 57 of the relocated families. (JA160-1164). Of those relocated, 17 (30%) stayed in Mount Holly and 31 (54%) relocated to other municipalities within Burlington County. Id.
2 The vast majority of those individuals who were referenced in Ms. Holt’s Certification were selected because they were feature stories in the Public Advocate’s Report. Ms. Holt’s Certification was primarily intended to rebut the inaccurate facts contained in the Public Advocate’s Report, on which Plaintiffs’ relied in support of their Motion for Preliminary Injunction.
3

Case: 11-1159 Document: 003110559421 Page: 12 Date Filed: 06/10/2011
It is undisputed that there are hundreds of pages of transcripts of dozens of public meetings indicating that the Township wanted to get rid of the crime, absentee landlords and deteriorated properties within in the Gardens area, not the people. (JA1223, JA1224, JA0744, & JA0987-0988). It is undisputed that many of the members of the Planning Board and Governing Body repeatedly expressed concern about taking care of the Gardens residents as part of the redevelopment efforts. (JA2266-2267 & JA2272-2273). Finally, it is undisputed that the Planning Board and Governing Body also indicated that they did not want any of the residents to move out of town and that the redevelopment of the Gardens was done to better their lives. (JA0934-0936 & JA2267 & JA1012, p.124, line 23 to p.125, line 21 & JA1013, p.127, lines 7-14 & JA1031, p.51, line 24 to p.52, line 11).
It is undisputed that that same record reflects that officials truly believed Mount Holly had enough affordable housing stock to accommodate everyone who wanted to stay. (JA1012, p.122, lines14-25 & JA1032, p.55, lines 6-13). It is undisputed that to assist residents in finding affordable replacement housing, Mount Holly Township has paid residents relocation benefits when State law did not require such payments, at levels that substantially exceed State law requirements. (JA2475, ¶22, Appellant’s Brief, p.46 & JA1043-1044).
In determining the best method of implementing redevelopment within the area, the Township was first and foremost concerned with identifying a realistic
4

Case: 11-1159 Document: 003110559421 Page: 13 Date Filed: 06/10/2011
and financially feasible plan that would actually result in redevelopment of the area. (JA2547). However, the Township also had the “goal to provide as many low-to-moderate income units as economically feasible.” (JA1014, p.130, lines 23-25). The Township Council was also concerned with adopting a redevelopment plan that would bankrupt the Township. (JA1346).
It is undisputed that as of May 2008 Mount Holly Township had spent $16 million in acquisitions and relocations in furtherance of their redevelopment of the Gardens and had bonded $16.5 million. (JA1346).
It is undisputed that in June 2011, of the original 300 plus townhomes, there remain 70 privately owned properties and 52 Township-owned properties currently undergoing demolition.
STA DARD OF REVIEW
Since the standard of review for the grant of summary judgment is “de novo” the Appellate Division must apply the “same standard as that used by the District Court”. American Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). In other words, the Appellate Division must “review the record and draw inferences in a light most favorable to the nonmoving party.” Pa. Prot. & Advocacy, Inc. v. Pa. Dept. of Pub. Welfare, 402 F.3d 374, 379 (3d Cir. 2005).
While it is true that the “non-movant’s allegations are to be taken as true, and when they ‘conflict with those of the movant’ they are entitled to the “benefit
5

Case: 11-1159 Document: 003110559421 Page: 14 Date Filed: 06/10/2011
of the doubt”, the non-moving party is required to “designate ‘specific facts showing that there is a genuine issue for trial’”. Blair v. Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir. 2002). Specifically, “the nonmoving party must provide admissible evidence containing ‘specific facts showing that there is a genuine issue for trial.” Pa. Prot. & Advocacy, 402 F.3d at 379. To defeat Summary Judgment, “a plaintiff cannot simply rely on ‘vague’, ‘self-serving’ statements which are unsupported by facts in the record … plaintiff ‘must point to concrete evidence in the record which supports each essential element’ of a claim on which he will bear the burden of proof at trial.” Heffron v. Adamar of New Jersey, Inc., 270 F. Supp. 2d 562, 574 -575 (D.N.J. 2003).
Applying this standard, the District Court properly concluded “plaintiffs have not provided the requisite proof to take the issues to a jury.” (JA0009).
ARGUME T I. SUMMARY OF ARGUME T
Appellants contend the legal standard is simple. In a neighborhood of 100 people, where 75 are minorities and 25 are white, a governmental action affecting all 100 people equally is prima facie evidence of a “disparate impact” under the Fair Housing Act, 42 U.S.C. §3601, et seq. (“FHA”). Appellants contend affecting a greater raw number of minorities constitutes “disparate impact.”
The Township contends credible allegations that governmental action
6

Case: 11-1159 Document: 003110559421 Page: 15 Date Filed: 06/10/2011
adversely affected a substantially greater percentage of minorities as compared to the percentage of whites affected would be prima facie evidence of “disparate impact” under the FHA.
This is the legal issue at the core of this case. Appellants also contend that if they identify any conceptual alternative to the Township’s proposed redevelopment project, they have shown a less restrictive means. The Township contends that any alleged less discriminatory means must be realistic, both in terms of capability of being carried out and economic feasibility; it needs to be in the “realm of possibility.” The Township contends that, throughout the public record of the redevelopment process, it has adequately and reasonably considered the less discriminatory means proposed by Appellants and found them to be unrealistic. II. THE DISTRICT COURT PROPERLY GRA TED SUMMARY JUDGME T TO THE TOW SHIP. A. Appellants Failed to Allege Facts Sufficient to Support their FHA
Claims. The Township Defendants were properly granted Summary Judgment on the Plaintiff’s FHA claims because Appellants did not make credible allegations, statistically or otherwise, that housing was being made unavailable “because of” race. By its express terms, §3604(a) of the FHA makes it unlawful “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the
7

Case: 11-1159 Document: 003110559421 Page: 16 Date Filed: 06/10/2011
sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. §3604(a). Thus, unless property is (1) denied or made “unavailable”, (2) “because of” race, there is no violation of the FHA.
Discrimination “because of race” can be established through proof of intentional discrimination, or that "the challenged action by defendant had a racially discriminatory effect.” Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 147 & 148 (3d Cir. 1977). See also Eastampton Center, L.L.C. v. Tp. of Eastampton, 155 F. Supp. 2d 102, 111 (D.N.J. 2001). Evidence that governmental actions had the effect of removing minorities from an area, leaving an all-white community is sufficient to establish a prima facie case of discriminatory effect. Rizzo, 564 F.2d at 149. Discriminatory impact can also be shown where governmental action has the "undeniable effect of 'bear(ing) more heavily on one race than another.'" Id. at 143.
Here, Plaintiffs’ FHA case focused on allegations of discriminatory impact. However, neither discriminatory impact, nor intentional discrimination was supported by sufficient allegations to prevail on the cause of action.
1. Appellants’ Statistics did not Show Disparate Adverse Impact. Appellants assert that the Township’s redevelopment activities have an adverse disparate impact on minorities. “Discriminatory effect may be proved by
8

Case: 11-1159 Document: 003110559421 Page: 17 Date Filed: 06/10/2011
showing either ‘adverse impact to a particular minority group’ or ‘harm to the community generally by the perpetuation of segregation.’” Koorn v. Lacey Tp., 78 Fed. Appx. 199, 206, 2003 WL 22366923, 5 (3d Cir. 2003). A prima facie case under the disparate impact theory requires proof of the following: “‘(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant's facially neutral acts or practices.’” Lapid-Laurel, L.L.C. v. Zoning Bd. of Adj. of Tp. of Scotch Plains, 284 F.3d 442, 466 -467 (3d Cir. 2002).
While it is true that “[t]ypically, a disparate impact is demonstrated by statistics,” Hallmark Developers, Inc. v. Fulton County, Georgia, 466 F.3d 1276, 1286 (8th Cir. 2006), the usefulness of statistics in proving disparate impact “depends on all of the surrounding facts and circumstances.” Intern. Brotherhood of Teamsters v. U.S., 431 U.S. 324, 340 (1977). Statistics are generally considered useful in discrimination cases when the statistical imbalance is a telltale sign of purposeful discrimination. Id. at 324, n.20.
Statistics alone are proper in establishing a prima facie case of discrimination only where “gross statistical disparities can be shown.” Hazelwood School Dist. v. U.S., 433 U.S. 299, 307-308 (1977). 3 For example, in Rizzo, the
3 Both Intern. Brotherhood and Hazelwood School Dist. (later cited) are Title VII cases. It has been said that Title VIII FHA cases are “analogous” to Title VII cases. Anjelino v. New York Times Co., 200 F.3d 73, 90, n.23 (3d Cir. 1999).
9

Case: 11-1159 Document: 003110559421 Page: 18 Date Filed: 06/10/2011
Court found statistical evidence of discriminatory impact from the elimination of an affordable housing project, where 95% of the affordable housing waiting list was non-white. Rizzo, 546 F.2d 143. The Rizzo Court explained that the effect of the canceled housing project was to contribute to maintaining segregated housing in Philadelphia. Id. at 142. Unlike Rizzo, the District Court correctly found that neither gross statistical disparities nor perpetuation of segregation was shown by Plaintiffs’ statistical proofs.
a. Appellants Failed to Credibly Allege a Disproportionate Burden on Minorities.
Appellants attempt to use statistics to allege a greater adverse impact on minorities by pointing out that the Gardens is predominately minority. (Plaintiff’s Brief, p.12). However, it is insufficient to simply allege that an action will affect a greater number of minorities than non-minorities if the degree of harm is the same for both. Edwards v. Johnston County Health Dept., 885 F.2d 1215, 1223 (4th Cir. 1989). The focus must be on the “the disproportionate burden on minorities”. Huntington Branch NAACP v. Town of Huntington, 844 F.2d 926, 938 (2nd Cir.), aff’d 488 U.S. 15 (1988) (emphasis added). As explained in Huntington Branch, 844 F.2d at 938, the proper focus is on the “disproportionate burden on minorities”
Federal Courts have routinely stated that in reviewing disparate impact claims under the FHA, it is appropriate to “borrow” from Title VII caselaw. Community Services, Inc. v. Wind Gap Mun. Auth., 421 F.3d 170, 176, n.5 (C.A.3 (Pa.),2005). Lapid-Laurel, 284 F.3d at 466 and Rizzo, 564 F.2d at 146.
10

Case: 11-1159 Document: 003110559421 Page: 19 Date Filed: 06/10/2011
considering proportional statistics rather than absolute numbers. A statistical analysis must utilize appropriate comparables. Mountain Side
Mobile Estate Partnership v. Sect. of HUD, 56 F.3d 1243, 1253 (10th Cir. 1995). To establish disparate impact, “appropriate inquiry is into the impact on the total group to which the policy or decision applies.” Hallmark Developers, 466 F.3d at 1286 (internal citations omitted). Thus, a court must look at the total group to which a policy applies and compare the impact on minorities to that on nonminorities within the group. Groach Assoc. #33, L.P. v. Louisville/Jefferson County Metro Human Relations Comm’n, 508 F.3d. 366, 378 (6th Cir. 2007).
For example, in Koorn, supra, 78 Fed. Appx. at 206, no disparate impact was found where an ordinance affected all citizens, minorities and white, alike. See also Doe v. City of Butler, Pa., 892 F.2d 315, 323 (3d Cir. 1989), (stating plaintiffs failed to show discriminatory effect from an ordinance which primarily impacted group homes for abused women because the ordinance would have a comparable effect on a non-protected group if it were applied to a different type of group home such as one for recovering alcoholics). Similarly, in Bonvillian v. Lawler-Wood Housing, LLC, 242 Fed. Appx. 159, 160 (5th Cir. 2007), no disparate impact on minorities was found from the closure of an apartment because “the building is closed to all potential tenants” and therefore, “there is no ‘significantly greater discriminatory impact on members of a protected class.’” Likewise, in Groach
11

Case: 11-1159 Document: 003110559421 Page: 20 Date Filed: 06/10/2011
Assoc., 508 F.3d at 378-379, the Court found no disparate impact even though 90% of the occupants of an apartment building to be demolished were minority because the policy applied to all residents of the building.
By contrast, in Betsey v. Turtle Creek Assoc., 736 F.2d 983, 987 (4th Cir. 1984), disparate impact was found because after considering the group to which the policy applied, it found “[o]f the total number of men, women and children living in Building Three, 74.9 percent of the non-whites were given eviction notices while only 26.4 percent of the whites received such notices.” Ibid. Thus, there was a disparate impact. Ibid.
Here, when considering the total group to which the Township’s redevelopment policies apply, it is clear that there is no greater impact or burden on minorities. The ongoing voluntary acquisition of properties and demolition of Township-owned properties is being applied to all residents of the Gardens, regardless of race. It is undisputed that the Redevelopment Plan calls for the acquisition and demolition of all the existing homes in the Gardens, without regard to race. (JA2009, ¶100 & 125 - Plaintiffs’ Statement of Undisputed Fact). This means 100% of the minority residents in the area, and 100% of the white residents will have their homes acquired. Even though there are more minorities in the area, both are being impacted or burdened equally. Appellants’ statistics did not establish a disproportionate impact on minorities.
12

Case: 11-1159 Document: 003110559421 Page: 21 Date Filed: 06/10/2011
Rather, their statistics establish that minorities are disproportionately
represented in the redevelopment area. Appellants claim that minorities will be 8
times and 11 times more affected than non-minorities. (JA2045, ¶11). The reason
for this is simple: the Gardens has a high concentration of minority residents and
minorities are overrepresented in the Gardens area, compared to the rest of Mount
Holly. (JA0069, ¶30 & JA0070, ¶32).
Merely establishing a disproportionate representation alone is insufficient to
establish discrimination. As explained in City of Memphis v. Greene,
Because urban neighborhoods are so frequently characterized by a common ethnic or racial heritage, a regulation's adverse impact on a particular neighborhood will often have a disparate effect on an identifiable ethnic or racial group. To regard an inevitable consequence of that kind as a form of stigma so severe as to violate the Thirteenth Amendment would trivialize the great purpose of that charter of freedom. Proper respect for the dignity of the residents of any neighborhood requires that they accept the same burdens as well as the same benefits of citizenship regardless of their racial or ethnic origin. 451 U.S. 100, 128 (1981).4 Rather, if a consequence of a particular action is
unavoidable, there can be no inference of discriminatory intent. See Edwards, 885
F.2d at 1223 (stating that simply showing that the majority of migrant farm
workers were minorities, without more, did not establish disparate adverse impact
4 The FHA was enacted pursuant to the Congressional Power under the Thirteenth Amendment. Mitchell v. Cellone, 389 F.3d 86, 87 -88 (3d Cir. 2004).
13

Case: 11-1159 Document: 003110559421 Page: 22 Date Filed: 06/10/2011
because “any policy or action taken with respect to these workers will necessarily affect more non-white than white migrant workers”). See also Jones v. HUD, 390 F. Supp. 587 (E.D.La. 1974) (stating the Court should not “infer” racial discrimination is a motivating factor behind a decision to close an apartment simply because the majority of the occupants are minority).
Given the Garden’s racial composition, there was no way for the Township to undertake redevelopment of the area without affecting more minorities than whites simply because there are more of them in the area. In granting Summary Judgment, the lower Court explained the flaw in Plaintiffs’ logic:
[U]nder Plaintiffs’ logic, any action by the Township to do anything with regard to the Gardens would result in a disparate impact, simply because of the racial composition of the Gardens. The FHA (or any other civil rights law) does not contemplate that a town will never be permitted to ameliorate a blighted area inhabited mainly by minorities simply because it will affect minorities. (JA0016). Affecting more minorities than non-minorities is simply an unavoidable consequence of the Township’s redevelopment efforts and does not amount to an inference of discriminatory intent. Since 100% of minorities and 100% of non-minorities will be burdened equally, Plaintiffs’ statistics fail to prove there is a greater adverse impact on minorities.
14

Case: 11-1159 Document: 003110559421 Page: 23 Date Filed: 06/10/2011
b. Appellants Failed to Show a Disparate Impact on the General Minority Population.
To support their claim of disparate impact, Appellants also claim that more of the minority population lives in poverty and therefore destruction of inexpensive blighted housing would have a greater impact on minorities in general.
Appellants equate blighted, cheap housing with “affordable” housing, a term in New Jersey that equates with housing that is certified compliant with habitability and income restrictions under the Council on Affordable Housing (COAH).
Appellants’ expert opined that low-income residents “are disproportionately African-American and Hispanic.” (JA2047, ¶14). However, a mere statistical correlation between poverty and a particular race or ethnicity does not transform discrimination against poor people into racial discrimination. Ybarra v. Town of Los Altos Hills, 503 F.2d 250, 253 (9th Cir. 1974).
Appellants’ expert also opined that only households above 80% of the area median income can afford to move into the proposed Project. (JA2047, ¶18). Because the homes with the Gardens are currently “affordable” to low and moderate income families, Appellants’ conclude that acquisition and demolition of the homes in the Gardens and replacement of the homes with more expensive market rate homes will have a disproportionally adverse effect on minorities. (JA1991, ¶30 & JA2003, ¶82 & JA2033, ¶206-208 - Plaintiffs’ Statement of
15

Case: 11-1159 Document: 003110559421 Page: 24 Date Filed: 06/10/2011
Undisputed Fact). However, as the District Court explained, “[t]he FHA prohibits the
Township from making unavailable a dwelling to any person because of race – it does not speak to income.” (JA0014).
Appellants’ statistics show that the percentage difference between whites and minorities who can afford the new housing is a slim margin. Appellants’ 2008 Emulated CHAS Table shows approximately 64.5% of the minority households have incomes above 80% of the Median Family Income5 compared to 72.7% of white households. (JA2070). This is also consistent with the Census Data provided by the Township, which showed that 65.92% of the African American and Hispanic population in Burlington County have incomes above 80% of the median income of $44,580. 6 (JA2679-2680). Thus, the act of replacing the cheaper, blighted units with market rate units will only affect 35.5% of minority versus 27.3% of white households or 8.2% more minority households.7
5 This figure is derived from subtracting the number of Non-Hispanic Black and Hispanic households below 80% from the total households (all income levels) and dividing by the total households, i.e. (29,543 – 10,475) / 29,543 = 0.645432 or about 64.5%.
6 This figure is derived from adding all the minority households (both Hispanic and African American) with incomes of $45,000 or higher and dividing by the total number of Hispanic and African American households.
7 Appellants’ 2008 Emulated CHAS Table shows that 23.4% of the white affordable housing in the Gardens will be lost, compared to 74.4% minority occupied affordable housing. (JA2070). However, these figures are only
16

Case: 11-1159 Document: 003110559421 Page: 25 Date Filed: 06/10/2011
Affecting 8.2% more minorities than non-minorities is not a “gross statistical disparity”. See Hazelwood School Dist., supra, 433 U.S. at 307-308 (stating statistics alone are proper in establishing a prima facie case of discrimination only where “gross statistical disparities can be shown”).
In addition, when you compare the total households with incomes below 80% of the median income with those of white and minorities, it appears that a greater number of whites are affected than minorities. Approximately 71.8% of the households below 80% median income are white, compared to 22% who are minority. 8 (JA2070). Likewise, 66.8% of the households below 50% median income are white, compared to 26.5% minority. Id. In other words, the vast majority of the households in need of affordable housing are white.
In Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1291 (7th Cir. 1977), statistics similar to those presented by Appellants in this case was considered “relatively weak” support for a disparate impact claim. The Court stated,
It is true that the Village's refusal to rezone had an adverse impact on a significantly greater percentage of the nonwhite people in the Chicago area than of the white people in that area. But it is also true that the class disadvantaged by the Village's action was not
reflective of the fact that the Gardens area is predominately occupied by minorities (nearly 75%). (JA0069, ¶29 & 30). 8 These figures are derived by dividing the number of white and minority households below 80% median income by the total number of households below 80% median income (i.e., 34,206 ÷ 47,611 = 0.718).
17

Case: 11-1159 Document: 003110559421 Page: 26 Date Filed: 06/10/2011
predominantly nonwhite, because sixty percent of the people in the Chicago area eligible for federal housing subsidization in 1970 were white. By contrast, in Rizzo, where adverse impact was found, the Court noted that the canceled housing project would affect about 14,000 to 15,000 people on a public housing waiting list, of which 95% were minority and 5% were non-minority. Rizzo, supra, 564 F.2d at 142. Here, the statistics show that the majority of the households who would need and/or qualify for affordable housing (with incomes below 50% and 80% median income) are white. Thus, like Arlington Heights, Appellants’ statistics regarding adverse impact on minorities are weak and therefore, the District Court properly found that Appellants failed to present facts to defeat Summary Judgment.
c. Appellants’ Statistics Fail to Show a Segregative Effect. Finally, Plaintiffs’ allege that redevelopment will drive the minority population out of Mount Holly. Historically, statistics have been used to show a policy will perpetuate segregation. In Rizzo, 564 F.2d at 142, the Court relied on statistics to show disparate impact, where the cancellation of a housing project would perpetuate segregation. The Court noted that the waiting list for the project was 95% minorities and that the area in which the housing project was to be located had recently become 99.9% white. Id. at 140 & 142. Because the project “was a unique opportunity for these Blacks living in racially impacted areas of
18

Case: 11-1159 Document: 003110559421 Page: 27 Date Filed: 06/10/2011
Philadelphia to live in an integrated, non-racially impacted neighborhood,” “[c]ancellation of the project erased that opportunity and contributed to the maintenance of segregated housing.” Id. a 142.
Here, Appellants’ claim their statistics showed that the Township’s redevelopment perpetuates segregation by causing Mt. Holly’s minority population to be “drastically reduced.” (Appellants’ Brief, p.13). Appellants’ statistics indicated that the displaced population is 75% minority and “a much smaller percentage of minority households – only 21% – would be able to afford the newly redeveloped community.” Id. at p.12-13. Appellants’ concluded that this translated into a reduction of the minority population within the Township.
The District Court, however, found Appellants’ arguments unavailing, stating,
[P]laintiffs have not demonstrated that the Township is preventing minorities from purchasing or moving into the new homes, or otherwise limiting the new residents to non-minorities. Plaintiffs have not provided any proof or statistics to suggest that the new homes created by the redevelopment will be financially out-of-reach for all or most minorities. (JA0015). In a footnote, the Court noted that Appellants’ statistics were based on old 2000 Census numbers, and that the 2008 Census numbers “evidence” “the minority population’s ability to occupy all 464 market rate homes.” (JA0016, n.9). The Court explained, These statistics hold very little validity to show a disparate impact on
19

Case: 11-1159 Document: 003110559421 Page: 28 Date Filed: 06/10/2011
the Township’s minority population for several reasons: (1) they take into account the entire population of Burlington County, rather than only Mt. Holly Township, and the towns in Burlington County are of various economic and racial compositions (2) they do not account for minorities who will move into Mt. Holly Township from outside Burlington County; (3) they do not account for the deed restricted units that will be more affordable; (4) they do not account for a nonminority purchaser who rents to a minority; (5) they do not account for the minorities who will move elsewhere within Mt. Holly Township; and (6) more recent population survey data (from 2008, compared to the 2000 Census data used by plaintiffs’ expert) shows 16,744 African-Americans and Hispanic households in Burlington County have incomes exceeding $45,000, evidence of the minority populations ability to occupy all 464 market rate homes.
Id.
Appellants’ statistics do not show evidence of perpetuation of segregation.
Rather, the undisputed facts show that redevelopment will further integration.
Initially, the Gardens was heavily segregated, with a significant low-income
minority population of 75%, compared to a 33.3% minority population for the rest
of the Mt. Holly. (JA1987, ¶13 & 10 - Plaintiffs’ Statement of Undisputed Facts).
The redevelopment project will have the effect of creating a more integrated
housing project, dispersing poverty concentration by limiting the affordable
housing units and comingling them with market rate housing. (JA1987, ¶11 & 13,
& JA1991, ¶30 - Plaintiffs’ Statement of Undisputed Facts). Since the proposed
redevelopment project will result in a more integrated, mixed-income community
than previously existed, Appellants have failed to show evidence of a segregating
effect.
20

Case: 11-1159 Document: 003110559421 Page: 29 Date Filed: 06/10/2011
The Township’s redevelopment efforts are consistent with the underlying purposes of the FHA. As explained in S. Camden Citizens in Action v. N.J. Dep’t of Env. Prot., 254 F. Supp. 2d 486, 500 (D.N.J. 2003), “the underlying policy behind Title VIII is to encourage the dispersion of urban ghettos and to create more integrated neighborhoods. See 114 Cong. Rec. 2985 (1968) (statement of Sen. Proxmire) (noting that Title VIII will establish ‘a policy of dispersal through open housing ... look[ing] to the eventual dissolution of the ghetto and the construction of low to moderate income housing in the suburbs.’).” Adverse impact is not shown where a proposed housing project results in a more integrated, mixedincome housing complex than what previously existed. Strykers Bay Neighborhood Council, Inc. v. The City of New York, 695 F. Supp. 1531, 15421543 (S.D.N.Y. 1988).
Moreover, unlike in Rizzo, Mount Holly is not a community which is predominately white. Rather, as of 2000, it was only 66.2% white. (JA1987, ¶13 Plaintiffs’ Statement of Undisputed Facts). At Summary Judgment, over two-thirds (2/3) of the residents in the Gardens had relocated. (JA1985, ¶3 & JA2024, ¶163 Plaintiffs’ Statement of Undisputed Facts). Appellants fail to identify any fact to show that Mount Holly’s minority population decreased as a result of the redevelopment activities. Rather, American Community Survey Demographic
21

Case: 11-1159 Document: 003110559421 Page: 30 Date Filed: 06/10/2011
Estimates from the 2005 to 20099 show that Mount Holly’s minority population has actually grown over the last few years. http://factfinder.census.gov/servlet/ACSSAFFFacts?_event=&geo_id=06000US34 00548900&_geoContext=01000US%7C04000US34%7C05000US34005%7C0600 0US3400548900&_street=&_county=mount+holly%2C+nj&_cityTown=mount+h olly%2C+nj&_state=&_zip=&_lang=en&_sse=on&ActiveGeoDiv=&_useEV=&p ctxt=fph&pgsl=060&_submenuId=factsheet_1&ds_name=null&_ci_nbr=null&qr_ name=null&reg=null%3Anull&_keyword=&_industry, last visited 2-28-11. In 2000, Mt. Holly was comprised of 66.2% white, while population estimates from 2005 to 2009 indicate the white population has declined to 63.3%. (Id. & JA1987, ¶10 - Plaintiffs’ Statement of Undisputed Facts). Thus, Plaintiffs’ did not make credible allegations to show redevelopment has or will reduce Mt. Holly’s minority population.
2. Appellants’ Allegations Fail to Show Intentional Discrimination. Under the FHA, intentional discrimination can be shown two ways, either by showing disparate treatment, or by showing that a discriminatory purpose was the motivating factor behind the governmental action. Eastampton Center, supra, 155 F. Supp. 2d at 122. Ordinarily questions of intent must be decided by the fact-
9 The Court is permitted to take judicial notice of Census data. See Citizens Financial Group, Inc. v. Citizens Nat. Bank of Evans City, 383 F.3d 110, 127 n. 2 (3d Cir. 2004).
22

Case: 11-1159 Document: 003110559421 Page: 31 Date Filed: 06/10/2011
finder. U.S. v. Branella, 972 F. Supp. 294, 299 (D.N.J. 1997). “However, on a motion for summary judgment, if the non-moving party does not provide sufficient evidence to support each element of the prima facie case, the case does not withstand summary judgment and the fact finder need never address the factual question of intent.” Ibid.
As discussed above, there was no credible allegation of disparate impact because the Township’s redevelopment designation and redevelopment plan were facially neutral and treated all residents alike regardless of race. As to discriminatory purpose, the District Court determined that Plaintiffs failed to provide sufficient facts to defeat summary judgment, noting,
[P]laintiffs tell a story, long on accusations and suppositions but short on proof, of the Township’s ten-year, insidious desire to displace the minority population of Mt. Holly. If there were merit to these claims, plaintiffs would be able to annotate their allegations with factual evidence that would infer such discriminatory motive. They have not done so. (JA0024-0025). The Court also stated “[i]n contrast, the Township provides transcripts of town council and planning board meetings, where concerned citizens and council members discussed the plans for the Gardens.” (JA0026). These documents, the Court noted, showed the “Township’s consideration of the residents’ concerns” and that “their input was welcomed and encouraged.” Id. Rather than evidencing discrimination, the Court found that the documented evidence showed the Township was motivated by the need to cure the “extensive
23

Case: 11-1159 Document: 003110559421 Page: 32 Date Filed: 06/10/2011
deterioration, crime, and overall unsafe living conditions” and by the “significant concern for the Gardens’ resident’s welfare”. (JA0027).
Discriminatory intent or purpose can be established through the weighing of several factors: (1) “discriminatory impact”; (2) the challenged action’s “historical background” or the action’s legislative history; (3) “‘sequence of events leading up to the challenged decisions’”; (4) any departure from “‘normal procedural sequences’”; and (5) any departure from or “normal substantive criteria”. Rizzo, supra, 564 F.2d at 143, citing Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). This fact-sensitive analysis must start from the presumption that governmental actors generally act constitutionally. McKnight v. Hayden, 65 F. Supp. 2d 113, 120 (E.D.N.Y.1999). This means “‘courts should be ‘reluctant to attribute unconstitutional motives to the state, particularly where a plausible [constitutional] purpose may be discovered from the face of the statute.’” Ibid.
Appellants failed to make the required showing and the District Court properly granted summary judgment to the Township.
a. Removal of Blight was the Motivating Factor for the Township’s Actions.
The facts of record showed that the true motivating factor behind the Township’s Actions was the removal of blight. Appellants are really claiming that the Township’s selection of the Gardens area for redevelopment was done with
24

Case: 11-1159 Document: 003110559421 Page: 33 Date Filed: 06/10/2011
intent to discriminate against minorities. This issue was litigated in State courts and those courts specifically found no evidence of discriminatory intent in the redevelopment designation or adoption of a redevelopment plan. (JA1121, JA1128, JA1133, JA1160 & JA1163)
In this case, based on the extensive public record, the District Court specifically found that “but-for the significant concern for the Gardens’ residents’ welfare, and the desire to make the Township as a whole a safe and pleasant town for all of its citizens, minority and non-minority, the Township would have never undertaken the long-overdue project…” (JA0027). Moreover, the District Court noted, “plaintiffs could not dispute the ironic observation that if the Township had allowed the Gardens to continue to deteriorate as it had over the years, that it might then be fairly characterized as having a discriminatory intent towards its minority, low-income residents.” (JA0027, n.18).
The evidence showed Appellants’ housing was being made unavailable, not because of race, but because it had become blighted. All acquisition of housing by the Township was done and will continue to be done for the sole purpose of effectuating the Redevelopment Plan for the area. (JA2251-2252 & JA1690).
Likewise, the evidence shows that the new housing to be built as part of the Redevelopment Project may be unavailable to Appellants because of income, not race. Appellants’ certifications make clear that the new housing will be unavailable
25

Case: 11-1159 Document: 003110559421 Page: 34 Date Filed: 06/10/2011
to Appellants because they cannot afford it, not because of race. (Compare JA2129 with JA2131 & JA0613 with JA1795, ¶32). See also JA2025, ¶165. In fact, several of the Plaintiffs are white. (JA1793, ¶15 & JA1795, ¶¶29, 30, 32 & 35 &JA1796, ¶40).
As recognized by the District Court in granting Summary Judgment, “if none of the plaintiffs can afford the new homes, it is not just the African-American and Hispanic plaintiffs who are impacted by the increased housing prices -- it is all Gardens residents, including the Caucasion residents.” (JA0015). The District Court concluded, “[t]he FHA prohibits the Township from making unavailable a dwelling to any person because of race -- it does not speak to income.” (JA0014). Poverty is not a suspect classification, Harris v. McRae, 448 U.S. 297, 323 (1980).
Thus, the District Court properly found that there was no credible allegation of intentional discrimination.
b. There is not Discriminatory Impact. With regard to the first factor of the Arlington Heights/Rizzo test, the evidence supports the Trial Court’s granting of Summary Judgment finding that there was no discriminatory impact.
c. The Historical Background Demonstrates o Discriminatory Intent.
Evidence of historical background is relevant “if it establishes an ongoing pattern of discrimination against the plaintiff class.” Jean v. Nelson, 711 F.2d
26

Case: 11-1159 Document: 003110559421 Page: 35 Date Filed: 06/10/2011
1455, 1490 (11th Cir. 1983) (emphasis added). Moreover, to be relevant, historical background evidence must be “reasonably contemporaneous with the challenged decision.” McCleskey v. Kemp, 481 U.S. 279, 298 n.20 (1987). Actions taken too far in the past are simply not indicative of current discriminatory intent. Id.
Here, the challenged governmental action is actually twofold: First, in the process of the voluntary acquisition of properties and demolition of those properties and, second, in the adoption and implementation of a redevelopment plan for the Gardens. Appellants identify numerous programs that previously attempted, prior to the redevelopment designation, to redevelop or improve the Gardens, but which they allege the Township refused to consider or failed to adequately support. (JA2386-2389, ¶¶29, 30 & 32).
However, the New Jersey Courts have already concluded that the Township’s prior actions with respect to the Gardens up through August 30, 2005 reveal “not a scintilla of evidence of discriminatory motivation by defendants.” (JA1960). It was specifically acknowledged that “[t]he historical background of the redevelopment effort has been explored in detail in the Court’s prior opinions. So, too, have the procedural and substantive sequences of events. Nothing nefarious has been suggested nor has anything of that nature been uncovered.” Id.
Yet, despite this explicit finding, Appellants still cite to the same Township actions, specifically found by State Courts to be non-discriminative, as evidence of
27

Case: 11-1159 Document: 003110559421 Page: 36 Date Filed: 06/10/2011
discriminatory intent, which is simply irrelevant to a claim of intentional discrimination. Such facts are insufficient to establish discriminatory intent. See Rogers v. Lodge, 458 U.S. 613, 625 (1982) (historical background evidence is relevant “where the evidence shows that discriminatory practices were commonly utilized, that they were abandoned when enjoined by courts or made illegal by civil rights legislation, and that they were replaced by laws and practices which, though neutral on their face, serve to maintain the status quo”). See also In re Graham, 973 F.2d 1089, 1097 (3d Cir.1992) (citations omitted) (explaining when issue preclusion applies). The historical background of the Township’s actions clearly shows a lack of discriminatory intent by the Township.
d. The Administrative History and Sequence of Events Leading Up to the Adoption of the Redevelopment Plan Show o Discriminatory Intent.
As to the third factor in the Arlington Heights/Rizzo test, the administrative history and sequence of events leading up to the adoption of the Redevelopment Plan, the evidence is clear that the Townships actions were not racially motivated. Again, it must be noted these allegations were litigated in State court and found without merit. (JA1960).
The relevance of the sequence of events is explained by the following: “Environment illuminates the meaning of acts, as context does that of words. What a man is up to may be clear from considering his bare acts by themselves; often it is made clear when we know the reciprocity and sequence of his acts with those of others, the
28

Case: 11-1159 Document: 003110559421 Page: 37 Date Filed: 06/10/2011
interchange between him and another, the give and take of the situation.” Cramer v. U.S., 325 U.S. 1, 33 (1945). Similarly, legislative or administrative history is “highly relevant” when accompanied by “contemporary statements by members of the decision making body, minutes of its meetings, or reports.” Arlington Heights, supra, 429 U.S. at 268. When considering the underlying motive of a multi-member decision-making body, “an element of causation is a necessary part of plaintiff’s showing.” Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 819, n.2 (4th Cir., 1995). This is because “‘[w]hat motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high to eschew guesswork.” McCauley v. City of Jacksonville, N.C., 739 F. Supp. 278, 281-82 (E.D.N.C. 1989), quoting U.S. v. O’Brien, 391 U.S. 367, 383-84 (1967). The legislative record and statements made by the Planning Board and Township Council members demonstrate that the Township was concerned first and foremost with finding a plan for redevelopment that would actually and realistically result in the redevelopment of the Gardens and that would improve the quality of life for the residents there and for the town at large. “There is no reason to look for hidden reasons and racial motivation” behind a government action when there is an obvious alternative explanation for the action. Jones v. U.S. Dept.
29

Case: 11-1159 Document: 003110559421 Page: 38 Date Filed: 06/10/2011
of Housing and Urban Devel., 390 F. Supp. 579, 587 (D.C.La. 1974).
Various entities, including the Township, had repeatedly attempted to
improve the Gardens and the quality of life for the residents in the Gardens over
the years, but nothing has worked. As explained by the former Mayor,
[M]any people over the years have tried many, many projects, many things to address the problem in the Gardens. Two of those problems have not been able to be resolved. One is the large volume of absentee landlord held units…. The last and the next problem is the specific condition of some of the houses … one alternative might have been to try to do it with the buildings that we have now. To move people out, to rebuild the buildings and to move them back in. That process had been tried.
(JA0870-0871). These sentiments were echoed by a former Mayor and Council
person,
Fifteen years ago when I sat where you are sitting the Council applied for and received millions of dollars in grants, in rental rehab monies, a lot of different programs to make the Gardens… Many of our residents and in the County were members of Mount Holly 2000 and devoted an enormous amount of time without pay to upgrade units on Saul Place, South Martin. And it just seems that no matter what was done or what was invested, the stigma did not go away.
(JA2536-2537). Planning Board members also recognized the limited effect of past
attempts to resolve the problems of the Gardens,
As you know, many, many years sitting on Council, patchwork attempts by Mount Holly 2000 and other, you know, well-intentioned groups that picked up a few houses. But this group was so small it didn’t make any major impact on the neighborhood. I think it’s long overdue that we take a comprehensive look. And I think this is the first step towards it. …
30

Case: 11-1159 Document: 003110559421 Page: 39 Date Filed: 06/10/2011
I know I for one have long been concerned about the quality of life in the Mount Holly Gardens. There have been plans, Mount Holly 2000. I was with it when it was brainstormed, when the Committee first came together with the idea that they would have Mount Holly Gardens renovated by the year 2000.
I saw Genesis come in with their plans. I’ve seen Hearts of Hope come in with a group from the mid-west work on the houses. All that was very, very good, but there was no large scale development plan. And this is what we need and this is I hope the direction we’re going in.
(JA2495 & JA2504-2505).
Nothing in the legislative history nor the sequence of events leading up to
the adoption of the Redevelopment Plan suggested that the Township’s motivation
was anything other than to find a workable solution that appropriately and
permanently addresses the blighting conditions found in the Gardens. Appellants
make no credible allegation of intentional discrimination.
e. There were no Departures from ormal Procedural or Substantive orms.
Finally, as to the fourth and fifth factor in the Arlington Heights/Rizzo test,
Appellants failed to point to sufficient facts to show substantial departures from
normal procedural or substantive norms. The District Court observed the record
showed that the Township took extra measures to listen to and consider the
Gardens’ residents’ concerns regarding redevelopment. (JA0026).
Appellants’ allege violations of the Open Public Meetings Act in adopting
2008 amendments to the redevelopment plan and other earlier procedural
31

Case: 11-1159 Document: 003110559421 Page: 40 Date Filed: 06/10/2011
irregularities as evidence of departures from procedural and substantive norms. (JA0026-0027, n.17). The State Courts have concluded the redevelopment process was completed in compliance with State law, finding no evidence of any discriminatory intent. Moreover, if Appellants believed any later Township actions carried out after the State court litigation violated statutory requirements under redevelopment or Open Public Meeting laws, they should have appealed such actions to State Court. The Appellants have shown no reluctance to litigate and yet they never challenged the recent actions they continue to complain of.
As to substantive departures, Appellants essentially argue that because the Township has not undertaken redevelopment in the manner in which Appellants have dictated, the Township is discriminating against them. However, these allegations show nothing more than Appellants’ dissatisfaction with the legislative process in the adoption of the Redevelopment Plan, which is insufficient to show intentional discrimination. See Moore v. Detroit School Reform Bd., 293 F.3d 352, 369-70 (6th Cir. 2002) (“rejection of amendments and choice of methods to address the perceived problems of the DPS is simply the operation of the democratic process” and “allegations that the Legislature acted with haste and did not engage in extensive fact-finding might be a legitimate and even a valid critique of its behavior, but it does not lead to an inference of racial discrimination”).
Rather, the undisputed evidence showed that the Township appropriately
32

Case: 11-1159 Document: 003110559421 Page: 41 Date Filed: 06/10/2011
evaluated the factors normally considered by public entities undertaking redevelopment. (JA2547). The Township’s first and foremost consideration was the adoption of a plan that would actually and realistically result in the redevelopment of the area.
The evidence supports the Township’s focused interest in assisting all Gardens’ residents during the redevelopment process. The Township voluntarily bought houses and/or provided relocation benefits to residents who sought assistance from the Township for personal reasons, such as personal economics, pending/threatened foreclosures and/or evictions, and illegal tenancies (i.e. overcrowded conditions). (JA1850-1874, ¶11.a, ¶12.b, ¶23a&b, ¶26.a-c & e-f, ¶27.b & d, ¶29.b). In addition, the Township provided a variety of social services to residents who sought relocation assistance, which was not required by the relocation laws. (JA1844-1847, ¶6); N.J.S.A. 20:4-1 et seq. and N.J.S.A. 52:31B-1 et seq.
In addition, the Township provided relocation benefits above and beyond what was required by law. Specifically, the Township provided double the relocation benefits required under law to anyone who has relocated. Compare $7,500 given to tenants with N.J.S.A. 40:4-6 (assistance “not to exceed $ 4,000…”) and $35,000 given to homeowners with N.J.A.C. 5:11-3.7(a) (assistance “not to exceed $ 15,000”). (JA0073, ¶40).
33

Case: 11-1159 Document: 003110559421 Page: 42 Date Filed: 06/10/2011
It is clear that the Township went above and beyond any legal requirements it had in undertaking redevelopment to ensure that the needs of the residents within the Redevelopment Area were adequately met. The District Court noted that “evidence in the record shows that many relocated residents have been pleased with the process, and are now in a much better place as a result. (JA0027-0028). It also noted that “evidence demonstrates that many residents now have significantly improved living conditions and are in better circumstances financially.” (JA0025, n.16).
Appellants fail to make any credible allegations of intentional discrimination.
3. The Township Established a Bona Fide Interest and Proof of o Less Restrictive Means.
In this case, all levels of the New Jersey State Courts considered and upheld the Township’s Redevelopment designation of the Gardens and the Redevelopment Plan. (JA1125 at *14, JA1133, & JA1368-1370. Both the N.J. and U.S. Supreme Courts have recognized that community redevelopment constitutes a legitimate and bona fide interest of the State. 10 Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 924 A.2d 447, 459 (N.J. Sup. Ct. 2007) and Kelo v. New London, 545 U.S. 469, 484-85 (2005). When addressing FHA claims, the courts have said, “if 10 Appellants never challenged the Township’s legitimate interest in
redevelopment. Rather, they focus their arguments on the less restrictive means.
34

Case: 11-1159 Document: 003110559421 Page: 43 Date Filed: 06/10/2011
the defendant is a governmental body acting within the ambit of legitimately
derived authority, we will less readily find that its action violates the Fair Housing
Act.” Arlington Heights, supra, 558 F.2d at 1293. Thus, it was undisputed that the
Township’s interest in redeveloping the Gardens was a bona fide governmental
interest.
Once the bona fide interest is shown, the government entity must show there
is no less restrictive means. Rizzo, supra, 564 F.2d at 149. In upholding the blight
designation, the New Jersey Appellate Division noted that the blighting conditions
in the neighborhood included dilapidation of the units, overcrowding, excessive
land coverage, diverse ownership and faulty arrangement. (JA1124-1125). It
noted that
[A] majority of the rear yards were paved or covered with gravel to accommodate additional parking spaces … the alleyways created a faulty arrangement or design for the Gardens because it increased the amount of crime in the area. The dilapidated, overcrowded, poorly designed community, in addition to the high level of crime in the area, is clearly detrimental to the safety, health, morals and welfare of the community. . . . “And the problems created by that diverse ownership pattern is that there was an inability to address portions of this development that have common-that function in common with each other. One was the driveway, one other is roof systems, building facades. One unit is effected [sic] by the lack of maintenance to the exterior, including the sides and the rooftop and the landscaping of the property next door. And its just exacerbated because you have all of these lots in diverse ownership without any type of mechanism for ensuring that they are maintained and adequately kept up, so that the area as a whole can improve.”
35

Case: 11-1159 Document: 003110559421 Page: 44 Date Filed: 06/10/2011
. . . [The Township’s Planner] also explained how the diverse ownership in the form of absentee landlords contributed to maintenance issues. Because many of the residents in the Gardens are renters, there is less incentive to invest in the property and improve it.
Id. None of the problems that caused the blight, the overcrowding, excess land
coverage, faulty arrangements due to the alleys, the absentee landlords and lack of
homeowner’s association to address common areas, can be remedied without
redesigning and rebuilding the entire area. Thus, there is no less restrictive means
to redevelop the area. As explained by the former Mayor,
[M]any people over the years have tried many, many projects, many things to address the problem in the Gardens. Two of those problems have not been able to be resolved. One is the large volume of absentee landlord held units…. The last and the next problem is the specific condition of some of the houses … One alternative might have been to try to do it with the buildings that we have now. To move people out, to rebuild the buildings and to move them back in. That process had been tried.
(JA0870-0871).
The evidence was also clear that past attempts to rehabilitate the Gardens
were unsuccessful. (JA2495, JA2504-2505 & JA0934). A former Mayor and
Council person stated,
Fifteen years ago when I sat where you are sitting the Council applied for and received millions of dollars in grants, in rental rehab monies, a lot of different programs to make the Gardens…Many of our residents and in the County were members of Mount Holly 2000 and devoted an enormous amount of time without pay to upgrade units on Saul Place, South Martin. And it just seems that no matter what was done or what was invested, the stigma did not go away.
36

Case: 11-1159 Document: 003110559421 Page: 45 Date Filed: 06/10/2011
(JA2536-2537). The evidence amply shows that less restrictive means had been tried
unsuccessfully over the years and redevelopment was the Township’s last resort. 4. Appellants Failed to Make Credible Allegations of Less Restrictive Means.
The Trial Court correctly found that Appellants failed to make credible allegations of less restrictive means. Once a defendant introduces evidence that no less restrictive alternative course is available, the burden shifts back to the plaintiff to demonstrate the existence of less restrictive means. Rizzo, supra, 564 F.2d at 149, n.37. In granting Summary Judgment, the District Court stated that even if Appellants had proved its prima facie case under the FHA, “they have not rebutted the Township’s legitimate interest in the redevelopment, and they have not shown how an alternative course of action would have a lesser impact.” (JA0017).
The District Court correctly found that Appellants had insufficient allegations to support the rehabilitation of the Gardens as a viable means of redevelopment. In doing so, it noted that Plaintiffs’ rehabilitation plan “relies upon governmental subsidies and upon costs based on property conditions in 1989” and did not take into consideration extra costs, such as relocation costs. (JA00190020). The Court concluded “[s]imply because the properties could have been rehabilitated does not mean that rehabilitation was the feasible option.” (JA0020).
37

Case: 11-1159 Document: 003110559421 Page: 46 Date Filed: 06/10/2011
In short, Appellants failed to allege sufficient facts that would show their rehabilitation plan was viable.
a. Appellants’ Fact Allegations Show that Rehabilitation is Financially Unfeasible.
Appellants own allegations showed that financial feasibility was a crucial element to successful redevelopment. The Township Mayor explained, “[t]he final analysis for the success of any plan is whether it can be effectively implemented, whether it can be accepted both at the local and at the State level, whether it can be financed and whether it can be built.” (App. 129). Appellants’ allegations failed to establish that rehabilitation was financially plausible.
In support of its rehabilitation plan, Plaintiffs relied on affidavits submitted by their expert, Gray Smith11. His affidavit, however, is insufficient to defeat Summary Judgment. Affidavits in opposition to summary judgment must contain facts, not opinions and conclusions. Maldonado v. Ramirez, 757 F.2d 48, 51 (3d Cir. 1985); see also Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009) (stating “‘conclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment’”) and Yokem v. Griffith, 167 F. Supp. 120, 123 (D.N.J. 1958) (an affidavit can be disregarded if its contents “consist[] of conclusions drawn by the defendant and not affirmations of fact” and is “nothing more than a self-serving declaration”). 11 Gray Smith passed away on April 29, 2010.
38

Case: 11-1159 Document: 003110559421 Page: 47 Date Filed: 06/10/2011
This is equally true for expert affidavits. As explained in Advo, Inc. v. Philadelphia Newspapers, Inc., 51 F.3d 1191, 1198 -1199 (3d Cir. 1995),
[E]xpert testimony without such a factual foundation cannot defeat a motion for summary judgment. “When an expert opinion is not supported by sufficient facts to validate it in the eyes of the law, or when indisputable record facts contradict or otherwise render the opinion unreasonable, it cannot support a jury's verdict.... Expert testimony is useful as a guide to interpreting market facts, but it is not a substitute for them.” Rather, “[t]he factual predicate of the opinion of an expert must find some support in the record.” Lynch v. J.P. Stevens & Co., Inc., 758 F.Supp. 976, 1006 1007 (D.N.J. 1991). “An expert opinion which contains no support for factual assertions should be rejected.” Id. A court may disregard an expert affidavit which is “‘essentially conclusory’ and lacking in specific facts” or where the opinion assumes facts which are unsupported by the record. Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1144 & 1139 (3d Cir. 1990). Moreover, “[a] trial court is not precluded from granting summary judgment merely because expert testimony is admitted. If, even given the proffered expert testimony, the proponent ‘still has failed to present sufficient evidence to get to the jury,’ summary judgment is appropriate.” In re TMI Litig., 193 F.3d 613, 716 (3d Cir. 1999) amended 199 F.3d 158 (3d Cir. 2000). See also J & J Snack Foods Corp. v. Earthgrains Co., 220 F. Supp. 2d 358, 368 (D.N.J. 2002) (stating “a court may grant summary judgment even where the opponent presents admissible expert
39

Case: 11-1159 Document: 003110559421 Page: 48 Date Filed: 06/10/2011
testimony, if that testimony is insufficient to support a jury verdict in favor of the party offering the evidence on a crucial element of the claim”).
In this case, the Trial Court correctly concluded that the record as a whole demonstrates that there was no violation of the FHA and no intentional discrimination by the Township.
Mr. Smith’s Declaration contains numerous conclusory statements, without citing to any factual evidence to support them. For example, Mr. Smith states that because the units were “structurally sound” and due to high costs of demolition, recycling, disposal and replacement of housing components, “the houses were economically feasible to rehabilitate.” (JA2373-2375, ¶15 & JA0396, ¶24). Mr. Smith’s Declaration is filled with similar unsupported statements as to the economic feasibility of rehabilitation. (JA2382, ¶25). While Appellants’ expert opines that rehabilitation would be less costly than new construction and that affordable housing could be “easily and economically retained at little or no expense to the Township”, he fails to provide any facts or figures to support his opinion. (JA0400, ¶28-29). He cites to no facts to support any of his conclusions. Nowhere does he ever provide an estimate of the actual cost of rehabilitation.
Smith’s opinions regarding the feasibility of rehabilitation is based in part on his assumption that many of the units, especially the homeowner units, are well maintained or have “minor cosmetic issues”. (JA0390, ¶15 & JA0406, ¶32).
40

Case: 11-1159 Document: 003110559421 Page: 49 Date Filed: 06/10/2011
However, of the four houses Mr. Smith cites to as examples of homes in “good condition”, two of those homes (154 Levis Drive and 354 South Martin Avenue) were Mount Holly 2000 homes, wherein $42,240 and $36,845 in grant funds, respectively, were spent on renovating the properties in 1996. (JA0396-0399, ¶25 & JA1382). There is no evidence in the record that these houses were representative of the other homes within the Gardens.
By contrast, the Township provided photographic evidence demonstrating several of the unoccupied homes had more than “minor cosmetic issues.” (JA1929-1934 & JA1766-1767). The President of Keating explained that due to the extensiveness of the damage, gut rehabilitation of many of the units would be required. (JA1413-1414, ¶4-7). The Township provided evidence that rehabilitation costs would be substantial, about $150,000 to $200,000 per unit. (JA1415-1416, ¶14-15 & JA1372-1373, ¶6-9 & JA1381 & JA1383-1384).
Moreover, Appellants’ expert admits that the units are not consistent with today’s design standards, which would result in increased rehabilitation costs.
The units in the Gardens, while meeting health and safety standards, are small from a market standpoint; i.e., relative to what a middleincome buyer paying a market price would seek with respect to a townhouse. While large units that would reflect market preferences could be created by combining existing units, that would significantly increase the cost and complexity of undertaking rehabilitation rather than new construction. (JA0671). Thus, the facts set forth indicate substantial unarticulated costs
41

Case: 11-1159 Document: 003110559421 Page: 50 Date Filed: 06/10/2011
associated with rehabilitation without any identifiable funding source. Smith opines that “[t]o overtly conclude that a Rehabilitation Plan is not
feasible without performing a feasibility study is unacceptable” and to conclude wholesale demolition and new construction “is less costly without a comparative cost analysis is also unacceptable.” (JA1508, ¶7). Yet despite the fact that he touts “[m]y firm has conducted feasibility studies” (JA1505-1506, ¶1), he never undertook a feasibility analysis to support his claims that Appellants’ rehabilitation plan was feasible.
Instead of performing his own feasibility study, Smith cites to a 1989 report by Joseph Biber, who undertook a full analysis, including financial feasibility of rehabilitating the Gardens. (JA2386, ¶29). It identified several public funding sources, as well as resale income and concluded that in 1989 dollars that there would still be a financial gap of $3,242,396. (JA1211). The report surmised that additional public, governmental sources might be able to fill the gap, assuming that those governmental sources would provide extra funding. Id. Moreover, it identified a $793,149 and $288,639 gap needed to address a capital subsidy and operating support for a projected 100 lease-purchase units, for which no accompanying funding source was identified. Id. Finally, it identified another $1,749,058 as a funding gap for operating expenses for certain rental units and hoped that this gap could be addressed through the federal Section 8 program. Id.
42

Case: 11-1159 Document: 003110559421 Page: 51 Date Filed: 06/10/2011
The problem with the Biber analysis is three-fold. First, it relies, almost exclusively, on governmental subsidies to fund the program. (JA1202-1211). In today’s climate of program cuts, and with the State and Federal Government’s significant budget deficits which need to be filled, the availability of governmental funding is tenuous at best, and is most likely going to be significantly reduced over the upcoming years. Second, the rehabilitation cost figures in this report were done in 1989. (JA1163). Since that time, many of the units have experienced greater deterioration, thereby increasing rehabilitation costs, and many have been demolished, as documented by the Township. (JA1413-1414, ¶¶4-7, & JA19231928 & JA2373, ¶¶13-14 & JA2379-2380, ¶¶19 & 20, JA2027, ¶177). It also does not account for increased construction costs.
Third, this report does not take into consideration the additional costs that would necessarily need to be incurred to ensure proper rehabilitation. For example, this report excludes costs to rehab owner-occupied homes. (JA1166-1167). Utilizing the rehabilitation figures in the Report (JA1172), that is another $2,697,192 to $2,860,164 that needs to be subsidized. (JA1166) (stating 108 owner-occupied units). Finally, the Report does not take into consideration the relocation costs for the displaced individuals. Each of the 225 tenants displaced as a result of the acquisition would need to receive the statutory $4,000 in relocation benefits. N.J.S.A. 20:4-6. This is another $900,000 that needs to be subsidized. In
43

Case: 11-1159 Document: 003110559421 Page: 52 Date Filed: 06/10/2011
addition, if homeowner rehabilitation occurs, it is likely that the homeowners will need to relocate during the rehabilitation, depending upon the severity of the rehabilitation needed (i.e. rehab to electrical or plumbing systems), adding another $1,620,000 to the cost. (108 x $15,000). N.J.S.A. 20:4-5. This is a minimum of $5,217,192 in additional unaccounted for costs.
It is clear that Plaintiffs’ are seeking affirmative relief that requires the Township and/or a private redeveloper to undertake significant financial obligations, without identifying viable funding sources. (JA2385, ¶27). However, the court has made clear, “[c]ourts should be more reluctant to grant affirmative relief: ‘To require a defendant to appropriate money, utilize his land for a particular purpose, or take other affirmative steps toward integrated housing is a massive judicial intrusion on private autonomy.’” Hispanics United of DuPage County v. Village of Addison, Illinois, 988 F. Supp. 1130, 1163 (N.D.Ill 1997, quoting Arlington Heights, supra, 558 F.2d at 1293.
As to funding sources to cover the gap, Mr. Smith asserts that governmental funding sources are available to offset the cost of rehabilitation, but fails to provide any figures as to the amount of funding which can be secured from these unnamed sources. (JA2385, ¶27 & JA0401-0403, ¶30). Township evidence demonstrates that the funding sources identified by Mr. Smith have either limited funds or are not truly funding sources. (JA1373-1376, ¶9).
44

Case: 11-1159 Document: 003110559421 Page: 53 Date Filed: 06/10/2011
Smith also suggests that rehabilitation could have been feasible if the Township had retained an affordable housing developer, citing to numerous entities active in rehabilitating affordable housing in Burlington County. (JA15151516, ¶20). This statement assumes that an affordable housing developer is interested in and willing to undertake this project. There are no facts or evidence to support this assumption.
Smith asserts that the “Township has never attempted to engage housing developers in The Gardens redevelopment that have an interest in and capacity for housing rehabilitation.” (JA2387, ¶30). However, this contradicts another of Appellants’ expert’s statements, namely, that Keating and Penrose, the named redevelopers, has undertaken affordable housing projects in the past. (JA1517, ¶20). He also asserts that the Township “engaged, by a non-competitive Redevelopment Agreement” Defendant Keating and Penrose Properties. (JA0389, ¶10). However, such allegations are contrary to the proofs. The Township’s selection of the Redeveloper was undertaken pursuant to open public bidding through a Request for Proposals (“RFP”). (JA1101, ¶23-25). There was no allegation that any affordable housing developer submitted a viable proposal to the Township in response to the RFP. There was certainly no allegation that any of the entities cited in the Smith Declaration submitted a proposal to the Township or otherwise showed any interest or ability to undertake a rehabilitation project in the
45

Case: 11-1159 Document: 003110559421 Page: 54 Date Filed: 06/10/2011
Gardens. Appellants do not allege that the Township received, but rejected, a valid,
workable, realistic, financially feasible proposal to rehabilitate the Redevelopment Area in such a way that would both eliminate the blighting conditions and correct or resolve the problems historically plaguing the Redevelopment Area, while having no impact on minorities.
The bottom line is that there needs to be an enormous private investment in order to make any rehabilitation redevelopment of then-existing Gardens units financially feasible. Appellants allege no private entity, nor any non-profit group who is willing and able to undertake the type of commitment necessary to ensure that redevelopment of the Gardens actually and realistically occurs.
b. The Facts of Record Show that Rehabilitation is ot Less Discriminatory.
Appellants allege that their rehabilitation plan is the only less discriminatory option available. Appellants’ expert opined that “severe disparate impact with respect to Hispanic and African-American residents will hold … short of a plan that replaces or rehabilitates the current units with other units that are affordable to ‘very low income and extremely low income tenants and homeowners.’” (JA0072, ¶39).
However, Appellants’ rehabilitation plan is not less discriminatory than the Township’s proposed redevelopment. Under rehabilitation, Plaintiffs seek to
46

Case: 11-1159 Document: 003110559421 Page: 55 Date Filed: 06/10/2011
perpetuate segregation by requiring the Township to maintain the heavily minority populated low-income community. (JA1990-1991, ¶¶P27 & 28). Plaintiffs’ intent is to ensure that all of the former residents, and therefore the exact prior racial composition of 75% minority vs. 25% non-minority, remain in the area. This Circuit has recognized the damaging effects of such action, stating an “[i]ncrease or maintenance of racial concentration is prima facie likely to lead to urban blight and is thus prima facie at variance with the national housing policy.” Shannon v. U.S. Dept. of Housing and Urban Dev., 436 F.2d 809, 821 (3d Cir. 1970).
The continuation of minority concentrated areas, particularly low-income areas, is discriminatory under the Title VIII. “According to floor debates in the Senate, which ultimately enacted the legislation that became the Fair Housing Act, the underlying policy behind Title VIII is to encourage the dispersion of urban ghettos and to create more integrated neighborhoods. See 114 Cong. Rec. 2985 (1968).” S. Camden Citizens in Action, supra, 254 F. Supp. 2d at 500. See also Sadler v. 218 Housing Corp., 417 F. Supp. 348, 358 (N.D.Ga. 1976) (stating “[u]nder the fair housing provisions, it has been uniformly held that it is impermissible for governmental agencies to confine and isolate low-income blacks to racially compacted and concentrated areas”).
To date, the Township has been providing sufficient compensation and relocation assistance to enable Gardens residents to purchase a replacement unit
47

Case: 11-1159 Document: 003110559421 Page: 56 Date Filed: 06/10/2011
within Mount Holly or some other area of their choosing. (JA1843-1874). By using both monetary and non-monetary relocation assistance, the Township has been able to provide sufficient compensation and relocation benefits to the over 100 families who have relocated thus far, without a problem. In many cases, it was the non-monetary relocation assistance provided by the Township that allowed the families to be able to afford more expensive housing, without increasing their costs of living. (JA1850-1870, ¶¶12.d-g & 14.d-e & 18 & 26.b & 26.d-f & 27.e). There is no evidence in the record that any family who has relocated has been dissatisfied with, filed any complaint regarding their compensation and relocation assistance, or have been otherwise unable to live comfortably in their new homes. Appellants also presented no credible allegation to suggest that they would not be equally able to relocate with the Township’s help.
Appellants continue to rely on a report prepared by the New Jersey Public Advocate. The Public Advocate’s Report suggests that the housing costs for those who have relocated have increased. (JA1705-1706 & JA1730). However, those figures do not account for the relocation assistance they were provided. Just because a person’s rent may have increased after relocation, does not mean that they cannot afford the rent increase. Relocated residents were given $7,500 in relocation benefits if they were tenants. (JA2021, ¶148). That is an additional $125 per month, if spread over five years, an extra $156.25 per month if spread
48

Case: 11-1159 Document: 003110559421 Page: 57 Date Filed: 06/10/2011
over four years, an extra $208.33 per month if spread over three years, and an extra $312.50 per month if spread over two years. Based on the average rental increase set forth in the Public Advocate’s report (JA1730), accepting that these figures are true, the average family who moved could afford to live in their new place, without paying any more rent, for approximately 2 1/3 years.
More importantly, the rents in the two charts in the Public Advocate’s report do not match up. The Gardens Rents set forth in the second chart are significantly higher. For example, although there are only four (4) properties over $900 in the Rent Change Chart (Chart 1) (JA1730), there are 29 properties over $900 in the Triad Referrals Chart (“Chart 2”) (JA1731). Similarly, there are eight (8) properties under $600 in Chart 1, but only two (2) properties under $600 in Chart 2. As a result, the average rent in the Gardens based on the rents set forth in Chart 2 is $864.43. When that is compared with the average “new rent” set forth in Chart 1 ($971.53), that is an average rental increase of only $107.10. With $7,500 given in relocation benefits, the average Gardens resident can live in their new unit without any increased cost for 70 months, or over 5 ¾ years. If the rents in Chart 1 and Chart 2 are combined and averaged, the average rent in the Gardens becomes $786.45. This means that with the $7,500 relocation benefits, the average resident could live in a new place for over 40 months or 3 ½ years without any increased cost.
49

Case: 11-1159 Document: 003110559421 Page: 58 Date Filed: 06/10/2011
Thus, there is no credible allegation or evidence that Appellants will not receive sufficient compensation and relocation assistance to enable Gardens residents to purchase a comparable replacement unit. The District Court’s finding that the Township has already employed the least restrictive means supports the granting of Summary Judgment.
5. Adoption of Appellants Standard for a Fair Housing Violation in the Redevelopment Context Will Severely Limit Municipal Redevelopment.
The practical impact of Appellants’ standard for a Fair Housing violation, is that disparate impact and intent to discriminate can be assumed whenever a municipality or other governmental entity wants to proceed with redevelopment and blight clearance. The reality is in nearly every occasion, redevelopment of blighted urban areas will involve an area which is predominately low-income minority. City of Memphis, supra, 451 U.S. at 128. Plaintiffs in their Brief acknowledged that redevelopment impacts minorities more often than nonminorities (Appellants’ Brief, p. 40, n.9)
Moreover, the homes in blighted redevelopment areas will generally be affordable to low-income households. These rents or mortgage payments are cheap because they are severely deteriorated or located in a blighted area with a significantly depressed market value. The New Jersey Courts have recognized that
50

Case: 11-1159 Document: 003110559421 Page: 59 Date Filed: 06/10/2011
by its very definition, a blighted area is an area where the property values have
fallen dramatically. As explained in Gallenthin, supra, 924 A.2d at 457 - 458,
"Certain sections of [the older cities in the State] have fallen in value, and have [become] what [are] known as “blighted” or “depressed” areas ...
These depressed areas go steadily downhill. The original occupants move away, the rents fall, landlords lose income and they make up for it by taking in more families per house. It's impossible to keep the properties in good condition, the houses deteriorate more and more, and what was once a good section of the town is on the way to becoming a slum.
Naturally, this slump in value is not confined to the original area affected. It spreads to neighboring blocks. No one person ... can counteract this spread, because no one can afford to sink money into a blighted area ... **458 because the improvement is so small that it cannot turn the tide of deterioration.
In New Jersey, to designate an area in need of redevelopment, the area as a
whole must meet one or more of the criteria set forth in N.J.S.A. 40A:12A-5. The
New Jersey Supreme Court has said that the criteria in N.J.S.A. 40A:12A-5 must
be read as consistent with the definition of "blight" in order to avoid the statute
being considered unconstitutional. Gallenthin, 924 A.2d at 460 - 461. This means
that an area designated a redevelopment area must be an area "with economic
deterioration" or severely deteriorated properties, and such stagnation or
deterioration must have a "decadent effect on surrounding property." Id. at 460.
Thus, any residential area designated as a redevelopment area will necessarily be
predominated by properties that are affordable to low and moderate income
51

Case: 11-1159 Document: 003110559421 Page: 60 Date Filed: 06/10/2011
households because the properties are either economically deflated or severely deteriorated.
Disparate impact under the FHA cannot possibly mean that the only thing that a plaintiff has to prove is that the redevelopment area is occupied by more minorities than non-minorities or even a greater percentage of minorities live in the redevelopment area than in other areas of the municipality. If this were the case, any time a municipality in New Jersey designates a residential area in need of redevelopment, the residents will be able to come to court, allege disparate impact, and according to Appellants, establish a prima facie case under the FHA. Even though redevelopment will be considered a legitimate governmental interest, the municipality will then be required to set forth all of its possible redevelopment options for the Courts to determine which is the least discriminatory.
Essentially, the Courts will be sitting in place of the municipal governing body deciding what course of action is best to take in order to achieve redevelopment of the area. Federal courts have recognized, "[l]and use policy customarily has been considered a feature of local government and an area in which the tenets of federalism are particularly strong." Izzo v. Borough of River Edge, 843 F.2d 765, 769 (3d Cir. 1988). "'[I]t is not the Court's function to act as a ‘super zoning board’ substituting its judgment for that of a democratically elected body on debatable issues of land use policy.'” Eastampton Center, supra, 155 F.
52

Case: 11-1159 Document: 003110559421 Page: 61 Date Filed: 06/10/2011
Supp. 2d at 120. Nor should a federal court act as a "super redevelopment authority." This is especially true for a redevelopment designation that has been upheld by every level of the New Jersey State Courts.12 This is why the District Court concluded that "[u]nder plaintiffs’ logic, any action by the Township to do anything with regard to the Gardens would result in a disparate impact, simply because of the racial composition of the Gardens.” (JA0016).
In the redevelopment context, where any redevelopment activity will necessarily impact minorities more than non-minorities simply because minorities predominate the redevelopment area, something more must be shown in order to establish a prima facie case under the FHA, such as that the action will have a segregative effect, or that the minorities in the municipality or the county (not just the redevelopment area) are disproportionately in need of affordable housing. See Edwards, supra, 885 F.2d at 1223.
a. Amicus United States Misstates Appellants Statistical Allegations.
Amicus United States argues that "[b]ecause plaintiffs presented sufficient evidence that the redevelopment would have a disproportionate adverse effect upon minorities in Mount Holly Township, as well as Burlington County, the district court erred in granting summary judgment to defendants on the ground that
12 The Appellate Court and Supreme Court decisions in this matter were issued after Gallenthin was decided.
53

Case: 11-1159 Document: 003110559421 Page: 62 Date Filed: 06/10/2011
plaintiffs had failed to present a prima facie case of disparate impact under the FHA." (Amicus Brief, p.10). If Plaintiffs had submitted evidence to establish this fact, amicus would be correct. However, the evidence does not show that minorities within Mount Holly or Burlington County are disproportionally adversely affected. Rather, Plaintiffs' statistics only apply to the Gardens residents.
Amicus claims that "[i]n this case, plaintiffs’ expert opined that – at least by some measures – African-American and Hispanic families are respectively 8 and 11 times more likely than white families to be negatively affected by the redevelopment." (Amicus Brief, p.16). However, a review of these statistics, rather than just a reading Appellants’ Brief, reveal that what Plaintiffs' expert is really saying is that minorities in the Gardens are overrepresented by 8 and 11 more times than white families.13 The reality is that when the figures are evaluated based on county-wide statistics, the proportionate number of minorities verses nonminorities who need affordable housing is only a few percentage points different.14 This does not rise to the level of a disparate impact.
13 Beveridge arrived at these numbers by comparing the percentage of whites and Hispanics and African American residents who live in the Township with those living in the Gardens (JA0071, ¶35). Since the Gardens is one of the most heavily concentrated minority populations in the Township, (JA1991, ¶28), the redevelopment will necessarily impact more of the Township’s minority residents.
14 There were no figures for the number of households in Mount Holly Township who are low and moderate income households.
54

Case: 11-1159 Document: 003110559421 Page: 63 Date Filed: 06/10/2011
B. The Township was Properly Granted Summary Judgment on Appellants’ Equal Protection Claims.
The Township was properly granted Summary Judgment on Appellants’ Equal Protection Claims because Appellants did not establish a prima facie case of an Equal Protection violation. The Fourteenth Amendment of the U.S. Constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV. This is not a command that all persons be treated alike, but, rather, a direction that all persons similarlysituated be treated alike. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) and Chambers ex rel. Chambers v. School Dist. of Philadelphia Bd. of Educ., 587 F.3d 176, 196 (3d Cir. 2009).
To succeed on a denial of Equal Protection claim, a plaintiff “must demonstrate that they received different treatment from that received by other individuals similarly situated.” Chambers, 587 F.3d at 196. The critical issue is whether “persons similarly circumstanced” are being treated alike. Alexander v. Whitman, 114 F.3d 1392, 1406 (3d Cir. 1997). Whether people are “similarly circumstanced” is a matter left to legislative discretion.
The Equal Protection Clause does not require that things which are different in fact be treated in law as though they are the same. “The initial discretion to determine what is ‘different’ and what is ‘the same’ resides in the legislatures of the States.” Accordingly, “the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others.” Therefore, “a statutory classification that neither proceeds
55

Case: 11-1159 Document: 003110559421 Page: 64 Date Filed: 06/10/2011
along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Alexander, 114 F.3d at 1407 (internal citations omitted) Here, the group of people who are similarly situated are the residents of the Gardens. This decision was made in 2002 when the Township Council of the Township of Mount Holly directed the Planning Board to undertake an investigation of whether properties within the Gardens qualified as an area in need of redevelopment within the meaning of N.J.S.A. 40A:12A-1 et seq. (JA1996, ¶55). In declaring the area in need of redevelopment, the Township determined that the properties within the redevelopment area were different than the properties elsewhere in the Township because they were blighted. (JA0860). The validity of this group as similarly situated was confirmed by the New Jersey Courts when they upheld the Township’s redevelopment designation. (JA1806, ¶¶100 & JA1810, ¶120 & 121). None of these facts are in dispute. Once the group of similarly situated people is identified, the court must determine whether any of these people are being treated differently. Under both the Federal and New Jersey Constitutions, an Equal Protection violation does not exist absent different treatment of similarly situated members of a class. See City of Cleburne, supra, 473 U.S. at 439 and Chambers, surpa, 587 F.3d at 196 (Federal Constitution); see also Felicioni v. Administrative Office of Courts, 961 A.2d
56

Case: 11-1159 Document: 003110559421 Page: 65 Date Filed: 06/10/2011
1207, 1216 (N.J. Super. Ct., A.D. 2008) (New Jersey Constitutional Equal Protection Claims) (“[a]n equal protection violation does not exist in the absence of disparate treatment of persons who are or ought to be considered to be members of the same class”) and Lewis v. Harris, 908 A.2d 196, 211-12 (N.J. Sup. Ct. 2006).
As indicated above, it was undisputed that everyone within the Redevelopment Area is being treated alike regardless of race. The 2008 Redevelopment Plan “calls for acquisition and demolition of all existing homes in the Gardens.” (JA2009, ¶100) (emphasis added). Appellants never alleged that any resident within the Redevelopment Area was treated differently from any other similarly situated person and present no facts that establish any differing treatment. Absent such proof, there can be no Equal Protection violation under either the New Jersey or Federal Constitutions.
C. o Violation of Civil Rights Act. The District Court properly granted Summary Judgment on Plaintiffs Civil Rights Act Claims pursuant to 42 U.S.C. §1982. A §1982 claim required proof of the following: “‘(1) the defendant's racial animus; (2) intentional discrimination; and (3) that the defendant deprived plaintiff of his rights because of race.’” Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001). As indicated above, there was no evidence of intentional discrimination. Thus, the District Court’s decision
57

Case: 11-1159 Document: 003110559421 Page: 66 Date Filed: 06/10/2011
granting Summary Judgment should be affirmed. III. APPELLA TS FAILED TO DEMO STRATE HOW ADDITIO AL
DISCOVERY WOULD BE EFIT THEM. Initially, the obvious must be stated. Plaintiffs claim they need discovery in papers accompanied by a 7 volume, 2783 page Appendix. Nearly 10 years of litigation, public records requests, participation in public meetings with transcripts of each, access to all records and participation with an “investigation” by the State Public Advocate, and hundreds of Certifications - and yet Plaintiffs contend with one more piece of paper, they will sustain their allegations. The District correctly concluded that lack of discovery does not prevent summary judgment, especially in this case, where the procedural history and factual circumstances are unique. Plaintiffs have had more than ample opportunity to “discover” any relevant fact in issue, and either have in their possession, or otherwise have access to the information alleged to be necessary by means other than discovery. In deciding whether or not to allow additional discovery for summary judgment purposes, the court’s decision “‘depends, in part, on ‘what particular information is sought; how if uncovered, it would preclude summary judgment; and why it has not previously been obtained.’” Horvath v. Keystone Health Plan East, Inc., 333 F.3d 450, 458 (3d Cir. 2003). A court is free to deny the request for additional discovery where “‘the information [sought] is otherwise available to the
58

Case: 11-1159 Document: 003110559421 Page: 67 Date Filed: 06/10/2011
non-movant.’” In re Northwestern Mut. Life Ins. Co. Sales Practices Litigation, 70 F. Supp. 2d 466, 482 (D.N.J. 1999). Similarly, “‘if the non-moving party has had an adequate opportunity to discover the information, then summary judgment may be granted even if the information is solely in the possession of the moving party.’” E.C. v. Antar, 120 F. Supp. 2d 431, 440 (D.N.J. 2000).
The vast majority of the information claimed to be needed by Appellants has already been obtained through other means, namely numerous Open Public Records Act requests. Unlike a normal defendant in a lawsuit, the Township is a public entity who is obligated to provide documents to the public, including the Plaintiff, upon request pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1, et seq. (“OPRA”). Thus, information alleged to be needed regarding any official action by the Township were all available, and produced, to the Plaintiffs through OPRA.
Similarly, any information sought regarding the relocation activities and relocation benefits given to former residents is available through other means. All such information is available directly from the former residents themselves and from the Office of the Public Advocate, who undertook an investigation of the Township’s relocation practices. (JA1688-1731).
Finally, Plaintiffs had prior opportunity to depose and/or call as witnesses Township officials and employees as part of the State Court litigation. As
59

Case: 11-1159 Document: 003110559421 Page: 68 Date Filed: 06/10/2011
explained in Judge Sweeney’s August 30, 2005 Opinion, First, a public official’s state of mind is rarely an issue and can usually be determined from the record below. There are transcripts, tapes, minutes and the like…[T]here has already been one hearing in this matter. Although I limited plaintiffs to two expert witnesses, I also afforded them the right to call township officials to testify. They elected, for whatever reason, not to do so.
(JA1957) It is important to note that an issue contended by Plaintiffs before the State Trial Court was that the Township’s blight designation had a discriminatory intent. Thus, it is clear that Plaintiffs have already had the opportunity, and chose not to take advantage of it, to obtain information from Township employees and officers regarding their intent.
Finally, with respect to the depositions of the Township officials alleged to be necessary, decision-making governmental officials have Morgan protection (“mental process privilege”) from depositions. U.S. v. Sensient Colors, Inc., 649 F.Supp.2d 309, 318 (D.N.J. 2009). This is because “[a]bsent extraordinary circumstances, good cause exists to preclude the deposition of a high level governmental official because there is a public policy interest in ensuring that high level government officials are permitted to perform their official tasks without disruption or diversion.” Buono v. City of Newark, 249 F.R.D. 469, 470, n.2 (D.N.J. 2008).
As recognized by the District Court, even if Plaintiffs were able to depose any Township official, it is not likely that such a deposition would result in the
60

Case: 11-1159 Document: 003110559421 Page: 69 Date Filed: 06/10/2011
“smoking gun” Appellants seek as to discriminatory intent. “‘Municipal officials acting in their official capacities seldom, if ever, announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a racial minority.’” U.S. v. City of Birmingham, Mich., 727 F.2d 560, 564 (6th Cir. 1984). Through 10 years of litigation, Appellants have not uncovered one scintilla of improper motive of any Township official.
Therefore, the District Court’s decision to grant summary judgment without allowing Appellants’ requested discovery was entirely consistent with Rule 56 and does not warrant reversal.
CO CLUSIO Appellants have failed to allege credible facts necessary to present their case to a fact finder. The District Court’s decision granting Summary Judgment should be upheld.
MALEY & ASSOCIATES A Professional Corporation

Dated: June 10, 2011

By: /s/ M. James Maley, Jr. M. JAMES MALEY, JR. Attorney for Appellees, Township of Mount Holly, Township Council of Mt. Holly, Kathleen Hoffman and Jules Theissen

61

Case: 11-1159 Document: 003110559421 Page: 70 Date Filed: 06/10/2011
COMBI ED REQUIRED F.R.A.P. & 3RD CIR. L.A.R CERTIFICATIO S
In accordance with the Federal Rules of Appellate Procedure and the 3rd Circuit Local Appellate Rules, I hereby certify that:
1. M. James Maley, Jr. is a member in good standing of the Bar of the United States Court of Appeals for the Third Circuit.
2. This Brief exceeds type-volume limitations of F.R.A.P. 32(a)(7)(B) because the principal portions of the Brief contain 14,342 words according to the “Word Count” function of the MS Office Word 2007 software program, excluding the parts of the brief exempted by F.R.A.P. 32(a)(7)(B)(iii). A Motion to file an oversized brief is being filed herewith.
3. This Brief complies with the type-face limitations of F.R.A.P. 32(a)(5) and the type-style requirements of F.R.A.P. 32(a)(6) because the brief has been prepared in proportionally spaced typeface using 14 point Times New Roman in MS Office Word 2010. The text in this Brief is identical to the text in the paper copies filed with the Court and served on each party.
4. This Brief complies with 3rd Cir. L.A.R 3l.l(c) because text in the electronic copy of this Brief is identical to the text in the paper copies. The electronic copy of this Brief was scanned for viruses by SUPERAntiSpyware (Version 4.53.1000) and no viruses were detected.
62

Case: 11-1159 Document: 003110559421 Page: 71 Date Filed: 06/10/2011

MALEY & ASSOCIATES A Professional Corporation

Dated: June 10, 2011

By: /s/ M. James Maley, Jr. M. JAMES MALEY, JR. Attorney for Appellees, Township of Mount Holly, Township Council of Mt. Holly, Kathleen Hoffman and Jules Theissen

CERTIFICATIO OF SERVICE

I hereby certify that on June 10, 2011, I electronically filed the foregoing

BRIEF FOR APPELLEES, TOWNSHIP OF MOUNT HOLLY, TOWNSHIP

COUNCIL OF MOUNT HOLLY, KATHLEEN HOFFMAN, AND JULES

THEISSEN with the Clerk of the Court for the United States Court of Appeals for

the Third Circuit by using the appellate CM/ECF system.

I further certify that on June 10, 2011, ten (10) paper copies, identical to the

brief filed electronically, were sent to the Clerk of the Court by first class regular

mail.

I certify that all participants in this case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

I certify that in addition to electronic service and in accordance with

F.R.A.P. 25(c)(1)(B) & (4) and 3rd Cir. L.A.R. 31.1(a), one paper copy of

63

Case: 11-1159 Document: 003110559421 Page: 72 Date Filed: 06/10/2011

Appellees' Brief was served on June 10, 2011, to each of the following counsel of

record for Appellants and Co-Appellees by first class regular mail at their offices

listed below:

Olga D. Pomar, Esquire South Jersey Legal Services, Inc. 745 Market Street Camden, New Jersey 08102 Counsel for Plaintiffs-Appellants

William DeSantis, Esquire Ballard Spahr Andrews & Ingersoll, LLP Plaza 1000 Main #500 Voorhees, New Jersey 08043 Counsel for Defendant Keating Urban Partners, L.L.C.

Guy Mercogliano, Esquire Sweeney & Sheehan, P.C. Sentry Office Plaza Suite 500 216 Haddon Avenue Westmont, New Jersey 08108 Counsel for Defendant, Triad Associates, Inc.

Thomas E. Perez, Esquire, Assistant Attorney General Dennis J. Dimsey, Esquire April J. Anderson, Esquire Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 Counsel for Amicus Curiae

R. William Potter, Esquire Potter & Dickson 194 Nassau Street Princeton, New Jersey 08542 Counsel for Plaintiffs-Appellants

Susan Ann Silverstein, Esquire AARP Foundation Litigation 601 E. Street, NW Washington, D.C. 20049 Counsel for Plaintiffs-Appellants

64

Case: 11-1159 Document: 003110559421 Page: 73 Date Filed: 06/10/2011

Dated: June 10, 2011

MALEY & ASSOCIATES A Professional Corporation
By: /s/ M. James Maley, Jr. M. JAMES MALEY, JR. Attorney for Appellees, Township of Mount Holly, Township Council of Mt. Holly, Kathleen Hoffman and Jules Theissen

65

 
 Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 1 of 43 PageID: 6361

DOUGLAS E. GERSHUNY, EXEC. DIR. SOUTH JERSEY LEGAL SERVICES, INC. 745 Market St. Camden, NJ 08102 Phone: 856-964-2010, Ext. 6232 Email: OPomar@lsnj.org By: OLGA D. POMAR, ESQ. Attorneys for Plaintiffs

AARP FOUNDATION LITIGAnON 60 I E Street, NW Washington, DC 20049 Phone: (202) 434-2060 Email: SSilverstein@aarp.org By: SUSAN ANN SILVERSTEIN, ESQ. Attorneys for Plaintiffs

POTTER & DICKSON 194 Nassau Street Princeton, NJ 08542 Phone: (609) 921-9555 Email: Potterrex@cs.com By: R. WILLIAM POTTER, ESQ. Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE

MT. HOLLY GARDENS CITIZENS IN

ACTION, INC., a New Jersey non-profit

HON. NOEL L. HILLMAN, U.S.D.J.

corporation, MARIA AROCHO, PEDRO

AROCHO, REYNALDO AROCHO, ANA

Case No.: 1:08-cv-02584

AROCHO, CHRISTINE BARNES, RITA

BROOKS, INDIVIDUALLY AND AS

EXECUTOR OF ESTATE OF VIVIAN

BROOKS, BERNICE CAGLE, LEON

CALHOUN,GEORGEBENNETT

CHAMBERS, DOROTHY CHAMBERS,

FOURTH AMENDED

BEATRIZ CRUZ, SANTOS CRUZ, ELIDA

COMPLAINT

ECHEVARIA, LUIS LOPEZ, NORMAN

AND

HARRIS, MATTIE HOWELL, NANCY

DEMAND FOR JURY TRIAL

LOPEZ, VINCENT VICTOR MUNOZ, AS

ADMINSTRATOR OF THE ESTATE OF

VINCENT MUNOZ, ELIZABETH

HERNANDEZ, AS ADMINISTRATOR AD

PROSEQUENDUM OF THE ESTATE OF

ANGELO NIEVES, DOLORES NIXON,

BERNICE MITCHELL AS EXECUTRIX OF

THE ESTATE OF ELMIRA NIXON,

LEONARDO PAGAN, JAMES POTTER,

ROSEMARY ROBERTS, INDIVIDUALLY

AND AS EXECUTRIX OF THE ESTATE OF

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 2 of 43 PageID: 6362
WILLIAM ROBERTS, EFRAIM ROMERO, JESSICA ROMERO, SYLVIA SIMONS AS EXECUTRIX OF THE ESTATE OF HENRY SIMONS, PHYLLIS SINGLETON, JOYCE STARLING, ROBERT TIGAR, TAISHA TIRADO PAGAN, FLAVIO TOBAR, MARLENE TOBAR,RADAMESTORRES BURGOS, LILLIAN BURGOS DE TORRES, INDIVIDUALLY AND AS ADMINSTRATOR OF THE ESTATE OF RADAMES TORRESMORENO, , DAGMAR VICENTE, ALANDIA WARTHEN, SHEILA WARTHEN, CHARLIE MAE WILSON LEONA WRIGHT, RUTH ALVAREZ, NOEL ORTIZ, REBECA GONZALEZ, ANGEL VERA, WANDA CRUZ, CARLOS LOTUFFO, AND HIPPOLYTA RODRIGUEZ,
Plaintiffs, vs.
TOWNSHIP OF MOUNT HOLLY, a municipal corporation of the State of New Jersey, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, as governing body of the Township of Mount Holly, KATHLEEN HOFFMAN, as Township Manager of the Township of Mount Holly, JULES THIESSEN, as Mayor of the Township of Mount Holly, KEATING URBAN PARTNERS, L.L.C., a company doing business in New Jersey, TRIAD ASSOCIATES, INC., a corporation doing business in New Jersey,
DeFendants.
I. PRELIMINARY STATEMENT
I. This is a civil rights action challenging Mount Holly Township's ("Township") wide-
scale redevelopment of the neighborhood known as Mt. Holly Gardens ("Gardens"). Plaintiffs
are an association of residents, Mt. Holly Gardens Citizens in Action, Inc., ("CIA"), and five
individual residents ("Residents") living in the Gardens, which is a cohesive, ethnically diverse
2

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 3 of 43 PageID: 6363
neighborhood within Mt. Holly Township that is predominantly African-American and Hispanic with mostly low and moderate income families. CIA and Residents are challenging the Township's sweeping redevelopment project that is demolishing existing homes, displacing numerous families, and dismantling and destroying the entire Gardens neighborhood.
2. The Township and its redevelopers have been and currently are aggressively implementing their redevelopment project, ultimately seeking acquisition, through purchase and eminent domain, and total demolition of all 329 homes within the Gardens redevelopment area affordable to current and displaced families and replacement with new, much higher-priced market rate homes intended for households that are more affluent. In carrying out redevelopment, the Township and its redevelopers have greatly increased blighted conditions and have rendered the Gardens unsafe and unlivable. Among other things, under the implied threat of eminent domain, the Township has systematically acquired, vacated and boarded up more than 200 previously occupied homes-approximately two-thirds of all residential properties within the Gardens-and has demolished to date approximately 70 properties. If not stopped, the Township and its redevelopers will succeed in irrevocably tearing down the most identifiable minority community within Mt. Holly - with the highest rates of African-American and Hispanic homeownership within Burlington County - and permanently displacing hundreds of lower income minority residents from their community where they will no longer be able to afford to live.
3. In pnor state court litigation, the Township's finding of "blight," i.e., its determination that the Gardens neighborhood met New Jersey's criteria for designation as an "area in need of redevelopment," was upheld in April 2005. However, in August 2005 and subsequently upheld on appeal in 2007, CIA's and Residents' civil rights and other substantive
3

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 4 of 43 PageID: 6364
challenges to the redevelopment plan were dismissed without prejudice as then not being ripe for adjudication.
4. These claims are now unquestionably ripe in light of the Township's subsequent destructive implementation actions devastating the Gardens community, its adoption of a revised plan, and its presentation of the Redevelopers' proposed general development plao for the redeveloped community. Specifically, the Township aod its redevelopers have unlawfully discriminated against the Residents on the basis of race and national origin in violation of Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 e/ seq. Furtilermore, the Township's actions deprive Residents ofjust compensation by driving down the value of their homes, while tile Township has failed to adequately plao or prepare for replacement housing realistically affordable to current and displaced residents and failed to provide adequate relocation assistaoce that would enable displaced residents to purchase replacement housing.
5. The allegations of paragraph five are removed from the Complaiot as they relate to counts that have been dismissed.
6. Residents and CIA seek, among other things, declaratory and injunctive relief invalidating tile redevelopment plan; maodating iliat the Township carry out redevelopment in tile Gardens in a mailller haviog the least discriminatory adverse impact upon African-American and Hispanic households; aod prohibiting implementation without providing adequate affordable replacement housing for all current and displaced Gardens residents. Residents and CIA also seek damages and/or just compensation sufficient for Residents to secure permanent replacement housing in ilie local housing market.
II. JURISDICTION
4

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 5 of 43 PageID: 6365
7. Jurisdiction over the Plaintiffs' claims is conferred on this court by 28 u.s.c. § 1331 (federal question jurisdiction) in that this action arises under the Constitution and laws of the United States; 28 U.S.c. § 1343(a)(4) because the Plaintiffs seek equitable and other relief under Acts of Congress providing for the protection of civil rights under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq~; 42 U.S.c. § 3613 for civil actions under Title VIII of the Civil Rights Act of 1968, 42 U.S.c. § 3601 et seqo; and 42 U.S.c. § 1983, which provides redress for the deprivation, under color of state law, of rights, privileges and immunities secured to all citizens and persons within the jurisdiction of the United States by the Constitution and laws of the United States.
8. Plaintiffs seek declaratory and injunctive relief against the Defendants pursuant to 28 U.S.C. §§ 2201 and 2202 and injunctive relief pursuant to 42 U.S.c. § 3613(c)(1).
9. The allegations of paragraph nine are removed from the Complaint as they relate to counts that have been dismissed.
10. Venue is proper in this district pursuant to 28 U.S.c. § 1391(b) because the Plaintiffs' claims arose in tllis district.
III. PARTIES A. Plaintiffs
11. Plaintiff Mt. Holly Gardens Citizens in Action ("CIA"), Inc., is a voluntary membership non-profit corporation composed of residents of Mt. Holly Gardens. Its primary purpose is to advocate for the wellbeing and the betterment of the residents and neighborhood. Its address is: c/o Santos Cruz, 356 South Martin Ave, Mt. Holly, New Jersey 08060. CIA brings this action on its own behalf and on behalf of its members. The individually named Plaintiffs are members of CIA.
5

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 6 of 43 PageID: 6366
12. Plaintiff Maria Arocho is a resident of Mt. Holly Gardens living at 406 South Martin Street, Mt. Holly, New Jersey 08060. She owns her home. She is Hispanic.
13. Plaintiff Pedro Arocho is a resident of Mt. Holly Gardens living at 316 South Martin Street, Mt. Holly, New Jersey 08060. He owns his home. He is Hispanic.
14. Plaintiffs Reynaldo and Ana Arocho are residents of Mt. Holly Gardens living at 154 Levis Drive, Mt. Holly, New Jersey 08060. They have lived in the Gardens for 19 years. They own their home. They are Hispanic.
15. Plaintiff Christine Barnes is a resident of Mt. Holly Gardens living at 122 Joseph Place, Mt. Holly, New Jersey 08060. She is a tenant. She is White.
16. Plaintiff Rita Brooks is a resident of Mt. Holly Gardens living at 295 Grant Street, Mt. Holly, New Jersey 08060. She is the Executor and beneficiary of the Estate of Vivian Brooks, which owns property located at 319 South Martin Avenue. She is bringing this action individually and as Executor of the Estate of Vivian Brooks. She is African-American.
17. Plaintiff Bernice Cagle is a resident of Mt. Holly Gardens living at 281 Grant Street, Mt. Holly, New Jersey 08060. She is a homeowner. She is African-American.
18. Plaintiff Leon Calhoun is a resident ofM!. Holly Gardens living at 113 Levis Drive, Mt. Holly, New Jersey 08060. He is a homeowner. He is African-American.
19. Plaintiffs George and Dorothy Chambers are residents ofMt. Holly Gardens living at 341 South Martin, Mt. Holly, New Jersey 08060. They are homeowners and senior citizens. They are African-American.
20. Plaintiffs Beatriz and Santos Cruz are residents ofM!. Holly Gardens living at 137 Joseph Place, Mt. Holly, New Jersey 08060. They are homeowners. They are Hispanic.
6

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 7 of 43 PageID: 6367
21. Plaintiff Elida Echevaria and her son Luis Lopez areresidents of Mt. Holly Gardens living at 370 South Martin Street, Mt. Holly, New Jersey 08060. They jointly owntheir home. They are Hispanic.
22. Plaintiff Norman Harris is a resident of Mt. Holly Gardens living at 313 South Martin Street, Mt. Holly, New Jersey 08060. He is a senior citizen and has lived in the property for 36 years. He is a homeowner. He is African-American.
23. Plaintiff Mattie Howell is a resident of Mt. Holly Gardens living at 118 Levis Drive, Mt. Holly, New Jersey 08060. She has lived there with her family for 37 years. She is a homeowner and a senior citizen. She is African-American.
24. Plaintiff Nancy Lopez is a resident ofMt. Holly Gardens living at 319 North Martin Street, Mt. Holly, New Jersey 08060. She is a homeowner. She is Hispanic.
25. Plaintiff Vincent Victor Munoz is the Administrator of the Estate otVincent Munoz. Vincent Munoz was a resident of Mt. Holly Gardens living at 382 South Martin Street, Mt. Holly, New Jersey 08060. Vincent Munoz is now deceased. He was a senior citizen and a homeowner. He was Hispanic.
26. Plaintiff Dolores Nixon is a resident of Mt. Holly Gardens living at 114 Joseph Place, Mt. Holly, New Jersey 08060. She is a homeowner. She is African-American.
27. Plaintiff Bernice Mitchell is the Executrix of the Estate of Elmira Nixon, Elmira Nixon was a resident of Mt. Holly Gardens living at 21 Saul Place, Mt. Holly, New Jersey 08060. Elmiran Nixon is now deceased. She was an elderly widow and was homebound. She owned her own home and has lived there lived there for 28 years. She was African-American.
28. Plaintiff Elizabeth Hernandez is the Adminstrator Ad Prosequendum of the Estate of Angelo Nieves. Angelo Nieves is now deceased. He was a resident of Mt. Holly Gardens
7

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 8 of 43 PageID: 6368
living at 276 Levis Drive, Mt. Holly, New Jersey 08060. He was a homeowner. He was Hispanic.
29. Plaintiff James Potter is a resident of Mt. Holly Gardens living at 126 Levis Drive, Mt. Holly, New Jersey 08060. He is a homeowner. He is White.
30. Plaintiff Rosemary Roberts and her deceased husband, William Roberts, wereresidents of Mt. Holly Gardens living at 346 South Martin Street, Mt. Holly, New Jersey 08060. Rosemary Roberts is bringing this action individually and as Executrix of the Estate of William Roberts. She is White.
31. Plaintiff Efraim Romero was a resident of Mt. Holly Gardens living at 115 Joseph Place, Mt. Holly, New Jersey 08060. He was a homeowner. He transferred this property to his daughter Plaintiff Wanda Cruz. He is Hispanic.
32. Plaintiff Wanda Cruz is a resident ofMt Holly Gardens living at 115 Joseph Place, Mt. Holly, New Jersey 08060. She is a homeowner. She is Hispanic.
33. Plaintiff Sylvia Simons is the Executrix of the Estate of Henry Simons. Henry Simons was a resident of Mt. Holly Gardens living at 7 Saul Place, Mt. Holly, New Jersey 08060. He lived there for 23 years. He was a senior citizen and a homeowner. He was White.
34. Plaintiff Phyllis Singleton is a resident of Mt. Holly Gardens living at 128 Joseph Place, Mt. Holly, New Jersey 08060. She is a homeowner. She is African-American.
35. Plaintiff Joyce Starling is a resident of Mt. Holly Gardens living at 23 Saul Place, Mt. Holly, New Jersey 08060. She has lived there for 36 years. She is a homeowner. She is a senior citizen and is African-American.
36. Plaintiff Robert Tigar is a resident of Mt. Holly Gardens living at 353 North Martin Street, Mt. Holly, New Jersey 08060. He is a homeowner. He is White.
8

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 9 of 43 PageID: 6369
37. Plaintiffs Taisha Tirado Pagan and Leonardo Pagan are residents of Mt. Holly Gardens living at 211 Levis Drive, Mt. Holly, New Jersey 08060. They are tenants. They are Hispanic.
38. Plaintiffs Flavio and Marlene Tobar are residents of Mt. Holly Gardens living at 226 Levis Drive, Mt. Holly, New Jersey 08060. They are homeowners. They are Hispanic.
39. Plaintiff Radames Torres Burgos is a resident of Mt. Holly Gardens living at 326 South Martin Street, Mt. Holly, New Jersey 08060. He is a homeowner. He is Hispanic.
40. Plaintiff Lillian Burgos de Torres- is a resident of Mt. Holly Gardens living at 308 North Martin Street, Mt. Holly, New Jersey 08060. She owned the property with her husband Radames Torres, who is now deceased. She is bringing this action individually and as Administrator of the Estate of Radames Torres. She is a homeowner. She is Hispanic.
41. Plaintiff Dagmar Vicente is a resident of Mt. Holly Gardens living at 371 South Martin Street Mt. Holly, New Jersey 08060. She rents the premises and lives there with two children. She is White.
42. Plaintiff Alandia Warthen is a former resident ofMt Holly Gardens who currently resides at 1130 Sunset Road Apt. 4-A, Burlington, NJ 08016. She lived in the Gardens for over 20 years, most recently at 3 Saul Place, Mt Holly, New Jersey 08060. She is African-American.
43. Plaintiff Sheila Warthen is a former resident of Mt Holly Gardens who currently resides at 1701 Salem Road, Apt. 01, Burlington Township, New Jersey 08016. She lived in the Gardens for 18 years, most recently at 330 North Martin Avenue, Mt Holly, New Jersey 08060. She is African-American.
9

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 10 of 43 PageID: 6370
44. Plaintiff Charlie Mae Wilson is a resident of Mt. Holly Gardens living at 120 Joseph Place, Mt. Holly, New Jersey 08060. She is 78 years old and owns her own home. She is African-American.
45. Plaintiff Leona Wright is a resident ofMt. Holly Gardens living at 208 Levis Drive, Mt. Holly, New Jersey 08060. She is a homeowner and has lived there for 33 years. She is 89 years old and widowed. She is African-American.
a. Plaintiffs Ruth Alvarez and Noel Ortiz are residents of Mt. Holly Gardens living at 283 Levis Drive, Mt. Holly, New Jersey 08060. They own their home. They are Hispanic. b. Plaintiff Rebeca Gonzalez is a resident of Mt. Holly Gardens living at 147 Joseph Place, Mt. Holly, New Jersey 08060. She owns her home. She is Hispanic. c. Plaintiff Angel Vera is a resident of Mt. Holly Gardens living at 315 South Martin Ave., Mt. Holly, New Jersey 08060. He owns his home. He is Hispanic. d. Plaintiff Wanda Cruz is a resident ofMt. Holly Gardens living at 356 South Martin Avenue, Mt. Holly, New Jersey 08060. She owns her home. She is Hispanic. e. Plaintiff Hippolyta Rodriguez is a resident ofMt. Holly Gardens living at 152 Levis Drive, Mt. Holly, New Jersey 08060. She owns her home. She is Hispanic. f. Plaintiff Carlos Lotuffo is a resident of Mt. Holly Gardens living at 224 Levis Drive, Mt. Holly, New Jersey 08060. He owns his home. He is Hispanic. B. Defendants 46. The Township Defendants, herein referred to as "Township," are as follows:
a. Defendant Township of Mount Holly ("Township") is a municipal corporation chartered under the laws of the State ofNew Jersey.
10

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 11 of 43 PageID: 6371
b. Defendant Township Council of Township of Mount Holly is the governing body of the Township. The Council is responsible for the passage of local ordinances and resolutions, including Ordinance No. 2003-12 adopting the Gardens Redevelopment Plan, Ordinance 2005-07 adopting the West Rancocas Redevelopment Plan, and all ordinances and resolutions related to the effectuation of its redevelopment plan, for the appointment of the Township Manager, and for passing and modifying the Township's budget.
c. Defendant Kathleen Hoffman is the Township Manager of the Township of Mount Holly and is the chief executive and administrative officer of the Township responsible for the overall administration of the Township's agencies and execution of the Township's laws. Defendant Hoffman is sued herein in her official capacity.
d. Defendant Jules K. Thiessen is the Mayor of the Township of Mount Holly and is responsible, inter alia, for presiding over Township Council meetings and executing bonds, notes, contracts and written obligations of the Township. Defendant Thiessen is sned herein in his official capacity.
47. The Redeveloper Defendants, herein referred to as "Redevelopers," are as follows: a. Defendant Keating Urban Partners, L.L.C. ("Keating") is a limited liability company with offices located at One Liberty Place, New Brunswick, NJ 08901. Defendant Keating entered into a redevelopment agreement with the Township to implement the WR Redevelopment Plan and has been actively engaged since that time in project planning, development, and implementation.
II

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 12 of 43 PageID: 6372
b. Defendant Triad Associates, Inc. ("Triad") is a corporation doing business in New Jersey with offices at 238 West Chestnut Avenue, Vineland, NJ 08360, which the Township and/or Keating hired to assist with implementation of the WR Redevelopment Plan, including but not limited to serving as property manager of Township-owned rental properties, preparing the Workable Relocation Assistance Plan ("WRAP") and conducting relocation activities. IV. FACTUAL ALLEGATIONS
A. Mt. Holly Gardens Neighborhood 48. Mt. Holly Gardens ("the Gardens") is situated on 30 acres ofland within downtown
Mt. Holly Township in Burlington County, New Jersey. 49. It is a cohesive, racially and ethnically diverse community. 50. At the time the redevelopment process started in 2000, the neighborhood contained
329 houses. 51. The houses were constructed during the 1950s. 52. Houses are primarily two-story buildings of solid brick construction with joists
made of old-growth hardwood, and are situated in rows of 8 to 10 homes set back approximately 50 feet from the street, allowing for front and back yards.
53. Many homes are well-maintained and have attractively landscaped yards and gardens.
54. Until approximately March 2004 there was a playground area of approximately 14,000 square feet and a community center converted from a dwelling unit, both which the Township owned.
12

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 13 of 43 PageID: 6373
B. Residents of Mt. Holly Gardens 55. According to the 2000 U.S. Census, Burlington County's total population was
423,394. Of the total population, Whites comprised 323,171-76.3%; African-Americans comprised 62,476-14.8%; and Hispanics comprised 17,632-4.2%.
56. According to the 2000 U.S. Census, Mount Holly Township's total population was 10,728. Of the total population, Whites comprised 7,101-66.2%; African-Americans comprised 2,231 -20.8%; and Hispanics comprised 942 -8.8%.
57. The residential section of the Gardens redevelopment area corresponds approximately to Blocks 1000, 1001, 1003 and 1009 of U.S. Census Tract 7026.04., Burlington County, New Jersey.
58. Approximately 1,031 residents lived within the Census Blocks corresponding to the residential section of the Gardens redevelopment area. Within the residential section of the Gardens redevelopment area, Whites comprised approximately 203 residents-only 19.7%, compared to 475-46.1 % -African-American residents and 297-28.8%-Hispanic residents.
59. Thus, African-American and Hispanic residents comprised the overwhelming majority-nearly 75%-{)fthe residents living in the Gardens redevelopment area.
60. Further, according to the 2000 U.S. Census, the concentration of African-American and Hispanic residents in the Gardens was the highest of any neighborhood in Mt. Holly Township and much higher compared to Burlington County, while the concentration of Whites was comparatively much lower.
a. 46.1 % of the Gardens redevelopment area was African-American, compared to only 20.8% for Mt. Holly Township and 14.8 % for Burlington County.
13

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 14 of 43 PageID: 6374
b. 28.8% of the Gardens redevelopment area was Hispanic, compared to only 8.8% for Mt. Holly Township and only 4.2% for Burlington County.
c. Only 19.7% of the Gardens redevelopment area was non-Hispanic, White, compared to 66.2% for Mt. Holly Township and was 76.3% for Burlington County.
d. In addition, approximately 31.5% of Mt. Holly Township's entire Hispanic population and approximately 21,3% of Mt. Holly Township's entire AfricanAmerican population lived within the Gardens redevelopment area, compared to only 2.9% ofthe entire non-Hispanic, White population.
61. Further, according to the 2000 U.S. Census, the median household income in the Gardens redevelopment area was only $30,104, while the median income for the Township was $43,284, and the median income of Burlington County was $58,608.
62. According to the 2000 Census, in Census Tract 7026.04 containing the Gardens, the housing characteristics were as follows:
a. 50% of the households in Census Tract 7026.04 were renters, and 50% were homeowners.
b. 31 % of the African-American households were homeowners while the percentage in the entire Township was 13%, and the percentage in the County was 11 %.
c. 17% of the Hispanic households were homeowners while the percentage in the entire Township was 8%, and the percentage in the County was 2%.
d. 81 % of the owner-occupied households in Census Tract 7026.4 had lived in their homes for at least 9 years, while 72% of the renter-occupied households had lived in their homes for at least 5 years.
14

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 15 of 43 PageID: 6375
e. The median cost of homeownership for owner-occupied homes with mortgages in Census Tract 7026.04 was only $969 a month, compared to $1,536 for the Township and $1,393 for the County.
63. According to the 2000 Census, the Gardens neighborhood therefore had among the highest rates of African-American and Hispanic home ownership in Burlington County.
64. Despite the lower incomes of the Gardens' households, the community IS remarkably stable and has many longtime residents.
65. Residents have a strong sense of community and like that it IS racially and ethnically diverse.
66. Many Gardens residents have family and friends living in the neighborhood. 67. Residents enjoy the convenient location of the Gardens and its proximity to schools, employment, businesses, and downtown. 68. The stability of the Gardens neighborhood is attributable in part to lower housing costs than that of Mt. Holly and Burlington County, making the Gardens more affordable for lower income households. 69. According to a more recent survey conducted by Triad in July 2006, the average monthly homeowner cost being paid in the Gardens is $445 and the average rent is $696. 70. In addition, many longtime homeowners of the Gardens, particularly seniors, paid off their mortgages in full and can afford to keep their homes, although they would not be able to purchase much higher-priced homes in the current real estate market on their present incomes. 71. According to a survey conducted by planners commissioned by the Township in 2000, 90% of the households in the Gardens had annual incomes below $40,000, 43% earned between $20,000 and $40,000, and nearly half--47%-earned less than $20,000.
15

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 16 of 43 PageID: 6376
C. Redevelopment Activities Before 2002 72. For almost thirty years, community members and Mt. Holly Township have
engaged in various planning initiatives to improve living conditions in the neighborhood. 73. These planning initiatives included a community-led effort in the 1980's that
resulted in development of a strategy to increase the homeownership rate through targeted property acquisition and rehabilitation; however, this strategy was never adopted by the Township.
74. Another planning initiative was a housing rehabilitation program lmown as "Mt. Holly 2000." Through this program, eleven homeowners in the Gardens obtained grants and loans to fix up their properties.
75. The Township subsequently decided not to support such revitalization efforts. It instead began to plan for a sweeping redevelopment of the entire community that would involve acquisition and demolition of most or all of the Gardens homes.
76. In 2000, the Township began to purchase properties in the Gardens and leave them vacant
77. In 2000, the Council also commissioned a private firm, THP, Inc., to investigate whether the Gardens neighborhood met the criteria of an "area in need of redevelopment" within the meaning ofN.J.S.A" 40A:12A-l et. seq.
78. In November 2000, THP, Inc. prepared a report entitled "Redevelopment Area Determination Report" ("2000 Redevelopment Report"), which it presented to the Council.
79. As part of the preparation of this 2000 Redevelopment Report, the plal1l1ers conducted a survey of the Gardens residents.
16

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 17 of 43 PageID: 6377
80. The survey demonstrated that when questioned about the Township's plans for redevelopment, residents were concerned about displacement and that more than 2/3 of the residents stated tbat they would prefer to remain living in the Gardens. D. Redevelopment Planning and Adoption of Redevelopment Plan
81. The Township adopted a Master Plan pursuant to the Municipal Land Use Law, NJ.S.A. 40:55D-l et seq., dated April 13, 2000.
82. The Master Plan set forth certain goals, which included improving the qualifY of Mount Holly's housing stock, upgrading the Gardens Area, and utilizing the LRHL to Mount Holly's best advantage.
83. With regard to the upgrade of the Gardens area, the Master Plan stated that one objective of this Master Plan is to upgrade the quality of units and the character of area, and that measures should be taken to reduce the overall density in the Gardens Area, to rehabilitate deteriorated units, and to provide additional amenities.
84. In the land use plan element, the Master Plan characterizes the Gardens as one of two "high density areas" containing some deteriorated units, high proportion of rental properties, and with overcrowding an identified problem. The Master Plan recommended "redevelopment/revitalization" to allow for reduction of density, modernization of housing stock, and improvement to overall perception of the area.
85. On July 30, 2002, Council passed Resolution No. 2002-166 authorizing the Township's Planning Board to undertake a preliminary investigation and to hold a public hearing to determine whether the Gardens neighborhood was an area in need of redevelopment.
86. The Planning Board subsequently received a report prepared by TIIP, Inc. entitled "Redevelopment Area Determination Report," dated September 3, 2002.
17

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 18 of 43 PageID: 6378
87. The September 3, 2002 Redevelopment Area Determination Report was almost identical to the 2000 Redevelopment Report prepared for Council.
88. On September 16, 2002, the Planning Board held the first public hearing on the question whether the Gardens should be designated as a redevelopment area.
89. On October 21,2002, the Planning Board passed Resolntion No. 2002-10, adopting the findings and conclusions of the 2002 Redevelopment Report and recommending that the Township Council designate the Gardens neighborhood as a "redevelopment area" within the meaning ofN.J.S.A. 40A:12A-I et seq.
90. On October 28, 2002, the Council passed Resolution No. 2002-217, accepting the factual findings of the 2002 Redevelopment Report, accepting the Planning Board's recommendations and formally designating the Gardens neighborhood as an area in need of redevelopment underN.J.S.A. 40A:12A-I et seq.
91. Resolution No. 2002-217 did not state or otherwise indicate that by designating the Gardens neighborhood as an area in need of redevelopment, homes in the Gardens would be demolished.
92. At the Planning Board hearing and at the Council meeting, Township officials misled Residents by telling them that inclnding their properties in an area in need of redevelopment did not mean that the Township would take their properties by eminent domain.
93. In April 2003, the Council publicly released a document entitled "The Gardens Area Redevelopment Plan" ("Gardens Redevelopment Plan").
94. The Gardens Redevelopment Plan provided for the following: a. Total demolition of all the homes in tlle neighborhood and relocation of all the residents.
18

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 19 of 43 PageID: 6379
b. Building ISO new housing units. c. No construction of any affordable housing units. d. No guarantee that any new housing in the redevelopment community would be
made available for Gardens residents either before or after displacement. e. No guarantee that any new housing in the redevelopment community would be
realistically affordable for Gardens residents. f. Building only 30 rental units, available only to seniors. 95. The proposed 180 new units would be much more expensive than existing homes; therefore, the plan would permanently displace current residents who are predominately lowmcome. 96. On August II, 2003, the Township held a public hearing on the adoption of the Gardens Redevelopment Plan. 97. Over 100 residents appeared before the Council protesting against the proposed redevelopment plan and the demolition of their homes. 9S. Among the objections raised by the residents were the following: a. They feel a strong sense of community and have pride in the community.
Many are long-term residents. They feel surrounded by family and friends. They like that it is racially and ethnically diverse. b. Many residents are low-income. Some had been homeless in the past. They are fearful that they will not be able to afford tl1e new units that were being planned for construction and that they will not be able to find other housing in the area they could afford.
19

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 20 of 43 PageID: 6380
c. Some residents, including some elderly homeowners, have paid off their mortgages. They are afraid that if they lose their homes they will never be able to purchase another one.
99. Also on August 11, 2003, Plaintiff CIA submitted to the Township Council detailed written objections to the Gardens Redevelopment Plan with proposed alternatives to demolition of the residents' homes, including that the Gardens Redevelopment Plan was drafted without meaningful input from the residents and in disregard of the residents' needs; that it discriminated against African-American and Hispanic residents on the basis of race and ethnicity; that it did not realistically provide for housing that was decent and affordable for the residents, either as to units to be newly constructed in the Gardens area or replacement housing elsewhere in Mt. Holly Township or Burlington County; and that it would cause severe hardship by forcing most residents, many of whom have lived in the Gardens for many years, to lose their homes and move out of their community.
100. On September 8, 2003, the Township Council passed Ordinance No. 2003-12 adopting the Gardens Redevelopment Plan as originally proposed.
IOJ. On October 23, 2003, Plaintiffs CIA and 35 individual residents filed an action in the Superior Court of New Jersey, Law Division, Docket No. BUR-L-003027-03, challenging the designation of the Gardens as an area in need of redevelopment and the adoption of the Gardens Redevelopment Plan under state law and on civil rights and constitutional grounds.
102. In February 2005, the Township Council directed the Planning Board to consider amending the Gardens Redevelopment Plan.
103. On February 21, 2005, the Planning Board held a public hearing concerning a revised redevelopment plan called the West Rancocas Redevelopment Plan (WR Redevelopment
20

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 21 of 43 PageID: 6381
Plan), which encompassed the Gardens neighborhood and increased the area for commercial redevelopment.
104. The WR Redevelopment Plan proposed the following: a. 228 new residential units. b. Permitted residential uses increased up to 50% for two-family dwellings, up to 33% for townhouse/senior apartment combination dwellings, and up to 33% for townhouses. The permitted uses; however, did not include any multifamily rental units. c. Demolition of existing homes and new construction of the above permitted uses. d. Possible rehabilitation of existing units, but rehabilitation was purely optional with no specified amount or percentage of existing residential units that were to be rehabilitated. e. Only 10% of the 228 dwelling units-a total of 23-to be affordable housing units, with the remaining 205 units to be market rate units. f. Commercial development in the area adjacent to the Mt. Holly Bypass Road on the western edge of the redevelopment area.
105. Many Gardens residents appeared and spoke at the Planning Board hearing on February 21, 2005, raising the same objections to the proposed WR Redevelopment Plan that they had raised concerning the Gardens Redevelopment Plan.
106. Also on February 21, 2005, a planning expert, Alan Mallach, FAICP, PP, submitted a report and testified on behalf of the residents regarding the proposed WR Redevelopment Plan.
21

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 22 of 43 PageID: 6382
107. In the report, Mr. Mallach opined that the rehabilitation option under the Plan was at best illusory and that given the lower-income status of most of the Gardens residents, very few if any of the families could afford the 205 market rate units.
108. Mr. Mallach also testified that the Township could improve the Gardens community using much less drastic alternatives than the large-scale acquisition and demolition called for the WR Redevelopment Plan.
109. In addition, Plaintiff CIA submitted detailed written comments to the Planning Board on February 21,2005, raising numerous objections and recommendations, including: that the WR Redevelopment Plan should mandate as an overriding goal that existing homes be rehabilitated instead of demolished to avoid displacement of residents; that the WR Redevelopment Plan should permit multifamily rental housing-which constituted at least half of the existing residential units in the Gardens-among the permitted uses; that the WR Redevelopment Plan unlawfully discriminated against African-American and Hispanic residents on the basis of race and etlmicity; and that the WR Redevelopment Plan's limit of 23 affordable housing units was a misapplication of the new growth share regulations promulgated by the New Jersey Council on Affordable Housing ("COAH") and was otherwise contrary to the general welfare under the New Jersey Constitution.
110. At the conclusion of the public hearing on February 21, 2005, the Planning Board passed a resolution recommending that the Council adopt the WR Redevelopment Plan, with the recommendation to increase the townhouse permitted use to up to 75% of the total 228 residential units.
III. The Planning Board did not recommend adoption of any amendments addressing the concerns raised by the residents and plaintiffs.
22

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 23 of 43 PageID: 6383
112. On March 14, 2005, the Township Council held a public hearing on the adoption of the WR Redevelopment Plan.
113. Many residents appeared and voiced similar concerns against the WR Redevelopment Plan as stated before the Planning Board.
114. Plaintiffs also submitted written comments similar to those presented to the Planning Board.
115. At the conclusion of the hearing, the Township Council adopted Ordinance 200507, adopting the WR Redevelopment Plan.
116. The Township Council disregarded all of the input it received from the Gardens residents and failed to address the residents' objections and concerns.
117. The Township officials made false, misleading, and/or inaccurate statements in response to public comments regarding the designation of the Gardens community as an area in need of redevelopment and regarding the adoption of the Gardens Redevelopment Plan and the WR Redevelopment Plan.
118. The Township also took other actions to avoid informing the residents of its plans and to minimize public comment and participation in the redevelopment process.
119. CIA and the other plaintiffs in the state court litigation amended their complaint to allege that the adoption of the WR Redevelopment Plan was in violation of state redevelopment law, civil rights laws, and the federal and state constitutions.
120. On April 17, 2005, the Superior Court, the Hon. John Sweeney, held a bench trial on the issues of whether the Gardens met the statutory criteria of a redevelopment area and whether the WR Redevelopment Plan complied with the requirements of LRHL. On May 5,
23

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 24 of 43 PageID: 6384
2005, the court ruled in favor of the Township and entered judgment dismissing the prerogative writ claims.
121. On Augnst 30, 2005, Judge Sweeney granted the Township summary judgment dismissing without prejudice the residents' civil rights and constitntional claims upon finding that they were not ripe for adjndication.
122. On July 5, 2007, the New Jersey Superior Court, Appellate Division, affirmed the rulings of the trial court. On December II, 2007, the New Jersey Supreme Court denied the residents' petition for certification, and on February 5, 2008, the New Jersey Supreme Court denied the residents' motion for reconsideration.
123. The Gardens redevelopment project is the only redevelopment initiative in Mt. Holly Township during the last 10 years that calls for large-scale demolition of homes and displacement of residents.
124. The Township conducted a reexamination of its Master Plan in June 2007. 125. The Master Plan Reexamination repeats the discussion of the Gardens in the Master Plan, and notes that the Township is improving the Gardens Area by declaring it a redevelopment area and adopting the WR Redevelopment Plan, which includes residential and non-residential properties, as recommended in the Master Plan. 126. The Reexamination includes a section of specific recommendations, which incorporate the specific proposals set out in the WR Redevelopment Plan for Residential, Commercial, Limited Industrial, and open space uses. The Reexamination does not propose any changes to the Master Plan with regard to the Gardens Area. E. Township's and Redevelopers' Implementation ofthe Redevelopment Plan 1. Acquisition of Properties
24

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 25 of 43 PageID: 6385
127. By 2002, at the time the Gardens Plan was being considered by the Planning Board and Council, the Township had acquired a total of 20 units, which it had intentionally left vacaut and boarded up rather than attempting to renovate or sell them.
128. On November 10, 2003, the Township Council enacted Ordinance No. 2003-37, authorizing Township officials to negotiate and acquire all of the properties located in the Gardens redevelopment area by voluntary sale or, if necessary, by condemnation, at a price not to exceed fair market value.
129. After adoption of the WR Redevelopment Plan in 2005, the Township increased its efforts to acquire homes in the Gardens.
130. In or about March 2005, the Township purchased the 62 rental properties from Fry Properties for approximately $53,000 per unit totaling $3.27 million.
131. In or about April 2006, the Township obtained an appraisal report, which determined that the value of a one-bedroom house in the Gardens was $32,000, a two-bedroom house was $39,000, and a three-bedroom house was $49,000.
132. Since 2006, the Township has purchased numerous homes at prices ranging from $32,000 to $49,000, except for two purchases at $64,000 and one purchase at $81,000 for properties that contained two units converted into one larger home.
133. By December 2007, the Township had acquired a total of219 residential units out of the 329 original homes in the Gardens redevelopment area. Most ofthese residential units had been occupied by tenants or homeowners before the Township acquired them. The Township had demolished 42 of its acquired units, and kept 165 of the remaining 177 units vacant and boarded.
134. Because the Township had not re-rented or re-sold its units upon acquisition, the Township's acquisitions increased the overall vacancy rate in the Gardens to nearly 65%.
25

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 26 of 43 PageID: 6386
135. Since December 2007, the Township has demolished an additional 31 residential units, for a total 73 demolished units,
136. The only measures the Township has taken to secure its vacant properties has to put particle board panels on the windows and to plaster large orange "no trespassing signs" on them.
137. The Township has not adequately secured or maintained the houses and yards of the properties it owns, allowing these properties to deteriorate and become vandalized by trespassers.
138. The vacant Township-owned properties have caused and are continuing to cause a severely blighting and deleterious effect on the Gardens neighborhood, created risk of infestation, fire hazards, and mold, and encouraged further disinvestment in the cOlll1llunity.
139. The Township and Redevelopers have made and are continuing to make offers to Gardens property owners to purchase units for the prices of $32,000 for a one-bedroom house, $39,000 for a two-bedroom house, and $49,000 for a three-bedroom house.
140. The Township recently initiated the eminent domain process against one absentee property owner to acquire additional properties.
141. On April 12,2008, the Township Council introduced and passed on first reading Ordinance 2008-12. The Ordinance states that the Township is or will be the owner of all of the properties in the redevelopment area, and authorizes the Mayor, and/or the Township Manager and/or Township Clerk to negotiate and execute a Purchase and Sale Agreement, and all other necessary documents, between the Township and Redevelopers for all of the properties for the minimum purchase price of $9 million and to execute any documents necessary to effectuate the sale, including any documents that may be required for Eminent Domain proceedings.
26

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 27 of 43 PageID: 6387
2. Selection of Redevelopers 142. On February 15, 2006, the Township executed a Redevelopment Agreement with
Defendant Keating. 143. In or about March 2006, Keating hired Triad to conduct the relocation activities
associated with the WR Redevelopment Plan. 144. Pursuant to Exhibit C of the Redevelopment Agreement, Keating was to form a
single purpose limited liability corporation with another redeveloper, Pennrose Properties, with Keating assigning its rights and obligations under the Redevelopment Agreement to the newly formed LLC and maintaining majority ownership. Upon information and belief, the single purpose limited liability corporation described in Exhibit C of the Redevelopment Agreement has not yet been formed and is presently not in existence.
145. Keating subsequently began to take various actions to move the redevelopment project forward including obtaining a survey; negotiating on behalf of the Township for the acquisition of a number of properties; meeting with various professionals such as planners, architects, and engineers; and submitting applications for permits and approvals.
146. On February 23, 2007, the Redevelopers became responsible for property management ofthe Township-owned properties.
27

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 28 of 43 PageID: 6388
3. Relocation of Gardens Residents 147. On September 28, 2006, the Township submitted a Workable Relocation
Assistance Plan ("WRAP"), prepared by Defendant Triad, to the New Jersey Department of Community Affairs.
148. The WRAP provided the following: a. Proposed relocation of all current Gardens residents. b. A "Right of First Opportunity" for residents to return to the Gardens area after the redevelopment project is completed. c. No provision that any replacement units realistically affordable to the residents would be created in the Gardens d. No provision that any replacement units realistically affordable to the residents would be created in any other areas in the Township or in the surrounding region. e. All residents on August I, 2006, would be eligible for relocation assistance. f. Qualified resident homeowners would be eligible, in addition to the $15,000.00 required by N.J.A.C. 5:11-3.7(a), for a $20,000 no-interest loan payable if and when the relocated homeowner sold the replacement dwelling. g. Qualified tenants who moved into non-subsidized rental units were eligible for up to $4,000.00 in assistance as provided by N.lA-C. 5: 113.5 and additional assistance up to $3,500.00.
28

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 29 of 43 PageID: 6389
h. However, homeowners or tenants who used relocation funds to move out the Gardens would not be eligible for additional relocation funds to return to the Gardens if and when any affordable units were ultimately constructed.
149. In November 2006, the Township received notification from the Department of Community Affairs that the WRAP was approved.
150. On November 15, 2006, Triad opened an office ill the Gardens to conduct relocation activities.
151. Triad staff began to send letters and notices to tenant households asking them to come in for interviews.
152. After assessing their housing needs, Triad staff started to make efforts to locate housing for these households outside of the Gardens.
153. The Township did not provide any relocation assistance to residents who moved out ofthe Gardens prior to November 2006.
154. Since the WRAP was approved in November, 2006 through January, 2008, the Township paid relocation funds to 62 families to move out of the Gardens.
155. Of these 62 households, 43, or 69%, were relocated outside ofM!. Holly. 4. Demolition of Units
156. The Township and Redevelopers have and are continuing to dismantle the Gardens community by demolishing homes in the Gardens.
157. As of May 2008, the Township has demolished a total of 73 residential units, most of which were previously occupied by tenants or homeowners.
29

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 30 of 43 PageID: 6390
158. Although the Township claimed that the demolitions of the houses were necessary for health and safety concerns, the units were generally structurally sound, capable of rehabilitation, and did not pose a threat to public safety.
159. To the extent the units were in poor condition and being used by trespassers, this was a result of the Township's failure to take measures to adequately secure and maintain them. 5. Reduction in Municipal Services
160. Starting in 2000, before the Township even initiated the formal redevelopment planning process, the Township itself began to create blighted conditions in the Gardens.
161. Starting in 2000 and continuing during the course of the redevelopment process, the Township neglected the needs of the Gardens neighborhood by failing to apply for and utilize available funding for community improvements and housing rehabilitation.
162. From January 1999 to the present, the Township entered into regional contribution agreements pursuant to the New Jersey Fair Housing Act, N.J.S.A. 52:27D-301 et seq., with the municipalities of Moorestown, Hainesport, and Westhampton, with the Township receiving more than $4 million to rehabilitate 218 residential units occupied by low and moderate income households within Mount Holly.
163. The Township has not at any time allocated or used any funds from the regional contribution agreements to rehabilitate homes in the Gardens.
164. The Township failed to utilize a $25,000 grant from the New Jersey Department of Community Affairs earmarked for social, educational, and recreational programs for residents at the Gardens community center and in July, 2003 was forced to return the unspent funds.
165. In 2004, the Township removed the only playground equipment in the Gardens and refused to replace it.
30

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 31 of 43 PageID: 6391
166. The Township also failed to conduct proper code enforcement, prompt trash removal, adequate policing, and other basic services needed by the Gardens residents.
167. The Township twice used its vacant properties in the Gardens to conduct live police tactical training, bringing in numerous police officers and vehicles into the Gardens in the early morning hours, without providing advance notice to residents in the neighborhood.
168. The Township'S failure to provide adequate and proper municipal services has negatively impacted upon the community and decreased the quality oflife for residents.
169. In spite of the Township's actions, Gardens residents, through their own efforts, continued to combat significant deterioration of their neighborhood and tried to preserve their quality of life. F. Continued Planning and Changes to WR Redevelopment Plan
170. On March 9, March 23, and April 5, 2006, the Redevelopers held three meetings with Gardens residents.
171. The residents participating m these meetings thought that the purpose of the meetings was to consider revisions to the redevelopment plan.
172. At all three of the meetings, Gardens residents gave input about the redevelopment process and stated that they did not want to lose their homes or to be moved out of the Gardens.
173. The Gardens residents presented to the Redevelopers a list of proposals for revising the WR Redevelopment Plan, which included a guarantee of affordable replacement units for all residents to be displaced who wished to remain in the Gardens.
174. At the third meeting, resident surveys were distributed.
31

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 32 of 43 PageID: 6392
175. In July of 2006, Triad completed the resident survey process. 169 households responded, including 107 tenant households and 60 homeowners.
176. The Triad survey showed that 120 out of the 169 families were interested in either purchasing or renting a new home in the Gardens, only 64 families were interested in purchasing or renting outside of the Gardens, and only 8 households were interested in selling their property.
177. In or about October 2006, the Township and Redevelopers notified the residents of the completion of the Relocation Plan.
178. The WRAP stated that 560 units were being planned for the redevelopment area. 179. During the period between February of 2006 and September 2007, the Redevelopers prepared and revised approximately eight conceptual plans for the redevelopment area, referred to by the Township as "concept plans". 180. Since the adoption of the WR Redevelopment Plan, the Township Council has conducted many discussions during closed executive session. 181. The Township did not provide any public notice or conduct any public meetings regarding the concept plans that were being prepared by the Redevelopers or refer them to the Planning Board for review 182. On or about September 24,2007, the Township Council approved a concept plan during a closed executive session, in violation of the Open Public Meetings Act, N.J.S.A. 10:406 et seq. Council did not notify the public about its review of the concept plan, offer any opportunity for public input, or provide any subsequent information to the public about the actions taken during the executive session. The concept plan proposed construction of 203 market rate and 25 COAH income restricted apartments and 261 market rate and 31 COAH townhouses.
32

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 33 of 43 PageID: 6393
183. On September 8, 2008 the Township Council passed on first reading Ordinance 2008-25, adopting a Revised West Rancocas Redevelopment Plan (Revised WR Redevelopment Plan), and referred it to the Planning Board for review..
184. The Revised WR Redevelopment Plan contains, inter alia, the following provISIons:
(a) It includes as objectives increasing the number of owner-occupied dwelling units by increasing homeownership opportunities for existing and future residents and ensuring that new dwelling units remain affordable.
(b) It calls for acquisition and demolition of all existing homes in the Gardens. (c) It proposes construction of up to 520 housing units and 54,000 square feet of
commercial space in the redevelopment area. Up to 75% of the housing units may be townhouses and up to 50% may be apartments. (d) The Land Use Plan proposes situating the apartments on a vacant land area north of the Gardens, the commercial district on the western side of the redevelopment area along the Mt Holly Bypass Road, and the townhouses on the eastern and southern portions of the redevelopment area. (e) It proposes the replacement of the II deed-restricted houses in the Gardens, and creation of 45 additional deed-restricted "affordable units", and states that the current occupants of the existing 11 deed-restricted units would have priority for the replacement units, without any provision for the replacement of the other 273 units fornlerly occupied by predominately low income families and without any guarantee that any of the affordable units would be
33

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 34 of 43 PageID: 6394
realistically affordable to current and former Gardens residents and would be made available prior to displacement. (1) The Revised WR Redevelopment Plan acknowledges that it is inconsistent with the Township Master Plan because it does not reduce density and because it calls for total demolition rather than rehabilitation of existing homes, but concludes that tbis inconsistency is warranted based on economic conditions and redeveloper preference. The Plan states that it there would be no adverse impacts to neighboring Westhampton Township land uses and that the Plan is consistent with the State Development and Redevelopment Plan. 185. On September 9, 2008 the Township and Redevelopers held a public meeting at which the Redevelopers presented their proposed plans for redevelopment. This general development plan proposed construction of 228 luxury rental units, and 292 townhouses, totaling 520 housing units, along with 54,000 square feet of commercial development. The construction would take place in phases, with the Phase IA to consist of the apartments and 60 townhouses to be built on vacant land just north of the Gardens, Phase IB to consist of the commercial development to be situated along the Mt Holly Bypass, where North and South Martin Avenues are currently located, and Phases II and III to consist of additional townhouse development in the eastern portion of the Gardens. The Redevelopers' proposal called for 56 affordable units to be interspersed among the remaining 464 marlcet-rate units. 186. On September 15, 2008 the Planning Board reviewed the Revised WR Redevelopment Plan and heard public comment. The Planning Board members and their professional consultants had not been previously involved in developing or evaluating the Revised Plan. Several Gardens residents appeared before the Planning Board and objected to the
34

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 35 of 43 PageID: 6395
Revised WR Redevelopment Plan because it required taking of their homes and failed to provide affordable replacement housing. Counsel for the residents also testified and submitted written objections. The Planning Board recommended adoption of the Revised WR Redevelopment Plan, without meaningful consideration of the residents' objections.
187. On September 22, 2008 the Township Council held a public hearing and considered the Ordinance to adopt the Revised WR Redevelopment Plan. Several Gardens residents again appeared and objected to Revised WR Redevelopment Plan. Counsel for the residents also testified and again submitted written objections. The Council voted to adopt the Ordinance on second reading, without meaningful consideration of the residents' objections. G. Failnre to Provide Affordable Replacement Units
188. The Township has estimated that the prices of the new townhouses to be built in the redevelopment area will range from $200,000 to 275,000 and that apartments will rent at approximately $1.65 per square foot, with a one-bedroom unit renting for $1,230 per month. The Redevelopers stated at the public meeting that the apartments are to be priced above current market prices, and the first set of townhouses are expected to cost $240,000.
189. Nearly all Gardens residents canoot afford to purchase or rent the new units. 190. The affordable housing provision in the Revised WR Redevelopment Plan does not constitute adequate replacement housing because it proposes to replace the 329 Gardens homes with only 56 affordable units, without any guarantee that even any of these 56 units would be realistically affordable or available to Gardens residents. H. Harm to Residents and CIA by Township's and Redeveloper's Actions 191. By acquiring and vacating properties, failing to maintain the properties it owns, reducing municipal services, demolishing units, and creating increasingly blighted conditions in
35

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 36 of 43 PageID: 6396
the Gardens, the Township and Redevelopers have interfered and are continning to severely interfere with the Gardens residents' use and enjoyment of their property and to otherwise injure Gardens residents.
192. Gardens residents risk losing their financial investments in their homes if they continue to make improvements or repairs.
193. Because the Township's and Redeveloper's actions have created severely blighted conditions and greatly lowered property values, and because of the imminent threat of condemnation, Gardens residents are unable to sell their home on the private market at a price that provides just compensation and that would enable them to find alternate comparable housing.
194. The Township's proposed prices for purchase of the properties also do not constitute just compensation and are inadequate to enable residents to purchase decent, safe, and affordable comparable replacement housing.
195. Because of the Township-caused increased vacancy rate, proliferation of abandoned home, and ugly appearance of the neighborhood, Gardens residents increasingly fear for their security and safety, experience pest infestation and mold, cannot enjoy spending time in their yards and open areas, and are embarrassed to have family and friends visit.
196. Gardens residents have experienced and are continuing to experience great stress, anxiety, and grief because of their fear ofiosing their homes and their strong community ties and becoming unable to find adequate affordable replacement housing.
197. Many former Gardens residents have moved out of the Gardens conmlUnity because the community had become such an undesirable and unsafe place to live and because eventual eviction or condenmation by the Township appeared inevitable.
36

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 37 of 43 PageID: 6397
198. Many former Gardens residents who moved out of the Gardens under threat of condemnation or eviction have not been able to find comparable replacement housing at locations as desirable as the Gardens community and have been forced to live under worse conditions and/or pay higher housing costs.
199. The Township's and Redeveloper's actions have harmed CIA by impeding its ability to organize residents and operate effectively as a representative organization.
200. The Township's and Redeveloper's concerted actions render ripe for adjudication the civil rights and constitutional claims that were dismissed by the state court without prejudice for lack of ripeness, including but not limited to the following:
(a) Actions to effectuate the redevelopment of the Gardens between March of 2005 and the present, including the selection of the Redeveloper, the execution of the Redeveloper Agreement, the preparation of the WRAP, the acquisition, vacation, and demolition of properties, the relocation of towthirds of the residents, the creation of severely blighted living conditions, the failure to provide affordable replacement housing to those being displaced, and the injury suffered by the Residents as a result of these actions;
(b) The Township's formal adoption of a third, revised redevelopment plan in September 2008-five years after the Township's first redevelopment plan in 2003-that specifically details the number, type, and affordability levels of the housing units;
(c) The Township's preparation of a Redeveloper general development plan that provides details concerning the type and price of the housing units.
37

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 38 of 43 PageID: 6398
FIRST COUNT UNLAWFUL DISCRIMINATION UNDER THE FAIR HOUSING ACT,
42 U.S.c. § 3601 et seq. 201. Residents and CIA reallege and incorporate by reference the allegations In all previous Paragraphs of this Complaint as if fully pleaded herein. 202. By the actions described above, the Township and Redevelopers have violated and continue to violate the rights of plaintiffs under the Fair Housing Act, 42 U.S.C. § 3601 et seq. and implementing regulations by:
a. Making unavailable or denying dwellings to persons because of race, color and national origin, in violation of 42 U.S.C. § 3604(a) and implementing regnlations;
b. Discriminating on the basis of race, color or national origin in the terms, conditions or privileges of services or facilities in connection with the sale or rental of a swelling in violation of 42 U.S.C. § 3604(b) and implementing regulations; and
c. Coercing, intimidating, threatening or interfering with any person's exercise of his or her rights protected under 42 U.S.c. § 3604, in violation of 42 U.S.c. § 3617.
203. The Township's and Redevelopers' actions, practices and policies, as described above in the Complaint, have had and continue to have a substantial adverse, disparate impact on African-American and Hispanic households in violation of the Fair Housing Act, 42 U.S.c. § 3604 (a) and (b).
a. The Township's and Redevelopers' actions, practices and policies will dismantle and destroy the Gardens, which is predominately African-American and Hispanic and has the most concentrated populations of African-American and Hispanic persons in the Township.
38

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 39 of 43 PageID: 6399
b. The Township's and Redevelopers' actions, practices and policies will substantially and disproportionately displace African-American and Hispanic households from the Gardens and from Mt. Holly Township, who are mostly lower and moderate income and who cannot afford the homes that will be constructed in the Gardens or existing housing in the local housing market.
c. The Township's and Redevelopers' actions, practices and policies will destroy hundreds of residential homes affordable to lower and moderate income AfricanAmerican and Hispanic Households without providing replacement housing that is affordable to most such households.
204. The allegations of paragraph 203 are removed from the Complaint as they relate to counts that have been dismissed.
205. The allegations of paragraph 204 are removed from the Complaint as they relate to counts that have been dismissed.
206. The allegations of paragraph 205 are removed from the Complaint as they relate to counts that have been dismissed.
207. The allegations of paragraph 206 are removed from the Complaint as they relate to counts that have been dismissed.
208. The acts and conduct of the Township aud Redevelopers complained of above have caused and continue to cause substantial injury to each ofthe individual plaintiffs and to plaintiff Citizens in Action.
PRAYER FOR RELIEF WHEREFORE, Residents respectfully request that the Court enter judgment against the Township and Redevelopers:
39

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 40 of 43 PageID: 6400

A. Declaring that the Township and Redevelopers have violated Residents' rights

under Title VIII of the Civil Rights Act of 1968,42 U.S.Co § 3601 e/ seq.; B. Preliminarily and permanently enjoining the Township and Redevelopers from

further implementing their current Redevelopment Plan;

C. Preliminarily and permanently requiring the Township and Redevelopers to carry

out any further redevelopment in the Gardens in a manner having the least

discriminatory adverse impact upon African-American and Hispanic households;

D. Preliminarily and permanently prohibiting the Township and Redevelopers from

demolishing, removing, purchasing or obtaining through eminent domain

residential dwellings within the Gardens, or otherwise implementing

redevelopment, without providing for rehabilitation of housing and/or adequate

affordable replacement housing for all current and displaced Gardens residents;

E. Damages and/or just compensation sufficient for Residents to secure permanent

replacement housing in the local housing market;

F. Preliminarily and permanently compelling the Township to provide the Gardens

residents with adequate municipal services, including but not limited to police,

fire protection, code enforcement, trash collection and community services;

G. Awarding compensatory damages;

H. Awarding punitive damages;

1. Awarding plaintiffs costs of suit;

J.

Ordering the Township and Redevelopers to pay plaintiffs' reasonable expert and

attorney's fees, except that no attorney's fees are requested by SOUtll Jersey Legal

Services, Inc; and

40

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 41 of 43 PageID: 6401

K. Granting such other relief and the Court deems just and proper.

DEMAND FOR JURY TRIAL

Pursuant to Fed. R. Civ. P 38(b), the plaintiffs demand a trial by jury of all issues so

triable as of right.

Dated: November_, 2013

SOUTH JERSEY LEGAL SERVICES, INC. Attol71eysfor Plaintiffs: Mt. Holly Gardens Citizens In Action, Inc., Ana Arocho, Reynaldo Arocho, Maria Arocho, Pedro Arocho, Christine Barnes, Rita Brooks, Individually and as Executrix for the Estate of Vivian Brooks, Lillian Burgos de Torres, Individually and as Administrator of the Estate of Radames Torres, Bernice Cagle, Leon Calhoun, George Bennett Chambers, Dorothy Chambers, Elida Echevaria, Luis Lopez, Norman Harris, Mattie Howell, Nancy Lopez, Elizabeth Hernandez as Administrator Ad Prosequendum ofthe Estate of Angelo Nieves, Bernice Mitchell as Executrix of the Estate of Elmira Nixon, Leonardo Pagan, Joyce Starling, Taisha Tirado Pagan, Dagmar Vicente, Charlie Mae Wilson, Mattie Howell, Nancy Lopez, Vincent Victor Munoz as Adminstrator of the Estate of Vincent Munoz, Sylvia Simons as Executrix of the Estate of Henry Simons, Marlene Tobar, Flavio Tobar, Alandia Warthen, Sheila Warthen, Leona Wright, Ruth Alvarez and Noel Ortiz.

By: /s/ Olga D. Pomar OLGA D. POMAR, ESQUIRE

By: /s/ Kenneth M. Goldman KENNETH M. GOLDMAN, ESQUIRE
By: /s/ David M. Podell DAVID M. PODELL, ESQUIRE

AARP FOUNDATION LITIGATION Attorneysfor Plaintiffs: Mount Holly Gardens Citizens in Action, Inc., Maria Arocho, Pedro Arocho, Reynaldo Arocho, Ana Arocho, Christine Barnes, Rita Brooks, Rita Brooks, Individually and as Executrix for the Estate of Vivian Brooks, Bernice Cagle, Leon Calhoun, Santos Cruz, Beatriz Cruz, Dorothy Chambers, George Bennett Chambers, Elida Echevarria, Luis Lopez, Norman Harris, Mattie Howell, Nancy Lopez, Vincent Victor Munoz as Adminstrator of the Estate of Vincent Munoz, Elizabeth

41

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 42 of 43 PageID: 6402

Hernandez as Administrator Ad Prosequendum of the Estate of Angelo Nieves, Bernice Mitchell as Executrix of the Estate of Elmira Nixon, Dolores Nixon, Leonardo Pagan, Taisha Tirado Pagan, James Potter, Rosemary Roberts, Individually and as Executrix of the Estate ofWilliam Roberts, Efraim Romero, Jessica Romero, Sylvia Simons as Executrix of the Estate of Henry Simons, Phyllis Singleton, Robert Tigar, Flavio Tobar, Marlene Tobar, Radames Torres Burgos, Lillian Burgos deTorres, Individually and as Adminstrator of the Estate of Radames Torres, Dagmar Vicente, Charlie Mae Wilson, Alandia Warthen, Sheila Warthen, Leona Wright, Rebeca Gonzalez, Angel Vera, Ruth Alvarez, Noel Ortiz, Wanda Cruz, Hippolyta Rodriguez, and Carlos Lotuffo
By: /s/ Susan Ann Silverstein SUSAN ANN SILVERSTEIN, ESQUIRE
POTTER AND DICKSON Attorneys/or Plointijft: Santos Cruz, Beatrix Cruz, Dolores Nixon, James Potter, Rosemary Roberts, Individually and as Executrix of the Estate of William Roberts, Efraim Romero, Jessica Romero, Phyllis Singleton, Robert Tigar, Radames Torres Burgos, Rebeca Gonzalez, Angel Vera, Wanda Cruz, Hippolyta Rodriguez, and Carlos Lotuffo
By: /s/ R. William Potter R. WILLIAM POTTER, ESQUIRE

L.Civ.R.11.2 CERTIFICATION

Pursuant to L.Civ.R. 11.2, the undersigned attorneys hereby certifY that the matter in

controversy is not the subject of any other action pending in any court, or of any pending

arbitration or administrative proceeding. The undersigned attorneys certifY that the foregoing

statements are true. The undersigned attorneys understand that if any of the above statements

made by me are willfully false, the undersigned attorneys are subject to punishment.

Dated: November_,20l3

SOUTH JERSEY LEGAL SERVICES, INC.

By: /s/ Olga D. Pomar

42

Case 1:08-cv-02584-NLH-JS Document 204 Filed 11/15/13 Page 43 of 43 PageID: 6403
OLGA D. POMAR, ESQUIRE By: /s/ Kenneth M. Goldman
KENNETH M. GOLDMAN, ESQUIRE By: /s/ David M. Podell
DAVID M. PODELL, ESQUIRE AARP FOUNDATION LITIGATION By: /s/ Susan Ann Silverstein
SUSAN ANN SILVERSTEIN, ESQUIRE POTTER AND DICKSON By: /s/ R. William Potter
R. WILLIAM POTTER, ESQUIRE
43

 
 Case 1:08-cv-02584-NLH-JS Document 215 Filed 11/15/13 Page 1 of 6 PageID: 6424

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE

MT. HOLLY GARDENS CITIZENS IN ACTION, INC., a New Jersey non-profit corporation, MARIA AROCHO, PEDRO AROCHO, REYNALDO AROCHO, ANA AROCHO, CHRISTINE BARNES, RITA BROOKS, INDIVIDUALLY AND AS EXECUTOR OF ESTATE OF VIVIAN BROOKS, BERNICE CAGLE, LEON CALHOUN, GEORGE BENNETT CHAMBERS, DOROTHY CHAMBERS, BEATRIZ CRUZ, SANTOS CRUZ, ELIDA ECHEVARIA, LUIS LOPEZ, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT VICTOR MUNOZ, AS ADMINSTRATOR OF THE ESTATE OF VINCENT MUNOZ, ELIZABETH HERNANDEZ, AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ANGELO NIEVES, DOLORES NIXON, BERNICE MITCHELL AS EXECUTRIX OF THE ESTATE OF ELMIRA NIXON, LEONARDO PAGAN, JAMES POTTER, ROSEMARY ROBERTS, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF WILLIAM ROBERTS, EFRAIM ROMERO, JESSICA ROMERO, SYLVIA SIMONS AS EXECUTRIX OF THE ESTATE OF HENRY SIMONS, PHYLLIS SINGLETON, JOYCE STARLING, ROBERT TIGAR, TAISHA TIRADO PAGAN, FLAVIO TOBAR, MARLENE TOBAR, RADAMES TORRES BURGOS, LILLIAN BURGOS DE TORRES, INDIVIDUALLY AND AS ADMINSTRATOR OF THE ESTATE OF RADAMES TORRES-

HaN. NOEL L. HILLMAN, U.S.D.J. Case No.: 1:08-cv-02584 (NLHlJS)

Case 1:08-cv-02584-NLH-JS Document 215 Filed 11/15/13 Page 2 of 6 PageID: 6425
MORENO, DAGMAR VICENTE, ALANDIA WARTHEN, SHEILA WARTHEN, CHARLIE MAE WILSON LEONA WRIGHT, RUTH ALVAREZ, NOEL ORTIZ, REBECA GONZALEZ, ANGEL VERA, WANDA CRUZ,CARLOSLOTUFFO,AND HIPPOLYTA RODRIGUEZ,
Plaintiffs, vs.
TOWNSHIP OF MOUNT HOLLY, a municipal corporation of the State ofNew Jersey, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, as governing body of the Township of Mount Holly, KATHLEEN HOFFMAN, as Township Manager of the Township of Mount Holly, JULES THIESSEN, as Mayor of the Township of Mount Holly, KEATING URBAN PARTNERS, L.L.C., a company doing business in New Jersey, TRIAD ASSOCIATES, INC., a corporation doing business in New Jersey,
Defendants.
STIPULATION OF DISMISSAL WITH PREJUDICE (Fed. R. Civ. P. 41(a)(1)(A)(ii»
Pursuant to Fed. R. Civ. P. 41(a)(I)(A)(ii), the Parties in the above-captioned action
(including the successors in office of the named municipal officials), through the signatures of
their respective counsel on this Stipulation, stipulate to dismiss this action with prejudice
according to the terms of the Settlement Agreement, all attached exhibits, and the Addendum to
the Settlement Agreement executed by the Parties, which are attached hereto and incorporated by
reference in the within Order and made fully a part of it. Each party to bear its own costs,
including attorneys fees.
The parties further consent to the form and substance of the within Order.

Case 1:08-cv-02584-NLH-JS Document 215 Filed 11/15/13 Page 3 of 6 PageID: 6426

For the Plaintiff"': MT. HOLLY GARDENS CITIZENS IN ACTION, INC., ANA AROCHO, REYNALDO AROCHO, MARIA AROCHO, PEDRO AROCHO, CHRISTINE BARNES, RITA BROOKS, INDIVIDUALLY AND AS EXECUTRIX FOR THE ESTATE OF VIVIAN BROOKS, LILLIAN BURGOS DE TORRES, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF RADAMES TORRES, BERNICE CAGLE, LEON CALHOUN, GEORGE BENNETT CHAMBERS, DOROTHY CHAMBERS, ELIDA ECHEVARIA, LUIS LOPEZ, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, ELIZABETH HERl"lANDEZ AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESrATE OF ANGELO NIEVES, BERNICE MITCHELL AS EXECUTRIX OF THE ESTATE OF ELMIRA NIXON, LEONARDO PAGAN, JOYCE STARLING, TAISHA TIRADO PAGAN, DAGMAR VICENTE, CHARLIE MAE 'VILSON, MATTIE HOWELL, NANCY LOPEZ, VINCENT VICTOR MUNOZ AS ADMINSTRATOR OF THE ESTATE OF VINCENT MUNOZ, SYLVIA SIMONS AS EXECUTRIX OF THE ESTATE OF HENRY SIMONS, MARLENE TOBAR, FLAVIO TOBAR, ALANDIA WARTHEN, SHEILA WARTHEN, LEONA WRIGHT, RUTH ALVAREZ AND NOEL ORTlZ.

DOUGLAS E. GERSHUNY, EXEC. DIR. SOUTH JERSEY LEGAL SERVICES, INC.

By:~~~~~~--f-.-J'..L.::.-=-=-~_ _ OLGA D OMAR, ESQUIRE
745 Mar t st.
Camden, NJ 08102
Phone: (856)964-2010, Ext. 6232
Email: OPomar(@,lsnj.org

AARP F UNDATION LIYGA:nON

By:"·

~ ~

S AN ANN SILVERSTEIN, ESQ.

601 E Street, NW

Washington, DC 20049

Phone: (202)434-2060

Email: SSilverstein(aiaarp.org

For the Plaillt~tJs: SANTOS CRUZ, BEATRIX CRUZ, DOLORES NIXON, JAMES POTTER, ROSEMARY ROBERTS, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF WILLIAM ROBERTS, EFRAIM ROMERO, JESSICA ROMERO, PHYLLIS SINGLETON, ROBERT TIGAR, RADAMES TORRES BURGOS, REBECA GONZALEZ, ANGEL VERA, WANDA CRUZ, HIPPOLYTA RODRIGUEZ, AND CARLOS LOTUFFO

Case 1:08-cv-02584-NLH-JS Document 215 Filed 11/15/13 Page 4 of 6 PageID: 6427

~L---_~ A : CDATIOli ~~TI9ATION

By:

_ _ __

SUSAN ANN SILVERSTEIN, ESQUIRE

601 E Street, NW

Washington, DC 20049

Phone: (202)434-2060

Email: SSi1verstein(~aarp.org

POTTER & DICKSON
By: If 1v//I/.w- /bkLW:$
R. 'WILLIAM POTTER, ESQ . 194 Nassau Street Princeton, NJ 08542 Phone: (609)921-9555 Email: PottelTex@cs.com

For the Defendants: TOWNSHIP OF MOUNT HOLLY; TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY; KATHLEEN HOFFMAN; and JULES THIESSEN

STEINHARDT & FADER, LLC

By: LO

~~~~~ LI,~ JR~ ., E~ SQ~ UIRE

1010 Km s Highway South, Building 2

Cherry Hill, NJ 08034

Phone: (856)853-5530

Email: lcappelli@florioperrucci.com

ALEY, 931 HaddOI 'Avenue Collingswood, NJ 08108-2111 Phone: (856)854-1515 Email: jmaley(iD.maleyassociates.com

Case 1:08-cv-02584-NLH-JS Document 215 Filed 11/15/13 Page 5 of 6 PageID: 6428

For the Defendant: KEATING URBAN PARTNERS, L.L.C.

BALLARD SPAHR LLP

l1iA .Q ') ., By:ii~.. kj"

.'

Y

~lj'"

J/ -"I','.) -/t''? ,:; >.:..-J_ r'.::~_ -- _

vVILLIAM J D.iSANTIS, ESQUIRE

210 Lake Drive East, Suite 200

Cherry Hill, NJ 08002-1163

Phone: (856)761-3400

Email: desantisw@ballardspahr.com

For the Defendant: TRIAD ASSOCIATES, INC.,

BY:~"""""''''''--''''----=--l~-IL-j'''9--'=,w..6)-,,---=-',",--_ _ GAETANO MERCOG ANO, ESQUIRE Sentry Office Plaza, Sui 01 216 Haddon Avenue Westmont, NJ 08108 Phone: (856)869-5600 Email: guy.mercogliano@sweenevfirm.com
ORDER
The Court having reviewed the Stipulation of Dismissal with prejudice set forth above
and the terms and conditions of the Settlement Agreement, all attached exhibits, and the
Addendum to the Settlement Agreement executed by the Parties attached to this Order as Exhibit
"A" and incorporated in this Order as if fully set forth herein; accordingly,
IT IS ORDERED that:
1. This matter is hereby DISMISSED with prejudice;
2. The dismissal of this matter is expressly conditioned upon the telms and conditions of
the Parties' executed Settlement Agreement attached to and incorporated in this Order;
3. The Court shall retain jurisdiction of this matter for a period of six (6) years until
December 31, 2019 for the purposes of taking any action needed to enforce the terms of the
attached Settlement Agreement, which is a part of this Order;

 
 Case 1:08-cv-02584-NLH-JS Document 215 Filed 11/15/13 Page 5 of 6 PageID: 6428

For the Defendant: KEATING URBAN PARTNERS, L.L.C.

BALLARD SPAHR LLP

l1iA .Q ') ., By:ii~.. kj"

.'

Y

~lj'"

J/ -"I','.) -/t''? ,:; >.:..-J_ r'.::~_ -- _

vVILLIAM J D.iSANTIS, ESQUIRE

210 Lake Drive East, Suite 200

Cherry Hill, NJ 08002-1163

Phone: (856)761-3400

Email: desantisw@ballardspahr.com

For the Defendant: TRIAD ASSOCIATES, INC.,

BY:~"""""''''''--''''----=--l~-IL-j'''9--'=,w..6)-,,---=-',",--_ _ GAETANO MERCOG ANO, ESQUIRE Sentry Office Plaza, Sui 01 216 Haddon Avenue Westmont, NJ 08108 Phone: (856)869-5600 Email: guy.mercogliano@sweenevfirm.com
ORDER
The Court having reviewed the Stipulation of Dismissal with prejudice set forth above
and the terms and conditions of the Settlement Agreement, all attached exhibits, and the
Addendum to the Settlement Agreement executed by the Parties attached to this Order as Exhibit
"A" and incorporated in this Order as if fully set forth herein; accordingly,
IT IS ORDERED that:
1. This matter is hereby DISMISSED with prejudice;
2. The dismissal of this matter is expressly conditioned upon the telms and conditions of
the Parties' executed Settlement Agreement attached to and incorporated in this Order;
3. The Court shall retain jurisdiction of this matter for a period of six (6) years until
December 31, 2019 for the purposes of taking any action needed to enforce the terms of the
attached Settlement Agreement, which is a part of this Order;

Case 1:08-cv-02584-NLH-JS Document 215 Filed 11/15/13 Page 6 of 6 PageID: 6429

4. Any Party may apply to the Court, upon demonstrating good cause, to extend the time

period that the Court retains jurisdiction for the purpose of enforcement of the attached

Settlement Agreement; and

5. Each Party is to bear its own costs, including attorney's fees, as provided for in this

Settlement Agreement. Dated:

;J~ L I~Llh~
BON. NOEL L. BILLMAN UNITED STATES DISTRICT JUDGE

 
 Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 1 of 98 PageID: 6430
MT. HOLLY GARRDHEEOSNLOSLLYCVI,ITESNIETGZTEALTNLILT.S,EICIGMNaAEsAeTNCNITOToAIN.Ol:GOINNRS,E-ITcNEHvCM-E0.,E2ME5N8TAT4TA-NTLLEVHR.-JTOSOFWNSHJ1> OF MT. tdPKchWaaeohinsefsroadeaptseSnhtohtnideihrnisitaeanxtgnttlgTeeiTtStoUrsmohomun.nirwiesPbtwneiSnlSastait2snteirAhhh0nteetP3igtelaripe,traefn,emliro1sneMat,6efmnad0ntMofedhe0tturreenAoensrAtTs,tugdsarLoHncresaewh.ftoLtietHhnnlmS.l1eesCyot3hder,l"0.eni,l,N1Ppyetba,t,aJ(y,WrTtaP0PhtaeriNe8ehniensa0ides"tnld6aSw"sF,a0dyeamaoeJtln(nrtvel"odelpdraeTnsshnmgtgKeoiieayGaweetn,nharmlnePoeittrmsiAvuAinhPcenigilagti1peaRlcra9dl"iieyron1p)eea;lt0aaimid3lsaTfs,ofbcer(asmVioni",la"irKtietapJn"dyts>e)oiemAacaltrihaasotresintitmsnmsysidoo.gp,tr"ancee"adN,irJ)namec,wJytrcear,i0iotsessh8w,dlol3hIieatt6fnencho0trctheia.cav(e,idnon"eadlETalalryeNffdretcfiesdteetahsrwricdevetdais"eJtevs)lefye2iraa3nsntDieendTydaht,ee,
RECITALS rpTAitgonchw·tsitmosnnsmuh,ntWiIdpntoeHcor.t,fEhthceMRet TEoaJluoeAndvwSt.enr,THastolhhowielFlpyanP'sisorlhaRbHiipnjeoetdociueftsffviisnMneghlgota.tpAovHmectohtef,leinll4yetT2,dPoeUlawtann.anS,lAs..C,ahclC.iltpeia§og'ssni3enp6cgNr0aoo4pdp.,tioisao1scnna:r0dilem8;dto-icnMavac-tt.0qio2uHn5ior8eall4nytd-hNGevLiairoHrGdla-eaJtnirSods,neCangoistafiihztnhoesnmetisrtehsine aGrrbeeldosouevblveatee;lldaoSWnpeidnmtHtldeeEinmvRtiesEiinnoAtnMRSs oe,isnutohntelthueTHtiooconowllmynwsmGihthuaiprntdihoteeyfn,MsPslaiaogniunndnitftitfihcHfesaonTilntloyccwlournsedtscishonitggopnatiahzsseeeastTtwtlohehwamotneltesnh,hteiaoppnfrdaotshtdreaeasclwiittrehiegdosallettioi,toiganennardttieeofrdneeirnlehatnaoycsseadin
AKindecdalutiitdnioignnWgaU,lHrbbRuEaetnRdnePEovatAerlltSionm,petriethsre,ed(Lcteto.oLrl,ml.eCasc.Tt,oiovafswetlhwnyes,ehS"lliRepatetsoldeaefmnvMeeAolnodutpdnAetitrgiHorAenoeglamlrlyeeReAnmetmdeaenelvsntsoed"leo)id;npcaeRonrrdeApdogervraeeteelomspeaenrGtAlwogbitraheleamRneesnotlwutiitohn, GeSlcxboeaprtrmtedtlhdmeeomnitussieneoWcniutPotysHmlAaaEaimngsnRdrutaeEinretwleAimstshySuedoln,ecltetsothiintnglheotneiaTnaeobtuoneveewtdeetttnrreoaasrsilhnblcRiteoopreematpdbhvmleeeaivltcuiaeReenllvmeoieptdpyesaem,nrvtthtieenoalGnoctftplrtuiooehtdu•fei·isptnAhMigPnegoleraMtunheinneesotumtuibrfHneiefntnssog,ttlHslaiytonnhtoltdfaleaytarmterlhGlesiaotlmatyworbadofiyfentofnheirrnsenergtsseMeihpmdraoilenaleunlcgmntebstbime;neHatmeronosnodlttolrhyhefisothuesing HPolfoasmieneetiskfiftWnsogatHhgtoerEeeRTexoEteowrAcnwiSssa,heitivhpietesitnTrhieoagicwhrctnososbrthodjeiapecnntctihfoeoenrrwsectie:ttOohthrtetheheaiRsgRerSedeeedetsvtelveteolemoleopenpmntmteerAnentigntPrteoPlaeltnmahniaesnganSta;dientsttlrteaPmnlseafinentrtiAtfhfgesriearenGmdaerthdnetenins lieu

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 2 of 98 PageID: 6431

LITIGCAITMTIIZTO.ENHNOSINLISNLTEYHAT,ECfELTMTEIOAAMNTLE,.T,NIECNTRaCsAO.e,GFNERoTM.EAT1E:.LM0H8VEO-.NcLTvTLO-Y0RW2E5GNS8AS4O-HRLNDIVLPHEI~NONJGFSS
nahneawdverp,ertsaopWipelecpHritfriioEecpsRaeltElroytAiebesSex,tpaotedhddbeieetdTibnotugowiltntthhsepehuritrepasdxureearvcnaeottlegotonpbimatzhseeeesntWttohaeetnhsdfetinRtThaaoennwrcecinboaslcyhaiiasmpllRpomaewcoditrenetvgheqalnutoeiprcwemkslroeyeln;svtiidnPeglnantthiaealn,ldictoiagmlalotmiwoenirncPwgiaaigllle2
renefecfceoecgstnsuaiazrWteyesHttohthEisaBRtAoEintgAdmreSaaed,ymdthnieteenioetTdnaoantwlodsnacusdomhonispptitonhBufaeomsnwrodenivteOhiyerwtdhtoieendcaWonrmceeecspsotlmeRintameOnaecrcnodqdceuaaritssitooiRtniaeoscdnacenoovdmeflnfpoielnpicdmsehssesttnahhtraeyPtselipatrgnmoo,paaaeylnsrd;tbiees to Rroatsineonwneemedltdtilnohgaeeateihvahrgnsrbeetrim,elnoeiorrWaegrsmphnmr-maedloHseelsolentaEpnedhnngetgRa,tdtcwehtEatAdichntvAthroodrveeeanSaitwnohd;p,hsloieaataatmhrrittceotieittoenehinsonpssiosnsaattmrsnhAotpdieuwfeglrtasreurriiiteebagnhaceylchtelmitkytfhiisvfnenesaeonutgeTdtwinnrnodespdleeweteahtddrtsynihgstmsuhifeshopleeairotSnpwthFnhetaaosttfitubtofrhlpyierMetHrmtetothhoovereeeuurinpoimsnrtsruitaenAsismnvHgogrdieooerAfievlsuaalceiiysgnddtmldreyuaieennnaevdntldmtsaithcsrpoteemiooornfneWiutrtstvhsresfiaeesoeoocsodruttMtlhstsvRthelhoefyerabeuanribanrnrcegetsyomcnraHcelleaaaaeeofniisdimnlodtlsiytfsn,oatglGpehlanueahntr1odehs·dmruoedeamdenindset s

ltiihnteitgerTaetoisowtnWannosdHhriErtpheRaloatEtfeeAMdnStoem,uriabnntyttgeHerisnnottlieo!syriti,nhnaegnthdSineeitatorltllreteohmstepheeeSncretttDiAtvleeegfmreienneetdnmeatrneeAnststgtsrr.weeeictmohgoenunittz,aeadltlmhapistasrsiteoietntsleoimnfcellinuatbdiiislnitgiynthaitses

Plaintiffs, best
to this

WITNESSETH

hIf.oe1rt·theDhbeeyhfdeaiNnerceifkOtiiinnnWoo,intwi,ason.lTnedsHdWgogEehitvdhRee,neEnracFntgaodOpotoiRihtndaeEtlmeia,znnedfdiodninr itvganhanitlstoduhSaibisbneelcScelteeoiotgcntnaolselinlmdIyseiwedrbnaheottriiucaoAnhtnidgoaronhere,feemrtathehsebeenyfmot,r,leutlthochteeuweiapsPlw:tacoraotrnivdedessnahsanuendrftelsitpcoahineradnagscraeyegserobeaeefslmowfowehlnliocthshwavsseie:st

1.1 contracting

withAdthdeitTioonwalnsRheidpetvoebloupiledr.44Thheom"Aesd,dtiwtioenntayl

Redeveloper" of which will

is be

the t·edeveloper Replacement Homes.

ttwheenatgyreo1ef.m2wehnitchbAewdtwdilielteibonentaRhleeRpTeloadcweevnmeslheonippteHarnAodmgtrheesee.mAedndti.tioTnhael "RAedddeviteiolonpaelrRtoedbeuvieldlofpoerrtyA-fgorueremhoemnte"s,is

caognresetrmuce1tni.3ot nbeotwfAReemenpelntahdceeedmToeRwnetndHsehvoiemploeapsn.edr KAegaretienmg ewnht.icThhienc"lAudmeesnKdeedatiRnegd'sevoeblloigpaetrioAngsrereelmateendt"toisthtehe

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 3 of 98 PageID: 6432

LITIGCAITMTIITZO.ENHNOSINLISNLTEYHAT,ETCELTMTEIOAAMNTLET.,,NIECNTRaCsAO.e,GFNERoTME. ATEI:.LM0H8VE-Oc.NvLTT-LO02RYW5EG8NS4ASO-NRHLLDIVPHEI.NON.JGSFS

l)age 3

TownshIip.4expeActnstaicgipivaetendPMlaoinvtei-fifn'sDRaetpe.lacTehmee"nAtnUtinciitpwatielldbMe oavvae-ilianbDleaftoe"r

is the date move-in.

the

TMoowvne-sihn1ip.D5sahtael."lApnrotivciidpeatteodaMll oRveep-ilnacNemoteincet.GTrohuep"APlnatiinctiipffaste6d0Mdaoyvse-ininaNdvoatniccee"oisf

the the

notice the "Anticipated

Unit

1.6 Available Date. is available for move-in.

The "Available Date"

is

the date a given

Plaintiff's Replacement

1.7 Double Move Double Move Plaintiff elects the Double Move Plaintiff is

ItIionvtimenrgaimkine PatoaTytmehmeenTptoosr.warnAysh"RiDpeopaulsabcdleeemsMcernoibtveeHdoIniuntseeSr.iemctiPoany5m.9endtu"riisnga

payment the time

a

TNApreeeorqmroriumcopihdroaeonrdb,a1erRH.tyf8ooiatraRrveraieBsctp,harDloeJtaeoooicryuketRhbmcs,eeleeeiWprSnMltctaaaucHnorreldvorimaneeungesCPt,nelrsGtRauiUazoanr,rbtnedieEifetrdfsltnsied.saTfair"niHeDgEeoaadocrmvuh,iabeeniasvllneaSaadberMnrlcdeiAtao,inorvnaegnenasemdi5Pld.eleVLalyiueinnirstRaiT.fLufetsoTmh"phpAeaeozrlcd.rvaeNatrthryaaeoinzlsRcseayernpPedLllgaaoaNciprnedoetmiizefnlef(gsnOBttwerhHtlheitzroo,aunmPs)eea,sdyrfoober a

Shoemttleemine1nt.h9teAGgarGerdeamerndesennnt.seiTHghhoebmoaerd.hdoAroeds"sGooaffrMdeeaocnuhsntHPHloamoinlelty"i,fffNo'sreGwaagJridevreesnnesyP,HlaaosirnnoetfiftifhsiesinetchflfauetdcPetidlvaeiinndtEaitfxefhsoibefxittihsAitsi.ng

1.10 Gardens Township acqt1ires title

Home Closing. and possession

A "Gardens Home Closing" of a Gardens Home.

is

the

closing

at

which

the

wOtaamhnmicetodthoorRtutbtgoehneawpetrglaoIa3emr.cf(11dstoe1,h)mrw2tedg0ehaaG1nitGgce3tahedaGrirdnntdrpheooertanthuinetoseps,rPHafHPtloonaololidmalOnmo/iotenwcierfttMifoiMpnfbmfagoesosrartcrtGkgtad3geatau1asegre,ggdem2eoei.0inornsi1tnseAet3tshrhH:ee"tlsoyolGtbamr.taamewelradofhCnereitcenclgoeshsa,srgHitaenhenmogaylmtoalaeaiPennsnlsidManpiagnaaonltyrloyitmfngcliha'cestgahneGresatgs"ta.oemrlrsdoAcoer!shbnratarsrgregfagHfaigveeioelrseire(nnnasnge)ccPceatilrosdtauitcicnhhnooteeglimrlftaeffiptiimi·nelsoyr,ematthlohaeft

liaRkanrnnaceodnluewcodiontcehccaeatu1shsr.pe1cRMi2euaedrordreueebannGvyttienaaloHrotdrsohpceflemholnyorsnemoonGNlrte.aterhAridegrrerehensnabi,sdoseaerthhscnotatdistooe.dhnfi.aTnos"heGfbedReaGeirennddaertethdnhveeseenlRNsosuepeNbdmigjeeeehvicgnbethtlooobArpohfrmrotehhoaeiosdnwo"tldhiPtisiiilcgsahtahnste,iiwtoeuaanxarscetaeaefndopdortwmfothiMeftahrwtltiy.nhitHivtcdhoahoeclleayPsWnlTtaneioolsnatwtntidnffssahnidp

agreed

I. I3 Immediate Sale Plaintiffs. to a one time financial payment as

"Immediate described in

Sale Plaintiffs" Section 3.

are

those

Plaintiffs

who

have

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 4 of 98 PageID: 6433

LITIGCAITMTIIZTO.ENHNOSINLISNLTEYHAT,ETCELTMTEIOAAMNTLET.,,NIECNTRaCAsO.e,GINE<RoTME. ATEI:.LM0H8VE-Oc.NvLTT-LO0YR2W5EG8NS4ASO-NHILWLIVPHEINO-NJGSFS Page 4
RLVMJEAaeoicramonshorenceelcmeevshCnnaoaPtaerr,1olrMyThRi.ta1tooRuee,4ubynroL,nanobur,Haze,iLl,lrsidAntpiEsodLlpn,lsiioogtAvDaapleniytradeleotgzTuVaco,maoheRlRfroarrEPoea,redbl,lAsVamreC-iiniMcnigchraatueaaiofAneGrrNflztesiroe,eni.o,nxJoczMA"oehaIs(nlonalBsa,e,eidnuczGida,rWRvegiCiiaRooditlarasouWsgromaBldeoalneresrC,PortTLhoLohlaoe,kaeoirnnmJsotrt,,ouenibfyiaSsafel)nc<aor,Wden;s,"P,tSNrSohaDithsgyaraeonehlrallirctniRil,osynadutEghSWLtBs,hyitonReaaCApgatroeeltthlebhrzvaoiteeazom(frnrBntCeA.b,eTzrenlBu,irtggzrsNeae,a,ronlrnMWo,e)i,lcFaNaeNOtlntiaCieodrvetvraaiimezHagCs,laTo,erPnwuo,EezbHesd,atlraalEro,rt,lreiidso,af iBtMnhrieootivoGaelkasdrP,do1lEaeu.inIlbni5sldteiatfhmfEasIotcnwvhiisteehisvaoo.lawhrDnraievoadeu, bLoalgrueriwseMeiLldolovbtpeoeePzmp,luaoarivncnehdtiaafNfssseo.sdro"mobInnyaintatihsaHelpaTDrrarooicwsut.ibnclsSaehbeiMlcpet,iotoonvnaeam5nPoeclalotyhinnetPtraiefiednfxsrsi"ostateAirrnemrgotschhhrooeosml,eaeRtDiniltoogacutabotleed in

Group related

Pt1ol.aImi6notibf-iflOiatcsyc.tuopaapnpcryopNreiaetdesn. u"OmcbceurpoafnbceydNroeoemdss"aanrdc

bthaethtr·oeqoumirseamnedntasnytosrpeeaccihalRreeqpulaicreemmeenntts

1.17 Parties. "Parties" is def1ned in the Recitals ofthis Settlement Agreement.

prior

to

1.18 Phase I Homes. "Phase the other homes, in accordance

I Homes" are four with the terms set

Replacement Homes out in Section 4.

to

be

constructed

granted

1.19 Phase I Homes Plaintiffs. a Phase I Home in exchange for

"Phase l Homes Plaintiffs" are their current Gardens Homes as

those Plaintins who described in Section

will 4.

be

1.20 Plaintiffs. Citizens in Action. A list

"Plaintiffs" of Plainti1fs

include Individual Plaintiffs is attached in Exhibit A.

and

Mount

Holly

Gm·dens

FRReeebddmeevvaeerlly1oo.2pp11me5r,e2An0tgR0rAe6edreaeemsaveaebnmleott,epwtnehedreeeAndMg,KraaeesneatdemtirtnehRgneetUsdA.ermbv"aeRenlneoddPpeeaedvrrtenRAleoegrpdrseeeaevrnmeAdleogtnprheteeerfomTAroegtwnhrteenses"Wmhiineepncsotltu.fRdMaenotchuoenctAasHddoiltliyonoafl

oAfreMa oausn1dt.e2Hf2ionleldyRiienndtFehveeberlWoupaermsyteR2n0at 0nA5croeacana.ds"rRReeveddiseeevvdeellooonppSmmeeepnntttemAPlrbaenear,"a1si8s,ot2rhi0eg0iWn8.aelslyt

Rancocas Redevelopment adopted by the Township
-

Plan,

1.23 adopted

bRy etdheevTeolowpnmshenipt ,Palsanr.ev"iRseeddeinveSleopptmemenbterP,la2n0"08is.

the

West

Rancocas

Redevelopment

Double

1.24 Move

Remaining Double Move Plaintiffs. Plaintiffs who are not Initial Double

M"Roevme aPilnaiinngtifDfso,unbalme MelyovReuPthlaAinltviaffrse"zaarnedthNooseel

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 5 of 98 PageID: 6434

LITIGCAITMTIIZTOE. NHNOSINLISNLTEYHAT,ETCELTMTEIOAAMNTLET.,,NIECNTRaCsAO.e,GFNERoTME. AT1E:.LM0H8VE-O.cNvLTT-LO0RY2W5EG8NS4AOS-NRHLLDIVPHEINO-NJGSFS PageS
Ortiz, Wanda Cruz, Nancy Lopez (Beltran), Joyce Starling, Robert Tigar, and Angel Vera. AHLAPnolirapogpipceenohlztil,oVfy,fRtIseaA.er2aabRn5n,eadocCdaAhDrRiGraogoreouulcipnbehelzzloaeM,a,clJMeReaemzeisot,seavWiCnceBtaailPrGrsolRlooraooonsiknm,uLstpa,ieonfrSfPtdousal,,fanLfJnitoenooa,otysminNcfafaeenasl.nydSWc"tRBaRyriruegelLtaiphhnotltrg.apAi,zcelezRvCm(aorBrebueneezzrl,t,ttrGWNaTrnoiaog)neu,aldprNa,OPoFCrrltlmariazuivna,zint,PaifEeHfTdslioar"dorbariainAsrEc,,rlcoJuMhacdemhaevorelaS,esrinRrnPiegaeo,ylTtentLoeaMubrl,iadsorov, e
sethextactfh(t)ahl"nethgITei.no2f6woSrneacshtRRiiopeenppal4lgaa.crceeeemmseetnnottbHGuoirlomdueap.nPAdlam"iRnaektipefflaa'svceGamialarebdneltenHsfooHrmoeema"cehispRtuherespulpaaecnretmmtoaenntehtneGttreroerumpplsacPaelnmadinecntoitfnfhdionituisoens

which

1.27 Replacement a Replacement Group

Home Closing. The "Replacement Home Plaintiffobtains title and possession of a

Closing" is the closing Replacement Home.

at

IMeselnoulqet~aouecjnvriteivesmcwattIlhonetPiIotncte.aa2htrayk8itnmmoewyeiatlPhnlliRgaatmfrtyepieinmpRutaaalrteaentesipcncuroelteanaamnicsmnateeromRtntehoutqeeenuSpHntcilte,oraaceGsmcstudeeireobmooonjuMerefpc5nnaot.teP9rDtGcto.lg2eaora.saioungsnubateyiplr.efylfAPi'Mmsbla"yGoiRitvnaSaeettreiipdocfPleftnai'lnsoscaseniRonmHt4ethieop.te1nmrlr5awtwce.4HheisMmoooemreoeinlrm4eett.gc1MpHat5osgoo.s5etemro,td(geaumainnnigdnaleekS"tsleehesciesasstthiaDtoaehmnnoePyou4plub.aDrn1liiem8ton)utMa,ibfroflyeve

1.29 Settlement Agreement. "Settlement Agreement" is this settlement agreement.

RtaBiennoerdmamantmsredirzaaobnk,C1ede.Frs3aucl0baazolvv,neiaRdoitSiloetaaiibbnnoreedlgncetlsaaeMiRonGMeafooprtolwnhleavzinnsceaeeelSPemrTselzahoet,itnibnlCpettaimar1oU,rTlefnCosnti.shhtts"eaALSirironlgiintceruegeuxfMelrfecrmoeha,MneeaJntnaoWtgGm,veenaielrafssPdoomlerPnane,otilhsntyatetneHiiRfdrrfo,esGmLHy"eaneiaorpsardnpledueaonnotlhstyWioaltlansrlDediogRmePhAoftlee.dnasnrianidigAtnaiunfraeftosczcTc,whooJoherw,dsonsaSiwsncahcaniiletplotrsobeumatnihladedins

do

not

1.31 own

GarTdeennasnHt oPmlaeins.tiTffhs.ey"TaercnaDntagPmlaainr tVifficse"natree,

APllaainndtiifafsWwahrothecnu,rraenndtlyShreeniltaoWr raernthteedn.and

1.32 Township has

The Reinvestment Fund. chosen as the Additional

"The Reinvestment Redeveloper.

Fund"

or

"TRF"

is

the

redeveloper

the

HfthrooemmGeathti·sed!.eaD3nv3osauiNlbaelbTeilgeeMhm. bopovorehraoProyldaRintheteipflfTa'scoeGwmanersdnhteipnHsmoHuasokeme.seAabve"aTfiolearmbelptehoetroaDaryoDuRboeluepbllMaecoeMvmeoevPnetlaPHilnoatuiinfsfte'is"trRiwsehapolhaomcmeomeveeisnnt

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 6 of 98 PageID: 6435

LITIGCAITMTIIZTOE. NHNOSJNLJSNLTEYHTA,ETCELTMTEIOAAMNTLE.I,,N'IECNTRaCAsO.e,GFNEUoTME. AT1E:.LM0H8VE-O.cNvLTT-LO0RY2W5EG8NS4AOS-NHRLDLIVPHEINON-JGFSS Pagc6

2.

Overview of the Settlement Terms. as follows:

The structure and terms of this Settlement Agreement are

aoTRLSgfoyeaaroldMivrnnaeitsmaas.tr-edMDH2Aso.eoa.1Tflr.PleeSoyannir,gdmoraeae,Monsntw-n,taBasshrlRu.ioa,aaonrsgwdsCAoeearEamsrsos,exeacesarhpucyNnolucado,htiRr.RniLaotxiiJribtfel:afel0osirnBa8ftoins-nrctEovaMpBoss-taku0atr.sr2tEtegiH5axeos8seoos4clEtflo-udyxNtHeterGhLicexiTHuansrtor-orSdyJnifeexSent,SEtsoslisehfmCatmaaEsovitetseneiEntzsatxeo,dtnAeeifCscsogmuWhirfntriersiVieilsAsxlmtieiivcadneftmiiaeonownrtn.BRiB,tthahoIrernbonpceoeE.rrk,stesss,ejt,,uatDdEtaTeilofacrlvieoaos.irfhnaTealRsolRawTocNdilnmariasxamiehdmorieonopss,,,

2.2. The remaining Township ofMt. Holly, et al., Settlement Agreement, which

Plaintiffs in Mt. Holly Gardens Citizens Case No. I :08-cv-02584-NLH-JS agree provides for:

in to

Action, Inc., et al the terms of this

v.

2.2.1. One-time payment for the seven location outside of the Gardens, as

Individual Plaintifls who provided in Section 3.

intend

to

relocate

to

a

2.2.2.piInnrodRSvieevicpdidtleiauodcanelinm4P,Selasneoictnmtthiiooefnfuoss5fiw.nwhgholooimncatemtneddaywtobietrhepimnroatvihniediGendatrhtdeemernepsdoenravereiyglohrpbeeopdrlhaccooeommd mefnoutrnhtihtoyeu,stawinsegpn, rtaoysvided

2.2.3. Resolution of claims of three Citizens in Action, as provided

tenants, three in Section 6.

former

homeowners,

and

Mt.

Holly

2.3. Section 7 contains provisions Gardens Homes and Gardens Neighborhood.

regarding

temporary

improvements

to

the

current

2.4. event that it Plaintiffs to

wbeacSitoemfcoteirosonirm8mpsoreavtcsetificonarttobhleRt,eeirpnmlcasocnerevmgeeannridteinHntg,oomthreeusnrdefuespaeseticobtlicevhefaoonrbgaleinsgyaintoiocfnitrhsceuomRfteshptealnapccaeermst.ieesntinGtrhoeup

2.5. Replacement

Section 9 Homes are

specifies the respective obligations of the not built within the time frames specified

parties in the event the in this Settlement Agreement.

2.6. dismissal of petition.

Section I0 contains provisions related to the underlying District Court litigation and

execution the related

of this Settlement Agreement United States Supreme Court

and

2.1. Section II contains provisions related to breach, default and remedies. rSperesototclleevdmeu2edr.nei8sst.pAfuotgrersIreneeisnmtohfleoevnrimutnnagalnlisldkyuectlbhhyeefdeopvisraeeprnturitteeetsshsoaa,rtrwteidnhiugsenprtaeuobitneltehstehtooefcurcpreuatshrrotewlirveisepthratohgrceereemsdepuetirocnetfsmotorsamektthaeefloleyirvmt,ehSpryielnecgmtsoieoeocnndtti1aof2taniiocth1no2neo. tffafiotnhriststo

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 7 of 98 PageID: 6436

LITIGCAITTIIZOENNSINISNTEHTAETCLTMEIOAMNlET, NEINTRCAO.,GFERTMEATE.LMHVEO.NLTTLORYWEGNSAOSRHLOVIPEINONGFS MT. HOLLY, ET AL., Case No.1 :08-cv-02584-NLH-.JS Page7
2.9. Section 13 contains provisions related to general and mutual releases. 2.1 0. Section 14 contains provisions related to third party rights.
2.11. Section 15 contains provisions related to notice.
2. I2. Section 16 contains additional miscellaneous provisions. 3. One-Time Ji'inancinl Payments To Immediate Sale Plaintiffs. BsDPPillegoaarirninnnoititntiicfhtgfefy.:3'S>Co.C"1faw)h.g.tahhlTemios.hbPheSesaleraevtsite;nlIetMmaimfgmfaersteenteidtMediAaHattgkoeoriwneSsegeeamllllleI;emtnhPLmteleaiaoerinnndGdtiiCaafrtfareesdlcheaSeonriauevslnienHa;sgooLmffoiolnlGelielaoaantwrsidmBsse:oeunorsfgEnionHsatsaoasndtmcepeiearoT.al fcoTptrEiarhcleyeamsmrb;eilrePeanahatrNysefltil(exis"rsoeImvntShe;imennGgedelIdaenoittdaerogtinevoe;ifSdaatuannhladdeel

aIdaTSsEtmliseioesxmgssmotwhinctesilreentbeiiadfdnbsmiinithcneac(3eldaitIuCenp.ne2),dti'.cns.SeaiCAaTnaailaonlpdhgennp/perAsoytaeraserarnmeeycaiamddtmcsoniaaetoeTudemmdnnonneatoattnvf6gluoaaa.laS2enlnmfsuascttoP.sleolePtaTafuooilyitnhfmanhfmoteiRcisGsnrsleettupaoniSltMdtrootateladeycrsobtleaatuyalnsmatbeninusTlomotdempnoHneHuttweoohnfrtoBocmnetaelrheisrAlearyynahtscghrsei,hepeerdGfespiatITIpaeapmsmmremyo,rdcaimmmecetIgMinemneeeevtdsdonsem)bii,vtaaPcsaeiiathtnlnrsdeeataoegitildplaSSomliteeraaCebsurnlluoteeeSepiiosneyao$PPtsfs'ln6tlsl,e,hraa9eiiaiaf1tanslntenho,nttte0ledaicidifsf0ctaf/Tfih0tcsogaiaeeo.oranardnmtnnediaDTdobsanbnchaiesTteno.mitnPesesEfealntdaooxsfgairvinhettnaotehsisitmfbr,f,faPi:imo"ntlsal>luuatoB.stsinivaetnTutciptmahnfihanoofegerfdrsfadsochtttn(oe(ahhaa2lesleeysls)tACPllgaorisenietnimgff3eso.n'3nt..GthaerdTeIimmnsmineHgd.oimaTtheeseScaTaloenwPnblseahinisptcihfsfehsd'aulGlleadtradkweenitsahlilHnonme4c5eessdssaaoyrysthosatftepCtshleotsosinipggrneoipnnagrtehoeffiIxtmhiamsnedSdeistacttlheeemdSeuanlleet

AGSagalrredeeePmnlsa3ei.nPn4trt..iofpfse'rCtGileoassr,idnaegtntasPchrHoeocdemdaewss·Eeisxs.hsiTebthitefoBpr,trhtohcieendteuthrrmeessTaoonwfdwntshehircimph'ssarfCeoorinntthcroearcpptouorrafctheSadasleienotFofotrthhiMes oSIumentmttleeHmdoieallntyet

3.4.1. The sale of the home shall be treated as an arms-length Township buyer and Immediate Sale Plaintiff seller, with rights and obligations pursuant to applicable New Jersey law.

transaction each Party

between assuming

the all

3.4.2. The Township buyer shall provide title repo1ts on the homes at its expense.

3.4.3. The Plaintiffs shall be required to shall be responsible for clearing any

provide marketable title at their expense; Plaintiffs judgments, liens, or claims against title and shall

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 8 of 98 PageID: 6437

i'"

:U:

1,

SETTLEMENT AGRimMgNT RESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No. 1:08-cv-02584-NLH-JS Page 8
satisfy the same at or before closing.

3.4.4. The houses condition.

shall

be

sold

"as

is"

with

no

assurances

or

guarantees

regarding

their

3.4.5.paAymt celnotsiinncgluscdhinegduslaeldesapt rTicoewpnesrhHipUbDuilsdtaintegm, tehnet,Troewloncashtiiopnschoaslltst,aaknedtidtlaemaangdeps.rovide

Gtfphoaaeryrdmtpheaeenrnst3pites.Ru5srse.chdmhaeaulvlstReeuclaeooollnplifynsmttqhieruteeuniilsttreehPahmltsohaeemneneetfoausrc,lblhiytrsaeomliotImhmoceapumrtlnieeotfmrdnooiewmaantsetesadaitsniStotyoaannlt.epchoeet,PseelanantiIidnmatlimdfoafesmrdiacoagotfenestAS.emlaUllpepRloaPentlemadrieancitcnielfiaifnpismgt aossCfrcletaohlimaemtpepsde.anytsTmoahteietnohstene, 4. Replacement Housing. Rhhaoevmpeleacsche(4om''.sR1ee.ennpttloGacArreoegmmurpeeaeniPnmtlaHieninnotttmhitfoeefssGP"ar)arorcavdsieldipnseetse,rRdmreeiapfnnelaerSrcneeetcdmtrietoeopnnlhtaeIcH.re2eom5uaesasnibnRtoghev.opeT.ulahscieneTmgoefwonrtnGtshhreiopIunpsdhiPavlliladibnuutaiifllfd'P>l.tawi'Tne'tnhitfeyfsse who tRTRHhoeeeodwdmSeenevevssteeht,ll4liooeip.npmp2ee.waerrcnilcaptlnouACcdrradsgouKuarnsnaeesencetaremtttuiotnwecognbtiit.tetohh. nebTtuhotheieeflrtsmFteefiosrrPmusothrsfaF,RtsohceeueopJrnlTadRRocieetewippmonllnaaescscnh,eetimmapHn'eesdonnmRtst teelHaidsnoo,edmmvraeeeerfldsseosrps(rhPseeearhdltaAltfsoobgererateIshbeJuPm~bieheleptalnlosbtaewsycIewtinhmRieetethnhpAtitlshdaHecdSoeieAtmmciodteeindonsai)nttl.iooTnfhael

oahGtcRtcThohdnooooeroedlmnonPmpywidus4tlheeiainia4paostscssfist.noeoPhhed4oaTmrnloiea.lpIfsmh3risen,aehP.echnetmaorliatms4fainusf.baHi4.dis'nieP>sninCothdens.hiiimmltoofgnaPeaifnmnsgecusnhuesstmdaeanSRtesrsaIasideueetrnossscdpdcThdhItfetlswIia2aiaRfoIaolslici0lnlFnlnseemlhcetbam4Doabodaent.lf5eoenxedlSibnrisvnbmbtiuiiatehnusxeiSGlutclmiltobteloemlertpuceawieonnotmdlxnutioo.neiiotpermwfhRneantr1hPulleteily21enlmpeaP.rlo1isRatenapha9ofrmtcehimti.ffeRpnsaaf2Pml.eseei'Sa>h8enrpescessailinaehcn.satastmteeogcPsiHmodeaIehRamfnennaoenfedsstmsoeiphe"n.HnflleAaePitaIstlomdhlcdhHsmbeehdaiiiotymnnsaeieSmtelcsdiAelSeloenIfutecbdnlotstdcloldyareteHinsilinmtttohsohohiRinaaoeeimsfelcsnntladr1ceatSoecoe.smlA2emofvrR5rt4idngetean.laeslrqieihToeidnnmumsopeecihtinmmuevereeoegrmeneew"dofltsnRottit.othAhtotpeo,hPefeepgabrhr8pltrnb.uhaa2erdaiocesT4elleevdmahptmineerJ4derlocen4emevsnthaistoda, felld

AEfgfreecetmua4et.ne4t.S" ewttilRtehmedtheenevteAAlodgpdreietrieomAngeanrletR.emTedheeenvtTesloAowpnendrshRtoiepbdwueviilledlleotwxpemecneutnytet RPanelapn"lAaAcdemdmieteniondntmaHleonRmtseedRseevinqeultoihrpreeeder

To phases

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 9 of 98 PageID: 6438
":f.<..
SE'ITLEMENT AGREEMI<:NT RESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No. I :08-cv-02584-NLH-JS J)agc 9
aRRmSsnacia"HclnpneoAegeoteecoeedctpnrdnatmorcmeellsess,itraeseivuihfepessocmmsiernesatoeetreelerdeedmro"asenynanneAnpnttettidttedntomtnmowweAdwRtaaSreieiagitnmiHnteethimnnhrhnydtceodettteeottPenomteiohhnvhomlddtetedaeenenhhnesletRteitoAaehn4,sewrunepretr.odSm.6amndye·rdpRaederIsasiagpfptveteAntidirorlroelddoteioeoglfcetfenovmdpthrafvmtahpieeeuthbseeleietreiiallnestsmtoreRonehrtnnpASrmtSeeteAsmesemedrnegwirwgtotnestmsrett"rvleeelifnoReeetseescthitemfhmtmlteosmttoiPadhroheepeftelReaennainntedvistnnhtsetsrteeta"idASA,vbscalrneoeeaoesweggyvSpgttllnrrttsooieemaealaelsolwepltremcieotoedmsemlhmb.pntenireeeenemsmetneTdnangnendOPestehttxthmtnlln.e.w'AhapeettmTnTecerTrigPAatneuhhahotrccltttehekegaosowetteaienrdn"hTcaenamtAsearfestoswatoehbemhrdwcrErnulieidnobtetepntxchhien.e.nitsthiecniTsiwnthcriooe.tcbihorinsnoptaluienhslKtamncsaoesalasTterinefiilDsyRatoossdnittt,otmhwnedeieanKneidmnntendogtetdesReweftvwhawwtlneti·eeEtiahlitippiilnltsnmlteohrllhntgaespoae2iethcserktnh0wnhpeaareeectmenleiRAelhldcnwtlrepaenetgeinenrhrpipovcrmonxtgeertleetvaeotHeeossalhcicycssmmsoeoeuaae,itrmmonetrdefoaeynninutneethitadrdsnt"oieins,stsf TnmpAHinoehodarntermdshpkoieTretenioostcosif.wunn4iaTtrga.nn5rholesd.oerhnRgfgitrapetreGhndomsAeieuahzvarpdaaadiesdtdlneillidooiintncninipsoatgcseiunln.oru2saenAe4dlia,gigNnhlht2rhgoebe4r,mweoobmureuhuHnsgetoihonwtonsutdoitslhbptlieeirnnlobigApmevauidUdmidbtddenelaiiidsittcrtiiksioottzheonnTeta,aedottlldoo2aBRc4fnteaohedlnredCecmes2owhav0anuleeishrllwotecoardhhpusmieecctcesrotho,seAndvcwwsgaoiiirirmnsllielltoeemGubbmnaeseutrendudpwn_iseotteiey,vttndheetsgonlagorNtsoihrpaaeuaeRlnivpldgyeteshp,aribelnnanaoqdntocerudethrciimeocrooeseontetmhdesnode.tetfrrnTutthchsete.ed ReDeGscacStPAttobfinhthoobcoetEmaccoadaetacnnrpscr.diPRltod)teitttluclesi,nyir,adriee(neepotndgaclaopiscrgtaliooaeutnh.lgrooFneaaatnmnp4adhnanilcecfcaoTt.nbs/tde6ycdeloetsnnoehihni.metssrieapernewtrnrttrnisahnheFeoeekgGd,idplnqpaeocete,elharstrutsodoTaAoatoebnoiegeGrotittdjruldeormhmrrnereaiSlarpmrz/ecniidsoolietibnzzttsidansuPnhreepmaefittgnnpahdlrershobntat.diononeayaholfitmcPscTdatkdhntato,lDermeilhecathtatnawdihRhniyeoeelfstungcuauefenocetttabsRbirPrrHuedtmnopeosrreohmaeeiuteTsoarfcrehfladvednrlsugbaaossalxteeewdsernreienecivlfrttetaendtroeee,rthaesnrIiiD,pnpf3eonaltabtoatoRssdeer1nneeynrdhaaprtue,ce.tnwcpynaehaedntepA2.Tlhlpcdri)cmclalo0tes,eihgaldohoynA1tiahcbirmichninTosb4toeengeScaiest.ieoafumorarSrtedermtoinewlTtnunhc3eoedherel:sahttcee1elnnmnimieblasteltno,osstidhetbyatohetni2pfvHweraslmdnni0eebira,nap9neotoomnylends1aslomjel.doia8nthepaicnnepocnidTeacsfihcdofscattn-eeslttuohaaihtllrehi1couasstirinwe·avgsitnisnerrtdstirergieeieosihoseaidstslrtcnn,tSiltenetes1mtitcgpitnehrsain6onbneat(acotcaehceagbstoruRthttloienatuhalerfmcitaensaaredthabimotedrtsyphslcgetlenemxlheplteiioSryoaaawprsrenhupsvcctenetilatcsahnlAoueetscileEsyotanAidurmsmebletmgnnnexiteelsa.eglortemsmthrdiisenirnmtAntDboeineaeteteeb,atehdnmgfnedeinnoinytenmUtcetcttdohuaefituateneroFhtnnnpneAelm,cthr.einscottdletUas.giueeeoTbsntcaupr,rpatSneiihdecchpwppgoatrrtyheihoearrdnahEsir3moeonrltadtlPfaPt1etlsvCtiodrtei.siAd,eabaemerninoosraealr2sTgtuttmfentas.0iirfeihpnteimtnieo1Casn·hnaertsodgn6yboegcce'omoa,,lvtitNnefreafioodssbdaJtrieihnfelsnineendgt

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 10 of 98 PageID: 6439
-~
.w
. SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MAlTER OF MT. HOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHW OF MT.I-IOLLY, ET AL., Case No.I:OS-cv-02584-NLI-I-JS Page 10
4.7. Obligations to Proceed With Development of Replacement Housing In Timely Manner. The Township shall proceed in a timely manner with respect to its obligations to review and cause to be submitted Land Use Board applications for the 1-hrtherance of adhering to this Agreement. The Township shall take all necessary steps to ensure that all land use and other relevant approvals are granted, facilitate submission offunding applications, and take any other necessary steps for which it is responsible to ensure that the project proceeds on schedule. The Township shall require Keating and the Additional Redeveloper to strictly adhere to their respective Redeveloper Agreements with respect to timing and deadlines and ensure that they fulfill their obligations in a timely manner. The Township shall enforce its rights against either Keating or the Additional Redeveloper in the respective Redeveloper Agreements. Township shall report to the Replacement Group Plaintiffs every 4 months regarding the status ofthe project and, if there are any delays, explain the reasons for any delays, proposed steps to move pr~ject forward, and any anticipated changes in the timetable.
4.8. Location of Replacement Homes. The Township, in conjunction with the Additional Redeveloper, shall build the Replacement Homes in the area of Saul Place and directly north ofSaul Place on Levis Drive, in a section of the Redevelopment Area bounded on the east by the eastern boundary ofthe redevelopment area, the west by Levis Drive, the north by the intersection ofNorth Mar·tin Avenue and Levis Drive, and the south by Grant Street. This area is more particularly described on Township tax maps as Block 12.05, Lots 1-36 inclusive and Block 12.05, Lots 43-50. The Township, in conjunction with the Additional Redeveloper and Keating, will select the exact location of the Replacement Homes within these boundaries and pursuant to an application for Site Plan approval with the Mount Holly Township Planning and Land Usc Board.
4.9. Form of Ownership. Each Replacement Group Plaintiff will own their respective Replacement Home in fee simple. There will be a Homeowner Association as part of this community that shall encompass all Jorty~H)ur units constructed by TRF Development Patiners as outlined in paragmph 4.3 of this agreement. The Homeowner Association's functions shall be limited to sidewalk repair, sidewalk snow removal, and maintenance of any common areas (not to include back yards and front yards which shall be owned by individual units), with an initial Association tee estimated at the time of signing of this Agreement of $25 per month. All roads shall be deeded to Mount Holly.
4.10. Configuration of Replacement Homes. The Replacement Homes will be configured as adjoining rowhouses or duplexes, with either front or back yards of at least 200 square feet. The units will not be stacked so that one unit is located over another replacement unit.
4.11. Size and Design of Replacement Homes. The size and design of the Replacement Homes -shall be as fbllows:
4. I 1.1. The Replacement Home tor each Replacement Group Plaintiff will have the same or greater number of bedrooms as the Replacement Group Plaintiff's current home. The Replacement Home for each Replacement Group Plaintiff will be at least I000 square feet per unit for a two-bedroom duplex (inclusive of garage) with one full bath; will be at least I000 square feet per unit for a three-bedroom duplex (exclusive of garage;

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 11 of 98 PageID: 6440

SETTLEMENT AGREEMENT RESOLVING

.. ,. ··"~···

LITIGATION IN THE MATTER OF MT. HOLLY GARDi'~NS CITIZENS IN ACTION, INC., ET AL V. TOWNSHINW

MT. HOLLY, ET AL., Case No.l:OS-cv-02584-NLH-JS

Page 11

these units will not have a garage and will instead have a storage unit of wood bauc1nano3tdin0ht0ss.KtwrseuqiaclutltiainhorgeanvfUoeererabtcagopnametrP·paauag1nre1ai)tnbwefloreisrt)chaowomtinhtphreeofoesu-nilbteleebfdmuarltaolhtoebamranitadhtloaeswenitnldhehecoortneuaedsnehba(aydeldxfTicbRtliauoFthsniD;avlaeenfvoudelfllwogbpialamrltahbegneoet;raPttohalneerestaneshetarslf

4.11.ca2oRusRol.onfesenuDioeddttrasaeeecmcivvswenhieeesgeillesldnooiltunppmcbsicenegoslriruiemn,l'ddsociwypimcidnflaiipeygullclsrmaawoihbgtngoiuinhodtruiheanlsssdamsipttlnhaettoghhteucefe,itssifusbuplRinaicubezeifaicsteepltsiiddtid.lfyo.aiiy,nnccTTagsbeph,tmhurciewooieoelgTnddhnursoiietnancswimiHhgn.tns,osdasd,wmreheepsiiesolipalisgtg,tenatunianl,nssctaimoihcnanoegalcdldntoyaejctaduToCcsnaenoHlcsEsmspttO,xirobouhaIninncCindbtdawEiittotooiinaoGtthtnhnh.rdeeteohrqTHfeAruheOfiAdeuqrdeMnduumiddintEriiieieont.tnimsngotTawsnelhnaileltls

4.12. Accessibility of Replacement Homes. All level will have a zero step entrance, doors with 32 inches or half·bathroom on the first floor.

units that have livable space at ground of clear passage space and one bathroom

uhmnooiutbssi:elihtoy4l.dt1hs3a.ht arveSeqpuseiprceeicatilhaOelmcrecqtuoupiharanevmceyeanNctesceetdshssa.ttCowelirilvltaiininngcoRsrpepapoclraeactoeenmd teihnnettofGitrhrsoteufdploesoPirlg.aniTnohtieffftfshoehlilarovwreeipnrlegasctreimcteionnt s on

4.!3.1. Plaintiffs Ruth Elida Echevarria and Charlie Mae

Alvarez and Noel Ortiz, Ana and Reynaldo Arocho, Pedro Arocho, and Luis Lopez, Carlos Lotuffo, 1-lippolyta Rodriguez, Joyce Starling, Wilson shall be provided a two-bedroom single-story duplex

according to the requirements in Section 4.11.

4.13.2. Plaintifls Marlene and Flavio Tobar and Leona Wright shall be provided a bedroom single-story duplex according to the requirements in Section 4.1 I.

three-

ttriPRwdRohneoleeqieaattcpuphhicbulnelecaumaRstieciictrselfeseed4sfspnmm'fee.sltfil·Iaresueoeis4cnnnmncb'.ettddteamiGiGictocnvhoeCcnrrgieonemodsopu,tusTunetopGbaposaualuuwbrPPvrtloplclltnaeataruaeihiseinptlsmhnafiatoietitboPfaiprfntlfrtl.eh.eeaf<aonws.eri;ntnciTiahasdTettciliehhsostfAkreef.wfwRnsdoPTponeidrtllsoowspaaidehwtlinltieanicehosnspctodeniisaegfmgcahnmefnaelisdxp,pneRttlannefehewgeilotntaxerdeittGttevleultrtpearvhoeroorteetqeeisoutslouqhso,cpniciueoprabsoiPenepelrmlreresxpatethitflprrltneioeeahulatniyrgtacnfaetfatthcbd.iip<rntoeoodho;tsun.vaioes,sneTsoteatAgiihhhcnfbmdeeehodltdaeheolTRcdcileittyocohehiiRoewlpanfoRsnaltefnarasoepotschlhsprluheciamelRtoimhacyspnaeceeiedtwdewmmiwnemoeiiteelivnloletnslUeh.nftnbplnttoeeHrrThieGepoteoohsadevrmfseersiwofodcdceeuhneorospieaep.nntnbdoeslouseiornuldftpceuhrt

4.15. Agreements

Financing shall ensure,

of Replacement Homes. The Township the following terms regarding financing

guarantees, and the of the Replacement

Redeveloper Homes:

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 12 of 98 PageID: 6441
SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GARDENS
CITIZENS INACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No. l :08-cv-02584-NLH-JS Page 12
4.15.1. Other than as provided in section 4.26, Replacement Group Plaintiffs will not be required to make any down payments or tinance any closing costs in order to purchase the replacement units.
4.15.2. Replacement Group Plaintiffs will not be required to assume a greater principal amount of mortgage debt than they presently have as of the time that their closing takes place, except for the security interest as set forth in Section 4.18.
4.15.3. Ifany of the Replacement Group Plaintiffs currently has a mortgage and requires financing pursuant to section 4. I 6.3, that household will not be required to pay higher monthly mortgage payments than their cun·ent payments.
4.1 5.4. Plaintiffs recognize an obligation to clear any judgments, liens, or claims against title on their Garden Home other than the Gardens Home Mortgage at or before closing. Plaintiffs recognize that any such creditor may require payment which would otherwise be due upon sale of their Gardens Home. In such instance, Plaintiffs recognize that they may need to pay any such judgments, liens, or claims either out of pocket, additional financing, or through their equity/by rolling into a new mortgage on their Replacement Home. Any such instance shall not be construed as requiring the Township to fulfill any obligations under section 4.15.1, 4.15.2, 4.15.3, 4.16, or 5.9.
4.15.5. The Plaintiffs and Township recognize that in addition to theit· traditional mortgages that may exist, certain Plaintiffs may have or did participate in State, County, or Local Municipal Grant/Loan programs. These loans, to the extent that they exist, are anticipated to have been recorded as pmt of the program(s), and may be required to come due upon sale or transfer of the property (Gardens home). In order to effectuate the terms of this settlement agreement, the parties shall work together with all relevant government agencies in efforts to relieve any obligations to repay such mortgages upon sale or transfer of the Gardens home, or to have such lien/mortgage transfened to the Plaintiff's replacement home.
4.16. Anticipated Move-in Notice and Procedures for Financing Replacement Homes. Certain of the Replacement Group Plaintiffs have existing mortgages on their Gardens Homes ("Gardens Home Mortgages"). Any such existing mortgage shall be fully paid and retit·ed at the Gardens Home Closing by the Replacement Group Plaintiff, or in the case of a Double Move Plaintiff:" by the Township pursuant to the terms as set forth in section 5.9. The Replacement Group Plaintiff, upon the acquisition ofthe Replacement Group Plaintiff's Replacement Home, must obtain a mortgage in the amount ofthe Replacement Group Plaintiff's Gardens Home Mortgage ("Replacement Home Mortgage") and apply it toward the purchase price tor the Replacement Group Plaintiff's Replacement Home. Said Replacement Home Mortgage shall be a first mortgage. To guarantee that the terms of all Replacement Home Mortgages comply with the provisions of Section 4.16, the Township shall follow the procedure set forth below.-
4.16.1. The Township will provide to each Replacement Group Plaintiff notice ("Anticipated Move-in Notice") 90 days in advance of the date Township expects the Replacement Home to be ready for move-in.
4.16.2. The Township shall include in the Anticipated Move-in Notice a Jist of at least three suggested lending sources to which Replacement Group Plaintiffs may apply for a loan with the following conditions that the Township reasonably believes are feasible to the

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 13 of 98 PageID: 6442
SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF''"MT. I-lOLLY, ET AL., C:tse No. 1:08-cv-02584-NLH-JS l)age 13
lending institutions: i) the amount is wholly adequate to finance a Replacement Unit, ii) the principal amount is equal to the Replacement Group Plaintiff's then-current Gardens home mortgage, and iii) monthly payments do not exceed the Replacement Group Plaintiff's then-current Gardens Home mortgage monthly payments. 4.16.3. If a Replacement Group Plaintiff applies in good faith to at least three lending sources listed in the Anticipated Move-in Notice but is unable to secure financing, Township agrees as a next and final resort to grant a loan with the conditions specified in 4. I6.2(i)- (iii) to any Replacement Group Plaintiff who fails to secure a loan through other lending sources. The loan's interest rate shall be calculated at the most current average fixed rate mortgage for the Northeastern United States according to the Freddie Mac Primary Mortgage Market Survey at time of closing for 15-year fixed rate mortgage for any mortgage ofa term of 15 years or less, the rate calculated based on interpolating the 15 year and 30 year average fixed rate f(H' mortgage ofa term between 15 and 30 years, or the rate tor the 30-year fixed rate mortgage for any mortgage of a term of 30 years or more. 4.16.4. This section shall not be construed as to limit a Replacement Gt·oup Plaintiff fi·om securing a loan through a lender of that Replacement Group Plaintifl's choice. 4.17. Affordabilitv of Replacement Homes. 4.17.I. Tax Abatement. The Township shall enter into long term financial agreement (PILOT) of a duration of at minimum twenty (20) years with the Additional Redeveloper for the 44 units referenced in Section 4.3, which the Township shall require be assigned to a New Jersey Urban Renewal Entity. The Township shall approve the Urban Renewal Entity's application for long-term financial agreement, which shall provide a tax abatement that shall be translerrablc to the final users of the property, including but not limited to Replacement Group Plaintiffs. The rate ofthe tax abatement in each year of the period of the abatement shall be no higher than the minimum allowable pursuant to N.J.S.A. 40A:20-12 and 40A:20-14. The Township shall instead provide for a tax abatement of thirty (30) years if such an abatement would result in a lower tax rate in the first year of the abatement fbr the Replacement Homes. The sale of the home by the end user shall not result in termination of the tax abatement before the end of the 20 year period, provided that if the Township extends the period to thirty (30) years, the Township may in its sole discretion allow for the termination of the tax abatement upon the second arms' length transfer of the Replacement Home. To the degree that the funding sources used to construct the Replacement Homes may result in deed restrictions on the homes of Replacement Group Plaintiffs, the Township shall work with Additional Redeveloper and Replacement Group Plaintiffs to work with the Township of Mount Holly Tax Assessor to ensure that the application of the long-term financial agreement takes into account valuations based upon those deed restrictions. 4.17.2. Deed Restrictions. As part of the development of Replacement Homes, the Additional Redeveloper is anticipated to seek funding fi·om various sources such as the CHOICE and HOME programs. These programs require restrictions on resale. The I-lOME program limits resale of the home to families earning less than 80 percent of Area Median Income (currently a family earning $58,680 for a three person household

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 14 of 98 PageID: 6443
SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MAITER OF MT. HOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No. 1:08-cv-02584-NLH-JS Page 14
in Burlington County; this number is adjusted annually), currently for a period of 15 years. The CHOICE program requires a portion of any appreciation to be returned to the State of New Jersey for the first five years of resale to an owner occupant; after five years, there is no such further requirement if the home is resold to an owner who will live in the home. 4.18. Additional Security Replacement Group Plaintiffs acknowledge that in order for the Township and Additional Redeveloper to fund the building of the Replacement Home, the Township and Additional Redeveloper may require the imposition of a security interest in each Replacement Home, to be limited by the following terms. The secudty interest shall be a lien no greater than the amount of $20,000 and will increase annually in an amount no greater than six percent simple interest on the principal amount, made in compliance with all applicable federal, state, and local laws. The holder of the lien shall not require payment of either the interest or principal of the lien until the sale, conveyance, or other transfer of the Replacement Home, and an additional prohibition on the lienholder's right to require payment exists in the case of a transfer of the Replacement Home either (a) to a fiunily member or members (to be defined as the spouse/domestic partner, child, parent, sibling, grandchild, niece, or nephew ofthe Replacement Group Plaintiff) for no monetary consideration or $1; or (b) to the legal heir or heirs of a Replacement Group Plaintiff upon death of the Replacement Group Plaintiff (a) and (b) shall be SUQject only to verification of such status as a family member or legal heir based on reasonable documentation, and a Replacement Group Plaintiff may make only one such (a) or (b) transfer. The holder of the lien shall not restrict Replacement Group Plaintiffs ti·om refinancing the first lien or mortgage on the Replacement Home described in Section 4.16 provided there is no increase in principal in the first lien or mortgage. 4.19. Moving Services and Expenses. The Township will provide moving services to all Replacement Group Plaintiffs, including for any Double Move Plaintiff's move to a Temporary Replacement House and also for any Replacement Group Plaintiffs move to a Replacement Home by retaining and paying for a moving company to perform the moves. T'he Township shall proceed in the following manner: In the Anticipated Move-In Notice or notices pursuant to this Settlement Agreement, the ·rownship will provide information about moving services, inCluding the name of the moving company, its business address, the name of a designated contact person, and the general procedures for setting up services such as obtaining and confirming a moving appointment and any other relevant information. No later than 7 days before the Anticipated Move-In Date or the anticipated move dates listed in this agreement, the Township or the selected moving company will settle all details related to each move. The moving company selected must be licensed and bonded. In the alternative to providing moving services, the Township may choose to provide a Replacement Group Plaintiff with a stipend of $400 for a move and, if doing so, shall notify Replacement Group Plaint-iffofthe availability ofthis stipend in the Anticipated Move-in Notice or any other notices in this agreement, whichever is relevant, and shall issue the check to the Replacement Group Plaintiff before any move in or closing date. 4.20. Inspection of Replacement Home. Upon receipt ofthe Anticipated Move-In Notice and up to and including the date of Replacement Home Closing, a Replacement Group Plaintiff shall be entitled to access the Replacement Home and undertake all such inspections and

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 15 of 98 PageID: 6444
SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No. I:08-cv-02584-NLH-.JS Page 15
investigations of the property and unit that the Replacement Group Plaintifr desires to undertake; including, without limitation, foundations, structural (roof, walls, floors, doors, windows, fireplaces, chimneys and the like) and systems conditions, plumbing, lighting, heating, air-conditioning, appliances, radon, mold, lead, asbestos, termite and wood boring insect infestation, water damage and infiltration and the like. Plaintiffs shall also have an additional opportunity to inspect the replacement unit with the Additional Redeveloper or its designated representative no later than 90 days after closing and request any necessary furthet· repairs.
4.2 I. Condition of Replacement Home. The Township shall require the relevant prope1ty and unit to be warranted by the Additional Redeveloper as ofthe date ofthe Replacement Home Closing, which warranty shall survive the Replacement Home Closing: (i) that it has not been subject to any spill or contamination or any violation of any Environmental Law or Regulation or any adverse environmental condition; such as, by way of example only, radon levels exceeding residential standards (in no event equal to or greater than 4.0 pCi/ I), ail'-borne asbestos J1bers, mold, lead based paint, toxic chemicals or pollutants in the soil, air or water at or greater than residential standards; (ii) that it is serviced by public waste disposal, public water and public sewer; (iii) that it is fi·ee of any aboveground or underground storage tanks; (iv) that it is in move-in condition, fi·ec of
debris and in broom-clean condition; (v) that it is subject to a certificate of occupancy and a
certi11cation from the building code otl1cer, construction code officer and zoning officer offl11l compliance with all relevant codes; (vii) that it is fi·ee of infestation and/or damage by wood boring insects; and (vii) that all systems and structures (electrical, plumbing, heating, gas, central and/or unit ait·-conditioning, etc.), appliances, light fixtures, H.mndations, garages, doors, windows, Hreplaces, chimneys, flooring, walls, ceilings, roofs and the like shall be in good repair, working order and good operating condition. Each Replacement Group Plaintiff shall receive all warranties and guarantees, lawfully assigned to Replacement Group Plaintiff, and relevant insurance, naming the Replacement Group Plaintiffas the insured. All of the foregoing shall be in service within seventy-two (72) hours, three (3) business days, of the Available Date and on the date ofCiosing. The Township shall require that the Additional Redeveloper bear the full risk of loss or damage to the property or units by fire, flood, wind or any other loss or damage occurring prior to the Replacement Home Closing. The Township shall require that the Additional Redeveloper ensure that each such unit shall be provided with a new home warranty pursuant to the requirements of the New Home Warranty and Builders' Registration Act. (N.J.S.A. 46:38-1 et. seq.)
4.22. Deliveries. The Township shall require the Additional Redeveloper to deliver to the Replacement Group Plaintiff all required certifications and permits to allow for immediate occupancy by the Replacement Group Plaintiff; including, but not limited to: final certificate of occupancy, certificate of zoning compliance, certification that the ptoperty is not in a designated airport safety zone, flood plain or flood haza1·d area, copies of all homeowners association documents and related filings, warranties and guarantees as to the construction of the unit and the condition of all utilities, systems and appliances, all to survive closing and all in a form and substance reasonably acceptable to the Replacement Group Plaintiff. Further, the Township shall require the Additional Redeveloper to provide an appropriate Megan's Law Statement and a disclosure with regard to off-site conditions pursuant to the New Jersey New Residential Construction OtT-Site Conditions Disclosure Act. At the date of the Anticipated Move~In Notice, the Township shall require the Additional Redeveloper to provide a Seller's Property Condition

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 16 of 98 PageID: 6445
SETTLI<:MENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. I-JOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No. I :08-cv-02584-NLH-.JS Page 16
Disclosure Statement to the extent required by New Jersey law to the reasonable satisfaction of the Replacement Group Plaintiff:
4.23. Possessionfrenancies/Third-Party Claims. The Township shall require the Additional Redeveloper to deliver possession fi·ee of all tenancies and occupancies of others, and claims of any kind of third-parties, and proof that all vendors, contractors and subcontractors have been fully paid and have no threatened or pending claim against the property or the unit and shall indemnify Replacement Group Plaintiff against any such claims, such indemnification to survive Closing.
4.24. Deed and Title: The Township shall require the Additional Redeveloper to, at the Additional Redeveloper's expense, deliver title at Closing to Replacement Group Plaintiffs by a Bargain and Sale Deed with Covenants Against Grantor's Acts, an affidavit of title, a title report showing that the property and unit is free and clear of all encroachments, encumbrances and liens, municipal liens and assessments and liabilities for future assessments for municipal improvement not completed on the date of this Settlement Agreement and the Township shall require the Additional Redeveloper to warrant that it has not been notified of or is aware of any future assessment and that title is marketable and insurable at regular rates. All encroachments, liens and encumbrances, except for the security interest described in section 4.18, any declaration or similar restriction related to the homeowners association described in section 4.9, and easements required by municipal approvals and utilities, shall be resolved, paid and removedprior to Closing. All representations, wa1·tanties and guarantees shall survive Closing.
4.25. Costs/Downpayment/Exchange Purchase Funding: No out of pocket downpayment shall be required ofthe Replacement Group Plaintiffs, subject to the provisions in sections 4.15.4 and 4.15.5. However, Plaintiffs will purchase the house using their exchange purchase funds in the form of housing equity in the Plaintiffs' Garden Home, relocation costs, and damages. No brokerage fee shall be charged to the Replacement Group Plaintiff.
4.26. Closing Procedures For Purchases of Replacement Homes; Settlement Costs; Preparation of Documents and Commitments. The Replacement Home Closings shall be conducted so as to ensure that the Replacement Group Plaintiffs do not bear added expenses for the transaction but meet their obligations as purchasers of the Replacement Homes, as set lbrth below.
4.26.1. 'l'he Township shall require the Additional Redeveloper to be liable for all closing and settlement costs customarily assumed by the seller in a Southern New Jersey real estate transaction, including but not limited to realty transfer fees, affidavit of title, executed IRS forms, affidavit of non-foreign status and such other documents reasonably required by either party or the title company, all at the Township's cost. The Township shall be liable for all other closing and settlement costs, except that the cost of title insurance shall be borne by the Township only to the degree that such insurance is required by a lender pursuant to section 4.16; the buyer shall be responsible for any othe1· title insurance if buyer so chooses to pmchase title insurance.

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 17 of 98 PageID: 6446

SETfLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GARDENS
CITIZENS IN AL"TION, INC., ET AL V. TOWNSHW OF MT. HOLLY, ET AL., Case No. J:08-cv-02584-NLH-JS Page 17

4.26.2. At the Replacement Home Closing, the pmties shall make prorated adjustments, as appropriate, for any items paid by, or due fi·om, the relevant seller prior to the Replacement Home Closing.
4.26.3. All parties are represented by counsel with regard to the preparation ofthis Settlement Agreement and, therefore, no attorney review period shall apply.
4.26.4. The conditions established in this Section 4.26 may, as to any particular Replacement Home Closing, be modified by written agreement of the parties, without the need for a formal amendment to this Settlement Agreement or the consent of the other parties hereto who are not affected by such changes.
4.26.5. Until such time as the Replacement Home Closing is complete and the Replacement Home Plaintiff has possession ofthe Replacement Home, the Replacement Home Plaintiff has the right of continued possession of their current Gardens Home or Temporary Replacement House, as set forth in the provision of Section Five ofthis agreement. For all Replacement Group Plaintiffs, the Replacement Home Closing shall occur simultaneously with the transfer of title fi·om the respective seller of the Gardens Home and the validity of each conveyance shall depend on the completion of the other, regardless of which actually comes first in time. No recordations memorializing either conveyance shall occur prior to the successful completion of both.

5.

Relocation ofCertnin Households Prior· to and l'rovision of Temporary Re))laccment

Completion Housing

ofPcnnancnt

Replacement

Units

5.1. Possible Need for Tempormy Replacement Housing for Double Move Plaintiff.'>.

There in the

are I0 Plaintiff homeowners, referred to as Gardens and obtain Replacement Homes as

the "Double Move Plaintiffs", described above in Section 4,

who wish to but who are

remain

situated in areas where the Township may determine the land is needed tor redevelopment before

the replacement units are available, in specific North and portions of Levis Drive. The Double Move Plaintiff.<> are

South listed

Martin Avenues, Saul in Section 1.6 above.

Place,

and

5.2. Obligations of Double Move Plaintiffs and Township. If the Township determines

rptherqaotuviairdneeyddottofhtathutertnhDeoovTueobrwlteintMslehoitpov,etphPreliiaoritnGttoiafrfrdseelaonrcseaHtrieooqnmu,iermetodakttehosemaTvooavwiel,anbsthlheeiptDoaoneudabcrlheelDoMcooautvbeelefPrMolamionvttheifefPshlasoihmnatleili,Tbe

another home, referred to as a Temporary Replacement House, to which the Township has title

located in in the Gardens Neighborhood. These Temporary Replacement Houses must to the Double Move Plaintiff's in accordance with the standards, terms, and procedures this Section ofthe Settlement Agreement.

be provided set forth in

5.3. Condition of Temporary Replacement Houses. must be in fully safe, habitable condition as follows:

Each Temporary Replacement House

5.3.1. The Temporary Replacement House must be in compliance with applicable housing codes. The house must meet the Uniform Relocation Act definition of a "decent, safe and sanitary dwelling unit" provided in 49 CFR 24.2(a)(8);

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 18 of 98 PageID: 6447
SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OJ? MT. HOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL.. Case No. 1:08-cv-02584-NLH-JS J»age 18
5.3.2. The Township shall ensure that the Temporary Replacement House contains all standard appliances (e.g. stove, oven, and refrigerator). If a Double Move Plaintiff requests, Township shall allow the Double Move Plaintiff to transfer his or her Gardens Home appliances, including kitchen appliances and water heater and shall 11nance the transfer. If a Double Move Plaintiff has a washer/dryer and/or dishwasher, the Township shall endeavor to move the Double Move Plaintiff into a unit with the same, or if no such unit is available, the Township shall move the Double Move Plaintiff's own washer/dryer or dishwasher to the Temporary Replacement House at no cost to the Double Move Plaintiff. This provision shall not be construed to extinguish any Township responsibilities in this section, except that the Township bears no responsibility forthe operation of any appliances transferred by the Double Move Plaintiff:
5.3.3. The Township shall tl·eshly paint all indoor walls; 5.3.4. The Township shall install new carpeting or refw·bished carpeting which looks and
performs like new carpet in all bedrooms and linoleum flooring in the kitchen and bathrooms; 5.3.5. The Temporary Replacement House must be inspected by an independent housing inspector not employed or connected in any way to the Township, at the Township's expense, and the results of the report must be provided to the Double Move Plaintiff. All major appliances and systems in the Tempora1·y Replacement House must have an anticipated useful life of at least 5 years according to the independent inspector. M<\ior appliances and systems include: roofing, plumbing, electrical systems, heater, water heater. The Township will remedy any failure to meet this 5-year standard before Double Move Plaintiff moves from his or her Gardens home.
5.4. 'l'itle, Ownership, and Responsibilities Regarding Tenure And Occupancy of Tempormy Replacement Houses. The Township shall provide a lease with option to purchase to the Double Move Plaintiff, attached hereto as Exhibit H. Pursuant to the terms of that document, the Double Move Plaintiff initially shall lease the Temporary Replacement House and the Township shall retain ownership and responsibility for the repair and maintenance of the Temporary Replacement House. The Double Move Plaintiff would not be responsible for paying rent, taxes, or any other expenses except t()r utility costs dudng the pe1·iod the Township retains ownership. The Township shall provide the Double Move Plaintiff with an option to purchase the Temporary Replacement House for $1, which the Double Move Plaintiff shall have the option to exercise at the Double Move Plaintiffs sole discretion, provided that upon exercise of the option the Double Move Plaintiff shall become responsible for all taxes, maintenance, and other expenses associated with ownership of the property from the date of closing. The Double Move Plaintiff shall exercise the option no later than the date of the Replacement Home Closing, but under no circumstance shall the riglits afforded by this paragraph allow the Double Move Plaintiff to retain title when the plaintitrs Replacement Home is available pursuant to this Agreement.
5.5. Moving expenses. Moving Services and Expenses will be pi'Ovided to Double Move Plaintiffs in accordance with Paragraph 4.19.

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 19 of 98 PageID: 6448
SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. I-lOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No. 1:08-cv-02584-NLH-JS Page 19
5.6. Immediate Relocation of Initial Double Move Plaintiffs- Procedure and Selection of Units. Four of the Double Move Plaintiffs, Elida Echevarria and Luis Lopez, Pedro Arocho, Rita Brooks, and Nelson Harris referred to as the Initial Double Move Plaintiffs, have agreed to move as soon as practicable to another existing home located in the Gardens that is owned or will be purchased by the Township. The Temporary Replacement Houses shall be provided in accordance with the terms and procedures set fo11h in Section 5.
5.6.1. The Township shall provide a list of all units it can make available to be used as
Temporary Replacement Houses to the Initial Double Move PlaintitTs as soon as possible and no later than 90 days of the signing of this Agreement pursuant the terms, standards, and conditions set forth in section 5. Township will provide an opportunity for the Initial Double Move Plaintiffs to visit these units in a manner and at a time convenient tor all parties. Within three days of the final visit, Initial Double Move Plaintiffs will provide to the Township a list of their first and second choice preferences and, where appropriate, specific occupancy needs or requests. 5.6.2. The Township shall select a Temporary Replacement House for each Initial Double Move Plaintiff incorporating these preferences to the extent possible, as well as the need to meet Initial Double Move Plaintiffs' Occupancy needs. The Township shall provide Temporary Replacement Houses with at least the same number of bedrooms as the Initial Double Move Plaintiff's current home unless that Initial Double Move Plaintiff expressed a preference for a smaller home.
5.7. Relocation of Remaining Double Move Plaintiffs- Procedure and Selection of Units. The parties have agreed that to the extent possible they will avoid requiring the Remaining Double Move Plaintiffs to move to Temporary Replacement Houses. lfthe Township determines that there is a need to relocate the Remaining Double Move Plaintiffs in order to implement any portion of the redevelopment pmject, it shall provide Temporary Replacement Houses in accordance with the terms and procedures set forth in Section 5.
5.7.1. The Township shall provide the Remaining Double Move Plaintiff.'> with a written notice of the intent to relocate them and an explanation of why the temporary move is necessary at least 90 days befbre they are required to move.
5.7.2. Within 60 days of the date that the Remaining Double Move Plaintiffs are required to move, the Township shall provide them with a Temporary Replacement Housing List. The List will contain 150% of the number oftemporaty units actually needed, if the Township owns a sufficient number of potential replacement units that are in acceptable condition at that time. If the Township owns a number of units it has identified as potentially suitable that is equal to less than 150%, it shall provide a list of all the iniits that it owns and has so identified.
5.7.3. Within seven (7) days of receiving the Temporary Replacement Housing List, Remaining Double Move PlaintiffS will provide Township with a list of their first and second choice preferences and occupancy needs.
5.7.4. If Remaining Double Move Plaintiffs provide a list of preferences or needs within the 7 day time period, the Township shall select the units incorporating these preferences to the extent possible, as well as the need to meet Remaining Double Move

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 20 of 98 PageID: 6449
SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. I-lOLLY GARDI~NS
CITIZENS IN ACTION. INC.. ET AL V. TOWNSHJI> OF MT. HOLLY, ET AL.. C11se No. 1:08·cv-02584-NLI-I-JS Page 20
Plaintiffs' Occupancy needs. The Township shall provide homes with at least the same number of bedrooms as the Remaining Double Move Plaintiffs current home to each Remaining Double Move Plaintiffs unless that Remaining Double Move Plaintiff expressed a preference for a smaller home. 5.7.5. If within 7 days ofreceiving the Temporary Replacement Housing List, any of the Remaining Double Move Plaintiffs do not provide designations for the permanent replacement housing or preferences for the Temporary Replacement Housing, the Township may make the selection without further consultation with that Remaining Double Move Plaintiff. In that event, the Township shall provide homes with at least the same number of bedrooms as the Remaining Double Move Plaintiffs current home and that meets the Remaining Double Move Plaintiffs' Occupancy Needs. 5.8. Permanent Replacement Housing for Remaining Households. The relocation of Double Move Plaintiffs pursuant to Section 5 of this Agreement shall in no way diminish or change the rights of those Double Move Plaintiffs to a permanent replacement home pursuant to section 4 above, nor the obligation of the Double Move Plaintiffs to transfer their Gardens Homes, including their Temporary Replacement Houses, in exchange for permanent replacement homes in accordance with the te1·ms ofthis Agreement. 5.9 Double Move Plaintiffs Holding Mortgages. In the event that any Double Move Plaintiff has a Gm·dens Home Mortgage and is required to move pursuant to Section 5 of this agreement, the Township shall satisfy, or pay in full, that Double Move Plaintiffs Gardens Home Mortgage if it existed as of October 31, 2013 at the Double Move Plaintifrs Gardens Home Closing. 5.9.1 If the satisfnction of a Gardens Home Mortgage occurs for a Double Move Plaintiff, then upon the Double Move Plaintiffs Replacement Home Closing, the Double Move Plaintiff shall re-pay the Township the full amount of the principal balance that the Township satisfied on the Gar·dens Home Mortgage. The Township understands that repayment is contingent on the Double Move PlaintitT acquiring for the same amount a loan for which the Double Move Plaintiff will use the Replacement Home as collateral, and the Township's guarantee in Section 4.16 may be necessary to ensure said repayment. 5.9.2 It is understood by the Parties that given the very nature of this occurrence, specifically that has been a time frame wherein this Double Move Plaintiff has been in temporary housing owned by the 'fownship, that the Double Move Plaintiff may opt to make additional principal payments to the Township in the interim time between the Double Move Plaintiff's move from the Double Move Plaintiffs Gardens Home until the time of delivery of the Double Move Plaintiff's Replacement Home ("Double Move Interim Payments"). Any such payment made in the discretion ofthe Double Move Plaintiffsfiall be made toward the balance of the Double Move Plaintiffs Gardens Home M01tgage which the Township satisfied pursuant to Section 5.9 of this Settlement Agreement. The amount thereibre that a Double Move Plaintiff owes to the Township pursuant to Section 5.9.1 of this Settlement Agreement shall be reduced by the total of any Double Move Interim Payments that the Double Move Plaintiff pays to the Township. No interest shall accrue at any time on the amount the Double Move Plaintiff must pay pursuant to Section 5.9.1. Any

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 21 of 98 PageID: 6450
~-
SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. I-lOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No.l :08-cv-02584-NLH..JS Page 21
Double Move Plaintiff may choose to make as a Double Move Interim Payment any regular payment, partial payment, or full payment at any time. It is understood by the parties that the Plaintiff will make a Double Move Interim Payment in order to reduce the Double Move Plaintiff's later obligation to obtain a Replacement Home Mortgage, which would increase the Double Move Plaintiffs net equity in the Replacement Home. In the event Double Move Plaintiff elects to make any Double Move Interim Payments, the Township shall provide no less than yearly statements to that Double Move Plaintiff, detailing the pay~down effect of the Double Move Interim Payments on the amount the Township originally satisfied in payment of the Double Move PlaintifT's Gardens Home Mortgage and the decrease of the principal balance the Double Move Plaintiff will owe to the Township upon Replacement Home Closing.
5.1 0. Phase I Homes. Phase I Homes, as described in Section 4.2 above, shall be oflered as Permanent Replacement Homes to a subgmup of the Remaining Double Move Plaintiffs, referred to as Phase I Homes Plaintiils, in accordance with the procedures set forth below. The Phase I Homes shall be provided on the same terms as specified in Section 4.
5.1 0.1 It is the intent of the parties that the Phase I Homes be offered to the Phase I Plaintiffs at such a time that the Phase I Plaintiffs can avoid being required to first move to a Temporary Replacement House. The Township shall take all reasonable measures to make it possible to construct the Phase I Homes on a schedule that allows for this, including expediting approvals and enforcing the terms of its Redeveloper Agreements as needed. 5.10.2 One ofthe Phase 11-lomes Plaintiffs shall be Joyce Starling, due to the need to acquire her home in order to allow for construction of the Replacement Homes in the area of Saul Place. 5.1 0.3 The other three Phase I Homes Plaintifl's shall be determined as follows: once the Township has determined that an area along North and South Martin Drives and/or Levis Drive is needed for redevelopment, the Township shall provide to Remaining Double Move Plaintiffs a list of whose homes are required for such redevelopment and any criteria required in order to satisfy the provisions in Section 4 on special occupancy needs and bedroom requirements. Within seven days, Remaining Double Move Plaintiffs shall provide to the Township a list of three households from the list and criteria provided by the Township who shall become Phase I Homes Plaintiffs. If the Remaining Double Move Plaintiffs do not provide such a list within seven days, the Township shall in its sole discretion select the three additional Phase I Homes Plaintiff..-,; fi·om the list. To the extent possible, Double Move Plaintiffs who do not get a Phase I Home shall have priority over Single Move Plaintiffs in getting a Phase II Home.
6. Ag•·ecment as to Remaining Plaintiifs
6.1 Former Homeowner Plaintiffs. Plaintiffs Rosemary Roberts, Estate of Vincent Munoz, and Estate ofAngelo Nieves are former homeowners in the Gardens Neighborhood. The terms of settlement with these former homeowners are as follows:

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 22 of 98 PageID: 6451

l!i.

-m;

SETTLEMENT AGREEMENT RESOLVING UTIGATION IN THE MATTER OF MT. HOLLY GARDENS
CITIZENS IN ACTION, INC.. ET AIJ V. TOWNSHIP OF MT. HOLLY, ET AL., Case No. 1:08-cv-02584-NLH-JS Page 22
6.1.1. Plaintiff Rosemary Roberts is a former homeowner who owned a combined-unit, 4 bedroom home in the Gardens. She sold her house to the Township and relocated to another home in Mt. Holly Township. To enable her to afford to purchase the replacement home, the Township provided her with a no-interest loan that is secured by lien on her replacement home and must be repaid upon sale of the house. The Township agrees to an adjustment, reduction, or refund as set forth in a separate signed release, the execution of which is a condition of this agreement.
6.1.2. Plaintiff Estate of Vincent Munoz represents a former homeowner who owned a home in the Gardens. That former homeowner sold his house to the Township and relocated. The Township has agreed to pay a fixed amount as set forth in a separate signed release, which amount is a portion of the total amount set forth in Section 3.2, and is therefore fully understood by the Parties to be a pottion of the $691 ,000.00 referred to therein.
6.1.3. Plaintiff Estate of Angelo Nieves reptesents a former homeowner who owned a home in the Gardens. That former homeowner sold his house to the Township and relocated. The Township has agreed to pay a fixed amount as set forth in a separately signed release, which amount is a portion of the total amount set forth in Section 3.2, and is therefore fully understood by the Parties to be a portion ofthe $691,000.00 referred to therein.
6.2. Tenant Plaintiffs. Plaintiffs Dagmar Vicente, Alandia Warthen, and Sheila Warthen are current or former tenants of Gardens Neighborhood. The terms of settlement with these Tenant Plaintiff'S are as follows:
6.2.1. Dagmar Vicente is a current tenant. Her home was sold by her landlord to the Township. The Township will pay Plaintiff Dagmar Vicente a fixed amount as set forth in a separately signed release and agreement as to relocation benefits, moving costs, and/or damages, which is a portion of the total amount set forth in Section 3.2, and is therefore fully understood by the Parties to be a portion of the $691,000.00 refen·ed to therein. She will be paid this amount in one lump sum and may use these Hmds toward purchase or rental of a replacement home or for any other purpose. As Plaintiff Vicente resides in an area that may be needed in the earlier phases of redevelopment, the Township may require her to move from her current residence. When this occurs, Ms. Vicente shall not be entitled to any further relocation benefits pursuant to any State, Federal or local law, and the tlxed amount includes full satisfaction of any past, present, or future claims or relocation benefits that Ms. Vicente may or would otherwise be due or owed under any applicable law. When the Township elects to redevelop the area where Ms. Vicente presently resides, ifthere is available any remaining habitable Township units that are unoccupied, the Township will oiler her another home to rent in the Gardens that is fully safe and habitable and meets applicable code requirements until replacement units are constructed. The Township will also notify or require to have notice sent to her when applications are being accepted for purchase of the replacement homes so that she may try to qualify for

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 23 of 98 PageID: 6452

SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No. 1:08-cv-02584-NLH-JS I,age23

purchase of a eventually be

replacement unit. re-developing the

The Parties further entire Gardens area

understand that the Township and that there will eventually

wi be

II no

units available that are Township owned. When this entitled to any further relocation benefits pursuant to and the fixed amount includes full satisfaction of any

occurs, Ms. Vicente shall not be
any State, Federal or local law, past, present, or future claims or

relocation applicable

benefits law.

that

Ms.

Vicente

may

or

would

otherwise

be

due

or

owed

under

any

6.2.2. Plaintiffs Alandia and Sheila Warthen are Neither ofthem received relocation benefits

fonner tenants ofMt Holly Gardens. other than moving costs when they

relocated from the Gardens. The Township will pay Plaintiff Alandia Warthen and

AitpaPnhgolleaarrlietniPeineoduamtniriaotfeioffeanSrfsntethdhtaleooscSiclbthataoeoetWtiiraaolealnalpoaroWtacmhrsataesiot1oniiu1osnhntnfaietoxnnbsefceedmtentheaeabfoyfmei$rnttu6oshe,s9ufemi1nitn,ttso0sh.Sv0eaTeis0snche.gt0seifey0ouctnnorwfedos3ift1slse.1l2,rth,orbaeaewinndndamdtt/rwoodairdsotphedtusheaierrenmcperhiaeoanarfng.aoseeterseTel,louhyfwrmeusrshlpieleigyncsnphtuuaeamlndaydro.mreefePreblaslneoatatoitssnhoetadiarfaefbnsyd

harepoppmllaieccsaestmiooentnhstaahtrotehmebyeeiomnrgafyaocrtcrayenpyttoeodotbhttoearrinpapuaarphrtoomsmee.entiTnrhetenhteTalorsewdonersvpheuilporcpwheadilslecaoolmsfotmhneuontriieftpyyl.athceemmewnht en

6.3. Mount Holly Citizens in Agreement is in the best interests of its
Settlement Agreement.

Action, Inc., having determined that this Settlement members, agrees to dismiss its claims pursuant to this

7. Interim llllJ)I'OVCmcnts to n.cmaining Homes and Community. iprEhneeoxsrEuhtioosixbirdhnei.tigba7PInia..lt1dnaI.Tdi.nmhtweiafiifTTlnslhtoathewaiankPnveesathhrepteivipreecosnhuvrarilerdsoecenanodggtgertGnoerieaztddoreedtffteoeuhnnlamlsdyt Haaitrknoewetdmsietlahevlseeltsialiseonktperoseatafphftceaeolieracnsanodsdmiitntiftmowauncluolcsynotirotrheydaqt.albuwniCitceraieeebnrlwygteaeiiratcnehropsrntaehtdiporei,atciticoiromosnnnsaesttrtadraeiuubnncrleietednetsghdieneetthdfiostroth

caGtcpcmholoolsaeoanmmorrtcdisknmmeaeetgorneutun1arfsnn·7isebnleiia.eaitt2cgnslnyyti.didtet0ygmox1rainet1oomredTdrfrtoeaeheihtoivfhnenelreGeistsvGP.laTroaioaaanbpSorrnflmtpdwaetrieeeelenSlJcnssnsotiiTsrhffdtreuionieacPeprwnreattl'ehiatslngiaalieanysnrhrlhtae,dbitdfirutofpehemL.nr'-c>vehieooitenvoswPdgliiooulnamsnadpnrieiizDumdnndnemtrgoeciivtfvnohtfaclehtsnaac.oittsaasmmeiTnnisrttadptthityemilhespinTaaerutiTononnswwoppecAteeweihnTtrrphesniwtooryhsiwiiadilhtnplhniortaIpeesc,lnarashadap2eintidgsp0epdtterdl1oeinolo4caetwinfaninsfabaidoc.lttlJlrohrloeweaisupapnmheissaptpeehaterehahtkiailbenteethrPyhsaesaalneaPatvdofcccnlaieeteafdiimts..iloynaiTsnartbaayikshlffbaeeefeoirstldtsTfyihtettooyerhvcaweoemadrdnniaauesdlkshseiopf 8. Contingency- Based on Changes in Circumstances of Plaintiffs

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 24 of 98 PageID: 6453

SETTLEMENT AGRI~I~MENT RESOLVING

nm LITIGATION IN

MATfER OF MT. HOLLY GARDENS

CITIZENS IN ACTION, INC., ET AL V. TOWNSHW OF

MT. HOLLY, ET AL., Case No. 1:08-cv-02584-NLH-JS

Page 24

8.1 Basis for Change in Agreement Terms. The Patties recognize that in order to
adequately plan for and apply for funding for replacement housing and other aspects of the
resolution plan, the Township has required, and Individual Plaintiffs have agreed, that each Individual Plaintiff designate at the time of the signing ofthis Settlement Agreement whether the Individual Plaintiff seeks a financial resolution payment package or a Replacement Home. However, because it will take a period oftime for the Township and redevelopers to plan, develop, and construct the replacement housing, some Replacement Group Plaintiffs may experience changes in circumstances such as death, medical illness making independent living impracticable, or other factors that make continuing to wait for a replacement housing or moving into the replacement unit impracticable, unfeasible, or inconvenient. Such Replacement Group Plaintiffs
may exercise an option of selling their Gardens Home to the Township as provided below.

8.2 Notice to Township. If a Replacement Group Plaintifl: representative, or heir, must sell the Gardens Home pursuant to 8.1, such person will give written notice to the Township of their
intent to sell at least 90 days prior to an anticipated closing date.

8.3 Township Obligation to Purchase Gardens Home. The Township shall purchase the Gardens Homes fi·om Replacement Group PlaintitTs pursuant to the procedures and conditions set fotth in Section 3 above, except that the price shall be determined as follows: 140% of the Township's 2010 appraised value or $60,000, whichever is greater. Under this contingency, no relocation benefits shall be pt·ovided. A specific chart of these plaintiffs' appraised values is
attached hereto as Exhibit J.

8.4 Release of Claims. Upon such payment, the parties shall mutually release each other of all claims and the Township shall be H·ee of any further responsibility fot· provision of temporary
or pet·manent replacement housing.

9 Contingency- If Replacement Homes Are Not Provided Within Time Specified in Agreement Appr·oval/ Development/Grant Delays

9.1 Basis for Provision ofContingencies. The parties recognize that there may be delays not anticipated at the time of signing ofthis Agreement in the process of the overall development. Because Replacement Group Plaintiffs have at the time of this Settlement Agreement chosen to accept a Replacement Home in Iieu of other options that may have been available to them, the parties recognize it is necessary to provide a process in the event that the development does not
proceed on the anticipated schedule.

9.2 Anticipated Deadlines and Township's Options If Deadlines Not Met. The Township has agreed to provide Replacement Homes to all Replacement Group Plaintiffs in accordance with the following schedule: Phase I no later than December 3 I, 2014, Phase II no later than December 31,2016, and Phase Ill no later than December 31,2018. If the Replacement Homes are not being constructed according to schedule, the Township shall have the right to terminate the Additional
Redeveloper Agreement in accordance with the terms set forth in that Agreement.

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 25 of 98 PageID: 6454
SETTLEMENT AGREEMENT RI~SOLVING LITIGATION IN THE MATTER OF MT.J-IOLLY GARDENS
·CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No. t:08~cv~02584~NLH-JS Page25
9.3 Failure to Provide Replacement Homes Within Agreed Time Frame. If as of December 31, 2018, the Replacement Homes have not been made available to all Replacement Group Plaintiffs, the Replacement Group Plaintiffs who have not yet received a Replacement Home shall have the following options:
Option I. Continuing to wait for a replacement home; or
Option 2. Selling their Gardens Home or Temporary Replacement House after exercising the option to take title in Section 5.4 to the Township at a price of$150,000 in accordance with the procedures in Section 3.
10. Execution of this Agreement and Dismissal of Litigation
10. I Effectuation of Settlement Agreement. This Settlement Agreement shall take effect only upon the occurrence of the following conditions: (I) execution of this Settlement Agreement by all parties and final vote and ratification ofthe Mount Holly Township Council of this Settlement Agreement; (2) execution of and Township Council ratif1cation of an Additional Redeveloper Agreement between the Township and Additional Redeveloper that provides for the implementation ofthis Settlement Agreement, with that Redevelopet· Agreement being in a form substantially similar to the draft Agreement attached hereto as Exhibit D; (3) execution of and ·rownship Council ratification of the Amended Redeveloper Agreement between the Township and Keating that provides for the implementation of this Settlement Agreement, with that Amended Redeveloper Agreement being in a form substantially similar to the draft Agreement attached hereto as Exhibit E; (4) actual dismissal ofthe Township's petition tor certiorari that is pending before United States Supreme Court ofthe United States as set forth in Section 10.4 below; and (5) entry by the United States District Court of a stipulation of dismissal and order dismissing Plaintiffs' complaint with prejudice as set f(>t1h in Section I0.5 below.
I0.2 Effect of Signing of Settlement Agreement. It is anticipated that the Plaintiffs shall sign this Settlement Agreement prior to all of the conditions referred to in Section I0.1 above occurring. However, this Agreement shall not become binding on any party tmtil all of the provisions in Section 10.1 are satisfied.
10.3 Dismissal of United Supreme Court Proceeding~. Within 2 days of the execution of this Settlement Agreement by all pat1ies, execution of the Redeveloper Agreements between the Township and Keating and the Township and The Reinvestment Fund, and passage and Ratitlcation of this Agreement by the Township Council, the Township agrees to apply to the Supreme Court of the United States for dismissal of its pending petition for certiorari. The Township agrees to take all
of steps necessary to obtain the dismissal the pending petition for certiorari. The Parties agree that
the dismissal of the pending petition tor certiorari is an essential condition for this Settlement Agreement to take effect. The failure of this condition within a reasonable period oftime after the Township's filing of its dismissal request shall constitute a failure of this Settlement Agreement, and notwithstanding the Parties' signing per Section I0.2 the Settlement Agreement shall not become effective and pending litigation shall continue.

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 26 of 98 PageID: 6455
SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OJ< MT. HOLLY GARDENS
CITIZENS IN ACTION. INC.. ET AL V. TOWNSHIP OJ< MT. HOLLY, ET AL., Case No. 1:08-cv-02584-NLI-I-JS Page26
I0.4 Dismissal of United States District Court Proceedings. Immediately upon the completion of the application to the Supreme Court of the United States for dismissal of the Township's petition tor ce1tiorari per Section I0.4, the Parties agree to jointly submit a proposed stipulation of dismissal and dismissal order in accordance with Fed. R. Civ. P. 41(a)(A)(I)(ii) and L. Civ. R. 5.3 (d) that is in substantially the same form as the document attached hereto as Exhibit K to the United States District Comt having jurisdiction over the pending complaint. Upon Township Council's vote approving this Settlement Agreement, counsel for all parties shall sign the stipulation of dismissal, the original of which shall be held by the Township's Solicitor, who will cause it to be submitted for entry to the District Court immediately upon confirmation of the dismissal of the pending petition for certiorad in the U.S. Supreme Court. The order shall have attached to it a fully executed copy of this Settlement Agreement. The order shall indicate that Plaintiffs' complaint shall be dismissed with prejudice, and shall expressly state that notwithstanding such dismissal with prejudice, the United States District Court shall retain jurisdiction for purposes of enf-orcement of the terms of the Settlement Agreement for a period of 6 years. The order shall be submitted by Counsel for the Plaintiff<; with copies to all counsel of record in the pending litigation.
11. Breach, Default and Remedies
I I. I Breach. A party's violation of or failure to comply with any provision terms of this Settlement Agreement, or a party's failure to perform any obligation under this Settlement Agreement, shall be deemed to be a breach of this Settlement Agreement.
11.2 Default. Upon receipt of notice of a breach fmm any other party, the breaching party must cure the breach within 30 days, or else the breaching party shall be in default of this Settlement Agreement. However, if a breaching party in good faith undertakes to cure within 30 days, but a particular breach is of a nature that is not susceptible to cure within 30 days, then the time to cure beihre default occurs shall be extended to 60 days. In addition, pursuant to the Dispute Resolution process under Section 12, the parties may mutually agree to further extend the time to cure before default of this Settlement Agreement occurs.
11.3 Remedies. In the event of a default, the other Parties shall have all remedies at law and in equity and provided in this Settlement Ag•·eement against the defaulting party, including but not limited to the Dispute Resolution process and application for enforcement to the United States District Court under Section 12. The remedies provided in this Settlement Agreement are cumulative and not exclusive and the decision to pursue one remedy at any time shall not be deemed an election of remedies hereunder.
11.4 Notices. Any notices relating to breach and default shall be given pursuant to Section 14.
12 Dispute Resolution and Enforcement
12. I Jurisdiction. Upon dismissal of Plaintiffs' complaint as set forth in Section 10.5 above, the District Court shall retain jurisdiction for the purpose of enforcing the terms of this

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 27 of 98 PageID: 6456
SETfLEMENT AGHEEMENT HESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT.I·IOLLY. ET AL., Case No. 1:08-cv-02584-NLH-,JS Pnge27
Settlement Agreement for six (6) years. Prior to the expiration of that time, any Party may move the District Court for an extension of the Court's jurisdiction for good cause shown.
12.2 Dispute resolution. The Parties recognize that questions may arise as to whether the Parties are fulfilling their obligations as set forth herein. ln the spirit of common purpose and cooperation that occasioned this Settlement Agreement, the Pmties agree that if differences arise between any of the Parties with respect to the Parties' compliance with, interpretation of~ or implementation of the terms of this Settlement Agreement, efforts shall be made by the Parties to resolve such differences promptly in accordance with the following Dispute Resolution Procedure.
12.2.1 lf one party believes an issue must be resolved, it simi I promptly notify the other parties in writing of the issue and the facts and circumstances relied upon in asserting its position. The parties notif1ed of the issue shall be given a reasonable period of time (not to exceed 20 days) to review the facts and circumstances and to provide the party raising the issue with its written position including the facts and circumstances upon which it relies in asserting its position. Within a reasonable period of time (not to exceed 20 days), the Pa1ties shall meet, by telephone or in person, and attempt to resolve the issue infonnally. Upon mutual agreement, a mediator acceptable to both parties may be asked to mediate the dispute.
12.2.2 lfa party believes that resolution cannot be achieved following a meeting to discuss the dispute, the pa11y shall promptly notify the other parties in writing that it is terminating discussions, and shall specify its final position with regard to resolving the dispute. The notifying party may then petition the Court for relief.
12.2.3 Nothing in this Section shall prevent any party n·om seeking immediate relief from the District Court without first exhausting the Dispute Resolution procedure set forth in Sections I2.2(a) & (b) above if such party in good faith believes that the particular circumstances require immediate court action. Such party's application to the Court shall set forth the specific facts and circumstances supporting the pm1y's good faith basis necessitating immediate court action.
13 Genet•al and Mutual U.eleascs
All parties to this Agreement give up any and all claims and rights which they may have against the other parties to this Agreement with respect to all claims set forth or which could have been set forth in the complaint captioned Mt. Holly Gardens Cilizens in Action, Inc., eta!. v. Township of Mt. Holly, eta/. Case No. Case No. I :08-cv~02584-NLH-JS, in the United States District Court for the District ofNew Jersey. This releases all claims set forth or which could have been set f01th in the complaint captioned Mt. Holly Gardens Citizens in Action, Inc., eta!. v. Township ofMt. Holly, eta!. Case No. Case No. I :08-cv-02584-NLI-1-JS, in the United States District Court for the District of New Jersey, including those of which the parties are not aware and those not specifically mentioned in this paragraph. The parties specifically release any and all claims known or unknown, resulting or to result, that the parties may have or hereafter have against any other party with respect to all claims set forth in the complaint captioned Mt. Holly Gardens Citizens in Action, Inc., et al. v. Township (?f Mt. Holly, et al. Case No. Case No. I :08-cv-02584-NLI-1-JS, in the United States

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 28 of 98 PageID: 6457
SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GAROENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIJ> OF MT. HOLLY, ET AL., Case No. 1:08-cv-02584-NLH-JS Pngc 28
District Court for the District ofNew Jersey. This paragraph does not intend to release Keating from any obligations contained in any and all Redevelopment Agreements entered into at any time by and between the Township and Keating. Keating and the Township acknowledge that the fulfillment of the Redevelopment Agreements are necessary to effectuate the terms of this Settlement Agreement.
14 Third Party Rights
Nothing in this Agreement shall be construed to create any benefits and/or rights in any pe1-sons or entities other than the pmties hereto. Moreover, only the parties to this Agreement shall have the right to enforce it.
Any notice pursuant to this Agreement shall be given in writing and shall be delivered (a) in person, (b) by a commercial overnight courier that guarantees next day delivery and provides a receipt, or (c) by legible facsimile or email (followed by hard copy delivered in accordance with preceding clauses (a) or (b), and such notices shall be addressed as follows:
To Plaintiffs:
Mount Holly Citizens in Action c/o James Potter 126 Levis Drive Mount Holly, N.l 08060
All Other Plaintiffs as Listed on Exhibit A
With a copy to:
Olga D. Pomar, Esq. South Jersey Legal Services, Inc. 745 Market Street Camden, NJ 081 02 Telephone: (856) 964-20 I0 Fax: (856) 338-9227
Susan Ann Silverstein, Senior Attorney AARP Foundation Litigation 601 E Street, NW Washington DC, 20049 Telephone: (202) 434-2159 Fax: (202) 434-6424

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 29 of 98 PageID: 6458
SETfLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATIER OF MT. HOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF · MT. HOLLY, ET AL., Case No. 1:08-cv-02584-NLH-JS Page29
To the Township:
Township of Mount Holly 23 Washington Street Mount Holly, NJ 08060 Telephone: (609) 845-1100 Fax: (609) 267-8155 Attention: Eric Berry, Township Manager
With a copy to:
George Saponaro, Esq., Township Attomey Saponaro & Sitzler 27 Cedar Street Mount Holly, NJ 08060 Telephone: 609- 518-1256 Fax: 609-5 I 8-1257
To Triad:
Triad Associates 130 I West Forest Grove Road Vineland, N.l 08360 Telephone: 856-690-5749 Fax: 856-690-5622
With a copy to:
Gaetano Met·cogliano, Esq. Sweeney & Sheehan Sentry Office Plaza, Suite 500 216 lladdon Avenue Westmont, NJ 18108 Telephone: (856) 869-5600 Fax:(856)869-5605
To Keating:
Keating Partners The Phoenix, Suite 201 1600 Arch Street

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 30 of 98 PageID: 6459

Philadelphia, PA 19103 Telephone: (267) 232-5700 Fax: (267) 232-5799
With a copy to:
William James DeSantis Ballard Spahr 210 Lake Drive East, Suite 200 Cherry Hill, NJ 08002 Telephone: 856-761-3483 Fax: 856-761-1020

SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL.• Case No. t:08*cv~02584*NLI-I-JS
Page30

16 Miscellaneous Provisions
16.1 Cooperation. The Parties agree to cooperate with each other and use their best efforts to effectuate and not frustrate the intent of this Settlement Agreement.
16.2 Days. In this Settlement Agreement, unless expressly stated otherwise, when the word "day" or "days" is used it means a Calendar Day rather than a Business Day.
16.3 Binding Effect and Successors and Assigns. This Settlement Agreement is binding upon and inures to the benefit of the Parties and their successors and assigns. Wherever the terms ''Party," "Parties," are used in this Settlement Agreement they are deemed to include their respective successors and assigns.
16.4 No Waiver. ·rhe Hlilure by any Party to object to or take any afl1rmative action with respect to any conduct of any other Party that is in violation of this Settlement Agreen1ent shall not constitute, nor be construed as a waiver thereof, of any future breach or of any subsequent wrongful conduct.
16.5 Captions. All paragraph, subparagraph and section headings used herein are included for convenience of reference purposes only and shall be accorded no consideration in the interpretation of the provisions, te11ns and conditions ofthis Settlement Agreement.
16.6 Construction. This Settlement Agreement shall be construed and interpreted without . regard to any canon, rule, law, custom or statute providing for interpretation against the
draH:sperson. 'fhis Settlement Agreement has been negotiated equally among each of the Parties. Nothing contained in this Settlement Agreement shall be construed so as to require or allow any Party to perform any act or omit to perform any duty that would have the effect of causing any othet· Party to be in violation of applicable Jaw or the terms of any approval, except in strict accordance with the default and remedies provisions of this Settlement Agreement and only to the extent specifically authorized by those provisions.

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 31 of 98 PageID: 6460
..SETTLEMENT AGREEMENT RESOLVING LITIGATION INTI-IE MATTER OF MT. HOLLY GAIWENS
CITIZI~NS INACTION. INC., ET AL V. TOWNSHIP OF MT. HOLLY. ET AL., Case No.l:08-cv-02584-NLH-JS Page 31
16.7 Plural, Singular and Gender. For all purposes hereof, words connoting a particular gender shall, where applicable, be deemed to mean and include the correlative words of the other gender, and words importing the plural number shall, where applicable, be deemed to mean and include the correlative words of the singular number and vice versa.
16.8 Choice of Law. This Settlement Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to the pl'inciples governing choice of law.
16.9 Modification. The terms of this Settlement Agreement may be modified by consent of the parties as follows:
16.9.1 Terms of this Settlement Agreement that apply to an Individual Plaintiff may be modified by the Township and the Individual Plaintiff provided that: I) the changes in the terms are not material to the goals, purposes, effectuation or completion of the agreement between the parties; 2) do not reduce, diminish or compromise in any way the resources, time or monies intended to be used for the overall accomplishment of the purposes of this Settlement Agteement; 3) the changes are necessary to effectuate the intent of the overall Settlement Agreement; and 4) the Township, the Individual Plaintiff and the attorneys for the any Remaining Plaintiffs who have not yet received relief have reviewed the modification and consented that the modification meets these requirements.
16.9.2 This Settlement Agreement may only be amended in a writing signed by all Parties hereto. Any time limits for performance imposed by this Settlement Agreement may be extended by mutual written agreement of the Parties. The othe1· provisions of this Settlement Agreement may be modified by written agreement of the Parties. Any modification by written agreement of the Parties will be effective upon filing of the written agreement with the Court, and shall remain in effect until released in writing by the parties or the terms ofthe agreement are satisfied.
16.10 Entire Agreement. This Settlement Agreement and its exhibits contain the entire Settlement Agr·eement among the Parties concerning the subject matter of this Settlement Agreement. No representative, agent or employee of any of the Parties has been authorized to make any representations or· pi'Omises with reference to this Settlement Agreement or to vary, alter or modify the terms hereof except as stated herein.
16.11 No Liability. This Agreement shall not constitute an adjudication or finding on the merits of the lawsuit, and should not be construed as an admission or acknowledgement of any wrongdoing or liability by any Pm1y, or any of its officers, directors, agents, consultants, employees or any of the Parties' predecessors or successors in interest, the same being expressly denied.
16.12 Indemnification._The Parties acknowledge that there are persons or entities who own real property in the Gardens Neighborhood and West Rancocas Redevelopment Area, who are not parties to this action (hereinafter the "non-plaintiff property owners"). The Township agrees that it will defend, indemnify and hold harmless Keating and its insurers from any and all claims, demands, actions, causes of action, costs and expenses that may hereafter at any time be made or brought against Keating or its insmcrs, successors and assigns, by these non-plaintiff property owners. This indemnification obligation includes all damages incurred by Keating, including

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 32 of 98 PageID: 6461

- ......

SETTLEMENT AGREEMENT RESOLVING ... LITIGATION IN THE MATTER OF MT. HOLLY GARDENS ·
Cl'fiZI<:NS IN ACTION. INC., ET AL V. TOWNSHW OF ·. ··
MT. HOLLY, ET AL., Cnse No. 1:08-cv-02584-NLH-.JS
Pnge32

attorney's fees, for any future claim, demand, action, cause of action brought by any non-plaintiff prope1ty owners.

16.13 Costs and Fees - Settlement. Each party will bear its own costs and attorneys' fees associated with this litigation, except as provided in Section 3.2 of this Agreement. Any Attorneys' Fees Reimbursement made pursuant to Section 3.2 herein is in full satisfaction of any and all claims for reimbursement of reasonable attorneys' undet· any provision for fees pursuant to 42 U.S.C. §
3613(c)(2), and any and all potentially applicable common law or statutory rights pursuant to any State, Federal or other statute through the date of full execution of this Agreement. ll1e Parties agree that the payment of the Attorneys' Fees is not and shall not be construed as evidence that the
plaintiffs are a "prevailing party" pursuant to 42 U.S.C. § 3613(c)(2).

16.14 Severability. The illegality, unenforceabi lity or inconsistency of any provision of this Settlement Agreement or any othet· instrument or agreement required hereunder shall not in any way affect or impair the legality, enforceability or consistency of the remaining provisions of the Settlement Agreement or any other instnnnent or agreement required hereunder. Because all parties were represented by counsel during the drafting of this Settlement Agreement, any inconsistency or ambiguity in the Settlement Agreement shall not be construed against any one party. This clause shall not be construed to supersede the contingency provisions in Sections 8 and 9 of this Settlement
Agreement.

16. I 5 Notice of Lawsuits. The Parties agree to provide each other with immediate notice, pursuant to the notice provisions hereof: of any lawsuits, actions or governmental declarations threatened or pending, of which they are actually aware, and which may atTect the provisions of this
Settlement Agreement or implementation thereof

I6.16 Authority. The Parties t·epresent and warrant to each other that they each have the power and authority to enter into this Settlement Agreement, su~ject to final approval and ratification by the Council tor the Township of Mount Holly, carry out the obligations contemplated hereby and execute and deliver the documents contemplated hereby and that the persons executing this Settlement Agreement and said documents contemplated hereby on their behalf have been duly authorized to do so. The Parties further represent and warrant to each other that ente1·ing into and canying out the terms of this Settlement Agreement will not place them in default under any other
Settlement Agreements, orders and the like to which they are parties.

16.17 Counterparts. This Settlement Agt·eement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.

16.18 Incorporation. The Preamble to and Recitals of this Settlement Agreement and the Exhibits attached to this Settlement Agreement are incorporated into and made pmt of this Agreement by reference as if set forth in this Settlement Agreement at length.

(THE BALANCE OF THIS J>AGE IS INTENTIONALLY LEFT BLANK.]

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 33 of 98 PageID: 6462
:z.
SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL.. Case No. 1:08-cv-02584-NLH-JS Page33
[SIGNATURE PAGES FOLLOW.]

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 34 of 98 PageID: 6463
SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No. 1:08-cv-02584-NLH-JS Page34
IN WITNESS WHEREOF, the Patties hereto have executed this Agreement as of the Effective Date. WITNESS:
Date:

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 35 of 98 PageID: 6464

ATTEST:

SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GARDENS
CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No. 1:08-cv-02584-NLH-JS l,agc35

By:~~""- N.ame:~
ntl~ -~~

1

0-v

Date:

, tt--12.--n

By: --\,-=;tie.s;;;;::::====~~::::::_­ Name: ~~~~--~~~~--=---Title: --=---7-c-'~=-=--"-'~-"--~'-------
Date: ----'----'--'--=---------

Case 1:08-cv-02584-NLH-JS Document 215-1 Filed 11/15/13 Page 36 of 98 PageID: 6465

SETTLEMENT AGREJ<:MENT RESOLVING

LITIGATION IN THE MATTER OF MT. HOLLY GARDENS

··

CITIZENS IN ACTION, INC., ET AL V. TOWNSHIJ> OF

MT. HOLLY, ET AL., Case No. 1:08-cv-02584-NLH-.JS

Page36

ATTEST:

Keating Urban Partners, L.L.C.

By: __T-~~----~L------=---­ Name:1_,..Lf::.;J.J..z;~;::::}4r1J/2'~~~'-.11-..~.. !.c-­ Title: --M~~-r-1-:J:::.....oi'----:-:------­ Date: ---H-""--r-o>--'--.L-------

B)-0 .

Name:N.\~6. f4~C•,0~---

Title: Date:

t~~~~~~------'--'.:.-1_. .......;:;;..._.:..._.L.-_ _ _ _ _

_ _

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 1 of 62 PageID: 6528
"Redevelopment Area" shall have the meaning given to it in the recitals.
"Redevelopment Area Properties" is defined as the properties identified for redevelopment in the Recitals.
"Redevelopment Counsel" shall be the law finn appointed by the Township as Redevelopment Counsel.
"Redevelopment Law'' means the Local Redevelopment and Housing Law, N.J.S.A. 40A: 12A-l et seq.. as amended and supplemented.
"Redevelopment Plan" shall have the meaning given to it in the recitals.
"Redevelopment Project" means the financing, construction and completion, marketing and sale ofthe buildings and structures on the Property.
"Redevelopment Project Improvements" means all improvements and site preparation work, and amenities necessary for the commencement of construction of the Redevelopment Project.
"Required Easement" shall have the meaning set forth in Section 6.02 of this Agreement "State" means the State ofNew Jersey.
"Tolling Event" is defined in Section 4.17 hereof.
"Township" means the Township of Mount Holly, in the County of Burlington, New Jersey, a municipal corporation of the State.
"Township Approvals" shall mean all approvals of Planning Board Building Code Office, Zoning Code Office and all other Township Boards or officials having jurisdiction over the West Rancocas Redevelopment Area.
''Township ofMount Holly" means the municipal corporation of the State ofNew Jersey, located in the County of Burlington, with offices located at 23 Washington Street, Mount Holly, New Jersey 08060.
"Township Indemnified Parties" means the Township and their officers, agents, employees, contractors, and consultants.
"Transfer" is defined in Article 8 hereof.
"United States Bankruptcy Code" means Title 11 ofU.S.C.A.
"West Rancocas Redevelopment Area" means certain properties in the Township of Mount Holly designated as an "area in need of redevelopment" pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:l2A-1 et seq.

{00174343 Rev.l1.4.13)

6

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 2 of 62 PageID: 6529

the

SECTION 1.2. Interpretation context otherwise requires:

and

Construction

In

this

Redevelopment

Agreement,

unless

dAsiagmterieloeamfr dAeetn.eltir,vmeasrn,ydToahtsfhetehuittsseeerrRmdmesdi"enhv"eehrtlheeoiarpsefmtbeyRer"n"e,tdmAe"evghaerneleosrepemamofeftene,ntr.,t

"hereto", "herein", "hereunder" and any

Agreement, and the term

refer to this Redevelopment "heretofore" means before the

B. other gender vice versa.

anWd owrdosrdismipmoprtoirntginagptharetisciunlgaurlgaernnduemr bmeeramneaannd

include correlative words of every and include the plural number and

C. Words
partnerships (including and other legal entities,

inliimcmlpuitoderidtnignpgaprutbnlepirecsrhosiorpngsso),vetrrmunsmetase,nnctaolrapbnoodrdaiteisoi,nnascs,luwldiemellitaesfdinrlmaiatsub,rialiltypaescrssooomcniapst.aionniess,

tcthhoiipssiReRseedhDdeee.vrveeeollofo,ppAmsmhneaeynlnltthAbAeegagrdSerioeenmelgemselynepntf,rto,enrcoaecrnodsdnihnvaagelnnlytithehetneacybteleaexfoftfoescrfetofcifetosrntemhtneeceneatssnaeinvnodegrr,asmclhoaanArlglsrtintrniuocacltletcisnooonnatesnotsdirtueaSftpfeepecceattni.podanersdt

of to of

E. given or made or delayed.

Unless by any

Poethrseorwn iosrePinadrtiycahteerde,uanldl earppshroavllanlso,tcboenusennretsasaonndaabclcyewptiathnhceelsdr,ecqounidreitdiotonebde,

certain nFu. mberAolfldnaoytsiciesssptoecbifeiegdi,vwenithhienreaurnedaesronaanbdleretismpoen. ses thereto shall be given, unless a

G. Unless otherwise customary and reasonable.

indicated,

any

"fees

and

expenses"

shall

be

required

to

be

ARTICLE2 GENERAL REPRESENTATIONS AND WARRANTIES

airnelltpooreftshweinshStiEsRchCaendTsdehIvaOwellNlaobrpre2am.nt1retu.snettRhaAeespgfororefelstleehomnewtedainntaigttoeantonhsdeTraeotnoowdfc:noWsnhasipurrmfaonmrtitaehtsee

by Redeveloper. Redeveloper purpose ofinducing Township the transactions contemplated

hereby to enter hereby,

tpor,otvhiesiRoAne.sdeovfetlhoRipsemdReeevndetelLvoepalweor,psmahlelanGlltoAcvaegrrrrneymemoeunetntattlhaAendpRpLerdoeegvvaaellslRoapenqmdueEirnnetmvPierronontjsem,citennictnlauladLcincaogwr,sdb.auntcneowt liitmhittehde haqnausdaltaioflileerBdnet.qteour iidsnoittoeRbeapudnosediwnvpeeeesrlsorafpaonenrdrmdiasiiustatshinnooobrgniltoi-ygpoardttooiofsictntaasncrroduyrinnpdogoenrruatinthtisdoisenbrRuotsehfidetnheelvesaeswCloasopsmomnfmoetnowhtneAwaSngetdaaretlwetehmhooeefnfnNPet.veewenrnJsceyorlnsvedayun,ciatae,ndids,

{00174343Rev. l1.4.13}
7

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 3 of 62 PageID: 6530

C. Redeveloper has the legal power, right and authority to enter into this Redevelopment Agreement and the instruments and documents referenced herein to which Redeveloper is a party, to consummate the transactions contemplated hereby, to take any steps or actions contemplated hereby, and to perform its obligations hereunder.
D. This Redevelopment Agreement is duly executed by Redeveloper, and is valid and legally binding upon Redeveloper and enforceable in accordance with its terms. The execution and delivery hereof shall not constitute a default under or violate the terms of any indenture, agreement or other instrument to which Redeveloper is a party.
E. No receiver, liquidator, custodian or trustee of Redeveloper shall have been appointed as of the Effective Date, and no petition to reorganize Redeveloper pursuant to the United State Bankruptcy Code or any similar statute that is applicable to the Redeveloper shall have been filed as ofthe Effective Date.
F. No adjudication of bankruptcy of the Redeveloper or a filing for voluntary bankruptcy by Redeveloper under the provisions of the United States Bankruptcy Code or any other similar statue that is applicable to the Redeveloper shall have been filed.
G. No indictment has been returned against any official of Redeveloper with respect to any transaction related to the transactions contemplated by the terms of this Redevelopment Agreement.
H. There is no action, proceeding or investigation now pending, nor any basis therefore, known or believed to exist which (I) questions the authority of the Redeveloper to enter into the Redevelopment Agreement or any action or act taken or to be taken by the Redeveloper pursuant to this Redevelopment Agreement; or (2) is likely to result in a material adverse change in the Redeveloper's property, assets, liabilities or condition which will materially and substantially impair its ability to perform its obligations pursuant to the terms of this Redevelopment Agreement.
I. Redeveloper's execution and delivery of this Agreement and its performance hereunder will not constitute a violation of any operating, partnership and/or stockholder agreement of Redeveloper or of any agreement, mortgage, indenture, instrument or judgment, to which Redeveloper is a party.
J. All information and statements included in any information submitted to the Township and its agents are true and correct in all material respects. Redeveloper acknowledges that the facts and representations contained in the information submitted by Redeveloper are a material factor in the decision ofthe Township to enter into this Redevelopment Agreement.
K. Redeveloper is financially and technically capable of developing, designing, financing and constructing the Redevelopment Project
L. The ownership structure of Redeveloper is set forth on Exhibit C. Redeveloper shall, at such times as Township may request, furnish Township with a complete statement subscribed and sworn to by the managing member of Redeveloper, setting forth all of the ownership interests of Redeveloper, or other owners of equity interests of Redeveloper and the

{00174343 Rev. 11.4.13}

8

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 4 of 62 PageID: 6531

extent of their respective holdings, and in the event any other parties have a beneficial interest in Redeveloper's entity, their names and the extent of such interest.
M. Redeveloper shall prepare forecasts and financial reports as required by Township, and prepare and present of such other reports to Township as Township may request.
N. Redeveloper shall establish and maintain appropriate books and records for all Redeveloper activities herein.
0. Redeveloper shall develop a comprehensive marketing plan, including sale, advertising and communication coordination, implementation and supervision thereof.
P. Redeveloper shall undertake with due diligence (1) the financing of the Redevelopment Project, (2) development of the Redevelopment Project, (3) to begin and complete each item in the Project Schedule on or prior to the date set forth in the Project Schedule (and for those items for which commencement dates only are given, such items shall be completed in a commercially reasonable period), (4) to seek buyers for the Project Improvements. All activities performed under this Redevelopment Agreement shall be performed in accordance with the level of skill and care ordinarily exercised by developers of first class developments ofthe same type and nature ofthe Redevelopment Project.
Q. In the event Redeveloper wishes to materially change or modify the Project Improvements, Township's written approval must be secured prior to development of the altered Project Improvements. Redeveloper acknowledges that Township has relied on the Project schedule in entering into its obligations under this Redevelopment Agreement.
R. Upon completion of the development and construction of the Redevelopment Project, Redeveloper shall use diligent efforts to obtain all Governmental Approvals authorizing the occupancy and uses ofthe Redevelopment Project for the purposes contemplated hereby.
S. Redeveloper shall not suspend or discontinue the performance of its obligations under this Redevelopment Agreement, other than in the mariner provided for herein, for any reason, including, without limiting the generality of the foregoing, any acts or circumstances that may constitute failure of consideration, commercial frustration of purpose, or destruction of the Redevelopment Project.
T. Redeveloper shall immediately notifY the Township of any material change in its fmancial condition from the information provided to the Township by the Redeveloper indicating Redeveloper's financial capability to develop, finance and construct the Redevelopment Project in furtherance ofthe Township's consideration in designating Keating Urban Partners, LLC as Redeveloper.
U. Redeveloper shall make all payments in satisfaction of Redeveloper's financial obligations as set forth in this Redevelopment Agreement.
V. Redeveloper shall not use the West Rancocas Redevelopment Area, Project Improvements, or any part thereof for which a Certificate of Completion has not been issued, in a manner that is inconsistent with the Redevelopment Plan and this Redevelopment Agreement.

{00174343 Rev.l1.4.13}

9

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 5 of 62 PageID: 6532

Pop(pRcI$mruufoeo3rTbldp0cvllaherh0iitocrvda,ee0veesrea0elaeWnoaml0HPdpn..feu0/eryooinrn0crrt)dsesspur,ahofeRrcnaooidfhevlrrliudaTttarnetcshehnevoresoRyeemorulaelCuapospcsrtaaApoqlecnereuudettdrrsifetscu.tDhirestntaehTshiodnoreahlstesnllheaoaRltaorcfoseTtntffidmoo(ottoeh$hwrtnave3e.wyne0uPplsO0hsobhrre,ioopet0ichppjm0hateeeh0vcherrae.attna0ytiCstwh0l.Waa)ePAhcbnrrseioltnocheismftyhj.athielcmTefclfRauutobitnatTnewaetnddeotocnsadswiodsfrthcdnsseTChaiecsphosshadeormliieslvptlRheoepebaeldotecHledhlbotbeepuilisoyvinantPgnerdtaunalhtrothnroieeocpaoddhwsmfTnaestoTnaeshxwyoenhepsttoenPeb$tubsnreA2hisesfcaoi,eeore1pennbr.0autdlih,i0isnsgi,Dsn0eaPhugt0xoereeo0crlddleaej.a0einstarnc0osyss,t WlaRoapongceeceycerdass,utetosipvoRumnaencsanalXh,,nocrnoicp.yptuon,earmrclaaatcibecssttesnticRaRceroute,leeuurfdued,nsoes,etorevvoroaepeorflfarloffaonrepoecapycentccmtireicAjcoo,ueesfnynpshfcamitaaollonAlilelaofcpnrtrynderet,eaoiosrfc.toeecfllardrftieieiigmmsnntichocaiirnenenniamgt,stoWci,iuornrlneneaesdessteedosetxer,raeRnogssiaera,natgnistinhroucteshronbtgoecataeuoaltngssrioaaohrslnnieReRtg,gsweie,rndldeise,etgueahvavabsneteerellce,loeoefsapespssnmtureereybryeen,l,snpec,epteaesorhststreaAyoo,bvsrniletetci,hnrsaaaehodlnernshsoeefgoarselrrneprood,ceunsitrucpihmtoashanopelie,lt,,f

tauhgseeer,,emoofca)crYuiot.panaltnshcteayRt,ubestaed,sneiasuv:freofeelfo,crtpoiaoercrneeas,nlhcjpaoorlylleomfrree,erfernraentilcniogeffioortornhme,secWxrreeoseetsfdrtia,cnRntyiaantnpgiocetornhscaoealnsso.arRliege,idnlee,vaasenelo,cepssumtbreylne,atpsAhe,yrerseaicna(toal lrh, aatrnnadyniscpfaaeprr,,t

Z. Redeveloper Agreement shall be for the Area and not for speculation

warrants that its undertakings pursuant to this purpose of redevelopment of the West Rancocas in land holding.

Redevelopment Redevelopment

hreeenprteerebrsyie,nnSattolEsl CaothnTfidswIOwhRNiaecrdhrae2snv.h2tesa.llotlhpRbemeefpetornrlueltoesewAansigtnarogetifeottmonhseeRndetaadnteaednvhdeelWorteopoaerfrcr:oafonnrstiutehmsempbauytrepoTtshoeewotnrfsaihnnisdpau.cctiiTnoognwsRnecsdohenivpteemlohppeleraertbetody

A. Township has the Redevelopment Agreement and the Township is a party, to consummate obligations hereunder.

ltehingesattlrruanmpsoeawncttesiro,nasnrdicgohdntotecmuanmpdleantetasduthrheeofrereirbteyyn,cateonddheteonrtepeiernrfiotnortmowthhtiheciihsr

otRlhetehgeqeapurlaliiyrsnessbBmatirg.neuednmitonsefgnptTtriuemthposioeesw,nnRtchlToyiecondhiwsnetTvineteosufhlfwtoeeipcnpatsmahadneinepdndftiaetsuAhnaleftgoperuraexcnreeetdmyaceb.ureltneiootrinnivsaianodcdlcuaotldeyredlteaihvxneecertecyeurwttmheiedtshreobiotyfsfasTtnehoyramwlilnnsndsooehtnni,ptwtuhraieetnh,dbadagisusriesevenoamofltieLidcneetagnooadrlr

of as

C. residents an "area

of in

tnTheheeedMreooufisnret dlHietiovgleallytoiopGnmaredcnuetn"rrseacnnhtdlayltlhepenegvneaddliindthgiteyadopepfsietghanle:aRti"oeCndietoivzfeetlhnoespmGineanrdtAePcnltsaionnn,e"iag,nhdabofugrhrrtoohouedpr

(00174343Rev.l1.4.l3}

10

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 6 of 62 PageID: 6533

tcrhshtrrdtohaaheiouehaeigglaflrdnbsrrelaheatememetjttaitedeaghuevnstlimrceendee.eessetsddlstsnpiolRTaesegeoiotcppdrthhdnebrii.fmpveagdeaylnilraTteteialiriethcetvtneohhiriaeoeoditgneesibgulneaesaolhwTsRvttcerpltitienoeiaysloenmtvealsowodnoviwmeleaasnpitntcovaihuensmhtctdnleeprhdhaaoidltepiPgRtottprtniiohhhdtlpoaewtiraiwtaeenogdtssndonersnreiRaedte.cuvaihwdseceelsTlebiodmldraglhaywpneopseniepestopevmsaiinprntnoNetuetethesiordnlbovaecotiast(netwnpohttwrpnaahtgemefaoatrniJentbraieetphnaotTdiirnyranto"rcrsortoelSotyeua,wtAhdvtyreotrocceeipyntgsrlStvo,staierplRtheouerheidrhcalmimenepieioseatpdbmsjeepspeuelrdonmeerbfdoiavirorntehircfeoeecritseialvsnm.ASeotoCrniit,enuepdTgyoopicgspmernhuftfleernifeiareoeaoerncrtTnnflnortmnedLaoeotmdidturreaanwPe1ommmnnnwgd0londrtais.na"ers2nDnlot)daohirt.ghthseteiifwivaowplagvtiaaTtinitht'aishsttstpaohteehihiiboalecdtodkSeahplnrhnunettetlereToit.dotehtiatioiijewtetlsTnsgudhehswrmldademheeeebntsioaeidicpeeieissnofgsgenxshil.dCnnae,netiihsigpdoaAfinoetis'atuisntrbtigndriehoedlnfratgdxibenfeidogiensyfoetcoawu'cigmrlotopurhcaiatntoetfttieihihenhvmannoleddaliyetsna,lrst WtrcheoeleparsiteeitonsRfg,aoDnitfno.cacoltlclhuaeddsoiTWnRchgueeemdsaTtelelvoRndewtasloonncapcsunomhmdciepaemnsnhttaaRAstseerrrudeeiataelia.lvlstieiznlieongdpttmrhoeeeatnshTtoeonAwparhbneylsaeshiaiecpnfaf'dlsorapttonosdsttshoeeensdsvdeiileorivovnenelomroftpeowmnRhteaienlcdthceaovinnteddhloiaptpisroeoknrpnscooooswmefdlpseudluecgstheee

E. The Township shall the Redeveloper to carry out its
Agreement.

reasonably cooperate with the Redeveloper in order to enable obligations and responsibilities under this Redevelopment

SECTION 2.3. Mutual Representations.

A. The Township and Redeveloper be governed by the Redevelopment Agreement.

agree

that

the

Redevelopment

Project

will

RraRReneeeqdddqueeuirvrveiereesemlulBmoole.ptpensemntristensasnghatIrhanAeaclelvhgbttearhoeenecegabomceemeteeivinennnetnatgshtohpoemaoatlrdhiolttabtbfoetaledfiigtt,dahhaentitteisyohomRenmencsediodtoniettgrohtvraebeaitnleceocntTupsoeuoamrfclwpitehosnnprcstaorhhAtofaeivpgnoairgnslelieaeoesnsmnoudisncefhnptRthtoch.eelsaIdaitfptueisasvouareentrcsli.ehoebspiy,nreertrchqeofeuraeipgrrToeeroerndaewcteinbotasyhnhnaiodtpLcsceatuughncriadhssl

ARTICLE3 REDEVELOPEARNDCROEVSTERNIACNTTISO;NSD;ETCOLWANRSAHTIIPOCNOVOEFNACNOTVSENANTS

SECTION 3.1 Redeveloper Covenants. (collectively, "Redeveloper Covenants~'):

Redeveloper

covenants

and

agrees

that

A. Redeveloper Redevelopment Plan.

shall

construct

only

the

uses

established

m

the

current

{00174343 Rev. 11.4.!3}

11

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 7 of 62 PageID: 6534

atbPhnereoEppeasxeciredrtcoyBbuw.y.tAiAothnngeoroeRnRfe-eetrmdhedeifeesuvnvnAetedlblgooaerpbpteewleeerrmet$seoeh1nnta.h8ttlhleaMepntrpadiulaylhsrittteohialenedcsDcTbhoooyeulrwltneahnttroeso(mho$fiF1fpu,eln8o$vt02riei0l.on1,r0edFM0laee0triae.lr0sluhie0coed)cnrietioDnwSwotaietalchilrcna.dorhssradtr(had$net2c&p,e1u0Fwr0cai,hd0tahe0sr0te,h.0pLe0rLti)ecCrfemousrsphtoaohlnefl tDTnTohapRrsttLeonreooeohhreiiLwsdwlewatvPdplphlCananverlnbroerotis,vohslnrevahoj(heitospeap$dhicsiluipCctapop.2ekbuestrpl.,Isibes1ytmRloefyshssi0arrteiuRaaifn0dsdhebolyieh,dywlsose0srdavdTmib0ilfelndaloaeeole0hvloenynctlrh.resbotdr0ldoaPelaupbf0ossuv:ruhfyfeueu)sepgeeunaerecbepehndsrctacwjsruhdsessuenea.eruiiicrsyscg2scldebftslohr.onffjcbtencaeuuaorHooeyassclrlmntlietuottPDsihhtsswnehtrspeuieeeauntsarreconccoibtsfvcRocsttebeoseeebmtnierwmsraadlt3du,ssiybiiyahgfenlta-eludahvaohfiranloeltlaeofliin3tguinloemhtnods1trdhnnehuHp,eros(erdvm2ooo4tObvtoee0uw4oftiePbMinav1g)nd$nrttien5hhot.4nseE,fieja0AirtIinoenh'tn0nfsaohggcgfed,anttetlr0hhtneHdeRb0haiTeo-ceses0OeferCimnosan.d.As0MowHmSgeeNao0cgnventOiEior,iflrtteassy.toeIwlhtflfbaCoeireTuiitonehempmponEhtfnddiewhdoceeme,rfCebshrnnnuefaaytthHpowinRnysoiarDAdsOdshteiuudspydigedIsdbeKca-CcreeocbfeshreeevsolerEtcyeamaeuqltomartalRworouiebonfrneree(eepiybttgn4nlddarhhmlet4tenoeUi.n3s)evdcytruh1$hneeoscbRo2al,tevlniolaonvt.rees1Pnh2npageldtpte0rornelreMoPuure1pradvjcb-al7pecteieiftrolvrtl,umcaeltilsonotncbdmitt.ioiehpoulhtdoiieornIeeleflc,sdrlynrf,

Mount will be

sHDoo.ldllytoGtThaherdegeenRnseedrreaeslvipeduleobnpltiescrw. -hwoillamreaPkleaianvtiafiflsabinlethfeorcusrarleentuplititgoattiwonen; ttyhehroemmeasintiongexhiosmtinegs

ycaRltwoeoobeahwnadreitteceisfnvhmtiaagnenibeealsEdonlnnii.pttcsnmhimwuakpleahoenoaidecctngRpelhrAeriteenaahdgestgremehereavawTeenleinliomdlntotwhbcepp(oennPtrehmestIrtehLdrtesoaiiOphpcnrataTsfoaalafl)gbNpem.wrlpreearirolmawoitrbeavkmlsJxienetaoargttosgisocerseayetnpthhsRuUseearemrprpdfbwpoeieanlnsivintaetcehlafRlooottuhiferposnecenedrerTreewsbaoeyastdwoihlntfnrahegesltnelshhlttoieirRptnaiycespgotdsra-efioetndgeMvpdnreeamorlfaotufipyaotpnps.fretfldryoTHarrfhbifodogoillasehrlrbytaAhslleoTotgnwuahurgxsoene-ieudnAntmesegtsiryrnemsuneg(nts2tthifsa0toiiosxs)sr,r

(44)

F. units

in

The Redeveloper shall accordance with HOME

on the Property.

cause Keating Urban Partners, and CHOICE specifications, as

LLC to build approved by

the the

forty-four Township

G. three phases:

The Redeveloper shall cause Keating Urban Partners, LLC to build the units in

A.

CAGTPihhgateairrzdesseeeeenmnhs1soeirn-mneTtsAebihsdcyeetwinaofintlinslrdsbivtbn.efeTaobtcowuucwrieolnet(rn4sdah)astinhphrceeoepompl-faaweMcrsitettih.mwestHeihlniolentlblthtyeeh,oremmbeumtseiasalstltefstoo.te,rnfrUoeoBrxStfhilDMsoticCitnn.kgtCHh1Mi2eov0lioSll5yue,NntGtLotleao.H:mrtod0e4el8nl3ny-t.

{00174343 Rev. 11.4.13}
12

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 8 of 62 PageID: 6535

2584. The Township shall pay for the construction of these homes and all costs related to the transfer oftitle to and from the Redeveloper.

B. Phase 2 -.Twenty (20) homes within two years of preliminary and final
site plan approvals for this Redevelopment Project. Sixteen of these homes shall be made available as replacement homes for existing Mount Holly
Gardens residents in accordance with the terms of the Settlement Agreement by and between the Parties in the litigation referenced in the above paragraph.

C. Phase 3- The remaining twenty (20) homes within two years ofthe sale of 65% of the homes in Phase 2 in accordance with the Settlement Agreement.

The above timeline assumes that Keating Urban Partners, LLC through its Redevelopment Agreement with the Township, has timely completed all infrastructure installation and site preparation so as to allow the Redeveloper to timely commence construction ofthe homes.
H. Redeveloper shall be without the power to sell, lease or otherwise transfer the redevelopment area or project, or any part thereof, without the written consent of the municipality.

I.

Upon the completion of the required improvements, the conditions determined to

exist at the time the area was determined to be in need of redevelopment shall be deemed to no

longer exist, and the land and improvements thereon shall no longer be deemed to be subject to

eminent domain.

SECTION 3.2. TIDS PARAGRAPH INTENTIONALLY OMITTED

SECTION 3.3. Effect and Duration of Redeveloper Covenants. It is intended and agreed, and the Declaration shall so expressly provide, that the agreements and covenants set forth in Section 3.1 and those elsewhere in this Redevelopment Agreement designated for inclusion in the Declaration shall be covenants running with the land and that they shall, in any event, and without regard to technical classification or designation, legal or otherwise, and except only as otherwise specifically provided in this Redevelopment Agreement, be binding, to the fullest extent permitted by law and equity, for the benefit and in favor of, and enforceable by, the Township, its successors and assigns, and any successor in interest to the West Rancocas Redevelopment Area, or any part thereof, against Redeveloper, its successors and assigns and every successor in interest therein, and any party in possession or occupancy of the West Rancocas Redevelopment Area or any part thereof. It is further intended and agreed that the agreements and covenants in 3.1 shall remain in effect without limitation as to time. However, such agreements and covenants shall be binding on the Redeveloper itself, each successor in interest to the Redeveloper and each party in possession or occupancy, respectively, only for such period as the Redeveloper or such successor or party shall he in possession or occupancy of the West Rancocas Redevelopment Area, the buildings and structures thereon or any part thereof.

{00174343 Rev. 11.4.13}

13

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 9 of 62 PageID: 6536

a4raRbprthesp(bt0RihnaperauheadgpeAsoednrnedcseehlnso:ceddihrevitedvace1figis.evengfiaeteia2nvciesltthbtdgaatohAsieieeltlioannrosp~elr,ernSeronedyumpm9sigipeEDspsnecmhstmtioemrssChaisneoteetnrhmlecheoTetmanolftaonlidenegItalosetfteflOtbrhArsehnnbtdteaAbievohafNesiretastoeeehueeeilgmnloernsAneacdr3ddbccxnerteh,e.aereeeoai4neocertnsseonmtim.etodmftahchdsmfdmvEega.rlaeeaeaecueeenrlnantdtnloecunmdoyitf3tedunm,nasoht,emmorbsnbimroecpdit,icetonyaeolsstaeonhtettgtntvoimheiieaaratsntmesiorfthnvinofetnieisafdaeoaioecnno)anlilsirratnlnabortotulbnetahurbobetcsfcrinnhaennyeeeohetoddhnehngsawvRbiiTerayeecninersdvnenoprhoenRaedaeffwaeataaftoaocererihxbcnnnsvttdrfvoeiihitefdctsoeseoaheiifehetervrosnlnemanaio,daeoysfpaognpnlappan.wwaroysfmodygruedguIpnoTirerblnretctmaveedoheblhrnhsfneiiieaweeetucdfgtmrdmmanehieecnhAgtoctedasoepoesstrtrPrpnntn.hlnr,ebeiretatptidSetfiwuaiospchntoirtmiuctjlittietreweviflatceaeaotahcocdtahrloTnaninwtooser.to,stdeoosasvuttnto,htUwghehtdao,fretrinceeoenrnrphneaecoatrdRsoeeceneognivhwrtmnonnredrvtaheeime,ntdhpreineeiqntndderernoniaoeupq.eoniavatsnttdsiuwneteenTinotpreodsidltieaoheitvof,nnwpmynrawietpitsosciotodvhrlemoensothseooehntdcseesrbpetrisathotxshtsmenurdtfovioeeioootcpuowctreerrichrrfcrPntfnnsteeiTifeaiNphroatnhsrosrnonorenengas.royjeowJoltp,iefalts.wewnrforeocSnoldsholscuthths.ftahhpttAthnaoohioihhvtaeceinndshre.efpilerhregdsle

SECTION 3.5 Township "Township Covenants"):

Covenants.

Township

covenants

and

agrees

that

(collectively,

in

the

A. Township shall, Redevelopment Area.

ifnecessary,

use

its

powers

of eminent

domain

to

acquire

parcels

B. Township subsidy programs which CHOICE.

shall shall

affirmatively include, but

issunpoptolritmRiteeddevtoe,loHpOerMinE,itRs CapAp,liBcaatliaonncefdorHhoouussiningg,

timely

C. Township manner.

shall

cooperate

with

Redeveloper

to

secure

all

necessary

approvals

in

a

ATaloglwrneneecsmheDesipsn.atrswyhiastlhuTl bKobsweeidaniitsemihnspigprreoUsqvhruebaidarllendacPnopadnervtraneppeyphrtsrah,oseLveePLodrCfobptahyenirsdttyhAbetegorrTeethoeawemdyRnesnfeohtd.riepEcvoaepncluoshrptsroeuurfacnittnihtoepntohlooaitfststeshsceRouhnepovdomeenyvereesedl.cobepiympttehnoetf

the

E. Township Redeveloper.

will

enter

into

a

twenty

(20)

year

long-term

financial

agreement

with

it

does

F. not

alreaTdoywonwshnifposrhsaulbl speuqrucehnatsec,onavt eitysacnocset,tothReepdaervceellospseur.bject

to

this

Agreement

which

(00174343 Rev. 11.4.13}
14

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 10 of 62 PageID: 6537

ARTJCLE4 IMPLEMENTATION OF PROJECT

SECTION 4.01 Timing of Redevelopment. Under the terms of this Agreement, the

development and construction of the Redevelopment Project necessary subsidies and approval from the Township and upon installation and site preparation by Keating Urban Partners, Agreement with the Township.

will occur completion LLC under

upon obtaining all of the infrastructure its Redevelopment

SECTION 4.02. Construction in Compliance with Redevelopment Plan, Master Plan and Final Site Plan; Budget and Permits. The Redeveloper shall cause the Redevelopment Project to be designed and constructed by Keating Urban Partners, LLC in accordance with the Redevelopment Plan, the Master Plan and the Final Site Plan approved by the Planning Board.

SECTION 4.03. Existence of Utilities. The parties acknowledge that local public utility providers may have certain rights with respect to the West Rancocas Redevelopment Area and may own certain facilities located therein. By separate Agreement, Keating has agreed that it is its sole responsibility to undertake the appropriate measures to negotiate with, acquire, relocate or otherwise address the existence of these utilities and improvements and easements therefore, in order to complete the Redevelopment Project as provided by this Redevelopment Agreement, provided that Township shall provide any appropriate order to accomplish such relocation, consistent with the provisions ofN.J.S.A. 40A:12A~10, and that any costs incurred by Township in connection with same shall be the cost ofKeating and not the Redeveloper.

SECTION 4.04. Sewer Connection Fees. New Jersey law permits a municipality utilities

authority that provides sewer service within the municipality to charge a connection fee or tapping

fee be

in respect of each connection of uniform within each class of

any property with the users and shall not

sewerage system. Such connections shall exceed the actual cost of the physical

connections plus the capital cost of the construction of the sewerage system calculated pursuant to

statute. The connection fee shall be apportioned to each new connector according to the number of

service units attributed to that connector. The connection fee shall be calculated annually and may

mw2b2eiu.tinhmNiicnpeipotwhaseelJidtmeyru.uspenoTyinchlietaphwaoslsieatewylswetoorhpocsehesrarumvrbgiicseteseaqanucehamnanturnlgnyueiaccloispnshaenalweliltcyetrbiuesnteitrlchivtaaiilcetcesfuicslaachutaatelhrdgoyerepiatauyrprtspowuliathehnidecthustnyopsirftooeNmvr.miJ.d.lSNey.s.AtJhs..eSrow4Au0e.gr:h41so04e:u8r1t-v42tiBhc2ee-.

NAan.dJdd.Ssite.iArovn.iac4le0ly:f1,e4ethsBep-2me2rum.nTiitctheiepdaPblayurttliialeiwsti.eaTschkaeuntoshweowlreietdyrgsseehraavnlilcybeeffeeeeenssticsthhleaadlrlgtbeodecthbhayorsgteheefteheMes osceuawnlcteurHlacotoelnldynpeMucrtusionuniacnfietpetaosl

Utilities Authority shall be the cost ofthe Township and not the Redeveloper.

SECTION 4.05. Occupancy Permit. Redeveloper shall obtain all required occupancy permits and authorizations from appropriate authorities, if any are required, authorizing the occupancy and uses of the Redevelopment Project for the purposes contemplated hereby.

SECTION 4.06. Certificate of No Default. At the Township's request, Redeveloper shall deliver to Township a certificate to the effect that Redeveloper is not aware of any condition,

{0()174343 Rev. 11.4.13}

15

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 11 of 62 PageID: 6538
i .
I
event or act that constitutes a violation of this Redevelopment Agreement or that would constitute an Event of Default hereunder and no condition, event or act exists that, with notice or lapse of time, or both, would constitute such a violation, or Event of Default, or if any such condition, event or act exists, specifying the same.
SECTION 4.07. Certificate of Occupancy and Certificate of Completion. Upon completion of any portion of construction in accordance with the Governmental Approvals and Legal Requirements, the Redeveloper shall apply to the appropriate governmental officer or body for a Certificate of Occupancy for that portion of the Redevelopment Project. Following the issuance of the Certificate of Occupancy and the satisfaction of terms and conditions of this Redevelopment Agreement, the Township agrees to issue a Certificate of Completion, in proper form for recording, which shall acknowledge that Redeveloper has performed all of its duties and obligations under this Redevelopment Agreement and has completed construction of such portion of the Redevelopment Project in accordance with the requirements of this Redevelopment Agreement. The Certificate of Completion shall constitute a recordable, conclusive determination of the satisfaction and termination of the agreements and covenants in this Redevelopment Agreement and the Redevelopment Plan with respect to the obligations of the Redeveloper to construct such portion of Redevelopment Project within the dates for the completion of same. Within 30 days after written request by Redeveloper, the Township shall provide Redeveloper with the Certificate of Completion or a written statement setting forth in detail the reasons why it believes that Redeveloper has failed to complete such portion of Redevelopment Project in accordance with the provisions of this Redevelopment Agreement and/or reasons why Redeveloper is otherwise in default under this or any other applicable agreement and what reasonable measures and/or acts will be necessary for the Redeveloper to be entitled to the Certificate of Completion.
SECTION 4.08. Execution of Documents. Redeveloper shall, in order to effectuate the purposes of this Redevelopment Agreement, make, execute, acknowledge and deliver any contracts, orders, receipts, writings and instructions with any other persons, firms or corporations and in general do all things which may be requisite or proper for the acquisition, construction and development of the Redevelopment Project in accordance with all necessary Governmental Approvals.
SECTION 4.09. Compliance with Redevelopment Agreement. Redeveloper shall use reasonable efforts to ensure that all consultants, professionals, employees, agents, contractors engaged by Redeveloper or any of Redeveloper's subcontractors shall have the skill and judgment necessary to implement the Redevelopment Project in compliance with the terms and conditions ofthis Redevelopment Agreement.
SECTION 4.1 0. Cooperation. Both parties shall fully cooperate with each other as necessary to accomplish the Redevelopment Project, including entering into additional agreements that may be required, provided, however, that such actions shall not result in a material increase in the parties' respective obligations hereunder or material decrease in the parties' respective rights hereunder.
SECTION 4.11 This Redevelopment Agreement shall become effective upon its execution by the parties hereto, and shall remain in full force and effect from such date until the

{00174343 Rev. 11.4.13}

16

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 12 of 62 PageID: 6539

Redevelopment Project has been implemented and completed, as evidenced by the issuance of the final Certificate of Completion, in accordance with the terms of this Redevelopment Agreement, the Redevelopment Plan and the requirements of the approved Final Site Plan and any other Governmental Approvals.

ARTICLES ACKNOWLEDGMENT OF RECEIPT OF COLLATERAL DOCUMENTS

SECTION 5.1. Simultaneous Delivery of Documents by Redeveloper. Redeveloper and Township agree that the rights, obligation and liabilities of the parties under this Redevelopment .Agreement are conditioned upon the delivery of the following fully executed collateral documents and hereby acknowledge the receipt of such documents, simultaneously with the execution ofthis Redevelopment Agreement:

A.

A certification of Redeveloper's legal counsel, in a form reasonably

acceptable to Township, to the effect set forth in Section 2.1 B - F hereof.

B.

Copies of the Certificate ofFormation and Certificate of Good Standing of

Redeveloper, duly certified by the Secretary of State ofthe state ofRedeveloper's formation.

ARTICLE6 ACQUISITION OF GARDENS REDEVELOPMENT AREA PROPERTY
SECTION 6.01. Acquisition of Redevelopment Area Properties. The Redevelopment Area Properties have been or will be acquired by the Township and then transferred to the Redeveloper. In the event the Township, after exercising a good faith offer to acquire such properties by a negotiated Agreement of Sale, determines it is unable to acquire said properties, then the Township shall take action to acquire such properties, including an exercise of its powers of eminent domain in accordance with the Eminent Domain Act.

SECTION 6.02. Acquisition of Easements. To the extent permitted by Applicable Law, the Redeveloper may request that the Township acquire all easements for road access, utilities or construction (the "Required Easements") that are reasonably required by the Redeveloper for or with respect to the Redevelopment Project. In such event, the Redeveloper shall provide written notice to the Township and such notice shall specify with respect to such Required Easement, at a minimum, the location and dimensions of such Required Easement, the pmpose for which the Required Easement is intended, whether such Required Easement is to be permanent or temporary and whether the Required Easement is to be exclusive or in common with others entitled thereto. A Required Easement(s) shall be deemed to be a part of the West Rancocas Redevelopment Area Property.

ARTICLE7 PROJECT OVERSIGHT
SECTION 7.1. Progress Meetings. As of and from the receipt of final Planning Board approvals, Redeveloper shall attend and participate in monthly progress meetings with representatives of Township to report on the status ofthe Redevelopment Project and to review the

{00174343 Rev. 11.4.13}

17

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 13 of 62 PageID: 6540

progress under the Project Schedule. Township shall give Redeveloper fifteen days (15) advance written notice of such meetings. The meetings shall be held at the Mount Holly Municipal Building or other convenient location agreed upon by the parties. The agenda for the meeting shall include, but not be limited to, a status report with regard to property acquisition, Governmental Approval submissions and approvals, financial commitments, construction of Project Improvements, compliance with the Master Plan and activities concerning relocation, marketing, sales and leasing. At the meeting, this information will be evaluated by Township to determine compliance with the terms and conditions of this Redevelopment Agreement and the Project Schedule. Township shall have the right at all reasonable times to inspect the books and records of Redeveloper which are pertinent to the purposes of this Redevelopment Agreement and to the progress meetings. The Redeveloper shall also have the right to attend all Progress Meetings between Keating Urban Partners, LLC and the Township.
SECTION 7.2. Progress Reports. As of and from the receipt of final Planning Board approvals, Redeveloper shall submit to Township a detailed quarterly written progress report ("Progress Report'') (or more frequent Progress Reports, if requested by Township) which shall include a description of activities completed, the activities to be undertaken prior to the next quarterly progress report, the status of all Governmental Approvals, an explanation of each activity, if any, which is showing delay, a description of problem areas, current and anticipated delaying factors and their estimated impact on performance of other activities and completion dates in the Project Schedule and an explanation of corrective action taken or proposed. The written progress report shall also contain the most current Certificate of No Default. The Redeveloper shall have the right to receive all Progress Reports received by the Township from Keating Urban Partners, LLC.
SECTION 7.3. Access to West Rancocas Redevelopment Area Township and its authorized representatives, upon reasonable notice, shall have the right to enter the West Rancocas Redevelopment Area to inspect the site and any and all work in progress for the purpose of furthering its interest in this Redevelopment Agreement, provided, however, that Township acknowledges hereby that the West Rancocas Redevelopment Area will be an active construction site and Redeveloper shall not be liable or responsible to Township, its employees or agents for injury to person or property sustained in connection with such inspections except to the extent that Redeveloper violates the standard of due care owed to invitees. Such entrance shall be for informational purposes and shall not relieve Redeveloper from its obligation to implement the Redevelopment Project in accordance with this Redevelopment Agreement. In no event shall Township's inspection of the Redevelopment Project be deemed acceptance of the work or be deemed to waive any right Township has under this Redevelopment Agreement. Permit officials shall be permitted to enter the West Rancocas Redevelopment Area at any time. The Redeveloper shall have a similar rights and obligations during the site preparation of the Property by Keating Urban Partners, LLC.
SECTION 7.4. Submissions and Presentations to Township. Redeveloper shall be required to provide Township with a copy of each and every application for Governmental Approvals submitted to Governmental Bodies at the same time those applications are submitted to same. Prior to any site plan application, Redeveloper shall be available to make a presentation to Township of such application and shall take into consideration reasonable comments of Township.

(00174343 Rev. 11.4.13}

18

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 14 of 62 PageID: 6541
ARTICLES TRANSFERS
SECTION 8.1. Prohibition Against Transfers. Redeveloper recognizes the importance ofthe Redevelopment Project to the general welfare of the community and that the identity of the Redeveloper and its qualifications are critical to the Township in entering into this Redevelopment Agreement, particularly in view of the public aids that have been or will be made available for the purpose of making such redevelopment possible. The Township considers that a Transfer of the ownership in Redeveloper, or any other act or transaction involving or resulting in a significant change in the ownership of or with respect to the identity ofthe parties in Control of Redeveloper or the degree thereof, is for practical purposes a Transfer or disposition of the Redevelopment Project then owned by Redeveloper. Redeveloper recognizes that it is because of such qualifications and identity that the Township is entering into this Agreement with Redeveloper, and, in so doing, the Township is relying on the obligations of Redeveloper and not some other Person or entity for the faithful performance of all undertakings and covenants to be performed by Redeveloper hereunder. The fact that the identity of the Redeveloper and its qualifications are critical to the Township in entering into this Redevelopment Agreement.
SECTION 8.2. Redeveloper Covenants. Redeveloper covenants and agrees that:
A. Except for Permitted Transactions, as defined below, prior to the issuance of· a Certificate of Completion, Redeveloper shall not, without the prior written consent of Township: (1) effect or permit any change, directly or indirectly, in the majority ownership or control of Redeveloper (except in the case of death of an individual(s) having such ownership or control), (ii) assign or attempt to assign this Redevelopment Agreement or any rights herein or in the West Rancocas Redevelopment Area, or (iii) make any total or partial sale, lease, transfer or conveyance ofthe whole or any part of its interest in the West Rancocas Redevelopment Area or the Project Improvements (collectively a "Transfer"), provided, however, that these restrictions shall not apply as to a portion thereof, following the issuance of a Certificate of Completion for such portion thereof.
B. The following transactions are exceptions to the prohibition set forth in the previous subparagraph and shall not require prior approval by Township ("Permitted Transactions"). the written consent of Township to such transfers being deemed given hereby provided notice of same is given to Township: (1) a mortgage or mortgages for the purposes of financing the Project Costs associated with, or incurred in connection with, the acquisition of the West Rancocas Redevelopment Area or the development and construction of the Redevelopment Project, provided that the occurrence of an Event of Default as to Redeveloper hereunder constitutes an event of default by Redeveloper under the loan documents documenting such financing; (2) and utility and other development easements; (3) sale of completed residential or commercial unit End Users; and (4) transfers and assignments between the entities with common ownership and control. (It is acknowledged that. TRF Development Partners, Inc., will assign its rights and obligations under this Redevelopment Agreement to a to-be-formed single purpose LLC with the majority ownership of such LLC being an entity with members that mirrors those members ofTRF Development Partners, Inc.

{00174343 Rev. 11.4.13)

19

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 15 of 62 PageID: 6542

C. consent and

Redeveloper shall not transfer the until all homes are sold to individuals.

Redevelopment

Project

without

Township

pdwTaerrrsaitctniterseisapncatSitnnioEodonnCtasioTnc,feyItOehpxaeNactrentipla8eetts.au3,sar.itesnNodtdhifoevistrsiitudccyrcueihab(le3Psod0efa)rnimPndde/iaotrStymreesdecinttTtpiteoirrdtaniioensrTs8ac.rt2caooBtnmios.sapnuRcrscit,esihoaidnnnegPsdv.eestrluhmoWcephiietnttpraheamdrstrheieTea(ssslrpl).aenapcsnrtaodcvttaoiiddodenar,netosyisn(cTePlsoue)wrdmoinnfisgtththeiepad
ppaBiioiRItRnntoarnRnrmeufojearbdecreutrtvdnpmtdhloidnhiiieosereinsnencosfevsfnvinviegtfvoetieAreeeoitoerhlno,loclcoeSormfneso.ntttsptprEiciptheoroemcSamroCmeCneoilnsfunsceetoefTeRttcvstwn,ahnurain,hIeaeotetnniOtayNidntAEdAtnAsnhaDeyNsoh,igvndgvngaeatiCrecriein8grncelnecenleltl.yleoehee4atsaemmrptou.dsrmobokhoaumsdceTree,ifteecfhinsinrettnDhotaaihtLnt.dot.naAsrneletiTeanssvessIfPrsheni,ngpafahtgemerasiPiuarsencotltfrlohlealhleeslmjDtfvaebnaerdeobVli,,csldceelsreeahtntceatiopiTtbhoaaonalntoiraposlndnnnsdolireuwo...dnvaEnaetrrfUtAUnihetfcsntivdhfhsuoleetpntpeoeiheiihnaeotynoaorsinltevDdpnwstenhfAtteihoaerntsaWTarashrtctpfgretlohnRoledieliDcaenascwsceocrrsfolleuileadltoeetrnfafhcfctdrienaswibhcseolRivohuteohneareniiwelagdagfipntolvnnaliseoRrjolrnelchitounpatofenogbfanttefedeRetriclecroteqsleneaeolteesusfdeivssadftfvceotdiecerraehtaokeieholyRnsvcnenotmmt,ratdeoeysapCeiDlldeeotleilroaeendnteeinert.pharrecvtc'tltesnetaeefalilebemafurgymtsliiryerondhaecameadpptiiaaxnTdtoenntitlmideeinroelbogsepxedtawlenshsasipotthntgattenrrieraeafttavnadasinevrlntnhenClmstAiafshioesbiotiovpfisrfelhsneenrm,iaeesseoraobOurantnsplthlafsaiouifelaunenoafteoTlsiinmlscntuorvcroiudesaeoennieweceonlPondeohtorolndfr,efvaoffosffrsotvtartthjtiahthchrnteoahoihlhteeipecentiinhisedst,s

ARTICLE9 FINANCIAL OBLIGATIONS fPswiurnaobarjsnreiaccdnityn.tsSgdTEetfohoCbwartTtntfIhsiiOneht aNiRwpnecisldi9hlne.a1gvel.xelilencoRropcaeoimndspeeeeavnrmiaetttsloPeourbpaoneenjtrsed'ntcsetae.csfFefsiosinssrtaatsnrRycteiotdaoleovibCmetlaoopimplneemmra.inetamndstewnanenitl.cdlescRcsooeammdryepm,vleeiittnleotophthbeeretareiRrnqeeiupndirgesevisnteeeelncoetepsqsmusaiaetnrnyydt,

o$$p11t77i00o,,n00s00Sa00nE..00dC00/oT. rpIAOecrulNlsuto9pn.mri2toiczleeasetsdiRosanendfsyrehovamaeldlldobtipehteietorrnasnaaelslsfetceiormorseaftdteitnthsoceutthr4hre4eeTduosbnwayiltnessthhiepinpr.uoencxeicte'esdssshooomffeabeuasycaehlre

unit to be proceeds of for builder's

$31.15,0G,00(a0S).E0a0Cn)TdfIr(OobmN) its9h.r3eesdaulcIeefotdhf, eathlnleuhTmomobweesrnsonhofipRloesnphglaaelcrl enrmeeceeednievtdeHaaoslmlRoeesfptalhasecsenemet etfonprtrtoHhcoienmedeAssr.(tiacplper3o,xiSmecattieolyn

{00174343 Rev. l1.4.13}
20

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 16 of 62 PageID: 6543

ARTICLE 10 INDEMNIFICATION; INSURANCE
SECTION 10.1. Redeveloper Indemnification.
A. Redeveloper covenants and agrees, at its sole expense, to pay and to indemnify, protect, defend and hold the Township Indemnified Parties harmless from and against all liability, losses, damages, demands, costs, claims, actions, or expenses (including attorneys' fees, disbursements, and court costs) of every kind, character and nature arising out of, resulting from or in any way connected with the construction, fmancing, marketing, leasing or sale of the West Rancocas Redevelopment Area or the Redevelopment Project, including but not limited to, the death of any person or any accident, injury, loss, and damage whatsoever caused to any person or to the property of any person that shall occur on the West Rancocas Redevelopment Area Property during same and that, with respect to any of the foregoing, are related to or resulting from any negligence or willful misconduct of Redeveloper, its agents, servants, employees, or contractors.
B. With respect to any interest in the West Rancocas Redevelopment Area acquired ·by Redeveloper from the Township, Redeveloper shall defend, protect, indemnify and hold harmless the Township Indemnified Parties, from any claims, liability, injury, damages, costs, claims, actions and expenses (including the cost of attorneys' fees) which may be sustained as the result of any environmental conditions on, in, under or migrating to or from the property acquired, to the extent any such liability attaches to the Township Indemnified Parties as a result of activities performed by Redeveloper or its contractors pursuant to this Redevelopment Agreement, including without limitation claims against the Township Indemnified Parties by any third party (the "Environmental Indemnity"), except for claims alleged to be caused by the Township prior to the Commencement Date ofthis Redevelopment Agreement.
C. In any situation in which the Township Indemnified Parties are entitled to receive and desire defense and/or indemnification by Redeveloper, the Township Indemnified Parties shall give prompt notice of such situation to Redeveloper. Failure to give prompt notice to Redeveloper shall not relieve Redeveloper of any liability to indemnify the Township Indemnified Parties, unless such failure to give prompt notice materially impairs Redeveloper's ability to defend. Upon receipt of such notice, Redeveloper shall resist and defend any action or proceeding on behalf of the Township Indemnified Parties, including the employment of counsel reasonably acceptable to the Township Indemnified Patties, the payment of all expenses and the right to negotiate and consent to settlement. All of the Township Indemnified Parties shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such separate counsel shall be at the expense of the indemnified party unless the employment of such counsel is specifically authorized by Redeveloper which authorization shall not be unreasonably withheld or delayed, provided, however, that if the defense of such action is assumed by Redeveloper's insurance carrier, employment of such separate counsel by the Township Indemnified Parties shall be at the sole discretion of such carrier. Redeveloper shall not be liable for any settlement of any such action effected without its consent, but if settled with the consent of Redeveloper or if there is a final judgment against Redeveloper in any such action, Redeveloper shall indemnify and hold harmless the Township

{00174343 Rev. I 1.4.13)

21

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 17 of 62 PageID: 6544

Indemnified Parties from and against any loss or liability by reason of such settlement or Judgment for which the Township Indemnified Parties are entitled to indemnification hereunder.
SECTION 10.2. Township Indemnification. The Township shall indemnify, defend and hold harmless the Redeveloper and its members, officers, affiliates, employees and agents, from and against any and all suits, claims, actions, demands, losses, costs and expenses (including reasonable attorneys' fees) of every kind, character and nature arising out of, resulting from or in any way connected with (A) the Township's responsibilities under this Redevelopment Agreement, provided that the foregoing, are related to or resulting from, the Township's negligence, willful misconduct or intentional violation of this Redevelopment Agreement and (B) the litigation referred to in Section 2.2(c) above.
SECTION 10.3. Survival oflndemnity. The provisions of this Article 11 shall survive the termination of this Redevelopment Agreement due to an Event of Defuult and shall run with the land and be referenced in the Declaration until such time as the Declaration is discharged as a result of the recording of a Certificate of Completion, provided, however, that such indemnity shall be binding on Redeveloper itself, each successor in interest to the Redevelopment Project, the West Rancocas Redevelopment Area Property, or any part thereof, and each party in possession or occupancy, respectively, only for such period as Redeveloper or such successor or party shall have title to, or an interest in, or possession or occupancy of the West Rancocas Redevelopment Area Property, the Project Improvements or any part thereof

SECTION 1OA. Insurance Required.

A.

Prior to any acquisition of any West Rancocas Redevelopment Area

Property by Redeveloper, Redeveloper shall furnish or shall cause to be furnished, to Township,

duplicate originals of commercial general liability insurance, insuring Redeveloper against

losses, costs, liabilities, claims, causes of action and damages for bodily injury, property damage

and personal injury on the West Rancocas Redevelopment Area Property or related to the

construction thereon, including claims made by subcontractor personnel, in the amounts set forth

in Exhibit F. Such insurance shall include blanket contractual liability coverage. All such

policies shall be written to apply to all bodily injury, property damage, personal injury and other

customary covered losses, however occasioned, occurring during the policy term, and shall be

endorsed to add the Township as an additional insured and to provide that such coverage shall be

primary and that any insurance maintained by the Township shall be excess insurance only. Such

coverage shall be endorsed to waive the insurer's rights of subrogation against the Township.

B.

Redeveloper shall also furnish or cause to be furnished to Township

evidence satisfactory to Township that Redeveloper and any contractor with whom it has

contracted for the construction of the Redevelopment Project carries workers' compensation

insurance as required by law, and an employer's liability insurance endorsement with customary

limits, and shall be endorsed with a waiver of subrogation clause for Township.

D.

Comprehensive automobile liability insurance covering all owned, hired and

non-owned vehicles with at least the following limits of liability: Bodily Injury Liability and

Property Damage Liability- $1,000,000.00 combined single limit per occurrence.

{00174343 Rev. 11.4.13}

22

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 18 of 62 PageID: 6545
CIinnessruutirrfaainncccaEeet.ecGooufmiCdpoea.mniApelslAelltliiilcnoesninunisrssaeunidsrcasieunnecptdeho.elpiScoitleaiscteireoesqfuNriereqewudirJheeedrsreebuyynadntehdrirssahtsaeeldlcatbitoelnekaessphttAali-lnCbfloaesrcsoeVbutIaIniItniielndaBfferisnotam'sl dTcisnehhosdaawuunllrncgacsteniohdbcFniiep.lteiattxshiynhcalaetlilpammlnt ingataosuyfatrtbeegAberaeelsclttoaohlinirinatarrshbitbeuyelledryae(bfnf3sofyac0erte)ctihsatpfdnetaohaycTlyaitcpootsiwrr(eeyiws)nmtrstoriihhetueitTqmpeupon,siwo(rilneoniid)corsihtteibahicspsyees.aeptrhbsoesiylsmpicrSteiihenmeestcsatc.riiaonyAnnsanullnsordhetsraubnlcleotohnbcceaiTnonnsnocuotwerrnlinaeb-nsdauhcstoiesipnre,sgsmhsawaaanbltiledtlherhi(aaaailvninlieyyd)
ARTICLEll EVENTS OF DEFAULT AND REMEDIES DbTcoyoenflRlasituneiltdgtueSoEtveEfveaCTelonnoTptwEIe(OrnvinsNeohntrhitp1eoo)1c:cf.c1aDu.sreerEfeoavnfuecalnetntshoaelforleeefugvDneeddneeftEaro,vueufltnn.FtloeAorsfcsneDyseuMofcanhauejeletuvoorerefnRmt(ireonedrseetuhvleetoslfocfpatrhoseemer)ofotofhrleal(oiniow)caEiclnluvgeregrneeetndvoceEefnDvtoseefnfs(athi)uaollaftl tdbwrdpcweueeoehmeeefrnianincedoduthdiygdiltlitiiieci(vogonA1daenegf2n;n.n0tnop,chp)orrieioattrdattvrsabygotihyyerdaesr(e3lecesdla0mompf,n)mteeehoeFcdndprotiaatylfwsbieyyiluetteunsicehnv,rahletegeyanhrwfsio,rEttsaeerhfimviRrmfeRtetetreeenehendnddatecaeiseonetevbvuiodfserpertoDeltileowoacoebpcenpifoymth.eahafruetsoihnlsnoftpeutratarchAandTsheceyogltfotwrifashcenauunaeiigrcllbsmttuhhialyrneesiecpgn(bot3thtpvua0oaeneat)nnrddoiddtnaebyanfrscnyaeteoo,ousqrnfvcluteatwoeieifvnnnstreauegtdinintraintptdtnesgialncouparenctttenyehhrooorafitfrowtstishcrarpmuesagirutcnrotfechaercoehnnoefmnymaenefideaolcnhuitiotnhltriuvucgeenieresedwfnnoorhaoiernbnatndheseta-, rsaCepdRmtpe(sucpnaeiAocheeucspakttedtdamehs)itreiitetelreotvniolhiier;ovovsoeidhdaresanaran(diasel,lla8dBwvoedini)tvmrepnnr.oia,,aufteraablrohjnbslrbndueeerttaca.cereaedgsneoaneegnhgakosRain,ketamvplprrisrleecudoeeegueloegduprnercnepn,faeistrtstnttoact,tlvtcaoelktrydeoyyojounrodeularoosfyoiafdlasotrppafdehgnRrianpeaeeannamsercyofoilsspodonrlieropienerreesagnleehLtthvtcvlnttietyaiateiitehmsdqitqivlolnoehio(luoueoewrc9nanpiinnby0hlddiedbltoetf)aaareheolnhrtfvitacceooroneaeobwaornrfrvrerntyni;hoeetaoawtsfahenfpei(foaclin4seycpaentRofhps)huldlynwlbiRaueotebRtilderoueievaldcapnneerrtdgeonoveuhdceaasukfsfeeaedovioeirreldnvvastneeturouyseeklspopoutobsloeiotoen;ffnbspcnfRrrpstgyeect(eatee7orcerfaoncrade)fornytouofendeimheaaRnnacrviedatnaltsdpeeonissrepeienldurartonnoretsaagenbfrestp,rnrivddestoneltehgateeoedldtaroeindevlrr,nnomjyfetfautUp(ownaoiineBerateoncrnfisdnilr)sfyttfitrehhdtapoaheestcwoseirnahphldac;stuisreisaretetw(fttioalSt3hofolsofpcfett)rt;nsoaheprcflnhRert(eaeorieoe2adaeadnteiglt)spdndidyalBonaiptmapeahthmigapoovpsnaiavnc;eisretelgvvnouktsiernl;iceetilsortontiouoasutpnrg(otbbndrp6ieogadeetoth)rnta(ofcieenh5aadroaynnfa,eys)nar
{00174343 Rev. 11.4.13)
23

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 19 of 62 PageID: 6546

ninety (90) consecutive days; or (9) Redeveloper shall have suspended the transaction of its usual business.

C.

Redeveloper shall default in or violate its obligations with respect to the

design development and construction of the Redevelopment Project in accordance with this

Redevelopment Agreement, the Redevelopment Plan, Governmental Approvals or Legal

Requirements or including but not limited to failure to comply with the Commencement of

Construction and Completion of Construction shall abandon or substantially suspend

construction work (unless such suspension arises out of a delay set forth in Section 12.2 hereof),

and any such default, violation, abandonment or suspension shall not be cured, ended, or

remedied within ninety (90) days after written demand by the Township to do so.

D.

(1) The passage of ninety (90) days following the filing of a complaint in

foreclosure if such complaint has not been stayed or discharged or (2) the issuance of a deed in

lieu of foreclosure for any financing in connection with the Redevelopment Project.

E.

Redeveloper or its successor in interest (except for third parties to which a

portion of the Redevelopment Project has been conveyed in the ordinary course of business)

shall fail to pay any real estate taxes or assessments on any real property or any part thereof

owned by it in the Township when due, or shall place thereon any encumbrance or lien

unauthorized by this Redevelopment Agreement, or shall suffer any levy or attachment to be

made, or any materialmen's or mechanics' lien, or any other unauthorized encumbrance or lien

to attach and such real estate taxes or assessments shall not have been paid, or the encumbrance

or lien removed or discharged or provision satisfactory to Township made for such payment,

removal, or discharge, within sixty (60) days after written demand by Township to do so.

F. Redeveloper implements a Transfer in violation of this Redevelopment Agreement.

SECTION 11.2. Force Majeure. Performance by either party hereunder shall not be deemed to be in default where delays or failure to perform are the result of the following acts, events or conditions or any combination thereof that has had or may be reasonably expected to have a direct, material, adverse effect on the rights or obligations of the parties to this Redevelopment Agreement; provided, however, that such act, event or condition shall be beyond the reasonable control of the party relying thereon as justification for not performing an obligation or complying with any condition required of such party under the terms of this Redevelopment Agreement ("Force Majeure"):

A. An act of God, lightning, blizzards, hurricane, tornado, earthquake, acts of a public enemy, war, terrorism, blockade, insurrection, riot or civil disturbance, sabotage or similar occurrence, but not including reasonably anticipated weather conditions for the geographic area of the Redevelopment Project, other than those set forth above (such events being required to physically affect a party's ability to fulfill its obligations hereunder; the consequential effect of such events (e.g., impact on market conditions) shall not be considered a Force Majeure event);

B.

A landslide, fire, explosion, flood or release of nuclear radiation not created

by an act or omission of either party hereto;

{00174343 Rev. 11.4.13}

24

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 20 of 62 PageID: 6547

nrciacaAGeneononaaggnodndsclrtv/soiteeogteinslerorreotaumnnincbcdnmCteatlegoienla.etoectfnon)ftrttaatimfawhooixllnaeifiunBtntrlohahpeayotraejwiduiortsnyRtsronuyaiecs(Tcgosddshtthoehotiiehoecnavoetnelcterilrhrdooolbaiotennnrsyhldprtloa,weyemsRtnsrujit,euebtca,ThnddephjoitsegupnphwvPtmdlahaietrngrchleeoltlsmaoyenjhbep;rtceTiecslmopne,ston;tueww,aspltncttonhrtiatotseioucAovhantftniiliegdplaotrce,hnaeobdteeneiru,nxdmoswhcgb/rioeeoneiinrplwenilttfnscdeiucsnoarveloecgn,tenltetsryaidifnt,onxiroenntuntprchiegemaniansdyaatatitentiohnsiaordneoucssn/srnec,aoe,hailrwonaniodotiwndetrvrhdreiaeplgetnnltrerorfhseder,ueoigmtjsllidtul,ynhiiRdgngiafgenaeaatfdmttnifeietnfetohdneeven,eanctieirctttnolaih,toonnoliea,pogfarrcmnslttttaitaehhoohontneenreeyrt FaDcotnsrhdooeruoeemrnnsltfcraspeaeiebtynweioileMntiuniaussntrlttD:ihaer:eoliane.josnetoodsir,urrvufretteaebirehsls;nerueaysmncltucteecianownoonoenamfcaifstteltithapTrohoeluhneGeorre,etfodtewiihsvsniaaessueltsunulesrfcaynbrpuaornmmeluncw,nopeitesisetint,nihlsisoltotietifaeoninnurlnnn,,lgA,tgGtdifeoiopooenoronpnfrmtvdaeriaeolaiannrnfvltonayaiGaoiomrttlisnrohoneruav,fenenclaesgn,thiruoalloniilulrsnrgmtruitneeAnteseehnrgpnpgoretetuplffaanirrprglcooesoteitaimvrAoionsoandnpotlnR,e,,pnalteracodaeopdbtryerivrelmonoieavininvnilaeanfiloladcsraoiretheotlpiinduariooenel,rnnrlfeaw'a,schnoiatitloooffnliuawottrtoiesnehleborruevrberoiueceyspfpraosa,ttsunnooiruaottrteycehnmnsdhvac,traeeet,edpklnlaeassesythyrnhuitaaoianycainllfg.nhlll

and/or

E. Strikes or similar transporters of same;

labor

action

by

equipment

manufacturers,

suppliers

of

material

F. Acts or omissions Redevelopment Agreement, or, as to

of the other party, except Redeveloper, acts or omissions

in of

conformance Township;

with

this

hrEDosteoteahhhvxfsefvearuetafetoelanlcnhlntuucatiecsagnleuooitchagTsconbftesonhFtfe.yoDniresndDofdatehuhpFmbtifuaoteaeaooirlroulivtpaertnonclibcexaetgseteirpsasistMassersythopeneraenarfreynsireojocnoteelFroittyttmumfeooofiiarnenriaetasicddrghtsceedsseeikohasaodMonubaontnebtollotsoatlshlwvejiunooeegbeilcgorufe)aefhhtprdtTtcitethapgFohoeorerteoneewntheysrntsFvaonchtfwet(noeisao1tnhalrtuiMry8ctftittfhpet)ehaaeah,imeccnjMpeFaettaaostlsourahlc,rnerrpjttiaceseteysrahecvt,utprfytseoretrMrneovof(ofo.tr3rematvsofh0nEjaitmeod)etchxdsuretceceRsridoaccteeResolorlp.tedahenfictnNrenFdadoidfvinteoionotatevgtitdirrrhailoecicotldeatnlehepioocasoeempMctybnvtcmoshoyeseaucnaornesjrtcttetnrefhauemuPttttecrhnhrrfPtraecasooeperyetjrnaowocet.ircj(hocsfietueltymcitF.lphnotomobcT,efplnreRhaecabaeisndeenramaadcesetEMgeeeiixisnmsrvmviaagfoseeaejpetlnefecnsodhtuttnutpshitroccooeoeAeehnfrf

SECTION 11.3 Remedies .Redevelopment Agreement.

Upon

Event

of

Default

Prior

or

Termination

of

. dtthheeesnifrianTbaolAlew.CnteosrhtiiepfnicfmaotraecyeoRfttaheCkmeoemepwdpeyhrlefaUottierpomvoneanrfnoEcarvectethinooetrnPoorfaobtDjseleecafrtwav,uaalnotnc.reEInivnoetfhneetqaouenivfyteDynretiafgstahhutamsltt,,abpyryreimaoRpreepdtdeoieae.vtrshe,neloeoipcbseeslrisugsaoaanctrcicyoeunroossr,,f

{00174343 Rev. 11.4.13}
25

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 21 of 62 PageID: 6548

agreements, or covenants of the Redeveloper, as applicable, under this Redevelopment Agreement, including the seeking of damages. Further, Township shall have the right, in its sole and absolute discretion, upon sixty (60) days' notice to the Redeveloper and any Holder, to terminate this Redevelopment Agreement and the Redeveloper's designation as the redeveloper
ofthe Project.

B.

Remedies in the Event of Termination of Redevelopment Agreement.

In the event that this Redevelopment Agreement is terminated by Township pursuant to the

preceding paragraph, Township shall terminate the Redeveloper's designation as the

Redeveloper of the Project. The Redeveloper shall pay over to Township all ofthe costs and/or

damages (including reasonable counsel fees) incurred by Township on account of the default of

the Redeveloper. Township shall have the right to apply to the aforementioned costs or damages

incurred by Township as aforesaid, any funds ofthe Redeveloper in the hands of Township at the

time of such default and termination.

SECTION 11.4. Remedies of Redeveloper Upon Event of Default by Township. In the event that, prior to the issuance of the final Certificate of Completion for the Project, an Event of Default by Township occurs, then Redeveloper may take whatever action at law or in equity as may appear necessary or desirable to enforce the performance or observance of any rights, remedies,
obligations, agreements, or covenants of the Township, as applicable, lUlder this Redevelopment Agreement, including the seeking of damages. Further, Redeveloper shall have the right, in its sole and absolute discretion, upon sixty (60) days' notice to the Township, to terminate this Redevelopment Agreement; and the Financial Agreement. Except as may otherwise be provided in
this Redevelopment Agreement, in the event of an Event of Default by the Township, Redeveloper's remedy shall be to seek specific performance as set forth in Section 12.5 of this Agreement and/or to pursue such other remedy available at law or in equity.

SECTION 11.5. Specific Performance. If an Event of Default occurs, or a party hereto
threatens to take an action that will result in the occurrence of an Event of Default, the non~ defaulting (or non~threatening) party shall have the right and remedy, without posting bond or
other security, to have the provisions of this Redevelopment Agreement specifically enforced by
any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach may cause irreparable injury to Township or the Redeveloper and that money damages may notprovide an adequate remedy thereto.

SECTION 11.6. Failure or Delay. Except as otherwise expressly provided in this Redevelopment Agreement, any failure or delay by either party in asserting any of its rights or remedies as to any default, shall not operate as a waiver of any default, or of any such rights or remedies, or deprive either such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or
remedies.

SECTION 11.7. Remedies Cumulative. No remedy conferred by any of the provisions of this Redevelopment Agreement is intended to be exclusive of any other remedy and each and
every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. The

{00174343 Rev.ll.4.13)

26

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 22 of 62 PageID: 6549

election of any one or more remedies shall not constitute a waiver of the right to pursue other available remedies.
SECTION 11.8. Continuance of Obligations. The occurrence of an Event of Default shall not relieve the defaulting party of its obligations under this Redevelopment Agreement.
SECTION 11.9. Litigation Costs. In the event that a party to this Redevelopment Agreement successfully pursues an action against the other Party to enforce any remedy provided in this Article, the successful party shall be entitled to payment by the other party of all reasonable costs and expenses incurred in connection with such action.
SECTION 11.1 0. Mitigation. The parties shall act reasonably to mitigate any damages that may be incurred as the result of an Event of Default hereunder.
SECTION 11.11. Survival of Termination. The provisions of this Article shall survive the termination of this Redevelopment Agreement as a result of an Event of Default by Redeveloper.
SECTION 11.12 Notwithstanding any ofthe above provisions:
A. The Redeveloper shall not be liable to the Township for any damages or expenses unless and until the same exceed the amount paid to the Township under Section 3.l(B).
B. Any Redeveloper funds remaining in the hands of the Township after the Township offsets said damages as shall be incurred by it shall be used to fund the Settlement Agreement or shall otherwise be used for the benefit of the Plaintiffs in the aforesaid litigation.
C. In the event of a default by Redeveloper under the terms of this Redevelopment Agreement with regard to one Phase of construction of the Property, it is understood and agreed by the parties that such default shall not be constitute a default by Redeveloper with regard to any other Phase where construction has commenced prior to receipt by Redeveloper of a notice of default from the Agency. For avoidance of doubt, a default by the Redeveloper with regard to one Phase of construction shall be a default as to that Phase and any Phase which has not then been commenced by Redeveloper. Phases which have been commenced shall not be affected by the default.
ARTICLE12 ADDITIONAL TERMINATION RIGHTS
SECTION 12.1. Additional Termination Rights of Township. This Redevelopment Agreement shall terminate upon notice by Township to Redeveloper of its decision to so terminate, notwithstanding the occurrence of an event of Force Majeure, the occurrence of a Tolling Event or the absence ofthe existence of an Event of Default, if on or before two (2) years following the Effective Date, Redeveloper fails to Commence Construction of the Redevelopment Project, except if Redeveloper's failure to commence construction is due to a delay in Governmental Approvals, which Redeveloper must have been diligently seeking in good faith.

{00174343 Rev. 11.4.13)

27

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 23 of 62 PageID: 6550

A. Nothing in this Section 12.1 shall prevent Township from declaring that an Event of Default by Redeveloper hereunder has occurred or from pursuing any of its other remedies hereunder.
ARTICLE 13 RIGHTS OF MORTGAGEE SECTION 13.1. Notice of Default to Holder and Right to Cure. Whenever Township shall deliver any notice or demand to Redeveloper with respect to any breach or default by Redeveloper under this Redevelopment Agreement, Township shall at the same time deliver to each Holder a copy of such notice or demand; provided that Redeveloper has delivered to the Township a written notice of the name and address of such Holder. Each such Holder shall (insofar as the rights of Township are concerned) have the right at its option within ninety (90) days after the receipt of such notice, to cure or remedy, or to commence to cure or remedy, any such default which is subject to being cured and to add the cost thereof to the debt and the lien which it holds. If such default shall be a default which can only be remedied or cured by such Holder upon obtaining possession, such Holder shall seek to obtain possession of the West Rancocas Redevelopment Area Property (or portion to which its mortgage relates) with diligence and continuity through a receiver or otherwise, and shall remedy or cure such default within ninety (90) calendar days after obtaining possession. In the case of a default which cannot with diligence be remedied or cured, or the remedy or cure of which cannot be commenced, within such ninety (90) days period, such Holder shall have such additional time as reasonably necessary to remedy or cure such default with diligence and continuity. SECTION 13.2. No Guarantee of Construction or Completion. A Holder shall in no manner be obligated by the provisions of this Redevelopment Agreement to construct or complete the Redevelopment Project (or portion to which its mortgage relates), or to guarantee such construction or completion; nor shall any covenant or any other provisions be construed so to obligate a Holder. Notwithstanding the foregoing, nothing contained in this Redevelopment Agreement shall .be deemed to pennit or authorize such Holder to undertake or continue the construction or completion of the Redevelopment Project, or portion to which its mortgage relates (beyond the extent necessary to conserve or protect the Holder's security, including the improvements or construction already made), without the Holder first having expressly assumed Redeveloper's obligations to Township with respect to the Redevelopment Project (or portion to which its mortgage relates) by written agreement reasonably satisfactory to Township. SECTION 13.3. Foreclosure. If a Holder forecloses its mortgage secured by the West Rancocas Redevelopment Area Property (or portion to which its mortgage relates)~ or takes title to the West Rancocas Redevelopment Area Property (or portion to which its mortgage relates) by deed-in-lieu of foreclosure or similar transaction (collectively a "Foreclosure"), the Holder shall have the option to either (a) sell the West Rancocas Redevelopment Area Property and the Redevelopment Project to a responsible Person acceptable to Township, which Person shall assume the obligations of Redeveloper under this Redevelopment Agreement in accordance with law, and/or (b) itself assume the obligations of Redeveloper under this Redevelopment Agreement in accordance with law. In the event of a Foreclosure and provided the Holder or the purchaser is in compliance with this Redevelopment Agreement, Township shall not seek to enforce against the Holder or purchaser of such parcel any ofthe remedies available to Township pursuant to the terms

{00174343 Rev. 11.4.13)

28

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 24 of 62 PageID: 6551

actdhcotePaFooouooeexbfroftnvfrmotlhTareeiesojeguotcwopentthcrattrcevlseluihiitetiovtszidctoohtonsheitirn.unnsdnbReishNrazgsyeebi.Wentopo.dPhyysAfteaTeretuhtvtohnsihnhchimejatmynihyeeelstRgopcaHHiFsRsprtanticouomnoonenIhhvcrcmlldeeaeeddtheoerhdcsnepemcviluHrrtrptsoae,,eolhrsseolnRAoveoouodlRtverdperrsgqmeiCedemtrdushtdereoeehauoeeeevndmleocnrmvietPrhftrselpseiieeoAlacnloPnsoropelangsheettptmtto,hri,arihmoeosnaeleiioelnonsvnrenmtansbnathDPsRiteteeAsalheaaanueArnarestgbdtmsdestnt.rrleoh,ueeetiefvninamaaeitvenngnlmiePlieaadnonndtsretnhpgohtsnsctmeucpohtimosomaesaseouelnrulChnbicltnsnryatlheuesteigl,rgusslActaooepabitbsggfisbtromuoeiirrlcnoaecneioiacsngenhetrtiosamyebewtntoisovioipmesliboiintaftodlncthprtriyRfueos,grtnoemeCanttbodcvhdhteopiuefeeeecoomltmvrerenRreeestpseseoeealsudlvnofdaseobee,ttpoerthsnejfiytevneoemotrecRsaptntlobeRraaeoodislpndtepnpyvoryedtteeeioosvaerdrucra,cefveeeptstoclhedaedipeoroslessirrmpofrnf,oomadeppognpocramasira,etrtnurobrtecocttcohlrlnooeeyhryeretl
ARTICLE 14 MISCELLANEOUS
fccdsfTrooeaeoorsrmemwvtemhminctebssieudmuehnSwlciiedopEhciewtatColahtninibTvtoopdiyeIntmaOrisrRceceeNkdeemgaddiugeasie1spitsyvne4ioegrgb.dnle1noeed.tarpertesaomeeNcecrrbenekocisdtyitpehniitrcwagn.teelirflfNsctifi.htaeebotpecdeetFatniimscbodvaneiereamlosmeiittlmemiauy,clppemeaadoo.ynnansdsnotaauntlfdigsfeocfeoereirlcipstbvwi,oreeeehnrpdsysituaclee.yihcmndhtSg,paibrunorveodyctethhosuneafrrniwoacfanorfrddeidmdtdcitesemerplceinipaoesvsttrmecncerrhiosmeyaetqliaudiucssnoeetivsseoac,teivaetrtathdhndiie,oleieargnambahnspldatdaend.rdbsdrteeIhyeslntsaiwmsvlatleehsnabreieydysent
Copies of all notices, demands and communications shall be sent as follows:
Ifto Redeveloper:
TRF Development Partners, Inc. Attn: C. Sean Closkey, President
1700 Market Street,
Philadelphia, PA
With Copies to: Charles Rizzi Capehart and Scatchard 8000 Midlantic Drive Mt. Laurel, NJ 08054
Ifto the Township:
Township Clerk Township ofMountHolly 23 Washington Street Mount Holly, New Jersey 08060

{00174343 Rev. 11.4.13}

29

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 25 of 62 PageID: 6552

With copy to:

George R. Saponaro, Esquire Saponaro & Sitzler The Newbold House 27 Cedar Street Mt. Holly, New Jersey 08060

Louis Cappelli, Jr., Esquire Florio Perrucci Steinhardt & Fader, LLC 1010 Kings Highway South, Bldg. 2 Cherry Hill, New Jersey 08034

SECTION 14.2.

Non~Liability of Officials and Employees of Township. No

member, official or employee of Township shall be personally liable to Redeveloper, or any

successor in interest, in the event of any default or breach by Township, or for any amount which

may become due to Redeveloper or its successor, or on any obligation under the terms of this

Redevelopment Agreement.

SECTION 14.3. Non-Liability of Officials and Employees of Redeveloper. No member, officer, shareholder, director, partner or employee of Redeveloper shall be personally liable to Township, or any successor in interest, in the event of any default or breach by Redeveloper or for any amount which may become due to Township, or its successor, on any obligation under the terms of this Redevelopment Agreement.

SECTION 14.4. Estoppel Certificate. Within thirty (30) days following written request therefore by a party hereto, or of any Holder, purchaser, tenant or other party having an interest in the West Rancocas Redevelopment Area Property, the other party shall issue a signed estoppel certificate either stating that this Redevelopment Agreement is in full force and effect and that there is no default or breach under this Redevelopment Agreement (nor any event which, with the passage of time and the giving ofnotice would result in a default or breach under this Redevelopment Agreement), or stating the nature of the default or breach or event, if any. In the event the estoppel certificate discloses such a default, breach or event, it shall also state the manner in which such default, breach and/or event may be cured. No more than a reasonable number of estoppel certificates may be requested per year.

SECTION 14.5. Lender Changes. If Redeveloper's lender requires a change in the terms of this Redevelopment Agreement, Township shall reasonably cooperate with Redeveloper in approving such change, so long as such change, if any, does not modify or change the substantial rights or obligations of Township as set forth in this Redevelopment Agreement. In addition, Township shall enter into such agreements as Redeveloper's lender (or its equity participants) may reasonably require provided that such agreement shall not be inconsistent with the terms ofthis Redevelopment Agreement (i.e., shall not increase Township's responsibilities or decrease its benefits hereunder).

SECTION 14.6. No Brokerage Commissions. Township and Redeveloper each represent one to the other that no real estate broker initiated, assisted, negotiated or consummated this Redevelopment Agreement as broker, agent, or otherwise acting on behalf of either Township or Redeveloper, and Township and Redeveloper shall indemnify each other with respect to any claims made by any person, flrm or organization claiming to have been so employed by the indemnifying party.

{00174343 Rev. 11.4.13}

30

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 26 of 62 PageID: 6553

cipspnouorvocritecvnineoitsesanisrnoeoSotnssrEftss,ot,ChofiaTettfnshIWdtOiphsriNeaRsosnvet1yRidR4see.isa7dovun.eneccvlshooecpsldoahmespaeemlPRdlnresetnondAvosteithgvsAarbieoelgellenormsempnemoeemNntregteonb.enttedtAMdabrreeyeeearmrgiPeneeartddoesopntnedWoretoidyatfhftffaorenoDcmybteineodRdderese.diRdmeseTvpdteoarelaivornetpshtlefhoeerperoreeiprrxn'rastgonevanytisitstssliiueotghcnntcasoset saaastnnnhodyder

iofccwniboonaclsnairtosngrsniacadnnoiteaiteofrsSlcanEcctititoitoCooonhnnnTdaspwuIsuaiOlncyintttaNohiacnntnott1ghpsny4ianabs.o8ienudfRcdfstieoiicnadoreetenrtgsovsoiwrevNrnlaeioeotnnoyphf,dfsmai.CoccnebRioondatnesatltswdiAosniedifigvloneltrehrgfenlaeeopottmipThrtooeieopnsfrnwaeftRysF.unseorsoitdohrhreniepgvRar,ielevwaldeosnae,epyrvramrvemnaielnycoonetpnttsshmeAiiystregudhnorcatrpehseeoAmnratshgsoeoertnenarpterc,acamonhoindeyittshneoimetcd.rrtoesitRrnn,haeceateyuidnnoregonrnveirfnoedooleroramtehpnroaeseyr,lrr

hbeinredtion,gaSnuEdpCothTneIiOarnNhde1iir4ns.u,9re.exetcoutthoSersu,cbacenensdesfaoidtrsmoaifnntidhsteArasptsoeirrgsmn. sit.teTdhissuRcceedsesvoersloapnmdenatssAiggnrseeomfetnhteshpaalrltibees

SECTION 14.10. hereto and/or referred to in forth in full.

thiEsxRheibdietvselaonpdmeSncthAedgureleesm. eAntllareExinhciboirtpsoraantedd

Schedules attached herein as though set

and only

SaencdStiEsohCnasTllIobOfeNtdhi1iss4re.R1g1ea.drdeevdelioTnpitcmloeensnsottrfAuiAgnrrgetieocmrleiesnntaet nrapdrreeStiienncsgteioartnneysd.ofTfohirtesthtpiertolecvsoisnoivofentnshi.eensceeveorfalreAferrteicnlcees

stctAhhhiregeacrlreurleebmbemyems,aSteeaainEnnnnftCdcdoeeoTresrcrIaeoOtocdhfhtNehttohoea1irttpsh4hpt.eReh1lri2aeect.ndxeaertteitmvohnenotlasoSptnehpeedmevntproeneerrinooatwttbvfehAiisdlsihigcitbaoyhrylen.leilottmaIowffiesat.nhantiiny,snyvoeRarxtelettidhedrenmevtoaerbploeopurplnhimcpeeanrledotfniovottrionAcsiebogoaerfnbeslieeunom,vcfhaeslthntihedatirlsslmohrnaRoluolerntdbpebeenrevofveovaalrilofcsifpiedeoamcnabteneltendod,t

eoaasswpfangthrhornthralaoricdaeotltltohllleweseivmbrcetidsuetnoe.beinnnrsSnteiahugnintiEnnicneotstfCch,foerfeRiTearqttsccoveuIssoieOdnoouivwtetrrcaNeyesvhnnhoroeedaai1falcsrnnog4Ttehdtospr.,fo1etmftothaw3eheosef.mecensrtnetiyshegpxthneTnAeroitoopsrcsrgcEpwoasrifaenmseohnnnreferasdmyopmlhatlrcrhliuceooplobennetcvtehimhsteeet,heyendenebradteaarnioleiinbrlntgntmetehhdbhgsnapetysfohesvdeottafTerrhaoivbiconeaoteeiehwrdndannbedprnerfdeiaefroseiueirimhnrscgtnrciiiihtepeenaophdts.rgr,fet,iioIheeiipswtrvnsesuuiiohsdatcbcowhinehulifceinddnrhctait.henretgosSoevingurgreudeamchponceeghtrthfamdribvieoasanuaeuegagftnntmtrcaraeetdahein,eelneosanybmimongrtarsbeernefwcneraonyaoeetchntrsavdshaodtcechasathonthenecniafdaooodfpnatvnafuctcgvTesaorornmopnooevvarowyereeanosmnnynstsesraauussenbnfhicsnotoettiehstssprft

{00174343 Rev. 11.4.13}
31

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 27 of 62 PageID: 6554

bertsawtRchehneugomheenefcrvdooeeheepeeresfdnucivvaemciaergeeeipnefrlnaSsaonoettrtEshveaptsiseemCeoonsesesrdrfaTetconoanoItaufdfonOtofrnrssdirpyNcmufntaroohicgontabrv1hsitidre4ennowaesnc.tcufga1taathohccri4inosnvienhcstusegeesaceRmnsothnssahefbehoynednearbatEesantslinrlvncneeoaysterftfarhnieouilocatcdorsrnhneluocplsasscevimutsobnhmesocseefnirhfeongaaainastgfnnnvaugtAsrttogirhfemtrrgeosbeseeherrmyoaeecamcaymfeetoleelRmRnmlbeanabteneeenmtweddtndoeseeuotdnrov,evnrtearfebiecientfltcoilolmedoyoenotvcpdhpevtaecee..deennfoqrrRnoa.dvubarnfeeieonottIdanny,trttneae,htdtvonfeihotiestrrcoieslniopoeahietaxwptnrhnhareiethetetveerriirsicierencsreipsdohhso,brepeafowpedlettpleuhahrnneilbheealorrylanipidapvtgcdrghreohodrooetrveutcarbheirregdapimeuienrnegrtedrgeidhyevaiin.gtndlawstsohgtsSoehttsatu,ha,ihfncntceioiaodnhnrhdrt

tswhuaecihvseamrm,oSedaEimifsCiecinTandtIimOwonerNi,ntwit1n,4agdi.,1vis5decr.uh,layarmgaeueM,nthdooomrdriceizfhneiactd,na,dgtaiieosncnodhfasotrihggfiens,eRoRderebddcyehevavtehneleglooepppimasmretoeynnrttamgAaAagyignrberseeetemwsmoehuenincgt hthshttNhaleol

modification, be valid unless enforcement of

coeoxnueenccuteotreupSdnaEtirenCtrspTosaInhrOeta,lNlothcr1ioms4n.Rso1tr6eiet.duectevoeuolnnEotepxemraepcneaudnrttttishoAenagnsoradfemeCwmeohiueennnnsttteresruahpmcaahlreltnp.btaT.erhctyiosmhRaeesdbeeinxvdeeiclnougptemodenanntthdAe dgperaelrievtmieerseendatnmadtaslyeuacbshet

soRionapfemtpedtorehep.rvitsreuelRnStoaiEepttiydCmoetTnevonIeObtrleoeNAvpimgi1enr4wefe.nle1uttm7heA.inescngeRtr,deeedeDmbaeryvcea,hneflttoti,phnpnaegmrotAeyfwanmctaetbciAgikgtghnhurtoaeitwtseihemlcaesoel:dlungIbntninsetaeegnrlgdpitrvfhheoeaatrnatvteiitoootncn,eao.nnnIoodtnrrfiibisntuthsthteaeerlcdplopruateoanntriysttneiheglcesoahfnnidansyvrtaarelpufrtfcheootdiavrodminsthiaoooinsnrf

SECTION 14.18. Time Period for given in writing in conformance with Section specified, within a reasonable time.

Notices. All 14.1 hereof,

notices to and unless

be given a certain

hereunder shall be number of days is

ndbapeuoryoftthavtouohipslreetiiotroiSaaneprEtssepoCoroofoTfrfapTIbtrOhboieairwNsceteoanR1cnsa4hhesu.dti1ortpehu9fvaoe.aenrdinldtotyiopeRpsmoeWrpdeooeenavfrvtiiavTsetAieleooorgwasnprseneoraesafhmanwtinhdpeadinisvaatARnelmlrmdeauodmeResfntveaednednbmldeyeomvepsienunmeltonbsewptsnseertiqhrint.AueinerTgengWrhtteoeadernmiemwtdfiuaneasusngitivlt.gtbebnoeryAeridbbtlnhlyrbweeyeawroicitttthahhihi.neevegrrearpappsnaapdrrrttooyyspifgsrohnitfaahetldaeel

pTaorwticnisphaSitpEe CisnThaaInlOlyNhdae1vc4ie.s2io0an.nyreldaitCrineocgnttfoloitcrhteinoRdfeirdIeencvtteerlieonspttem.reeNsntot AinmgretehmeimsbeeRrn,tewdoefhvfiiecclhioapilsmpoerrnotheimbAipgtelrodeyebemyeelnaowt,f.

the nor

SECTION 14.21. governed by and construed

in

Governing accordance

Law. with the

This Redevelopment Agreement shall applicable laws of the State ofNew Jersey.

be

{00174343 Rev. 11.4.13}

32

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 28 of 62 PageID: 6555

SECTION 14.22. Township Preservation of Police Powers. Nothing in this Agreement shall be construed to constitute a waiver of the Township's right to .exercise legitimate police powers to the extent necessary to protect the health, safety and welfare of the citizens ofthe Township.
SECTION 14.23. Withholding of Approvals. All approvals, consents and acceptances required to be given or made by any person or party hereunder shall not be unreasonably withheld or delayed unless specifically stated otherwise.

IN WI1NESS WHEREOF, the parties hereto have caused this Redevelopment Agreement to be executed, all as ofthe date first above written.

Witness

TRF DEVELOPMENT PAR1NERS, INC.
c. _<;, 2~.-..::>C.._os~~~.
~_::,rz...c£, IC':5L-'-'...:J ~

Attest

TOWNSHIP OF MOUNT HOLLY

By:.___________________

By:.________________________

{00174343 Rev. IL4.13}

33

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 29 of 62 PageID: 6556 EXHIBIT A
WEST RANCOCAS REDEVELOPMENT AREA PROPERTIES SUBJECT TO THIS REDEVELOPMENT AGREEMENT Block 12.05, Lots 1 through 36 and Lots 43 to 50
{00174343 Rev.l1.4.13}

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 30 of 62 PageID: 6557

EXHIBITB PROJECT SCHEDULE

ACTIVITY

DATE

A.

Execution of Redevelopment Agreement

11-6-13

B.

aapdApnredepdspdrigoIaiItnvriIaoe;atenlias,oalsrlnpeorcoerpeepflidaavpernerevdseselsfilsomouirpbtieemnPrahpirtalytadseneedassIr,iacgnwhndiaittetThecodtfuwurlnbalslyhspiitplTeaonLewsannngfdosinhrUeipePs,rheinaBosgerosaanirItddIs

4-1-14

c.

aTpopwronvsahlispfLoranPdhaUsesellBaonadrdIIIPreliminary and Final Site Plan

6-1-14

D.

Application for all necessary subsidies

6-1-14

E.

fAodrdCitHioOnIaCl EreadnedveHloOpMerEdfeusnigdnsaftoerdPbhyasteheIITownship applies

9-1-14

F.

Phase I available for move in

12-1-14

G.

Initial Construction Closing for Phase ll

9-1-15

H.

Phase II available for move in

9-1-16

I.

fAodrdCitHioOnIaCl EreadnedveHloOpMerEdfeismigdnsaftoerdPbhyasteheIIITownship applies

1-1-17

J.

Initial Construction Closing for second 20 units

K.

Remaining 20 units available for move in

9-1-17 9-1-18

(00174343 Rev.ll.4.13}

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 31 of 62 PageID: 6558 EXHIBITC
REDEVELOPER OWNERSHIP STRUCTURE TRF Development Partners, Inc. is a non-profit support corporation of The Reinvestment Fund, Inc.
{00174343 Rev. 11.4.13}

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 32 of 62 PageID: 6559
EXHIBITD
GOVERNMENTAL APPROVALS
Preliminary Subdivision Township NJDEP Wetlands General Permits if required Water Reclamation Authority LocalMUA NJDEP Sewer N.TDEP Water Burlington County Soil Conservation District Preliminary Subdivision County Final Subdivision Township Final Subdivision County Preliminary Land Development Township Preliminary Land Development County Final Land Development Township and County
(00174343 Rev. 11.4.13}

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 33 of 62 PageID: 6560 EXHIBITE
PROJECT TEAM Principals: Redevelopment Project Manager: Attorneys: Redevelopment Project Engineer: Architect: Environmental Consultant: Redevelopment Project Planners: Construction Supervisor:
{00174343 Rev. 11.4.13}

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 34 of 62 PageID: 6561

EXHIBITF TABLE OF INSURANCE AND BOND REQUIREMENTS

Type of Insurance

Limits of Liability

Term of Coverage

1. Commercial General Liability

$1,000,000 each loss/$2,000,000 policy aggregate

Annual policy until completion1

1 Policy is to provide completed operations coverage for a minimum of 3 years following issuance of fmal Certificate of Completion.
{00174343Rev.11.4.13}

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 35 of 62 PageID: 6562
EXHIBIT E TO SETTLEMENT AGREEMENT RESOLVING UTIGATION IN THE MATTER OF MT. HOLLY GARDENS CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No. 1:08-cv-02584-NLH-JS

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 36 of 62 PageID: 6563
FOURTH AMENDMENT TO MASTER REDEVELOPMENT AGREEMENT
FOR THE WEST RANCOCAS REDEVELOPMENT AREA
BY AND BETWEEN TOWNSHIP OF MOUNT HOLLY
As Redevelopment Entity AND
KEATING URBAN PARTNERS, LLC
Date: November f) ,2013

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 37 of 62 PageID: 6564

AP4pWT((""0uerHTRAncrasohsneE:uhw1dsSaiy2ennnTtlAvTrgsvtHeeh-Otaelo1itnoItpoWnS,ip"aPm)eSNtF,thLtherSOieieanlsmHaetUedtpmqiAI,RtePr.eM,lumoTdpnvheoHaiOiLnciusnaidiinFdp,oAamtabPnMHleisKAMlnoiEEcttlo1Oy"oNlA9y)frU,CD1p,Td0toNNoMhIa3rNmeJTatEe(tGp0idCNLoa8Honano0TUslyc6Olaeo0oRTLwlc,ffBOtLiaiNRttvAcYhhoeeTteNilv,donyHeefgSmfvrElPioteiecabAnfcletReeoaesRtrrpthEteTmeleodDodNfeccEntaaENoiVpttnReaeaEdcawSsLnit,a,thtdyhOteJeLe2oPPHrL0"hfsMCP1oeCoaoay3uEerur,sneNtni(iwidn"extTbeygRsityv.She"Ae)udLolGieooaaftvnpewfRfedmi,B2lEcoe0ueENpnb3sretMle,.irJtean".w1ESnt)g6,te.Nt0iA2oet0T3aynn.

WITNESSETH

pasaratimciepWnadtHeediEnaRnthEdeAsruSepd, petvlheeemloLepnomtceaedlnt(R"aeRnddeedviemevlpoelrpoompvmeenmetneatnntLdoawfHa"or)eu,aspsinriognvniLdeaeewsd,aoNpf.rrloeScd.eeAvses. lf4oo0prmAme:nult2n~Aicai-npld,aleittiesseqt.o, RNReeodd. eevv2ee0Wll0ooH2pp-mmE17eRennEttdALeASasriw,egain(n,a""tRoeraeddsdeercaventeorltoaaspritneimmaeupnilnratotApenererereetadid)ee;svoaefnoldorfepdmtehevenetl,oTtpohmwe enTnsohtwipannsdkhniiponwCaoncucnoacsridla"bntyhceeRewGsoiatlhrudteitohnnes

WHEREAS, pursuant to its plans for revitalization, the Township Ordinance No. 2003-12, adopted the Gardens Redevelopment Plan, which the plans for the redevelopment of the Redevelopment Area; and

of Mount sets forth,

Holly, by inter alia,

WHEREAS, in order to include adjacent Township amended the Redevelopment Plan in Rancocas Redevelopment Plan, ("West Rancocas

land areas in the Redevelopment February of 2005 and renamed it Redevelopment Plan"); and

Area, the the West

as

WHEREAS, the West Rancocas Redevelopment hereinafter defined as the "West Rancocas Northwest

Plan was superseded to the property Corner Redevelopment Plan"; and

aRir(cmehnoedednpdersleevKeivisemneetlWiaolaenoftpngHitpenetmedErogdeRfbrUniteyEnhtrfAebeARthraSbegranedl,rtodeePccetvheakmerrtesoltteoananiTpenntareo"dssr)Mw,;iln"nLoaaRsstnLshatdeCecidsprcpeoR(ev"drcedeKeidlasfoeeniiacprvcetameeidlnlloeywgnpt"hitml)tiah,setAtdntehtradtheetAeeaaWd"gn)Wdr,eFeseeietldmbsoeRtrcenuaantRatniterfacyidbnoeycdc1owa5aicsn,niatdR2hst0hiben0Rede6teeawvtdth(etee"ealevOocnehprTltiemohgodpeiwenmnETnatexlsonPhhwMtliiapbnanA,ists,hrtAbeaiepesar,

acmeretanidneWdAHmbEyeRntEdhmaAteSnc,ettrhtteaoinoMriSgaeisnctaeolrndMRaAesdmteevreenRldoempdmeenvetenltotopAmMgeranestetAemrgerRneteedmdeaevtneetldowpMamsaeaynmt 1eAn5,gder2ede0bm0y7e,tnhtfautdrafthitreesdrt

October 26, 2007, a Third Amendment to Master Redevelopment Agreement November 14, 2012 and Amendment and Restatement of the Apartment Portion Master Redevelopment Agreement dated November 14, 2012; and

dated of the

{00172569.00Cj

2

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 38 of 62 PageID: 6565
NOW, THEREFORE, pursuant to Section 15.5 of the Redevelopment Agreement, for and in consideration of the premises and of the mutual representations, covenants and agreements herein set forth, the pa.I.iies hereto, each binding itself, its successors and assigns, do mutually promise, covenant and agree to an1end the Redevelopment Agreement as follows:
1. Redeveloper hereby relinquishes its rights and obligations under the Redevelopment Agreement and Redevelopment Agreement Amendments. to serve as Redeveloper of Block 12.05, Lots 1 through 43. Redeveloper has entered into an agreement with the subsequent Redeveloper of Block 12.05, Lots 1 - 36 inclusive and Block 12.05, Lots 43-50, TRF Development Partners, Inc. ("TRF"). Letter agreement between Keating Urban Partners, LLC ("KUP") and the Township of Mount Holly ("Mt. Holly") as supplement to the letter agreement between KUP and TRF ("KUP - TRF Agreement") attached hereto and made a part of this agreement.
2. Pursuant to the agreement between Redeveloper and TRF shall cause to be built forty-four (44) homes as per the Settlement Agreement reached in the matter of Mount Holly Citizens in Action v. Township ofMount Holly, et als., Case No. 1:08-cv-02584-NLHJS. The homes will be built in the manner set forth in the Settlement Agreement. The model of home built by the Redeveloper is subject to the approval of the Township. The terms of the Settlement Agreement are incorporated herein.
3. Redeveloper shall deliver Block 12.05, Lots 1 through 43 to TRF m an improved and approved condition.
4. The letter agreement between Keating Urban Partners, LLC (11KUP") and the Township of Mt. Holly (''Mt. Holly") as supplement to the letter agreement between KUP and TRF Development Partners ("TRF DP") ("KUP - TRF DP Agreement") attached to and made part of this agreement.
Mt. Holly and KUP among other parties have entered into a Settlement Agreement to resolve a certain lawsuit regarding the redevelopment of the West Rancocas Redevelopment Area. The Settlement Agreement provides that Mt. Holly will cause 1) certain replacement housing to be developed for various plaintiffs and 2) for additional 11Ernerging Market" housing to be developed.
Mt. Holly has requested KUP to assign certain rights under a Master Redevelopment Agreement to TRF DP. Mt. Holly has also requested KUP to facilitate TRF DP's redevelopment efforts, by assisting Mt. Holly to cause the site-development and construction of 40 replacement homes, as defined by the Settlement Agreement, for TRF DP, together with 4 "Initial Replacement Homes" as defined by the Settlement Agreement for Mt. Holly.
The terms of the KUP - TRF DP Agreement do not have a defined date upon which TRF DP expects to require that KUP begin construction on the 40 Replacement Homes, however, the Agreement does have a defined price of $125,000 per unit. The Agreement does not have an escalation clause for price increases over time. KUP is willing to execute the KUP-TRF DP Agreement; however, KUP will take no risk for cost increases due to pricing escalation. Mt Holly will be responsible for any and all escalation costs, if any, attributable to the Replacement Housing for TRF-DP not started for construction within 6 months of this agreement. KUP and
3

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 39 of 62 PageID: 6566

Mt. Holly will work together to reduce costs associated with the development of these Replacement Homes to the extent possible by agreeing on design, waiver of bonding requirements and engineering escrows, expediting approvals, working with other municipal entities who will have impact and approval for this work .and generally mitigating the cost for
the work.

Mt. Holly has requested KUP to cause the 4 Initial Replacement Homes to be constructed immediately. KUP has secured pricing for the Initjal Replacement Homes that meets the price per home outlined by the KUP-TRF DP Agreement. Mt. Holly is responsible for the cost of the development of these 4 Initial Replacement Homes and will make payments necessary to cause such work to occur. KUP and Mt. Holly will work together to reduce costs associated with the development of these Replacement Homes to the extent possible by agreeing on design, waiver of bonding requirements and engineering escrows, expediting approvals, working with other municipal entities who will have impact and approval for this work and generally mitigating the cost for the work. KUP and Mt. Holly will work together to find sources for the payments necessary to cause such work to occur.

5. Redeveloper shall make its best effort to expand Phase 1B into the area previously designated as Phase 2 in order to create 1OO,OQO - 120,000 square feet of commercial space. The number of residential homes to be constructed in Phase 2 shall be reduced. The amount of commercial space created in the reduction of residential homes in Phases lB and Phase 2 shall be agreed upon by the Parties after future consultation by and between the parties.

6. The Purchase Agreement between the Redeveloper and the Township shall be adjusted to comply with the future plans agreed upon by the Parties.

7. All other Articles and Sections of the Redevelopment Agreement and subsequent Amendments to the Master Redevelopment Agreement not specifically amended herein shall remain in full force and affect.

IN WITNESS WHEREOF, the Parties hereto have caused this Fourth Amendment to the Master Redevelopment Agreement to be executed, all as of the date first above written.

Witness

KEATING URB N PARTNERS, LLC
B\y:G~)! I
Michael V. Sbncindiver, President I

Attest

TOWNSHIP OF MOUNT HOLLY

By: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

By:_ _ _ _ _ _ _ _ _ _ _ __ Mayor

l00 !72569.DOC}

4

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 40 of 62 PageID: 6567

EXHIBIT F TO SETTLEMENT AGREEMENT

MT.

HOL.LY

RESOLVING LITIGATION IN GAROENS CITIZENS IN ACTION,

THE MATTER INC., ET AL V.

OF TOWNSHIP

HOLLY, ET AL., Case No. 1:08-cv-02584-NLH-JS

OF

MT.

Anticipated Project Schedule

s(pAiltae)nAsendsgudibintmieoeintrtaienldgreaadnneddvTeploorwpepnerashrdaieptsioiLgnannaodtfeUdprsbeeyliBmTooianwradnrysahpiapprrc,ohmvi·taelictsstruderecaseliigvpneleadent,soprfroePrphaaPrsheeassIseiste

plans, with full II and Ill; also
April 1, 2014

(B)

Township

Land

Use

Board

Preliminary

and

Final

Site

Plan

approvals

tor

Phase

II and June

III I, 20I4

(C) Additional redevelopet· designated by the Township applies for CHOICE and HOME funds

for Phase II

September I, 2014

(D) Phase I available for move in

December I, 2014

(E) Initial Construction Closing for Phase II

September I, 2015

(F) Phase II available tor move in

September I, 2016

(G) Additional redeveloper designated by the Township applies for C!IO!CE and HOME funds

for Phase 1II

January 1, 2017

(G) Initial Construction Closing for Phase Ill units (H) Phase Ili available J-(:w move in

September I, 2017 September I, 2018

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 41 of 62 PageID: 6568
EXHIBIT G TO SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GARDENS CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No.l:OS-cv-02584-NLH-JS
Design Standards
The project will include two building designs; single (I) story duplexes and three (3) story townhomes. The design standards for the buildings are as follows:
Duplexes - single story • Buildings are intended to meet ADA accessibility standards and will have one entrance with zero (0) elevation for accessibility purposes. • (8 units- all replacement homes) 2 BR, I BA (or 1.5 BA)- Minimum sq. ft.- I000-1100 (including gamge) • (2 units- all replacement homes) 3 BR 1.5 BA- Minimum sq. ft. - I000-1 I00 with no garage. Unit will also have exterior shed/storage not included in square footage. Shed will be wood construction or comparable composite material and will be jointly selected by Keating and TRF DP.
The exterior finishes and design will be jointly selected by Keating and TRF DP. The design will be comparable to the townhomes and include features like: bay windows, covered front porches with decorative pillars, partial brick facades and roof gables.
Town homes • 34 townhomcs (including 10 t·eplacemcnt homes) • I,300 square feet of living space, excluding one car garage • All units will have 3 bedrooms and either one ll•ll and one half bathroom or two bathrooms • One car garage • Exterior finishes similar to elevation of Beethoven unit by Ryan Homes at Cinnaminson Harbour (sec image below) o 40% front partial brick ft\cades o 40% front bay windows o 20% full house gables, 40% partial house gables o fi·ont door and window decorative trim on all units o decorative shutters where appropriate

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 42 of 62 PageID: 6569
·~·
Generally Applicable Standards- Both Duplexes and Townhomes • HOME and CHOICE standards for all units • Energy Star Home Certificate; HMFA Green Building Standard • Landscaping per Township code (including sod, shade trees caliper over 5", decorative shrubs) • Minimum yard space as per site plan • Soaking tubs in bathrooms • Visitability- at a minimum, each unit with livable space at ground level will have at least one zero step entrance, doors with 32 inches of clear passage space and one bathroom or · half-bathroom on the nrst iloor
Site Layout Standar·ds • For townhomes, no more than 5 attached units • No cui- de-sac or dead end streets • No units fi1cing Grant Street • Underground storm water management or basin if required by site plan approval • Retaining Wall to contain high slopes if required by site plan approval
Overall construction design and ()uality standard • Reputable builder with sufficient capital and development capacity in New Jersey.

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 43 of 62 PageID: 6570

EXHIBIT H TO SETTLEMENT AGREEMENT RESOLVING LITIGATION IN THE MATTER OF MT. HOLLY GARDENS CITIZENS IN ACTION, INC., ET AL V. TOWNSHIP OF MT. HOLLY, ET AL., Case No.l:OS-cv-02584-NLH-JS

LEASE WITH OPTION TO PURCHASE

This lease is made on Between the Occupant Whose cmTent address is

And the Ownet· Whose address is

Mt. Holly Township 20 Washington Street, Mt. Holly, NJ 08060

I) Purpose of Lease With Option to Purchase: The Parties to this Lease With Option to

Purchase have entered into a Settlement Agreement that resolves the above-mentioned

litigation. Pursuant to the terms ofthis Settlement Agreement, the Occupant shall be

provided a Replacement Home in exchange tor their Gardens Home, as these terms are

defined in the Settlement Agreement. The Occupant's Gardens Home is located in a section

of the redevelopment area which is needed immediately for redevelopment purposes. In

accordance with the Settlement Agreement, the Township has given notice to the Occupant

of its need to acquire the Occupant's Gardens Home and has ofTered the Occupant the

property listed below as a Temporary Replacement House, as that term is defined in the

Settlement Agreement, until the permanent Replacement Home is made available to the

Occupant. The Occupant has agreed to transfer title to the Occupant's Gardens Home to the

Township in accordance with the provisions ofthe Settlement Agreement and to temporarily

relocate to the property listed below. This Lease With Option to Purchase effectuates the

provisions ofthe Settlement Agreement with regard to the Temporary Replacement House.

2) Property: The Occupant agrees to lease from the Township and the Township agrees to lease to the Occupant the property to be used as a Temporary Replacement House, located at:

3) Rent and Property Taxes: The Occupant shall not be responsible for paying any rent or property taxes to the Township during the term of this Lease With Option to Pmchase.
4) Use of the Property: The Occupant agrees to use the Temporary Replacement !louse only as a residence tor his or her self and family members. The persons who will reside in the ·remporary Replacement House are the following:

5) Assignment and Sublet: 'fhe Occupant agrees not to assign this Lease With Option to Purchase, not to sublet any pat1 of the pmperty, nor to allow any other person to live therein, other than as named in paragraph 4, without obtaining written permission from the

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 44 of 62 PageID: 6571
Township. The Township agrees not to unreasonably withhold consent to permit additional household members.
6) Pets: The Occupant can bring any pets currently in their Gardens Home. No additional pets are permitted on the premises except whereby granted by the Township, in writing, which the Township shall not unreasonably deny.
7) Occupant responsibilities: The Occupant agrees to keep quarters clean and in sanitary condition. The Occupant agrees not to permit any deterioration ot· destruction to occur while occupying the property other than not·mal wear and tear. The Occupant is required to change the filter in the air~conditioner and/or thrnace as needed f-or optimum efficiency and safety of said prope1ty. The Occupant will not remove any existing smoke detectors and will be responsible for replacement of dead batteries. Occupant agrees, at Occupant's expense, to keep all waste and drain pipes open, and to repair all damage to plumbing caused by Occupant or his/her invitees. The Occupant is liable tor all broken glass in the property. If the Occupant is provided with any instr·uction booklets for property, or its contents, the Occupant shall be responsible for following said instructions and for leaving booklet<; upon vacating. The Occupant shall be liable for all trash removal as directed by local governing regulation. The Occupant will furnish trash cans and shall place trash at the curb no sooner than the evening before days designated by the municipality lor trash collection. No loose trash will be placed in containers. The Occupant has been supplied with recycling bin and agrees that upon vacating recycling bin shall remain with property or the Occupant shall be charted $10.00 for said container.
8) Alterations, Additions, Improvement, and Decorations: The Occupant will make no alterations, decorations, additions, or improvements in or to the Temporary Replacement House without the Township's prior written consent. All alterations, additions, or improvements upon the premises will become the propet1y of the Township and will be surrendered with said property at the end of the term of the Lease With Option to Purchase. The Occupant will be responsible for any damage caused by leaving windows open or by allowing stoppage and/or overflow of water and/or sewer pipes. The Township agrees to repair the Temporary Replacement House with reasonable promptness when the problem is caused by fair and reasonable wear and tear or by forces beyond the Occupant's control. The Occupant agrees to be responsible for repair of the premises if damage is caused by his/her misuse ot· that of his family or visitors. If the Occupant must leave the premises because of damage not resulting fi·om the Occupant's act or neglect, the Occupant is not liable for any payment to the Township

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 45 of 62 PageID: 6572
·· · and the Township agrees to make another Temporary Replacement House available to the Occupant in accordance with the terms of the Settlement Agreement. The Township is not responsible fot· any inconvenience or interruption of services due to repairs, improvements, or for any reason beyond the Township's control.
9) Maintenance of yards: The Occupant acknowledges that she/he is legally responsible for
maintaining the lawns and landscaping. The Occupant will be liable tor any damage
caused by lack of water, abuse or neglect. The Occupant shall maintain all lawns and shrubbery in good order, and upon failure to do so, the Township may, after 7 days written notice to Occupant, keep and maintain said lawns and shrubbery in good order and condition, and Occupant agrees that any such expense will be payable to the Township.
The Occupant acknowledges that s/he is legally responsible for ensuring that driveways and sidewalks are passable and fi·ee of debris, including removal of snow and ice.
I 0) Utilities: The Occupant is responsible for payment of the following utilities: a. Cold water b. I-Ieat c. Sewer d. Hot water e. Air conditioning f. Electricity g. Gas A copy of the sewer bill will be provided to the Occupant by the Township. Upon
receipt of said sewer bill, the Occupant shall pay the amount due within 30 days.
II) Roof Leaks and Wood Boring Insect Alert: The Occupant agrees to notify the Township immediately if the roofleaks, if water spots appear on the ceiling, or at the first sign of wood boring insect activity.
12)Township's Right to Entry: The Occupant shall permit the Township, its agents and employees, to enter the premises at allr·easonable times for any purpose directly connected with repair, improvement, inspection, care and management of the premises. Unless there is an emergency, at least 48 hours notice of Township's intent to enter will be given to the Occupant. The Occupant must notify the Township if the Occupant will be away for 30 days or rnore. In case of emergency or the Occupant's absence Jor more than 30 days, the Township may enter the premises without Occupant's consent.
13) Pest Control Policy: The Township shall ensure that the premises are pest-free at the time the Occupant moves in to the Temporary Replacement House. The Occupant is responsible for any on-going pest control service, if such service is desired.

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 46 of 62 PageID: 6573
14) Fire Hazard and Compliance With Law: The Occupant will not keep anything in the property which is dangerous, flammable, explosive, or might increase the danger of fire or any other hazard. The Occupant must comply with laws, orders, rules and requirements of governmental authorities and insurance companies which have issued or are about to issue, policies covering this property or its contents. The Occupant will neither use, permit to be used, nor store any illegal drugs on premises.
15) Violation of Provisions of this Lease With Option to Purchase: If either Pmty contends that the other Party has violated any provision of this Lease, they may pursue dispute resolution in accordance with the provisions of the Settlement Agreement and, ifthe issue is not resolved, seek enforcement of the Settlement Agreement through federal court proceedings.
16) Other Conditions: It is agreed by each P<uty that no other agreements have been made by either of the Parties other than the Settlement Agreement that it is not herein expressed.
17) Security Deposit: No security deposit has been paid by the Occupant to nor required by the Township.
18) Maintenance Requirements: The following parties are to be called in the event of maintenance requirements:
If you cannot reach anyone at the above number· and you are experiencing a property emergency call -·-·----·--·--·---·--·----· All repair bills for which the Township is responsible require prior written approval of the ·rownship unless repair is of an emergency nature.
19) Option to Purchase: The Occupant has the option to purchase the Temporary Replacement House for $1.00. The Occupant may exercise this option at any time at the Occupant's sole discretion. Upon exercise of this option, the Occupant shall become responsible for all taxes, maintenance, and other expenses associated with ownership of the property fi·om the date of closing.
20) End of Lease Term: This Lease With Option To Purchase shall terminate upon the following events: a. Exercise of Occupant's option to purchase at any time during period of occupancy; or b. Upon 60 days notice by the Township that the Lease is being terminated because the Occupant's permanent Replacement House will be available for acquisition and occupancy. After receipt of such notice, the Occupant will be required to exercise the option to purchase the Temporary Replacement House prior to closing on the Replacement House in accordance with the Settlement Agreement.

Case 1:08-cv-02584-NLH-JS Document 215-2 Filed 11/15/13 Page 47 of 62 PageID: 6574
JN WITNESS WHEREOF, the Parties have entered into this Lease With Optioti'to· Purchase as of the date first above written.
BY: ---O-C-C-U-P-A-N-T-----------------
BY:._ _ _ _ _ _ _ _ _ _ _ _ _ __ TOWNSHIP OF MOUNT I-lOLLY

Case 1:08-cv-02584-NLH-JS Document 215-4 Filed 11/15/13 Page 81 of 84 PageID: 6785

MT. HOLLY GARRDAHEEDOSNDLOSELLNCYVDI,ITNEUITGZMEALTNLIODS., GSICNEAasTATeTCINLOToENI.OlM:IONNES,NT-IcNTHvC-AE0.G,2ME5R8ATE4TAE-NTMLLEVEHRN.-OTJTSOF WNSHIP OF MT.

at4cU4Ahn,olendg(n2iiarrf0tfeo)ei1c(endr3llmmaa)A.Sli(iemIAttztSnaoeswt)tedet(tfehsaitoxoilese)DrenmlFaacaiOnsuetepteddtncreereittrdLcorniAato.botlChdeCgtReerroiodevu3uSef.1lrtemeshRt,tisadtx2e.ltooen05yoem1tf.esn33hCaee.anr(indsvdAost.ie)tAbllTclrfePteoghIiertnorrianosendpicendAiuemovrrjddiafupedudftornuthreiestesaendeddldgsSiubPuoceorylmvtitaifnteotilehnrgeinnnsetmtiipfhafnpoeufdegarsnrdcrpstwdteeueiAimdehasrsigmonteooritndhiensttteaohsotomdaheFffleneNeStonhodaeoftebt.tlvntiopRtleteeevrim.eregmemdCva-beceitiseonviadrouop.ttn1stAPfoilo.tiytgbhonnreedeetNihdeScsoemmlelaviteertitevisilnmgfesetimeaenbtdtdotieeotrnthnote make that clarification.
Section 10 of the Settlement Agreement is hereby deleted and replaced in its entirety by

the following:

10. Execution of this Agreement and Dismissal ofLitigation

. .

oAteRRhAhiindCxCmngeieelimesroysroddpaecemuSueeeltuuefeorvnrveimoptttmseidter1ooaotsolemell0oaesnonefndfln.ppmEt1tatoshtoRehebauxeefrESrefetbyhnaittAftdUosohiinthfapbetnecagAenalvAuiclctrtnioTeglettuppdaDtuelfreiroarotddeaatrm;iorwhpieeotlttv(Silmeinieino3ynseiotrncdn)asseonseStAehtnfiaeaofbesimiotglnsnDpt;efftrfRdai'iaSol(esilntle2ssa_erheempgmv:)rdmtfesteutohiteefeliiotnfeiaetsvetninoJensmtefttaailiavtholaomllAeoloobfnernnovwtdpptegdhdertofitelrimsowerrAetniramanearmegnAefgtmscaiitdeterusfgcehnnAeniesborrridceintatestsgnnaamihttertodgrtSt,iaaemiifereiwooentiaPteniTcicenntrfmoiltiatiniot.aaibncothotwetiliTashynlofbnnty:thnathtnief;thi(oisthastfas1aihownifiettsn)mssitSfAapedTb'Sepeticechymxoletea(hnaote5tewnnltertemeh)ctlddMdnhntemueoeipdmesKnhtnoThelietgeTaotueehndiorripnannobeytnewRtttwAettoCidbonAnHfewrnfgooygdsaagotsrrhuiehtfsehtretlhinvthehilepi:syeecAeipmaUjplimxCtSUTolgraehn;peeoprneotnnaijre'tuQntedwutotnieeltnrtdivsedemdA,ntchAmiidswEicdedSeaghlexe,;eSndlitriltasnepat(itahettat4ctnsaeifaeCtu)otodtsekmhsttnroasaee~iaSaocucttnDthuletnhnftu.efpoiecfaosrbrdieltelfterc.hmiotitchnifetegn·

this Section. ·

sathhbeaolvlpersoiogv1cni0cs.tui2horinrEsisnfSfignee.ctHtStleeoomcwftSieeonivngtenA1ri,0ngt.gh1reioseafmrAeSegsenratetttliepesmrmfiioeeednrn.tttosAhagalllrleoenfmotthebenetc.cooIntmdiseitaiboninntisdciirpneafgeteorrdnedtahnatoyt

the Plaintiffs in Section 10.1 party until all of

10.3 Procedure for Dismissal of Litigation Astgiprueelamt1ieo0nn.3ts,.1othfeEdAixsedmcduiestnsiaodlnutmoofdtDoisotmhceiusmsSetehtnteltesCmboeymnPtplAalaigninrteitfewfmsi.tehnPptl,areianjlultidrfeficqseusihtroaelddlisRsimgelniesatshsteehseS, etCwttoloemmaplteleanritnnattien. the
1

Case 1:08-cv-02584-NLH-JS Document 215-4 Filed 11/15/13 Page 82 of 84 PageID: 6786
UACDdCsetPhhtinnomoooliseafpimmcmloteiduUuenrnpipldmcsttnadllhiesaatifeSeaemitifidonentnlmsadtent'twCst"neRs"i)Ssointsh)hteta.mohaaDaeqnltlfspOpuldelitcsrlisbhdnraretaeeroeDiijeisnudCwcdtmiotdetsoiDnirfsptiCncmrsmatoeieshsomccnes,ieuttusdnhitorsCnsmhitteentf,geOoidegtPpauhUnarulwdrJedltallntsoieaiisSirotnirtttmhenoieetftotitodtpiatfttnshAfhlirsSfsenseeeiag'mtijlslanuPerTmheetgdoloeateanohifsjlwmcitsulenteDtAhnrite,AniriesinsgfeadshmfdtlcrtnisiireictetpdiecoeiCaanngtmsSstitDtdaeohlopCyeteniatillnsdholio.aamlctaniumPCinefttirlopoxstoetPairsunrpmsfil,nfrhdaartsshGpetieapuinseildlfeaneasltfoSiilrnsCrfnytire'utfhogtotspastedae(mo'ttr"iatCmenooSPpttmheroaflljonaiaupm6etsseiihrotnniyyCpSansrttselteediaoawfaccnrisuifrocetnhiossritt,nt'ot.ahtiwtEolRn(allpT"pyn.sieAdrtqhpqhefae.eemojusm,luairtiswvealdree,penneihncuacdrddodonereienpn,dsddogwhsasieltuslhcoohuft PaArUoaARdCe(ulcDlSdpbfrg"iMiaaqnfpeodteotSTeosipoDuihripiiuidsedflmlqsenugfeetlasolofipmineeeeiteeunttaeitralrcrwrievthnfniddetmceclsigtiiilfiearesiyczdieeitsdrttfn1aoSensln.oseeletomss,uDn0sodtanRdngtfprs'1ChmSJhfad.teTplee3atuR0rthepeddtsep,rioo.enofhne.ra.ple,aeoutae3tee2tureCstsettnofmnhiyscqrltn.suaerCtAA3teiyshDocefsuts'udshxtaEteumaeioamhmegagRiDnaaeeaAioSixardltusnserlrnnecftelonepneueuUe,ietdntdnutdidtsreqSenlcetperostbnfdcimattnleurhUmutemot'rciaDieieisoAieUoSlitRetttnTrlic,tonrtiieemlsopneaelCoteogtt.cetoSninsefSrhodcrhucdtwnrneqeoaowotmottteuiet.tet,hiarulshSiDnhudfvispCoemtnSolietaiToeihiottrmisSuh.rfoosnnacholuSRdtrefareollhDetcarcteuppiUeentoaldeaew1arzcaiulloAnrdrrttoesudplfSr0attintseemnynDnteiqiocNte'tg.t,emSjsoiChdoi3ssotuiuunvtofertoosaehunoit.etieaomideenSc1tnnllwaorip:rbdeuiateeulupite,ud,loiAChoercmnsfetmlznm,deapStJhanen"peDconalChsmneteelr)olteteoReehtuolwTeteas.rdsinoinrornmldsesrromttsDeoitbuiteewomettAToz,aeonltdCswesnyAyxeeeuRhancthsifiJgihsfa,aettoguiensstSRtCguoeehirennisenhms~ufhmtosaeulrnileshfeaeTodeehnternleaAptesdiielcceotuaieotemst,cchDr4paroneosawdnmrsfeJAwdoetton6sttrperieoddhmfSsaSndtisve(telagnnJpfhtiiieessda1u,docnehneonctnertseoxeri),poeMsnlittthegittaoyanePwiti,CnhhetrrCdcacioliAnncheadt.ptrom.atteneooianhhaouodembet.lgnmAJsdnuosllSejeetmlaasrApuietererfRTngeoeaosmsslPAt,iofdeptxht.hermrpnlCnhfeePtnraieilyedmeeataFhecdcrearodroeeetsoccdllnreeoifitohellmesuniPtnituioefaMDnvlcoicuoentbTedraltnttrstoeegertorsaehdtexeieroidao,ne.dls'StCwtniteddlolwtueowsidstGmotisieheceristopttimiitRfsyatinteui,SsnhmegnoDiuhpetmgtns,sotpelgeengirnueaSemteashiisDJdrteoiisssgsAlUmftedtrgisntSeaan.msileepei.r.htseetoegnavgs,tnedetlNrehielmlmilnrCtrseietioiinSesopeAhmteteovnhloSlsnemtoseifaoteeedeegaSsfhdRhsmulfnpAumrtpmfrslaeCheabaptdolitynoeeSShtegndtteteleyrienoAccrtchldfeesrtetoantlnriaoamASeoheAmetcdimcvglttfUhrtatenm,re.utoieiorhsgpgSitaeimdsestetpWonhsnes,adllrmrehtu1elcsTalrntaiCieeneEnDiyeipttemaMoisloieeinneuontsolmtlrs1tmAnmipmdhtutwqfehest.su0roefretiemna.atrimiJe.rSeounnirs.efn2lttatasonniCsmesitete,cht2mtaaaftrahhttfoan,otyth,nCpatailteihkdeenduoapltedipooalhlese-saglereulnuytfeadartdtrslehlhltee
arreeuqgthuaoredrsiitzn1aag0t.c_ito4ohnneDfoDeisrfimesenmxicsesiecsasuwlatoiilto.fhnIUfJounafditctgheoedinsHfSeAtiralegltmnerescaeeDnmwioesifttnrhttihcaJetnuCdUdgonaeuliltrHetrdePiqlSrlumoticaraeteneedsdodDicnocigcsustur.rsmiFcweot inCltltohoswiu,nrtihttnheogrfePTNeaoerbwtwuiensssiJnPeseihrpssaselyldays of 2

Case 1:08-cv-02584-NLH-JS Document 215-4 Filed 11/15/13 Page 83 of 84 PageID: 6787
acJanPjDa6CcotdupuSuopsATacmahrAoiitrrdfotnpeyemcbesosihniegagegjcpfmoeemsmowjuofrefiyxoaareduurveenirdrepdiirlnenrildeeernigssHesiaclsazcedspnmissca.omtttc(nauhnaaiaueciiitsAleatocneliotclAleerltilpidt,lmenisonetnonw,lostptiotuwetbnhtsnswtewaouftiarhdthfematrohtinonolonfoietihntialaretshdhtalidtflffahDthsmTDppltoeooisitcettseosoiruhpFifocruJoxiiPvsmeinsustkrsiewetnelhUmhjelspmstecddeuracifoiienoes.iptseA.gSiiduttSifefssnshtsrhDsueRiittasadshg.edetcciseieliiioplnHi.irsiaeagStnfbpstseChnuwsctf,lChnuitmoeiieleseelnrlrooesyapofiaimlcifehtgviomatmncwStrohfseStussia.eertasjtuotnniaroupeilmunPhaanipCtelpdnfnnplhftrtl.itol,arefeosiaihradoaaweoi4srinaeJulienicCnltAmtdcefumn1gsthoriCetdceiDtdmtdot(gaetctmjiheiuraoaohugauntfratinir)ClifenspcceCeerrstsloa(stmitheltkssonrlohstoniHeewmae)reRieetodfueie(xnu)jnltslionAu.iuirUesqierlUOtscatttnlttdlnIfhcuhwamst)iOengafntiatipu(iiledihcopsrniipJ4iartutaoateieateeeendupCnph6n)elstdy,tdfda)eedhe,(oddtoa,swtfse1targarduhtJnSoimetrleha)Sliofeaoohtemdtr..ttrelpehltnpaticheolHlafhAnoSutLsobluPoamrtoeaT-trtieewm.utvqiraosilisfAstonqpnl.siCtruhttifmdeDhnwuihtDntugSartniiniegiiehvegelaaisrnnrenetiasest.enmsnsectdcssctatte,tddoRih§rhstastaiShroimioianhnuisie1t.codatendpcensiaf0hsteUnas5tnfoteadel.temnooiCyl.3grllcnCdl.31eteSsiJf.furSoaaon01jmounteDt.tu(msyauototg.huqddci3rSfa,eripseee)erguitDs.tbobnuies1txeu,nmeeneof.odttfprioelttisseaafsHvihAlfariciTTtfmcinsNo,tetbenuenitNsistghomrooahlitigfaet(PAlrewoessvteinhaSmleewlsodanw.oeotemSentoirlCa)Itidrttmfnetst(hpnJ.hfheniJibsthoeDepeutTdenheeeSthetruihsiulridhenhpsiSepfAFeasrsasleeeostec'tcuetauessimhdmyeirtfrrRytlxpeoTieoxasienaaoivosCerenutlrtoetsuoetnhliiciennlshcaowonotwtmaeuansdahule1nmnoelutttpnelio4etlee0,xtebfdtseop6rwdhrr.hefdCh3mirnel(ifzcaiiaiJ.l1atoo1Jptaeuitoaih)totundttini,iitevtirnntohotonotdehtnetfe jwCrSUieogirttwhhitslto;dettumioictn1tepti0hotneh.ent5tii,AsCtEiaSogolnlrneutezptrtteytrhlmeoreomevefDtianesOiiintnsortttihdnrnAerisgcorgr.tujeruTCeggrehhoaimesruaddrenPitinnycloatgtoifisonNethhnntaieefflpworlfusrblrce'JesegceumocarasolmnelenynytpsttalttoarovauinanSerdietedlaowcrtbeptoiitleloeelannnblfltto1eoihro0weudn.m4ilsfio.mtoiIfargfjinasuetdsthnrieieofnsdonodCrw.icPcoeituamtihrorttenypndritsoen.hejoausthfldnlteihhocDiaetsvriwesettiraatihincntyor. Release and Signature of Representative(s) of Organizational Plaintiff which thWeHOErRgaEnAizSa,titohneaPl aPrltaieinsthifafvdeeseingtneareteddinbteoloawcoismappreahrteyn,saivned Settlement Agreement to.
WHEREAS, the Organizational Plaintiffhas reviewed the Settlement Agreement 1n its
entirety, and agreed to its terms; and AaNarecngegtdiwraoearendlJmleitWncroelsnarHeaetiy,nmlEauyaRstnnimodaEdsneAerdeortSoDliuce,ttaaolthilshcneebekediWedOllatsNirenn,gsyoataan.nRalyniCaazdwonaacttsasiheoloulecni1rctaa:lmsfla0ilPRi8eem~dledacisdciviennaa-vstl0itelfha2lifoee5rhnpe8Uass4ms,un-eprlNittenrLeleotHdovAf-ciSiJoarnStetuaci,aostiedlanaysenncnDdsdotisgispas,tnlltssaere,onvidca,eftntnrahCdotnismsodd,uaT~marmeotntowafytroglelnreiesassmthhbp;eieeinaplctniDtiOdyfiif·scwftaircliiltciyhatloanfy
3

Case 1:08-cv-02584-NLH-JS Document 215-4 Filed 11/15/13 Page 84 of 84 PageID: 6788

WHEREAS, the Organizational Plaintiff through the representative(s) below acknowledges and agrees that its release includes, but is not limited to a specific waiver and release of all Defendants of any and all claims or potential claims it has or may have against the Defendants under the Federal Fair Housing Act, 42 U.S.C. §3601 et seq., including any claims for attorneys' fees, whether or not the Organizational Plaintiff was named as a plaintiffin the lawsuit filed in the United States District Court for the District ofNew Jersey under Docket No. Case 1:08-cv-02584-NLH-JS; and

WHEREAS, the Organizational Plaintiff now consents to the corrections to the Settlement Agreement made by this Addendl.un and to any further corrections that may be necessary in the opinion of Organizational Plaintiffs counsel in order to ensure that the litigation is dismissed and the Settlement Agreement goes into effect and may be enforced in state and/or federal court, or make other technical changes that do not affect the parties' substantive rights.

IN WITNESS WHEREOF, the Organizational Plaintiffexecutes this Addendum to Settlement Agreement as ofthe date below:

DATED:
J 1- 9--l() I0
WITNESS
Of2r-3 .tJ~
t/1:-~vt~
/9/t PATED: I} J
~J>P~

es Potter President Mt. Holly Gardens Citizens in Action, Inc. 126 Levis Drive Mount Holly, NJ 08060.
..... ~....··"·..··· ....,
(" ·- ......

Vice President Mt. Holly Gard~ns Inc. 137 Joseph Place ·
Mount Holly, NJ 08060

4

 
 Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 1 of 55 PageID: 1

DOUGLAS E. GERSHUNY, EXEC. DIR. SOUTH JERSEY LEGAL SERVICES, INC. 745 Market St. Camden, NJ 08102 Phone: 856-964-2010, Ext. 6232 Email: OPomar@lsnj.org By: OLGA D. POMAR, ESQ. Attorneys for Plaintiffs

AARP FOUNDATION LITIGATION 601 E Street, NW Washington, DC 20049 Phone: (202) 434-2060 Email: SSilverstein@aarp.org By: SUSAN ANN SILVERSTEIN, ESQ. (pending admission pro hac vice) Attorneys for Plaintiffs

POTTER & DICKSON 194 Nassau Street Princeton, NJ 08542 Phone: (609) 921-9555 Email: Potterrex@cs.com By: R. WILLIAM POTTER, ESQ. Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE

MT. HOLLY GARDENS CITIZENS IN ACTION, INC., a New Jersey non-profit corporation, PEDRO AROCHO, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH, CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES-MORENO, LILLIAN TORRES-MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON and LEONA WRIGHT,

Case No.:
COMPLAINT AND
DEMAND FOR JURY TRIAL

Plaintiffs, vs.

(continued)

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 2 of 55 PageID: 2
TOWNSHIP OF MOUNT HOLLY, a municipal corporation of the State of New Jersey, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, as governing body of the Township of Mount Holly, KATHLEEN HOFFMAN, as Township Manager of the Township of Mount Holly, BROOKE TIDSWELL, III, as Mayor of the Township of Mount Holly, KEATING URBAN PARTNERS, L.L.C., a company doing business in New Jersey, TRIAD ASSOCIATES, INC., a corporation doing business in New Jersey,
Defendants.
I. PRELIMINARY STATEMENT 1. This is a civil rights action challenging Mount Holly Township’s (“Township”) widescale redevelopment of the neighborhood known as Mt. Holly Gardens (“Gardens”). Plaintiffs are an asso ciation of residen ts, Mt. Holly Gardens Citize ns in Actio n, Inc., (“CIA”), and 29 individual residents (“R esidents”) living in th e Gardens, which is a cohesive, ethn ically diverse neighborhood within Mt. Holly Township that is predominantly African-American and Hispanic with m ostly low and moderate in come f amilies. CIA a nd Residents are cha llenging th e Township’s sweeping redevelopm ent project that is demolishing existing hom es, displacing numerous families, and dismantling and destroying the entire Gardens neighborhood. 2. The Township and its redevelopers have been and currently are aggress ively implementing their redevelopm ent project, ultim ately seeking acquisition, through p urchase and eminent domain, and t otal demolition of all 329 homes within the Gardens redevelopm ent area affordable to curr ent a nd displace d f amilies and replace ment with new, m uch higher-p riced market rate hom es intended for households th at are more affluent. In carrying out redevelopment, the Township and its redevelopers have greatly increased blighted conditions and have rendered the Gardens unsafe and unlivable. Among other things, under the implied threa t
2

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 3 of 55 PageID: 3
of em inent dom ain, the Township has sys tematically acqu ired, vacated and boarded up m ore than 200 previously occupied homes—approxim ately two-thirds of all residential properties within the Gardens—and has demolished to date approximately 70 properties. If not stopped, the Township and its redev elopers will succeed in irrevocably tearing do wn the m ost iden tifiable minority community within Mt. Holly—with the highest rates of African-American and Hispanic homeownership within Burlington County—and permanently displacing hundreds of lower income minority residents from their community where they will no lon ger be able to af ford to live.
3. In prio r state court litig ation, the Town ship’s findin g of “blight,” i.e., its determination that the Garden s neighborhood m et New Je rsey’s cr iteria for designation as an “area in need of redevelopm ent,” was upheld in April 2005. However, in August 2005 and subsequently upheld on appeal in 2007, CIA’s and Re sidents’ civil rights and other substantive challenges to the redevelopment plan were dismissed without prejudice as then not being ripe for adjudication.
4. These claim s are now unquestionably ripe in light of the Township’s subsequent destructive im plementation ac tions devastating the Gardens community. Specifically, the Township and its redevelopers have unlawfully discriminated against the Residents on the basis of race and national o rigin in violation of Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq .; the Civil Rights Act of 1866, 42 U.S.C. § 1982; the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.; and Equal Protection under the United S tates and New Jersey Constitu tions. Furthe rmore, the To wnship’s a ctions depr ive Res idents of ju st compensation by driving down the value of thei r hom es, while the Township has f ailed to
3

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 4 of 55 PageID: 4
adequately plan or prepare for replacem ent hous ing realistically affordable to curren t and displaced residents.
5. The Township has also acted arb itrarily, capriciously, unreasonably, ultra vires an d unconstitutionally, by m aking substantial de facto changes to the red evelopment plan in clo sed meetings and im plementing the revisions withou t engaging in the public process m andated by law to am end a redevelo pment plan, in viola tion of the New Jersey Loc al Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et. seq., and the Open Public Meetings Act, N.J.S.A. 10:40-6 et. seq., as well as procedural due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and fundamental fairness protected under Article 1, Paragraph 1 of the New Jersey Constitution. The Township has add itionally acte d unconstitutionally in violation of the general welfar e under Article I, Paragraph 1, of the New Jersey Cons titution, by carrying out redevelopment activities that will result in the destruction and substantial net loss of housing affordable to lo w and moderate income families, as well as the forcible displacement of hundreds of low and moderate income residents from the Gardens community without providing affordable replacement housing.
6. Residents and CIA se ek, am ong other thi ngs, declaratory and injunctive relief: invalidating the redevelopm ent plan; m andating th at the To wnship car ry out redev elopment in the Gardens in a m anner having the least disc riminatory adverse impact upon African-American and Hispanic households; and prohibiting implementation without providing adequate affordable replacement housing for all current and displace d Gardens residents. R esidents and CIA als o seek damages and/or just compensation sufficient for Residents to secure permanent replacement housing in the local housing market.
II. JURISDICTION
4

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 5 of 55 PageID: 5
7. Jurisdiction over the Plaintiffs ’ claims is conferred on th is court by 28 U.S.C. § 1331 (federal question jurisdiction) in that this action arises under th e Constitution and laws of the United States; 28 U.S.C. § 1343(a)(4) because the Plaintiffs seek equitable and other relief under Acts of Congress provid ing for the protection of civil rights under Title V III of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq.; 42 U.S.C. § 3613 for civil act ions under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq .; and 42 U.S.C. § 1983, which provides redress for the deprivation, under color of state law, of rights, privileges and immunities secured to all c itizens and pers ons within the jurisd iction of the United Sta tes by the Constitu tion and laws of the United States.
8. Plaintiffs seek declaratory and injunctive relief against the D efendants pursuant to 28 U.S.C. §§ 2201 and 2202 and injunctive relief pursuant to 42 U.S.C. § 3613(c)(1).
9. In addition, 28 U.S.C. § 1367 confers supple mental jurisdiction on this court over Plaintiffs’ related claims under state law.
10. Venue is proper in this district purs uant to 28 U.S.C. § 1391(b) because the Plaintiffs’ claims arose in this district.
III. PARTIES A. Plaintiffs
11. Plaintiff Mt. Holly Ga rdens Citiz ens in Ac tion (“CIA”), In c., is a voluntary membership non-profit corporation composed of residents of Mt. Holly Gardens. Its prim ary purpose is to advocate for the wellbeing and the be tterment of the resident s and neighborhood. Its address is: c/o Santos Cruz, 356 South Martin Ave, Mt. Holly, New Jersey 08060 . CIA brings this action on its own beha lf and on beha lf of its m embers. The individually nam ed Plaintiffs are members of CIA.
5

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 6 of 55 PageID: 6
12. Plaintiff Pe dro Arocho is a resident of Mt. Holly Gardens living at 316 South Martin Street, Mt. Holly, New Jersey 08060. He owns his home. He is Hispanic.
13. Plaintiffs Reynaldo and Ana Arocho are re sidents of Mt. Holly Gardens living at 154 Levis Drive, Mt. Holly, New Jersey 08060. They have lived in the Gardens for 19 years. They own their home. They are Hispanic.
14. Plaintiff Lyra Baedresingh is a resident of Mt. Holly Gardens living at 303 South Martin Street, Mt. Holly, New Jersey 08060. She is a homeowner. She is African-American.
15. Plaintiff Christine Barnes is a resident of Mt. Holly Gardens living at 122 Joseph Place, Mt. Holly, New Jersey 08060. She is a tenant. She is White.
16. Plaintiff Be rnice Cagle is a resident of Mt. Holly Gardens living at 281 Grant Street, Mt. Holly, New Jersey 08060. She is a homeowner. She is African-American.
17. Plaintiff Leon Calhoun is a resident of Mt. Holly Gardens living at 113 Levis Drive, Mt. Holly, New Jersey 08060. He is a homeowner. He is African-American.
18. Plaintiffs George and Doro thy Chambers are residents of Mt. Holly Gardens living at 341 South Martin, Mt. Holly, New Jersey 08060. They are hom eowners and senior citizens. They are African-American.
19. Plaintiff Santos Cruz is a resident of Mt. Holly Garden s living at 137 Joseph Place, Mt. Holly, New Jersey 08060. He is a homeowner. He is Hispanic.
20. Plaintiff Elida Echevaria is a resident of Mt. Holly Gardens living at 370 South Martin Street, Mt. Holly, New Jersey 08060. She owns her home. She is Hispanic.
21. Plaintiff Norm an Harris is a resident of Mt. Holly Gardens living at 313 South Martin Street, Mt. Holly, New Je rsey 08060. He is a senior citizen and has lived in the property for 36 years. He is a homeowner. He is African-American.
6

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 7 of 55 PageID: 7
22. Plaintiff Mattie Howell is a resident of Mt. Holly Gardens living at 118 Levis Drive, Mt. Holly, New Jersey 08060. She has lived there with her family for 37 years. She is a homeowner and a senior citizen. She is African-American.
23. Plaintiff Nancy Lopez is a resident of Mt. Holly Gardens living at 319 North Martin Street, Mt. Holly, New Jersey 08060. She is a homeowner. She is Hispanic.
24. Plaintiff Vincent Munoz is a resident of Mt. Holly Gardens living at 382 South Martin Street, Mt. Holly, New Jersey 08060. He is a senior citizen and a hom eowner. He is Hispanic.
25. Plaintiff Elmira Nixon is a resident of Mt . Holly Gardens living at 21 Saul Place, Mt. Holly, New Jersey 08060. She is an elderl y widow and is hom ebound. She owns her own home and has lived there lived there for 28 years. She is African-American.
26. Plaintiffs William and Rosemary Roberts are residents of Mt. Holly Gardens living at 346 South Martin Street, Mt. H olly, New Je rsey 08060. They are hom eowners. They are White.
27. Plaintiff Lissette Rodriguez is a resident of Mt. Holly Gardens living at 354 South Martin Street, Mt. Holly, New Jersey 08060. She is a homeowner. She is Hispanic.
28. Plaintiff Ef raim Rom ero is a resident of Mt. Holly Ga rdens liv ing at 115 Joseph Place, Mt. Holly, New Jersey 08060. He is a homeowner. He is Hispanic.
29. Plaintiff Henry Sim ons is a resident of Mt. Holly Garden s living at 7 Saul Place, Mt. Holly, New Jersey 08060. He has lived there fo r 23 years. He is a senior citizen and a homeowner. He is White.
7

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 8 of 55 PageID: 8
30. Plaintiff Joyce Starling is a resident of Mt. Holly Gardens living at 23 Saul Place, Mt. Holly, New Jersey 08060. She has lived there for 36 years. She is a hom eowner. She is a senior citizen and is African-American.
31. Plaintiffs Taisha Tirado and Leonardo Pa gan are residents of Mt. Holly Gardens living at 211 Levis Drive, Mt. Holly, New Jersey 08060. They are tenants. They are Hispanic.
32. Plaintiffs Radames and Lillian Tor res-Moreno are res idents of Mt. Holly Gardens living at 308 North Martin Str eet, Mt. Holly, New Jersey 08060. . They are hom eowners. He is Hispanic.
33. Plaintiff Dagm ar Vicente is a resident of Mt. Holly Gardens living at 371 South Martin Street Mt. Holly, New Jersey 08060. She rents the prem ises a nd lives there with two children. She is White.
34. Plaintiff Charlie Mae W ilson is a resid ent of Mt. Holly Gardens living at 120 Joseph Place, Mt. Holly, New Jersey 08060. She is 78 years old and owns her own home. She is African-American.
35. Plaintiff Leona Wright is a resident of Mt. Holly Gardens living at 208 Levis Drive, Mt. Holly, New Jersey 08060. She is a hom eowner and has lived there for 33 year s. She is 89 years old and widowed. She is African-American. B. Defendants
36. The Township Defendants, herein referred to as “Township,” are as follows: a. Defendant Township of Mount Holly (“ Township”) is a municipal corporation chartered under the laws of the State of New Jersey. b. Defendant Township Council of Township of Mount Holly is the governing body of the Township. The Council is responsible for the passage of local ordinances
8

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 9 of 55 PageID: 9
and resolutions, including Ordina nce No. 2003-12 adopting the Gardens Redevelopment Plan, Ordinance 2005- 07 adopting the W est Rancocas Redevelopment Plan, and all ordinances and resolutions related to the effectuation of its redevelopment plan, for the appointment of the Township Manager, and for passing and modifying the Township’s budget. c. Defendant Kathleen H offman is the Township Manager of the Township of Mount Holly and is the chief executive and administrative officer of the Township responsible for the overall adm inistration of the Township' s agencies and execution of the Township' s laws. Defendant Hoffm an is sued herein in her official capacity. d. Defendant Brooke Tidswell, III, is the Ma yor of the Township of Mount Holly and is responsible, inter alia, for presiding over Township Council m eetings and executing bonds, notes, contracts and wr itten obligations of the Township. Defendant Tidswell is sued herein in his official capacity. 37. The Redeveloper Defendants, herein referred to as “Redevelopers,” are as follows: a. Defendant Keating Urban Partners, L.L. C. (“Keating” ) is a lim ited liability company with offices located at On e Liberty Place, New Brunswick, NJ 08901. Defendant Keating entered into a redevelopment agreement with the Township to implement the WR Redevelopment Plan and has been actively engaged since tha t time in project planning, development, and implementation. b. Defendant Triad Associates, Inc. (“Triad”) is a corporation doing business in New Jersey with offices at 238 W est Chestnut Avenue, Vineland, NJ 08360, which the Township and/or Keating hired to a ssist with im plementation of the W R
9

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 10 of 55 PageID: 10
Redevelopment Plan, including but not lim ited to serving as property m anager of Township-owned rental properties and conducting relocation activities.
IV. FACTUAL ALLEGATIONS A. Mt. Holly Gardens Neighborhood
38. Mt. Holly Gardens (“the Gardens”) is situated on 30 acres of land within downtown Mt. Holly Township in Burlington County, New Jersey.
39. It is a cohesive, racially and ethnically diverse community. 40. At the time the redevelopment process started in 2000, the neighborhood contained 329 houses. 41. The houses were constructed during the 1950s. 42. Houses are prim arily two-st ory buildings of solid bric k construction with joists made of old-growth hardwood, and are situated in rows of 8 to 10 homes set back approximately 50 feet from the street, allowing for front and back yards. 43. Many homes are well-m aintained and ha ve attractively landscaped yards and gardens. 44. Until app roximately M arch 2004 there was a playground area of app roximately 14,000 square feet and a community center co nverted fro m a dwelling unit, both which the Township owned. B. Residents of Mt. Holly Gardens 45. According to the 2000 U.S. Cens us, Bu rlington County’s total population was 423,394. Of the total population, W hites comprised 323,171—76.3%; African-Am ericans comprised 62,476—14.8%; and Hispanics comprised 17,632—4.2%.
10

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 11 of 55 PageID: 11
46. According to the 2000 U.S. Census, Mount Holly Township’s total population was 10,728. Of the total population, Whites comprised 7,101—66.2%; African-Americans comprised 2,231 —20.8%; and Hispanics comprised 942 —8.8%.
47. The reside ntial sectio n of the Gard ens redevelop ment area correspon ds approximately to Blocks 1000, 1001, 1003 and 1009 of U.S. Census Tract 7026.04., Burlington County, New Jersey.
48. Approximately 1,031 residents lived within the Census Blocks corresponding to the residential section of the Garden s redevelopment area. W ithin the r esidential section of the Gardens redevelopm ent area, W hites com prised approxim ately 203 residents—only 19.7%, compared to 475—46.1% —African-American residents and 297—28.8%—Hispanic residents.
49. Thus, African-Am erican and Hispanic residents com prised the overwhelm ing majority—nearly 75%—of the residents living in the Gardens redevelopment area.
50. Further, according to the 2000 U.S. Census , the concentration of African-Am erican and Hispanic residents in the Gardens was the highest of any neighborhood in Mt. Holly Township and m uch higher compared to Burlin gton County, while the concentration of Whites was comparatively much lower.
a. 46.1% of the Gardens redevelopm ent area was African-Am erican, compared to only 20.8% for Mt. Holly Township and 14.8 % for Burlington County.
b. 28.8% of the Gardens redevelopm ent area was Hispanic, compared to only 8.8% for Mt. Holly Township and only 4.2% for Burlington County.
c. Only 19.7% of the Gardens redevelopm ent area was non-Hispanic, W hite, compared to 66.2% for Mt. Holly Town ship and was 76.3% for Burlington County.
11

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 12 of 55 PageID: 12
d. In addition, approxim ately 31.5% of Mt . H olly Township’s entire Hispanic population and approxim ately 21,3% of Mt . Holly Township’s entire AfricanAmerican population lived within the Ga rdens redevelopment area, compared to only 2.9% of the entire non-Hispanic, White population.
51. Further, according to the 2000 U.S. Census, the m edian household incom e in the Gardens redevelopment area was only $30,104, while the median income for the Township was $43,284, and the median income of Burlington County was $58,608.
52. According to the 2000 Census, in Cens us Tract 7026.04 containing the Gardens, the housing characteristics were as follows:
a. 50% of the households in Census Tract 7026.04 were renters, and 50% were homeowners.
b. 31% of the African-American households we re homeowners while the percentage in the entire Township was 13%, and the percentage in the County was 11%.
c. 17% of the Hispanic households were homeowners while th e percen tage in the entire Township was 8%, and the percentage in the County was 2%.
d. 81% of the owner-occupied households in Census Tract 7026.4 had lived in their homes for at least 9 years, while 72% of the renter-occupied households had lived in their homes for at least 5 years.
e. The median cost of homeownership for owner-occupied homes with mortgages in Census Tract 7026.04 was only $969 a m onth, com pared to $1,536 for the Township and $1,393 for the County.
53. According to the 2000 Census, the Gardens neighborhood therefore had a mong the highest rates of African-American and Hispanic home ownership in Burlington County.
12

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 13 of 55 PageID: 13

54. Despite the lower incom es of the Gardens’ households, the com

munity is

remarkably stable and has many longtime residents.

55. Residents have a strong sense of comm unity and like that it is racially and

ethnically diverse.

56. Many Gardens residents have family and friends living in the neighborhood.

57. Residents enjoy the convenient location of the Gardens and its proximity to schools,

employment, businesses, and downtown.

58. The stability of the Gardens neighborhood is attributable in part to lower housing

costs than that of Mt. Holly and Burlington County, m aking the Gardens m ore affordable for

lower income households.

59. According to a m ore recen t survey conducted by Tria d in July 2006, the average

monthly homeowner cost being paid in the Gardens is $445 and the average rent is $696.

60. In addition, m any longtime homeowners of th e Gardens, particularly seniors, paid

off their mortgages in full and can afford to keep their homes, although they would not be able to

purchase much higher-priced homes in the current real estate market on their present incomes.

61. According to a survey conducted by pla nners comm issioned by the Township in

2000, 90% of the households in the Gardens had annual in comes below $40,000, 43% earned

between $20,000 and $40,000, and nearly half—47%—earned less than $20,000.

C. Redevelopment Activities Before 2002

62. For alm ost thirty years, comm unity m embers and Mt. Holly Township have

engaged in various planning initiatives to improve living conditions in the neighborhood.

63. These planning initiatives included a co mmunity-led effort in the 1980’s that

resulted in developm ent of a strategy to incr ease the hom eownership ra te th rough targeted

13

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 14 of 55 PageID: 14

property acquisition and rehabi litation; howev er, th is str ategy was never adopted by the

Township.

64. Another planning initiative was a housing rehabilitation program known as “Mt.

Holly 2000.” Through this program, ten hom eowners in the Gardens obtain ed grants and loans

to fix up their properties.

65. The Township subsequently decided not to support such re vitalization ef forts. I t

instead began to plan for a sweeping redevelopm ent of the entire comm unity that would involve

acquisition and demolition of most or all of the Gardens homes.

66. In 2000, the Township began to purchase properties in the Gardens and leave them

vacant

67. In 2000, the Council also comm issioned a priv ate firm , THP, Inc., to investigate

whether the Gardens neighborhood met the criteria of an “area in need of redevelopment” within

the meaning of N.J.S.A. 40A:12A-1 et. seq.

68. In Novem ber 2000, T HP, Inc. prepared a report entitled “Redevelopm ent Area

Determination Report” (“2000 Redevelopment Report”), which it presented to the Council.

69. As part of the preparation of this 2000 Re

development Report, the planners

conducted a survey of the Gardens residents.

70. The survey dem onstrated that when questioned about the Township’s plans for

redevelopment, res idents were concerned abou t displacement and that m ore than 2/3 of the

residents stated that they would prefer to remain living in the Gardens.

D. Redevelopment Planning and Formal Adoption of Redevelopment Plan

71. The Township adopted a Master Plan pursuant to the Municipal Land Use Law,

N.J.S.A. 40:55D-1 et seq., dated April 13, 2000.

14

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 15 of 55 PageID: 15
72. The Master Plan set forth certain goals, which included improving the qualify of Mount Holly’s housing stock, upgrading the Gardens Area, and utilizing the LRHL to Mount Holly’s best advantage.
73. With regard to the upgrade of the Gardens area, the Master Plan stated that one objective of this Master Plan is to upgrade the quality of units and the character of area, and that measures should be taken to reduce the overall density in the Gardens Area, to rehabilitate deteriorated units, and to provide additional amenities.
74. In the land use plan element, the Master Plan characterizes the Gardens as one of two “high density areas” containing some deteriorated units, high proportion of rental properties, and with overcrowding an identified problem. The Master Plan recommended “redevelopment/revitalization” to allow for reduction of density, modernization of housing stock, and improvement to overall perception of the area.
75. On July 30, 2002, Council passed Reso lution No. 2002-166 authorizing the Township’s Planning Board to undertake a preliminary investigation and to hold a public hearing to determine whether the Gardens neighborhood was an area in need of redevelopment.
76. The Planning Board subsequently received a report prepared by THP, Inc. entitled “Redevelopment Area Determination Report,” dated September 3, 2002.
77. The September 3, 2002 Redevelopm ent Ar ea Determ ination Report was alm ost identical to the 2000 Redevelopment Report prepared for Council.
78. On September 16, 2002, the Planning Board held the first public hearing on the question whether the Gardens should be designated as a redevelopment area.
79. On October 21, 2002, the Planning Board passed Resolution No. 2002-10, adopting the findings and conclusions of the 2002 Rede velopment Report and recomm ending that the
15

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 16 of 55 PageID: 16

Township Council designate the Gardens neigh borhood as a “redevelopm ent area” within the

meaning of N.J.S.A. 40A:12A-1 et. seq.

80. On October 28, 2002, the Council passed Resolution No. 2002-217, accepting the

factual findings of the 2002 Redevelopmen

t Report, accepting the Planning Board’s

recommendations and f ormally designating the Gardens neighborhood as an area in need of

redevelopment under N.J.S.A. 40A:12A-1 et seq.

81. Resolution No. 2002-217 did not state or ot herwise indicate that by designating the

Gardens neighborhood as an area in need of rede velopment, hom es in the Gardens would be

demolished.

82. At the Planning Board hearing and at the Council m eeting, Township officials

misled Residents by telling them that in cluding their p roperties in an area in need of

redevelopment did not mean that the Township would take their properties by eminent domain.

83. In April 2003, the Council publicly releas ed a docum ent entitled “The Gardens

Area Redevelopment Plan” (“Gardens Redevelopment Plan”).

84. The Gardens Redevelopment Plan provided for the following:

a. Total dem olition of all the hom es in the neighborhood and relocation o f all the

residents.

b. Building 180 new housing units.

c. No construction of any affordable housing units.

d. No guarantee that any new housing in the redevelopm ent community would be

made available for Gardens residents either before or after displacement.

e. No guarantee that any new housing in the redevelopm ent community would be

realistically affordable for Gardens residents.

16

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 17 of 55 PageID: 17
f. Building only 30 rental units, available only to seniors. 85. The proposed 180 new units would be m uch more expensive than existing hom es; therefore, th e plan would perm anently d isplace current residents who are predom inately lowincome. 86. On August 11, 2003, the Township held a public hearing on the adoption of the Gardens Redevelopment Plan. 87. Over 100 residents appeared before the Council protes ting against the proposed redevelopment plan and the demolition of their homes. 88. Among the objections raised by the residents were the following:
a. They feel a strong sense of community and have pride in the comm unity. Many are long-term residents. T hey feel surrounded by fa mily and friends. They like that it is racially and ethnically diverse.
b. Many residents are low-incom e. Som e had bee n hom eless in the past. They are f earful that th ey will not be able to a fford the new units tha t were being planned for construction and that they will not be able to find other housing in the area they could afford.
c. Some residents, including som e elderly homeowners, have paid off thei r mortgages. They are af raid that if they lose their homes they will nev er be able to purchase another one.
89. Also on August 11, 2003, Plaintiff CIA submitted to the Township Council detailed written objections to the Gardens Redevelopm ent Plan with proposed alternatives to dem olition of the residents’ hom es, including that the Ga rdens Redevelopm ent Plan was drafted without meaningful input from the residents and in disregard of the residents’ needs; that it discriminated
17

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 18 of 55 PageID: 18
against African-Am erican and Hisp anic res idents on the b asis of race and et hnicity; th at it did not realistically provide for housing that was decent and affordable for the residen ts, either as to units to be newly constructed in the Gardens area or replacement housing elsewhere in Mt. Holly Township or Burlington County; and that it would cause severe hardship by f orcing m ost residents, m any of whom have lived in the Ga rdens for many years, to lose their hom es and move out of their community.
90. On September 8, 2003, the Township Council passed Ordinance No. 2003-12 adopting the Gardens Redevelopment Plan as originally proposed.
91. On October 23, 2003, Plaintiffs CIA and 35 i ndividual residents filed an action in the Superior Court of New Jersey, Law Di vision, Docket No. BU R-L-003027-03, challenging the designation of the Gardens as an area in n eed of redevelopm ent and the adoption of the Gardens Redevelopment Plan under state law and on civil rights and constitutional grounds.
92. In February 2005, the Township Council dir ected the Planning Board to consider amending the Gardens Redevelopment Plan.
93. On February 21, 2005, the Planning Board held a public hearing concerning a revised redevelopment plan called the West Rancocas Redevelopment Plan (WR Redevelopment Plan), which encom passed the Gardens neighb orhood and increased the area for commercial redevelopment.
94. The WR Redevelopment Plan proposed the following: a. 228 new residential units. b. Permitted residential uses increased up to 50% for two-f amily dwellings, up to 33% for townhouse/sen ior ap artment combination d wellings, an d
18

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 19 of 55 PageID: 19
up to 33% for townhouses. The permitted uses; however, did not includ e any multifamily rental units. c. Demolition of existin g hom es and new construction of the above permitted uses. d. Possible rehabilitation of existing units, but rehabilitation was purely optional with no specified am ount or percentage of existing residential units that were to be rehabilitated. e. Only 10% of the 228 dwelling un its—a to tal of 23—to be affordable housing units, with the remaining 205 units to be market rate units. f. Commercial development in the are ad jacent to the Mt. Holly Bypass Road on the western edge of the redevelopment area. 95. Many Gardens residents appeared and s poke at the Planning Board hearing on February 21, 2005, raising the sam e objections to the proposed W R Redevelopm ent Plan that they had raised concerning the Gardens Redevelopment Plan. 96. Also on February 21, 2005, a planning e xpert, Alan Mallach, FAICP, PP, submitted a repor t and testif ied o n behalf of the re sidents reg arding the pro posed W R Redevelopment Plan. 97. In the report, Mr. Mallach opined that the rehabilitation option under the Plan was at best illusory and that given the lower-income status of most of the Gardens residents, very few if any of the families could afford the 205 market rate units. 98. Mr. Ma llach also tes tified that the Township could improve the Gardens community using m uch less d rastic alternatives than the large-scale acquisition and demolition called for the WR Redevelopment Plan.
19

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 20 of 55 PageID: 20

99. In addition, Plain tiff CIA subm itted deta iled wr itten comments to th e Planning

Board on February 21, 2005, raising num erous objections and recommendations, including: that

the W R Re development Plan should m andate as an overriding goal that existing hom es be

rehabilitated instead of de molished to avoid displacement of resi dents; th at th e W R

Redevelopment Plan sho uld permit multifamily re ntal housing—which constituted at leas t half

of the existing resid ential units in the Garde ns—among the perm itted uses; th at the W R

Redevelopment Plan unlawfully discrim inated against African-American and Hispanic residen ts

on the basis of race and ethnicity ; and that the WR Redevelopment Plan’s limit of 23 affordable

housing units was a misapplication of the new growth share regulations promulgated by the New

Jersey Council on Affordable H ousing (“COAH”) and was otherw ise contrary to the general

welfare under the New Jersey Constitution.

100. At the conclusion of the public hearing on February 21, 2005, the Planning Board

passed a resolution recommending that the Council adopt the WR Redevelopment Plan, with the

recommendation to increase th e townhouse perm itted us e to up to 75% of the total 228

residential units.

101. The Planning Board did not recomm end adoption of any a mendments addressing

the concerns raised by the residents and plaintiffs.

102. On March 14, 2005, the Township Council held a public hearing on the adoption

of the WR Redevelopment Plan.

103. Many residents appeared and voiced

similar concerns against the WR

Redevelopment Plan as stated before the Planning Board.

104. Plaintiffs also subm itted written c omments sim ilar to th ose pres ented to the

Planning Board.

20

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 21 of 55 PageID: 21
105. At the conclusion of the hearing, the Township Council adopted Ordinance 200507, adopting the WR Redevelopment Plan.
106. The Township Council disregarded all of the input it received from the Gardens residents and failed to address the residents’ objections and concerns.
107. The Township officials m ade false, m isleading, and/or inaccurate statem ents in response to public com ments regarding the designation of the Gardens community as an area in need of redevelopm ent and regarding the adopti on of the Gardens Redevelopm ent Plan and the WR Redevelopment Plan.
108. The Township also took other actions to a void informing the residents of its plans and to minimize public comment and participation in the redevelopment process.
109. CIA and the other plaintiffs in the stat e court litigation am ended their complaint to alleg e that the ad option of the W R Rede velopment Plan was in violation of stat e redevelopment law, civil rights laws, and the federal and state constitutions.
110. On April 17, 2005, the Superior Court, the Hon. John Sweeney, held a bench trial on the issue s of whether the Garde ns m et the st atutory criteria of a redevelopm ent area and whether the W R Redevelopm ent Plan com plied with the re quirements of LRHL. On May 5, 2005, the court ruled in fa vor of the Township and entered judgment dismissing the prerogative writ claims.
111. On August 30, 2005, Judge Sw eeney granted the Township summ ary judgm ent dismissing without prejudice the re sidents’ civil rights and cons titutional claim s upon finding that they were not ripe for adjudication.
112. On July 5, 2007, the New Jersey Superior Court, Appellate Division, affirmed the rulings of the trial court. On December 11, 2007, the New Jersey Suprem e Cour t denied th e
21

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 22 of 55 PageID: 22
residents’ petition for certif ication, and on February 5, 2008, the New Jersey Suprem e Court denied the residents’ motion for reconsideration.
113. The Garden s redev elopment projec t is the only redeve lopment initia tive in M t. Holly Township dur ing the las t 10 years th at calls f or lar ge-scale d emolition of hom es and displacement of residents.
114. The Township conducted a reexamination of its Master Plan in June 2007. 115. The Master Plan Reexam ination repeats the discussion of the Gardens in the Master Plan, and notes that the T ownship is im proving the Gardens Ar ea by d eclaring it a redevelopment area and adopting the W R Rede velopment Plan, which includes residential and non-residential properties, as recommended in the Master Plan. 116. The Reexam ination includes a secti on of specific recommendations, which incorporate the specific proposals set out in the W R Re development Plan for Residential, Commercial, Limited Industrial, and open space uses. The Reexamination does not propose any changes to the Master Plan with regard to the Gardens Area. E. Township’s and Redevelopers’ Implementation of the Redevelopment Plan 1. Acquisition of Properties 117. By 2002, at the tim e the Gardens Plan was being considered by the Planning Board and Council, the Township had acquired a to tal of 20 units, which it had intentionally lef t vacant and boarded up rather than attempting to renovate or sell them. 118. On November 10, 2003, the Township Council enacted Ordinance No. 2003-37, authorizing Township of ficials to negotia te an d acquire all of the properties located in the Gardens redevelopment area by voluntary sale or , if necessary, by condemnation, at a price no t to exceed fair market value.
22

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 23 of 55 PageID: 23
119. After adoption of the WR Redevelopm ent Plan in 2005, the Township increased its efforts to acquire homes in the Gardens.
120. In or about March 2005, the Township pur chased the 62 rental properties from Fry Properties for approximately $53,000 per unit totaling $3.27 million.
121. In or about April 2006, the Township obtained an appraisal report, which determined that the value of a one-bedroom house in the Gardens was $32,000, a tw o-bedroom house was $39,000, and a three-bedroom house was $49,000.
122. Since 2006, the Township has purchased num erous homes at prices ranging from $32,000 to $49,000, except for two pur chases at $64,000 and one purchase at $81,000 for properties that contained two units converted into one larger home.
123. By December 2007, the Township had acquired a total of 219 residential units out of the 329 original homes in the Gardens redevelopment area. Most of these residential units had been occupied by tenants or homeowners before the Township acquired them. The Township had demolished 42 of its acquired units, and kept 165 of the remaining 177 units vacant and boarded.
124. Because the Township had not re-rented or re-sold its un its upon acqu isition, the Township’s acquisitions increased the overall vacancy rate in the Gardens to nearly 65%.
125. Since December 2007, the Township has de molished an ad ditional 31 residen tial units, for a total 73 demolished units,
126. The only measures the Township has taken to secure its vacan t properties has to put particle board panels on th e windows and to plaster large or ange “no trespassing signs” on them.
23

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 24 of 55 PageID: 24
127. The Township has not adequately secured or maintained the houses and yards of the properties it owns, allowing these properties to deteriorate and becom e vandalized by trespassers.
128. The vacant Township-owned properties have caused and are continuing to cause a severely blighting and deleterious effect on the Gardens neighborhood, created risk of infestation, fire hazards, and mold, and encouraged further disinvestment in the community.
129. The Township and Redevelopers have m ade and are continuing to m ake offers to Gardens property owners to purchase units for the prices of $32,000 for a one-bedroom house, $39,000 for a two-bedroom house, and $49,000 for a three-bedroom house.
130. The Township recently initiated the em inent domain process against one absentee property owner to acquire additional properties.
131. On April 12, 2008, the Township Council in troduced and passed on first reading Ordinance 2008-12. The Ordinance stat es that the Township is or wi ll be the owner of all of the properties in the redevelopm ent area, and author izes the Mayor, and/or the Township Manager and/or Township Clerk to negotiate and execute a Purchase and Sale Agreem ent, and all o ther necessary documents, between the Township and Re developers for all of the properties for the minimum purchase price of $9 million and to execute any documents necessary to effectuate the sale, including any documents that may be required for Eminent Domain proceedings. 2. Selection of Redevelopers
132. On February 15, 2006, the Township executed a Redevelopm ent Agreement with Defendant Keating.
133. In or about March 2006, Keating hired Triad to conduct the relocation activities associated with the WR Redevelopment Plan.
24

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 25 of 55 PageID: 25
134. Pursuant to Exhibit C of the Redevel opment Agreement, Keating was to for m a single purpose lim ited liability co rporation with another redevel oper, Pennrose Properties, with Keating assigning its rights and obligations und er the Redevelopm ent Agreement to the newly formed LLC and m aintaining m ajority owner ship. Upon inform ation and belief, the single purpose limited liability corpora tion described in Exhibit C of the Redevelopm ent Agreem ent has not yet been formed and is presently not in existence.
135. Keating subsequently began to take vari ous actions to m ove the redevelopm ent project forward including obtaini ng a survey; negotiating on beha lf of the Township f or the acquisition of a num ber of properties; m eeting with various professionals such as planners, architects, and engineers; and submitting applications for permits and approvals.
136. On February 23, 2007, the Redevelopers becam e responsible for property management of the Township-owned properties. 3. Relocation of Gardens Residents
137. On September 28, 20 06, the To wnship subm itted a Workable Relocation Assistance Plan (“Relocation Plan”) to the New Jersey Department of Community Affairs.
138. The Relocation Plan provided the following: a. Proposed relocation of all current Gardens residents. b. A “Right of First Opportun ity” for residents to retu rn to the Gardens area after the redevelopment project is completed. c. No provision that any replacem ent un its re alistically af fordable to the residents would be created in the Gardens
25

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 26 of 55 PageID: 26
d. No provision that any replacem ent un its re alistically af fordable to the residents would be created in any other areas in the Towns hip or in the surrounding region.
e. All residents on August 1, 2006, woul d be eligible for relocation assistance.
f. Qualified resident homeowners would be elig ible, in addition to th e $15,000.00 required by N.J.A.C. 5:11-3.7(a), for a $20,000 no-interest loan payable if and when the relo cated homeowner sold th e replacement dwelling.
g. Qualified tenants who m oved into non-subsidized rental units were eligible for up to $4,000.00 in assist ance as provided by N.J.A.C. 5: 113.5 and additional assistance up to $3,500.00.
h. However, homeowners or tenants who used relocation funds to m ove out the Gardens would not be eligible for additional relocation funds to return to the Gardens if and when any af fordable un its were ultim ately constructed.
139. In Nove mber 2006, the Township received notification fro m the Departm ent of Community Affairs that the Relocation Plan was approved.
140. On Nove mber 15, 2006, Triad opened an office in the Gardens to conduct relocation activities.
141. Triad staff began to send letters and noti ces to tenant households asking them to come in for interviews.
26

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 27 of 55 PageID: 27
142. After assessing their housing needs, Triad staff st arted t o make effort s to l ocate housing for these households outside of the Gardens.
143. The Township did not provide any relo cation assistance to residents who m oved out of the Gardens prior to November 2006.
144. Since the R elocation Plan was approved in N ovember, 2006 through January, 2008, the Township paid relocation funds to 62 families to move out of the Gardens.
145. Of these 62 households, 43, or 69%, were relocated outside of Mt. Holly. 4. Demolition of Units
146. The Township and Redevelopers have and are continuing to dism antle the Gardens community by demolishing homes in the Gardens.
147. As of May 2008, the T ownship has dem olished a total of 73 residential units, most of which were previously occupied by tenants or homeowners.
148. Although the Township claimed that the demolitions of the houses were necessary for health and safety concerns , the units were generally st ructurally sound, capable of rehabilitation, and did not pose a threat to public safety.
149. To the extent the units w ere in poor condi tion and being used by trespassers, this was a result of the Township’s failure to take measures to adequately secure and maintain them. 5. Reduction in Municipal Services
150. Starting in 2000, before the Township even initiated the for mal redevelopm ent planning process, the Township itself began to create blighted conditions in the Gardens.
151. Starting in 2000 and continuing during the course of the redevelopm ent process, the Township neglected the needs of the Gardens neighborhood by failing to apply for and utilize available funding for community improvements and housing rehabilitation.
27

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 28 of 55 PageID: 28

152. From January 1999 to the present, th

e T ownship entered into regional

contribution agreements pursuant to the New Je rsey Fair H ousing Act, N.J.S.A. 52: 27D-301 et

seq., with the m unicipalities of Moorestown, Ha inesport, and Westhampton, with the Township

receiving more than $4 m illion to rehabilita te 218 residential units occupied b y low and

moderate income households within Mount Holly.

153. The Township has not at any tim e allocated or used any funds from the regional

contribution agreements to rehabilitate homes in the Gardens.

154. The Township failed to utilize a $25,000 grant from the New Jersey Departm ent

of Community Affairs earmarked for social, educational, and recreational programs for residents

at the Gardens community center and in July, 2003 was forced to return the unspent funds.

155. In 2004, the Township rem oved the only playground equipm ent in the Gardens

and refused to replace it.

156. The Township also failed to cond uct pr oper code enforcem ent, prompt trash

removal, adequate policing, and other basic services needed by the Gardens residents.

157. The Township twice u sed its v acant properties in the Gar dens to con duct live

police tactical training, bringing in numerous police officers and vehicles into the Gardens in the

early morning hours, without providing advance notice to residents in the neighborhood.

158. The Towns hip’s failure to provide adequate and proper municipal services has

negatively impacted upon the community and decreased the quality of life for residents.

159. In spite of the Township’s actions, Garden s residents, through their own efforts,

continued to com bat significant deterioration of thei r neighborhood and tried to preserve their

quality of life.

F. Continued Planning and Changes to WR Redevelopment Plan

28

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 29 of 55 PageID: 29

160. On March 9, March 23, and April 5, 2006, th e Redevelopers held three meetings

with Gardens residents.

161. The residents participating in these m eetings thought that the purpose of the

meetings was to consider revisions to the redevelopment plan.

162. At all three of the m

eetings, Gard ens residents gave input about the

redevelopment process and stated th at they did not want to lose their homes or to be m oved out

of the Gardens.

163. The Gardens residen ts presented to the Redevelopers a list of proposals for

revising the WR Redevelopm ent Plan, which included a g uarantee of affordable replacem ent

units for all residents to be displaced who wished to remain in the Gardens.

164. At the third meeting, resident surveys were distributed.

165. In July of 2006, Triad com pleted the resi dent survey process. 169 households

responded, including 107 tenant households and 60 homeowners.

166. The Triad survey showed that 120 out of the 169 families were interested in either

purchasing or renting a new home in the Gardens, only 64 families were interested in purchasing

or renting outside of the Gardens, and only 8 households were interested in selling their property.

167. In or about October 2006, the Township and Redevelopers notified the residents

of the completion of the Relocation Plan.

168. The Relocation Plan stat ed that 560 units were being planned for the

redevelopment area.

169. The Township and Redevelopers have not given residents any other infor mation

about any proposed or adopted changes, revisi ons, or am endments to the WR Re development

Plan.

29

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 30 of 55 PageID: 30
170. During the period between February of 2006 and Se ptember 2007, the Redevelopers prepared and revi sed approximately eight conceptu al plans for the redevelopm ent area, referred to by the Township as “concept plans”.
171. Since the adoption of the W R Redevelopm ent Plan, the Township Council has conducted many discussions during closed executive session.
172. The Township did not provide any public notice regarding the concept plans that were being prepared by the Redevelopers.
173. The Township did not conduct any public meetings regarding the concept plans. 174. Upon information and belief, the T ownship did not refer any of the concept plans or any other proposed am endments to the W R Re development Plan to the Planning Board for review. 175. On September 10, 2007, during a C ouncil meeting, Township Manager Hoffm an advised the Council and the public that the Redevelopers should be coming to present a revised plan to Council in approxim ately two weeks and that hop efully af ter th e plan is approved the Redevelopers would be coming forth with funding to offset the 2008 budget. 176. The Township Manger’s statement on September 10, 2007 was the only tim e that that the Township discussed the Redevelopers’ concept plans during a Council m eeting that was open to the public. 177. The m ost recent concep t plan p roposes construction of 203 m arket rate and 25 COAH incom e restricted apartm ents and 261 m arket rate and 31 COAH townhouses, totaling 520 housing units. 178. The Township Council scheduled an execu tive session to discuss and approve the concept plan, without adopting a Re solution pursuant to the Open Public Meeting Act, N.J.S.A.
30

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 31 of 55 PageID: 31
179. On or about Septem ber 24, 2007, the To wnship Council approved the concept plan during a closed executive session.
180. The Township Council approved the concep t plan without any public notification about the concept plan or any opportunity for public input.
181. The Township Council has not provided a ny information to the public about the actions taken during the executive session when the Township discussed and approved the concept plan.
182. The Township has n ot tak en a ny action to f ormally am end the W R Redevelopment Plan pursuant to the LRHL, N.J.S.A. 40A:12A-7.
183. The redevelopment project for the Gardens, as amended through the approval of the concept plan, is inconsistent with the Township’s Master Plan and Reexamination.
184. The Township has not followed the procedures set forth in the LRHL, N.J.S.A. 40A:12A-7, for review and adoption of a redevelopment plan that is not consistent with the Master Plan. G. Failure to Provide Affordable Replacement Units
185. The Township estim ates that the prices of the n ew townhouses to be bu ilt in the redevelopment area will range from $200,000 to 275,000 and that apartm ents will rent at approximately $1.65 per square foot, with a one-bedroom unit renting for $1,230 per month.
186. Nearly all Gardens residents cannot afford to purchase or rent the new units.
31

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 32 of 55 PageID: 32
187. The affordable housing provision in the WR Re development does not constitu te adequate replacement housing because it proposes to create only 23 affordable units, without any guarantee that even these 23 units would be realis tically af fordable or available to current o r displaced Gardens residents.
188. The new concept plan approved by the Council on September 24, 2007, also does not provide for adequate replacem ent housing b ecause it proposes to replace the 32 9 Gardens homes with only 56 affordable units, without a ny guarantee that even any of these 56 units would be realistically affordable or available to Gardens residents. H. Harm to Residents and CIA by Township’s and Redeveloper’s Actions
189. By acquiring and vacating properties, faili ng to m aintain the proper ties it owns, reducing municipal services, dem olishing units, and creating increasingly blighted conditions in the Gardens, the Township and Redevelopers have in terfered and are continu ing to sev erely interfere with the Gardens residents’ use and enjoyment of their property and to otherwise injure Gardens residents.
190. Gardens residents risk losing their financ ial in vestments in their homes if they continue to make improvements or repairs.
191. Because the Township’s and Redeveloper’s actions have created severely blighted conditions and greatly lowered property values, and because of the imm inent threat of condemnation, Gardens residents ar e unable to sell their hom e on the private m arket at a price that provides just com pensation and that woul d enab le them to find alternate com parable housing.
32

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 33 of 55 PageID: 33
192. The Towns hip’s proposed prices for pur chase of the properties also do not constitute just compensation and are inadequate to enable residents to pu rchase decent, safe, and affordable comparable replacement housing.
193. Because of the Township-cau sed increas ed vacancy rate, pro liferation of abandoned home, and ugly appearance of the nei ghborhood, Gardens resident s increasingly fear for their security and safety, experience pest in festation and mold, cannot enjoy spending tim e in their yards and open areas, and are embarrassed to have family and friends visit.
194. Gardens residents have expe rienced and are continuing to experience great stress, anxiety, and grief because of their fear of losing their homes and their strong community ties and becoming unable to find adequate affordable replacement housing.
195. Many former Gardens residents have moved out of the Gardens comm unity because the community had becom e such an un desirable an d unsafe place to live and because eventual eviction or condemnation by the Township appeared inevitable.
196. Many form er Gardens residents who m oved out of the Gardens under threat of condemnation or eviction have not been able to find com parable replacem ent housing at locations as desirable as the Gard ens community and have been forced to live under worse conditions and/or pay higher housing costs.
197. The Township’s and Redeveloper’s acti ons have harm ed CIA by impeding its ability to organize residents and operate effectively as a representative organization.
198. The Township’s and Redevelo per’s con certed actio ns to effectuate the redevelopment of the Gardens between March of 2005 and the present, including the acquisition, vacation, an d dem olition of properties, the reloca tion of residen ts, th e creation of severely blighted living conditions, the failu re to provi de affordable replacem ent housing, an d the inju ry
33

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 34 of 55 PageID: 34
suffered by the Residen ts as a result of these acti ons render ripe for adjudi cation the ci vil rights and cons titutional c laims tha t wer e dism issed b y the state court witho ut pr ejudice f or la ck of ripeness.
FIRST COUNT UNLAWFUL DISCRIMINATION UNDER THE FAIR HOUSING ACT,
42 U.S.C. § 3601 et seq. 199. Residents and CIA reallege and incorporate by referenc e the allega tions in a ll previous Paragraphs of this Complaint as if fully pleaded herein. 200. By the actions described above, the Townsh ip and Redevelopers have violated and continue to violate the rights of plaintiffs under the Fair Housing Act, 42 U.S.C. § 3601 et seq. and implementing regulations by:
a. Making unavailable or denying dwellings to persons because of race, color and national origin, in violation of 42 U.S.C. § 3604(a) and implementing regulations;
b. Discriminating on the basis of race, co lor or national origin in the term s, conditions or privileges of services or facilities in connecti on with the sale or rental of a swelling in violation of 42 U.S.C. § 3604(b) and im plementing regulations; and
c. Coercing, intimidating, threatening or inte rfering with any person' s exercise of his or her rights protected under 42 U.S.C. § 3604, in violation of 42 U.S.C. § 3617.
201. The Township’s and R edevelopers’ actions , practices and policies, as described above in the Complaint, have had and continue to have a substantial adverse, disparate impact on African-American and Hispanic households in vi olation of the Fair Housing Act, 42 U.S.C. § 3604 (a) and (b).
34

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 35 of 55 PageID: 35
a. The Township’s and Redevelopers’ actions, practices and policies will dismantle and destroy the Gardens, which is predom inately African-American and Hispanic and has the most concentrated populations of Afri can-American and Hispanic persons in the Township.
b. The Towns hip’s and R edevelopers’ actions, practices and p olicies will substantia lly and disproportionately displace African-Am erican and Hispanic households from the Gardens and from Mt. Holly Township, who are mostly lower and m oderate income and who cannot afford the hom es that will be constructed in th e Gardens or existing housing in the local housing market.
c. The Township’s and Redeveloper s’ ac tions, practices an d policies will d estroy hundreds of residential hom es affor dable to lower and modera te incom e AfricanAmerican and Hispanic Household s wit hout providing replacem ent housing th at is affordable to most such households.
202. In addition, the Township’s a ctions dem onstrate tha t Township of ficials ac ted with intent to discriminate, as follows:
a. The Township knew that the residents of the Gardens were predom inately AfricanAmerican and Hispanic, and that the Gardens comm unity was one of the m ost concentrated populations of African-American and Hispanic persons in the Township.
b. The Township decided to abandon efforts to rehabilitate the Gardens and instead initiate a redevelopm ent project that would require the f orcible relo cation of all o r most Gardens residents.
35

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 36 of 55 PageID: 36

c. Even before adoption of a redevelopm ent pl an, the Township took actions to create

blighted conditions in the Gardens and to drive down the costs of property acquisition

and relocation.

d. The Township knew or should have known th at the predominately African-American

and Hispanic Gardens residents would be unable to afford t he proposed new housing

to be constructed under the Redevelopment Plan.

e. The Township also knew or had reason to know that there was an inadequate supply

of affordable housing in the area and especially within the Township.

f. The Towns hip knew or had reason to know that Gardens residents would find few

affordable housing options within Mt. Ho lly Township and woul d b e lik ely to be

forced to move out to other municipalities.

g. The Towns hip knew or should have known that im

plementation of the WR

Redevelopment Plan would th erefore resu lt in decreasi ng the num bers of African-

American and Hispanic residents in Mt. Holly.

h. The Township knew or should have known th at the African-Am erican and Hispanic

residents would experience severe hardship from being forcibly relocated and would

have great difficulty in securing adequate replacement housing.

i. The Township officials also knew or ha d reason to know that the redevelopm ent

would thus cause severe harm to Gardens re sidents, as they would lose their hom es

and their comm unity and have great difficu lty in finding decent, safe, affordable

replacement housing in Mt Holly Township and the surrounding region.

36

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 37 of 55 PageID: 37
j. The Township officials adopted and began to implement the Gardens Redevelopment Plan and the WR Redevelopm ent Plan with the intent to displace cu rrent Garde ns residents and force a significant number of them to move out of Mt Holly.
k. The Gardens comm unity, which has the highe st concen tration of African-Am erican and Hispanic resid ents in the Township, is the only community th e Township has targeted for large-scale displacement and relocation.
l. The Towns hip deviated from procedural and substantive nor ms by violating the procedures m andated by the LRHL, N.J.S.A. 40A:12A-1 et seq. , and the OPMA, N.J.S.A. 10: 4-12, as described m ore fully under the Seventh and Eighth Counts of the Complaint.
m. The Township deviated from procedural and substantive norms by adopting revisions to the WR Redevelopment Plan that are inconsistent with the policies and priorities of the Township’s Master Plan.
n. The Towns hip knowingly and deliberately created adverse and unsafe living conditions at the Gardens by failing to provide adequate e ssential services, by purchasing properties and leaving them in vacant and deteriorated condition, by demolishing structurally sound units that we re capable of rehabilitation, by failing to obtain and expend funds for community improvements, and by failing to support community-led initiatives for improving housing and quality of life in the Gardens.
o. The Towns hip intentionally took action to drive down property values and it s acquisition and re location costs, improperly assessed the value of the p roperties, and failed to make availab le to the p redominately African-Am erican a nd Hispanic Gardens residents just compensation and adequate relocation assistance.
37

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 38 of 55 PageID: 38

p. The Township’s prior history regarding its trea tment the Ga rdens and its adoption of

the W R Redevelopm ent Plan despite know ledge of its discrim inatory effects

demonstrate that the To wnship intended to and did discriminate against plaintiffs on

the basis of race, color, and national origin.

q. The Township intentionally took action it knew or should have known would coerce ,

intimidate, threaten and interfere with re sidents' rights to rent, own, sell, buy and

otherwise exercise their rights protected under the 42 U.S.C § 3604 by coercing

residents to sell their property to the Township, by leaving the properties it purchased

vacant, po orly m aintained and attractiv e to vandalizers and trespassers, b

y

demolishing units attached to units it kne w to be occupied by residents, thus

frightening the residents and structurally dam aging their units, by conducting live

police weap ons and tactics team trainings in vacant units in view of residents and

their children and by sending residents no tices of re location in terviews, that the y

knew or should have known would be coer cive, intimidating, threatening and would

interfere with residents' rights.

203. By the actions described above, the To wnship has intentionally, knowingly, and

continuously discrim inated against African Am erican, Hispanic and other residents of the

Gardens neighborhood because of thei r race, color o r national orig in, or th e racial, co lor o r

national origin composition of their neighborhood, in violation of the Fair Housing Act.

204. The Township have intentionally, knowi ngly, and continuously engaged in the

practices described above that have a predictable discriminatory effect with the intent of denying

equal housing opportunities to Residents.

38

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 39 of 55 PageID: 39
205. The actions of the Township and Re developers in adopting, revising, and implementing the redevelopment plans for the Ga rdens have caused and ar e continuing to cause severe harm to the low and m oderate incom e, predom inately African -American and Hispanic Gardens residents.
206. The acts and conduct of the Township and Redevelopers com plained of above have caused and continue to cause substantial injury to each of the individual plaintiffs and to plaintiff Citizens in Action.
SECOND COUNT VIOLATION OF CIVIL RIGHTS ACT OF 1866,
42 U.S.C. §1982 207. Residents and CIA reallege and incorporate by referenc e the allega tions in a ll previous Paragraphs of this Complaint as if fully pleaded herein. 208. The Civil Rights Act of 1866, as amended, 42 U.S.C. § 1982, guarantees that “[a]ll citizens of the United States shall have the sam e right, in every State and Territory, as is enjoyed by white citizens thereo f to inherit, purchase, lease, sell, hold, and convey real and personal property.” 209. By seeking to dem olish all 329 hom es within the Gardens neighborhood and proposing to constru ct much more expensive replacement housing units unaffordable to m ost African-American and Hispanic households living in the Gardens, the Township is intentionally seeking to deprive the plaintiffs and other Africa n-American and Hispanic resid ents of the same right to inherit, purchase, lease, sell, hold, and convey real and personal property as is enjoyed by white citizens, in violation of to 42 U.S.C. § 1982.
39

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 40 of 55 PageID: 40
210. The Township has otherwise intentionally discriminated against Residents and other African-American and Hispanic residents of the Gardens neighborhood as described under the First and Third Counts of this Complaint.
211. The Township has thus violated plaintiffs rights guaranteed under 42 U.S.C. §1982. THIRD COUNT
VIOLATION OF EQUAL PROTECTION CLAUSE OF FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION ACTIONABLE
PURSUANT TO 42 U.S.C. § 1983 212. Residents and CIA reallege and incor porate by reference the allegations in all previous Paragraphs of this Complaint as if fully pleaded herein. 213. The Township has intentionally discrim inated against plaintif f Residents and other African-American and Hispanic residents of the Gardens neighborhood as described under the First and Second Counts of this Complaint. 214. The Township has, under color of state law, intentionally deprived the Residents of their rights to equal protec tion under the law as guaranteed to them by the Fourteenth Amendment of the United States C onstitution becau se of their race, e thnicity and/or nation al origin, actionable pursuant to 42 U.S.C. §1983.
FOURTH COUNT VIOLATION OF NEW JERSEY LAW AGAINST DISCRIMINATION,
N.J.S.A. 10:5-1 ET SEQ. 215. Residents and CIA reallege and incorporate by referenc e the allega tions in a ll previous Paragraphs of this Complaint as if fully pleaded herein. 216. N.J.S.A. 10:5-12.5 of the New Jersey Law Agains t Discrimination states that “[i]t shall be unlawful discrim ination for a m unicipality, county or oth er local civ il or political subdivision of the State of New Jersey, or an officer, em ployee, or agent thereof, to exercise the
40

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 41 of 55 PageID: 41
power to regulate land use or housi ng in a m anner that discriminates on the basis of race, creed, color, national origin, ancestry, marital status, familial status, sex, nationality or handicap”
217. As set forth in Counts One through Three, the Township has taken actions that are causing and will contin ue to cause the disp roportionate d isplacement and forced rem oval of African-American and Hispanic ho useholds, that have reduced a nd will continue to reduce th e overall number of African-Am erican and Hispan ic households living in Mt. Holly Township, that discrim inate against African-A merican an d Hispanic households living in the Gardens neighborhood in the provision of services or facilities in connection with housing, that will create barriers for African-Americ an and Hispanic ho useholds to rem ain in and m ove into Mt. Holly Township, and that thus have a discrim inatory impact upon the basis of race, co lor and national origin and perpetuate segregation within Mt. Holly Township in violation of N.J.S.A. 10:5-12.5.
218. In addition to vio lating the New Jers ey Law Against Disc rimination due to discriminatory impact, the Township has inten tionally discriminated against plaintiffs and other African-American and Hispanic households liv ing in the Gardens ne ighborhood contrary to N.J.S.A. 10:5-12.5 as described under the Counts One through Three of this Complaint.
219. In addition, as set forth previously herein, the Township and Redevelopers have otherwise discriminated against African-American and Hispanic households in the provision of housing in violation of N.J.S.A. 10:5-4 of the LAD.
220. The Township and R edevelopers have thus unlawfully disc riminated against plaintiffs in violation of N.J.S.A . 10:5-4 and N.J.S.A . 10:5-12.5 of the New Jersey L aw Against Discrimination.
FIFTH COUNT VIOLATION OF EQUAL PROTECTION CLAUSE OF ARTICLE I,
PARAGRAPH 1 OF NEW JERSEY CONSTITUTION
41

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 42 of 55 PageID: 42
221. Residents and CIA reallege and incorporate by reference the allegations in all previous Paragraphs of this Complaint as if fully pleaded herein.
222. The Township has intentionally discriminated against plaintiff Residents and other African-American and Hispanic residents of the Gardens neighborhood by initiating and implementing a redevelopment project that forcibly displaces these residents as described under the First, Second, Third, Fourth, and Fifth Counts of this Complaint.
223. The Township, under color of state law, has intentionally deprived the plaintiffs of their rights to equal protection of the law because of their race, ethnicity and/or national origin, in violation of Article I, Paragraph 1 of New Jersey Constitution.
SIXTH COUNT VIOLATION OF LOCAL REDEVELOPMENT AND HOUSING LAW, N.J.S.A. 40A:12A-1 ET SEQ., BY SUBSTANTIAL AND MATERIAL CHANGES TO THE WR REDEVELOPMENT PLAN WITHOUT FORMAL REVISION OR AMENDMENT 224. Residents and CIA reallege and incorporate by referenc e the allega tions in a ll previous Paragraphs of this Complaint as if fully pleaded herein. 225. The LRHL, N.J.S.A. 40A:12A-7, provides th at no redevelopm ent project shall be undertaken or carried o ut except in accordan ce with a redevelopment plan adopted by ordinance of the municipal governing body. 226. The LRHL, N.J.S.A. 40A:12A-8, further provides th at a m unicipality may proceed with a redevelopm ent projec t upon the adoption of a redeve lopment plan pursuant to N.J.S.A. 40A:12A-7. 227. The LRHL, N.J.S.A. 40A:12A-7(e), further requires that “Prior to the ad option of a redevelopment plan, or revision or amendment thereto, the planning bo ard shall transmit to the governing body, within 45 days after referral, a report containing its recommendation concerning
42

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 43 of 55 PageID: 43
the redevelopment plan;” and it further requir es that “[T]he governing body, when considering the adoption of a redevelopm ent plan or revision or am endment thereof, shall review the report of the planning board”.
228. The Council failed to refer to the Pl anning Board proposed am endments or revisions to the W R Redevelopment Plan and the Township Planning Board did not conduct a review of such proposed amendments or revisions.
229. The Council therefore did not review a re port of the Planning Board concerning such revisions or amendments.
230. The Council further failed to hold a pub lic hearing and to adopt by ordinance amendments to the WR Redevelopment Plan.
231. The Council violated the LRHL, N.J.S.A. 40A:12A-7, by approving significant and material changes to the W R Redevelopm ent Plan in closed session without enactm ent of an ordinance.
232. The Township and Redevelopers are pro ceeding to im plement the new version of the redeve lopment plan despite the Township’s failure to am end t he redevelopm ent plan pursuant to the LRHL.
233. The actions of the Township in making revisions to and proceeding to effectuate the Redevelopment Plan are arbitrary and capricious, unreasonable and ultra vires.
SEVENTH COUNT VIOLATION OF LRHL, N.J.S.A. 40A:12A-7, BY MAKING DE FACTO REVISIONS TO
REDEVELOPMENT PLAN RENDERING IT INCONSISTENT WITH TOWNSHIP MASTER PLAN
234. Residents and CIA reallege and incorporate by referenc e the allega tions in a ll previous Paragraphs of this Complaint as if fully pleaded herein.
43

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 44 of 55 PageID: 44
235. The LRHL, N.J.S.A. 40A:12A-7, states: “All provisions of the redevelopment plan shall be either substantially consistent with the municipal master plan or designed to effectuate the m aster plan; but the m unicipal governing body m ay adopt a redevelopm ent plan which is inconsistent with or not designed to effectuate the master plan by af firmative vote of a m ajority of its f ull authorized membership with the r easons for so acting set forth in the redevelopm ent plan.”
236. The LRHL, N.J.S.A. 40A:12A-7, also provi des for a review by the planning board of consistency of a proposed redevelopment plan with the municipality’s master plan.
237. Upon information and belief, neither the Township Planning Board nor Township Council evaluated the consistency of the de fact o revisions to the W R Redevelopment Plan, as set forth in the Developer’s concept plan, for consistency with the master plan.
238. The de facto revisions that the Council in formally endorsed on or about Septem ber 24, 2007, and has acted to im plement rendered the WR Redevelopment Plan to be substantially inconsistent with the Township master plan and fails to effectuate the master plan.
239. The Council violated the LRHL by failing to comply with the procedures m andated by N.J.S.A. 40A:12A-7(d) for adopting a redevelopm ent pl an that is inconsistent with or not designed to effectuate a master plan.
EIGHTH COUNT VIOLATION OF THE OPEN PUBLIC MEETINGS ACT, N.J.S.A. 10:40-6 ET SEQ.,BY
DE FACTO REVISION OF WR REDEVELOPMENT PLAN IN CLOSED SESSION 240. Residents and CIA reallege and incorporate by referenc e the allega tions in a ll
previous Paragraphs of this Complaint as if fully pleaded herein. 241. The Open Public Meetings Act (“OPMA ”), N.J.S.A. 10:4-12, requires that “all
meetings of public bodies shall be open to the pub lic at all tim es,” with the exception that the
44

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 45 of 55 PageID: 45
public body may exclude the public only from that portion of a meeting at which the public body discusses certain topics specifically enumerated in subsection b. of that section of the statute.
242. OPMA, N.J.S.A. 10:4-13, further provides that “[N]o public body shall exclude the public from any meeting to discuss any matter described in subsection 7. b. until the public body shall first adopt a resolution, at a m eeting to wh ich the public shall b e admitted: a. Stating th e general nature of the su bject to be discussed; and b. Statin g as precisely as possib le, the tim e when and the circumstances under which the discussion conducted in closed session of the public body can be disclosed to the public.”
243. The Council violated the OPMA, N.J.S.A. 10:4-12 and N.J.S.A. 10:4-13, when it failed to adopt a proper resolution authorizing a closed session, engaged in discussions with Redevelopers and approved a concept plan prepared by the Redevelopers in a closed session, and failed to formalize such action in open session and to give public notification of its actions.
NINTH COUNT VIOLATION OF THE RIGHT TO DUE PROCESS OF LAW AND FUNDAMENTAL
FAIRNESS AS GUARANTEED BY ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION
244. Residents and CIA reallege and incorpor ate b y reference the allegations in all previous Paragraphs of this Complaint as if fully pleaded herein.
245. The Township failed to provide individualized notice to all owners of properties to be acquired under the WR Redevelopm ent Plan and to otherwise m eaningfully inform and give notice to residents of the effects of redevelopm ent activities upon their constitutionally protected property rights.
45

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 46 of 55 PageID: 46
246. The Township conducted private m eetings with Redevelopers and other entities regarding the redevelopment initiative without g iving notice to res idents or an opportunity to b e heard.
247. The Towns hip m ade re visions to the W R Redevelopm ent Plan without holding a public m eeting as required by OPMA, N.J.S. A. 10:4-13, conducting a for mal process for amending a redevelopment plan as required by the LRHL, N.J.S.A. 40A:12A-7, and providing notice to the public and an opportunity for residents to he heard with regard to the amendments.
248. The Towns hip has taken im proper actions to am end and im plement the redevelopment plan without adequate notice an d an opportunity to be heard, significantly and substantially interfering with and infringing upon the property rights of Residents.
249. The Township’s failure to follow the LRHL’s form al plan am endment procedures, before tak ing dras tic im plementation actio ns destroying and dism antling the Gardens neighborhood, is unjust and arbitrary governm ental action, resulting in th e unfair treatm ent of Gardens residents, and inflicting upon them oppre ssion, harassment, and eg regious deprivation causing unjustified harassment, anxiety, and expense.
250. The Township’s actions violate due process and fundamental fairness under the Article 1, Paragraph 1, of the New Jersey Constitution.
TENTH COUNT VIOLATION OF THE RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
ACTIONABLE PURSUANT TO 42 U.S.C. §1983 251. Residents and CIA reallege and incorporate by referenc e the allega tions in a ll previous Paragraphs of this Complaint as if fully pleaded herein.
46

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 47 of 55 PageID: 47
252. As set forth above in the Ninth Count of this Complaint, the Township has taken actions that infringe upon and deprive Residents of their property rights without meaningful and adequate notice and opportunity to be heard.
253. The Township, acting under color of state law, has deprived Residents of their rights secured by the Due Process Clause of the Fourteenth Amendment, actionable under 42 U.S.C. § 1983.
ELEVENTH COUNT ADOPTION, REVISION, AND IMPLEMENTATION OF THE REDEVELOPMENT
PLAN IS ARBITRARY, CAPRICIOUS, AND UNREASONABLE 254. Residents and CIA reallege and incorporate by referenc e the allega tions in a ll previous Paragraphs of this Complaint as if fully pleaded herein. 255. The actions of the Township in 1) adopt ing a redevelopm ent plan that fails to provide for the housing needs of its residents, reduces the supply of affordable housing, forcibly displaces low and m oderate income f amilies; 2) revising the plan without f ollowing statutorily mandated procedures that provide for public notice and input; and 3) acting in an ultra vires manner to ef fectuate this redev elopment plan as revised, while causing severe harm to the residents of the Gardens, are in contravention to the plan ’s own stated goals, in consistent with the purposes of LRHL, N.J.S.A. 40A:12A-2, and arbitrary, capricious, and unreasonable.
TWELTH COUNT VIOLATION OF THE GENERAL WELFARE UNDER ARTICLE I, PARAGRAPH 1
OF THE NEW JERSEY CONSTITUTION 256. Residents and CIA reallege and incorporate by referenc e the allega tions in a ll previous Paragraphs of this Complaint as if fully pleaded herein.
47

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 48 of 55 PageID: 48
257. The general welfare under Article I, Para graph 1 of the New Jersey Constitu tion requires municipalities to regulate and use land to promote the public health, safety, and general welfare of people of all incom es and econom ic st atus within the m unicipality, and therefore prohibits municipalities from using their redevelopment police powers in a manner that displaces and excludes existing lower-income residents from their community.
258. The WR Redevelopm ent Plan calls for re placing the 329 reside ntial units in the Gardens with 228 residential units, of which only 10%—a total of 23—would be affordable housing units, with the remaining 205 units to be market rate units.
259. The Towns hip is in the process of acquiring and dem olishing all of the existing homes in the Gardens, although the houses were structurally sound and the Township had not demonstrated that they constituted a substantia l threat to health and sa fety and could not be restored to standard condition within a reasonable time and at a reasonable expense.
260. Most of the households in the Gardens are lower and m oderate income and will not be able to afford the market rate units called for in the WR Plan
261. The Township has violated the general we lfare under Article I, Paragraph of the New Jersey Constitution by adopting and implementing the WR Redevelopment Plan and failing to ensure th at the regulation a nd use of land be m ade in such m anner as to prom ote the public health, safety, and general welfare of people of all incomes and economic status within Mt. Holly Township; by destroying existing affordable hou sing and forcibly displacing low and m oderate income residents; by failing to re place lost affordable housing; and by failing to act and legislate for the general welfare of people throughout the State of New Jersey, including the region wherein Mt. Holly Township lies.
48

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 49 of 55 PageID: 49
262. The Township has furth er violated the general welfare by implem enting the W R Redevelopment Plan in a m anner that has create d unsafe and increasingly blighted conditions, greatly decreased quality of life, i nterfered w ith the residents’ use and enjoyment of their property, forced residents to m ove out of their community, and pr ovided them with inadequa te compensation and relocation ass istance to en able them to secure com parable decent safe replacement housing in the Township.
263. The Township’s proposed de facto changes to the WR Redevelopment Plan, increasing the total number of re sidential units to be built in the redevelo pment area to 520, and proposing construction of only 56 CO AH units, also violate the ge neral welfare by proposing to destroy existing housing affordable to low and moderate incom e Gardens residents and to forcibly displace most low and moderate income Gardens families; and by failing to replace lo st affordable housing and guarantee th at any of th e new units would be realis tically affordable or available to Gardens residents .
THIRTEENTH COUNT DENIAL OF JUST COMPENSATION UNDER 5TH AMENDMENT TO THE UNITED
STATES CONSTITUTION ACTIONABLE PURSUANT TO 42 U.S.C. § 1983 264. Residents and CIA reallege and incorporate by referenc e the allega tions in a ll previous Paragraphs of this Complaint as if fully pleaded herein. 265. The Fif th Am endment to the United States Constitu tion prohibits the taking of private property without provision of just compensation. 266. The prices that the Township has p aid a nd is continuing to offer for purchases of property do not constitute just compensation. 267. In addition, within the context of redevelop ment of lower incom e comm unities resulting in low and m oderate incom e hom eowners being displaced, paym ent of fair m arket
49

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 50 of 55 PageID: 50
value does not constitute just compensation where fair market value is less than th e replacement value of housing within the local housing market.
268. As a result, the Township, acting under colo r of state law, is depriving homeowner Residents of just compensation in violation of the Fifth Amendment.
FOURTEENTH COUNT DENIAL OF JUST COMPENSATION UNDER ARTICLE 1, PARAGRAPH 20 OF THE
NEW JERSEY CONSTITUTION 269. Residents and CIA reallege and incorporate by referenc e the allega tions in a ll previous Paragraphs of this Complaint as if fully pleaded herein. 270. Article I, Paragr aph 20 of the New Je rsey Constitu tion provides th at priva te property may not be taken without just compensation. 271. Within the context of redevelopment of lower income communities resulting in low and m oderate incom e hom eowners being displ aced, paym ent of fair m arket value does not constitute just com pensation where fair m arket value is less than th e rep lacement valu e of housing within the local housing market. 272. As set forth in the Thirteenth Count of th is Complaint, the Township is seeking to acquire property under threat of em inent doma in without paym ent of just com pensation, in violation of Article I, Paragraph 20 of the New Jersey Constitution.
PRAYER FOR RELIEF WHEREFORE, Residents respectfully request that the Court enter judgment against the Township and Redevelopers: A. Declaring that the Township and Redevel opers have violated Residents’ rights
under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §3601 et seq.;
50

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 51 of 55 PageID: 51
B. Declaring that the Township has violated Residents’ rights u nder the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.;
C. Declaring that the Township has viol ated Residents’ rights under 42 U.S.C. §1982;
D. Declaring that the Township has v iolated plaintiffs’ rights to equal protection of the law guaranteed by the Fourteen th Amendm ent to the United States Constitution;
E. Declaring that the Township has v iolated plaintiffs’ rights to equal protection of the law as guaranteed by Article I, Paragraph 1 of New Jersey Constitution;
F. Declaring that the Township has violated the LRHL; G. Declaring that the Township has violated the OPMA; H. Declaring the Township has dep rived Residents of due proce ss rights g uaranteed
under the United States Constitution; I. Declaring the Township has violated due process and funda mental fairness
guaranteed under the New Jersey Constitution; J. Declaring that the that the undervalued prices being offe red and paid by the
Township to purchase hom es under thr eat of e minent dom ain violate the requirement of just compensation mandate d under Article I, Paragraph 20 of the New Jersey Constitutio n and the Fif th Amendm ent of the Unite d States Constitution; K. Declaring that within the context of redevelopment of lower income communities resulting in low and m oderate income homeowners being displaced, paym ent of fair market value violates the requirement of just compensation where fair market
51

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 52 of 55 PageID: 52
value is less than the replacem ent valu e of housing within the local housing market m andated under Article I, P aragraph 20 of the New Jersey Constitu tion and the Fifth Amendment of the United States Constitution; L. Declaring the Township’s actions in adopting, revising, and im plementing the Redevelopment Plan are arbitrary, capricious, unreasonable, and ultra vires. M. Declaring that the Township has violat ed the genera l welf are in Artic le I , Paragraph 1 of the New Jersey Constitution; N. Preliminarily and permanently en joining the T ownship and Redevelopers from further implementing their current Redevelopment Plan; O. Preliminarily and permanently requiring the Township and Redevelopers to carry out any further redevelopm ent in the Gardens in a m anner having the least discriminatory adverse impact upon African-American and Hispanic households; P. Preliminarily and pe rmanently prohibiting the Township and Redevelopers from demolishing, rem oving, purchasing or obtaining through em inent dom ain residential dwellings within the Ga rdens, or otherwise implem enting redevelopment, without providing for reha bilitation of housing and/or adequate affordable replacement housing for all current and displaced Gardens residents. Q. Damages and/or just compensation suffici ent for Residents to secure perm anent replacement housing in the local housing market; R. Preliminarily and permanently compelling th e Township to provid e the Gardens residents with adequate m unicipal serv ices, including but not lim ited to police, fire protection, code enforcement, trash collection and community services; S. Awarding compensatory damages;
52

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 53 of 55 PageID: 53

T. Awarding punitive damages;

U. Awarding plaintiffs costs of suit;

V. Ordering the Township and Redevelopers to pay plaintiffs’ reasonable expert and

attorney’s fees, except that no attorney’s fees are requested by South Jerse y Legal

Services, Inc; and

W. Granting such other relief and the Court deems just and proper.

DEMAND FOR JURY TRIAL

Pursuant to Fed. R. Civ. P 38(b) , the plaintiffs dem and a tria l by ju ry of all is sues so

triable as of right.

Dated: May 27, 2008
Bernice
Nixon, Tirado, Reynaldo Nancy Alandria

SOUTH JERSEY LEGAL SERVICES, INC. Attorneys for Plaintiffs: Mt. Holly Gardens Citizens In Action, Inc., Pedro Arocho, Christine Barnes,
Cagle, George Chambers, Dorothy Chambers, Elida Echevaria, Norman Harris, Elmira
Leonardo Pagan, Joyce Starling, Taisha Dagmar Vicente, Charlie Mae Wilson,
Arocho, Ana Arocho, Mattie Howell, Lopez, Vincent Munoz, Henry Simons,
Warthen and Leona Wright

By: /s/ Olga D. Pomar OLGA D. POMAR, ESQUIRE

By:

/s/ Kenneth M. Goldman

KENNETH M. GOLDMAN, ESQUIRE

(KG 8040)

By:

/s/ David M. Podell

DAVID M. PODELL, ESQUIRE (DP 1975)

AARP
Arocho, Munoz, Baedresingh, Rosem

FOUNDATION LITIGATION Attorneys for Plaintiffs: Reynaldo Arocho, Ana
Mattie Howell, Nancy Lopez, Vincent Henry Simons, Leona Wright, Lyra
Leon Calhoun, Santos Cruz, ary Roberts, William Roberts, Lissette

53

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 54 of 55 PageID: 54

Rodriguez, Moreno

Efraim Romero, Radames Torresand Lillian Torres-Moreno

POTTER
Calhoun, Roberts, Radam

By: /s/Susan Ann Silverstein SUSAN ANN SILVERSTEIN, ESQUIRE (pending admission pro hac vice)
AND DICKSON Attorneys for Plaintiffs: Lyra Baedresingh, Leon
Santos Cruz, Rosemary Roberts, William Lissette Rodriguez, Efraim Romero, es Torres-Moreno and Lillian Torres-Moreno

By: /s/ R. William Potter R. WILLIAM POTTER, ESQUIRE
L.Civ.R. 11.2 CERTIFICATION Pursuant to L.Civ.R. 11.2, the undersigned a ttorneys hereby certify that the m atter in controversy is not the subject of any other action pe nding in any court, or of any pending arbitration or administrative proceeding. The undersigned attorneys certify that the foregoing statements are true. The undersigned attorneys understand that if any of the above statem ents made by me are willfully false, the undersigned attorneys are subject to punishment.

Dated: May 27, 2008
Bernice
Nixon, Tirado, Reynaldo Nancy and

SOUTH JERSEY LEGAL SERVICES, INC. Attorneys for Plaintiffs: Mt. Holly Gardens Citizens In Action, Inc., Pedro Arocho, Christine Barnes,
Cagle, George Chambers, Dorothy Chambers, Elida Echevaria, Norman Harris, Elmira
Leonardo Pagan, Joyce Starling, Taisha Dagmar Vicente, Charlie Mae Wilson,
Arocho, Ana Arocho, Mattie Howell, Lopez, Vincent Munoz, Henry Simons, Leona Wright
By: /s/ Olga D. Pomar OLGA D. POMAR, ESQUIRE

54

Case 1:08-cv-02584-NLH-JS Document 1 Filed 05/27/08 Page 55 of 55 PageID: 55

By:
By:
AARP Arocho, Munoz, Baedresingh, Rosem Rodriguez, Moreno
POTTER Calhoun, Roberts, Radam

/s/ Kenneth M. Goldman KENNETH M. GOLDMAN, ESQUIRE (KG 8040)
/s/ David M. Podell DAVID M. PODELL, ESQUIRE (DP 1975)
FOUNDATION LITIGATION Attorneys for Plaintiffs: Reynaldo Arocho, Ana
Mattie Howell, Nancy Lopez, Vincent Henry Simons, Leona Wright, Lyra
Leon Calhoun, Santos Cruz, ary Roberts, William Roberts, Lissette
Efraim Romero, Radames Torresand Lillian Torres-Moreno
By: /s/Susan Ann Silverstein SUSAN ANN SILVERSTEIN, ESQUIRE (pending admission pro hac vice)
AND DICKSON Attorneys for Plaintiffs: Lyra Baedresingh, Leon
Santos Cruz, Rosemary Roberts, William Lissette Rodriguez, Efraim Romero, es Torres-Moreno and Lillian Torres-Moreno
By: /s/ R. William Potter R. WILLIAM POTTER, ESQUIRE

55

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

MT HOLLY CITIZENS IN ACTION, :

INC., et al.,

:

:

Plaintiffs, :

:

v.

:

:

TOWNSHIP OF MOUNT HOLLY,

:

et al.,

:

:

Defendants. :

:

Civil Action No. 08-2584 (NLH)
OPINION

Appearances:
DOUGLAS E. GERSHUNY, EXEC. DIR. OLGA D. POMAR DAVID M. PODELL SOUTH JERSEY LEGAL SERVICES, INC. 745 MARKET STREET CAMDEN, NJ 08102 Attorneys for Plaintiffs
R. WILLIAM POTTER POTTER & DICKSON 194 NASSAU STREET PRINCETON, NJ 08542 Attorney for Plaintiffs
SUSAN ANN SILVERSTEIN AARP FOUNDATION LITIGATION 601 E STREET, NW WASHINGTON, DC 20049 Attorney for Plaintiffs
GAETANO MERCOGLIANO SWEENEY & SHEEHAN 216 HADDON AVENUE, SUITE 500 WESTMONT, NJ 08108 Attorney for Defendant Triad Associates, Inc.

Page 1

M. JAMES MALEY MALEY & ASSOCIATES 931 HADDON AVENUE COLLINGSWOOD, NJ 08108 Attorney for Defendant Mount Holly Township, et al.
WILLIAM J. DESANTIS BALLARD SPAHR ANDREWS & INGERSOLL LLP PLAZA 1000 - SUITE 500 MAIN STREET VOORHEES, NJ 08043 Attorney for Defendant Keating Urban Partners, L.L.C.
HILLMAN, District Judge
This matter has come before this Court upon Defendants
Township of Mount Holly’s1, Keating Urban Partners, L.L.C.’s2,
and Triad Associates, Inc.’s motions to dismiss Plaintiffs’
Amended Complaint. This opinion addresses only the
jurisdictional issues raised in the motions to dismiss.3
1 Joining in the brief submitted on behalf of Township of Mount Holly are defendants Kathleen Hoffman and Brooke Tidswell, III, collectively “Township Defendants.”
2 Defendant Keating Urban Partners, L.L.C. relied upon the brief submitted by the Township of Mount Holly.
3 On September 22, 2008, the Township Council invalidated the redevelopment plan challenged in the Amended Complaint with the adoption of the Revised West Rancocas Redevelopment Plan (“Revised WRRP”). Counsel for Plaintiffs have moved for leave to file a second amended complaint in light of the revised redevelopment plan. Because Plaintiffs have moved to file a second amended complaint, this Court will address the objections to the merits of the claims in conjunction with Plaintiffs’ motion for leave to amend. Of course, we express no opinion regarding our subject matter jurisdiction over claims not yet filed.
Page 2

This Court holds that it has subject matter jurisdiction over the claims in Counts 1 through 5 and 9 through 12 of the Amended Complaint. It does not, however, have subject matter jurisdiction over the claims in Counts 6 through 8 because these claims are now moot. Likewise, this Court does not have subject matter jurisdiction over Counts 13 and 14 because these claims are unripe for adjudication. This Court will not abstain from exercising its jurisdiction over the remaining claims, and in the interests of judicial economy, will exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over any state law claims found in Counts 1 through 5 and 9 through 12.
JURISDICTION As Plaintiffs have alleged violations of the United States Constitution, the Fair Housing Act, 42 U.S.C. § 3601 et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1982, this Court exercises subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal question jurisdiction).
BACKGROUND Mount Holly Gardens (“Gardens”) is a neighborhood in Mount Holly, New Jersey. Its residents are primarily low-income African-Americans and Hispanics. This demographic contrasts with
Page 3

that of the rest of Mount Holly, whose residents are primarily white and have a higher median income.
In 2002, the Mount Holly Township Council (“Township Council”) determined that the Gardens was an “area in need of redevelopment” under New Jersey law. See N.J.S.A. 40A:12A-1 et seq. Pursuant to this determination, the Township Council passed the Gardens Area Redevelopment Plan (“GARP”) in 2003. In 2005, this redevelopment plan was superseded by the passage of the West Rancocas Redevelopment Plan (“WRRP”). The redevelopment plans called for the acquisition and demolition of the 329 homes in the Gardens redevelopment area.4
Fearing displacement, Plaintiff Mount Holly Gardens Citizens in Action (“CIA”), an advocacy group for Gardens residents, and multiple Gardens residents filed suit in New Jersey state court in 2005. In May 2005, Judge Sweeney of the New Jersey Superior Court found: (1) that the Gardens was an area in need of redevelopment under New Jersey law; (2) that the Township Council had followed proper procedures with respect to the redevelopment from 2002 through 2005; and (3) that the WRRP complied with New Jersey’s Local Redevelopment and Housing Law (“LRHL”). In August 2005, Judge Sweeney dismissed Plaintiffs’ civil rights claims without prejudice as unripe. All of Judge Sweeney’s rulings were
4 The WRRP left open the possibility that some homes might be rehabilitated rather than demolished. However, it did not indicate how many homes, if any, might be salvaged.
Page 4

upheld by the New Jersey Superior Court, Appellate Division, and the New Jersey Supreme Court denied certification.
Since Judge Sweeney’s rulings in 2005, the Township has taken substantial steps towards redeveloping the Gardens. In 2006, the Township selected defendant Keating Urban Partners, L.L.C. as its redeveloper. Keating, in turn, hired defendant Triad Associates, Inc. to conduct relocation activities. Plaintiffs allege that the Township has acquired at least 219 of the 329 residential units in the Gardens redevelopment area and has demolished at least 73 units. In April of 2008, the Township Council passed an ordinance stating that the Township is or will be the owner of all homes in the Gardens redevelopment area. This ordinance also authorized the use of eminent domain proceedings in furtherance of this goal.
On May 27, 2008, Plaintiffs CIA and numerous current and former Gardens residents (“Residents”) filed suit in this Court. Their Amended Complaint, comprising five (5) federal and nine (9) state law counts, challenged the implementation of the WRRP as discriminatory both in intent and effect. The Amended Complaint also alleged that the Township Council had failed to follow required procedures with respect to the modification of the WRRP, and that the redevelopment activities constituted a governmental taking without just compensation.
Page 5

DISCUSSION I. Subject Matter Jurisdiction
This Court must first determine whether it has subject matter jurisdiction over this action. Defendants argue that Counts 1, 2, 3, 4, 5, 13, and 14 of the Amended Complaint are unripe for adjudication; that Counts 6 through 9 are now moot; and that this Court lacks subject matter jurisdiction under the Rooker-Feldman doctrine. These issues are addressed in turn below.
A. Ripeness An Article III court lacks subject matter jurisdiction over claims that are unripe. The Supreme Court has explained that claims relying upon “‘contingent future events that may not occur as anticipated, or indeed may not occur at all,’” are unripe for adjudication and must be dismissed. Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (quoting 13A Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3532, p. 112 (1984)). In determining the ripeness of a claim, the court must “evaluate both the fitness of the issues for judicial consideration and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).
Page 6

With these rulings in mind, we shall now analyze the ripeness of Plaintiffs’ civil rights claims (Counts 1 through 5) and Plaintiffs’ taking claims (Counts 13 and 14).
(a) Civil Rights Claims - Counts 1 through 5 Counts 1 through 5 of the Amended Complaint allege violations of Plaintiffs’ civil rights. Plaintiffs argue, in essence, that the Township’s planned demolition of minorityoccupied housing is discriminatory both in intent and effect. Plaintiffs allege violations of the Fair Housing Act, the Civil Rights Act of 1866, the Equal Protection Clause of the Fourteenth Amendment, the New Jersey Law Against Discrimination, and the Equal Protection Clause of the New Jersey Constitution. Defendants contend that these claims are not ripe and must therefore be dismissed. The Township states that “Plaintiffs fail to articulate any harm other than that recited before the State courts during the prior litigation, rendering their claims speculative and un-ripe.” (Township’s Brief in Support of Motion to Dismiss, p. 17.) Furthermore, the Township states that “[n]o Plaintiff is alleged to have been unable to find safe, decent, affordable housing or been forcibly removed from their home. Plaintiffs allege that they may be unable to find affordable housing if they are forced to relocate. Such allegations rest on
Page 7

contingent future events that may never occur.” (Township’s Brief, p. 18.)
However, the complaint alleges that at this point, the Township has acquired 219 residential units out of the 329 homes in the Gardens redevelopment area. At least 73 of these units have been demolished. In April of 2008, the Township Council passed an ordinance stating that the Township is or will be the owner of all homes in the redevelopment area. The ordinance authorizes the use of eminent domain proceedings in conjunction with the acquisition of these homes, and the Township has commenced eminent domain proceedings against at least one property owner. In light of these developments, the majority of Plaintiffs’ claims are no longer speculative. The ripeness of each challenged count will be analyzed below.
(1) Fair Housing Act, 42 U.S.C. § 3601 et seq. Plaintiffs have alleged violations of the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq. The FHA defines an “aggrieved person” as any person who “claims to have been injured by a discriminatory housing practice,” or who “believes that such person will be injured by a discriminatory housing practice that is about to occur.” § 3602(i). Plaintiffs’ claims may therefore be ripe under the statute even if Plaintiffs have not yet been injured by a discriminatory housing practice.
Page 8

The first claim Plaintiffs bring under the FHA is a violation of 42 U.S.C. § 3604(a). This section makes it unlawful “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” § 3604(a) (emphasis added). Plaintiffs contend that by acquiring and demolishing their homes, Defendants will “make unavailable or deny” their dwellings within the meaning of § 3604(a).
Plaintiffs’ claim under § 3604(a) is ripe for adjudication. Plaintiffs are “aggrieved persons” for purposes of this section because they believe that Defendants are about to make their homes unavailable to them in violation of § 3604(a). This belief is well-founded in light of recent events. Indeed, the Township Council passed an ordinance in April of 2008 declaring that the Township would be the owner of Plaintiffs’ homes.
Thus, Plaintiffs’ claims under § 3604(a) are no longer speculative. It is clear that the Township intends to take their homes. This issue is fit for judicial consideration, as it is clear that, if Plaintiffs’ claims are valid, injury will occur in the absence of judicial intervention. Additionally, there would be considerable hardship to the Plaintiffs in withholding court consideration until their homes have actually been taken, as they
Page 9

have alleged that they wish to remain in their homes. Thus, Plaintiffs’ claim under § 3604(a) is ripe.
Having determined that Plaintiffs’ claim under § 3604(a) is ripe, we now turn to their claim under § 3604(b). Section 3604(b) makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” § 3604(b). Plaintiffs allege that “by failing to provide adequate essential services,” Am. Compl. p. 38, the Township has discriminated against them in violation of § 3604(b).
This claim is also ripe for adjudication. The actions challenged pursuant to § 3604(b) are not speculative; rather, Plaintiffs challenge actions that the Township has already taken. Because this claim rests on events that have already occurred, it is ripe for adjudication.
Having found that Plaintiffs’ claim under § 3604(b) is ripe, we now turn to Plaintiffs’ claim under § 3617. Section 3617 makes it unlawful “to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of . . . any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.” Plaintiffs allege that they have been harassed as a result of remaining in their dwellings and that this harassment
Page 10

is discriminatory. Because Plaintiffs allege a harm that has already occurred, this claim is ripe for adjudication.
(2) Civil Rights Act of 1866, 42 U.S.C. § 1982 The Civil Rights Act of 1866, as amended, guarantees that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” 42 U.S.C. § 1982. Plaintiffs allege that the Township’s plan to acquire and demolish their homes is based in part on racial animus and thus violates their rights under § 1982. Defendants allege that this claim is not ripe for adjudication. However, as discussed above, it is now clear that the Township will acquire Plaintiffs’ homes. The claim is thus fit for judicial consideration, as Plaintiffs’ claims that they will lose their homes are no longer speculative. Withholding court consideration would result in a hardship to Plaintiffs because forcing them to wait until they are actually displaced would eclipse any chance they have of obtaining the equitable relief they desire.
(3) Equal Protection under the Fourteenth Amendment and of Art. I, Para. 1 of the New Jersey Constitution Plaintiffs allege that the Township has intentionally discriminated against them on the basis of race in violation of
Page 11

the Equal Protection Clause of the Fourteenth Amendment and the Equal Protection under Art. I, para. 1 of the New Jersey Constitution. The discriminatory acts that Plaintiffs allege include planning to demolish their housing, harassment in an effort to force Plaintiffs to leave the Gardens, and the reduction of municipal services in the Gardens.
Defendants contend that these claims are not ripe for adjudication. However, some of the harms alleged have already occurred, and the demolition of Plaintiffs’ housing, as noted above, is no longer speculative. Because the harms Plaintiffs allege under these counts are not speculative, and because withholding court consideration would create a hardship for the plaintiffs, these counts are ripe for adjudication.
(4) New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et seq. Plaintiffs allege violations of sections 10:5-12.5 and 10:54 of the New Jersey Law Against Discrimination (“LAD”). Section 10:5-12.5 of the LAD states that it shall be unlawful discrimination for a municipality, county or other local civil or political subdivision of the State of New Jersey, or an officer, employee, or agent thereof, to exercise the power to regulate land use or housing in a manner that discriminates on the basis of race, creed, color, national origin, ancestry, marital status, familial status, sex, gender identity or expression, nationality or disability. (emphasis added)
Page 12

N.J.S.A. 10:5-12.5. Plaintiffs allege that the Township’s redevelopment of the Gardens is racially discriminatory and thus violates section 10:5-12.5 of the LAD.
The Township contends that this claim is not ripe for adjudication. However, Plaintiffs allege in this claim certain harms that have already occurred, including the reduction of services provided by the Township and the demolition of housing. Because these harms are not speculative, but have already occurred, this claim is ripe for adjudication. Having addressed the ripeness of Plaintiffs’ claim under section 10:5-12.5 of the LAD, we now turn to Plaintiffs’ claim under section 10:5-4.
Section 10:5-4 of the LAD states that “[a]ll persons shall have the opportunity . . . to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, publicly assisted housing accommodation, and other real property without discrimination” on the basis of race, color, or national origin. N.J.S.A. 10:5-4. Plaintiffs allege that the Defendants (including the Redevelopers) have violated this section of the LAD by acquiring, vacating, and demolishing previously-occupied housing in the Gardens.
Defendants contend that this claim is not ripe for adjudication. However, at this point, the harms Plaintiffs allege are not speculative. Defendants have demolished many units in the Gardens and have evidenced their intent to acquire
Page 13

and demolish the remaining units. Therefore, Plaintiffs’ claim
is not speculative, and it is ripe for adjudication.
(b) Counts 13 and 14 - Denial of Just Compensation under the Fifth Amendment and Art. I, para. 20 of the New Jersey Constitution
This Court holds that Counts 13 and 14 are not ripe for
adjudication, and will be dismissed without prejudice.5
A taking claim is not ripe until state procedures for
seeking just compensation have been exhausted. As the Third
Circuit recently explained, “Because the Fifth Amendment bars not
just the ‘taking’ of property, but the taking of property
5 Plaintiffs, concerned that they might run afoul of New Jersey’s entire controversy doctrine, have asked this Court to expressly reserve their right to bring their taking claims in a separate state court litigation. This request is denied because Plaintiffs have cited no authority for the proposition that a federal court has the power to prejudge an issue of state procedural law. Nor have Plaintiffs cited cases standing for the proposition that their unripe claims will be barred unless this Court expressly reserves their right to bring them in a later litigation. We believe that it will be for the state courts to determine whether Plaintiffs have complied with state procedural rules, if and when such proceedings are brought.
It is noted, however, that this Court foresees no harm to Plaintiffs as a result of this denial. New Jersey’s entire controversy doctrine requires litigants to bring all claims arising out of the same facts in the same litigation. See N.J.S.A. Rule 4:30A. However, “[t]he entire controversy doctrine does not require that all claims be adjudicated in one proceeding, it merely requires that a party assert those claims at the outset.... Thus, it is the party’s original compliance with the doctrine ... that ensures preservation of that claim.” Mystic Isle Development Corp. v. Perskie & Nehmad, 142 N.J. 310, 332, 662 A.2d 523, 534 (N.J. 1995), overruled on other grounds by Olds v. Donnelly, 150 N.J. 454, 696 A.2d 633 (N.J. 1997).
Page 14

‘without just compensation,’ a plaintiff ‘cannot claim a violation of the Just Compensation Clause until’ he or she has exhausted a state’s ‘procedure for seeking just compensation.’” County Concrete Corp. v. Township of Roxbury, 442 F.3d 159, 168 (3d Cir. 2006) (citing Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-95 & 194 n. 13, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985)). Although County Concrete Corp. addressed only takings under the Fifth Amendment, the rule applies equally to a taking “without just compensation” prohibited by the New Jersey Constitution.
In this case, Plaintiffs have not exhausted New Jersey’s procedures for seeking just compensation. Therefore, Plaintiffs’ taking claims are unripe and must be dismissed without prejudice.
Having addressed Defendants’ arguments that Plaintiffs’ claims are unripe, we now turn to Defendants’ arguments that Counts 6 through 9 are rendered moot by the passage of the Revised WRRP.
B. Mootness The parties agree that Counts 6 through 8 of the Amended Complaint are now moot. These counts are therefore dismissed. However, Plaintiffs contest Defendants’ assertion that the passage of the Revised WRRP moots Count 9 of the Amended Complaint. The issue before the Court is whether the passage of
Page 15

the Revised WRRP, which is not alleged to have violated statutorily-required procedures, moots Plaintiffs’ due process and fundamental fairness claims under Art. I, para. 1 of the New Jersey Constitution.
A defendant may not “moot a case by repealing the challenged statute and replacing it with one that differs only in some insignificant respect.” Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, Florida, 508 U.S. 656, 662, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). Likewise, “[a] claim is not mooted by the amendment [of a challenged statute] if the ‘gravamen of petitioner’s complaint’ remains because, although the new ordinance ‘may disadvantage [plaintiffs] to a lesser degree than the old one,’ still ‘it disadvantages them in the same fundamental way.’” Nextel West Corp. v. Unity Township, 282 F.3d 257, 262 (3d Cir. 2002) (quoting Northeastern Florida Chapter of the Associated General Contractors of America, 508 U.S. at 662).
In this case, Plaintiffs allege that the substance of the Revised WRRP is essentially the same as the “concept plans” challenged in Count 9 of the Amended Complaint. They claim that the Township’s compliance with proper procedures in the passage of the Revised WRRP was “little more than a sham, depriving Residents of due process.” (Plaintiffs’ Opposition to Townships’ Letter Brief, pp. 6-7.) In sum, they appear to argue that
Page 16

Defendants violated due process and fundamental fairness in adopting the WRRP and in subsequently formulating “concept plans”; that the Revised WRRP is, in substance, equivalent to the offending “concept plans”; that in enacting the “concept plan” as the Revised WRRP, the Township merely made a show of complying with the Open Public Meetings Act and the Local Housing and Redevelopment Law; and that therefore, the passage of the Revised WRRP did not afford Plaintiffs due process and fundamental fairness, as guaranteed by the New Jersey Constitution.
Taking the facts in the light most favorable to the Plaintiffs, Count 9 is not moot. Accepting Plaintiffs’ allegations and inferences as true, there is a live controversy as to whether Plaintiffs have been afforded due process and fundamental fairness in the process of enacting a redevelopment plan. The New Jersey Supreme Court explained the requirements of due process in Doe v. Poritz, 662 A.2d 367 (N.J. 1995):
Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner. Kahn v. U.S., 753 F.2d 1208, 1218 (3d Cir. 1985). The minimum requirements of due process, therefore, are notice and the opportunity to be heard. U.S. v. Raffoul, 826 F.2d 218, 222 (3d Cir. 1987) (citing Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)). Id. at 420-21. If the public process utilized in passing the Revised WRRP was, in fact, “little more than a sham,” see Plaintiffs’ Opposition, p. 7, and if Plaintiffs therefore did not have the “opportunity to be heard at a meaningful time and in a
Page 17

meaningful manner,” then the passage of the Revised WRRP cannot have cured the lack of due process alleged in Count 9. Therefore, Count 9 is not moot.
Having decided the issue of lack of subject matter jurisdiction due to mootness, we now turn to Defendants’ argument that this Court lacks subject matter jurisdiction under the Rooker-Feldman doctrine.
C. Rooker-Feldman Defendants argue that this Court lacks subject matter jurisdiction under the Rooker-Feldman doctrine. However, RookerFeldman is inapplicable to the case at hand. Therefore, this Court has subject matter jurisdiction over all remaining claims (Counts 1 through 5 and Counts 9 through 12). The Supreme Court recently clarified the Rooker-Feldman doctrine in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Exxon Mobil made clear that a district court lacks subject matter jurisdiction under Rooker-Feldman only in “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Id. at 283. Thus, Rooker-Feldman only applies
Page 18

when a litigant is essentially seeking appellate review of a state-court judgment in the district courts.
In this case, Plaintiffs are not asking this court to exercise appellate review over the judgment rendered in the New Jersey state court litigation. Rather, Plaintiffs are bringing their now-ripe civil rights claims, dismissed three years ago as unripe, as well as claims regarding violations of proper procedures that have occurred since the 2005 state court litigation. Even if some issues raised in this litigation were already decided in the state court litigation, this does not implicate Rooker-Feldman. Rather, the handling of matters already litigated would be dictated by preclusion law, which is not a jurisdictional matter. Id. at 293. Thus, Rooker-Feldman does not apply to this case, and this Court has subject matter jurisdiction over the claims in Counts 1 through 5 and Counts 9 through 12 of the Amended Complaint.
Having ruled that this Court has subject matter jurisdiction over Counts 1 through 5 and 9 through 12, we shall now address Defendants’ arguments that this Court should abstain from exercising its jurisdiction under Burford.
II. Burford Abstention
Page 19

Defendants request that this Court abstain from hearing Plaintiffs’ claims. For the reasons explained below, this court will not abstain from exercising its jurisdiction.
“Abstention is a judicially created doctrine under which a federal court will decline to exercise its jurisdiction so that a state court or state agency will have the opportunity to decide the matters at issue. The doctrine was born out of a concern for the maintenance of our federal system; seeking to avoid unnecessary conflicts between the federal judiciary and state government.” Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743, 746 (3d Cir. 1982), citing Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 500-01, 61 S.Ct. 643, 645, 85 L.Ed 971 (1941).
Concededly, eminent domain and land use issues are traditionally local in nature. As the Third Circuit noted in Izzo v. Borough of River Edge, 843 F.2d 765, 769 (3d Cir. 1988), “[l]and use policy customarily has been considered a feature of local government and an area in which the tenets of federalism are particularly strong.” Id. at 769. However, “the mere existence of land use regulation will not automatically mandate federal court abstention.” Id.
This court may abstain only if, after carefully examining the facts of the case, it determines that the case falls into one of the narrow categories of cases from which a district court may
Page 20

properly abstain. Abstention is an “extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest.” County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1062-63, 3 L.Ed.2d. 1163 (1959). Defendants argue that abstention is justified in this case under the Supreme Court decision in Burford v. Sun Oil Co. However, an analysis under Burford demonstrates that abstention is not warranted in this case.
Burford abstention derives its name from the case of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). That case dealt with abstention in the context of Texas’ highly complex, state-wide regulatory system for gas and oil conservation. The complexity of the law and the importance of not having conflicting decisions led Texas to centralize adjudication of claims in the Texas Railroad Commission and a single state court. The Supreme Court held that in this situation, the federal district court should abstain from hearing claims normally adjudicated by the centralized court. “The state provides a unified method for the formation of policy and determination of cases by the Commission and by the state courts
Page 21

.... Conflicts in the interpretation of state law, dangerous to the success of state policies, are almost certain to result from the intervention of the lower federal courts.” Id. at 333-34. In upholding the district court’s decision to abstain, the Supreme Court recognized that incorrect decisions of difficult and industry-specific Texas law in individual cases could seriously disrupt state-wide regulation of an industry essential to Texas’ economy.
The Supreme Court further explained Burford abstention in the case of New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans (“NOPSI”), 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). The court described the analysis the district court must undertake thusly:
Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar”; or (2) where the “exercise of federal review of a question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Id. at 361 (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). Additionally, the Third Circuit has instructed us that the Burford inquiry must begin with an analysis of whether timely
Page 22

and adequate state court review is available. See Riley v. Simmons, 45 F.3d 764, 771 (3d Cir. 1995).
In the present case, it is clear that timely and adequate state court review is available. There is no bar preventing Plaintiffs from filing suit in the New Jersey state courts. Indeed, Plaintiffs brought their first suit on related matters in the New Jersey state court system. This court has no doubt that the New Jersey state courts would provide plaintiffs with adequate and timely review. Having made the threshold determination that adequate and timely state court review is available, this Court must determine whether abstention is warranted under either prong of the NOPSI analysis.
A district court must abstain under the first prong of NOPSI only if there are “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar.” In this case, the state law in question is not “difficult” in the sense that the law in Burford was difficult. The regulations at issue in Burford required expertise in the complex area of gas and drilling, and there was a significant probability that courts unfamiliar with the industry would err in rendering decisions. That is one of the reasons why Texas elected to have a single state court hear all such claims - so that the adjudicating court
Page 23

would have the expertise necessary to come to the correct conclusion.
In contrast, the state law at issue here is not so difficult as to require expertise to properly apply the law. Plaintiffs’ state law claims require interpretation of the New Jersey Constitution, New Jersey’s Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq., and New Jersey’s Open Public Meetings Act, N.J.S.A. 10:40-6 et seq. While New Jersey courts will of course have more experience applying these laws, such is always the case when a federal court hears state law claims. Interpretation of these laws is not so difficult to warrant abstention under Burford. Having concluded that Burford abstention is not warranted under the first prong of NOPSI, we now turn to the second prong.
The second prong of NOPSI requires a district court to abstain where the “exercise of federal review of a question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Defendants contend that this Court’s review would disrupt New Jersey’s policies with respect to eminent domain and land use. Although there is some support for their contention that this Court may abstain under NOPSI’s second prong, see, e.g., Rucci v. Cranberry Township, 130 Fed. Appx. 572 (3d Cir. 2005), those cases are distinguishable and in
Page 24

any event, do not mandate abstention even in similar circumstances.6 Under Burford, NOPSI, and controlling Third Circuit case law, this is not a case where Burford abstention is appropriate.
The Third Circuit addressed a situation similar to that at hand in Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743 (3d Cir. 1982). In that case, the plaintiff had challenged, among other things, Solebury Township’s denial of a building permit. The district court abstained on the basis of Burford, citing the “traditionally local nature of land use decisions and the danger of unwarranted federal interference with such traditionally local functions.” Heritage Farms, Inc. v. Solebury Township, 507 F. Supp. 33, 35-36 (E.D. Pa. 1980), rev’d, Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743 (3d Cir. 1982).
However, the Third Circuit disagreed with the district court’s decision to abstain under Burford. The Court held that because the Pennsylvania Municipalities Planning Code delegated local land use decisions to local planning commissions, there was “no uniform state policy for land use and development - policies necessarily differ[ed] from municipality to municipality.” Heritage Farms, Inc., 671 F.2d at 747. Indeed, the Court explained that through the plaintiff’s complaint, “[t]he policies
6 For example, in Rucci, the district court’s decision to abstain was based in part on the fact that no federal claims remained. Rucci, 130 Fed. Appx. at 577.
Page 25

embodied in the Municipalities Planning Code are not being attacked - it is rather the application of those policies by a single township that is at issue. In fact, if it is found that the defendants acted unlawfully, the state and local policies will be vindicated.” Id. at 748.
Likewise, no New Jersey state policy is being attacked here. Plaintiffs take issue with a single land use decision by a single township’s planning board. Through their lawsuit, Plaintiffs hope to uphold New Jersey’s state-wide policies, as embodied in the Local Redevelopment and Housing Law and the New Jersey Constitution. Federal review of this case will not “be disruptive of state efforts to establish a coherent policy” with respect to land use issues. Therefore, Burford abstention is inappropriate under the second prong of NOPSI.
Having decided not to abstain under Burford, this court must now address the issue of supplemental jurisdiction over the pendent state law claims.
III. Supplemental Jurisdiction Defendants have requested that this Court decline to
exercise supplemental jurisdiction over Plaintiffs’ pendent state law claims. In the interests of judicial economy, this Court will exercise supplemental jurisdiction over all justiciable pendent state law claims pursuant to 28 U.S.C. § 1367(a).
Page 26

CONCLUSION This Court has subject matter jurisdiction over Plaintiffs’ claims in Counts 1 through 5 and 9 through 12 of the Amended Complaint. These claims are ripe for adjudication, are not moot, and are not barred by the Rooker-Feldman doctrine. However, Counts 6 through 8 of the Amended Complaint are dismissed as moot. Counts 13 and 14 of the Amended Complaint are dismissed without prejudice because they are not ripe for adjudication. This Court will not abstain from exercising its jurisdiction over the justiciable claims. In the interests of judicial economy, this Court will exercise supplemental jurisdiction over all remaining pendent state law claims pursuant to 28 U.S.C. § 1367.

At Camden, New Jersey

/s/ Noel L. Hillman NOEL L. HILLMAN, U.S.D.J.

Page 27

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

MT HOLLY CITIZENS IN ACTION, :

INC., et al.,

:

:

Plaintiffs, :

:

v.

:

:

TOWNSHIP OF MOUNT HOLLY,

:

et al.,

:

:

Defendants. :

:

Civil Action No. 08-2584 (NLH)
OPINION

Appearances:

DOUGLAS E. GERSHUNY, EXEC. DIR. OLGA D. POMAR DAVID M. PODELL SOUTH JERSEY LEGAL SERVICES, INC. 745 MARKET STREET CAMDEN, NJ 08102 Attorneys for Plaintiffs

R. WILLIAM POTTER POTTER & DICKSON 194 NASSAU STREET PRINCETON, NJ 08542 Attorney for Plaintiffs

SUSAN ANN SILVERSTEIN AARP FOUNDATION LITIGATION 601 E STREET, NW WASHINGTON, DC 20049 Attorney for Plaintiffs

GAETANO MERCOGLIANO SWEENEY & SHEEHAN 216 HADDON AVENUE, SUITE 500 WESTMONT, NJ 08108 Attorney for Defendant Triad Associates, Inc.

M. JAMES MALEY MALEY & ASSOCIATES 931 HADDON AVENUE COLLINGSWOOD, NJ 08108 Attorney for Defendant Mount Holly Township, et al.

WILLIAM J. DESANTIS BALLARD SPAHR ANDREWS & INGERSOLL LLP PLAZA 1000 - SUITE 500 MAIN STREET VOORHEES, NJ 08043 Attorney for Defendant Keating Urban Partners, L.L.C. HILLMAN, District Judge
This matter comes before the Court on plaintiffs’ motion for preliminary injunctive relief. In so moving, plaintiffs rely solely on their claim that defendants violated the Fair Housing Act, Title VIII, as amended, 42 U.S.C. § 3604(a). For the reasons expressed below and at oral argument, plaintiffs’ motion will be denied.
BACKGROUND Since the filing of plaintiffs’ complaint, this case has involved several hearings, the filing of numerous motions and a second amended complaint, and the issuance of two Opinions. At issue is the redevelopment of the Mount Holly Gardens neighborhood (the “Gardens”) in Mount Holly, New Jersey. Plaintiffs are low-income, African-American, Hispanic and “white,” residents of the Gardens, who object to the plan because they are being forcibly removed from their homes, which are being replaced with new, much higher-priced market rate homes. Plaintiffs contend that the redevelopment plan is violative of several laws, but they are currently seeking a preliminary injunction to stop the redevelopment based on the defendants’
2

alleged violation of the Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act or FHA), 42 U.S.C. § 3601 et seq. They argue that the redevelopment plan has a disparate impact on the African-American and Hispanic residents, and they are facing irreparable harm from the threat of losing their homes and their community ties, being inadequately compensated for their properties, and being unable to obtain affordable and decent replacement housing.
Defendants counter that they did not violate the FHA because there is no intentional discrimination or disparate impact on the Garden residents, and even if there were, the defendants are proceeding pursuant to a bona fide governmental interest in the least restrictive way. Therefore, defendants argue that plaintiffs are not entitled to a preliminary injunction.1
DISCUSSION
In Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 377 (2008), the Supreme Court recently reiterated that a “preliminary injunction is an extraordinary remedy never awarded as of right,” and directed lower courts that “in each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding
1Defendants have also moved to dismiss plaintiffs’ FHA claim. Because the standard for reviewing a motion for preliminary injunction is different from a motion to dismiss pursuant to Rule 12(b)(6), the Court will not address defendants’ motion to dismiss at this time.
3

of the requested relief.” Winter, 129 S. Ct. at 377. It is based on these principles that this Court assesses plaintiffs’ request for an injunction to enjoin defendants from continuing with their redevelopment plan.
In order to obtain a preliminary injunction, a plaintiff must establish that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Id. With regard to the first two elements, the Supreme Court has instructed that “issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 375-76 (citation omitted). With regard to the second two elements, the Supreme Court has emphasized that in “exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Id. at 376-77.
In this case, plaintiffs have not demonstrated, at this stage in the proceedings, that they have pleaded a successful Fair Housing Act claim, they have not shown that they will suffer an irreparable injury, and they have not demonstrated that an
4

injunction is in the best interest of the public or that the equities tip in their favor.
A. Likelihood of Success on the Merits
Section 3604(a) of the Fair Housing Act makes it unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a) (emphasis added).
The FHA can be violated by either intentional discrimination or if a practice has a disparate impact on a protected class. Community Services, Inc. v. Wind Gap Mun. Authority, 421 F.3d 170, 176 (3d Cir. 2005). Plaintiffs here contend that the Gardens redevelopment plan has a disparate impact on the minorities living in the Gardens. In order to prove their claim, plaintiffs must first establish a prima facie case of disparate impact. Resident Advisory Board v. Rizzo, 564 F.2d 126, 148 (3d Cir. 1977). To show disparate impact, plaintiffs must show that the Township’s actions have had a greater adverse impact on the protected groups (here, African-Americans and Hispanics) than on others. Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Tp. of Scotch Plains, 284 F.3d 442, 466-67 (3d Cir. 2002). If a plaintiff establishes his prima facie case, the burden shifts to the defendant to demonstrate justification. The “justification
5

must serve, in theory and practice, a legitimate, bona fide interest of the Title VIII defendant, and the defendant must show that no other alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.” Rizzo, 564 F.2d at 149. Finally, “[i]f the defendant does introduce evidence that no such alternative course of action can be adopted, the burden will once again shift to the Plaintiff to demonstrate that other practices are available.” Id. at 149 n.37. “If the Title VIII prima facie case is not rebutted, a violation is proved.” Id. at 149.
Here, for the purposes of their motion for preliminary injunction, plaintiffs have not demonstrated that they will likely succeed with their FHA claim because they have not demonstrated that they can make their prima facie case. Plaintiffs argue that the redevelopment plan has a disparate impact on minorities in two ways. First, plaintiffs argue that the redevelopment more negatively affects minorities in Mt. Holly than non-minority residents because the redevelopment is driving out the minority population of Mt. Holly. To support their position, plaintiffs present a report of a demographic and statistical expert, Andrew A. Beveridge, Ph.D., who states that as of 2000, seventy-five percent of the people living in the Gardens were minority residents. Dr. Beveridge states that the Gardens contains a highly concentrated minority population, more
6

than any other area of Mt. Holly. Consequently, Dr. Beveridge opines that the redevelopment of the Gardens effectively and significantly reduces the minority population in Mt. Holly. Plaintiffs contend that this violates the FHA.
Second, plaintiffs argue that the redevelopment plan has a disparate impact on minorities because the plan is targeted at an area that is populated by mostly minorities. Plaintiffs live in the Gardens because for families with limited income, the Gardens represented an attractive affordable housing opportunity. Demolishing the Gardens and replacing the current housing with higher-priced homes, and only a few low-income units, effectively causes the targeted reduction of Mt. Holly’s minority population. This, too, plaintiffs argue is a violation of the FHA.
The statistical repercussions of redevelopment do not provide evidence that the Township implemented the plan to intentionally or effectively drive out the minority population of Mt. Holly. Indeed, even though plaintiffs have pointed out that the redevelopment of the Gardens has reduced the minority population of Mt. Holly, they have not accounted for how many minorities will move into the new housing. Furthermore, and more importantly for the plaintiffs’ FHA claim of disparate impact, the redevelopment plan does not apply differently to minorities than non-minorities. Several plaintiffs classify themselves as “white,” yet the plan affects them in the exact same way as their
7

minority neighbors. The real effect of the Gardens redevelopment is that there
will be less lower-income housing in Mt. Holly. Although the Township may have some obligation with regard to providing a certain number of low-income housing pursuant to other law, the reduction of low-income housing is not a violation of the FHA. The FHA prohibits the Township from making unavailable a dwelling to any person because of race--it does not speak to income. Redevelopment of blighted, low-income housing is not, without more, a violation of the FHA. Here, where fourteen homes are occupied by African-American plaintiffs, thirteen homes are occupied by Hispanic plaintiffs, and six homes are occupied by “white” plaintiffs, and all are affected in the same way by the redevelopment, the Court cannot find, on the current record at this preliminary injunction stage, that plaintiffs will succeed on their disparate impact FHA claim.
Even if plaintiffs were able to establish their prima facie case, they have not rebutted the Township’s legitimate interest in the redevelopment, and they have not shown how an alternative course of action would have a lesser impact. These points also speak to the three other elements plaintiffs must prove for a preliminary injunction--irreparable harm, public interest and equities--and these elements are discussed in depth below. For the purposes of establishing an FHA claim, however, it is
8

important to note that redevelopment of the community to remove blight conditions is a bona fide interest of the State. In 1958, the New Jersey Supreme Court commented, “Community redevelopment is a modern facet of municipal government. Soundly planned redevelopment can make the difference between continued stagnation and decline and a resurgence of healthy growth. It provides the means of removing the decadent effect of slums and blight on neighboring property values, of opening up new areas for residence and industry.” Wilson v. City of Long Branch, 142 A.2d 837, 842 (N.J. 1958). More specifically with regard to the Gardens redevelopment, the New Jersey Appellate Division found that “[t]he dilapidated, overcrowded, poorly designed community, in addition to the high level of crime in the area, is clearly detrimental to the safety, health, morals and welfare of the community.” Citizens In Action v. Township Of Mt. Holly, 2007 WL 1930457, 13 (N.J. Super. Ct. App. Div. July 5, 2007). It is clear that the Township has a legitimate interest in the redevelopment of the Gardens.
B. Irreparable Harm, Public Interest & Balance of Equities Plaintiffs have also failed, at this preliminary injunction stage, to demonstrate that they will suffer irreparable harm, or that it would be in the public’s best interest to halt the redevelopment of the Gardens. To date, the majority of the Gardens has been vacated, with these vacated homes either being
9

boarded up or demolished. Plaintiffs are still living in the Gardens, but they claim that the demolition and vacancies have created even more blight and unsafe living conditions. Both sides agree that the vacant homes have created fire hazards, crime, squatters, graffiti, roaches and mold. They request, however, that the Court enjoin the Township from acquiring the remaining occupied homes through eminent domain, forcibly evicting tenants and homeowners, and otherwise pressuring residents to move out.2 Plaintiff contend that this relief is necessary to maintain the status quo while their claims are being litigated against the Township.
Effectively, plaintiffs are seeking to remain living in the blighted and unsafe conditions until they are awarded money damages for their claims and sufficient compensation to secure housing in the local housing market. Although couched at times like an effort to have the development go up around them, like a highway built around a protected tree, or to have their units rehabilitated, this makes little if no practical sense after years of litigation, approved redevelopment plans, and the expenditure of significant public resources. At this late stage, the only real practical remedy is for plaintiffs to receive the fair value for their home as well as proper and non-
2Plaintiffs state that their request for an injunction does not seek to stall the first phase of redevelopment construction, which is the building of a 200-unit apartment building and 70 townhouses on a vacant 62-acre site.
10

discriminatory relocation procedures and benefits.3 On a motion for preliminary injunction, the Third Circuit
has emphasized that “the injury must be of a peculiar nature, so that compensation in money cannot atone for it.” Morton v. Beyer, 822 F.2d 364, 372 (3d Cir. 1987) (citation omitted). It could be argued that not being properly compensated so that plaintiffs are rendered homeless or forced to live in an undesirable location is a special type of injury for preliminary injunction purposes. Plaintiffs, however, have provided no evidence to demonstrate this will occur. Instead, plaintiffs rely on their statistician, who states that plaintiffs will not be able to afford to live in the newly constructed housing4 and that they most likely will not find comparably-priced housing within Mt. Holly, which is evidenced by the fact that only 19 of 62 families relocated by defendant Triad found housing within the Township. Plaintiffs do not provide any evidence the redevelopment will render them homeless--they only argue that the redevelopment will render them unable to remain in the Gardens
3 The relief they are seeking is inconsistent with proving the fourth element of their FHA claim--namely, that an alternative course of action to eminent domain and relocation is viable.
4Fifty-six low income housing units are planned for the new development. Defendants represent that under New Jersey law these low income homes cannot be promised specifically to the current Garden residents, but rather the homes must be disseminated pursuant to a lottery system.
11

area specifically, or in the Township generally.5
This claim of harm is speculative. We simply do not know at
this stage where the remaining Garden residents will find
alternative housing. We do know that there is substantial
evidence former residents have been successfully relocated both
within and outside the Township, that these efforts are ongoing,
that some current residents may yet find housing in the
redevelopment, and that these efforts are or will be funded, at
least in part, by the defendants. Failure to demonstrate that
the harm plaintiff is suffering will not be compensated through
money damages standing alone defeats plaintiff’s application.6
See Morton v. Beyer, 822 F.2d at 367 (“To obtain a preliminary
injunction, the moving party must demonstrate both a likelihood
of success on the merits and the probability of irreparable harm
5The evidence on the record shows that other Garden residents whose homes have been acquired by the Township and have been relocated are pleased with both their compensation and place of relocation. In fact, the evidence demonstrates that many residents now have significantly improved living conditions and are in better circumstances financially. Additionally, the defendants represent, and plaintiffs do not dispute, that none of the people who have been relocated and wanted to remain in Mt. Holly were unable to do so.
6 The Court recognizes the line of cases that suggests that the loss of one’s home, a unique and special piece of real estate having significant personal meaning, can be irreparable harm. That argument, however, proves too much. Taken to its logical extreme, such a rule would perforce preclude redevelopment projects whenever residential real estate is impacted. That is not the law. What the law requires is that parties from protected groups be fairly treated and adequately compensated for their loss.
12

if relief is not granted, [and] we cannot sustain a preliminary injunction ordered by the district court where either or both of these prerequisites are absent.”). Stated differently, even if plaintiffs had demonstrated a successful FHA claim for preliminary injunction purposes, of primary significance is that monetary compensation will redress their FHA claim, as well as all their other claims. Thus, even if plaintiffs leave their homes and end up in an undesirable location, if they are successful on any of their claims and are awarded their requested relief--money damages--they can use that compensation to obtain the housing they are entitled to by a judgment in their favor.
Similarly, for the purposes of a preliminary injunction, plaintiffs have not shown how their interests outweigh the public interest nor have demonstrated how the Township should proceed in a different manner. As mentioned above, both sides agree that before the redevelopment began, the Gardens was a blighted neighborhood in need of major improvement. Now that the redevelopment has been underway for several years, the conditions of the Gardens has become even more of a hazard--to the people still living there, to the workers, and to the community at large. Every level of the New Jersey state courts has agreed and permitted the redevelopment to proceed, despite plaintiffs’ continued challenges. Plaintiffs have not demonstrated any viable alternative to the continuance of the redevelopment plan,
13

and to halt the process at this point as plaintiffs request would
be to subject everyone to crime, disease and injury.
The Court recognizes that being forced from one’s home with
the fear of not being able to afford a comparable living
situation, all in the name of redevelopment and the creation of
houses one cannot afford, is a difficult prospect and an
emotional issue. It is compounded by the fact that redevelopment
directly affects low-income families who lack the resources for
self-help. This is evident in the report issued by the Public
Advocate, which uses the Gardens redevelopment as an example of
why New Jersey’s redevelopment laws should be reformed.7 This
7The Court notes that the certification of Marcia Holt, an employee of defendant Keating who has been responsible for the acquisition of property in the Gardens and for the management of Township owned property within the Gardens for the past two years, evidences that the defendants have gone to great lengths to assist Garden residents with their relocation, and all attendant issues that arise from relocation. The assistance provided to the Gardens residents includes clearing of property titles, credit counseling, rental assistance, assistance with school, legal, and educational issues, wellness checks for the elderly, transportation services, and general counseling. Ms. Holt has even purchased items--such as toilet paper, garbage bags, a child’s car seat--with her own money to assist residents. Ms. Holt has also detailed the stories of dozens of families she and others have helped in improving their living and financial conditions. Plaintiffs have not provided any evidence that any of these people have been dissatisfied with their relocation compensation and location.
As a corollary issue, defendants have moved to have Ms. Holt’s certification filed under seal. This issue was addressed at the hearing held on December 5, 2008. Because the certification contains sensitive personal information of nonparties to this action, plaintiffs do not contest the filing of Ms. Holt’s certification under seal, no party has intervened to contest the filing of this document under seal, and a redacted version has been filed on the public docket, the Court will grant
14

Court, however, cannot legislate from the bench, and it is required to follow the law as it currently exists. Plaintiffs’ request for preliminary injunction is based on their FHA claim. Because the Court finds that plaintiffs have not shown that they are likely to succeed on such a claim or suffer irreparable injuries, and because the public interest and balance of equities are in defendants’ favor, the Court is precluded from issuing an injunction.8

CONCLUSION

For the reasons expressed above, plaintiffs’ request for

preliminary injunction must be denied. An appropriate Order will

be entered.

Date: February 13, 2009

s/Noel L. Hilman

At Camden, New Jersey

NOEL L. HILLMAN, U.S.D.J.

defendants’ motion to seal. See Local Rule 5.3(c).
8Aside from their request for injunctive relief, all of plaintiffs’ claims, including their FHA claim, may proceed in due course. As noted above, however, plaintiffs’ claims are currently subject to pending motions to dismiss by defendants.
15

 
 Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 1 of 31 PageID: 3956

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

MT HOLLY CITIZENS IN ACTION, :

INC., et al.,

:

:

Plaintiffs, :

:

v.

:

:

TOWNSHIP OF MOUNT HOLLY,

:

et al.,

:

:

Defendants. :

:

Civil Action No. 08-2584 (NLH)(JS)
OPINION

Appearances:

DOUGLAS E. GERSHUNY, EXEC. DIR. OLGA D. POMAR DAVID M. PODELL SOUTH JERSEY LEGAL SERVICES, INC. 745 MARKET STREET CAMDEN, NJ 08102 Attorneys for Plaintiffs

R. WILLIAM POTTER POTTER & DICKSON 194 NASSAU STREET PRINCETON, NJ 08542 Attorney for Plaintiffs

SUSAN ANN SILVERSTEIN AARP FOUNDATION LITIGATION 601 E STREET, NW WASHINGTON, DC 20049 Attorney for Plaintiffs

GAETANO MERCOGLIANO SWEENEY & SHEEHAN 216 HADDON AVENUE, SUITE 500 WESTMONT, NJ 08108 Attorney for Defendant Triad Associates, Inc.

M. JAMES MALEY MALEY & ASSOCIATES 931 HADDON AVENUE COLLINGSWOOD, NJ 08108 Attorney for Defendant Mount Holly Township, et al.

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 2 of 31 PageID: 3957
WILLIAM J. DESANTIS BALLARD SPAHR ANDREWS & INGERSOLL LLP PLAZA 1000 - SUITE 500 MAIN STREET VOORHEES, NJ 08043 Attorney for Defendant Keating Urban Partners, L.L.C. HILLMAN, District Judge
This matter comes before the Court on defendants’ motions to dismiss all counts in plaintiffs’ complaint pursuant to Federal Civil Procedure Rule 12(b)(6). For the reasons expressed below, defendants’ motions will be granted in part, denied in part, and continued in part.
BACKGROUND This case involves the redevelopment of the Mount Holly Gardens neighborhood (the “Gardens”) in Mount Holly, New Jersey. Plaintiffs are low-income, African-American, Hispanic and “white,” residents of the Gardens, who object to the plan because they are being forcibly removed from their homes, which are being replaced with new, much higher-priced market rate homes. Plaintiffs claim that defendants--the Township of Mt. Holly, its manager and mayor, the construction company selected to undertake the redevelopment, Keating Urban Partners, LLC, and the company hired by Keating to conduct the relocation activities, Triad Associates, Inc.-- violated Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act or FHA), 42 U.S.C. § 3601 et seq. (Count One against all defendants); the Civil Rights Act of 1866,
2

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 3 of 31 PageID: 3958
42 U.S.C. § 1982 (Count Two against the Township); the Equal Protection Clause of the U.S. Constitution, brought pursuant to 42 U.S.C. § 1983 (Count Three against the Township); New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (Count Four against all defendants); Equal Protection Clause of the New Jersey State Constitution (Count Five against the Township); Due Process Clause of the New Jersey State Constitution (Count Six against the Township); Due Process Clause of the U.S. Constitution, brought pursuant to 42 U.S.C. § 1983 (Count Seven against the Township); New Jersey Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq. (Count Eight against the Township); and the General Welfare Clause of the New Jersey State Constitution (Count Nine against the Township).
Defendants have moved to dismiss all these claims against them. During the briefing of these motions, this case has involved several hearings, a denial of a TRO, the filing of a second amended complaint, and the issuance of three Opinions. Most recently, the Court denied plaintiffs’ request for a preliminary injunction to stop the redevelopment based on the defendants’ alleged violation of the FHA. (Docket No. 94.) The plaintiffs had argued that the redevelopment plan has a disparate impact on the African-American and Hispanic residents, and they are facing irreparable harm from the threat of losing their homes and their community ties, being inadequately compensated for
3

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 4 of 31 PageID: 3959
their properties, and being unable to obtain affordable and decent replacement housing. The defendants had countered that they did not violate the FHA because there is no intentional discrimination or disparate impact on the Garden residents, and even if there were, the defendants are proceeding pursuant to a bona fide governmental interest in the least restrictive way. The Court found that, for the purposes of denying a preliminary injunction, plaintiffs had not pleaded a successful Fair Housing Act claim. Specifically, the Court found that plaintiffs could not prove their prima facie case of disparate impact, and even if they were able to establish their prima facie case, they did not rebut the Township’s legitimate interest in the redevelopment, and they did not show how an alternative course of action would have a lesser impact.
The Court’s holding on the preliminary injunction motion presents a peculiar procedural posture in which to hear defendants’ motions to dismiss. Defendants filed their motions to dismiss prior to the preliminary injunction hearing, and even though plaintiffs’ opposition and defendants’ replies were filed a few days after, none of the briefing mentions the Court’s findings with regard to the preliminary injunction. This is understandable, because in deciding defendants’ motions to dismiss plaintiffs’ complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6),
4

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 5 of 31 PageID: 3960
the Court must accept all well-pleaded allegations in the complaint as true, view them in the light most favorable to the plaintiff, and must only consider the facts alleged in the pleadings, the documents attached thereto as exhibits, and matters of judicial notice. Southern Cross Overseas Agencies, Inc. v. Kwong Shipping Group Ltd., 181 F.3d 410, 426 (3d Cir. 1999). The Court, however, cannot ignore the parties’ briefing and representations at oral argument on the preliminary injunction motion, and the Court cannot ignore its findings and legal conclusions. Thus, the question is whether the Court’s Opinion and Order on the preliminary injunction motion can be considered a “matter of judicial notice,” and to what extent can the Court rely on that Opinion and Order in deciding the instant motions to dismiss.
The Third Circuit has held that although “a prior judicial opinion constitutes a public record of which a court may take judicial notice, it may do so on a motion to dismiss only to establish the existence of the opinion, not for the truth of the facts asserted in the opinion.” Lum v. Bank of America, 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citation omitted). “‘[A] court that examines a transcript of a prior proceeding to find facts converts a motion to dismiss into a motion for summary judgment.’” Id. (citing Southern Cross, 181 F.3d at 427 n.7 (explaining that “[i]t has been suggested that the appropriate
5

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 6 of 31 PageID: 3961
analogy is the hearsay rule, which allows an out-of-court statement to be admitted into evidence for purposes other than establishing the truth of the statement”)). Thus, to the extent that findings of fact were made in deciding the preliminary injunction, and the Court wishes to rely on those findings to decide the motions to dismiss, the motions to dismiss must be converted into one for summary judgment.
“When a District Court decides to convert a motion to dismiss into a motion for summary judgment, it must provide the parties ‘reasonable opportunity’ to present all material relevant to a summary judgment motion, and the parties can take advantage of this opportunity only if they have ‘notice of the conversion.’” In re Rockefeller Center Properties, Inc. Securitites Litigation, 184 F.3d 280, 287-88 (3d Cir. 1999) (citing Rose v. Bartle, 871 F.2d 331, 340 (3d Cir. 1989)). Notice must be “unambiguous and must fairly apprise the parties that the court intends to convert the motion.” Id. (citations and quotations omitted). Notice need not be express to meet these standards, but it is recommended that courts provide express notice when they intend to convert a motion to dismiss. Id.
Based on the foregoing, the Court will analyze each count in plaintiffs’ complaint to determine whether defendants’ motions can be decided as motions to dismiss, or whether they must be
6

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 7 of 31 PageID: 3962
converted. If they must be converted, the Court will provide the
parties with sufficient time to respond.
1. Count One - Fair Housing Act
The sole basis for plaintiffs’ motion for a preliminary
injunction was their Fair Housing Act claim. In the Opinion
denying plaintiffs’ motion, the Court explained the legal
standard for proving an FHA claim, and determined that it did not
appear that plaintiffs would be successful on that claim. The
Court explained as follows:
Section 3604(a) of the Fair Housing Act makes it unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a) (emphasis added). The FHA can be violated by either intentional discrimination or if a practice has a disparate impact on a protected class. Community Services, Inc. v. Wind Gap Mun. Authority, 421 F.3d 170, 176 (3d Cir. 2005). Plaintiffs here contend that the Gardens redevelopment plan has a disparate impact on the minorities living in the Gardens. In order to prove their claim, plaintiffs must first establish a prima facie case of disparate impact. Resident Advisory Board v. Rizzo, 564 F.2d 126, 148 (3d Cir. 1977). To show disparate impact, plaintiffs must show that the Township’s actions have had a greater adverse impact on the protected groups (here, African-Americans and Hispanics) than on others. Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Tp. of Scotch Plains, 284 F.3d 442, 466-67 (3d Cir. 2002). If a plaintiff establishes his prima facie case, the burden shifts to the defendant to demonstrate justification. The
7

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 8 of 31 PageID: 3963
“justification must serve, in theory and practice, a legitimate, bona fide interest of the Title VIII defendant, and the defendant must show that no other alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.” Rizzo, 564 F.2d at 149. Finally, “[i]f the defendant does introduce evidence that no such alternative course of action can be adopted, the burden will once again shift to the Plaintiff to demonstrate that other practices are available.” Id. at 149 n.37. “If the Title VIII prima facie case is not rebutted, a violation is proved.” Id. at 149.
Here, for the purposes of their motion for preliminary injunction, plaintiffs have not demonstrated that they will likely succeed with their FHA claim because they have not demonstrated that they can make their prima facie case. Plaintiffs argue that the redevelopment plan has a disparate impact on minorities in two ways. First, plaintiffs argue that the redevelopment more negatively affects minorities in Mt. Holly than non-minority residents because the redevelopment is driving out the minority population of Mt. Holly. To support their position, plaintiffs present a report of a demographic and statistical expert, Andrew A. Beveridge, Ph.D., who states that as of 2000, seventy-five percent of the people living in the Gardens were minority residents. Dr. Beveridge states that the Gardens contains a highly concentrated minority population, more than any other area of Mt. Holly. Consequently, Dr. Beveridge opines that the redevelopment of the Gardens effectively and significantly reduces the minority population in Mt. Holly. Plaintiffs contend that this violates the FHA.
Second, plaintiffs argue that the redevelopment plan has a disparate impact on minorities because the plan is targeted at an area that is populated by mostly minorities. Plaintiffs live in the Gardens because for
8

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 9 of 31 PageID: 3964
families with limited income, the Gardens represented an attractive affordable housing opportunity. Demolishing the Gardens and replacing the current housing with higherpriced homes, and only a few low-income units, effectively causes the targeted reduction of Mt. Holly’s minority population. This, too, plaintiffs argue is a violation of the FHA.
The statistical repercussions of redevelopment do not provide evidence that the Township implemented the plan to intentionally or effectively drive out the minority population of Mt. Holly. Indeed, even though plaintiffs have pointed out that the redevelopment of the Gardens has reduced the minority population of Mt. Holly, they have not accounted for how many minorities will move into the new housing. Furthermore, and more importantly for the plaintiffs’ FHA claim of disparate impact, the redevelopment plan does not apply differently to minorities than non-minorities. Several plaintiffs classify themselves as “white,” yet the plan affects them in the exact same way as their minority neighbors.
The real effect of the Gardens redevelopment is that there will be less lower-income housing in Mt. Holly. Although the Township may have some obligation with regard to providing a certain number of lowincome housing pursuant to other law, the reduction of low-income housing is not a violation of the FHA. The FHA prohibits the Township from making unavailable a dwelling to any person because of race--it does not speak to income. Redevelopment of blighted, low-income housing is not, without more, a violation of the FHA. Here, where fourteen homes are occupied by African-American plaintiffs, thirteen homes are occupied by Hispanic plaintiffs, and six homes are occupied by “white” plaintiffs, and all are affected in the same way by the redevelopment, the Court cannot find, on the current record at this preliminary injunction
9

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 10 of 31 PageID: 3965
stage, that plaintiffs will succeed on their disparate impact FHA claim.
Even if plaintiffs were able to establish their prima facie case, they have not rebutted the Township’s legitimate interest in the redevelopment, and they have not shown how an alternative course of action would have a lesser impact. These points also speak to the three other elements plaintiffs must prove for a preliminary injunction--irreparable harm, public interest and equities--and these elements are discussed in depth below. For the purposes of establishing an FHA claim, however, it is important to note that redevelopment of the community to remove blight conditions is a bona fide interest of the State. In 1958, the New Jersey Supreme Court commented, “Community redevelopment is a modern facet of municipal government. Soundly planned redevelopment can make the difference between continued stagnation and decline and a resurgence of healthy growth. It provides the means of removing the decadent effect of slums and blight on neighboring property values, of opening up new areas for residence and industry.” Wilson v. City of Long Branch, 142 A.2d 837, 842 (N.J. 1958). More specifically with regard to the Gardens redevelopment, the New Jersey Appellate Division found that “[t]he dilapidated, overcrowded, poorly designed community, in addition to the high level of crime in the area, is clearly detrimental to the safety, health, morals and welfare of the community.” Citizens In Action v. Township Of Mt. Holly, 2007 WL 1930457, 13 (N.J. Super. Ct. App. Div. July 5, 2007). It is clear that the Township has a legitimate interest in the redevelopment of the Gardens.
(Feb. 13 Op. at 5-9.)
Thus, based on the foregoing analysis of plaintiffs’ FHA
claim, it appears that when facts beyond those contained in the
10

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 11 of 31 PageID: 3966
complaint are considered, plaintiffs do not have a viable claim. In order, however, for the Court to consider its previous findings and the evidence presented at the preliminary injunction hearing, the Court must convert the present motions to dismiss into ones for summary judgment on plaintiffs’ FHA claim.
Upon conversion, defendants have the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Their burden has already been met based on the findings of law and fact from the preliminary injunction hearing, which may now be considered due to the conversion of the motion. As the facts existed at the time of the preliminary injunction hearing, there was insufficient evidence to prove that defendants violated the FHA.
Because defendants have met their burden, the burden shifts to plaintiffs. Id. In order to defeat summary judgment, plaintiffs now must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial on whether the redevelopment has a disparate impact on a protected group, and, if so, whether defendants have a legitimate interest in the redevelopment and have no alternative course of action that would have a lesser impact. Due to the conversion of the motions, plaintiffs must be given the opportunity to meet their burden to defeat summary judgment. Consequently, defendants’ motions to dismiss will be adjourned to provide notice to
11

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 12 of 31 PageID: 3967
plaintiffs and time to compile and present their evidence.1
2. Counts Two, Three, Five - Civil Rights Act and State and Federal Equal Protection Clause
Plaintiffs claim that the Township violated the Civil Rights Act of 1866, 42 U.S.C. § 1982, the Equal Protection Clause of the U.S. Constitution, brought pursuant to 42 U.S.C. § 1983, and the Equal Protection Clause of the New Jersey State Constitution. In order to prove such claims, plaintiffs must show that they were the target of intentional, purposeful discrimination by the Township. City of Cuyahoga Falls, Ohio v. Buckeye Community Hope Foundation, 538 U.S. 188, 194 (2003) (citation omitted) (“‘Proof of racially discriminatory intent or purpose is required’ to show a violation of the Equal Protection Clause.”); Bradley v. U.S., 299 F.3d 197, 205 (3d Cir. 2002) (stating that in order to establish a claim under the Equal Protection Clause, a plaintiff needs to prove that the actions (1) had a discriminatory effect and (2) were motivated by a discriminatory purpose); Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001) (citations and quotations omitted) (“In order to bring an action under § 1982, a plaintiff must allege with specificity facts sufficient
1Triad specifically argues, and Keating joins in that argument, that it cannot be held liable under the FHA because it had no part in the drafting and adoption of the Township’s redevelopment plan, and its actions with regard to the relocation activities do not fall within the province of the FHA-protected conduct. The Court will address these arguments, if necessary, following plaintiffs’ supplemental briefing.
12

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 13 of 31 PageID: 3968
to show or raise a plausible inference of (1) the defendant's racial animus; (2) intentional discrimination; and (3) that the defendant deprived plaintiff of his rights because of race.”); Greenberg v. Kimmelman, 494 A.2d 294, 308 (N.J. 1985) (stating that if a law is facially neutral, “an equal protection claim could succeed only if the statute had an invidious purpose”).
Even though plaintiffs have pleaded that through the redevelopment plan the Township is intentionally seeking to deprive plaintiffs and other African-Americans and Hispanics of the right to property and equal protection under the law, in the Opinion denying plaintiffs’ request for preliminary injunction, the Court found that plaintiffs did not demonstrate that the Township “implemented the development plan to intentionally or effectively drive out the minority population of Mt. Holly.” (Op. at 7.) Thus, as with their FHA claim, this claim must be converted to one for summary judgment, and plaintiffs must be afforded the opportunity to provide other proof to support their claims of intentional discrimination.
3. Count Four - New Jersey Law Against Discrimination Plaintiffs claim that all defendants violated the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-12.5 and 10:54. N.J.S.A. 10:5-12.5 provides, It shall be an unlawful discrimination for a municipality, county or other local civil or political subdivision of the State of New Jersey, or an officer, employee, or agent thereof, to exercise the power to
13

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 14 of 31 PageID: 3969
regulate land use or housing in a manner that discriminates on the basis of race, creed, color, national origin, ancestry, marital status, familial status, sex, gender identity or expression, nationality or disability. Plaintiffs claim that defendants are violating this provision of the NJLAD because the redevelopment plan is causing “the disproportionate displacement and forced removal of AfricanAmerican and Hispanic households, that have reduced and will continue to reduce the overall number of African-American and Hispanic households living in Mt. Holly Township, and that discriminate against Africa-American and Hispanic households living in the Gardens neighborhood in the provision of services or facilities in connection with housing, that will create barriers for African-American households to remain in and move into Mt. Holly Township, and that thus have a discriminatory impact upon the basis of race, color and national origin to perpetuate segregation within Mt. Holly Township . . . .” (Second Am. Compl. ¶ 218.) Plaintiffs also allege that defendants have violated this provision of the NJLAD by intentionally discriminating against plaintiffs in the Gardens neighborhood. (Id. ¶ 219.) In addition, plaintiffs allege that defendants have “otherwise” discriminated against them in violation of N.J.S.A. 10:5-4 (id. ¶ 220), which provides, All persons shall have the opportunity to obtain employment, and to obtain all the accommodations,
14

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 15 of 31 PageID: 3970
advantages, facilities, and privileges of any place of public accommodation, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, disability, nationality, sex , gender identity or expression or source of lawful income used for rental or mortgage payments, subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right. Defendants have moved to dismiss these claims on several bases. First, the Township argues that plaintiffs’ claims brought pursuant to N.J.S.A. 10:5-12.5 must be brought in New Jersey state court, and therefore must be dismissed. Second, the Township argues that plaintiffs’ claims pursuant to N.J.S.A. 10:5-4 must be dismissed because that provision does not provide a cause of action, but is rather a general statement about the sweep of the NJLAD. Finally, all defendants argue that even if plaintiffs’ claims pursuant to either section of the NJLAD could be maintained here, plaintiffs have failed to plead facts to support such claims. With regard to the Township’s first argument, the court in Kessler Institute for Rehabilitation, Inc. v. Mayor and Council of Borough of Essex Fells, 876 F. Supp. 641, 664-65 (D.N.J. 1995), found that claims brought pursuant to N.J.S.A. 10:5-12.5 are required to be brought in New Jersey state court. The court explained that even though the general enforcement provision, N.J.S.A. 10:5-13, contains permissive language (“may” initiate
15

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 16 of 31 PageID: 3971
suit in Superior Court), N.J.S.A. 10:5-12.5, which governs discrimination in land use policy by a municipality, states that an action “shall” be brought in Superior Court. Kessler, 876 F. Supp. at 664; see N.J.S.A. 10:5-12.5(b) (“Notwithstanding . . . section 10:5-13, any person claiming to be aggrieved by unlawful discrimination under this section shall enforce this section by a private right of action in Superior Court.”). Thus, the Kessler court dismissed the plaintiffs’ claims brought pursuant to N.J.S.A. 10:5-12.5 because they belonged in state, rather than federal, court.
Plaintiffs argue that the Kessler court’s decision should not be followed. They argue that because the other provisions of the NJLAD may be enforced through filing a complaint with the Division of Civil Rights or the filing of a complaint in the state or federal courts, see N.J.S.A. 10:5-13, N.J.S.A. 10:5-12.5(b) should be interpreted to only disallow the filing of a claim pursuant to that section in the Division of Civil Rights, but allow the claim to be brought in court--either federal or state. Plaintiffs, however, provide no basis for this interpretation, other than their general proposition that their interpretation is more consistent with “established precedent and legislative intent.” (Pl. Opp. at 29.)
Plaintiffs are correct that the general enforcement provision provides two remedies: (1) “Any person claiming to be
16

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 17 of 31 PageID: 3972
aggrieved by . . . unlawful discrimination may, personally or by
an attorney-at-law, make, sign and file with the division a
verified complaint. . . .”; or (2) “Any complainant may initiate
suit in Superior Court under this act without first filing a
complaint with the division or any municipal office.” N.J.S.A.
10:5-13. Further, despite the NJLAD’s direction that a party
“may initiate suit in Superior Court under this act,” NJLAD
claims can, and have been, properly advanced in federal court
pursuant to 28 U.S.C. § 1332 and/or 28 U.S.C. § 1367. This Court
agrees with the Kessler court, however, which rejected
plaintiffs’ same argument. The Kessler court explained,
Plaintiffs argue that this language in § 10:5-12.5 means that the alternative remedy of filing a complaint with the New Jersey Division of Civil Rights provided in § 10:5-13 is not available for claims involving alleged discrimination in land use by a municipality. Plaintiffs disagree, however, that § 10:5-12.5 requires adjudication in New Jersey Superior Court.
This Court concludes that the New Jersey Superior Court has exclusive jurisdiction over Plaintiffs' NJLAD claims. Given the strong state interests involved in land use regulation, . . . it is entirely plausible that the New Jersey Legislature intended to avoid federal court interference in this area. As a result, this Court sees no reason not to accord § 10:12.5 its plain meaning. This federal district Court lacks jurisdiction over claims of discrimination in land use policy by a municipality arising under N.J.S.A. 10:5-12.5.
Kessler, 876 F. Supp. at 664. No court has disagreed with this
interpretation, and the New Jersey Legislature has not amended
the NJLAD to comport with plaintiffs’ proffered interpretation.
17

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 18 of 31 PageID: 3973
Here, as in Kessler, the redevelopment of a blighted neighborhood, and discrimination claims with regard to that redevelopment, were carved out of the NJLAD’s general enforcement provision in N.J.S.A. 10:5-13, and the New Jersey Legislature mandated that such claims be brought in the Superior Court. This Court finds no compelling argument to deviate from that directive. Accordingly, plaintiffs’ NJLAD claims pursuant to N.J.S.A. 10:5-12.5 must be dismissed.
Next, the Court also agrees with the Township’s argument that plaintiffs’ claims pursuant to N.J.S.A. 10:5-4 must be dismissed because that provision does not provide a cause of action. In Bumbaca v. Township of Edison, 861 A.2d 156, 160 (N.J. Super. Ct. App. Div. 2004), the New Jersey Appellate Division considered whether the NJLAD prohibits nepotism because the statute references the term “familial status.” In determining that the NJLAD does not prohibit the practice of nepotism, the court noted that even though the NJLAD “is remedial legislation which must be liberally construed,” that “liberality of interpretation does not require turning a blind eye to the plain meaning of the statute, which is always our starting point.” Bumbaca, 861 A.2d at 160 (citations omitted). The court then referenced N.J.S.A. 10:5-3, which “sets forth the purposes of the LAD,” and N.J.S.A. 10:5-4, which “sets out the general sweep of the entire statutory scheme.” Id. at 161. Finally, the
18

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 19 of 31 PageID: 3974
court referenced N.J.S.A. 10:5-12, which “sets out at length the specifics of those practices deemed to constitute” discrimination. Id.
Even though the Bumbaca court did not specifically address whether a plaintiff can assert a cause of action pursuant to N.J.S.A. 10:5-4, its analysis supports the notion that the provision is a “general sweep” rather than the delineation of the specific practices violative of the statute. Further, as noted by the Bumbaca court, the plain language of the statute is controlling, and N.J.S.A. 10:5-4 is titled, “Obtaining employment, accommodations and accommodation privileges without discrimination; declaration of civil right.” Accordingly, this Court finds that N.J.S.A. 10:5-4 is simply the “declaration” of a person’s rights under the NJLAD, and it is not, like N.J.S.A. 10:5-12, a provision which creates a cause of action.
Consequently, because plaintiffs’ N.J.S.A. 10:5-12 claim must be advanced in state court and plaintiffs’ N.J.S.A. 10:5-4 claim is invalid, plaintiffs’ NJLAD claims must be dismissed.
4. Counts Six and Seven - Due Process Clause of the New Jersey and Federal Constitutions
Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner. Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (N.J. 1995) (citing Kahn v. U.S., 753 F.2d 1208, 1218 (3d Cir. 1985)). The minimum
19

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 20 of 31 PageID: 3975
requirements of due process are notice and the opportunity to be heard. Id. (citing U .S. v. Raffoul, 826 F.2d 218, 222 (3d Cir. 1987) (citing Goss v. Lopez, 419 U.S. 565 (1975))). Plaintiffs claim that the Township violated their due process rights by failing to give individual notice to all owners of properties to be acquired under its redevelopment plan and otherwise provide meaningful notice to residents with regard to the effects of the redevelopment activity upon their property rights. (Second Am. Compl. ¶ 226.) Plaintiffs also allege that the Township made revisions to the redevelopment plan without first holding public meetings or conducting a formal process, as required by N.J.S.A. 10:4-13 and N.J.S.A. 40A:12A-7, and even though the Township eventually held open meetings with regard to the revisions, it had already decided to implement them, which rendered the public process a sham. (Id. ¶ 230.) Plaintiffs claim that the Township’s failure to conduct an open process violated their due process rights and fundamental fairness. (Id. ¶ 232.)
The problem with plaintiffs’ due process claims is that they do not sufficiently delineate the Township’s alleged violative conduct. According to plaintiffs’ second amended complaint, the Township formally adopted the original redevelopment plan in March 2005, another “concept plan” was approved in September 2007, and the plan was revised in September 2008. More specifically, on September 22, 2008, the Township adopted the
20

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 21 of 31 PageID: 3976
Revised West Rancocas Redevelopment Plan, which invalidated the
original redevelopment plan. It is unclear, however, which part
of the redevelopment process allegedly violated plaintiffs’ due
process rights. Plaintiffs’ complaint generally alleges that all
aspects of the process did not adequately afford plaintiffs the
right to be heard, and that the revised redevelopment plan was
adopted “without meaningful consideration of the residents’
objections.” (Second Amended Compl. ¶¶ 185-86.)
To the extent that plaintiffs are challenging the original
redevelopment plan, even taking as true plaintiffs’ due process
concerns, because that plan was invalidated, there is no
justiciable controversy--indeed, the invalidation of the plan is
one remedy for such a violation. Thus, any due process claims
based on the adoption of the original plan must be dismissed. To
the extent that plaintiffs are challenging the process of the
adoption of the revised plan, plaintiffs are directed to amend
their claims to more precisely plead the basis for the alleged due process violations with regard to the revised plan.2
2Defendants also argue that because the adoption of the revised plan was a legislative act, there is no cognizable due process right, see Rogin v. Bensalem Tp., 616 F.2d 680 (3d Cir. 1980), cert. denied, 450 U.S. 1029 (1981), and further that even if such a right exists the uniquely New Jersey judicial remedy of an action in lieu of prerogative writ provides all the process that is due. Cf., John E. Long, Inc. v. The Borough of Ringwood, 61 F. Supp. 2d 273, 279 (D.N.J. 1998)(state satisfies due process by establishing means to challenge governmental action). In light of our decision to allow plaintiffs to re-plead these counts, that issue is no longer ripe. However, plaintiffs are reminded that any re-pleading of this due process claim must
21

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 22 of 31 PageID: 3977
See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007) (stating that Third Circuit precedent “supports the notion that in civil rights cases district courts must offer amendment--irrespective of whether it is requested--when dismissing a case for failure to state a claim unless doing so would be inequitable or futile”); Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1969 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)) (“A district court, in weighing a motion to dismiss, asks ‘not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.’”).
5. Counts Eight - Violation of the New Jersey Local Redevelopment and Housing Law
Plaintiffs claim that the Township violated the New Jersey Local Redevelopment and Housing Law (NJLRHL), N.J.S.A. 40A:12A-1 et seq., by arbitrarily, capriciously, and unreasonably adopting the revised redevelopment plan.3 Specifically, plaintiffs allege: (1) the plan was revised without opportunity for meaningful community input and without consideration by the
accord with Fed.R.Civ.P. 11 and should not claim a due process violation where federal law does not recognize such a claim either because the challenged action is a legislative act or the state had provided all the process that is due.
3The Court notes that following a bench trial on plaintiffs’ challenge to the original redevelopment plan, on May 5, 2005, the New Jersey Superior Court found in favor of the Township and declared that the plan complied with the requirements of the NJLRHL. (Second Amended Compl. ¶ 119.)
22

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 23 of 31 PageID: 3978
planning board and “Council of the Residents’ comments”; (2) the plan does not further its own objectives; (3) the plan is substantially inconsistent with the Township’s Master Plan; (4) the plan is inconsistent with the State housing plan and fails to address the inconsistency mandated by N.J.S.A. 40A:12A-7; (5) the plan does not address whether it is consistent with the County master plan, as mandated by N.J.S.A. 40A:12A-7; (6) the plan is inconsistent with the purposes of the NJLRHL, as it “fails to promote the advancement of community interests and physical development which will be most conducive to social and economic improvement.” (Second Amended Compl. ¶ 238.)
As a primary matter, it is important to recognize that “the adoption of a redevelopment plan is essentially a legislative function of a municipal government, akin to the adoption of a master plan or a zoning ordinance.” Milford Mill 128, LLC v. Borough of Milford, 946 A.2d 75, 82-83 (N.J. Super. Ct. App. Div. 2008). It is also important to recognize that instead of courts, “municipal bodies are composed of local citizens who are far more familiar with the municipality's characteristics and interests and therefore uniquely equipped to resolve such controversies.” First Montclair Partner, L.P. v. Herod Redevelopment I, L.L.C., 885 A.2d 952, 955 (N.J. Super. Ct. App. Div. 2005) (citations omitted). “Consequently, courts will not upset such decisions unless they are arbitrary, unreasonable or capricious.” Id.
23

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 24 of 31 PageID: 3979
Here, plaintiffs fail to state a valid claim under the NJLRHL. First, plaintiffs’ claim that the plan is substantially inconsistent with the Township’s Master Plan, the State’s housing plan, and the County’s master plan, is unsupportable. The NJLRHL provides, “All provisions of the redevelopment plan shall be either substantially consistent with the municipal master plan or designed to effectuate the master plan,” but it further provides that “the municipal governing body may adopt a redevelopment plan which is inconsistent with or not designed to effectuate the master plan by affirmative vote of a majority of its full authorized membership.” N.J.S.A. 40A:12A-7(d). Thus, even taking as true plaintiffs’ claim that the revised redevelopment plan was inconsistent with other plans, the NJLRHL allows for such inconsistencies.
Second, with regard to plaintiffs’ claim that the revised redevelopment plan does not address those inconsistencies, plaintiffs are correct that the NJLRHL requires that the “reasons for so acting” are “set forth in the redevelopment plan.” N.J.S.A. 40A:12A-7(d). However, plaintiffs’ conclusory allegations of the existence of any inconsistencies, and the accordingly absent explanation of those inconsistencies, are insufficient to state a viable claim. Stating a viable claim “requires a complaint with enough factual matter (taken as true) to suggest the required element,” Phillips v. County of
24

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 25 of 31 PageID: 3980
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (citing Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1969 n.8 (2007)); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), and “bald assertions” or “legal conclusions” are inadequate, In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997). Plaintiffs do not allege any facts describing how the revised redevelopment plan differs from the County’s master plan and the State’s housing plan.4 Without these facts, it cannot be determined whether those inconsistencies were not contained in the revised redevelopment plan. The failure of plaintiffs to include these basic factual allegations is fatal to their claims.
With regard to plaintiffs’ claims that the public was not afforded meaningful input, this is simply a restatement of their due process claim, and plaintiffs do not point to a provision in the NJLRHL that requires such public input. With regard to plaintiffs’ claims that the revised plan does not further its own objectives, and is otherwise inconsistent with the NJLRHL,5 these
4Plaintiffs’ complaint states that the revised redevelopment plan “acknowledges that it is inconsistent with the Township Master Plan because it does not reduce density and because it calls for total demolition rather than rehabilitation of existing homes, but concludes that this inconsistency is warranted based on economic conditions and redeveloper preference. The Plan states that it there would be no adverse impacts to neighboring Westhampton Township land uses and that the Plan is consistent with the State Development and Redevelopment Plan.” (Second Amended Compl. ¶ 183(f).)
5N.J.S.A. 40A:12A-2 states: The Legislature hereby finds, determines and declares:
25

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 26 of 31 PageID: 3981
are also conclusory claims and provide no basis for the court to
upset the decision of the municipality and determine that the
Township’s actions were arbitrary, capricious and unreasonable.
Consequently, plaintiffs’ NJLRHL claims must be dismissed.
6. Count Nine - Violation the General Welfare Clause of the New Jersey Constitution
Plaintiffs claim that the Township’s use of its municipal
powers to redevelop existing low income residential neighborhoods
violates the General Welfare Clause of the New Jersey
Constitution. Plaintiffs’ claim is based on the Mt. Laurel
doctrine, which prohibits municipalities from using their zoning
a. There exist, have existed and persist in various communities of this State conditions of deterioration in housing, commercial and industrial installations, public services and facilities and other physical components and supports of community life, and improper, or lack of proper, development which result from forces which are amenable to correction and amelioration by concerted effort of responsible public bodies, and without this public effort are not likely to be corrected or ameliorated by private effort.
b. From time to time the Legislature has, by various enactments, empowered and assisted local governments in their efforts to arrest and reverse these conditions and to promote the advancement of community interests through programs of redevelopment, rehabilitation and incentives to the expansion and improvement of commercial, industrial, residential and civic facilities.
c. As a result of those efforts, there has grown a varied and complex body of laws, all directed by diverse means to the principal goal of promoting the physical development that will be most conducive to the social and economic improvement of the State and its several municipalities.
d. It is the intent of this act to codify, simplify and concentrate prior enactments relative to local redevelopment and housing, to the end that the legal mechanisms for such improvement may be more efficiently employed.
26

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 27 of 31 PageID: 3982
laws to exclude lower income households and obligates them to affirmatively provide a realistic opportunity for construction of its fair share of law and moderate income housing. See Southern Burlington County NAACP v. Mount Laurel, 336 A.2d 713 (N.J. 1975); Southern Burlington County NAACP v. Mount Laurel, 456 A.2d 390 (N.J. 1983). The Mt. Laurel doctrine, however, has never been applied to municipal redevelopment powers. The Township argues, and plaintiffs agree, that because this claim is one of first impression under New Jersey state law, this Court should decline subject matter jurisdiction over this state law claim pursuant to 28 U.S.C. § 1367(c)(1), and dismiss this claim without prejudice. The Court agrees with this approach. See Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 487 (3d Cir. 1998) (citing 28 U.S.C. § 1367(c)(1); Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)) (stating that supplemental jurisdiction is exercised as a matter of discretion, and a court may decline to exercise supplemental jurisdiction over a state law claim where “the claim raises a novel or complex issue of state law”). This is especially true when a claim turns on a interpretation of a state constitution. Kadetsky v. Egg Harbor Tp. Bd. Of Ed., 164 F. Supp. 2d 425, 436 (D.N.J. 2001). Here the need for deference is even more pronounced. The Mt. Laurel doctrine, its judicial reiteration, the legislative response, the continuing
27

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 28 of 31 PageID: 3983
implementation of an administrative process, and the intensely local impact of this evolving right, present a complex web best left to the expertise and sound judgment of the New Jersey courts.6
7. Punitive Damage claims
Plaintiffs are seeking punitive damages for all of their claims. The Township has moved to dismiss plaintiffs’ request for punitive damages, arguing that under various legal principles, punitive damages cannot be imposed against municipalities.
To the extent that plaintiffs’ NJLAD, NJLRHL, and General Welfare Clause claims will be dismissed (Counts Four, Eight, and Nine), the Township’s argument with regard to those claims is moot. With regard to plaintiffs’ claims brought pursuant to 42 U.S.C. § 1983 (Counts Three and Seven - Equal Protection Clause and Due Process Clause), punitive damages are unavailable against the Township. It is well-established that municipalities, and more broadly, state and local governments entities, are immune from punitive damages under § 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981); Doe v. County of
6In light of this disposition, the Court need not address whether this count fails to state of claim because defendants have followed the regulatory scheme established by the New Jersey Fair Housing Act and the Council on Affordable Housing. Indeed, in light of our decision to decline the exercise of supplemental jurisdiction, it would be inconsistent for us to do so.
28

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 29 of 31 PageID: 3984
Centre, PA, 242 F.3d 437, 455 (3d Cir. 2001). With regard to plaintiffs’ state constitutional claims (Counts Five and Six), the New Jersey Tort Claim Act bars the imposition of punitive damages against the municipality. N.J.S.A. 59:9-2(c); Herrera v. City of New Brunswick, 2008 WL 305275, *17 (D.N.J. 2008). With regard to plaintiffs’ FHA and Civil Rights Act claims (Counts One and Two), the Court will reserve decision on this issue pending consideration of the converted motions.
8. Claims against the individual defendants For the claims plaintiffs have asserted against the Township, plaintiffs have also asserted them against Kathleen Hoffman, in her official capacity as township manager, and Jules Thiessen, in his official capacity as mayor. Defendants have moved to dismiss these claims against them because none of the allegations in the complaint refer to actions taken by Hoffman or Thiessen specifically, but rather to the Township, Council, or the Planning Board. Defendants also argue that they have immunity from plaintiffs’ claims because if any allegations in the complaint can be construed as against them, they were acting in their legislative or discretionary capacities, which entitles them to absolute immunity. In opposition to defendants’ motion, plaintiffs argue that they need the benefit of discovery in order to lodge specific allegations against Hoffman and Thiessen. Until discovery is
29

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 30 of 31 PageID: 3985
complete and the full extent of their conduct is known, plaintiffs argue that the legal issue of whether Hoffman or Thiessen are entitled to immunity cannot be decided. Plaintiffs further note, however, that they “do not seek to hold Hoffman and Thiessen personally liable for money damages, but merely ask for the same injunctive relief against Hoffman and Thiessen as they seek against the Township.” (Pl. Opp. at 39 n.16.)
Under the pleading standard clarified in Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1969 n.8 (2007) and reaffirmed in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), a plaintiff cannot use the discovery process to find, in the first instance, facts to support general claims advanced against a defendant. Rather, a plaintiff must allege enough “factual matter (taken as true) to suggest” that a defendant may be liable for the alleged violation. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). Here, plaintiffs admit that they are not currently aware of facts to more-specifically plead their claims against Hoffman and Thiessen. Indeed, they argue that defendants’ immunity challenge cannot be resolved because of the absence of such facts. Consequently, plaintiffs’ claims against Hoffman and Thiessen will be dismissed without prejudice to plaintiffs’ right to reassert their claims against them when, and if, they have gathered sufficient facts to state a viable claim.7
7In light of this disposition, the Court need not address the individual defendants’ alternative argument that they are
30

Case 1:08-cv-02584-NLH-JS Document 102 Filed 10/23/09 Page 31 of 31 PageID: 3986

CONCLUSION
For the reasons expressed above, defendants’ motions to dismiss will be granted in part, denied in part, and continued in part. Counts Four, Eight, and Nine are dismissed as to all defendants. Counts Six and Seven are dismissed without prejudice to plaintiffs’ right to amend their complaint within 30 days to more-specifically plead those claims. Counts One, Two, Three, and Five are converted into motions for summary judgment; plaintiffs shall have 30 days to oppose defendants’ converted motions on these counts. All counts are dismissed without prejudice as to defendants Hoffman and Thiessen. An appropriate Order will be entered.

Date: October 23, 2009 At Camden, New Jersey

s/ Noel L. Hillman NOEL L. HILLMAN, U.S.D.J.

immune from suit. 31

 
 Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 1 of 33
CLOSED,RULE16,SCHEDO
U.S. District Court District of New Jersey [LIVE] (Camden) CIVIL DOCKET FOR CASE #: 1:08−cv−02584−NLH−JS

MT HOLLY GARDENS CITIZENS IN ACTION, INC. et al v. TOWNSHIP OF MOUNT HOLLY et al Assigned to: Judge Noel L. Hillman Referred to: Magistrate Judge Joel Schneider Cause: 42:405 Fair Housing Act
Plaintiff

Date Filed: 05/27/2008 Date Terminated: 11/15/2013 Jury Demand: Both Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: Federal Question

MT HOLLY GARDENS CITIZENS IN ACTION, INC. a New Jersey non−profit corporation

represented by M. JAMES MALEY , JR. MALEY &ASSOCIATES 931 HADDON AVENUE SUITE 210 COLLINGSWOOD, NJ 08108−2111 856−854−1515 Email: jmaley@maleyassociates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

OLGA D. POMAR SOUTH JERSEY LEGAL SERVICES, INC. 745 MARKET STREET CAMDEN, NJ 08102 (856) 964−2010 X.6232 Email: opomar@lsnj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL SOUTH JERSEY LEGAL SERVICES, INC. 745 MARKET STREET CAMDEN, NJ 08102 (856) 964−2010 Ext. 6274 Email: dpodell@lsnj.org ATTORNEY TO BE NOTICED

Plaintiff PEDRO AROCHO

represented by OLGA D. POMAR SOUTH JERSEY LEGAL SERVICES, INC. 745 MARKET STREET CAMDEN, NJ 08102 (856) 964−2010 X.232 Email: opomar@lsnj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff REYNALDO AROCHO

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 2 of 33

Plaintiff ANA AROCHO
Plaintiff LYRA BAEDRESINGH Plaintiff CHRISTINE BARNES
Plaintiff BERNICE CAGLE
Plaintiff LEON CALHOUN Plaintiff GEORGE CHAMBERS
Plaintiff DOROTHY CHAMBERS

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 3 of 33

ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff SANTOS CRUZ

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ELIDA ECHEVARIA

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff NORMAN HARRIS

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff MATTIE HOWELL

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff NANCY LOPEZ

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff VINCENT MUNOZ

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 4 of 33

Plaintiff ELMIRA NIXON
Plaintiff LEONARDO PAGAN
Plaintiff ROSEMARY ROBERTS
Plaintiff WILLIAM ROBERTS
Plaintiff LISSETTE RODRIGUEZ
Plaintiff EFRAIM ROMERO
Plaintiff HENRY SIMONS TERMINATED: 08/26/2013
Plaintiff JOYCE STARLING

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 5 of 33

Plaintiff TAISHA TIRADO
Plaintiff RADAMES TORRES−MORENO Plaintiff LILLIAN TORRES−MORENO Plaintiff DAGMAR VICENTE
Plaintiff CHARLIE MAE WILSON
Plaintiff LEONA WRIGHT
Plaintiff Maria Arocho

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 6 of 33

ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Vivian Brooks

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Angelo Nieves

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Dolores Nixon

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Robert Tigar

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff James Potter

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Phyllis Singleton

represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 7 of 33

Plaintiff Flavio Tobar
Plaintiff Marlene Tobar
Plaintiff Radames Burgos
Plaintiff Sheila Warthen
Plaintiff Alandia Warthen

DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED
represented by OLGA D. POMAR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID M. PODELL (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
TOWNSHIP OF MOUNT HOLLY a municipal corporation of the State of New Jersey

represented by LOUIS CAPPELLI , JR. FLORIO PERRUCCI STEINHARDT &FADER, LLC

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 8 of 33

1010 KINGS HIGHWAY SOUTH, BUILDING 2 CHERRY HILL, NJ 08034 856−853−5530 Fax: 856−354−8318 Email: lcappelli@florioperrucci.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

M. JAMES MALEY , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

PADRAIG P. FLANAGAN Florio Perrucci Steinhardt &Fader, LLC 235 Frost Avenue Phillipsburg, NJ 08865 908−454−8300 Fax: 908−454−8623 Email: pflanagan@fpsflawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY as governing body of the Township of Mount Holly

represented by LOUIS CAPPELLI , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

M. JAMES MALEY , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

PADRAIG P. FLANAGAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
KATHLEEN HOFFMAN as Township Manager of the Township of Mount Holly

represented by LOUIS CAPPELLI , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

M. JAMES MALEY , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

PADRAIG P. FLANAGAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
BROOKE TIDSWELL III as Mayor of the Township of Mount Holly

represented by LOUIS CAPPELLI , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

M. JAMES MALEY , JR.

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 9 of 33

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

PADRAIG P. FLANAGAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
KEATING URBAN PARTNERS, L.L.C. a company doing business in New Jersey

represented by WILLIAM J DESANTIS BALLARD SPAHR LLP 210 LAKE DRIVE EAST SUITE 200 CHERRY HILL, NJ 08002−1163 856−761−3400 Email: desantisw@ballardspahr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
TRIAD ASSOCIATES, INC. a corporation doing business in New Jersey

represented by GAETANO MERCOGLIANO SWEENEY &SHEEHAN SENTRY OFFICE PLAZA SUITE 701 216 HADDON AVE. WESTMONT, NJ 08108 856−869−5600 Email: guy.mercogliano@sweeneyfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

M. JAMES MALEY , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
JULES K. THIESSEN as Mayor of the Township of Mount Holly

represented by M. JAMES MALEY , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/27/2008

# Docket Text
1 COMPLAINT against TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, BROOKE TIDSWELL III, KEATING URBAN PARTNERS, L.L.C., TRIAD ASSOCIATES, INC. ( Filing fee $ 350 receipt number 2013968.) JURY DEMAND, filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. (SUMMONS NOT SUBMITTED)(Attachments: # 1 Civil Cover Sheet)(nf, ) (Entered: 05/28/2008)

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 10 of 33

05/29/2008 05/29/2008 05/29/2008 05/29/2008 05/29/2008 05/30/2008

2 NOTICE of Appearance by DAVID M. PODELL on behalf of CHRISTINE BARNES, BERNICE CAGLE, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, PEDRO AROCHO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO (PODELL, DAVID) (Entered: 05/29/2008)
3 Request for Summons to be Issued by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH as to TOWNSHIP OF MOUNT HOLLY. (PODELL, DAVID) (Entered: 05/29/2008)
4 Request for Summons to be Issued by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH as to TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY. (PODELL, DAVID) (Entered: 05/29/2008)
5 Request for Summons to be Issued by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH as to KATHLEEN HOFFMAN. (PODELL, DAVID) (Entered: 05/29/2008)
6 Request for Summons to be Issued by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH as to BROOKE TIDSWELL III. (PODELL, DAVID) (Entered: 05/29/2008)
7 Summons Issued as to TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, BROOKE TIDSWELL III. Days Due − 20. (js) (Entered: 05/30/2008)

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 11 of 33

06/04/2008
06/10/2008 06/12/2008
06/19/2008 06/19/2008 06/27/2008
06/27/2008 07/16/2008 07/17/2008

8 AFFIDAVIT of Service for Summons and Complaint on Defendants Township of Mount Holly, Township Council of Township of Mount Holly, Mount Holly Township Manager Kathleen Hoffman, and Mount Holly Township Mayor Brooke Tidswell, III by Amy Pinkas, Paralegal, South Jersey Legal Services, Inc., served on Vicki Conover, Mount Holly Township Deputy Clerk on June 3, 2008, filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. (PODELL, DAVID) (Entered: 06/04/2008)
9 AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL against all defendants all defendants., filed by MT HOLLY GARDENS CITIZENS IN ACTION, INC..(POMAR, OLGA) (Entered: 06/10/2008)
10 CERTIFICATE OF SERVICE by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH re 9 Amended Complaint (POMAR, OLGA) (Entered: 06/12/2008)
11 Application and Proposed Order for Clerk's Order to extend time to answer. (MALEY, MAURICE) (Entered: 06/19/2008)
12 Clerk's Order to extend time to answer as to TOWNSHIP OF MOUNT HOLLY answer due 7/18/2008; TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY answer due 7/18/2008; KATHLEEN HOFFMAN answer due 7/18/2008; BROOKE TIDSWELL III answer due 7/18/2008. (js) (Entered: 06/20/2008)
13 MOTION for Leave to Appear Pro Hac Vice by David M. Podell and South Jersey Legal Services, Inc. for Susan Ann Silverstein and AARP Foundation Litigation by BERNICE CAGLE, LEON CALHOUN, SANTOS CRUZ, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ROSEMARY ROBERTS, WILLIAM ROBERTS, EFRAIM ROMERO, HENRY SIMONS, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. (Attachments: # 1 Certification of Susan Ann Silverstein, # 2 Certification of Douglas E. Gershuny, # 3 Proposed Order, # 4 Certificate of Service)(PODELL, DAVID) (Entered: 06/27/2008)
Setting Deadlines as to 13 MOTION for Leave to Appear Pro Hac Vice by David M. Podell and South Jersey Legal Services, Inc. for Susan Ann Silverstein and AARP Foundation Litigation. Motion Hearing set for 7/21/2008 before Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (js) (Entered: 06/30/2008)
14 Letter from Counsel for Plaintiffs to The Honorable Joseph H. Rodriguez, in lieu of a formal motion, requesting leave, pursuant to L.Civ.R. 7.2(b), to file a brief in excess of the 40−page limit, in support of a motion for a preliminary injunction (faxed and mailed today both to Chambers and Defendants). (Attachments: # 1 Receipts for Fax of Letter to Chambers and all Defendants)(PODELL, DAVID) (Entered: 07/16/2008)
15 Letter from M James Maley. (MALEY, M.) (Entered: 07/17/2008)

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 12 of 33

07/17/2008 07/18/2008
07/18/2008 07/18/2008 07/18/2008 07/21/2008

16 LETTER ORDER addressed to Counsel permitting the filing of a brief in excess of the page limitations. Signed by Judge Joseph H. Rodriguez on 7/17/08. (js) (Entered: 07/18/2008)
17 MOTION for Preliminary Injunction by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. (Attachments: # 1 Brief in Support of Motion for Preliminary Injunction, # 2 Text of Proposed Order, # 3 Declaration of Andrew A. Beveridge, Ph.D. with Exhibits A−J, # 4 Declaration of Andrew A. Beveridge, Ph.D. Exhibits K−M, # 5 Declaration of Gray Smith, AIA, AICP with Exhibit A, # 6 Declaration of Gray Smith, AIA, AICP Exhibit C, # 7 Declaration of Ana Arocho, # 8 Declaration of Vivian Brooks, # 9 Declaration of Santos Cruz, # 10 Declaration of Henry Simons, # 11 Declaration of Dagmar Vicente, # 12 Declaration of Alandia Warthen, # 13 Declaration of Leona Wright, # 14 Declaration of Olga D. Pomar, Esq., # 15 Declaration of Olga D. Pomar, Esq. Exhibits A−C, # 16 Declaration of Olga D. Pomar, Esq. Exhibit D−1, # 17 Declaration of Olga D. Pomar, Esq. Exhibit D−2, # 18 Declaration of Olga D. Pomar, Esq. Exhibit E, # 19 Declaration of Olga D. Pomar, Esq. Exhibit F, # 20 Declaration of Olga D. Pomar, Esq. Exhibit G−1, # 21 Declaration of Olga D. Pomar, Esq. Exhibit G−2, # 22 Declaration of Olga D. Pomar, Esq. Exhibit H, # 23 Declaration of Olga D. Pomar, Esq. Exhibit I, # 24 Declaration of Olga D. Pomar, Esq. Exhibit J, # 25 Declaration of Olga D. Pomar, Esq. Exhibit K, # 26 Declaration of Olga D. Pomar, Esq. Exhibit L, # 27 Declaration of Olga D. Pomar, Esq. Exhibits M &N, # 28 Declaration of Olga D. Pomar, Esq. Exhibits O &P, # 29 Declaration of Olga D. Pomar, Esq. Exhibits Q R S T, # 30 Declaration of Olga D. Pomar, Esq. Exhibit U, # 31 Declaration of Olga D. Pomar, Esq. Exhibit V, # 32 Declaration of Olga D. Pomar, Esq. Exhibits W X Y Z, # 33 Declaration of Olga D. Pomar, Esq. Exhibit AA, # 34 Declaration of Olga D. Pomar, Esq. Exhibits BB CC DD, # 35 Declaration of Olga D. Pomar, Esq. Exhibits EE &FF, # 36 Declaration of Olga D. Pomar, Esq. Exhibits GG HH II, # 37 Certificate of Service for Electronic Filing)(PODELL, DAVID) (Entered: 07/18/2008)
18 First MOTION to Dismiss for lack of jurisdiction failure to state a claim by TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, BROOKE TIDSWELL III. Responses due by 8/4/2008 (Attachments: # 1 Brief, # 2 Certification, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Text of Proposed Order)(MALEY, M.) (Entered: 07/18/2008)
Setting Deadlines as to 17 MOTION for Preliminary Injunction. Motion Hearing set for 8/18/2008 before Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (js) (Entered: 07/21/2008)
Setting Deadlines as to 18 First MOTION to Dismiss for lack of jurisdiction failure to state a claim. Motion Hearing set for 8/18/2008 before Judge Joseph H. Rodriguez. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (js) (Entered: 07/21/2008)
19 CERTIFICATE OF SERVICE by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 13 of 33

07/28/2008
07/29/2008
07/29/2008 07/30/2008 08/01/2008 08/01/2008
08/04/2008 08/07/2008

RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH re 17 MOTION for Preliminary Injunction by Sylvanna R. Scott, Office Manager, South Jersey Legal Services, Inc. on Defendants Keating Urban Partners, L.L.C. and Triad Associates, Inc. by 2−3 day priority mail (PODELL, DAVID) (Entered: 07/21/2008)
20 Rule 7.1 Letter for extension of return date re 18 First MOTION to Dismiss for lack of jurisdiction failure to state a claim filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. (PODELL, DAVID) (Entered: 07/28/2008)
21 WAIVER OF SERVICE Returned Executed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. KEATING URBAN PARTNERS, L.L.C. waiver sent on 5/30/2008, answer due 7/29/2008. (PODELL, DAVID) (Entered: 07/29/2008)
22 Letter from M. James Maley, Jr., Attorney for Township Defendants, Requesting Adjournment of Plaintiffs' Motion for Preliminary Injunction. (MALEY, M.) (Entered: 07/29/2008)
23 Letter from David M. Podell, attorney for Plaintiffs, to The Honorable Joseph H. Rodriguez requesting that Defendants' Motion To Dismiss and Plaintiffs' Motion for a Preliminary Injunction be considered contemporaneously (faxed and mailed to all parties) re 20 Rule 7.1 Letter,, 22 Letter. (PODELL, DAVID) (Entered: 07/30/2008)
24 Letter from M. James Maley. (MALEY, M.) (Entered: 08/01/2008)
25 WAIVER OF SERVICE Returned Executed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. TRIAD ASSOCIATES, INC. waiver sent on 6/13/2008, answer due 8/12/2008. (PODELL, DAVID) (Entered: 08/01/2008)
26 ORDER granting 13 Motion for Leave to Appear Pro Hac Vice. Signed by Magistrate Judge Joel Schneider on 8/4/08. (js) (Entered: 08/04/2008)
Judge Magistrate Judge Joel Schneider added. Judge Magistrate Judge Ann Marie Donio no longer assigned to case. (th, ) (Entered: 08/07/2008)

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 14 of 33

08/07/2008 08/07/2008 08/11/2008 08/14/2008 08/14/2008 08/14/2008 08/19/2008
08/19/2008
08/20/2008
08/21/2008

27 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) by KEATING URBAN PARTNERS, L.L.C.. Responses due by 8/19/2008 (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(DESANTIS, WILLIAM) (Entered: 08/07/2008)
Setting Deadlines as to 27 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6). Motion Hearing set for 9/2/2008 before Judge Joseph H. Rodriguez. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (js) (Entered: 08/08/2008)
29 ORDER REASSIGNING CASE. Case reassigned to Judge Judge Noel L. Hillman for all further proceedings. Judge Judge Joseph H. Rodriguez no longer assigned to case. Signed by Chief Judge Garrett E. Brown, Jr. on 8/11/08. (js) (Entered: 08/14/2008)
28 MOTION to Dismiss by TRIAD ASSOCIATES, INC.. (Attachments: # 1 Notice of Motion, # 2 Order, # 3 Brief Brief, # 4 Certificate of Service, # 5 Proof of Mailing, # 6 Exhibit Exhibit A)(MERCOGLIANO, GAETANO) (Entered: 08/14/2008)
Setting Deadlines as to 28 MOTION to Dismiss. Motion Hearing set for 9/15/2008 before Judge Joseph H. Rodriguez. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (js) (Entered: 08/14/2008)
Pro Hac Vice fee as to Susan Ann Silverstein: $ 150, receipt number 100 307911 (js) (Entered: 08/14/2008)
30 BRIEF in Opposition re 17 MOTION for Preliminary Injunction filed by TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certification of Kathleen Hoffman, # 2 Certification of Marcia Holt, # 3 Certification of Micheal Sencindiver, # 4 Certification of Jim Maley, # 5 Exhibit A to Jim Maley Cert, # 6 Exhibit B to Maley Cert, # 7 Exhibit C to Maley Cert, # 8 Exhibit D to Maley Cert, # 9 Exhibit E to Maley Cert, # 10 Exhibit F to Maley Cert, # 11 Exhibit G to Maley Cert, # 12 Exhibit H to Maley Cert, # 13 Certificate of Service)(MALEY, M.) (Entered: 08/19/2008)
31 BRIEF in Opposition re 18 First MOTION to Dismiss for lack of jurisdiction failure to state a claim, 27 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) (Entered: 08/20/2008)
32 Rule 7.1 Letter for extension of return date re 28 MOTION to Dismiss by Defendant Triad Associates Inc. filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, KATHLEEN HOFFMAN, ANA AROCHO. (PODELL, DAVID) (Entered: 08/20/2008)
33 Letter from Olga D. Pomar, Esq., Counsel for Plaintiffs, with Joint Request of Counsel to Extend Deadlines for Filing of Reply Briefs from August 26 to August 29, 2008, for Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction and Defendants' Reply to Plaintiffs' Opposition to

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 15 of 33

08/22/2008 08/29/2008
08/29/2008 09/19/2008
09/29/2008 10/03/2008 10/09/2008 10/17/2008
10/17/2008

Defendants' Motion to Dismiss (faxed and mailed to all parties and chambers) re 30 Brief in Opposition to Motion,, 31 Brief in Opposition to Motion,,. (PODELL, DAVID) (Entered: 08/21/2008)
(TEXT ORDER) ORDERED that plaintiffs' reply in support of their motion for preliminary injunction shall be due August 29, 2008, and defendants' reply brief in support of their motion to dismiss shall be due August 29, 2008. By Judge Noel L. Hillman on 8/22/08. (sa, ) (Entered: 08/22/2008)
34 REPLY to Response to Motion re 17 MOTION for Preliminary Injunction filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Declaration of Olga D. Pomar (Second), # 2 Declaration of Gray Smith (2), # 3 Certificate of Service)(POMAR, OLGA) (Entered: 08/29/2008)
35 REPLY to Response to Motion re 18 First MOTION to Dismiss for lack of jurisdiction failure to state a claim filed by TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certificate of Service For Reply Brief)(MALEY, M.) (Entered: 08/29/2008)
36 RESPONSE in Opposition re 28 MOTION to Dismiss by Defendant Triad filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) (Entered: 09/19/2008)
37 Letter from M. James Maley, Jr.. (Attachments: # 1 Ordinance 2008−25 Approving Redevelopment Plan, # 2 West Rancocas Redevelopment Plan Part I, # 3 West Rancocas Redevelopment Plan Part II)(MALEY, M.) (Entered: 09/29/2008)
38 ORDER directing deft. Twp. of Mt. Holly to file a brief by 10/10/08. Signed by Judge Noel L. Hillman on 10/3/08. (js) (Entered: 10/07/2008)
39 BRIEF Letterbrief to Judge Hillman Pursuant to October 3, 2008 Order filed by TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certificate of Service)(MALEY, M.) (Entered: 10/09/2008)
40 BRIEF in response to Township Letter Brief filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) (Entered: 10/17/2008)
41 MOTION to Amend/Correct 9 Amended Complaint by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN,

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 16 of 33

10/17/2008
10/22/2008 10/23/2008 10/24/2008 10/24/2008 10/28/2008 10/28/2008 11/02/2008 11/03/2008 11/07/2008 11/07/2008
11/14/2008
11/17/2008 11/18/2008

ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Brief, # 2 Proposed Second Amended Complaint, # 3 Text of Proposed Order, # 4 Certificate of Service)(POMAR, OLGA) (Entered: 10/17/2008)
Setting Deadlines as to 41 MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint. Motion Hearing set for 11/17/2008 before Magistrate Judge Joel Schneider. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (js) (Entered: 10/20/2008)
42 Letter from M. James Maley, Jr. regarding Judge Hillman's Recusal Issues. (MALEY, M.) (Entered: 10/22/2008)
43 Letter from Plaintiffs' Counsel Regarding Recusal Issues. (POMAR, OLGA) (Entered: 10/23/2008)
44 Letter from counsel for Keating Urban Partners, LLC regarding recusal. (DESANTIS, WILLIAM) (Entered: 10/24/2008)
45 Letter from Gaetano Mercogliano, Counsel for Triad Associates, regarding recusal. (MERCOGLIANO, GAETANO) (Entered: 10/24/2008)
46 OPINION FILED. Signed by Judge Noel L. Hillman on 10/28/08. (js) (Entered: 10/28/2008)
47 ORDER granting in part and denying in part 18 Motion to Dismiss; granting in part and denying in part 27 Motion to Dismiss; granting in part and denying in part 28 Motion to Dismiss. Signed by Judge Noel L. Hillman on 10/28/08. (js) (Entered: 10/28/2008)
48 Rule 7.1 Letter for extension of return date re 41 MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint filed by TOWNSHIP OF MOUNT HOLLY. (MALEY, M.) (Entered: 11/02/2008)
49 ORDER granting request to obtain an automatic extension to respond to motions. Signed by Judge Noel L. Hillman on 11/3/08. (th, ) (Entered: 11/04/2008)
50 Letter from Gaetano Mercogliano, counsel for Triad Associates request for automatic extension. (MERCOGLIANO, GAETANO) (Entered: 11/07/2008)
51 Rule 7.1 Letter for extension of return date re 41 MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint Request for Automatic Extension to file a response to Plaintiff's Motion for Leave to Amend and Supplement the Complaint filed by TRIAD ASSOCIATES, INC.. (MERCOGLIANO, GAETANO) (Entered: 11/07/2008)
52 RESPONSE to Motion re 41 MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint Defendant Triad Associates, Inc.'s Response to Plaintiffs' Motion to Amend and Supplement Complaint filed by TRIAD ASSOCIATES, INC.. (Attachments: # 1 Certificate of Service Certificate of Service, # 2 Proof of Mailing, # 3 Exhibit A)(MERCOGLIANO, GAETANO) (Entered: 11/14/2008)
53 BRIEF in Opposition re 41 MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint filed by TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certificate of Service)(MALEY, M.) (Entered: 11/17/2008)
54 MEMORANDUM in Support re 17 MOTION for Preliminary Injunction Requesting to Supplement Record filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS,

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 17 of 33

11/24/2008 11/24/2008
11/24/2008
11/25/2008 11/25/2008 11/25/2008 11/25/2008 11/25/2008 11/25/2008

MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Declaration of Counsel, # 2 Exhibit Public Advocate Report)(POMAR, OLGA) (Entered: 11/18/2008)
55 Letter from Plaintiffs' Counsel regarding Preliminary Injunction Motion re 17 MOTION for Preliminary Injunction. (POMAR, OLGA) (Entered: 11/24/2008)
56 REPLY BRIEF to Opposition to Motion re 41 MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint Replying to Defendant Triad filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO, LYRA BAEDRESINGH. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) (Entered: 11/24/2008)
57 REPLY BRIEF to Opposition to Motion re 41 MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint MOTION to Amend/Correct 9 Amended Complaint Replying to Defendant Township filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) (Entered: 11/24/2008)
58 Letter from M. James Maley in Response to re 54 Memorandum in Support of Motion,,. (MALEY, M.) (Entered: 11/25/2008)
NOTICE of Hearing on Motion 17 MOTION for Preliminary Injunction : Motion hearing set for 12/5/2008 3:00 PM in Camden − Courtroom 3A before Judge Noel L. Hillman. Telephone Conference set for 11/25/2008 2:00 PM Lead Counsel Olga Pomar, Esq. to initiate call before Judge Noel L. Hillman.(gn, ) (Entered: 11/25/2008)
60 Minute Entry for proceedings held before Judge Noel L. Hillman: Telephone Conference held on 11/25/2008 re: 17 Preliminary Injunction Motion issues on demolitions. Plaintiff's 41 Motion to Amend Complaint−Granted in part Denied in part. Ordered motion hearing set for December 5, 2008 at 3:00 PM. Orders to be entered. (Court Reporter/Recorder Ted Formaroli.) (gn, ) (Entered: 11/26/2008)
61 OPINION filed. Signed by Judge Noel L. Hillman on 11/25/2008. (gn, ) (Entered: 11/26/2008)
62 ORDER granting in part and denying in part 41 Plaintiff's Motion to Amend. Signed by Judge Noel L. Hillman on 11/25/08. (gn, ) (Entered: 11/26/2008)
63 ORDER Plaintiff's to file a letter by 4 p.m. on November 26, 2008 clarrifying the effects of this Court's opinion of October 28, 2008 and the amendment of the complaint on pending motion preliminary injunction. Signed by Judge Noel L.

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 18 of 33

11/25/2008 11/26/2008 11/26/2008 11/26/2008
11/26/2008 11/26/2008 11/26/2008
11/26/2008 12/02/2008 12/02/2008
12/03/2008 12/03/2008

Hillman on 11/25/2008. (gn, ) (Entered: 11/26/2008)
64 ORDER Granting Plaintiff's request to supplement the record 54 advocates report, without prejudice. Signed by Judge Noel L. Hillman on 11/25/2008. (gn, ) (Entered: 11/26/2008)
59 Letter from Defendant, Triad Assoc., Inc.. (MERCOGLIANO, GAETANO) (Entered: 11/26/2008)
NOTICE of Hearing on Motion 17 MOTION for Preliminary Injunction : Motion hearing set for 12/5/2008 03:00 PM in Camden − Courtroom 3A before Judge Noel L. Hillman. (gn, ) (Entered: 11/26/2008)
65 MOTION for Temporary Restraining Order by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, BROOKE TIDSWELL III, ANA AROCHO. (Attachments: # 1 Memorandum of Law, # 2 Declaration of Counsel, # 3 Exhibit A to Declaration of Counsel, # 4 Exhibit B to Declaration of Counsel, # 5 Exhibit C to Declaration of Counsel, # 6 Exhibit D to Declaration of Counsel, # 7 Exhibit E to Declaration of Counsel, # 8 Exhibit F to Declaration of Counsel, # 9 Declaration of Plaintiff Nancy Lopez, # 10 Certificate of Service)(POMAR, OLGA) (Entered: 11/26/2008)
66 Letter from Plaintiffs' Counsel re 17 MOTION for Preliminary Injunction, 63 Order,. (POMAR, OLGA) (Entered: 11/26/2008)
67 BRIEF in Opposition re 65 MOTION for Temporary Restraining Order filed by TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certification of M. James Maley, Jr., # 2 Certification of Scott Kipp, # 3 Certification of Thomas Casey)(MALEY, M.) (Entered: 11/26/2008)
68 Minute Entry for proceedings held before Judge Noel L. Hillman: Motion Hearing held on 11/26/2008 re 65 MOTION for Temporary Restraining Order filed by EFRAIM ROMERO, VINCENT MUNOZ, MT HOLLY GARDENS, et al. Ordered Motion Denied. Ordered preliminary injunction hearing set for December 5, 2008 at 3:00 PM. Order to be entered. (Court Reporter/Recorder Frank Gable.) (gn) (Entered: 11/26/2008)
69 ORDER Denying 65 Motion for TRO. Signed by Judge Noel L. Hillman on 11/26/08. (gn, ) (Entered: 11/26/2008)
70 BRIEF as a Supplement to the Township's Motion to Dismiss filed by TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certification of Counsel, # 2 Certificate of Service)(MALEY, M.) (Entered: 12/02/2008)
71 AMENDED COMPLAINT Second Amended Complaint and Demand for Jury Trial in compliance with Court's Order of 11−25−2008 (Documents 61 and 62) against all defendants all defendants., filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO.(PODELL, DAVID) (Entered: 12/02/2008)
72 Letter from M. James Maley, Jr.. (MALEY, M.) (Entered: 12/03/2008)
73 AMENDED COMPLAINT Re−Filing of Second Amended Complaint and Demand for Jury Trial in compliance with Court's Order of 11−25−2008

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 19 of 33

12/04/2008 12/04/2008 12/04/2008
12/04/2008 12/04/2008 12/04/2008 12/05/2008

(Documents 61 and 62) (Added new parties on Docket) against JULES K. THIESSEN, TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, KEATING URBAN PARTNERS, L.L.C., TRIAD ASSOCIATES, INC., filed by Maria Arocho, Vivian Brooks, Angelo Nieves, Dolores Nixon, Robert Tigar, James Potter, Phyllis Singleton, Flavio Tobar, Marlene Tobar, Radames Burgos, Sheila Warthen, Alandia Warthen, CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, VINCENT MUNOZ, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO.(PODELL, DAVID) (Entered: 12/03/2008)
74 MOTION to Dismiss Notice of Defendant Triad Associates, Inc. to Dismiss Plaintiffs' Second Amended Complaint by TRIAD ASSOCIATES, INC.. (Attachments: # 1 Order, # 2 Notice of Motion to Dismiss, # 3 Brief in Support of Motion, # 4 Certificate of Service Certifificate of Service, # 5 Proof of Mailing, # 6 Exhibit A, # 7 Exhibit B)(MERCOGLIANO, GAETANO) (Entered: 12/04/2008)
75 MOTION to Seal or Otherwise Restrict Public Access by JULES K. THIESSEN, TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, BROOKE TIDSWELL III. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Brief Brief in Support of Motion to Seal, # 3 Certification Certification of Service)(MALEY, M.) (Entered: 12/04/2008)
76 BRIEF in Opposition re 17 MOTION for Preliminary Injunction filed by JULES K. THIESSEN, TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, BROOKE TIDSWELL III. (Attachments: # 1 Certification Certification of Marcia Holt − REDACTED, # 2 Exhibit Exhibits to Holt Certification − REDACTED, # 3 Certification Certification of Thomas Mastrangelo, # 4 Certification Certification of Carlos Rodriguez, # 5 Certificate of Service Certificate of Service)(MALEY, M.) (Entered: 12/04/2008)
77 CERTIFICATION in Opposition re 75 MOTION to Seal or Otherwise Restrict Public Access filed by JULES K. THIESSEN, TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, BROOKE TIDSWELL III. (Attachments: # 1 Exhibit Exhibits A−D of Holt Certification, # 2 Exhibit Exhibit E of Holt Certification, # 3 Exhibit Exhibits F−Q of Holt Certification, # 4 Exhibit Exhibit R of Holt Certification)(MALEY, M.) (Entered: 12/04/2008)
78 Letter from Plaintiffs' counsel re 72 Letter, 17 MOTION for Preliminary Injunction, 70 Brief, 76 Brief in Opposition to Motion,,. (POMAR, OLGA) (Entered: 12/04/2008)
Setting Deadlines as to 75 MOTION to Seal or Otherwise Restrict Public Access AND 74 MOTION to Dismiss Notice of Defendant Triad Associates, Inc. to Dismiss Plaintiffs' Second Amended Complaint. Motion set for 1/5/2009 before Judge Noel L. Hillman. The motion will be decided on the papers. No appearances required unless notified by the court. (js) (Entered: 12/05/2008)
79 Minute Entry for proceedings held before Judge Noel L. Hillman: Motion Hearing held on 12/5/2008 re 65 MOTION for Temporary Restraining Order filed by EFRAIM ROMERO, VINCENT MUNOZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., LEON CALHOUN, ELIDA ECHEVARIA, CHRISTINE BARNES, LEONA WRIGHT, NORMAN HARRIS, ELMIRA NIXON, LILLIAN TORRES−MORENO, JOYCE STARLING, SANTOS CRUZ, RADAMES TORRES−MORENO, ROSEMARY ROBERTS, BERNICE CAGLE, NANCY LOPEZ, MATTIE HOWELL, WILLIAM ROBERTS, LEONARDO PAGAN, ANA AROCHO, DAGMAR VICENTE, PEDRO AROCHO, CHARLIE MAE

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 20 of 33

12/09/2008 12/17/2008
12/17/2008
12/30/2008
01/14/2009 01/14/2009

WILSON, TAISHA TIRADO, GEORGE CHAMBERS, REYNALDO AROCHO, BROOKE TIDSWELL III, DOROTHY CHAMBERS, HENRY SIMONS. (Court Reporter Carl Nami) (js) (Entered: 12/08/2008)
80 Letter from Gaetano Mercogliano and Shaena Doherty. (MERCOGLIANO, GAETANO) (Entered: 12/09/2008)
81 MEMORANDUM in Support re 17 MOTION for Preliminary Injunction in Response to Holt Certification filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, Maria Arocho, Vivian Brooks, Angelo Nieves, Dolores Nixon, Robert Tigar, James Potter, Phyllis Singleton, Flavio Tobar, VINCENT MUNOZ, Marlene Tobar, Radames Burgos, Sheila Warthen, Alandia Warthen, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Declaration of counsel, # 2 Exhibit A)(POMAR, OLGA) (Entered: 12/17/2008)
82 Rule 7.1 Letter for extension of return date re 74 MOTION to Dismiss Notice of Defendant Triad Associates, Inc. to Dismiss Plaintiffs' Second Amended Complaint filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, Maria Arocho, Vivian Brooks, Angelo Nieves, Dolores Nixon, Robert Tigar, James Potter, Phyllis Singleton, Flavio Tobar, VINCENT MUNOZ, Marlene Tobar, Radames Burgos, Sheila Warthen, Alandia Warthen, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (POMAR, OLGA) (Entered: 12/17/2008)
83 RESPONSE in Opposition re 74 MOTION to Dismiss Notice of Defendant Triad Associates, Inc. to Dismiss Plaintiffs' Second Amended Complaint filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, Maria Arocho, Vivian Brooks, Angelo Nieves, Dolores Nixon, Robert Tigar, James Potter, Phyllis Singleton, Flavio Tobar, VINCENT MUNOZ, Marlene Tobar, Radames Burgos, Sheila Warthen, Alandia Warthen, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) (Entered: 12/30/2008)
84 Second MOTION to Dismiss Plaintiffs' 2nd Amended Complaint, Motion Date 2/17/09 by TOWNSHIP OF MOUNT HOLLY. Responses due by 2/2/2009 (Attachments: # 1 Brief in Support of Motion to Dismiss 2nd Amended Complaint, # 2 Certification of Counsel, # 3 Exhibit A of Cert of Counsel, # 4 Exhibit B to Cert of Counse, # 5 Exhibit C to Cert of Counsel, # 6 Exhibit D to Cert of Counsel, # 7 Exhibit E to Cert of Service, # 8 Exhibit F of Cert of Counsel, # 9 Text of Proposed Order for Motion to Dismiss 2nd Amended Complaint, # 10 Certificate of Service)(MALEY, M.) (Entered: 01/14/2009)
Setting Deadlines as to 84 Second MOTION to Dismiss Plaintiffs' 2nd Amended Complaint. Motion set for 2/17/2009 before Judge Noel L. Hillman. The motion will be decided on the papers. No appearances required unless notified by the

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 21 of 33

01/16/2009 01/16/2009
01/20/2009 01/20/2009 01/20/2009 01/21/2009 01/22/2009
01/22/2009 01/28/2009 01/30/2009 02/13/2009 02/13/2009 02/13/2009

court. (js) (Entered: 01/15/2009)
85 Letter from J. Connell. (Attachments: # 1 Subpoena)(CONNELL, JOHN) (Entered: 01/16/2009)
88 Transcript of Proceedings held on 11/25/2008, before Judge Noel L Hillman. Court Reporter/Transcriber Ted Formaroli, Telephone number 856−635−9054. NOTICE REGARDING REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this Transcript. If no such notice is filed, the transcript will be made remotely available in electronic format to the public without redaction after ninety(90) calendar days. The redaction policy is located on our website at www.njd.uscourts.gov. Transcripts may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for release of transcript restriction. After that date it may be obtained through PACER. Redaction Request due 2/6/2009. Redacted Transcript Deadline set for 2/17/2009. Release of Transcript Restriction set for 4/16/2009. (nf, ) (Entered: 01/21/2009)
86 MOTION to Dismiss by KEATING URBAN PARTNERS, L.L.C.. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(DESANTIS, WILLIAM) (Entered: 01/20/2009)
87 Letter from M. JAMES MALEY, JR. re 85 Letter. (MALEY, M.) (Entered: 01/20/2009)
Setting Deadlines as to 86 MOTION to Dismiss. Motion set for 2/17/2009 before Judge Noel L. Hillman. The motion will be decided on the papers. No appearances required unless notified by the court. (js) (Entered: 01/22/2009)
89 Letter from Plaintiffs' Counsel re 87 Letter, 85 Letter. (Attachments: # 1 Exhibit December 23 2008 letter, # 2 Exhibit December 30 2008 Letter, # 3 Exhibit January 15 2009 E−mail)(POMAR, OLGA) (Entered: 01/21/2009)
90 Rule 7.1 Letter for extension of return date re 84 Second MOTION to Dismiss Plaintiffs' 2nd Amended Complaint, Motion Date 2/17/09, 86 MOTION to Dismiss filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, Maria Arocho, Vivian Brooks, Angelo Nieves, Dolores Nixon, Robert Tigar, James Potter, Phyllis Singleton, Flavio Tobar, VINCENT MUNOZ, Marlene Tobar, Radames Burgos, Sheila Warthen, Alandia Warthen, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (POMAR, OLGA) (Entered: 01/22/2009)
91 Letter from John Connell, Esquire. (CONNELL, JOHN) (Entered: 01/22/2009)
92 Letter from Plaintiffs' counsel. (POMAR, OLGA) (Entered: 01/28/2009)
93 Letter from M. James Maley to Olga Pomar re 92 Letter. (MALEY, M.) (Entered: 01/30/2009)
94 OPINION FILED. Signed by Judge Noel L. Hillman on 2/13/09. (js) (Entered: 02/13/2009)
95 ORDER denying 17 Motion for Preliminary Injunction; granting 75 Motion to Seal. Signed by Judge Noel L. Hillman on 2/13/09. (js) (Entered: 02/13/2009)
97 Transcript of Proceedings held on 12/5/2008, before Judge Noel L. Hillman. Court Reporter/Transcriber Carl J. Nami, Telephone number 856−757−5019. NOTICE REGARDING REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this Transcript. If no such notice is filed, the transcript will be made remotely available in electronic format to the public without redaction after ninety(90) calendar days. The redaction policy is located on our website at www.njd.uscourts.gov.

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 22 of 33

02/17/2009
02/23/2009 02/24/2009 03/09/2009 04/01/2009
04/21/2009
07/29/2009 10/23/2009 10/23/2009

Transcripts may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for release of transcript restriction. After that date it may be obtained through PACER. Redaction Request due 3/6/2009. Redacted Transcript Deadline set for 3/16/2009. Release of Transcript Restriction set for 5/14/2009. (nf, ) (Entered: 02/20/2009)
96 RESPONSE in Opposition re 84 Second MOTION to Dismiss Plaintiffs' 2nd Amended Complaint, Motion Date 2/17/09, 86 MOTION to Dismiss filed by CHRISTINE BARNES, BERNICE CAGLE, LEON CALHOUN, GEORGE CHAMBERS, DOROTHY CHAMBERS, MT HOLLY GARDENS CITIZENS IN ACTION, INC., SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, Maria Arocho, Vivian Brooks, Angelo Nieves, Dolores Nixon, Robert Tigar, James Potter, Phyllis Singleton, Flavio Tobar, VINCENT MUNOZ, Marlene Tobar, Radames Burgos, Sheila Warthen, Alandia Warthen, ELMIRA NIXON, LEONARDO PAGAN, ROSEMARY ROBERTS, WILLIAM ROBERTS, PEDRO AROCHO, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, RADAMES TORRES−MORENO, LILLIAN TORRES−MORENO, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, REYNALDO AROCHO, ANA AROCHO. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) (Entered: 02/17/2009)
98 Letter from M. James Maley Jr. re: Adjournment of Motion to Dismiss Plaintiffs' Second Amended Complaint re Set/Reset Motion and RRDeadlines/Hearings, 96 Response in Opposition to Motion,,, 84 Second MOTION to Dismiss Plaintiffs' 2nd Amended Complaint, Motion Date 2/17/09. (Attachments: # 1 Text of Proposed Order Order Extending Motion Date to March 16, 2009)(MALEY, M.) (Entered: 02/23/2009)
99 ORDER resetting defendant's motion to dismiss to 3/16/09. Signed by Judge Noel L. Hillman on 2/24/09. (js) (Entered: 03/03/2009)
100 REPLY BRIEF to Opposition to Motion re 84 Second MOTION to Dismiss Plaintiffs' 2nd Amended Complaint, Motion Date 2/17/09 filed by TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certificate of Service for Reply Brief)(MALEY, M.) (Entered: 03/09/2009)
CLERK'S QUALITY CONTROL MESSAGE: GAETANO MERCOGLIANO, does not have a correct e−mail address listed with the court and is not receiving his/her notices of electronic filing in this case. Pursuant to local rule 10.1 and court procedures, counsel and unrepresented parties are required to notify the court of any mailing or e−mail address changes. The court has deleted the invalid e−mail address. Attorneys should review the ECF link on our web site for information on maintaining your account and unrepresented parties, or those attorneys without access to maintaining their account, should notice the Clerk. (sa, ) (Entered: 04/01/2009)
CLERK'S QUALITY CONTROL MESSAGE: GAETANO MERCOGLIANO, does not have a correct e−mail address listed with the court and is not receiving his/her notices of electronic filing in this case. Pursuant to local rule 10.1 and court procedures, counsel and unrepresented parties are required to notify the court of any mailing or e−mail address changes. The court has deleted the invalid e−mail address. Attorneys should review the ECF link on our web site for information on maintaining your account and unrepresented parties, or those attorneys without access to maintaining their account, should notice the Clerk. (sa, ) (Entered: 04/21/2009)
101 Letter from M. James Maley − Re: Supplement to Motion to Dismiss re 84 Second MOTION to Dismiss Plaintiffs' 2nd Amended Complaint, Motion Date 2/17/09. (Attachments: # 1 Certification of Service)(MALEY, M.) (Entered: 07/29/2009)
102 OPINION FILED. Signed by Judge Noel L. Hillman on 10/23/09. (js) (Entered: 10/26/2009)
103 ORDER granting in part and denying in part and continued in part 74 Motion to Dismiss ; 84 Motion to Dismiss and 86 Motion to Dismiss, etc. Signed by Judge Noel L. Hillman on 10/23/09. (js) (Entered: 10/26/2009)

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 23 of 33

11/13/2009 11/16/2009 12/22/2009
01/15/2010 01/19/2010 01/19/2010 02/18/2010 02/18/2010 02/19/2010 02/19/2010

104 Letter from Plaintiffs' counsel re 102 Opinion. (POMAR, OLGA) (Entered: 11/13/2009)
105 TEXT ORDER: ORDERED that plaintiffs' request for an extension of time to submit supplemental briefing is GRANTED; plaintiffs' brief shall be due by December 21, 2009, and defendants' response shall be due January 20, 2010.By Noel L. Hillman, on November 16, 2009 (gn) (Entered: 11/16/2009)
106 BRIEF in Opposition to Summary Judgment Motion filed by ANA AROCHO, PEDRO AROCHO, REYNALDO AROCHO, Vivian Brooks, Radames Burgos, BERNICE CAGLE, LEON CALHOUN, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., VINCENT MUNOZ, ELMIRA NIXON, Angelo Nieves, Dolores Nixon, LEONARDO PAGAN, James Potter, ROSEMARY ROBERTS, WILLIAM ROBERTS, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, Phyllis Singleton, JULES K. THIESSEN, TAISHA TIRADO, LILLIAN TORRES−MORENO, RADAMES TORRES−MORENO, Robert Tigar, Flavio Tobar, Marlene Tobar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen. (Attachments: # 1 Statement Responding Statement of Material Facts, # 2 Declaration Decl of A. Beveridge, # 3 Exhibit Beveridge Exh A, # 4 Exhibit Beveridge Exh B, # 5 Exhibit Beveridge Exh C, # 6 Exhibit Beveridge Exh D, # 7 Declaration Decl of S Cruz, # 8 Declaration Decl of K Pipes, # 9 Declaration Decl of O Pomar, # 10 Exhibit Pomar Exh A, # 11 Exhibit Pomar Exh B, # 12 Exhibit Pomar Exh C, # 13 Exhibit Pomar Exh D, # 14 Exhibit Pomar Exh E, # 15 Exhibit Pomar Exh F, # 16 Exhibit Pomar Exh G, # 17 Exhibit Pomar Exh H, # 18 Exhibit Pomar Exh I, # 19 Exhibit Pomar Exh J, # 20 Exhibit Pomar Exh K, # 21 Exhibit Pomar Exh L, # 22 Exhibit Pomar Exh M, # 23 Exhibit Pomar Exh N, # 24 Exhibit Pomar Exh O, # 25 Exhibit Pomar Exh P, # 26 Exhibit Pomar Exh Q, # 27 Exhibit Pomar Exh R, # 28 Exhibit Pomar Exh S, # 29 Exhibit Pomar Exh T, # 30 Declaration Decl of G Smith, # 31 Exhibit Smith Exh A1, # 32 Exhibit Smith Exh A2, # 33 Exhibit Smith Exh A3, # 34 Exhibit Smith Exh A4, # 35 Exhibit Smith Exh A5, # 36 Exhibit Smith Exh A6, # 37 Exhibit Smith Exh A7, # 38 Exhibit Smith Exh A8, # 39 Exhibit Smith Exh A9, # 40 Exhibit Smith Exh A10, # 41 Declaration R 56(f) Decl of Pomar, # 42 Certificate of Service)(POMAR, OLGA) (Entered: 12/22/2009)
107 Letter from M. James Maley, Jr. re 106 Brief,,,,,,,, 105 Docket Annotation,. (Attachments: # 1 Text of Proposed Order Proposed Order for Extension of Time to File Response)(MALEY, M.) (Entered: 01/15/2010)
108 TEXT ORDER: ORDERED that all defendants' replies to plaintiffs' opposition to the converted summary judgment motion shall be due on February 19, 2010. By Judge Noel L. Hillman on 1/19/2010. (gn ) (Entered: 01/19/2010)
MOTION for Summary Judgment by JULES K. THIESSEN, BROOKE TIDSWELL III, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, TOWNSHIP OF MOUNT HOLLY, TRIAD ASSOCIATES, INC.(SEE DOC. NO. 112 BRIEF/CONVERTED SUMMARY JUDGMENT MOTION (gn ) (per Chambers of Judge Noel L. Hillman) (Entered: 10/04/2010)
109 Letter from M. James Maley, Jr. re: Request to File Oversized Brief re 106 Brief,,,,,,,,. (MALEY, M.) (Entered: 02/18/2010)
110 TEXT ORDER: ORDERED that defendant's request 109 to file an over−length brief is GRANTED; defendant's brief shall not exceed 50 pages. By Judge Noel L. Hillman on February 18, 2010. (gn) (Entered: 02/18/2010)
111 Letter from Brief to Plaintiffs' Responding Statement of Material Facts in Opposition to the Motion for Summary Judgment re 106 Brief,,,,,,,,. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(MERCOGLIANO, GAETANO) (Entered: 02/19/2010)
112 BRIEF in Support of Summary Judgment filed by KATHLEEN HOFFMAN, JULES K. THIESSEN, BROOKE TIDSWELL III, TOWNSHIP COUNCIL OF

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 24 of 33

02/24/2010 01/03/2011 01/03/2011 01/03/2011 01/19/2011
01/19/2011
01/19/2011
01/20/2011

TOWNSHIP OF MOUNT HOLLY, TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Statement of Undisputed Facts, # 2 Certification of M. James Maley, Jr., # 3 Exhibit A through E and G through P to Maley Cert., # 4 Exhibit Exhibit F to Maley Cert., # 5 Certificate of Service)(MALEY, M.) (Entered: 02/19/2010)
113 AMENDED DOCUMENT by KATHLEEN HOFFMAN, JULES K. THIESSEN, BROOKE TIDSWELL III, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, TOWNSHIP OF MOUNT HOLLY. Amendment to 112 Brief, Amended Certificate of Service. (MALEY, M.) (Entered: 02/24/2010)
114 OPINION. Signed by Judge Noel L. Hillman on 1/3/2011. (drw, ) (Entered: 01/03/2011)
115 ORDER granting Defts' converted motions for summary judgment 74 , 84 , 86 &112 . The Clerk shall CLOSE this matter. Signed by Judge Noel L. Hillman on 1/3/2011. (drw, ) (Entered: 01/03/2011)
***Civil Case Terminated. (drw, ) (Entered: 01/03/2011)
116 NOTICE OF APPEAL by ANA AROCHO, Vivian Brooks, Radames Burgos, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., Dolores Nixon, LEONARDO PAGAN, James Potter, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, LILLIAN TORRES−MORENO, Robert Tigar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen. Filing fee $ 455, receipt number 0312−3520549. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. Appeal Record due by 2/2/2011. (POMAR, OLGA) (Entered: 01/19/2011)
117 MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) by ANA AROCHO, Vivian Brooks, Radames Burgos, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, NANCY LOPEZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., Dolores Nixon, LEONARDO PAGAN, James Potter, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, LILLIAN TORRES−MORENO, Robert Tigar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen. (Attachments: # 1 Declaration of Santos Cruz, # 2 Exhibit A, # 3 Exhibit B, # 4 Declaration of Nancy Lopez, # 5 Declaration of Counsel, # 6 Exhibit A, # 7 Exhibit B, # 8 Exhibit C, # 9 Exhibit D, # 10 Exhibit E, # 11 Exhibit F, # 12 Exhibit G, # 13 Exhibit H, # 14 Brief in support of stay motion, # 15 Text of Proposed Order granting stay)(POMAR, OLGA) (Entered: 01/19/2011)
118 MOTION to Stay re 117 MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) Certificate of Service by ANA AROCHO, Vivian Brooks, Radames Burgos, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., Dolores Nixon, LEONARDO PAGAN, James Potter, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, LILLIAN TORRES−MORENO, Robert Tigar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen. (POMAR, OLGA) (Entered: 01/19/2011)
CLERK'S QUALITY CONTROL MESSAGE − The Motion to Stay # 118 filed by O.Pomar on 01/19/2011 was submitted incorrectly as a Motion. PLEASE RESUBMIT THE Certificate Of Service USING Certificate of Service found under the Service of Process menu. This submission will remain on the docket unless otherwise ordered by the court. (tf, ) (Entered: 01/20/2011)

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 25 of 33

01/20/2011 01/20/2011
01/20/2011
01/31/2011 02/03/2011 03/16/2011 09/13/2011
03/22/2012 03/23/2012 07/30/2012 07/30/2012 07/31/2012 08/02/2012

Set Deadlines as to 117 MOTION to Stay re 116 Notice of Appeal (USCA). Motion set for 2/22/2011 before Judge Noel L. Hillman. The motion will be decided on the papers. No appearances required unless notified by the court. (tf, ) (Entered: 01/20/2011)
119 CERTIFICATE OF SERVICE by ANA AROCHO, Vivian Brooks, Radames Burgos, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., Dolores Nixon, LEONARDO PAGAN, James Potter, HENRY SIMONS, JOYCE STARLING, TAISHA TIRADO, LILLIAN TORRES−MORENO, Robert Tigar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen re 117 MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) (POMAR, OLGA) (Entered: 01/20/2011)
120 Letter from Counsel requesting expedited hearing on motion for stay re 117 MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) MOTION to Stay re 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA). (POMAR, OLGA) (Entered: 01/20/2011)
121 MEMORANDUM OPINION &ORDER Denying 117 Motion to Stay. Signed by Judge Noel L. Hillman on 1/31/11. (js) (Entered: 01/31/2011)
122 TRANSCRIPT REQUEST by ANA AROCHO et al (UNNECESSARY FOR APPEAL PURPOSES) re: 16 Notice of Appeal (lec) (Entered: 02/03/2011)
123 ORDER of USCA as to 116 granting a Stay and Injunctive Relief Pending Appeal.(Craven, Shannon) (Entered: 03/16/2011)
124 USCA JUDGMENT as to 116 Notice of Appeal (USCA), Notice of Appeal (USCA), Notice of Appeal (USCA) filed by Radames Burgos, MT HOLLY GARDENS CITIZENS IN ACTION, INC., Alandia Warthen, Robert Tigar, Vivian Brooks, ELIDA ECHEVARIA, LEONA WRIGHT, NORMAN HARRIS, Dolores Nixon, James Potter, LILLIAN TORRES−MORENO, JOYCE STARLING, SANTOS CRUZ, NANCY LOPEZ, MATTIE HOWELL, LEONARDO PAGAN, ANA AROCHO, DAGMAR VICENTE, CHARLIE MAE WILSON, TAISHA TIRADO, Sheila Warthen, GEORGE CHAMBERS, DOROTHY CHAMBERS, HENRY SIMONS (Attachments: # 1 Precedential)(Craven, Shannon) (Entered: 09/13/2011)
125 MANDATE of USCA reversing and remanding the District Court's order entered January 3, 2011 as to 116 Notice of Appeal. (Craven, Shannon) (Entered: 03/22/2012)
Pursuant to Local Rule 79.4, notice is hereby given of the Appellate ruling filed on 3/22/12.. In the event that the mandate or judgment provides for costs or directs a disposition other than an affirmance, the prevailing party shall prepare and submit an order implementing the mandate or judgment. (th, ) (Entered: 03/23/2012)
126 TEXT ORDER The Court has scheduled a telephone status conference for August 7, 2012 at 2:00 p.m. Plaintiffs' counsel shall initiate the telephone call. Ordered by Magistrate Judge Joel Schneider on July 30, 2012. (jk) (Entered: 07/30/2012)
127 Letter from M. James Maley, Jr.. (MALEY, M.) (Entered: 07/30/2012)
128 Letter re 127 Letter, 126 Order. (PODELL, DAVID) (Entered: 07/31/2012)
129 TEXT ORDER Upon letter application of counsel and all parties consenting, the Court has rescheduled the telephone status conference previously set for August 7, 2012. The new date and time for the telephone status conference is August 14,

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 26 of 33

08/14/2012 08/14/2012 09/20/2012 09/24/2012 09/24/2012 10/18/2012 10/22/2012 10/25/2012 11/03/2012 11/05/2012 11/27/2012
11/28/2012 11/28/2012 11/28/2012

2012 at 11:00 a.m. Ordered by Magistrate Judge Joel Schneider on August 2, 2012. (jk) (Entered: 08/02/2012)
130 SCHEDULING ORDER: Telephone Status Conference set for 9/24/2012 @ 11:00 AM before Magistrate Judge Joel Schneider. Signed by Magistrate Judge Joel Schneider on 8/14/2012. (drw) (Entered: 08/14/2012)
Minute Entry for proceedings held before Magistrate Judge Joel Schneider: Telephone Status Conference held on 8/14/2012. (se, ) (Entered: 08/15/2012)
131 Letter from plaintiffs' counsel re 130 Scheduling Order. (POMAR, OLGA) (Entered: 09/20/2012)
132 AMENDED SCHEDULING ORDER: Telephone Status Conference set for 10/25/2012 @ 9:30 AM before Magistrate Judge Joel Schneider. Signed by Magistrate Judge Joel Schneider on 9/24/2012. (drw) (Entered: 09/24/2012)
Minute Entry for proceedings held before Magistrate Judge Joel Schneider: Telephone Status Conference held on 9/24/2012. (se, ) (Entered: 09/25/2012)
133 Letter from plaintiffs' counsel re 132 Scheduling Order. (POMAR, OLGA) (Entered: 10/18/2012)
134 TEXT ORDER The Court has canceled the telephone status conference previously set for October 25, 2012. Order for an Initial Rule 16 Conference to be entered. Ordered by Magistrate Judge Joel Schneider on October 22, 2012. (jk) (Entered: 10/22/2012)
135 ORDER: Initial Conference set for 11/28/2012 @ 11:30 AM in Room 2060 before Magistrate Judge Joel Schneider. Signed by Magistrate Judge Joel Schneider on 10/25/2012. (As per chambers). (drw) (Entered: 10/25/2012)
136 Letter from plaintiffs' counsel re 135 Order Initial Scheduling Conference (Camden). (POMAR, OLGA) (Entered: 11/03/2012)
137 ORDER denying request to postpone the 11/28/2012 Scheduling Conference, etc.. Signed by Magistrate Judge Joel Schneider on 11/05/2012. (tf, ) (Entered: 11/05/2012)
138 Joint Discovery Plan by ANA AROCHO, PEDRO AROCHO, REYNALDO AROCHO, Maria Arocho, LYRA BAEDRESINGH, CHRISTINE BARNES, Vivian Brooks, Radames Burgos, BERNICE CAGLE, LEON CALHOUN, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, KATHLEEN HOFFMAN, MATTIE HOWELL, KEATING URBAN PARTNERS, L.L.C., NANCY LOPEZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., VINCENT MUNOZ, ELMIRA NIXON, Angelo Nieves, Dolores Nixon, LEONARDO PAGAN, James Potter, ROSEMARY ROBERTS, WILLIAM ROBERTS, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, Phyllis Singleton, JULES K. THIESSEN, BROOKE TIDSWELL III, TAISHA TIRADO, LILLIAN TORRES−MORENO, RADAMES TORRES−MORENO, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, TOWNSHIP OF MOUNT HOLLY, TRIAD ASSOCIATES, INC., Robert Tigar, Flavio Tobar, Marlene Tobar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen.(MALEY, M.) (Entered: 11/27/2012)
139 MAGISTRATE JUDGE SCHNEIDER'S STANDING ORDER IN ALL CIVIL CASES. Signed by Magistrate Judge Joel Schneider on 11/28/2012. (drw) (Entered: 11/28/2012)
140 Minute Entry for proceedings held before Magistrate Judge Joel Schneider: Initial Scheduling Conference held on 11/28/2012. (CD #548.) (drw) (Entered: 11/28/2012)
141 SCHEDULING ORDER: In−person Status Conference set for 4/18/2013 @ 11:00 AM before Magistrate Judge Joel Schneider. Amended Pleadings due by 2/1/2013. Signed by Magistrate Judge Joel Schneider on 11/28/2012. (drw) (Entered: 11/28/2012)

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 27 of 33

12/14/2012 12/17/2012 12/17/2012 12/19/2012
01/09/2013 01/30/2013 01/31/2013 02/01/2013 02/04/2013 02/21/2013
02/22/2013 02/26/2013

142 ANSWER to Amended Complaint SECOND AMENDED COMPLAINT by TRIAD ASSOCIATES, INC.. (Attachments: # 1 Certification)(MERCOGLIANO, GAETANO) (Entered: 12/14/2012)
143 Township Defendants' ANSWER to Amended Complaint filed 12/3/08 by KATHLEEN HOFFMAN, JULES K. THIESSEN, BROOKE TIDSWELL III, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Certificate of Service)(MALEY, M.) (Entered: 12/17/2012)
144 ANSWER to Amended Complaint by KEATING URBAN PARTNERS, L.L.C.. (Attachments: # 1 Certificate of Service)(DESANTIS, WILLIAM) (Entered: 12/17/2012)
CLERK'S QUALITY CONTROL MESSAGE − Defendant TRIAD ASSOCIATES has restricted access to the Answer filed on 12/14/12 without an order or clarification as to why access was restricted. Please submit a certification stating that this document is to be marked Confidential Material or that this document's access was restricted in error. Please be advised, pursuant to Local Civil Rule 5.3, you must file a motion for leave to have a document sealed. (dd, ) (Entered: 12/19/2012)
NOTICE of Hearing:In person Status Conference set for 2/7/2013 2:00 PM in Camden − Courtroom 3A before Judge Noel L. Hillman. (gn) (Entered: 01/09/2013)
145 CERTIFICATE of Counsel re QC − Seal − Restricted Document (non−restricted), Notice of Hearing by GAETANO MERCOGLIANO on behalf of TRIAD ASSOCIATES, INC. (MERCOGLIANO, GAETANO) (Entered: 01/30/2013)
146 Letter from Counsel re 141 Scheduling Order. (DESANTIS, WILLIAM) (Entered: 01/31/2013)
147 ORDERED that the deadline to submit the required dispute letter is extended to 2/28/2013. All other scheduling deadlines in the 11/28/2012 Order shall remain in effect. Signed by Magistrate Judge Joel Schneider on 2/1/2013. (dmr) (Entered: 02/01/2013)
AMENDED NOTICE OF HEARING:In person Status Conference set for 2/7/2013 is ADJOURNED to 6/12/2013 2:00 PM in Camden − Courtroom 3A before Judge Noel L. Hillman. (gn) (Entered: 02/04/2013)
148 STIPULATION re 141 Scheduling Order To Extend Time for Written Discovery by ANA AROCHO, PEDRO AROCHO, REYNALDO AROCHO, Maria Arocho, LYRA BAEDRESINGH, CHRISTINE BARNES, Vivian Brooks, Radames Burgos, BERNICE CAGLE, LEON CALHOUN, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, KATHLEEN HOFFMAN, MATTIE HOWELL, KEATING URBAN PARTNERS, L.L.C., NANCY LOPEZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., VINCENT MUNOZ, ELMIRA NIXON, Angelo Nieves, Dolores Nixon, LEONARDO PAGAN, James Potter, ROSEMARY ROBERTS, WILLIAM ROBERTS, LISSETTE RODRIGUEZ, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, Phyllis Singleton, JULES K. THIESSEN, BROOKE TIDSWELL III, TAISHA TIRADO, LILLIAN TORRES−MORENO, RADAMES TORRES−MORENO, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, TOWNSHIP OF MOUNT HOLLY, TRIAD ASSOCIATES, INC., Robert Tigar, Flavio Tobar, Marlene Tobar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen. (MALEY, M.) (Entered: 02/21/2013)
149 LETTER ORDER addressed to Counsel, DENYING 148 Stipulation re: 141 Scheduling Order To Extend Time for Written Discovery, etc. Signed by Magistrate Judge Joel Schneider on 2/22/2013. (drw) (Entered: 02/25/2013)
150 Letter from Keating Urban Partners LLC Requesting Discovery Extension. (DESANTIS, WILLIAM) (Entered: 02/26/2013)

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 28 of 33

02/26/2013 02/27/2013 02/27/2013 02/28/2013 03/11/2013 03/12/2013 03/12/2013
03/13/2013 03/13/2013 03/13/2013 03/15/2013
03/18/2013 03/26/2013

151 Letter from Plaintiffs' counsel re 149 Order. (POMAR, OLGA) (Entered: 02/26/2013)
152 Letter from Defendant, Triad Assoc.Inc. re 141 Scheduling Order. (MERCOGLIANO, GAETANO) (Entered: 02/27/2013)
153 Letter from Defendant, Township of Mount Holly re 149 Order. (MALEY, M.) (Entered: 02/27/2013)
154 ORDER granting joint requests to ext deadlines in the 141 Scheduling Order. The Status Conference set for 4/18/2013 @ 11:00 AM shall proceed as scheduled. Signed by Magistrate Judge Joel Schneider on 2/28/2013. (drw) (Entered: 02/28/2013)
155 Letter from Plaintiff's Counsel with proposed Consent Order re 141 Scheduling Order. (Attachments: # 1 Text of Proposed Order Proposed Consent Order, # 2 Exhibit Proposed amended Complaint)(POMAR, OLGA) (Entered: 03/11/2013)
156 CONSENT ORDER FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT. The [155−2] amended pleading shall be deemed filed/served as of the date this Order is entered. Signed by Magistrate Judge Joel Schneider on 3/12/2013. (drw) (Entered: 03/12/2013)
157 THIRD AMENDED COMPLAINT against All Defendants, filed by ELMIRA NIXON, SANTOS CRUZ, ANA AROCHO, Sheila Warthen, GEORGE CHAMBERS, Dolores Nixon, MT HOLLY GARDENS CITIZENS IN ACTION, INC., Marlene Tobar, DAGMAR VICENTE, NORMAN HARRIS, MATTIE HOWELL, CHARLIE MAE WILSON, Alandia Warthen, Robert Tigar, Vivian Brooks, LEONA WRIGHT, Flavio Tobar, TAISHA TIRADO, VINCENT MUNOZ, LEONARDO PAGAN, CHRISTINE BARNES, LILLIAN TORRES−MORENO, Angelo Nieves, Phyllis Singleton, BERNICE CAGLE, ELIDA ECHEVARIA, NANCY LOPEZ, WILLIAM ROBERTS, PEDRO AROCHO, RADAMES TORRES−MORENO, LYRA BAEDRESINGH, LISSETTE RODRIGUEZ, LEON CALHOUN, JOYCE STARLING, Maria Arocho, James Potter, Radames Burgos, ROSEMARY ROBERTS, HENRY SIMONS, DOROTHY CHAMBERS, EFRAIM ROMERO, REYNALDO AROCHO.(drw) (Entered: 03/12/2013)
158 Letter from M. James Maley, Jr. re 154 Order. (Attachments: # 1 Text of Proposed Order for Protective Order)(MALEY, M.) (Entered: 03/13/2013)
159 NOTICE of Appearance by LOUIS CAPPELLI, JR on behalf of KATHLEEN HOFFMAN, BROOKE TIDSWELL III, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, TOWNSHIP OF MOUNT HOLLY (CAPPELLI, LOUIS) (Entered: 03/13/2013)
160 NOTICE by KATHLEEN HOFFMAN, BROOKE TIDSWELL III, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, TOWNSHIP OF MOUNT HOLLY (FLANAGAN, PADRAIG) (Entered: 03/13/2013)
161 First MOTION to Stay Discovery and Litigation Following Completion of Written Discovery by KATHLEEN HOFFMAN, JULES K. THIESSEN, BROOKE TIDSWELL III, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, TOWNSHIP OF MOUNT HOLLY. (Attachments: # 1 Brief, # 2 Text of Proposed Order, # 3 Affidavit Affidavit of Steven Martin 1 of 3, # 4 Affidavit Affidavit of Steven Martin 2 of 3, # 5 Affidavit Affidavit of Steven Martin 3 of 3, # 6 Affidavit Affidavit of Counsel)(MALEY, M.) (Entered: 03/15/2013)
Set Deadlines as to 161 First MOTION to Stay Discovery and Litigation Following Completion of Written Discovery. Motion set for 4/15/2013 before Magistrate Judge Joel Schneider. The motion will be decided on the papers. No appearances required unless notified by the court. (drw) (Entered: 03/18/2013)
162 LETTER ORDER: Oral argument on the dispute raised in Mr. Maley's 3/13/2013 letter and 161 First MOTION to Stay Discovery and Litigation Following Completion of Written Discovery will be held on 4/18/2013 at 11:00 AM in Camden − Courtroom 3C before Magistrate Judge Joel Schneider. Signed by Magistrate Judge Joel Schneider on 3/26/2013. (dmr) (Entered: 03/26/2013)

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 29 of 33

04/01/2013
04/08/2013 04/08/2013 04/08/2013 04/09/2013 04/09/2013 04/18/2013 04/19/2013
04/23/2013 04/23/2013 04/30/2013 05/08/2013

163 BRIEF in Opposition filed by ANA AROCHO, PEDRO AROCHO, REYNALDO AROCHO, Radames Burgos, BERNICE CAGLE, LEON CALHOUN, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., VINCENT MUNOZ, ELMIRA NIXON, Angelo Nieves, Dolores Nixon, LEONARDO PAGAN, James Potter, ROSEMARY ROBERTS, WILLIAM ROBERTS, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, Phyllis Singleton, TAISHA TIRADO, LILLIAN TORRES−MORENO, Robert Tigar, Flavio Tobar, Marlene Tobar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen re 161 First MOTION to Stay Discovery and Litigation Following Completion of Written Discovery (Attachments: # 1 Declaration Declaration of Counsel, # 2 Exhibit, # 3 Certification Certification of Service)(POMAR, OLGA) (Entered: 04/01/2013)
164 REPLY BRIEF to Opposition to Motion filed by TOWNSHIP OF MOUNT HOLLY re 161 First MOTION to Stay Discovery and Litigation Following Completion of Written Discovery (MALEY, M.) (Entered: 04/08/2013)
165 Letter from M. James Maley, Jr.. (MALEY, M.) (Entered: 04/08/2013)
166 Letter from Plaintiffs' Counsel re 165 Letter. (POMAR, OLGA) (Entered: 04/08/2013)
167 ORDER GRANTING 166 Letter from Plaintiffs' Counsel re 165 Letter. Signed by Magistrate Judge Joel Schneider on 4/9/2013. (drw) (Entered: 04/09/2013)
168 ORDER GRANTING 165 Letter from M. James Maley, Jr. Responses to the outstanding discovery requests due by 5/8/2013. Signed by Magistrate Judge Joel Schneider on 4/9/2013. (drw) (Entered: 04/09/2013)
169 Minute Entry for proceedings held before Magistrate Judge Joel Schneider: Status Conference held on 4/18/2013, Hearing on defendant's 161 MOTION to Stay Discovery and Litigation Following Completion of Written Discovery. Ordered Motion DENIED. Order to be entered. Settlement Conference held off the record. (CD #566.) (tf, ) (Entered: 04/18/2013)
170 TEXT ORDER denying 161 Motion to Stay −− For the reasons stated on the record after oral argument on April 18, 2013, it is hereby ORDERED that the motion of the Mt. Holly defendants to stay depositions following the completion of written discovery is DENIED without prejudice. Mt. Holly may renew its motion, if applicable, after written discovery is completed. Ordered by Magistrate Judge Joel Schneider on 4/19/13. (Schneider, Joel) (Entered: 04/19/2013)
171 AMENDED SCHEDULING ORDER: Defts are GRANTED leave to serve a supplemental brief re. their request for a protective order by 5/8/2013; Responses due by 5/15/2013. Signed by Magistrate Judge Joel Schneider on 4/23/2013. (drw) (Entered: 04/23/2013)
172 LETTER ORDER addressed to Counsel re: Schedule of meetings to address settlement related issues. Signed by Magistrate Judge Joel Schneider on 4/23/2013. (drw) (Entered: 04/24/2013)
173 TEXT ORDER Upon letter application of counsel, the Court has rescheduled the meeting with plaintiffs' counsel previously set on June 6, 2013 at 2:00 p.m. The new date and time of this meeting is June 13, 2013 at 10:30 a.m. Ordered by Magistrate Judge Joel Schneider on April 30, 2013. (jk) (Entered: 04/30/2013)
174 RESPONSE re 158 Letter. (Attachments: # 1 Affidavit of Marcia Holt, # 2 Affidavit of M. James Maley, Jr., # 3 Exhibit A to Maley Cert, # 4 Exhibit B to Maley Cert, # 5 Exhibit C to Maley Cert, # 6 Exhibit D to Maley Cert, # 7 Exhibit E to Maley Cert, # 8 Exhibit F to Maley Cert, # 9 Exhibit G to Maley Cert, # 10 Exhibit H to Maley Cert, # 11 Exhibit I to Maley Cert, # 12 Exhibit J to Maley Cert, # 13 Exhibit K to Maley Cert, # 14 Exhibit L to Maley Cert, # 15 Exhibit M to Maley Cert, # 16 Exhibit N to Maley Cert, # 17 Exhibit O to Maley Cert, # 18 Exhibit P to Maley Cert, # 19 Exhibit Q to Maley Cert, # 20 Exhibit R to Maley Cert)(MALEY, M.) (Entered: 05/08/2013)

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 30 of 33

05/09/2013
05/10/2013
05/10/2013 05/20/2013
05/21/2013 05/22/2013 05/23/2013 05/24/2013 05/30/2013 06/13/2013

175 LETTER Request for an Extension of Time to File Response/Reply as to 174 Response (NOT Motion),, by ANA AROCHO, PEDRO AROCHO, REYNALDO AROCHO, Radames Burgos, BERNICE CAGLE, LEON CALHOUN, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., VINCENT MUNOZ, ELMIRA NIXON, Angelo Nieves, Dolores Nixon, LEONARDO PAGAN, James Potter, ROSEMARY ROBERTS, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, Phyllis Singleton, TAISHA TIRADO, LILLIAN TORRES−MORENO, Robert Tigar, Flavio Tobar, Marlene Tobar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen. (POMAR, OLGA) Modified on 5/10/2013 to correct the entry (drw). (Entered: 05/09/2013)
CLERK'S QUALITY CONTROL MESSAGE − The LETTER REQUEST− DOC #175 filed by O. POMAR on 5/9/2013 was submitted incorrectly using the event Motion. Please be advised, for future filings, a Letter Request should be submitted using the event *LETTER* found under the *OTHER DOCUMENTS* menu; only formal motions are to be submitted using the event Motions. This message is for informational purposes only, it is NOT necessary to resubmit. This submission will remain on the docket unless otherwise ordered by the court. (drw) (Entered: 05/10/2013)
176 ORDER granting 175 Request for an Extension of Time to File Response/Reply as to 174 Response. Reply due by 5/20/2013. Signed by Magistrate Judge Joel Schneider on 5/10/2013. (drw) (Entered: 05/10/2013)
177 RESPONSE BRIEF re Protective Order by ANA AROCHO, PEDRO AROCHO, REYNALDO AROCHO, Maria Arocho, Vivian Brooks, Radames Burgos, BERNICE CAGLE, LEON CALHOUN, DOROTHY CHAMBERS, GEORGE CHAMBERS, SANTOS CRUZ, ELIDA ECHEVARIA, NORMAN HARRIS, MATTIE HOWELL, NANCY LOPEZ, MT HOLLY GARDENS CITIZENS IN ACTION, INC., VINCENT MUNOZ, ELMIRA NIXON, Angelo Nieves, Dolores Nixon, LEONARDO PAGAN, James Potter, ROSEMARY ROBERTS, EFRAIM ROMERO, HENRY SIMONS, JOYCE STARLING, Phyllis Singleton, TAISHA TIRADO, LILLIAN TORRES−MORENO, Robert Tigar, Flavio Tobar, Marlene Tobar, DAGMAR VICENTE, CHARLIE MAE WILSON, LEONA WRIGHT, Alandia Warthen, Sheila Warthen. (Attachments: # 1 Certificate of Service)(POMAR, OLGA) Modified on 5/21/2013 (dmr, ). (Entered: 05/20/2013)
CLERK'S QUALITY CONTROL MESSAGE − The Response Brief 177 filed by Plaintiffs on 5/20/2013 was submitted incorrectly as a Motion. The Motion event should only be used when filing a formal motion. This document should have been filed using the "Brief" event found under Responses and Replies. This submission will remain on the docket and is not necessary to resubmit unless otherwise ordered by the court. This message is for informational purposes only. (dmr) (Entered: 05/21/2013)
NOTICE of CANCELLATION OF HEARING: Status Conference previously set for 6/12/2013 2:00 PM in Camden − before Judge Noel L. Hillman is cancelled and will be rescheduled to a date and time to be set by the Court. (gn) (Entered: 05/22/2013)
178 Letter from Plaintiffs' counsel regarding written discovery status re 167 Order. (POMAR, OLGA) (Entered: 05/23/2013)
179 ORDER re: Pltf's request for an extension of time to complete written discovery. Signed by Magistrate Judge Joel Schneider on 5/24/2013. (dmr) (Entered: 05/24/2013)
Minute Entry for proceedings held before Magistrate Judge Joel Schneider: Settlement Conference held on 5/30/2013. (se, ) (Entered: 05/31/2013)
180 TEXT ORDER −− It is hereby ORDERED that by June 19, 2013, plaintiffs shall a serve a list of each current plaintiff in the case, listing whether they are a current or former owner or tenant, the current or former address, whether they are deceased, whether the plaintiff requests to be dismissed, whether the plaintiff is missing, etc..

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 31 of 33

06/13/2013
06/13/2013 06/14/2013 06/18/2013 06/19/2013
06/19/2013 06/20/2013 06/24/2013
06/24/2013
07/12/2013 07/15/2013 08/05/2013 08/06/2013
08/15/2013 08/26/2013 09/26/2013 10/01/2013

The Court prefers a list in chart form. Ordered by Magistrate Judge Joel Schneider on 6/13/13. (Schneider, Joel) (Entered: 06/13/2013)
181 TEXT ORDER The Court has scheduled a telephone status conference on June 19, 2013 at 4:00 p.m. The purpose of the call is to discuss preparations for the conference on June 20, 2013. Plaintiffs' counsel shall arrange the call. Ordered by Magistrate Judge Joel Schneider on June 13, 2013. (jk) (Entered: 06/13/2013)
Minute Entry for proceedings held before Magistrate Judge Joel Schneider: Settlement Conference held on 6/13/2013. (se, ) (Entered: 06/14/2013)
Minute Entry for proceedings held before Magistrate Judge Joel Schneider: Settlement Conference held on 6/14/2013. (se, ) (Entered: 06/18/2013)
182 Letter from Plaintiff's counsel re Plaintiff Status List re 180 Order on Oral Motion,. (Attachments: # 1 Exhibit Plaintiff Status List)(POMAR, OLGA) (Entered: 06/18/2013)
183 TEXT ORDER: ORDERED that pursuant to the March 22, 2012 Mandate of the Third Circuit Court of Appeals, reversing and remanding this Court's January 3, 2011 Opinion &Order, the Third Circuit's Mandate is implemented, and this action is reinstated in accordance with the Mandate. re 125 USCA Mandate. Ordered by Judge Noel L. Hillman on 6/19/2013. (gn) (Entered: 06/19/2013)
Minute Entry for proceedings held before Magistrate Judge Joel Schneider: Telephone Status Conference held on 6/19/2013. (se, ) (Entered: 06/20/2013)
Minute Entry for proceedings held before Magistrate Judge Joel Schneider: Settlement Conference held on 6/20/2013. (se, ) (Entered: 06/21/2013)
184 ORDER staying all current discovery deadlines until further Order of the Court. Pltfs Maria Arocho, Taisha Tirado, and Leonardo Pagan shall respond to Defts' interrogatories and document requests by 7/15/2013. Signed by Magistrate Judge Joel Schneider on 6/24/2013. (drw) (Entered: 06/24/2013)
185 MEMORANDUM OPINION AND ORDER denying Mt. Holly's 158 Letter Brief. Parties shall serve the Court w/ an agreed upon Discovery Confidentiality Order by 7/15/2013. Signed by Magistrate Judge Joel Schneider on 6/24/2013. (drw) (Entered: 06/24/2013)
186 Letter from Counsel re 184 Order,. (POMAR, OLGA) (Entered: 07/12/2013)
187 AMENDED SCHEDULING ORDER: In−person Status Conference set for 9/20/2013 @ 10:30 AM before Magistrate Judge Joel Schneider. Signed by Magistrate Judge Joel Schneider on 7/15/2013. (drw) (Entered: 07/15/2013)
188 Letter from plaintiffs' counsel re 187 Scheduling Order. (POMAR, OLGA) (Entered: 08/05/2013)
189 TEXT ORDER Upon letter application of counsel, the Court has rescheduled the status conference previously set on September 20, 2013. The new date and time for the in−person status conference is October 1, 2013 at 10:00 a.m. All other present scheduling deadlines shall remain in place. Ordered by Magistrate Judge Joel Schneider on August 6, 2013. (jk) (Entered: 08/06/2013)
190 Letter from counsel re 187 Scheduling Order. (POMAR, OLGA) (Entered: 08/15/2013)
191 STIPULATION of Dismissal as to Plaintiff, Henry A. Simons, only, by TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY. (CAPPELLI, LOUIS) (Entered: 08/26/2013)
192 Letter from Counsel re 187 Scheduling Order. (POMAR, OLGA) (Entered: 09/26/2013)
Minute Entry for proceedings held before Magistrate Judge Joel Schneider: Settlement Conference held on 10/1/2013. (se, ) (Entered: 10/02/2013)

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 32 of 33

10/21/2013 10/24/2013
10/24/2013 10/25/2013 10/25/2013
10/29/2013
11/04/2013 11/08/2013
11/12/2013 11/14/2013
11/15/2013
11/15/2013 11/15/2013 11/15/2013 11/15/2013 11/15/2013 11/15/2013

Minute Entry for proceedings held before Magistrate Judge Joel Schneider: Telephone Status Conference held on 10/21/2013. (se, ) (Entered: 10/25/2013)
193 TEXT ORDER −− With the consent of all parties; and good cause appearing for the entry of this Order, it is hereby ORDERED that by November 7, 2013, plaintiffs are granted leave to file and serve an amended complaint to add four (4) new plaintiffs and to substitute estates for the deceased plaintiffs. Ordered by Magistrate Judge Joel Schneider on 10/24/13. (Schneider, Joel) (Entered: 10/24/2013)
194 Letter from M. James Maley. (MALEY, M.) (Entered: 10/24/2013)
195 LETTER ORDER addressed to Mr. Maley in response to 194 Letter. Signed by Magistrate Judge Joel Schneider on 10/25/2013. (drw) (Entered: 10/25/2013)
196 ORDER TO SHOW CAUSE directing Pltfs to appear in person for a Show Cause Hearing on 11/12/2013 @ 2:00 PM in Camden − Courtroom 3A before Judge Noel L. Hillman. Signed by Magistrate Judge Joel Schneider on 10/25/2013. (drw) (Entered: 10/25/2013)
197 TEXT ORDER The Court has scheduled a telephone conference on November 4, 2013 at 4:00 p.m. The purpose of the telephone conference is to discuss the status of the case. Plaintiffs' counsel shall initiate the telephone call. Ordered by Magistrate Judge Joel Schneider on October 29, 2013. (jk) (Entered: 10/29/2013)
198 Minute Entry for proceedings held before Magistrate Judge Joel Schneider: Telephone Status Conference held on 11/4/2013. (CD #588.) (drw) (Entered: 11/06/2013)
199 TEXT ORDER: ORDERED that pursuant to the request of the parties, the hearing scheduled for Tuesday, November 12, 2013 at 2pm before the Hon. Noel L. Hillman shall be converted from an Order to Show Cause hearing to an In−Person status conference. re 196 Order to Show Cause. Ordered by Judge Noel L. Hillman on 11/8/2013. (gn) (Entered: 11/08/2013)
200 Minute Entry for proceedings held before Judge Noel L. Hillman: Status Conference held on 11/12/2013. (drw) (Entered: 11/12/2013)
201 TEXT ORDER: ORDERED that the parties shall appear before the Hon. Noel L. Hillman, U.S.D.J. at 2:00 p.m., Friday, November 15, 2013 in Courtroom 3A for an in−person case status conference. Ordered by Judge Noel L. Hillman on 11/14/2013. (gn ) (Entered: 11/14/2013)
202 Minute Entry for proceedings held before Judge Noel L. Hillman: Final Settlement Approval Hearing held on 11/15/2013. Court retains jurisdiction for a period of six years until December 31, 2019. All parties stipulate to the following executed documents to be filed with the Clerk: Consent Order for leave to amend complaint, Fourth Amended complaint, Stipulations of Dismissal, and Stipulation and Order of Dismissal with prejudice and attached settlement agreement to be filed. (Court Reporter/Recorder Carol Farrell.) (drw) (Entered: 11/15/2013)
203 CONSENT ORDER FOR LEAVE TO AMEND COMPLAINT. Signed by Judge Noel L. Hillman on 11/15/2013. (Attachments: # 1 4th Amended Complaint)(drw) (Entered: 11/15/2013)
204 FOURTH AMENDED COMPLAINT against All Defendants, filed by MT HOLLY GARDENS CITIZENS IN ACTION, INC., et al. (drw) (Entered: 11/15/2013)
205 STIPULATION of Dismissal as to Christine Barnes. (drw) (Entered: 11/15/2013)
206 STIPULATION of Dismissal as to Dolores Nixon. (drw) (Entered: 11/15/2013)
207 STIPULATION of Dismissal as to Efrain Romero. (drw) (Entered: 11/15/2013)
208 STIPULATION of Dismissal as to the Estate of Vivian Brooks. (drw) (Entered: 11/15/2013)

Case: 1:08-cv-2584 As of: 08/05/2014 10:32 AM EDT 33 of 33

11/15/2013 11/15/2013 11/15/2013 11/15/2013 11/15/2013 11/15/2013 11/15/2013
11/15/2013

209 STIPULATION of Dismissal as to Mario Arocho. (drw) (Entered: 11/15/2013)
210 STIPULATION of Dismissal as to the Estate of Radames Torres. (drw) (Entered: 11/15/2013)
211 STIPULATION of Dismissal as to the Estate of William Roberts. (drw) (Entered: 11/15/2013)
212 STIPULATION of Dismissal as to Leonardo Pagan. (drw) (Entered: 11/15/2013)
213 STIPULATION of Dismissal as to Radames Torres Burgos. (drw) (Entered: 11/15/2013)
214 STIPULATION of Dismissal as to Taisha Tirado Pagan. (drw) (Entered: 11/15/2013)
215 STIPULATION AND ORDER OF DISMISSAL W/ PREJUDICE. Signed by Judge Noel L. Hillman on 11/15/2013. (Attachments: # 1 Settlement Agreement Part 1, # 2 Settlement Agreement Part 2, # 3 Settlement Agreement Part 3, # 4 Settlement Agreement Part 4)(drw) (Entered: 11/15/2013)
***Civil Case Terminated. (drw) (Entered: 11/15/2013)

 
 PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 11-1159 _____________
MT. HOLLY GARDENS CITIZENS IN ACTION, INC., a New Jersey non-profit corporation; PEDRO AROCHO; REYNALDO AROCHO; ANA AROCHO; CHRISTINE BARNES; BERNICE CAGLE; LEON CALHOUN; GEORGE CHAMBERS; DOROTHY CHAMBERS; SANTOS CRUZ; ELIDA ECHEVARIA; NORMAN
HARRIS; MATTIE HOWELL; NANCY LOPEZ; VINCENT MUNOZ; ELMIRA NIXON; LEONARDO PAGAN;
ROSEMARY ROBERTS; WILLIAM ROBERTS; EFRAIM ROMERO; HENRY SIMONS; JOYCE STARLING;
TAISHA TIRADO; VIVIAN BROOKS; ANGELO NIEVES; DOLORES NIXON; ROBERT TIGAR; JAMES POTTER;
RADAMES TORRES-BURGOS; LILLIAN TORRESMORENO; DAGMAR VICENTE; CHARLIE MAE WILSON; LEONA WRIGHT; MARIA AROCHO;
PHYLLIS SINGLETON; FLAVIO TOBAR; MARLENE TOBAR; SHEILA WARTHEN; ALADIA WARTHEN,
Appellants,
v.
TOWNSHIP OF MOUNT HOLLY, a municipal corporation of the State of New Jersey; TOWNSHIP COUNCIL OF
TOWNSHIP OF MOUNT HOLLY, as governing body of the
1

Township of Mount Holly; KATHLEEN HOFFMAN, as Township Manager of the Township of Mount Holly;
KEATING URBAN PARTNERS L.L.C., a company doing business in New Jersey; TRIAD ASSOCIATES, INC., a corporation doing business in New Jersey; JULES K. THIESSEN, as Mayor of the Township of Mount Holly. _____________
On Appeal from the United States District Court for the District of New Jersey
(D.C. Civil Action No. 1:08-02584) District Judge: The Honorable Noel L. Hillman
_____________
Argued July 14, 2011 _____________
Before: SLOVITER, FUENTES, and FISHER, Circuit Judges
(Opinion Filed: September 13, 2011)
Olga D. Pomar, Esq. (Argued) South Jersey Legal Services, Inc. 745 Market Street Camden, NJ 08102
Susan Ann Silverstein, Esq. AARP Foundation Litigation 601 E Street, NW Washington, DC 20049
William R. Potter, Esq.
2

Potter & Dickson 194 Nassau Street Princeton, NJ 08542
Counsel for Appellants
M. James Maley, Jr., Esq. (Argued) Emily K. Givens, Esq. Erin E. Simone, Esq. M. Michael Maley, Esq. Maley & Associates, P.C. 931 Haddon Avenue Collingswood, NJ, 08108
Counsel for Appellees, Township of Mount Holly, Township Counsel of Mount Holly, Kathleen Hoffman, and Jules Thiessen
Gaetano Mercogliano, Esq. Neal A. Thakkar, Esq. Sweeney & Sheehan, P.C. 216 Haddon Avenue, Suite 500 Westmont, NJ 08108
Counsel for Appellee, Triad Associates, Inc.
William J. DeSantis, Esq. Ballard Spahr 210 Lake Drive East Cherry Hill, NJ 08002
Counsel for Appellee, Keating Urban Partners, L.L.C.
3

Thomas E. Perez, Esq. Dennis J. Dimsey, Esq. April J. Anderson, Esq. Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403
Counsel for Amicus Curiae United States of America
_____________
OPINION OF THE COURT _____________
FUENTES, Circuit Judge.
Mount Holly Township (the “Township”) has proposed a redevelopment plan that would eliminate the existing homes in its Gardens neighborhood, occupied predominantly by low-income residents, and replace them with significantly more expensive housing units. Appellants, an association of Gardens residents organized under the name Mt. Holly Gardens Citizens in Acti on, and 23 current and former residents of the neighbo rhood (collectively the “Residents”) filed suit against t he Township alleging violations of various anti-discrimination laws.
Before the Township filed an Answer or discovery on these allegations had taken place, the Distric t Court granted summary judgment to the Township. Because the District
4

Court misapplied the standard f or deciding whether the Residents could establish a prima facie case under Title VIII and because it did not draw a ll reasonable inferences in the Residents’ favor, we will reverse.
I.1
The homes in this di spute are located in a 30-acre neighborhood called t he Gardens in the To wnship of Mount Holly in Burlington County, New Jersey. The Gardens is the only neighborhood in the Township comprised predominantly of African-American and Hispanic residents. It is poor— almost all of its re sidents earn less than 80% of the area’ s median income; with most earning much less.
The 3292 homes in th e Gardens are predominantly two-story buildings made out of solid brick. Built in the 1950s, the homes are attached in rows of 8 to 10 and are set back from the curving streets to allow for front and back yards, with alleys running behind each housing block. Two major commercial districts abut oppo site sides of the neighborhood, which is only a mile away from the major
1 Because this is an appeal from a motion granting summary judgment, we examine the record evidence in the light most favorable to the non -moving parties, here the Residents, while resolving all reas onable inferences in th eir favor. Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
2 The record inconsistently describes the number of homes as 327 or 329. (JA 61, 776, 1114).
5

downtown business district. Until 2004, th e neighborhood was also home to a playground and a community center.
The 2000 census provides a sn apshot of the neighborhood.3 According to that data, the Gardens neighborhood was s plit evenly between rental properties (with a median rental price of $705 per m onth) and homeowners (the median cost of homeownership was $969 per month). Eighty-one percent of the homeowners had lived in their homes for at least 9 years; 72% of renters had lived there for at least five years. Of the 1,031 4 residents living in the neighborhood, 203, or 19.7%, were non -Hispanic Whites; 475, or 46.1% were African-Americans; and 297, or 28.8% were Hispanic, the highest concentration of minority residents within Mt. Holly. Almost all of these residents were classified as “low income”; indeed, most were classified as having “very low” or “extremely low” incomes.
3 The parties dispute the utility of data f rom the 2000 census. However, none of the parties has briefed or even asked the question of when precisely the violations at issue in this case beg an. T his issue is important because th e redevelopment process began in 200 2 and, as a result, the demographics of the t ownship have chang ed. Disputes over which census numbers to use thus c reate a moving target; however, the 2000 ce nsus data appears to p rovide the most accurate demographic data at th e inception of the redevelopment process.
4 This is an approximate number provided by the Residents’ expert. Elsewhere in the record, the neighborhood is described as home to 1,605 people. (JA 1114).
6

The neighborhood was not perf ect. For o ne, it was crowded. This created a parkin g shortage, which le d residents to pave their backyards for use as driveways, which, in turn, led to drainage problems. In addition, the fact that the homes were owned in fee simple meant there was no one with a vested interest in maintaining common spaces, such as the alleys. Some of the owners were nothing more than absentee landlords, renting to individuals with little interest in maintaining the pro perties. Over t he years, many of the properties fell into disrepair. Vacant properties were boarded up, some yards filled with rubbish, and parts of the area became blighted. Because the houses were connected to one another, the dilapidation of one hou se could and so metimes did lead to the d ecay of the adjoining house s. F inally, the dense population, narrow streets, and vacant properties facilitated crime. I n 1999, 28% of crimes in the To wnship occurred in the Gar dens, even thoug h that neighborhood covers only 1.5% of the Township’s land area.
These many problems were not ignored. Local community activists and business leaders worked to revitalize the Gardens through a private initiative that eventually came to be known as “Mt. Holl y 2000.” This community endeavor sought to reverse the neighborhood’s decline by rehabilitating properties and i ncreasing social services. Despite sporadic achievements—ten homes were renov ated and a community policing center was established—the neighborhood’s problems continued.
In the year 2000, the Township commissioned a study to determine whether the Gardens should be designated as an “area in need of redevelopment” under New Jerse y’s redevelopment laws. The resulting report, issued on
7

November 8, 2000 concluded that the area offered a “significant opportunity for redevelopment” because of blight, excess land coverage, poor land use, and excess crime. (JA 699). That same year, the Town ship began to acquire properties in the Gardens. Those properties were left vacant.
A series of redevelopment plans followed. In 2003, the Township issued the Gardens Area Redevelopment Plan (“GARP”). This plan called for the demolition of all of the homes in the neighb orhood and the permanent or temporary relocation of all of it s residents. In their place, the plan provided for the construction of 180 new market-rate housing units, thirty of which would be ava ilable only to seni or citizens. The plan was changed in 2005 to include a parcel of land immediately north of the Garden s. This plan, th e West Rancocas Redevelopment Plan, also called for the destruction of most of the original Gardens homes, to be replaced with 228 new residential un its composed of two-family dwellings and townhouses. Unlike the GARP, the West Rancocas plan provided for the optional rehabilitation of some of the original Gardens homes and allowed for the residents of those rehabilitated units to be temporarily relocated in phases so that they could remain in the neighborho od. The West Rancocas plan also co ntemplated that 10 % of the 228 units would be designated as affordable housing. Finally, in 2008, the plan was changed again. This time, the Revised West Rancocas Redevelopment Plan called f or construction of up to 520 houses, 7 5% of which could be to wnhouses and 50 % of which could be apart ments. The revise d plan called f or only 56 deed-restricted affordable housing units, 11 of which would be offered on a priorit y basis to existing Garden s residents. This revised plan did not include an y rehabilitation of existing units.
8

At each stage of the process, many Gardens residents objected to the redevelop ment, complaining about the destruction of their neighborhoo d and expr essing fear that they would not be able to afford to live an ywhere else in the Township. One resid ent complained that th e house next to hers was torn d own and that a bulldo zer had hit her ho me, tearing the wall, crack ing the c eiling, and sh ifting her roof . (JA 577-78, 1001). Another resident, a 70-year-old disabled homeowner, told the Township’s Planning Board that, were he displaced, he would be unable to work and unable to afford a new home. ( JA 1002). At one meeting in 2005, a planning expert testified that the West Rancocas plan was deficient because it onl y allowed rehabilitation as an option, without requiring or e ven encouraging it. He also said that 90% of the Gardens’ existing residents would not be able to afford the newly-constructed homes and co mplained that the plan did not provi de an estimate of affordable housing in the existing market for displaced residents. (JA 990, 1117).
Despite these co mplaints, work on the develop ment continued. In February 2006 Keating Urban Partners, L LC, was chosen as t he plan developer. Kea ting, in turn, hired Triad to d evelop a relocation plan. That plan, the Workable Relocation Assistance Plan (“WRAP”), was submitted to the New Jersey Department of Community Affairs on September 28, 2006 and provided that all residents living in the Garde ns on August 1, 2006 would receive relocation assistance. Qualified homeowners would receive $15,000 and a $20, 000 no-interest loan to assist in t he purchase of a replacement home. The Township offered to buy homes for between
9

$32,000 and $49,000.5 The estimated cost of a new ho me in the development was between $200,000 and $275,000, well outside the range of affordability for a significant portion of the African-American and Hisp anic residents of the Township.
Renters were a uthorized to receive up to $7,500 of relocation assistance, but were n ot eligible for relocation funds to return to the Gardens. In any case, the vast majority of those renters would be unable to aff ord the proposed market-rate rent of $1,230 per month. Eventually, the Township paid to relocate 62 f amilies, 42 o f which m oved outside of Mt. Holl y Township. Renters who m oved often had to pay more in rent at their new homes.
Although the redevelopment plan called for building in phases, the Township began to acquire and demolish all of the homes in the Gardens , thereby displacing many residents and creating conditions that encouraged the remaining residents to leave. By August 2008, 75 ho mes had been destroyed and 148 homes had been a cquired and left vacant. Later that f all, the Township de molished 60 more ho mes. And , in the summer of 2009, 50 more homes were knocked down. Residents living amongst the destruction were forced to cope with noise, v ibration, dust, and de bris. W orse, the interconnected nature of the houses triggered a casc ading array of problems. Uninsulated interior walls were expo sed to the o utside and c overed with unsightly stucco or tar. B ut these coatings did not extend below grade, allowing moisture to seep into s ubterranean crawl s paces, creating an
5 One home sold f or $64,000 and another sold for $81,000.
10

environment for mold problems. Above, the demolitions opened the roof s of adjoining homes. Those openings were patched with pl ywood, which was insuf ficient to stop water leaks. Around the n eighborhood, homes bore the sca rs of demolition: hanging wires and telephone boxes, ragged brick corners, open masonry joints, rough surfaces, irregular plywood patches, and damaged porches, floors and ra ilings. Destruction of the sidewalks out side demolished homes further contributed to the disarra y by making it diff icult to navigate through the neighborho od. By June 2011, onl y 70 homes remained under private owner ship and the Townsh ip was in the process of demolishing 52 properties that it ha d acquired. These conditions discouraged any attempt at rehabilitating the nei ghborhood and encouraged existing residents to sell their homes for less tha n they otherwise might have been worth.
In October 2003, Citizens in Action filed a suit in state court alleging violations of New Jersey’s redevelopment laws and procedures, and various a nti-discrimination laws. Ultimately, the New Jersey Superior Court dismissed some counts and granted summary judgment to th e Township on the others, concluding that there was no violation of New Jersey law, t hat the area was blig hted, and that the ant idiscrimination claims were not ripe because the plan had not yet been implemented. The Appellate Division affirmed, and the New Jersey Supreme Court denied a petition for certiorari.
The Residents filed suit in the District Court on May 27, 2008, raising the a nti-discrimination claims that ha d not been ripe in their state suit. The f ederal complaint alleged, among other thing s, violations of the Fair Housing Act (the
11

“FHA”), Title VIII of the Civil Rights Act of 1968; the Civil Rights Act of 1866, as codified at 42 U.S.C. § 19826; and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.7 The Residents asked for declaratory and injun ctive relief to sto p the redevelopment plan, as well as da mages or compensatio n that would allow Gardens residents to obtain housing in the Township. The Residents’ motion for a prel iminary injunction was denied. After they filed an Amended Complaint, the Township, along with the other n amed defendants, filed motions to dis miss. The District Court converted these into motions for summary judgment and, after allowing the parties time to brief the motions, granted summary judgment to the T ownship defendants. The District Court ruled that there was no prima facie case of discrimination under the FHA and that, even if there was, the Residents had not shown ho w an alternative course of action would have had a lesser impact.
The Residents filed a timely appeal and we granted the Residents’ motion to stay redevelopment pending this appeal. We have jurisdiction under 28 U.S.C. § 1291.
II.
6 42 U.S.C. § 1982 pro vides that “[ a]ll citizens of the United States shall have the sa me right, in every State and Territory, as i s enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and conve y real and personal property.”
7 Section 1 of the Fourteenth Amendment provides in pertinent part that “[ n]o State shall . . . den y to any person within its jurisdiction the equal protection of the laws.”
12

We exercise plenary review over a D istrict Court’s ruling on summary judgment. See Disabled in Action of Pennsylvania v. Se. Pennsylvania Transp. Auth., 635 F.3d 87, 92 (3d Cir. 2011). “S ummary judgment is appropriate onl y where, drawing all r easonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact . . . and the moving party is e ntitled to judgment as a matter of law.” Id. (quoting Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010)).
The FHA makes it unlawful to “refuse to sell or rent . . . or other wise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, f amilial status, or national origin.” 42 U.S.C. § 3604(a). A dwelling can be made otherwise unavailable by, among other things, action that limits the availability of affordable housing. See, e.g., Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 928-29, 938-39 (2d Cir. 198 8); Smith v. Town o f Clarkton, 682 F.2d 1055, 1059, 1062-64 (4th Cir. 1982); Resident Advisory Bd. v. Rizzo , 564 F .2d 126, 130 (3d Cir. 1977). The FHA can be v iolated by either intentional discrimination or if a practice h as a di sparate impact on a protected class. Cmty. Serv., Inc. v. W ind Gap Mun. Auth. , 421 F.3d 170, 176 (3d Cir. 2005).
Disparate impact claims, which do not require proof of discriminatory intent, see Rizzo, 564 F .2d at 147-48, permit federal law to reach “[c]onduct that h as the necessary and foreseeable consequence of perpetuating segregation[, which] can be as deleterious as purposefully discriminatory conduct in frustrating the national commitment to rep lace the ghettos by truly integrated and balanced living patterns.” Metro.
13

Hous. Dev. C orp. v. Vill. of Arlin gton Heights, 558 F. 2d 1283, 1289-90 (7th Cir. 1977). In order to determine whether action of this sort was “because of race” we look to see if it had a “racially discriminatory effect,” i.e., whether it disproportionately burdened a particular racial group so as to cause a disparate impact. Rizzo, 564 F.2d at 146-48; see also Lapid-Laurel, LLC v. Zoning Bd. of Adjust ment of Twp. of South Plains, 284 F.3d 442, 466-67 (3d Cir. 2002) (featuring claims of a dis parate impact on handicapped persons in violation of 42 U.S.C. § 3604(f)). This is called a prima facie case of discrimination. Rizzo, 564 F.2d at 1 48 & n.31. If such a c ase is established, then we look to see whether the defendant has a legitimate, non-discriminatory reason for its actions. Id. at 148. If it does, the defendant must then also establish that “no alt ernative course of action could be adopted that would en able that interest to be served with less discriminatory impact.” Id. at 149. Finally, if the defendant makes this showing, the burden once again shifts to thos e challenging the a ction, who must demonstrate that the re is a less discriminatory way to advance the defendant’s legitimate interest. Id. at 149 n.37.
A.
When viewed in th e light most favorable to the Residents, the evidence submitted by the Residents was sufficient to e stablish a prima facie case. “[N]o single t est controls in measuring disparate impact,” but the Residents must offer proof of disproportionate impact, measured in a plausible way. Hallmark Developers, Inc. v. Fulton Cnty., 466 F.3d 1276, 1286 (11th Cir. 2006). Typically, “a disparate impact is demonstrated by statistics,” id. at 1286, and a prima facie case may be established where “gross statistical
14

disparities can be sho wn.” Hazleton Sch. Dist. v. United States, 433 U.S. 299, 307-08 (1977). According to the data in the 2000 cens us conducted before the rede velopment plan began, 22.54% of African-American households and 32.31% of Hispanic hou seholds in Mo unt Holly will be af fected by the demolition of the Gardens. The sa me is true f or only 2.73% of White households. In short, the Residents’ statistical expert has calculated that African-Americans would be 8 times more likely to be affected by the project than Whites, and Hispanics would be 1 1 times more likely to be affected. F urthermore, the 2000 data showed that onl y 21% of African-American and Hispanic ho useholds in Burlington County would be able to af ford new market-rate housing in the Gardens, compared to 79% of White households.
The District Court’s first error wa s in reje cting the Residents’ statistical submissions, which should have been taken in the light most favorable to the m at this stage in t he proceedings. These statistics, like those pr esented in Rizzo and other prominent housing discrimination cases, show a disparate impact. In Rizzo, the plaintiffs presented evidence that, of the 14,000-15,000 people on a waitin g list for public housing, 85% w ere black and 95% were of a minority background. 564 F.2d at 142. Under these circumstances, we concluded that the ca ncellation of a public housing pro ject had a “racially disproportionate effect, adverse to Blacks and other minorities in Philadelphia.” Id. Similarly, the plaintiffs in the Second Circuit case of Huntington Branch used statistics showing that while onl y 7% of the residents in a town required subsidized affordable housing, 24% of that town’s Black residents required such housing, which meant that Black residents were three ti mes more likely to be affected by a sh ortage of affordable housing. 844 F.2 d at
15

929. And in Keith v. Volpe, the Ninth Circuit concluded that the FHA was violated where a blocke d housing project h ad twice the adverse impact on minorities. 85 8 F.2d 467, 484 (9th Cir. 1988). Th e disparate impact here, while not as extreme as the impact in Rizzo, is si milar to or greater than the disparate impact found sufficient to establish a prima facie case elsewhere. Under these circumstances, the District Court erred in granting summary judgment to the Township.
Further, the District Court’s challenge to these statistics in a f ootnote did not make the appropriate inferences. (JA 15 -16 n.9). Instead, the District Co urt challenged the statistical analysis underlying the 21% f igure of Burlington Cou nty minority residents who could af ford units the rede veloped Gardens as both too b road, because i t took account of the entire population of Burlington County, and too narro w because it f ailed to consider minorities outside the county who might move in.
In addition, the Distr ict Court said the 21% f igure did not take int o account the f act that 56 of the units in t he Revised West Rancocas Plan woul d be designated as affordable housing. But the District Court’s analysis failed to take into account the Residents’ evidence that these units, although labeled “affordable,” would be out of reach for almost all of the Gardens residents.
The District Court also said that the statistics failed to take into account non-minority purchasers who might rent to minorities. But, un less those purchase rs offered belowmarket rents, this w ould not af fect the inference that the project had a disproportionate effect on Blacks and Hispanics who would be unable to afford market-rate units.
16

As to the District Court’s concern that the statistics did not take into account minorities who might move elsewhere in Mount Holly, the Residents’ expert opined that affordable housing in t he Township was scarce , and that most Gardens residents would not be able to aff ord market-rate units elsewhere in the Township.
Lastly, the District Court erred when it rejected a reasonable inference in favor of the Residents b y looking at the absolute number of African-American and Hispa nic households in Burlington County that could afford homes. Instead, the District Court should have looked to see whether the African-American and H ispanic residents were disproportionately affected by the redevelopment plan. See Huntington, 844 F.2d at 938 (“By relying on ab solute numbers rather tha n on proportiona l statistics, the district court significantly underestimated the disproportionate impact of the Town’s policy.”); Hallmark Developers, 466 F.3d at 1286 (“[I]t may be inappropriate to rely on absolute numbers rather than on pro portional statistics.”) (quoting Huntington, 844 F.3d at 928.).8
There is another probl em. The District Court’s most troubling error is its conflation of the conc ept of disparate treatment with disparate impact. The District Court essentially agreed with the Township that because 100% of minorities in the Gardens will be treated the same as 100% of non-minorities in the Gardens, the Re sidents failed to prove
8 The Department of Justice filed an amicus curiae brief agreeing that the District Court erred in its disparate impact prima facie case analysis.
17

there is a greater ad verse impact on minorities. This was in error. We need not simply ask whether the White residents at the Gardens are treated the same as the minority residents at the Gardens. The logic behind the FHA is more perceptive than that. It looks beyond such specious concepts of equality to determine whether a person is being deprived of his lawful rights because of his race. Rather, a disparate impact inquiry requires us to ask whether minorities are disproportionately affected by the redevelopment plan. Thus the Residents can establish a prima facie case of disparate im pact by showing that minorities are disproportionately burdened by the redevelopment plan or that the redevelop ment plan “[ falls] more harshly” on minorities. Doe v. City of Butler, 892 F.2d 315, 323 (3d Cir. 1989).
The Township asserts that a disparate impact approach would result in the unintended consequence of halting the redevelopment of minority neighborhoods and that it is foreclosed by the Supreme Court’s deci sion in City of Memphis v. Greene, which states that
[b]ecause urban neighborhoo ds are so frequently characterized by a common ethnic or racial heritage, a regulation’s adverse impact on a particular neighborhood will often have a disparate effect on a n identifiable ethnic or racial group. To regard an inevita ble consequence of that kind as a form of stigma so severe as t o violate the Thirteenth Amendment would trivialize the great purpose of that charter of freedom.
451 U.S. 100, 128 (1981).
18

There are th ree problems with the Township’s position. F irst, City of Memphis was concerned with the standard for establishing a violation of the Thirteenth Amendment’s ban on t he “badges and incidents of slavery in the United Sta tes.” Id. at 125-26. Whatever that standard might be—a question left open by the Supreme Court’s ruling in that case, see id. at 130 (W hite, J., conc urring)—City of Memphis did not consider the FHA. All of the courts of appeals that have considered the matter, including this one, have concluded that p laintiffs can show the FHA has been violated through policies that have a dispar ate impact on a minority group. See Greater New Orlean s Fair Housing Action Center v. HUD, 639 F.3d 1078, 10 85 (D.C. Cir. 2011) (acknowledging the majority view bu t declining to take a position on the matters); Simms v. First Gib raltar Bank, 83 F.3d 1546, 1555 (5th Cir. 19 96); Mountain Side Mobile Estates P'ship v. H UD, 56 F.3d 1243, 1250-51 (10th Cir. 1995); Jackson v. O kaloosa County, 21 F.3d 1531, 1543 (11th Cir. 1994) ; Casa Marie, Inc. v. Su perior Court of Puerto Rico, 988 F. 2d 252, 269 n.20 (1st Ci r. 1993); Keith, 858 F.2d at 482-84; United States v. Starrett City Assocs., 840 F.2d 1096, 1100 (2d Cir. 1988); Arthur v. City of Toledo, 782 F.2d 565, 57 4-75 (6th Cir. 1986); Smith, 682 F.2d at 1065; United States v. Mitchell, 580 F.2d 789, 791-92 (5th Cir. 1978); Rizzo, 564 F.2d at 147 -48; Metro. Hous. Dev. Corp. , 558 F.2d at 1290; United States v. City of B lack Jack, 508 F.2d 1179, 1184 (8th Cir. 1974).
Second, the Township’s approach urges us to conclude that the FHA is violated only when a po licy treats each individual minority resident differently from each individual White resident. Under our precedent, a plaintiff may
19

establish a prima facie case of discrimination by demonstrating that th e policy disproportionately affects or impacts one group more than ano ther—facially disparate treatment need not be shown. For instance, in Rizzo, the waiting list for public housing comprised 85% AfricanAmericans and 95% minorities, meaning that 5% were White. 564 F.2d at 142. The White residents on the list were treated the same as the minority residents on the list—each was hurt by Philadelphia’s decision to block a public housing project—but we never theless found a violati on of the F HA because cancelling the project had a “racially disproportionate effect” on African-Americans. Id. at 149 (“Nor can there be any doubt that the i mpact of the govern mental defendants’ termination of the proj ect was f elt primarily by blacks, who make up a sub stantial proportion of those who would be eligible to reside there.”) (emphasis added).
The Township may be correct that a disparate impact analysis will often allow plaintiffs to make out a prima facie case when a segrega ted neighborhood is redeveloped in circumstances where there is a s hortage of alternative affordable housing. But this is a feature of the FHA’ s programming, not a b ug. The FHA is a b roadly remedial statute designed to prevent and remedy invidious discrimination on the basis of race, see Havens Realty Corp. v. Coleman, 455 U.S. 363, 380 (1982), that facilitates its antidiscrimination agenda by encouraging a se arching inquiry into the motives behind a contested polic y to ensure that it is not improper. See Christine Jolls, Antidiscrimination and Accommodation, 115 Harv. L. Rev. 642, 652 (2001) (remarking that a “leading gloss” on the Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971), is that “disparate impact functions as a means of smoking out
20

subtle or underl ying forms of intentional di scrimination on the basis of group membership.”). We need not be concerned that this approach is to o expansive because the establishment of a prima facie case, by itself, is not enough to establish liability under the FHA. It simply results in a more searching inquiry into th e defendant’s motivations—precisely the sort of inquiry required to ensure that the gover nment does not deprive people of housing “because of race.”
Finally, the Township seems to arg ue that its redevelopment plan does not violate Title VIII unless the statistics show that it increases segregation in the Township . (Twp. Br. a t 18.). Showing that a policy has a segregat ive effect is one way to establish a violation of Title VIII, but it is not the onl y way. See Huntington Branch, 844 F.2d at 937 (observing that a policy often discriminates in one of two ways: having a disparate impact or perpetuating segregation). The Township is f ree to argue that its plan is less discriminatory than all of the available alt ernatives because it does the best job of integrating the neighborhood. However, those arguments are properly considered in the context of the last steps of the Title VIII analysis, not as a requirement of the prima facie case.
In reality, the District Court’s decision was based on a valid and practical concern, which appears to d rive its reasoning throughout the opinion. I t feared that f inding a disparate impact here would render the Township powerless to rehabilitate its blighted neighborhoods. This underlying rationale distorts the focus and a nalysis of disparate i mpact cases under the FHA. In disparate impact cases, “[e]ffect, not motivation, is the touchstone because a t houghtless housing practice can be as unfair to minority rights as a wi llful
21

scheme.” Smith v. An chor Bldg. Corp., 536 F.2d 231, 233 (8th Cir. 1977). Once the Residents established a prima facie case of disparate im pact, the District Court ’s inquiry must continue to determine whether a pers on is be ing deprived of his lawful rights because of his race. It must ask whether that Township’s legitimate objectives could have been achieved in a less discriminatory way.
B.
Once the plaintif fs establish a prima facie case, the defendants must offer a legitimate reason for their actions. In this case, everyone agrees that alleviating blight is a legitimate interest. The core of the dispute between the parties is over the next step of the FHA’s burden-shifting analysis: whether the defendants have shown that there is no less discriminatory alternative. Rizzo, 564 F.2d at 149. Onl y when the defendants make this showing does the burden shift back to the plaintiffs—where it u ltimately remains—to provide evidence of such an alternative. Id. at 149 n.37. The test for whether there is no alternative is “similar to the test of whether the def endant has dem onstrated that the requested accommodation is ‘ unreasonable’ for the purposes of rebutting a claim under § 3604(f)(3)(B).” Lapid-Laurel, 284 F.3d at 468. Section 2604(f)(3)(B) of the FHA requires that reasonable housing accommodations be made for individuals with disabilities. In other words, the defendant must show that the al ternatives impose an undue hardship under the circumstances of this specific case. See US Airways v. Barnett, 535 U.S . 391, 401-02 (2002) (discussing the ter m “unreasonable accommodation” under the Americans with Disabilities Act).
22

The District Court characterized the Residents ’ proposed alternative as follows:
[E]ffectively, plaintiffs are seeking to remain living in the blighted and unsafe conditions until they are awarded money damages for their claims and suf ficient compensation to secu re housing in the local h ousing market. Although couched at times like an ef fort to ha ve the development go up around them, like a highway built around a pro tected tree, or to have th eir units rehabilitated, this makes little if no practical sense after years of litigation, approved redevelopment plans, and the expenditure of significant public resources. At this late stage, the only real practical remedy is for plaintiffs to receive the f air value f or their home as w ell as p roper and non-discriminatory relocation procedures and benefits . . . . The relief they are seeking is inc onsistent with proving the fourth element of their FHA claimnamely, that an alternative course of action to eminent domain and relocation is viable.
(JA 17 n.12) (ellipsis in original).
The Residents’ evidence is sus ceptible to more favorable inferences. The Residents are not asking f or permission to continue to live in “bl ighted and unsafe” conditions. Inste ad, they argue that there is a f easible plan that meets the Township’s goals and e ntails more substantial rehabilitation. Takin g the evidence in t he light most favorable to the Resid ents, one could c redit the report of the
23

Residents’ planning expert, which stated that the “bligh ted and unsafe” conditions could be remedied in a far less heavyhanded manner that would not entail the wholesale destruction and rebuilding of the neighborhood.
The Residents’ expert pointed out that, although the Revised West Rancocas Plan called f or development in stages, the Township began the development by aggressively acquiring houses, which it left vacant and then destroyed. He opined that a more gradual redevelopment plan would have allowed existing residents to move elsewhere in the neighborhood during one part of the redevelopment, and the n move back once the redevelopment was completed. The Residents’ expert further noted that the Township had not performed a comparative cost analysis showing that total demolition, relocation, and new construction was less feasible than an alternative focused on rehabilitation. Indeed, the expert went on to prop ose an alternative redevelopment plan that would rely on the targeted acquisition and rehabilitation of some of the existi ng Gardens homes, the combination of some houses to make larger homes, an initiative to make the houses more attractive through the use of landscaping and added amenities such as dec ks and porches, and selective demolition and new construction, including the construction of more affordable units. The Residents’ expert also provided examples of previous alternatives—including one developed as early as 1989—to show that the complete demolition of the neighborhood was not the only possible solution to blight in the Gardens.9 Finally, he provided a no n-exhaustive list of
9 The 1989 plan was not provided as the alternative but only to s how that less discriminatory alternatives had been considered in the past and could serve as the basis f or an
24

state and federal funding programs that would support such a redevelopment plan and observed that the Township had failed to make an active effort to locate a developer with experience in neighborhood rehabilitation.

The Township provided the contrast ing statements of its Township manager, who argued that a rehabilitation program was not economically feasible. In support, she cited the fact that one alter native, the Mt. Holly 2000 progra m, demonstrated that re habilitation of each unit would be extremely costly. She also challe nged the availability of sources of funding for a rehabilitation. Lastly, she emphasized the many problems that led the Township to declare the Gardens an area in need of redevelopment and asserted the belief of the Towns hip Council and its p lanning board that de molition and replacement is th e most effective and efficient approach to solving the neighborhood’s problems.

These contrasting statements, as well a s the parties’

continued arguments on appeal as to th e cost and f easibility

of an alternative relying on r ehabilitation, create genuine

issues of material fact that require further investigation. Once

the record on alternati ves has been more fully developed, the

District Court may entertain renewed motions for summary

judgment, taking into account the Township’s initial burden

of showing that there are no less discri minatory alternatives,

as well as the standard advanced in

Lapid-Laurel for

updated approach that would lesse n the r edevelopment’s impact on minority residents of the Township.

25

ultimately determining whether an alternative is unreasonable.10
III.
The Residents are al so seeking t o recover under the theory that the To wnship intentionally discriminated against its minority residents when it adopted the redevelopment plan. The D istrict Court saw no e vidence of intentional discrimination and g ranted the To wnship’s motion f or summary judgment. Af ter carefully considering the matter, we discern no e rror in the District C ourt’s decision and w ill thus affirm that ruling.
IV.
The Township has bro ad discretion to i mplement the policies it beli eves will improve its re sidents’ quality of life. But that discretio n is bounded b y laws lik e the FHA and b y the Constitution, which prevent polici es that discriminate on the basis of race. F or this reason, “the f ederal courts must
10 Triad asserts that the portion of the District Court’s order relating to i ts involvement should be a ffirmed because the Residents, on appeal, have waived their claims against it. We disagree. In their brief, the Resi dents argue tha t the redevelopers, which include Triad, provided inadequate relocation assistance, allowed residents to be i mproperly pressured to leav e, and that the rede velopment plan essentially pushes minority residents out of Mount Holly. For all of the r easons stated in this opinion, these are genuine issues of material fact that must be re solved through f urther discovery on remand.
26

stand prepared to provide ‘such remedies as are necessary to make effective the congressional purp ose.’” Rizzo, 564 F.2d at 149 (quoting J.I. Case Co. v. Bo rak, 377 U.S. 426, 433 (1964)). A more developed factual record will assis t the District Court in crafting appropriate remedies, if necessary. For all of the f oregoing reasons, the District Court’s order granting summary judgment is v acated and the case is remanded for further proceedings.
27

 
 No. 11-1159
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________
MT. HOLLY GARDENS CITIZENS IN ACTION, INC., et al.,
Plaintiffs-Appellants
v.
TOWNSHIP OF MOUNT HOLLY, et al.,
Defendants-Appellees _________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY _________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF NEITHER PARTY _________________
THOMAS E. PEREZ Assistant Attorney General
DENNIS J. DIMSEY APRIL J. ANDERSON Attorneys Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 616-9405

TABLE OF CONTENTS

PAGE

INTEREST OF THE UNITED STATES ..................................................................1

STATEMENT OF THE ISSUE.................................................................................2

STATEMENT OF THE CASE..................................................................................2

STATEMENT OF THE FACTS ...............................................................................4

1. Facts And Procedural History ..............................................................4

2. The District Court’s Decision ...............................................................7

SUMMARY OF ARGUMENT ...............................................................................10

ARGUMENT

THE DISTRICT COURT ERRED IN CONCLUDING THAT THE PLAINTIFFS DID NOT PRESENT A PRIMA FACIE CASE OF DISPARATE IMPACT DISCRIMINATION ......................................................................................11

A. Standard Of Review.............................................................................11

B. Disparate Impact Analysis Under The Fair Housing Act...................12

C. The District Court Erred In Holding That Plaintiffs Failed To Show A Prima Facie Case Of Disparate Impact Discrimination Under The Fair Housing Act Because They Did Not Show That The New Housing Would Be Unaffordable To All Or Most Minority Households......................15

D. The District Court Erred In Holding That Plaintiffs Failed To Establish A Prima Facie Case Of Disparate Impact Because There Were Enough Minority Households In Burlington County To Occupy All Of The Proposed New Units........................................19

TABLE OF CONTENTS (continued):

PAGE

CONCLUSION ........................................................................................................22

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF BAR MEMBERSHIP

CERTIFICATE OF SERVICE

-ii-

TABLE OF AUTHORITIES

CASES:

PAGE

Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977).......................................................................................13

Artisan/American Corp. v. City of Alvin, 588 F.3d 291 (5th Cir. 2009) .........................................................................14

Betsey v. Turtle Creek Assocs., 736 F.2d 983 (4th Cir. 1984) ................................17

Committee Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690 (9th Cir. 2009) ................................................................... 16-17

Community Servs., Inc. v. Wind Gap Mun. Auth., 421 F.3d 170 (3d Cir. 2005) ..........................................................................12

Doe v. Butler, 892 F.2d 315 (3d Cir. 1989).............................................................14

EBC, Inc. v. Clark Bldg. Sys., 618 F.3d 253 (3d Cir. 2010)....................................21

EEOC v. Metal Serv. Co., 892 F.2d 341 (3d Cir. 1990)..........................................11

Greater New Orleans Fair Housing Action Ctr. v. HUD, Nos. 10-5257 & 10-5269, 2011 WL 1327713 (D.C. Cir. Apr. 8, 2011) ...........................................13, 20

Hallmark Developers, Inc. v. Fulton Cnty., 466 F.3d 1276 (11th Cir. 2006) ......................................................... 12-13, 20

Huntington Branch, NAACP v. Town of Huntington, 668 F. Supp. 762 (E.D.N.Y. 1987)................................................................20

Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir. 1988), aff’d, 488 U.S. 15 (1988) ........................passim

Lapid-Laurel v. Zoning Bd. of Adjustment of Twp. of South Plains, 284 F.3d 442 (3d Cir. 2002) ..........................................................................12

-iii-

CASES (continued):

PAGE

LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995), cert. denied, 518 U.S. 1017 (1998)................................................................21

Lincoln v. Case, 340 F.3d 283 (5th Cir. 2003) ........................................................21

Mountain Side Mobile Estates P’ship v. Secretary of Hous. & Urban Dev., 56 F.3d 1243 (10th Cir. 1995) .........................................................................1

Resident Advisory Bd. v. Rizzo, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908 (1978)...................................................... 13-14, 16

Smith v. Town of Clarkton, 682 F.2d 1055 (4th Cir. 1982).....................................14

Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565 (2d Cir. 2003)....................15

United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974), cert. denied, 422 U.S. 1042 (1975)............................................................2, 12

United States v. Hays, 515 U.S. 737 (1995) ............................................................21

STATUTES:

42 U.S.C. 1982 ..........................................................................................................3

42 U.S.C. 1983...........................................................................................................3

42 U.S.C. 3602(i) .....................................................................................................21

42 U.S.C. 3604(a) ....................................................................................................12

42 U.S.C. 3612(a) ......................................................................................................1

42 U.S.C. 3613.........................................................................................................21

42 U.S.C. 3614(d) ......................................................................................................1

-iv-

STATUTES (continued):

PAGE

42 U.S.C. 3614(o) ......................................................................................................1

-v-

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________
No. 11-1159
MT. HOLLY GARDENS CITIZENS IN ACTION, INC., et al.,
Plaintiffs-Appellants
v.
TOWNSHIP OF MOUNT HOLLY, et al.,
Defendants-Appellees _________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY _________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF NEITHER PARTY _________________
INTEREST OF THE UNITED STATES
The United States Department of Justice and the United States Department
of Housing and Urban Development (HUD) share enforcement authority under the
Fair Housing Act (FHA). 42 U.S.C. 3614(d), 3612(a) & (o). The Department of
Justice and HUD frequently bring cases alleging disparate impact claims. See,
e.g., United States v. AIG Fed. Sav. Bank, No. 10-178 (D. Del.) (order granting
unopposed motion for entry of consent order entered on March 19, 2010);
Mountain Side Mobile Estates P’ship v. Secretary of Hous. & Urban Dev., 56 F.3d

- 2 1243, 1251 (10th Cir. 1995); United States v. City of Black Jack, 508 F.2d 1179, 1186 (8th Cir. 1974), cert. denied, 422 U.S. 1042 (1975). This Court’s resolution of the question presented regarding the standards for establishing a prima facie case of disparate impact will likely affect the Justice Department’s and HUD’s enforcement responsibilities under the FHA.
STATEMENT OF THE ISSUE Whether the district court erred in concluding, on summary judgment, that plaintiffs failed to state a prima facie case of disparate impact discrimination because they did not show that the challenged redevelopment would be unaffordable for “all or most” of the township’s minority households, and because there were enough middle-income minority households in the county to theoretically occupy all of the proposed higher-priced housing.1
STATEMENT OF THE CASE Plaintiffs, residents of the Mount Holly Gardens neighborhood in Mount Holly, New Jersey, sued to stop the township’s redevelopment of their neighborhood. R. 73 (Second Amended Complaint); R. 114 at 2, App. 5 (Jan. 3,
1 The United States takes no position on the other issues presented in this appeal.

- 3 2011 Opinion).2 They alleged that the redevelopment, which would replace their homes with higher-priced housing, would have a disparate impact on the mostlyminority residents and violate the Fair Housing Act. Plaintiffs also brought claims under 42 U.S.C. 1982, 42 U.S.C. 1983, and state law. R. 114 at 3, App. 6 (Jan. 3, 2011 Opinion). They sought injunctive relief and compensatory and punitive damages. R. 73 at 52 (Second Amended Complaint). In addition to the federal case, there were several years of litigation in state courts. R. 73 at 3 (Second Amended Complaint); R. 114 at 6-7, App. 9-10 (Jan. 3, 2011 Opinion). The state courts upheld the township’s designation of the Gardens neighborhood as blighted and “in need of redevelopment,” but those courts did not address the plaintiffs’ Fair Housing Act claims. See R. 73 at 3 (Second Amended Complaint).
The district court conducted several hearings over two years, denied a temporary restraining order and preliminary injunction, and issued several opinions. R. 114 at 2. n.1, App. 5 (Jan. 3, 2011 Opinion). Parties were not allowed formal discovery. R. 114 at 6, App. 9 (Jan. 3, 2011 Opinion). Finally, the district court converted defendants’ motion to dismiss to a motion for summary
2 “R. __” refers to documents filed in the district court, identified by docket number. “App. __” refers to pages in the Appellants’ appendix, volume 1, attached to their opening brief. Subsequent volumes of the appendix were not available to amicus.

- 4 judgment, took supplemental briefing, and granted the motion. R. 114 at 2-3, App. 5-6 (Jan. 3, 2011 Opinion).
STATEMENT OF THE FACTS 1. Facts And Procedural History
There were roughly 330 homes in the 30-acre Mount Holly Gardens neighborhood. R. 17-3 at 8 (Beveridge Decl.); R. 73 at 2, 11 (Second Amended Complaint); R. 106-1 at 2 (Responding Statement of Facts). About half the neighborhood’s residents were homeowners in 2000. R. 73 at 13 (Second Amended Complaint); R. 106-1 at 6 (Responding Statement of Facts). Almost all residents have very low or extremely low incomes, defined as less than 50% or 30% of the area median income, respectively. R. 17-3 at 9 (Beveridge Decl.). Defendants began purchasing homes as early as 2002, and by 2008 had already purchased, vacated, and boarded up more than 200 homes. R. 73 at. 3, 24 (Second Amended Complaint). They had demolished more than 70. R. 17-3 at 8 (Beveridge Decl.); R. 73 at 25 (Second Amended Complaint).
Redevelopment would substantially increase housing costs in the neighborhood. See R. 73 at 14, 34 (Second Amended Complaint). Indeed, nearly all Gardens residents could not afford to purchase or rent market-rate homes in the redeveloped area. R. 73 at 14 (Second Amended Complaint); R. 94 at 11 n.4 (Feb. 13, 2009 Opinion); R. 106-1 at 42 (Responding Statement of Facts); R. 112 at 38-

- 5 40 (Def. Summ. J. Br.). The township pays between $32,000 and $49,000 for each home it buys in the Gardens. R. 73 at 24 (Second Amended Complaint); R. 106-1 at 34 (Responding Statement of Facts). Redevelopment plans call for 464 homes selling for between $200,000 and $275,000. R. 73 at 34 (Second Amended Complaint); R. 106-1 at 41-42 (Responding Statement of Facts). A one-bedroom apartment will rent for more than $1200 per month. R. 73 at 34 (Second Amended Complaint); R. 106-1 at 41-42 (Responding Statement of Facts). There will also be 56 deed-restricted, affordable units, but these will not be affordable for very low income residents. R. 73 at 34 (Second Amended Complaint); R. 114 at 12 n.7, App. 15 (Jan. 3, 2011 Opinion).
Plaintiffs presented expert evidence that the redevelopment in the Gardens would greatly impact the minority population of Mount Holly. R. 17-3 at 16 (Beveridge Decl.). Mount Holly is 66% white, 21% African-American, and 9% Hispanic. R. 17-3 at 13 (Beveridge Decl.); R. 73 at 12 (Second Amended Complaint); R. 106-1 at 4 (Responding Statement of Facts). It has a population of more than 10,700. R. 17-3 at 13 (Beveridge Decl.). Burlington County is, overall, 76% white, 15% African-American, and 4% Hispanic. R. 17-3 at 13 (Beveridge Decl.); R. 73 at 12-13 (Second Amended Complaint); R. 106-1 at 3 (Responding Statement of Facts). The population is very different, however, within the census blocks containing the Gardens neighborhood. The population is 20% white, 46%

- 6 African-American, and 29% Hispanic. R. 17-3 at 14 (Beveridge Decl.); R. 73 at 12 (Second Amended Complaint); R. 106-1 at 4 (Responding Statement of Facts). The neighborhood accounts for 32% of Mount Holly’s entire Hispanic population and 21% of the township’s entire African-American population. But only 3% of the township’s white residents live there. R. 106-1 at 5 (Responding Statement of Facts). It contains the highest percentage of African-American and Hispanic residents of any neighborhood in the township. R. 73 at 12 (Second Amended Complaint); R. 106-1 at 5 (Responding Statement of Facts). Seventy-five percent of the neighborhood’s residents are minorities. R. 17-3 at 17 (Beveridge Decl.); R. 102 at 8 (Oct. 23, 2009 Opinion).
Accordingly, plaintiffs argued that redevelopment that forces residents to leave the Gardens will disproportionately affect minority households. R. 73 at 37 (Second Amended Complaint); R. 114 at 12 n.8, App. 15 (Jan. 3, 2011 Opinion). Residents are not only displaced from their neighborhood, but also will likely leave the township – and perhaps Burlington County – altogether. Plaintiffs showed that there is a shortage of low-income housing in the township and its immediate surroundings, suggesting they would likely not be able to find replacement housing there. R. 17-3 at 18-19 (Beveridge Decl.); R. 73 at 36 (Second Amended Complaint). It appears residents who have left the Gardens most often move outside Mount Holly. R. 17-32 at 9, 27-31 (Redevelopment Report). There is also

- 7 a shortage of low-income housing in the county as a whole. The plaintiffs’ expert stated that in 2000 there were roughly 5300 units affordable for families making 50% or less of area median income, while more than 22,000 households needed such affordable housing. R. 17-3 at 12 (Beveridge Decl.). Affordable units decreased between 2000 and 2006 in part, plaintiffs’ expert stated, “due to the vacant and now demolished units in the Gardens being removed from the housing stock.” R. 17-3 at 12 (Beveridge Decl.). Destruction of the Gardens will eliminate some 5% of the county-wide stock of housing affordable for very low or extremely low income residents. R. 17-3 at 12 (Beveridge Decl.).
Indeed, relatively few minorities in the county will be able to buy the new homes. Plaintiffs presented evidence that only 21% of African-American and Hispanic households in the county would likely be able to afford the new marketrate homes, compared to 79% of white households. R. 106-2 at 8 (Beveridge Summ. J. Decl.); R. 114 at 12-13 n.9, App. 15-16 (Jan. 3, 2011 Opinion). 2. The District Court’s Decision
The district court granted summary judgment for the defendants. Among other things, the court held that the plaintiffs had not presented a prima facie case under their disparate impact theory. It acknowledged that the project had “an effect on low-income families, and, correspondingly, minority families.” R. 114 at 3, App. 6 (Jan. 3, 2011 Opinion). But “under plaintiffs’ logic,” the court

- 8 concluded, “any action by the Township to do anything with regard to the Gardens would result in a disparate impact, simply because of the racial composition of the Gardens.” R. 114 at 13, App. 16 (Jan. 3, 2011 Opinion).
In particular, the court rejected plaintiffs’ statistical analysis. According to the district court, the analysis improperly included the whole of Burlington County (rather than only Mount Holly township), did not account for minorities who might move in from outside the county, and did not consider how many displaced residents would move elsewhere in the township. R. 114 at 12-13 n.9, App. 15-16 (Jan. 3, 2011 Opinion). Furthermore, the district court concluded, plaintiffs had not accounted for how many minorities will move into the new development by buying one of the 56 planned affordable units or renting from a white purchaser. R. 114 at 11-13 & n.9, App. 14-16 (Jan. 3, 2011 Opinion). The court concluded that plaintiffs’ analysis was insufficient because it did not show that “the new homes created by the redevelopment will be financially out-of-reach for all or most minorities.” R. 114 at 12, App. 15 (Jan. 3, 2011 Opinion).
Turning to statistics on the absolute numbers of African-American and Hispanic households who could likely afford the homes, the court concluded that there were 16,744 such families in Burlington County. R. 114 at 12 n.9, App. 15 (Jan. 3, 2011 Opinion). This population had the “ability to occupy all 464 market rate homes.” R. 114 at 12 n.9, App. 15 (Jan. 3, 2011 Opinion). Furthermore, the

- 9 court stated the plan did not “apply differently to minorities than non-minorities,” because many residents – including some plaintiffs – were white and would nevertheless lose their housing. R. 114 at 11, App. 14 (Jan. 3, 2011 Opinion).
The court further decided that plaintiffs had failed to establish a prima facie case of disparate impact on the ground that no one has “been forced out of their homes by the Township without the offer of relocation services.” R. 114 at 14, App. 17 (Jan. 3, 2011 Opinion). In so holding, the court noted that all plaintiffs, except one removed by her landlord, still reside in the neighborhood. R. 114 at 14, App. 17 (Jan. 3, 2011 Opinion).
The court found that, in any event, defendants met their burden to show a legitimate government interest. R. 114 at 10 & n.6, App. 13 (Jan. 3, 2011 Opinion). Plaintiffs, the court concluded, had not rebutted this conclusion with any showing that less discriminatory actions were available. R. 114 at 10 & n.6, App. 13 (Jan. 3, 2011 Opinion).
The court further concluded that the plaintiffs had not shown intentional discrimination. R. 114 at 20-21, App. 23-24 (Jan. 3, 2011 Opinion); see also R. 94 at 7 (Feb. 13, 2009 Opinion). Accordingly, the court granted summary judgment for defendants on plaintiffs’ 42 U.S.C. 1982 and 42 U.S.C. 1983 claims, as well as their intentional discrimination claims brought under New Jersey law. R. 114 at 18-26, App. 21-29 (Jan. 3, 2011 Opinion).

- 10 SUMMARY OF ARGUMENT The district court applied the wrong legal standard in evaluating plaintiffs’ disparate impact claim, and consequently erred in ruling that they had not presented a prima facie case. The district court held that plaintiffs had failed to establish a prima facie case of disparate impact under the FHA because they had not shown that the new homes created by the redevelopment would be financially unavailable for most or all minorities. In so ruling, the district court failed to properly resolve the determinative question: whether the proposed redevelopment would have a disproportionate effect on a protected group. Because plaintiffs presented sufficient evidence that the redevelopment would have a disproportionate adverse effect upon minorities in Mount Holly Township, as well as Burlington County, the district court erred in granting summary judgment to defendants on the ground that plaintiffs had failed to present a prima facie case of disparate impact under the FHA. The district court similarly erred in rejecting plaintiffs’ disparate impact claim on the ground that there were, in absolute terms, enough higher-income minority households in Burlington County to purchase all of the houses in the planned redevelopment. While there is no one statistical method to demonstrate disparate impact, the analysis should be based on relative numbers of minority and nonminority households adversely affected by the proposed redevelopment, rather

- 11 -
than on the absolute number of minority households who the court finds earn enough income to be able to afford the new housing to be created by redevelopment.
In this case, the district court did not fulfill its proper role in resolving defendants’ summary judgment motion. The court plainly did not view the facts on the disproportionate racial effect of the redevelopment in the light most favorable to plaintiffs, instead rejecting plaintiffs’ evidence – including expert reports – that the proposed redevelopment will effectively and significantly affect the minority population in Mount Holly. Because of this, and the erroneous legal standards it applied, the district court’s determination that plaintiffs failed to establish a prima facie case of disparate impact should be reversed.
ARGUMENT THE DISTRICT COURT ERRED IN CONCLUDING THAT THE PLAINTIFFS DID NOT PRESENT A PRIMA FACIE CASE OF
DISPARATE IMPACT DISCRIMINATION A. Standard Of Review
The issue of whether plaintiffs presented a prima facie case of disparate impact is a matter of law, reviewed de novo. EEOC v. Metal Serv. Co., 892 F.2d 341, 345 (3d Cir. 1990) (“[A] district court’s analysis of whether the evidence presented is sufficient to establish a prima facie case” of discrimination, as

- 12 -
opposed to liability, “is plenary because it necessarily implicates the application of
a legal standard to historical facts”).
This Court reviews a district court’s grant of summary judgment de novo.
Lapid-Laurel v. Zoning Bd. of Adjustment of Twp. of South Plains, 284 F.3d 442,
449 & n.4 (3d Cir. 2002). A court should grant summary judgment only where,
“viewing the facts in the light most favorable to the non-moving party,” there is
“no genuine issue of material fact.” Id. at 449 n.4. “The judge’s function at the
summary judgment stage is not to weigh the evidence and determine the truth of
the matter.” Ibid.
B. Disparate Impact Analysis Under The Fair Housing Act
The Fair Housing Act makes it unlawful to “refuse to sell or rent * * * or
otherwise make unavailable or deny, a dwelling to any person because of race,
color, religion, sex, familial status, or national origin.” 42 U.S.C. 3604(a). This
Court – and indeed every Circuit to consider the issue – has concluded that the Act encompasses disparate impact claims.3 Community Servs., Inc. v. Wind Gap Mun.
Auth., 421 F.3d 170, 176 (3d Cir. 2005); Lapid-Laurel, 284 F.3d at 466-467;
3 Under the Fair Housing Act a prima facie showing of discriminatory effect may also be established by evidence that a facially neutral housing practice perpetuates segregated housing patterns. See, e.g., Hallmark Developers, Inc. v. Fulton Cnty., 466 F.3d 1276, 1286 (11th Cir. 2006); Huntington Branch, NAACP v. Town of Huntington, 844 F. 2d 926, 937 (2d Cir. 1988), aff’d, 488 U.S. 15 (1988) (per curium); United States v. City of Black Jack, 508 F.2d 1179, 11841186 (8th Cir. 1974), cert. denied, 422 U.S. 1042 (1975).

- 13 Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 148 (3d Cir. 1977), cert. denied, 435 U.S. 908 (1978); Greater New Orleans Fair Hous. Action Ctr. v. HUD, Nos. 105257 & 10-5269, 2011 WL 1327713, at *6 (D.C. Cir. Apr. 8, 2011) (“Each of the eleven circuits that have resolved the matter has found the disparate impact theory applicable under the Fair Housing Act.”).
To establish a disparate impact case of racial discrimination, the plaintiff must show that the defendant’s action will have a disproportionate effect on a racial group. Rizzo, 564 F.2d at 143 (noting disparate impact claim where city’s action “had the undeniable effect of ‘bear[ing] more heavily on one race than another’”) (quoting Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 270 (1977)). Although other factors may go to the ultimate merits, this Court has held that “discriminatory effect alone will, if proved, establish a * * * prima facie case.” Id. at 148 & n.32. If the plaintiff succeeds, the burden shifts to the defendant to show “a legitimate, bona fide interest” in taking the challenged action. Id. at 149. If the defendant meets its burden, plaintiff then has the burden to show that less discriminatory practices are available. Id. at 149 n.37.
There is no clear rule for the statistical showing needed in a prima facie case; plaintiffs must offer “proof of disproportionate impact, measured in some plausible way.” Greater New Orleans, 2011 WL 1327713, at *6. See also Hallmark Developers, Inc. v. Fulton Cnty., 466 F.3d 1276, 1286 (11th Cir. 2006)

- 14 (“no single test controls in measuring disparate impact”) (quotation marks and citation omitted). This Court has stated that plaintiffs must show that a challenged housing practice “has fallen more harshly” on a protected group. Doe v. Butler, 892 F.2d 315, 323 (3d Cir. 1989). In Rizzo, the Court found prima facie evidence of a disparate impact where “the impact of the governmental defendants’ termination of the [housing] project was felt primarily by blacks.” Rizzo, 564 F.2d at 149.
Courts have accepted a variety of statistical showings as establishing a prima facie disparate impact case, including analyses based on a statistical connection between income and race. This can be shown where the plaintiff establishes that there is a shortage of housing accessible to a protected group, and that the shortage is causally linked to the challenged policy. In Huntington Branch, NAACP v. Town of Huntington, 844 F. 2d 926, 929 (2d Cir. 1988), aff’d, 488 U.S. 15 (1988) (per curium), for example, plaintiffs stated a prima facie case by showing a shortage of low- and moderate-income housing, and that the impact of the shortage was three times greater on African Americans than on the overall population. See also Smith v. Town of Clarkton, 682 F.2d 1055, 1062-1064 (4th Cir. 1982); cf. Artisan/American Corp. v. City of Alvin, 588 F.3d 291, 298-299 (5th Cir. 2009) (plaintiffs’ claim failed where they did not make a showing typical in a disparate

- 15 -
impact case, such as a waiting list for affordable housing, a shortage of affordable
housing, or individuals affected by the challenged action).
C. The District Court Erred In Holding That Plaintiffs Failed To Show A Prima Facie Case Of Disparate Impact Discrimination Under The Fair Housing Act Because They Did Not Show That The New Housing Would Be Unaffordable To All Or Most Minority Households
In this case, the district court applied the wrong standard to plaintiffs’
statistical evidence, concluding that plaintiffs failed because they did not show that
“the new homes created by the redevelopment will be financially out-of-reach for
all or most minorities.” R. 114 at 12, App. 15 (Jan. 3, 2011 Opinion). This
standard is much more restrictive than the proper rule applied in a disparate impact
case.
The proper analysis requires a disproportionate adverse effect on a protected group, rather than an adverse effect on “all or most” minority families.4 R. 114 at
12, App. 15 (Jan. 3, 2011 Opinion). In order to make out a disparate impact claim,
a plaintiff must “establish[] that a challenged practice has a significantly adverse or
disproportionate impact on a protected group.” See Tsombanidis v. West Haven
Fire Dep’t, 352 F.3d 565, 575 (2d Cir. 2003).
4 Even if the court’s standard were correct, the plaintiffs established that only 21% of African-American and Hispanic households in Burlington County could afford to live in the new development, whereas 79% of white households could afford the new homes. R. 106-2 at 8 (Beveridge Summ. J. Decl.); R. 114 at 12-13 n.9, App. 15-16 (Jan. 3, 2011 Opinion). Thus “most” minority households in the county could not afford the new housing.

- 16 In Rizzo, for example, this Court found a prima facie case where the city opposed a low-income housing development, and African Americans made up “a substantial proportion of those who would be eligible” to live in the challenged development. Rizzo, 564 F.2d at 142, 149. Waiting lists for low-income housing were 85% African-American, and this showed that African-American families would be disproportionately affected. Ibid. But the Court did not require plaintiffs to show that all or most African-American families in the city needed low-income housing. And in Huntington Branch, 844 F.2d at 929, plaintiffs stated a prima facie case where there was a shortage of low-income housing, and 24% of AfricanAmerican families required such housing. Twenty-four percent was certainly not all or most African-American families, but the impact of the shortage was disproportionate; only seven percent of all families in the city needed low-income housing. Ibid. In this case, plaintiffs’ expert opined that – at least by some measures – African-American and Hispanic families are respectively 8 and 11 times more likely than white families to be negatively affected by the redevelopment. R. 106-2 at 5 (Beveridge Summ. J. Decl.). Indeed, a plaintiff may state a prima facie case even if substantial numbers of minority families clearly are not affected by the challenged practice. In Committee Concerning Community Improvement v. City of Modesto, 583 F.3d 690, 703 (9th Cir. 2009), for example, the plaintiffs argued their neighborhoods, which

- 17 were 71% Hispanic, were improperly denied certain city services. Other neighborhoods, which did receive services, also had substantial Hispanic populations of 48%. Ibid. Nevertheless, the Ninth Circuit concluded that plaintiffs had made a prima facie showing of disparate impact. Id. at 704-705.
According to plaintiffs’ evidence, the proposed redevelopment in this case not only affects the availability of affordable housing in the township and county, but also directly affects a discrete group – Gardens residents. In measuring the adverse effect of the proposed redevelopment, the racial composition of potentially displaced residents is also a relevant consideration. Betsey v. Turtle Creek Assocs., 736 F.2d 983, 987 (4th Cir. 1984). Here, it is undisputed that displaced residents are disproportionately minority when compared to the population of Mount Holly Township or Burlington County as a whole. Mount Holly Township is 66% white, 21% African-American, and 9% Hispanic; Burlington County has roughly similar demographics (76% white, 15% African-American, and 4% Hispanic). R. 17-3 at 13 (Beveridge Decl.); R. 73 at 12-13 (Second Amended Complaint); R. 106-1 at 34 (Responding Statement of Facts). The census blocks containing the Gardens neighborhood are 20% white, 46% African-American, and 29% Hispanic. R. 17-3 at 14 (Beveridge Decl.); R. 73 at 12 (Second Amended Complaint); R. 106-1 at 4 (Responding Statement of Facts).

- 18 -
Indeed, relatively few minorities in the county will be able to buy the new
homes. Plaintiffs’ expert stated that only 21% of African-American and Hispanic
households in the county would likely be able to afford the new market-rate
homes, compared to 79% of white households. R. 106-2 at 8 (Beveridge Summ. J.
Decl.); R. 114 at 12-13 n.9, App. 15-16 (Jan. 3, 2011 Opinion). Moreover, it is
undeniable that nearly all Gardens residents have low incomes and could not afford
to purchase or rent market-rate homes in the redeveloped area. R. 73 at 14 (Second
Amended Complaint); R. 106-1 at 42 (Responding Statement of Facts); Doc. 112
at 38-40 (Def. Summ. J. Br.).
On this record, then, plaintiffs have plainly made a plausible statistical
showing of disparate impact sufficient to state a prima facie case. The district
court’s conclusion that plaintiffs failed to prove that most or all minorities would
be unable to afford the new housing does nothing to undermine this conclusion.5
5 Given the flexible standards for establishing a prima facie statistical showing, the district court also erred in concluding plaintiffs’ analysis was too narrow because it did not “account for minorities who will move into Mt. Holly Township from outside Burlington County.” R. 114 at 12-13 n.9, App. 15-16 (Jan. 3, 2011 Opinion). Where there is a sufficient impact in a smaller region, broader analysis may not be necessary. See Huntington Branch, 844 F.2d at 938 n.8. Going to the opposite extreme, the court erred in rejecting plaintiff’s analysis because it was too broad, including “the entire population of Burlington County, rather than only Mt. Holly Township.” R. 114 at 12-13 n.9, App. 15-16 (Jan. 3, 2011 Opinion). Plaintiffs in fact did include statistics about the township, adjacent areas, and the Gardens neighborhood. R. 17-3 at 5, 9-11 (Beveridge Decl.). Plaintiffs’ expert stated that nearly all Gardens residents would be unable to afford
(continued...)

- 19 -
D. The District Court Erred In Holding That Plaintiffs Failed To Establish A Prima Facie Case Of Disparate Impact Because There Were Enough Minority Households In Burlington County To Occupy All Of The Proposed New Units
The court also erred in rejecting plaintiffs’ prima facie showing on the
ground that there were, in absolute terms, enough middle-income minority families
in Burlington County to occupy all of the proposed new units. R. 114 at 12-13 n.9,
App. 15-16 (Jan. 3, 2011 Opinion). The district court found that there were some
16,744 African-American and Hispanic families in Burlington County who could
likely afford houses in the new development. R. 114 at 13 n.9, App. 16 (Jan. 3,
2011 Opinion); see also R. 112 at 39 (Def. Summ. J. Br.). The court concluded
that this showed “the minority population’s ability to occupy all 464 market rate
homes.” R. 114 at 13 n.9, App. 16 (Jan. 3, 2011 Opinion). While there is no
specific rule about the form of statistical analysis required to show disparate
impact, the analysis should be based, by definition, on a disproportionate impact
on a protected group, rather than on absolute numbers.
Other appellate courts have specifically considered and rejected analyses of
absolute rather than proportional statistics. In Huntington Branch, the Second
(...continued) the new homes, and that the development project would have a disparate impact on the township and the county. R. 17-3 at 5, 9-11, 51 (Beveridge Decl.); R. 17-4 (Beveridge Decl. Exh.). The county-wide impact does not negate plaintiffs’ showing; rather it underscores the scope of the disparate impact.

- 20 -
Circuit reversed the district court in part because of its improper reliance on absolute figures. In that case, the district court compared “the larger absolute number of white poor (22,160) with minority poor (3,671),” and noted that large numbers of white residents might benefit from the proposed project. Huntington Branch, 844 F.2d at 933 (quoting Huntington Branch, NAACP v. Town of Huntington, 668 F. Supp. 762, 786 (E.D.N.Y. 1987)). The Second Circuit held that “[b]y relying on absolute numbers rather than on proportional statistics, the district court significantly underestimated the disproportionate impact of the Town’s policy,” and “perceived facts through a misapprehension of the applicable law.” Id. at 938. The Eleventh Circuit has similarly rejected reliance on absolute numbers, noting that “[t]ypically, a disparate impact is demonstrated by statistics,” and “it may be inappropriate to rely on absolute numbers rather than on proportional statistics.” Hallmark Developers, Inc., 466 F.3d at 1286 (internal quotation marks and citations omitted).6
Given the relatively flexible standard for establishing a statistical prima facie showing, see Greater New Orleans, 2011 WL 1327713, at *6, it is clear that the
6 The district court made a similar analytical error in rejecting plaintiffs’ analysis on the ground that white residents of the Gardens were affected in the same way as minority residents. R. 114, App. 14 (Jan. 3, 2011 Opinion). The court should have considered the disproportionate impact on minority families, instead of the fact that some number of white families would also lose their homes.

- 21 -
district court applied impermissibly restrictive legal standards in granting
defendants’ summary judgment motion on the ground that plaintiffs failed to
present a prima facie case of disparate impact. It is equally clear that the court
failed to consider the plaintiffs’ evidence “in the light most favorable to the
nonmoving party,” and to “draw all reasonable inferences in that party’s favor.”
EBC, Inc. v. Clark Bldg. Sys., 618 F.3d 253, 262 (3d Cir. 2010). Here, “a rational
person could conclude” that plaintiffs are correct on the disputed issue of disparate
impact. Ibid. (internal quotation marks and citation omitted).7
7 In addition, the district court erred in ruling that plaintiffs failed to establish their disparate impact claim because they have not yet been evicted, and no one has “been forced out of their homes by the Township without the offer of relocation services.” R. 114 at 14, App. 17 (Jan. 3, 2011 Opinion). The Fair Housing Act states that “[a]n aggrieved person” may seek redress, and defines an aggrieved person as “any person who * * * claims to have been injured by a discriminatory housing practice” or “believes that such person will be injured by a discriminatory housing practice that is about to occur.” 42 U.S.C. 3602(i); 42 U.S.C. 3613 (emphasis added). The Act reaches “imminent” harm, provided it is “not conjectural or hypothetical.” Lincoln v. Case, 340 F.3d 283, 289 (5th Cir. 2003) (quoting United States v. Hays, 515 U.S. 737, 743 (1995)). “[A] person who is likely to suffer such an injury need not wait until a discriminatory effect has been felt before bringing suit.” LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir. 1995), cert. denied, 518 U.S. 1017 (1998). Moreover, relocation assistance does not cure a potential Fair Housing Act violation. If this were so, an offer of assistance would essentially immunize a municipality against Fair Housing Act claims, even where the displacement is discriminatory.

- 22 -
CONCLUSION
The Court should hold that the district court erred in granting summary
judgment to the defendants on the ground that plaintiffs had failed to establish a
prima facie case of disparate impact.
Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General
s/April J. Anderson DENNIS J. DIMSEY APRIL J. ANDERSON Attorneys Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 616-9405

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type volume limitation

imposed by Federal Rule of Appellate Procedure 32(a)(7)(B) and 29(d). The brief

was prepared using Microsoft Word 2007 and contains no more than 5200 words

of proportionally spaced text. The type face is Times New Roman, 14-point font.

I further certify that the electronic version of this brief, prepared for

submission via ECF, has been scanned with the most recent version of Trend

Micro Office Scan (version 8.0) and is virus-free.

Date: June 3, 2011

s/April J. Anderson APRIL J. ANDERSON Attorney

CERTIFICATE OF BAR MEMBERSHIP Pursuant to Local Rules 28.3(d) and 46.1(a), I hereby certify that I am exempt from the Third Circuit’s bar admission requirement as counsel to the United States.

Date: June 3, 2011

s/Dennis J. Dimsey DENNIS J. DIMSEY Attorney
s/April J. Anderson APRIL J. ANDERSON Attorney

CERTIFICATE OF SERVICE I hereby certify that on June 3, 2011, I electronically filed the foregoing BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF NEITHER PARTY with the Clerk of the Court for the United States Court of Appeals for the Third Circuit by using the appellate CM/ECF system. I further certify that on June 3, 2011, ten (10) paper copies, identical to the brief filed electronically, were sent to the Clerk of the Court by U.S. mail. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system
s/April J. Anderson APRIL J. ANDERSON Attorney

 
 No. _________ ================================================================
In The
Supreme Court of the United States

---------------------------------  ---------------------------------

TOWNSHIP OF MOUNT HOLLY, TOWNSHIP COUNCIL OF TOWNSHIP OF MOUNT HOLLY, KATHLEEN HOFFMAN, as Township Manager of the Township of Mount Holly, JULES THIESSEN,
as Mayor of the Township of Mount Holly,
Petitioners, v.
MT. HOLLY GARDENS CITIZENS IN ACTION, INC., et al.,
Respondents.
---------------------------------  ---------------------------------

On Petition For Writ Of Certiorari To The United States Court Of Appeals
For The Third Circuit
---------------------------------  ---------------------------------

PETITION FOR A WRIT OF CERTIORARI ---------------------------------  ---------------------------------

June 11, 2012

M. JAMES MALEY, JR. Counsel of Record
ERIN E. SIMONE EMILY K. GIVENS MALEY & ASSOCIATES, P.C. 931 Haddon Avenue Collingswood, New Jersey 08108 (856) 854-1515 jmaley@maleyassociates.com
Counsel for Petitioners

================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

i
QUESTIONS PRESENTED
The Fair Housing Act makes it unlawful “[t]o refuse to sell or rent after the making of a bona fide offer . . . or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. §3604(a). Reversing the District Court’s decision, the Third Circuit found that the Respondents presented a prima facie case under the Fair Housing Act because Petitioners sought to redevelop a blighted housing development that was disproportionately occupied by low and moderate income minorities and because the redevelopment sought to replace the blighted housing with new market rate housing which was unaffordable to the current residents within the blighted area. The Third Circuit found that a prima facie case had been made despite the fact that there was no evidence of discriminatory intent and no segregative effect.
The following are the questions presented, which include subparts:
1. Are disparate impact claims cognizable under the Fair Housing Act?
2. If such claims are cognizable, should they be analyzed under the burden shifting approach used by three circuits, under the balancing test used by four circuits, under a hybrid approach used by two circuits, or by some other test?

ii
QUESTIONS PRESENTED – Continued
(a) What is the correct test for determining whether a prima facie case of disparate impact has been made?
(b) How should statistical evidence be evaluated?
(c) What is the correct test for determining when a Defendant has satisfied its burden in a disparate impact case?

iii
PARTIES TO THE PROCEEDING
Pursuant to Rule 14.1(b), the following list identifies all of the parties appearing here and before the United States Court of Appeals for the Third Circuit:
The Petitioners here and Defendants-Appellees below are Township of Mount Holly, Township Council of Township of Mount Holly, Kathleen Hoffman, as Township Manager of the Township of Mount Holly, Jules Thiessen, as Mayor of the Township of Mount Holly.
The Respondents here and Plaintiffs-Appellants below are Mt. Holly Gardens Citizens in Action, Inc., a New Jersey non-profit corporation, Ana Arocho, Vivian Brooks, Bernice Cagle, George Chambers, Dorothy Chambers, Santos Cruz, Elida Echevaria, Norman Harris, Mattie Howell, Nancy Lopez, Dolores Nixon, Leonardo Pagan, James Potter, Henry Simons, Joyce Starling, Robert Tigar, Taisha Tirado, Radames Torres Burgos, Lillian Torres-Moreno, Dagmar Vicente, Alandia Warthen, Sheila Warthen, Charlie Mae Wilson And Leona Wright.
The Respondents here and Defendants-Appellees below are Keating Urban Partners, L.L.C., and Triad Associates, Inc.
The United States Department of Justice, Civil Rights Division, and the United States Department of Housing and Urban Development (HUD) filed an Amicus brief in the Third Circuit.

iv
PARTIES TO THE PROCEEDING – Continued
Maria Arocho, Pedro Arocho, Reynaldo Arocho, Christine Barnes, Leon Calhoun, Vincent Munoz, Angelo Nieves, Elmira Nixon, Rosemary Roberts, William Roberts, Efraim Romero, Phyllis Singleton, Flavio Tobar, and Marlene Tobar were all named as plaintiffs in the Second Amended Complaint filed in the United States District Court for the District of New Jersey, but did not participate in the appeal to the Third Circuit.

v
TABLE OF CONTENTS Page
QUESTIONS PRESENTED .................................. i PARTIES TO THE PROCEEDING ....................... iii TABLE OF CONTENTS......................................... v TABLE OF CITED AUTHORITIES ...................... ix PETITION FOR A WRIT OF CERTIORARI ......... 1 OPINIONS BELOW ............................................... 1 JURISDICTION ..................................................... 1 STATUTORY CITATIONS INVOLVED................. 2 STATEMENT OF THE CASE................................ 2
I. Background .................................................. 2 A. The 2002 Redevelopment Designation.... 3 B. The Redevelopment Plans..................... 5 C. Implementing the Redevelopment Plans ... 6 D. Federal Court Litigation ....................... 10
II. Decisions of the District Court .................... 11 III. Decision of the Third Circuit Court of Ap-
peals........................................................... 12 REASONS FOR GRANTING THE PETITION ..... 13
I. THIS COURT HAS NOT YET DECIDED WHETHER DISPARATE IMPACT CLAIMS ARE COGNIZABLE UNDER THE FAIR HOUSING ACT ......................................... 13 A. The FHA’s Plain Language Indicates the FHA did not Include Disparate Impact Claims ..................................... 15

vi
TABLE OF CONTENTS – Continued Page
B. Congress never Amended the FHA to Include Disparate Impact Claims ....... 17
C. Disparate Impact Claims are Unnecessary to Further the Purposes of the FHA ..................................................... 18
II. THE CIRCUITS ARE SPLIT ..................... 22
A. Circuits Applying a Burden Shifting Test ...................................................... 23
1. The Second & Third Circuits’ Variations ............................................. 23
2. The Sixth and Eighth Circuits’ Variations ............................................. 25
3. The First Circuit’s Variations......... 26
4. The Fourth and Ninth Circuits’ Variations ............................................. 27
B. The Multi-Factor Test ......................... 28
1. The Seventh Circuit’s Variations ..... 28
2. The Fourth, Sixth, and Ninth Circuits’ Variations .............................. 29
C. The Combination Test ......................... 30
1. The Tenth Circuit’s Variations ....... 30
2. The Second Circuit’s Variations ..... 31
III. THE THIRD CIRCUIT’S DECISION CONFLICTS WITH ONE OF THE LEGISLATIVE GOALS OF THE FHA....................... 33

vii
TABLE OF CONTENTS – Continued
Page
IV. THIS CASE PROVIDES THE IDEAL OPPORTUNITY TO RESOLVE IMPORTANT ISSUES REGARDING THE SCOPE OF THE FHA................................ 37
CONCLUSION..................................................... 39
APPENDIX
Appendix A: Opinion of the United States Court of Appeals for the Third Circuit, entered on September 13, 2011 ..................................1a
Appendix B: Judgment of the United States Court of Appeals for the Third Circuit, entered on September 13, 2011 ................................30a
Appendix C: Opinion of the United States District Court for the District of New Jersey, entered on January 3, 2011 ..................................33a
Appendix D: Order Granting Summary Judgment, issued by the United States District Court for the District of New Jersey, entered on January 3, 2011................................................62a
Appendix E: Order Denying the Township’s Request for a Rehearing En Banc, issued by the United States Court of Appeals for the Third Circuit, dated March 14, 2012 ...................63a

viii
TABLE OF CONTENTS – Continued
Page
Appendix F: New Jersey Statutes, N.J.S.A. 40A:12A-5 to 40A:12A-7........................................65a
Appendix G: Census data from the 2010 Census of Population and Housing Prepared by the New Jersey Department of Labor & Workforce Development, Division of Labor Market and Demographic Research, dated May 2011, available at http://lwd.dol. state.nj.us/labor/lpa/census/2010/dp/dp1_bur/ mountholly1.pdf, last visited 5-14-12...................78a

ix
TABLE OF AUTHORITIES Page
CASES Anderson v. U.S., 417 U.S. 211 (1974) .......................38 Arcadia v. Ohio Power Co., 498 U.S. 73 (1990) .........38 Arthur v. City of Toledo, Ohio, 782 F.2d 565
(6th Cir. 1986) ...................................................29, 30 Austin Indep. Sch. Dist. v. U.S., 429 U.S. 990
(1976) .......................................................................20 Betsey v. Turtle Creek Associates, 736 F.2d 983
(4th Cir. 1984) ...................................................27, 28 City of Cuyahoga Falls, Ohio v. Buckeye Cmty.
Hope Found., 538 U.S. 188 (2003)..........................13 City of Memphis v. Greene, 451 U.S. 100 (1981)........20 CSX Transp., Inc. v. Alabama Dept. of Revenue,
131 S. Ct. 1101 (2011) .............................................15 Dean v. U.S., 556 U.S. 568 (2009) ..............................17 Exxon Mobil Corp. v. Allapattah Services, Inc.,
545 U.S. 546 (2005) .................................................15 Fong Yue Ting v. U.S., 149 U.S. 698 (1893) .................9 Gallagher v. Magner, 619 F.3d 823 (8th Cir.
2010) ........................................................................25 Gamble v. City of Escondido, 104 F.3d 300 (9th
Cir. 1997) .................................................................27 Gilmer v. Interstate/Johnson Lane Corp., 500
U.S. 20 (1991)..........................................................38

x
TABLE OF AUTHORITIES – Continued Page
Graoch Assoc. #33, L.P. v. Louisville/Jefferson County Metro Human Relations Comm’n, 508 F.3d 366 (6th Cir. 2007) ..............................22, 25, 26
Griggs v. Duke Power Co., 401 U.S. 424 (1971).........18
Gross v. FBL Fin. Services, Inc., 557 U.S. 167 (2009) .......................................................................17
Hazelwood Sch. Dist. v. U.S., 433 U.S. 299 (1977) .......................................................................26
Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926 (2d Cir. 1988) ..........32, 33
Int’l Broth. of Teamsters v. U.S., 431 U.S. 324 (1977) .......................................................................18
Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180 (4th Cir. 1999) ........19, 34
Keith v. Volpe, 858 F.2d 467 (9th Cir. 1988) .....22, 28, 29
Lamie v. U.S. Trustee, 540 U.S. 526 (2004) ...............15
Langlois v. Abington Hous. Auth., 207 F.3d 43 (1st Cir. 2000) ....................................................26, 27
Linmark Associates, Inc. v. Willingboro Twp., 431 U.S. 85 (1977)...................................................36
Magner v. Gallagher, Case No.: 10-1032........12, 13, 37
McCleskey v. Zant, 499 U.S. 467 (1991).....................38
Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008)..........................................................25
Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) ................................................................37

xi
TABLE OF AUTHORITIES – Continued Page
Metro. Housing Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977)........... passim
Mitchell v. Forsyth, 472 U.S. 511 (1985)....................38
Mount Holly Citizens in Action, et al. v. Tp. of Mount Holly, et al., 2011 WL 9405 ...........................1
Mount Holly Citizens in Action, Inc. v. Tp. of Mount Holly, 658 F.3d 375 (3d Cir. 2011) ................1
Mountain Side Mobile Estates P’ship v. Sec’y of Hous. & Urban Dev., 56 F.3d 1243 (10th Cir. 1995) ..................................................................30, 31
Nixon v. Fitzgerald, 457 U.S. 731 (1982) ...................38
Ojo v. Farmers Group, Inc., 600 F.3d 1205 (9th Cir. 2010) .................................................................27
Otero v. New York City Hous. Auth., 484 F.2d 1122 (2d Cir. 1973) ..................................................34
Reinhart v. Lincoln County, 482 F.3d 1225 (10th Cir. 2007) .................................................30, 31
Resident Advisory Bd. v. Rizzo, 564 F.2d 126 (3d Cir. 1977) ...........................................................23
Salute v. Stratford Greens Garden Apartments, 136 F.3d 293 (2d Cir. 1998) .....................................23
Smith v. City of Jackson, Miss., 544 U.S. 228 (2005) .................................................................15, 17
Smith v. Town of Clarkton, N.C., 682 F.2d 1055 (4th Cir. 1982) .........................................................29
Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863 (2011) ................................................................18

xii
TABLE OF AUTHORITIES – Continued Page
Town of Huntington, N.Y. v. Huntington Branch, N.A.A.C.P., 488 U.S. 15 (1988) .........................13, 32
Trafficante v. Metro. Life Ins. Co., 409 U.S. 205 (1972) .......................................................................18
Tsombanidis v. W. Haven Fire Dept., 352 F.3d 565 (2d Cir. 2003) ....................................................24
U.S. v. Badgett, 976 F.2d 1176 (8th Cir. 1992) ..........26 U.S. v. Tohono O’Odham Nation, 131 S. Ct.
1723 (2011) ..............................................................17 Virginia Bankshares, Inc. v. Sandberg, 501
U.S. 1083 (1991)......................................................38 Watson v. Fort Worth Bank & Trust, 487 U.S.
977 (1988) ....................................................19, 25, 26 Woods-Drake v. Lundy, 667 F.2d 1198 (5th Cir.
1982) ........................................................................34 Ybarra v. Town of Los Altos Hills, 503 F.2d 250
(9th Cir. 1974) .........................................................21
STATUTES 28 U.S.C. §1254 ............................................................1 28 U.S.C. §1291 ............................................................2 28 U.S.C. §1331 ............................................................2 28 U.S.C. §2101(c) ........................................................1 29 U.S.C. §621 ......................................................15, 16 29 U.S.C. §623 ............................................................16

xiii
TABLE OF AUTHORITIES – Continued Page
42 U.S.C. §2000e................................................. passim 42 U.S.C. §2000e-2 .....................................................16 42 U.S.C. §3601 ..............................................14, 19, 37 42 U.S.C. §3602 ..........................................................16 42 U.S.C. §3604 .................................................. passim 42 U.S.C. §3605 ..........................................................16 42 U.S.C. §3606 ..........................................................16 42 U.S.C. §3607 ............................................................2 42 U.S.C. §3617 ..........................................................16 42 U.S.C. §12101 ........................................................15 42 U.S.C. §12112.........................................................16 N.J.S.A. 20:4-5 ..............................................................8 N.J.S.A. 20:4-6 ..............................................................8 N.J.S.A. 40A:12A-1.......................................................4
OTHER AUTHORITIES 114 Cong. Rec. 2279....................................................21 114 Cong. Rec. 2525....................................................33 114 Cong. Rec. 3422....................................................33
SUPREME COURT RULES Rule 10 ..................................................................13, 22 Rule 13.1 .......................................................................1

xiv
TABLE OF AUTHORITIES – Continued Page
Rule 13.3 .......................................................................1 Rule 14.1 ..................................................................... iii
REGULATIONS 76 FR 70922 ................................................................18 N.J.A.C. 5:11-3.5 ...........................................................8 N.J.A.C. 5:11-3.7 ...........................................................8

1
PETITION FOR A WRIT OF CERTIORARI
Petitioners, Township of Mount Holly, Township Council of Township of Mount Holly, Kathleen Hoffman, and Jules Thiessen, respectfully Petition for a Writ of Certiorari to review the opinion and judgment of the Third Circuit Court of Appeals.
---------------------------------  ---------------------------------
OPINIONS BELOW
The Third Circuit’s decision (Pet. App. 1a-29a) is reported at 658 F.3d 375. Petitioners’ Motion for Rehearing En Banc was denied on April 13, 2012. (Pet. App. 62a-63a). The Third Circuit considered this matter on appeal from the U.S. District Court, District of New Jersey Opinion Mount Holly Citizens in Action, et al. v. Tp. of Mount Holly, et al., reported at 2011 WL 9405. (Pet. App. 30a-61a).
---------------------------------  ---------------------------------
JURISDICTION
The Judgment of the Third Circuit sought to be reviewed was entered on September 13, 2011 and the order denying the Township’s Motion for Rehearing en banc was entered on April 13, 2012. This Petition is timely under 28 U.S.C. §2101(c) and Supreme Court Rule 13.1 and Rule 13.3, because it is being filed within 90 days of the entry of the Order denying rehearing en banc. This Court has jurisdiction to review the judgment of the Third Circuit pursuant to 28 U.S.C. §1254(1) and has jurisdiction to consider

2
a matter involving a federal statute (42 U.S.C. §3604(a)), pursuant to 28 U.S.C. §1291 and §1331.
---------------------------------  ---------------------------------
STATUTORY CITATIONS INVOLVED
The relevant statutory provision involved is 42 U.S.C. §3604(a), as set forth below:
As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful –
(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.
---------------------------------  ---------------------------------
STATEMENT OF THE CASE
I. Background.
This matter involves a challenge to a redevelopment plan, adopted to address blight conditions on property comprised of vacant land and a residential area of Mount Holly Township known as “the Gardens.” The Gardens is a 30 acre area, containing 329 inexpensive, market rate units, which were predominately occupied by low and moderate income households. (Pet. App. 5a). As of 2000, 74.9% of the

3
Garden’s residents were minority and 19.7% were White. (Pet. App. 6a).
Mount Holly Township is a small New Jersey municipality comprised of approximately 2.9 square miles, and is the county seat for Burlington County. In 2000, its population was 10,728, of which 66.19% were Non-Hispanic White alone. (Document #17-04, Ja103).1 Its current population is 9,536, of which 60.1% are Non-Hispanic White alone. (Pet. App. 78a79a).
A. The 2002 Redevelopment Designation.
The Gardens had been problematic for the Township of Mount Holly (hereinafter the “Township”) for many years because of high crime, poor maintenance, a heavy concentration of rental units, overcrowding, code violations, and related problems. (Pet. App. 6a7a). As explained in the 2002 Redevelopment Area Determination Report (hereinafter the “Determination Report”), as of 2002 “the Gardens area accounted for 28 percent of the Township’s Part 1 crimes, even though it is only (sic) accounts for 1.5 percent of the Township’s total land area.” (Document #17-21, p.9,
1 References to “Document #___” are to the documents filed in the District Court below in this case. The number refers to the document number generated by the electronic filing system. References to “Ja__” are to the Joint Appendix filed by the Parties in this action in the Third Circuit. The number following the “Ja” refers to the page of the Joint Appendix in which the exhibit can be found.

4
Ja781). The Determination Report further noted that the layout of the buildings contributed to this crime problem due to “paved alley[s] where activity can take place under cover.” Id.
In the ten years preceding the redevelopment designation, Township Police employed several police initiatives to combat the crime problem in the Gardens. Between 1991 and 1997, approximately 419 arrests occurred within the Gardens because of police initiatives. (Document #76-3, ¶8, Ja1931-1932). In 1999 alone, there were 152 arrests in the Gardens. (Document #17-21, p.12, Ja784). Despite these efforts, there was still significant criminal activity in the Gardens in 2002.
Moreover, the Township cited properties for maintenance and other property code violations. Between 1996 and 2002, the 329 Gardens properties collectively generated 1,117 code violation citations. (Document #17-21, p.16 & 38-43, Ja788 & 810-815). In the late 1990’s, several organizations attempted to rehabilitate some units within the Gardens, including a group organized with Township support called Mount Holly 2000 (Pet. App. 7a, and 49a, n.11). Despite these projects, the blight conditions were not corrected. Id.
Because it was evident that small scale attempts to correct the problem were not working, in 2002, the Township designated the Gardens as an area in need of redevelopment pursuant to The Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq.

5
This designation under New Jersey law constitutes “blight” under the New Jersey Constitution.
B. The Redevelopment Plans.
In 2003 the Township adopted a Redevelopment Plan for the Gardens. (Document #17-23, Ja842-866). Immediately, the Gardens residents filed suit challenging both the designation and the redevelopment plan and alleging discrimination. (Pet. App. 11a-12a). Throughout the four years of litigation in State Court, all levels of the New Jersey Courts upheld the redevelopment or blight designation. (Document #1731, p.1, Ja1114 and Document #17-32, Ja1133). In upholding the redevelopment designation, the New Jersey Courts found that the Gardens was a “dilapidated, overcrowded, poorly designed community” that was “detrimental to the safety, health, morals and welfare of the community.” (Document #17-31, p.1112, Ja1124-1125).
On December 16, 2004, the Township acquired 11.4 acres of vacant land immediately adjacent to the Gardens. Because the acquisition of this property presented an opportunity to formulate a more comprehensive plan for redevelopment, in 2005, the Township adopted an Amended Redevelopment Plan, called the “West Rancocas Redevelopment Plan,” for the Gardens and the adjacent vacant acreage. (Pet. App. 8a). After adoption of the 2005 Redevelopment Plan, the Township selected Keating Urban Partners, LLC as Redeveloper pursuant to a public Request for

6
Proposals process (“RFP”). (Document #17-30, p.9, ¶23-25, Ja1101).
Again, in 2008, the Township amended the 2005 Redevelopment Plan to conform to specifications of the Redeveloper’s project. (Pet. App. 58a). The 2008 Amended Redevelopment Plan called for acquisition and demolition of all the homes in the Gardens and the construction of 520 new residential units, as well as 54,000 square feet of commercial space and 4.33 acres of open space. (Document #37-2, p.12 & 34, Ja1587 & Ja1609). Of the 520 units, 464 will be market rate and 56 will be deed-restricted affordable housing units pursuant to New Jersey’s affordable housing laws. (Document #37-2, p.26, Ja1601).
C. Implementing the Redevelopment Plans.
The Township believed the adoption of the 2008 Amended Redevelopment Plan was the only way to improve the quality of life for the Gardens residents and the citizens of Mount Holly in general. The District Court specifically recognized the Township was motivated by significant concern for the Gardens residents’ welfare. (Pet. App. 56a-57a).
Because of their concerns for the impact of the Redevelopment Plan on the Gardens residents, the Township decided to implement the redevelopment plan by voluntarily buying houses and/or providing relocation benefits to residents who sought assistance from the Township for personal reasons, unrelated to redevelopment.

7
Over the last 10 years, the Township acquired and demolished over 237 of the 329 units in the area through voluntary sales and has not begun a single eminent domain proceeding.2 (Pet. App. 10a-11a). Not a single Plaintiff nor any other resident has been evicted or ordered to vacate or move from their home. (Pet. App. 47a). Rather, the Township gave the Gardens residents a notice advising them not to move until they were directed to move by the Township. Id.
Many Gardens residents still chose to voluntarily sell their property because of the proposed redevelopment project and also because of personal reasons, including threatened foreclosure of their homes, new jobs, Section 8 issues, non-payment of rent, to attend a new school, overcrowding in the structure, N.J. District attorney seizure of their home, and death. (Document #76-1, ¶11.a, ¶12.b, ¶23a-b, ¶26.a-c & e-f, ¶27.b & d, and ¶29.b; Ja1850, Ja1852, Ja1863, Ja1865-1870 & Ja1874).
The Township then demolished the Township owned properties because, as was specifically found by the New Jersey Courts, the vacant buildings posed a health and safety threat.3 To date, only 70 of the original 329 units remain in private ownership and
2 In 2011, the Township began the appraisal and negotiation process that precedes eminent domain actions, which was stayed by the Third Circuit.
3 Even Plaintiffs admit that the Township owned properties were posing health and safety hazards, namely infestation, fire hazards and mold. (Document #94, p.10, Ja1978).

8
nearly all 237 of the Township owned properties have been demolished. (Pet. App. 10a & 11a). Throughout this demolition process, despite Plaintiffs’ numerous requests for injunctions, no Federal or State court has prevented the Township from demolishing Townshipowned buildings.
In implementing the Redevelopment Plan, the Township took care to ensure that those who wanted to remain in Mount Holly would find appropriate replacement housing. The District Court specifically noted “[The Township] represent[s] and Plaintiffs do not dispute that none of these people who have relocated and wanted to remain in Mount Holly were unable to.” (Pet. App. 55a, n.16).
To assist residents in finding an appropriate replacement home, the Township gave relocating residents double the relocation benefits required under State law. (Pet. App. 55a, n.16). Specifically, tenants were given $7,500 in relocation benefits, which was $3,500 above the statutory maximum of $4,000. (Compare Document #76-1, ¶5, Ja1844 with N.J.S.A. 20:4-5(a) and N.J.A.C. 5:11-3.7(a)). Similarly, homeowners were given $35,000 in relocation benefits in the form of $15,000 as the statutory maximum payment and a $20,000 no payment and no interest loan which need not be repaid until the new replacement home was sold. (Compare Document #76-1, ¶5, Ja1844 with N.J.S.A. 20:4-6(a) and N.J.A.C. 5:113.5(a)).

9
In addition, the Township provided a variety of social services to the relocating residents. (Document #94, p.14 n.7, Ja1982 and Document #76-1, Ja18441872). Over 139 families have relocated from the Gardens, including three former Plaintiffs and there is no evidence that anyone has been made homeless or could not find an appropriate replacement home as a result of the Township’s actions.4 In fact, many of the former residents’ economic situations improved as a result of the relocation process. (Pet. App. 59a, n.16).
Despite the fact that the Gardens contained the Township’s largest concentration of its Hispanic and African-American populations (Pet. App. 6a), the relocation of over 200 Gardens households has not resulted in any decrease in the Township’s minority population. In fact, according to the 2010 Census of Population and Housing,5 Mount Holly’s minority population has actually grown since 2000 (compare 8.78% Hispanic and 20.08% African-American in 2000 to 12.7% Hispanic and 23.1% African-American in 2010). (Pet. App. 78a-79a & Document 17-04, p.48, Ja103).
As of May 2008 Mount Holly Township had spent $16 million in acquisitions, relocations, litigation
4 The only exception is Alandia Warthen, who moved in 2005 as a result of her landlord’s actions, not the Township’s, and whose move predated the opening of the Township’s relocation office. (Pet. App. 47a).
5 The Court is permitted to take judicial notice of Census data. See Fong Yue Ting v. U.S., 149 U.S. 698, 734 (1893).

10
expenses and other costs in furtherance of the Gardens redevelopment.
D. Federal Court Litigation.
After losing on appeal in all levels of the State Courts, Plaintiffs filed suit in Federal District Court. Plaintiffs claimed that the Township’s actions were having a disparate impact on minorities based on two statistics. First, Plaintiffs claimed that 22.54% of African-American and 32.31% of Hispanic households as compared to 2.73% of White households in Mount Holly would be affected by the demolition of the Gardens properties. (Pet. App. 15a-16a). Second, Plaintiffs’ expert claimed that the 2000 Census data showed that only 21% of the minority households in Burlington County, as compared to 79% of the White households could afford the new housing proposed under the redevelopment plan. Id.
In challenging these statistics, the Township pointed out that the first statistics, concerning the impact of the demolitions, did not consider appropriate comparable groups. The expert arrived at these numbers by comparing the percentage of Whites, Hispanics and African-American residents living in the Township with those living in the Gardens. (Compare Pet. App. 15a-16a with Document #17-4, p.49, Ja104). This statistic only shows that the minority population is overrepresented in the Gardens, as compared to the rest of Mount Holly. (Document #94, p.6-7, Ja1974-1975).

11
As to the second statistic, namely the minorities who cannot afford the new housing, Plaintiffs’ statistics are not consistent with the record. Plaintiffs’ expert opined that only households above 80% of the area median income can afford to move into the proposed Project. (Pet. App. 45a, n.9). According to the 2000 Census data, there are a total of 123,725 White households in Burlington County, and of those households, 36,185 have incomes under 80% of the Median Family Income, meaning 87,540 White households (70.7%) can afford the new housing. (Document #17-4, p.51, Ja106). By contrast, there are 24,806 minority households in Burlington County, and of those, 8,861 have incomes under 80% of the Median Family Income, meaning 15,945 minority households (64.2%) can afford the new housing. Id. This is contrary to Plaintiffs’ statistics (21% versus 79%).
Plaintiffs also claimed that rehabilitation of existing units was a feasible option, citing to a “Biber Report” done in 1989 (hereinafter “1989 Report”). (Pet. App. 26a-27a). The 1989 Report concluded that to undertake rehabilitation, even with the use of public funding sources and resale income, there would be a significant financial gap of over $2.5 million in 1989 dollars. (Pet. App. 49a-50a).
II. Decisions of the District Court.
After Plaintiffs Complaint was filed on May 27, 2008, the Township filed a Motion to Dismiss, which

12
the District Court granted in part and denied in part on October 28, 2008. Upon Plaintiffs’ filing of a Second Amended Complaint, the Township filed a second Motion to Dismiss, which the District Court converted to a summary judgment motion on October 23, 2009. On January 3, 2011, the District Court entered Summary Judgment in favor of the Township finding that: (1) Plaintiffs’ failed to establish a prima facie case of disparate impact under the FHA; (2) even if they had, Plaintiffs failed to show there were less restrictive means available to the Township; and (3) Plaintiffs failed to establish intentional discrimination. (Pet. App. 38a, 43a & 55a).
III. Decision of the Third Circuit Court of Appeals.
Plaintiffs appealed the District Court’s grant of summary judgment to the Third Circuit. The Third Circuit reversed the District Court as to Plaintiffs’ FHA claim finding that Plaintiffs established a prima facie case of disparate impact sufficient to withstand summary judgment. (Pet. App. 15a-19a). The Third Circuit, however, affirmed the District Court’s finding that there was no evidence of intentional discrimination, upholding the grant of Summary Judgment for claims based on intentional discrimination. (Pet. App. 28a). The Township then filed a request for a rehearing en banc. Decision on the rehearing was deferred at Petitioner’s request pending this Court’s consideration of Magner v. Gallagher, Case No.: 10-1032, which had been pending before the Court. Upon withdrawal

13
of the Magner appeal, the Third Circuit denied rehearing. (Pet. App. 63a-64a).
---------------------------------  ---------------------------------
REASONS FOR GRANTING THE PETITION
I. THIS COURT HAS NOT YET DECIDED WHETHER DISPARATE IMPACT CLAIMS ARE COGNIZABLE UNDER THE FAIR HOUSING ACT.
Petition for Certiorari should be granted because this matter involves an important question concerning the Federal Fair Housing Act, 42 U.S.C. §3604 (“FHA”), which has not been, but should be, settled by this Court. Rule 10(c). To date, the Supreme Court has not decided whether disparate impact claims are cognizable under the FHA.6 Thus, the issue of whether disparate impact claims are cognizable under the FHA has remained unresolved and ripe for review for over two decades.
The provision of the FHA at issue in this case is 42 U.S.C. §3604(a). The FHA makes it unlawful “to
6 Although the Supreme Court has taken two disparate impact cases under FHA, it has never decided whether disparate impact claims are cognizable or what standard should be applied to such claims. See Town of Huntington, N.Y. v. Huntington Branch, N.A.A.C.P., 488 U.S. 15, 18 (1988) (the parties conceded the applicability of the disparate impact theory and the Court did not reach the question about the appropriateness of the test used) and City of Cuyahoga Falls, Ohio v. Buckeye Cmty. Hope Found., 538 U.S. 188, 199-200 (2003) (vacating the FHA claim because it was abandoned on appeal).

14
refuse to sell or rent . . . , or otherwise make available or deny, a dwelling to any person because of race, color, religion, sex, familial status or national origin.” 42 U.S.C. §3604(a). The District and Circuit Courts below have interpreted this language to encompass both disparate treatment and disparate impact theories of liability. (Pet. App. 13a-14a & 41a42a). The Third Circuit found no evidence of discriminatory intent or disparate treatment, and upheld the District Court’s grant of Summary Judgment to the Township on those claims, leaving only Plaintiffs’ disparate impact claim under the FHA. (Pet. App. 18a-19a & 28a).
Before this Court can determine which test should be applied to a disparate impact claim, it must first consider the threshold question of whether disparate impact claims are cognizable under the Fair Housing Act. This antecedent question is critical in this case because if disparate impact claims are not cognizable under the FHA, there is no need to decide which test to apply.
Most Circuit Courts deciding this issue have concluded that disparate impact claims are cognizable under Title VIII, 42 U.S.C. §3601 et seq. because there are similarities between Title VII, 42 U.S.C. §2000e et seq. and Title VIII. However, the plain language and purpose of the FHA differs significantly from the plain language and purpose of Title VII, making disparate impact claims under the FHA inappropriate. Granting this Petition is essential to provide the Circuit Courts with definitive and necessary

15
guidance for determining when an FHA claim has been made.
A. The FHA’s Plain Language Indicates the FHA did not Include Disparate Impact Claims.
Unlike Title VII, the Age Discrimination in Employment Act of 1967, 29 U.S.C. §621, et seq. (“ADEA”), and the Americans with Disabilities Act of 1990, 42 U.S.C. §12101, et seq. (“ADA”), the FHA’s statutory language does not include language addressing discriminatory effect. Previously, this Court noted the importance of considering “key textual differences” between statutory provisions when determining whether a disparate impact claim is cognizable under the ADEA. Smith v. City of Jackson, Miss., 544 U.S. 228, 236, n.6 (2005).
When undertaking statutory interpretation, the Supreme Court must “begin, as in any case of statutory interpretation, with the language of the statute.” CSX Transp., Inc. v. Alabama Dept. of Revenue, 131 S. Ct. 1101, 1107 (2011). This is because “the authoritative statement is the statutory text, not the legislative history or any other extrinsic material.” Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 568 (2005). “ ‘[W]hen the statute’s language is plain, the sole function of the courts – at least where the disposition required by the text is not absurd – is to enforce it according to its terms.’ ” Lamie v. U.S. Trustee, 540 U.S. 526 (2004).

16
The ADA, ADEA, and Title VII by their express language each prohibit the “effect” or “impact” of certain actions by using the term “affect” when describing unlawful actions. See 42 U.S.C. §2000e2(a)(2) (emphasis added) (unlawful to “otherwise adversely affect his status”); 42 U.S.C. §12112(b)(1) (emphasis added) (unlawful to take action “that adversely affects the opportunities or status of such applicant or employee”); and 29 U.S.C. §623(a)(1) (emphasis added) (unlawful to “otherwise adversely affect his status as an employee”).
By contrast, the FHA does not contain comparable language regarding “effect” or the “affect” of certain actions. “Discriminatory housing practice” is defined in the FHA as “an act that is unlawful under section [sic] 3604, 3605, 3606, or 3617 of this title.” 42 U.S.C. §3602(f ). None of those sections include language addressing discriminatory effect. Section 3604(a), which is the particular section at issue here, does not use the word “effect” or “affect” at all:
. . . it shall be unlawful –
(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.
42 U.S.C. §3604.
This Court has said, “ ‘we ordinarily resist reading words or elements into a statute that do not

17
appear on its face.’ ” Dean v. U.S., 556 U.S. 568, 572 (2009). Moreover, “considerations of policy divorced from the statute’s text and purpose could not override its meaning.” U.S. v. Tohono O’Odham Nation, 131 S. Ct. 1723, 1731 (2011). Since the FHA on its face does not discuss “affect” or “effect,” this Court should not read those words into the FHA. Thus, the plain language of the FHA does not permit a disparate impact claim.
B. Congress never Amended the FHA to Include Disparate Impact Claims.
Congress’s action in failing to amend the FHA to include disparate impact claims when it amended The Civil Rights Act of 1991 demonstrates Congress’s intent to exclude such claims under the FHA. If Congress had intended the FHA to apply to disparate impact claims, it would have amended the FHA when it amended The Civil Rights Act of 1991 to specifically include claims for discriminatory effect, as it had done to Title VII.
This Court has said that it is inappropriate to “ignore Congress’ decision to amend” Title VII where it did not make similar changes to similar laws because “[w]hen Congress amends one statutory provision but not another, it is presumed to have acted intentionally.” Gross v. FBL Fin. Services, Inc., 557 U.S. 167, 174 (2009). This was also one of the reasons why this Court chose to limit the scope of disparate impact claims under the ADEA. Smith v.

18
City of Jackson, supra, 544 U.S. at 240. In light of the lack of statutory reference to discriminatory effect, Congress’s failure to amend the FHA indicates Congress’s lack of intent to include disparate impact claims under the FHA.
C. Disparate Impact Claims are Unnecessary to Further the Purposes of the FHA.
While both Title VII and the FHA were designed to ameliorate the effects of discrimination, their purposes are very different. One of the main purposes of the FHA is to “replace the ghettos ‘by truly integrated and balanced living patterns.’ ” Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972), declined to follow on other grounds by Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863, 869 (2011). The Department of Housing and Urban Development (“HUD”) has also recognized the FHA was designed to address the “consequences of housing practices,” namely the creation, perpetuation or the increasing of segregation. 76 FR 70922.
By contrast, Title VII’s purpose was “to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees” because certain practices, policies and procedures “operate to ‘freeze’ the status quo of prior discriminatory employment practices.” Griggs v. Duke Power Co., 401 U.S. 424, 429-430 (1971). See also Int’l

19
Broth. of Teamsters v. U.S., 431 U.S. 324, 348-49 (1977). Discriminatory impact claims were permitted because certain practices operate as the functional equivalent of intentional discrimination. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987 (1988).
“Section 3604(a) is designed to ensure that no one is denied the right to live where they choose for discriminatory reasons.” The FHA was designed to “provide, within constitutional limitations, for fair housing throughout the United States.” 42 U.S.C. §3601. It was not meant to result in liability for actions that were taken for non-discriminatory purposes simply because they impact the availability of housing. As a result, not “every action which produces discriminatory effects is illegal.” Metro. Housing Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977). See also Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 192 (4th Cir. 1999) (stating the Fair Housing Act does not reach every event “that might conceivably affect the availability of housing.”).
The vast majority of disparate impact claims brought in the housing context are not the functional equivalent to intentional discrimination and result in the potential for liability for non-discriminatory actions. This is because disparate impacts in housing are often caused by a myriad of innocent causes unrelated to the actual housing policy being challenged.

20
For example, minorities might be overrepresented in a neighborhood due to voluntary housing patterns of the minority residents. In such a case, any policy that applies to such a neighborhood would have a disparate impact. See City of Memphis v. Greene, 451 U.S. 100, 128 (1981) (noting that “[b]ecause urban neighborhoods are so frequently characterized by a common ethnic or racial heritage, a regulation’s adverse impact on a particular neighborhood will often have a disparate effect on an identifiable ethnic or racial group”). However, as has been recognized in the school segregation context, a governmental actor cannot be held liable for an effect caused by residential housing patterns over which it had no control. Austin Indep. Sch. Dist. v. United States, 429 U.S. 990, 994 (1976).
Similarly, housing may be unavailable because it is blighted, unsafe or unsanitary. Occasionally, high concentrations of minorities live in such buildings or neighborhoods. If a governmental entity exercises its police powers through enforcement of building/ construction regulations, condemnation of unsafe buildings, or redevelopment of blighted areas, housing could be made unavailable. Such unavailability is due to the condition of the building or neighborhood, not the race of the occupant or owner of the house. Disparate impact on a minority group is simply an unavoidable consequence of such valid, legitimate governmental action needed to be taken for the public health and welfare.

21
Finally, housing can be unavailable because of the economic status of the household. Simply because minorities might be overrepresented among lowincome households does not mean that a policy affecting low-income households is an action taken “because of race.” This is because a mere statistical correlation between poverty and a particular race or ethnicity does not transform discrimination against poor people into racial discrimination. Ybarra v. Town of Los Altos Hills, 503 F.2d 250, 253 (9th Cir. 1974). Even the drafters of the FHA recognized that the law of economics impacts the availability of housing. See 114 Cong. Rec. 2279 (“Fair housing does not promise to end the ghetto . . . but it will make it possible for those who have the resources to escape. . . .”). Therefore, unless decisions regarding low-income housing is having a segregative effect by driving minorities out of the municipality or preventing minorities from moving in, the housing is not being made unavailable due to race.
Allowing disparate impact claims under the FHA would render illegal many legitimate governmental and private activities designed to promote the general welfare of the community. Limiting FHA claims to those showing proof of intentional discrimination, disparate treatment, and/or actual segregative effect will sufficiently advance the purposes of the FHA without unreasonably limiting valid activities. Thus, disparate impact claims are unnecessary.

22
II. THE CIRCUITS ARE SPLIT.
Petition for Certiorari should also be granted because this matter involves an important question concerning the FHA which has not been, but should be, settled by this Court, and over which the Circuit Courts have entered conflicting decisions. Rule 10(a) & (c). While this Court has addressed the appropriate standard for determining a prima facie case in Title VII employment discrimination cases, it has not done so for FHA cases involving disparate impact claims.7
This lack of guidance has resulted in the various Circuit Courts’ development and application of differing standards for determining not only when a plaintiff has satisfied its prima facie case under the FHA, but as to when a FHA violation has been proven. Several of the Circuits have recognized this split. See Graoch Assoc. #33, L.P. v. Louisville/ Jefferson County Metro Human Relations Comm’n, 508 F.3d 366, 382-385 (6th Cir. 2007) (Merritt concurring) and Keith v. Volpe, 858 F.2d 467, 483 (9th Cir. 1988). In addition, some Circuits have not applied a consistent standard within their Circuits when evaluating disparate impact claims. Clear guidance from the Supreme Court is necessary to avoid haphazard application of an important federal statute and to give clear standards to potential
7 As noted in Section I. above, the Supreme Court has taken two disparate impact cases under FHA, but has never addressed whether such claims are cognizable or what standard should be applied.

23
defendants as to when their conduct might potentially violate the FHA.
A. Circuits Applying a Burden Shifting Test.
The First, Second, Third, Fourth, Sixth, Eighth, and Ninth Circuits have applied a burden shifting test to determine whether a plaintiff has established a violation of the FHA.8 Under the burden shifting test, a plaintiff can establish a prima facie case by showing disparate impact alone, through statistics, and then the burden shifts back to the defendant to establish a defense. However, there is great variation among these Circuits as to what each party must prove and as to when the burden shifts back to the plaintiff.
1. The Second & Third Circuits’ Variations.
The variation applied by the Second and Third Circuit is the easiest standard for a plaintiff presenting a disparate impact claim. This standard was developed by the Third Circuit and adopted by the Second Circuit. See Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 148-49 (3d Cir. 1977) and Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 302 (2d Cir. 1998).
8 As will be discussed later, the Second, Fourth, Sixth, and Ninth Circuits have also applied other tests as well.

24
Under this variation, once a plaintiff has made a prima facie showing of disparate impact, the burden shifts to the defendant to show: (1) that it has a legitimate reason for its actions; and (2) there is no less restrictive means. (App. A, 22a). Only after a defendant has shown both, would the burden shift back to a plaintiff. Id. This is the standard applied by the Third Circuit in this case.
However, the Second and Third Circuits diverge as to what is required to establish a prima facie case. In the Third Circuit, a plaintiff is simply required to present statistics, of any type, so long as it shows disproportionate impact in some “plausible way.” (App. A, 14a). No specific standard applies for measuring disparate impact. Id. Any statistics will do.
By contrast, the Second Circuit requires proof of the following: “ ‘(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant’s facially neutral acts or practices[,]’ ” and (3) “a causal connection between the facially neutral policy and the alleged discriminatory effect.”9 Tsombanidis v. W. Haven Fire Dept., 352 F.3d 565, 574-575 (2d Cir. 2003) (emphasis original).
9 Title VII cases impose a similar causation requirement by requiring a plaintiff to (1) identify the specific employment practice being challenged and (2) provide “statistical evidence of a kind and degree sufficient to show that the practice in
(Continued on following page)

25
2. The Sixth and Eighth Circuits’ Variations.
The variation applied by the Eighth Circuit, and in at least one Sixth Circuit Court case, differs from the Third Circuit test by shifting the burden back to the plaintiff once the defendant has shown a legitimate business reason for its actions. Gallagher v. Magner, 619 F.3d 823, 837 (8th Cir. 2010) and Graoch Assoc., supra, 508 F.3d at 374. In other words, a plaintiff ’s prima facie case can be rebutted by a defendant solely by showing a legitimate business interest. Then, the burden shifts back to the plaintiff to show that the business reason is a pretext or that there is less discriminatory means. Id. This variation is essentially a variation of the McDonnell Douglas burden shifting framework applied in Title VII employment cases. Graoch Assoc. 508 F.3d at 374.
It is unclear as to what, if any, guidelines the Eighth Circuit utilizes for determining the sufficiency of statistics for a prima facie case of disparate impact because the Eighth Circuit has said, “[t]he elements of a prima facie case of discrimination will vary from case to case, depending on the allegations and the
question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” Watson, supra, 487 U.S. at 994. These requirements are imposed “to avoid the ‘result [of ] employers being potentially liable for “the myriad of innocent causes that may lead to statistical imbalances.” ’ ” Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 100 (2008).

26
circumstances.” U.S. v. Badgett, 976 F.2d 1176, 1178 (8th Cir. 1992).
By contrast, the Sixth Circuit has indicated that a plaintiff ’s statistics of disparate impact must be measured by inquiring into the impact of the action upon minorities in the total group to which the policy applied.10 Graoch Assoc., 508 F.3d at 378 (emphasis added). Simply because minorities are disproportionately represented in group to which a policy applies, that alone is not sufficient to establish a prima facie case of disparate impact. Id. at 378-379.
3. The First Circuit’s Variations.
The First Circuit burden shifting test differs from both the Third and Eighth Circuits because once a plaintiff establishes a prima facie case, a defendant can defeat an FHA claim by showing a “legitimate and substantial goal of the measure in question.” Langlois v. Abington Hous. Auth., 207 F.3d 43, 51 (1st Cir. 2000). In other words, when a defendant establishes a legitimate business reason for its action, a plaintiff ’s disparate impact claim fails. Id. Therefore,
10 In a Title VII case, this Court has also recognized that it may be appropriate to limit statistical evidence to the total group to which the policy applied. “When special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value.” Hazelwood Sch. Dist. v. U.S., 433 U.S. 299, 309 (1977). Accord, Watson, supra, 487 U.S. at 997.

27
unlike the Third and Eighth Circuits, there is no need or ability to show less restrictive means, by either a plaintiff or defendant.
Like the Third Circuit, no specific standard applies for measuring disparate impact, as any statistical analysis is sufficient. Id. at 50. However, in Langlois, the First Circuit did utilize the 4/5 test used in employment cases. Id.
4. The Fourth and Ninth Circuits’ Variations.
Neither the Fourth nor Ninth Circuit has been very clear on which test they employ. Both Circuits have indicated that once a plaintiff has shown proof of discriminatory impact, it is appropriate to shift the burden back to the defendant to establish a legitimate business necessity. See Betsey v. Turtle Creek Associates, 736 F.2d 983, 988-89 (4th Cir. 1984) and Ojo v. Farmers Group, Inc., 600 F.3d 1205, 1207 (9th Cir. 2010). The problem is that neither Circuit is clear as to whether they adopt the First, Third, or Eighth Circuit burden shifting tests. However, in at least one case, the Ninth Circuit did apply the Eighth Circuit burden shifting test to a disparate treatment claim. Gamble v. City of Escondido, 104 F.3d 300, 305 (9th Cir. 1997).
As for the establishment of a prima facie case of disparate impact, in the Fourth Circuit, the Court required that a plaintiff ’s statistics of disparate impact be measured by inquiring into the impact of

28
the action upon minorities in the total group to which the policy applied. Betsey, 736 F.2d at 988-89. It was insufficient to rely on absolute numbers. Simply because minorities are disproportionately represented in a group to which a policy applies, that alone is not sufficient to establish a prima facie case of disparate impact. Id.
However, in the Ninth Circuit, at least one case allowed a group of plaintiffs to establish disparate impact based on absolute numbers alone. Keith, supra, 858 F.2d at 484 (stating that because 2/3 of the group were minorities, disparate impact was shown).
B. The Multi-Factor Test.
The Fourth, Sixth, Seventh and Ninth Circuits have utilized a multi-factor test. Under the multifactor test, a plaintiff ’s FHA claim is based on a number of factors. There is no shifting of the burden to a defendant. Therefore, these factors are required both for establishment of a prima facie case and for proving an FHA violation.
1. The Seventh Circuit’s Variations.
In the Seventh Circuit, statistics alone are insufficient to establish a prima facie case. Rather, the Seventh Circuit requires proof of four factors:
(1) how strong is the plaintiff ’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not

29
enough to satisfy the constitutional standard of Washington v. Davis; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing.
Metropolitan Housing Development Corp., supra, 558 F.2d at 1290. Upon the weighing of these four factors, the evidence must tip in favor of the Plaintiffs. Id. at 1294.
The Seventh Circuit has also clarified that certain factors tip heavily either toward the plaintiff or the defendant. For example, “courts cannot be overly solicitous when the effect is to perpetuate segregated housing.” Id. at 1293. By contrast, “if the defendant is a governmental body acting within the ambit of legitimately derived authority, we will less readily find that its action violates the Fair Housing Act.” Id.
2. The Fourth, Sixth, and Ninth Circuits’ Variations.
Some version of the Seventh Circuit Test has been used by the Fourth, Sixth and Ninth Circuits. Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1065 (4th Cir. 1982); Arthur v. City of Toledo, Ohio, 782 F.2d 565 (6th Cir. 1986); and Keith, supra, 858 F.2d at 483 (applying both the 3rd/8th Circuit tests and the 4th/7th Circuit tests). While the Fourth and Ninth

30
Circuits have applied the test using all four factors, the Sixth Circuit has applied the test with only three of the four factors. Specifically, it did not require any showing of discriminatory intent (factor 2). Arthur, 782 F.2d at 575.
C. The Combination Test.
1. The Tenth Circuit’s Variations.
The Tenth Circuit uses a combination test that combines the Eighth Circuit’s burden shifting and the Seventh Circuit’s factor tests. The Tenth Circuit has been very specific as to what is required of a plaintiff and a defendant in an FHA case.
In a disparate impact case, a prima facie case can be shown by plaintiff by statistical disparity. Mountain Side Mobile Estates P’ship v. Sec’y of Hous. & Urban Dev., 56 F.3d 1243, 1253 (10th Cir. 1995). However, the statistical analyses must “involve the appropriate comparables.” Id. Additionally, some level of causation is required. See Reinhart v. Lincoln County, 482 F.3d 1225, 1230-31 (10th Cir. 2007) (stating “[i]t is not enough for the [plaintiffs] to show that (1) a regulation would increase housing costs and (2) members of a protected group tend to be less wealthy than others.)
Once a plaintiff has established their prima facie case, the burden shifts to the defendant who must “ ‘produce evidence of a genuine business need for the challenged practice.’ ” Reinhart, 482 F.3d at 1229. In

31
other words, “the defendant must demonstrate that the discriminatory practice has a manifest relationship to the housing in question.” Mountain Side, supra, 56 F.3d at 1254. A defendant’s proofs are evaluated based on three of the four Seventh Circuit’s Arlington Height’s factors (excludes proof of discriminatory intent). Reinhart, 482 F.3d at 1229).
However, in evaluating these factors, the Tenth Circuit has said that if a defendant offers “valid nonpretextual reasons for the challenged practices, the courts should not be overzealous to find discrimination.” Mountain Side, supra, 56 F.3d at 1253. Moreover, the Tenth Circuit has said “ ‘courts ought to be more reluctant to grant relief when the plaintiff seeks to compel the defendant to construct integrated housing or take affirmative steps to ensure that integrated housing is built than when the plaintiff is attempting to build integrated housing on his own land and merely seeks to enjoin the defendant from interfering with that construction.’ ” Id.
If a defendant can satisfy this burden, then the burden again shifts back to the plaintiff to “ ‘ “show that other [policies], without a similarly undesirable . . . effect, would also serve the [defendant’s] legitimate interest.” ’ ” Mountain Side, supra, 56 F.3d at 1254.
2. The Second Circuit’s Variations.
The Second Circuit’s standard is somewhat similar to the Tenth Circuit’s standard in that it

32
applies a combination burden shifting and factor test. However, the Second Circuit combines the Seventh and Third Circuits’ tests. While the Second Circuit has set forth very specific guidelines for how to evaluate a defendant’s justification and as to the weighing of the interests, the Second Circuit has not provided much guidance on evaluating a prima facie case.
The Second Circuit has said that once a plaintiff presents a prima facie case of disparate impact, the burden shifts to the defendant to “avoid liability.” Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 936 (2d Cir. 1988), aff ’d in part sub nom., Town of Huntington, N.Y. v. Huntington Branch, N.A.A.C.P., 488 U.S. 15 (1988). In deciding whether a defendant has met its burden, the Second Circuit requires a showing of three factors taken from both the Third Circuit and Seventh Circuit tests. These three factors are “(1) whether the reasons are bona fide and legitimate; and (2) whether any less discriminatory alternative can serve those ends” and (3) “whether the plaintiff is suing to compel a governmental defendant to build housing or only to require a governmental defendant to eliminate some obstacle to housing that the plaintiff itself will build.” Id. at 935-36 & 939.
Ultimately, “there must be a weighing of the adverse impact against the defendant’s justification.” Id. at 936. In undertaking this weighing, “the balance should be more readily struck in favor of the plaintiff when it is seeking only to enjoin a municipal

33
defendant from interfering with its own plans rather than attempting to compel the defendant itself to build housing.” Id. at 940.
III. THE THIRD CIRCUIT’S DECISION CONFLICTS WITH ONE OF THE LEGISLATIVE GOALS OF THE FHA.
The Third Circuit’s decision conflicts with one of the goals of the FHA because it impedes the Township’s ability to replace a minority predominated ghetto with an integrated mixed race, mixed income housing project. There are two concurrent goals of the FHA. The first goal is “that government protect the freedom of individuals to choose where they want to live.” 114 Cong. Rec. 2525 (statement of Sen. Brooke). The second goal is the replacement of minority predominated ghettos with “truly integrated and balanced living patterns.” See 114 Cong. Rec. 3422 (statement of Sen. Mondale).
Several Circuits have recognized these dual goals of the FHA: “the Act was intended to promote ‘open, integrated residential housing patterns and to prevent the increase of segregation, in ghettos, of racial groups whose lack of opportunities the Act was designed to combat.’ ” Metro. Housing Dev. Corp., supra, 558 F.2d at 1289.
The Fifth Circuit has stated, “[t]he provisions of 42 U.S.C. §3604 are to be given broad and liberal construction, in keeping with Congress’ intent in passing the Fair Housing Act of replacing racially

34
segregated housing with ‘truly integrated and balanced living patterns.’ ” Woods-Drake v. Lundy, 667 F.2d 1198, 1201 (5th Cir. 1982). The Second Circuit has gone so far as to say that the purpose of promoting integration is even more important than the policy of protecting a person’s choice of where to live.
Congress’ desire in providing fair housing throughout the United States was to stem the spread of urban ghettos and to promote open, integrated housing, even though the effect in some instances might be to prevent some members of a racial minority from residing in publicly assisted housing in a particular location. The affirmative duty to consider the impact of publicly assisted housing programs on racial concentration and to act affirmatively to promote the policy of fair, integrated housing is not to be put aside whenever racial minorities are willing to accept segregated housing. The purpose of racial integration is to benefit the community as a whole, not just certain of its members.
Otero v. New York City Hous. Auth., 484 F.2d 1122, 1134 (2d Cir. 1973). This is probably why several Circuit Courts have recognized that not “every action which produces discriminatory effects is illegal.” Metro. Housing Dev. Corp., supra, 558 F.2d at 1290; Jersey Heights, supra, 174 F.3d at 192.
Depending on the circumstance, disparate impact cases can create a conflict between the dual goals of the FHA. The most prominent example is when housing must be condemned, demolished and/or

35
redeveloped. In this case, Plaintiffs’ FHA claim causes a conflict between the dual goals of the FHA. The Township seeks to redevelop a blighted residential area which is predominately occupied by low and moderate income minority households and redevelop it into a mixed income neighborhood. The declaration of blight has been upheld by every level of New Jersey State Courts. The area is blighted and 80% of the area’s occupants are poor minorities. (Pet. App. 5a, 23a & 50a-51a, n.12-13). In its place, the Township’s plan seeks to construct up to 464 market rate houses (in the form of townhouses and apartments), and 56 deed restricted affordable housing units in accordance with New Jersey law. (Pet. App. 45a, n.7). In short, the Township’s plan would replace this segregated urban ghetto with a truly integrated housing pattern that is available to any household regardless of race.11
Plaintiffs demand that the area be redeveloped through rehabilitation only, and be undertaken in stages so that all of the existing residents who have successfully been relocated would move back to the neighborhood. (Pet. App. 26a). In short, they are
11 The District Court also found that “the record shows that other Garden residents whose homes have been acquired by the Township and have been relocated are pleased with both their compensation and place of relocation. In fact, the evidence demonstrates that many residents now have significantly improved living conditions and are in better circumstances financially.” (Pet. App. 55a, n.16). These facts are irrelevant in the Third Circuit disparate impact variation.

36
seeking to force the Township to perpetuate the segregated living conditions in the Gardens and spend millions of taxpayer dollars to do so. (See Pet. App. 49a-50a stating Plaintiffs’ proposed rehabilitation plan fails to account for a $2.5 million funding gap).
This Court has recognized that “Congress has made a strong national commitment to promote integrated housing.” Linmark Assoc., Inc. v. Willingboro Twp., 431 U.S. 85, 95 (1977). It is inconceivable that the drafters of the FHA would have intended that the FHA could be used to force governmental entities to continue or perpetuate segregation.
Yet, the Third Circuit’s decision allows just that. The Third Circuit’s decision places the Township between a rock and a hard place. Obviously, the Township’s redevelopment of the blighted area has resulted in Plaintiffs’ allegations of a FHA violation. But because there are a greater number of minorities living in the blighted area, a prima facie case is made under the Third Circuit’s variation. To the contrary, as the District Court noted “the ironic observation that if the Township had allowed the Gardens to continue to deteriorate as it had over the years, that it might then be fairly characterized as having a discriminatory intent towards its minority, low income residents.” (Pet. App. 58a, n.18).
This Court should grant certiorari to clarify the standard applicable in cases where the dual goals of the FHA are in conflict.

37
IV. THIS CASE PROVIDES THE IDEAL OPPORTUNITY TO RESOLVE IMPORTANT ISSUES REGARDING THE SCOPE OF THE FHA.
On November 7, 2011, this Court granted certiorari in Magner, supra, Case No.: 10-1032 to consider whether disparate impact claims are cognizable under the FHA and if so, what test should be applied. However, Magner was withdrawn by the parties before this Court could issue a decision on the merits. The within case presents exactly the same issues to be considered on certiorari as were presented in Magner. This Court should grant certiorari to clarify this important issue as it has once again come before this Court.
Because Third Circuit precedent has clearly established the cognizability of disparate impact claims under the FHA, any attempt by the Township to raise this challenge below would have been futile. Because the Township was unable to raise this challenge below, this argument was not waived. See Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 125 (2007) (failure to raise arguments was counsel’s sound assessment that the argument would be futile, not waiver). Although the Township may not have directly challenged the cognizability of disparate impact claims under the FHA, it did challenge the scope of the application of FHA in the redevelopment context, arguing that a redevelopment plan should not violate Title VIII unless it has a segregative effect. (Pet. App. 23a).

38
It is appropriate for this Court to hear this case because it presents a pure question of law, namely whether a disparate impact claim is cognizable under the FHA. While consideration of the facts below are relevant to determining whether any applicable test has been met, they are immaterial to the determination of whether disparate impact claims are cognizable and if so, which test should be applied. This Court has previously recognized that purely legal questions are appropriate for certiorari even if the question was not addressed by the lower court. See Nixon v. Fitzgerald, 457 U.S. 731, 743 n.23 (1982); and Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
Finally, a claim not raised by the petitioner below can be considered by the Court when “the interests of justice require its consideration,” Anderson v. U.S., 417 U.S. 211, 223 (1974), or “where the question (1) is in ‘a state of evolving definition and uncertainty,’ and (2) is ‘one of importance to the administration of federal law,’ ” Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1099 n.8 (1991). See also Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 37-38 (1991), Stevens dissenting, recognizing that “[o]nly this Term, the Court has on at least two occasions decided cases on grounds not argued in any of the courts below or in the petitions for certiorari” in Arcadia v. Ohio Power Co., 498 U.S. 73 (1990) and McCleskey v. Zant, 499 U.S. 467 (1991). The interests of justice dictate that this Court provide clear

39
guidance as to when a plaintiff has established an FHA claim.
---------------------------------  ---------------------------------
CONCLUSION
For the foregoing reasons, Petitioners respectfully request that a Writ of Certiorari be granted.
Respectfully submitted, M. JAMES MALEY, JR.
Counsel of Record ERIN E. SIMONE EMILY K. GIVENS MALEY & ASSOCIATES, P.C. 931 Haddon Avenue Collingswood, New Jersey 08108 (856) 854-1515 jmaley@maleyassociates.com Counsel for Petitioners

1a
APPENDIX A
PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
-----------------------------------------------------------------------
No. 11-1159
-----------------------------------------------------------------------
MT. HOLLY GARDENS CITIZENS IN ACTION, INC., a New Jersey non-profit corporation; PEDRO AROCHO; REYNALDO AROCHO; ANA AROCHO; CHRISTINE BARNES; BERNICE CAGLE; LEON CALHOUN;
GEORGE CHAMBERS; DOROTHY CHAMBERS; SANTOS CRUZ; ELIDA ECHEVARIA;
NORMAN HARRIS; MATTIE HOWELL; NANCY LOPEZ; VINCENT MUNOZ;
ELMIRA NIXON; LEONARDO PAGAN; ROSEMARY ROBERTS; WILLIAM ROBERTS;
EFRAIM ROMERO; HENRY SIMONS; JOYCE STARLING; TAISHA TIRADO; VIVIAN BROOKS; ANGELO NIEVES; DOLORES NIXON; ROBERT TIGAR; JAMES POTTER; RADAMES TORRES-BURGOS; LILLIAN TORRES-MORENO; DAGMAR VICENTE; CHARLIE MAE WILSON; LEONA WRIGHT; MARIA AROCHO; PHYLLIS SINGLETON; FLAVIO TOBAR; MARLENE TOBAR; SHEILA WARTHEN; ALADIA WARTHEN,
Appellants,
v.
TOWNSHIP OF MOUNT HOLLY, a municipal corporation of the State of New Jersey; TOWNSHIP

2a
COUNCIL OF TOWNSHIP OF MOUNT HOLLY, as governing body of the Township of Mount Holly; KATHLEEN HOFFMAN, as Township Manager of the Township of Mount Holly; KEATING URBAN
PARTNERS L.L.C., a company doing business in New Jersey; TRIAD ASSOCIATES, INC., a corporation doing business in New Jersey; JULES K. THIESSEN, as Mayor of the Township of Mount Holly.
-----------------------------------------------------------------------
On Appeal from the United States District Court for the District of New Jersey
(D.C. Civil Action No. 1:08-02584) District Judge: The Honorable Noel L. Hillman
-----------------------------------------------------------------------
Argued July 14, 2011
-----------------------------------------------------------------------
Before: SLOVITER, FUENTES, and FISHER, Circuit Judges
(Opinion Filed: September 13, 2011)
Olga D. Pomar, Esq. (Argued) South Jersey Legal Services, Inc. 745 Market Street Camden, NJ 08102
Susan Ann Silverstein, Esq. AARP Foundation Litigation 601 E Street, NW Washington, DC 20049

3a
William R. Potter, Esq. Potter & Dickson 194 Nassau Street Princeton, NJ 08542
Counsel for Appellants
M. James Maley, Jr., Esq. (Argued) Emily K. Givens, Esq. Erin E. Simone, Esq. M. Michael Maley, Esq. Maley & Associates, P.C. 931 Haddon Avenue Collingswood, NJ, 08108
Counsel for Appellees, Township of Mount Holly, Township Counsel of Mount Holly, Kathleen Hoffman, and Jules Thiessen
Gaetano Mercogliano, Esq. Neal A. Thakkar, Esq. Sweeney & Sheehan, P.C. 216 Haddon Avenue, Suite 500 Westmont, NJ 08108
Counsel for Appellee, Triad Associates, Inc.
William J. DeSantis, Esq. Ballard Spahr 210 Lake Drive East Cherry Hill, NJ 08002
Counsel for Appellee, Keating Urban Partners, L.L.C.

4a
Thomas E. Perez, Esq. Dennis J. Dimsey, Esq. April J. Anderson, Esq. Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403
Counsel for Amicus Curiae United States of America
-----------------------------------------------------------------------
OPINION OF THE COURT
-----------------------------------------------------------------------
FUENTES, Circuit Judge.
Mount Holly Township (the “Township”) has proposed a redevelopment plan that would eliminate the existing homes in its Gardens neighborhood, occupied predominantly by low-income residents, and replace them with significantly more expensive housing units. Appellants, an association of Gardens residents organized under the name Mt. Holly Gardens Citizens in Action, and 23 current and former residents of the neighborhood (collectively the “Residents”) filed suit against the Township alleging violations of various anti-discrimination laws.
Before the Township filed an Answer or discovery on these allegations had taken place, the District Court granted summary judgment to the Township. Because the District Court misapplied the standard for deciding whether the Residents could establish a

5a
prima facie case under Title VIII and because it did not draw all reasonable inferences in the Residents’ favor, we will reverse.
I.1
The homes in this dispute are located in a 30acre neighborhood called the Gardens in the Township of Mount Holly in Burlington County, New Jersey. The Gardens is the only neighborhood in the Township comprised predominantly of AfricanAmerican and Hispanic residents. It is poor – almost all of its residents earn less than 80% of the area’s median income; with most earning much less.
The 3292 homes in the Gardens are predominantly two-story buildings made out of solid brick. Built in the 1950s, the homes are attached in rows of 8 to 10 and are set back from the curving streets to allow for front and back yards, with alleys running behind each housing block. Two major commercial districts abut opposite sides of the neighborhood, which is only a mile away from the major downtown business district. Until 2004, the neighborhood was also home to a playground and a community center.
1 Because this is an appeal from a motion granting summary judgment, we examine the record evidence in the light most favorable to the non-moving parties, here the Residents, while resolving all reasonable inferences in their favor. Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
2 The record inconsistently describes the number of homes as 327 or 329. (JA 61, 776, 1114).

6a
The 2000 census provides a snapshot of the neighborhood.3 According to that data, the Gardens neighborhood was split evenly between rental properties (with a median rental price of $705 per month) and homeowners (the median cost of homeownership was $969 per month). Eighty-one percent of the homeowners had lived in their homes for at least 9 years; 72% of renters had lived there for at least five years. Of the 1,0314 residents living in the neighborhood, 203, or 19.7%, were non-Hispanic Whites; 475, or 46.1% were African-Americans; and 297, or 28.8% were Hispanic, the highest concentration of minority residents within Mt. Holly. Almost all of these residents were classified as “low income”; indeed, most were classified as having “very low” or “extremely low” incomes.
The neighborhood was not perfect. For one, it was crowded. This created a parking shortage, which led residents to pave their backyards for use as driveways, which, in turn, led to drainage problems.
3 The parties dispute the utility of data from the 2000 census. However, none of the parties has briefed or even asked the question of when precisely the violations at issue in this case began. This issue is important because the redevelopment process began in 2002 and, as a result, the demographics of the township have changed. Disputes over which census numbers to use thus create a moving target; however, the 2000 census data appears to provide the most accurate demographic data at the inception of the redevelopment process.
4 This is an approximate number provided by the Residents’ expert. Elsewhere in the record, the neighborhood is described as home to 1,605 people. (JA 1114).

7a
In addition, the fact that the homes were owned in fee simple meant there was no one with a vested interest in maintaining common spaces, such as the alleys. Some of the owners were nothing more than absentee landlords, renting to individuals with little interest in maintaining the properties. Over the years, many of the properties fell into disrepair. Vacant properties were boarded up, some yards filled with rubbish, and parts of the area became blighted. Because the houses were connected to one another, the dilapidation of one house could and sometimes did lead to the decay of the adjoining houses. Finally, the dense population, narrow streets, and vacant properties facilitated crime. In 1999, 28% of crimes in the Township occurred in the Gardens, even though that neighborhood covers only 1.5% of the Township’s land area.
These many problems were not ignored. Local community activists and business leaders worked to revitalize the Gardens through a private initiative that eventually came to be known as “Mt. Holly 2000.” This community endeavor sought to reverse the neighborhood’s decline by rehabilitating properties and increasing social services. Despite sporadic achievements – ten homes were renovated and a community policing center was established – the neighborhood’s problems continued.
In the year 2000, the Township commissioned a study to determine whether the Gardens should be designated as an “area in need of redevelopment” under New Jersey’s redevelopment laws. The resulting report, issued on November 8, 2000 concluded

8a
that the area offered a “significant opportunity for redevelopment” because of blight, excess land coverage, poor land use, and excess crime. (JA 699). That same year, the Township began to acquire properties in the Gardens. Those properties were left vacant.
A series of redevelopment plans followed. In 2003, the Township issued the Gardens Area Redevelopment Plan (“GARP”). This plan called for the demolition of all of the homes in the neighborhood and the permanent or temporary relocation of all of its residents. In their place, the plan provided for the construction of 180 new market-rate housing units, thirty of which would be available only to senior citizens. The plan was changed in 2005 to include a parcel of land immediately north of the Gardens. This plan, the West Rancocas Redevelopment Plan, also called for the destruction of most of the original Gardens homes, to be replaced with 228 new residential units composed of two-family dwellings and townhouses. Unlike the GARP, the West Rancocas plan provided for the optional rehabilitation of some of the original Gardens homes and allowed for the residents of those rehabilitated units to be temporarily relocated in phases so that they could remain in the neighborhood. The West Rancocas plan also contemplated that 10% of the 228 units would be designated as affordable housing. Finally, in 2008, the plan was changed again. This time, the Revised West Rancocas Redevelopment Plan called for construction of up to 520 houses, 75% of which could be townhouses and 50% of which could be apartments. The

9a
revised plan called for only 56 deed-restricted affordable housing units, 11 of which would be offered on a priority basis to existing Gardens residents. This revised plan did not include any rehabilitation of existing units.
At each stage of the process, many Gardens residents objected to the redevelopment, complaining about the destruction of their neighborhood and expressing fear that they would not be able to afford to live anywhere else in the Township. One resident complained that the house next to hers was torn down and that a bulldozer had hit her home, tearing the wall, cracking the ceiling, and shifting her roof. (JA 577-78, 1001). Another resident, a 70-year-old disabled homeowner, told the Township’s Planning Board that, were he displaced, he would be unable to work and unable to afford a new home. (JA 1002). At one meeting in 2005, a planning expert testified that the West Rancocas plan was deficient because it only allowed rehabilitation as an option, without requiring or even encouraging it. He also said that 90% of the Gardens’ existing residents would not be able to afford the newly-constructed homes and complained that the plan did not provide an estimate of affordable housing in the existing market for displaced residents. (JA 990, 1117).
Despite these complaints, work on the development continued. In February 2006 Keating Urban Partners, LLC, was chosen as the plan developer. Keating, in turn, hired Triad to develop a relocation plan. That plan, the Workable Relocation Assistance

10a
Plan (“WRAP”), was submitted to the New Jersey Department of Community Affairs on September 28, 2006 and provided that all residents living in the Gardens on August 1, 2006 would receive relocation assistance. Qualified homeowners would receive $15,000 and a $20,000 no-interest loan to assist in the purchase of a replacement home. The Township offered to buy homes for between $32,000 and $49,000.5 The estimated cost of a new home in the development was between $200,000 and $275,000, well outside the range of affordability for a significant portion of the African-American and Hispanic residents of the Township.
Renters were authorized to receive up to $7,500 of relocation assistance, but were not eligible for relocation funds to return to the Gardens. In any case, the vast majority of those renters would be unable to afford the proposed market-rate rent of $1,230 per month. Eventually, the Township paid to relocate 62 families, 42 of which moved outside of Mt. Holly Township. Renters who moved often had to pay more in rent at their new homes.
Although the redevelopment plan called for building in phases, the Township began to acquire and demolish all of the homes in the Gardens, thereby displacing many residents and creating conditions that encouraged the remaining residents to leave. By August 2008, 75 homes had been destroyed and 148
5 One home sold for $64,000 and another sold for $81,000.

11a
homes had been acquired and left vacant. Later that fall, the Township demolished 60 more homes. And, in the summer of 2009, 50 more homes were knocked down. Residents living amongst the destruction were forced to cope with noise, vibration, dust, and debris. Worse, the interconnected nature of the houses triggered a cascading array of problems. Uninsulated interior walls were exposed to the outside and covered with unsightly stucco or tar. But these coatings did not extend below grade, allowing moisture to seep into subterranean crawl spaces, creating an environment for mold problems. Above, the demolitions opened the roofs of adjoining homes. Those openings were patched with plywood, which was insufficient to stop water leaks. Around the neighborhood, homes bore the scars of demolition: hanging wires and telephone boxes, ragged brick corners, open masonry joints, rough surfaces, irregular plywood patches, and damaged porches, floors and railings. Destruction of the sidewalks outside demolished homes further contributed to the disarray by making it difficult to navigate through the neighborhood. By June 2011, only 70 homes remained under private ownership and the Township was in the process of demolishing 52 properties that it had acquired. These conditions discouraged any attempt at rehabilitating the neighborhood and encouraged existing residents to sell their homes for less than they otherwise might have been worth.
In October 2003, Citizens in Action filed a suit in state court alleging violations of New Jersey’s

12a
redevelopment laws and procedures, and various anti-discrimination laws. Ultimately, the New Jersey Superior Court dismissed some counts and granted summary judgment to the Township on the others, concluding that there was no violation of New Jersey law, that the area was blighted, and that the antidiscrimination claims were not ripe because the plan had not yet been implemented. The Appellate Division affirmed, and the New Jersey Supreme Court denied a petition for certiorari.
The Residents filed suit in the District Court on May 27, 2008, raising the anti-discrimination claims that had not been ripe in their state suit. The federal complaint alleged, among other things, violations of the Fair Housing Act (the “FHA”), Title VIII of the Civil Rights Act of 1968; the Civil Rights Act of 1866, as codified at 42 U.S.C. § 19826; and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.7 The Residents asked for declaratory and injunctive relief to stop the redevelopment plan, as well as damages or compensation that would allow Gardens residents to obtain housing in the Township. The Residents’ motion for a
6 42 U.S.C. § 1982 provides that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”
7 Section 1 of the Fourteenth Amendment provides in pertinent part that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

13a
preliminary injunction was denied. After they filed an Amended Complaint, the Township, along with the other named defendants, filed motions to dismiss. The District Court converted these into motions for summary judgment and, after allowing the parties time to brief the motions, granted summary judgment to the Township defendants. The District Court ruled that there was no prima facie case of discrimination under the FHA and that, even if there was, the Residents had not shown how an alternative course of action would have had a lesser impact.
The Residents filed a timely appeal and we granted the Residents’ motion to stay redevelopment pending this appeal. We have jurisdiction under 28 U.S.C. § 1291.
II.
We exercise plenary review over a District Court’s ruling on summary judgment. See Disabled in Action of Pennsylvania v. Se. Pennsylvania Transp. Auth., 635 F.3d 87, 92 (3d Cir. 2011). “Summary judgment is appropriate only where, drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact . . . and the moving party is entitled to judgment as a matter of law.” Id. (quoting Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010)).
The FHA makes it unlawful to “refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion,

14a
sex, familial status, or national origin.” 42 U.S.C. § 3604(a). A dwelling can be made otherwise unavailable by, among other things, action that limits the availability of affordable housing. See, e.g., Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 928-29, 938-39 (2d Cir. 1988); Smith v. Town of Clarkton, 682 F.2d 1055, 1059, 1062-64 (4th Cir. 1982); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 130 (3d Cir. 1977). The FHA can be violated by either intentional discrimination or if a practice has a disparate impact on a protected class. Cmty. Serv., Inc. v. Wind Gap Mun. Auth., 421 F.3d 170, 176 (3d Cir. 2005).
Disparate impact claims, which do not require proof of discriminatory intent, see Rizzo, 564 F.2d at 147-48, permit federal law to reach “[c]onduct that has the necessary and foreseeable consequence of perpetuating segregation[, which] can be as deleterious as purposefully discriminatory conduct in frustrating the national commitment to replace the ghettos by truly integrated and balanced living patterns.” Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1289-90 (7th Cir. 1977). In order to determine whether action of this sort was “because of race” we look to see if it had a “racially discriminatory effect,” i.e., whether it disproportionately burdened a particular racial group so as to cause a disparate impact. Rizzo, 564 F.2d at 146-48; see also Lapid-Laurel, LLC v. Zoning Bd. of Adjustment of Twp. of South Plains, 284 F.3d 442, 466-67 (3d Cir. 2002) (featuring claims of a disparate impact

15a
on handicapped persons in violation of 42 U.S.C. § 3604(f )). This is called a prima facie case of discrimination. Rizzo, 564 F.2d at 148 & n.31. If such a case is established, then we look to see whether the defendant has a legitimate, non-discriminatory reason for its actions. Id. at 148. If it does, the defendant must then also establish that “no alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.” Id. at 149. Finally, if the defendant makes this showing, the burden once again shifts to those challenging the action, who must demonstrate that there is a less discriminatory way to advance the defendant’s legitimate interest. Id. at 149 n.37.
A.
When viewed in the light most favorable to the Residents, the evidence submitted by the Residents was sufficient to establish a prima facie case. “[N]o single test controls in measuring disparate impact,” but the Residents must offer proof of disproportionate impact, measured in a plausible way. Hallmark Developers, Inc. v. Fulton Cnty., 466 F.3d 1276, 1286 (11th Cir. 2006). Typically, “a disparate impact is demonstrated by statistics,” id. at 1286, and a prima facie case may be established where “gross statistical disparities can be shown.” Hazelton Sch. Dist. v. United States, 433 U.S. 299, 307-08 (1977). According to the data in the 2000 census conducted before the redevelopment plan began, 22.54% of AfricanAmerican households and 32.31% of Hispanic

16a
households in Mount Holly will be affected by the demolition of the Gardens. The same is true for only 2.73% of White households. In short, the Residents’ statistical expert has calculated that AfricanAmericans would be 8 times more likely to be affected by the project than Whites, and Hispanics would be 11 times more likely to be affected. Furthermore, the 2000 data showed that only 21% of African-American and Hispanic households in Burlington County would be able to afford new market-rate housing in the Gardens, compared to 79% of White households.
The District Court’s first error was in rejecting the Residents’ statistical submissions, which should have been taken in the light most favorable to them at this stage in the proceedings. These statistics, like those presented in Rizzo and other prominent housing discrimination cases, show a disparate impact. In Rizzo, the plaintiffs presented evidence that, of the 14,000-15,000 people on a waiting list for public housing, 85% were black and 95% were of a minority background. 564 F.2d at 142. Under these circumstances, we concluded that the cancellation of a public housing project had a “racially disproportionate effect, adverse to Blacks and other minorities in Philadelphia.” Id. Similarly, the plaintiffs in the Second Circuit case of Huntington Branch used statistics showing that while only 7% of the residents in a town required subsidized affordable housing, 24% of that town’s Black residents required such housing, which meant that Black residents were three times more likely to be affected by a shortage of

17a
affordable housing. 844 F.2d at 929. And in Keith v. Volpe, the Ninth Circuit concluded that the FHA was violated where a blocked housing project had twice the adverse impact on minorities. 858 F.2d 467, 484 (9th Cir. 1988). The disparate impact here, while not as extreme as the impact in Rizzo, is similar to or greater than the disparate impact found sufficient to establish a prima facie case elsewhere. Under these circumstances, the District Court erred in granting summary judgment to the Township.
Further, the District Court’s challenge to these statistics in a footnote did not make the appropriate inferences. (JA 15-16 n.9). Instead, the District Court challenged the statistical analysis underlying the 21% figure of Burlington County minority residents who could afford units the redeveloped Gardens as both too broad, because it took account of the entire population of Burlington County, and too narrow because it failed to consider minorities outside the county who might move in.
In addition, the District Court said the 21% figure did not take into account the fact that 56 of the units in the Revised West Rancocas Plan would be designated as affordable housing. But the District Court’s analysis failed to take into account the Residents’ evidence that these units, although labeled “affordable,” would be out of reach for almost all of the Gardens residents.
The District Court also said that the statistics failed to take into account non-minority purchasers

18a
who might rent to minorities. But, unless those purchasers offered below-market rents, this would not affect the inference that the project had a disproportionate effect on Blacks and Hispanics who would be unable to afford market-rate units.
As to the District Court’s concern that the statistics did not take into account minorities who might move elsewhere in Mount Holly, the Residents’ expert opined that affordable housing in the Township was scarce, and that most Gardens residents would not be able to afford market-rate units elsewhere in the Township.
Lastly, the District Court erred when it rejected a reasonable inference in favor of the Residents by looking at the absolute number of African-American and Hispanic households in Burlington County that could afford homes. Instead, the District Court should have looked to see whether the African-American and Hispanic residents were disproportionately affected by the redevelopment plan. See Huntington, 844 F.2d at 938 (“By relying on absolute numbers rather than on proportional statistics, the district court significantly underestimated the disproportionate impact of the Town’s policy.”); Hallmark Developers, 466 F.3d at 1286 (“[I]t may be inappropriate to rely on absolute

19a
numbers rather than on proportional statistics.”) (quoting Huntington, 844 F.2d at 928.).8
There is another problem. The District Court’s most troubling error is its conflation of the concept of disparate treatment with disparate impact. The District Court essentially agreed with the Township that because 100% of minorities in the Gardens will be treated the same as 100% of non-minorities in the Gardens, the Residents failed to prove there is a greater adverse impact on minorities. This was in error. We need not simply ask whether the White residents at the Gardens are treated the same as the minority residents at the Gardens. The logic behind the FHA is more perceptive than that. It looks beyond such specious concepts of equality to determine whether a person is being deprived of his lawful rights because of his race. Rather, a disparate impact inquiry requires us to ask whether minorities are disproportionately affected by the redevelopment plan. Thus the Residents can establish a prima facie case of disparate impact by showing that minorities are disproportionately burdened by the redevelopment plan or that the redevelopment plan “[falls] more harshly” on minorities. Doe v. City of Butler, 892 F.2d 315, 323 (3d Cir. 1989).
8 The Department of Justice filed an amicus curiae brief agreeing that the District Court erred in its disparate impact prima facie case analysis.

20a
The Township asserts that a disparate impact approach would result in the unintended consequence of halting the redevelopment of minority neighborhoods and that it is foreclosed by the Supreme Court’s decision in City of Memphis v. Greene, which states that
[b]ecause urban neighborhoods are so frequently characterized by a common ethnic or racial heritage, a regulation’s adverse impact on a particular neighborhood will often have a disparate effect on an identifiable ethnic or racial group. To regard an inevitable consequence of that kind as a form of stigma so severe as to violate the Thirteenth Amendment would trivialize the great purpose of that charter of freedom.
451 U.S. 100, 128 (1981).
There are three problems with the Township’s position. First, City of Memphis was concerned with the standard for establishing a violation of the Thirteenth Amendment’s ban on the “badges and incidents of slavery in the United States.” Id. at 125-26. Whatever that standard might be – a question left open by the Supreme Court’s ruling in that case, see id. at 130 (White, J., concurring) – City of Memphis did not consider the FHA. All of the courts of appeals that have considered the matter, including this one, have concluded that plaintiffs can show the FHA has been violated through policies that have a disparate impact on a minority group. See Greater New Orleans Fair Housing Action Center v. HUD, 639 F.3d 1078,

21a
1085 (D.C. Cir. 2011) (acknowledging the majority view but declining to take a position on the matters); Simms v. First Gibraltar Bank, 83 F.3d 1546, 1555 (5th Cir. 1996); Mountain Side Mobile Estates P’ship v. HUD, 56 F.3d 1243, 1250-51 (10th Cir. 1995); Jackson v. Okaloosa County, 21 F.3d 1531, 1543 (11th Cir. 1994); Casa Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d 252, 269 n.20 (1st Cir. 1993); Keith, 858 F.2d at 482-84; United States v. Starrett City Assocs., 840 F.2d 1096, 1100 (2d Cir. 1988); Arthur v. City of Toledo, 782 F.2d 565, 574-75 (6th Cir. 1986); Smith, 682 F.2d at 1065; United States v. Mitchell, 580 F.2d 789, 791-92 (5th Cir. 1978); Rizzo, 564 F.2d at 147-48; Metro. Hous. Dev. Corp., 558 F.2d at 1290; United States v. City of Black Jack, 508 F.2d 1179, 1184 (8th Cir. 1974).
Second, the Township’s approach urges us to conclude that the FHA is violated only when a policy treats each individual minority resident differently from each individual White resident. Under our precedent, a plaintiff may establish a prima facie case of discrimination by demonstrating that the policy disproportionately affects or impacts one group more than another – facially disparate treatment need not be shown. For instance, in Rizzo, the waiting list for public housing comprised 85% African-Americans and 95% minorities, meaning that 5% were White. 564 F.2d at 142. The White residents on the list were treated the same as the minority residents on the list – each was hurt by Philadelphia’s decision to block a public housing project – but we nevertheless found a

22a
violation of the FHA because cancelling the project had a “racially disproportionate effect” on AfricanAmericans. Id. at 149 (“Nor can there be any doubt that the impact of the governmental defendants’ termination of the project was felt primarily by blacks, who make up a substantial proportion of those who would be eligible to reside there.”) (emphasis added).
The Township may be correct that a disparate impact analysis will often allow plaintiffs to make out a prima facie case when a segregated neighborhood is redeveloped in circumstances where there is a shortage of alternative affordable housing. But this is a feature of the FHA’s programming, not a bug. The FHA is a broadly remedial statute designed to prevent and remedy invidious discrimination on the basis of race, see Havens Realty Corp. v. Coleman, 455 U.S. 363, 380 (1982), that facilitates its antidiscrimination agenda by encouraging a searching inquiry into the motives behind a contested policy to ensure that it is not improper. See Christine Jolls, Antidiscrimination and Accommodation, 115 Harv. L. Rev. 642, 652 (2001) (remarking that a “leading gloss” on the Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971), is that “disparate impact functions as a means of smoking out subtle or underlying forms of intentional discrimination on the basis of group membership.”). We need not be concerned that this approach is too expansive because the establishment of a prima facie case, by itself, is not enough to establish liability under the FHA. It simply

23a
results in a more searching inquiry into the defendant’s motivations – precisely the sort of inquiry required to ensure that the government does not deprive people of housing “because of race.”
Finally, the Township seems to argue that its redevelopment plan does not violate Title VIII unless the statistics show that it increases segregation in the Township. (Twp. Br. at 18.). Showing that a policy has a segregative effect is one way to establish a violation of Title VIII, but it is not the only way. See Huntington Branch, 844 F.2d at 937 (observing that a policy often discriminates in one of two ways: having a disparate impact or perpetuating segregation). The Township is free to argue that its plan is less discriminatory than all of the available alternatives because it does the best job of integrating the neighborhood. However, those arguments are properly considered in the context of the last steps of the Title VIII analysis, not as a requirement of the prima facie case.
In reality, the District Court’s decision was based on a valid and practical concern, which appears to drive its reasoning throughout the opinion. It feared that finding a disparate impact here would render the Township powerless to rehabilitate its blighted neighborhoods. This underlying rationale distorts the focus and analysis of disparate impact cases under the FHA. In disparate impact cases, “[e]ffect, not motivation, is the touchstone because a thoughtless housing practice can be as unfair to minority rights as a willful scheme.” Smith v. Anchor Bldg. Corp., 536 F.2d 231, 233 (8th Cir. 1977). Once the Residents

24a
established a prima facie case of disparate impact, the District Court’s inquiry must continue to determine whether a person is being deprived of his lawful rights because of his race. It must ask whether that Township’s legitimate objectives could have been achieved in a less discriminatory way.
B.
Once the plaintiffs establish a prima facie case, the defendants must offer a legitimate reason for their actions. In this case, everyone agrees that alleviating blight is a legitimate interest. The core of the dispute between the parties is over the next step of the FHA’s burden-shifting analysis: whether the defendants have shown that there is no less discriminatory alternative. Rizzo, 564 F.2d at 149. Only when the defendants make this showing does the burden shift back to the plaintiffs – where it ultimately remains – to provide evidence of such an alternative. Id. at 149 n.37. The test for whether there is no alternative is “similar to the test of whether the defendant has demonstrated that the requested accommodation is ‘unreasonable’ for the purposes of rebutting a claim under § 3604(f )(3)(B).” LapidLaurel, 284 F.3d at 468. Section 2604(f )(3)(B) of the FHA requires that reasonable housing accommodations be made for individuals with disabilities. In other words, the defendant must show that the alternatives impose an undue hardship under the circumstances of this specific case. See U.S. Airways v. Barnett, 535 U.S. 391, 401-02 (2002) (discussing

25a
the term “unreasonable accommodation” under the Americans with Disabilities Act).
The District Court characterized the Residents’ proposed alternative as follows:
[E]ffectively, plaintiffs are seeking to remain living in the blighted and unsafe conditions until they are awarded money damages for their claims and sufficient compensation to secure housing in the local housing market. Although couched at times like an effort to have the development go up around them, like a highway built around a protected tree, or to have their units rehabilitated, this makes little if no practical sense after years of litigation, approved redevelopment plans, and the expenditure of significant public resources. At this late stage, the only real practical remedy is for plaintiffs to receive the fair value for their home as well as proper and non-discriminatory relocation procedures and benefits. . . . The relief they are seeking is inconsistent with proving the fourth element of their FHA claim-namely, that an alternative course of action to eminent domain and relocation is viable.
(JA 17 n.12) (ellipsis in original).
The Residents’ evidence is susceptible to more favorable inferences. The Residents are not asking for permission to continue to live in “blighted and unsafe” conditions. Instead, they argue that there is a feasible plan that meets the Township’s goals and entails more substantial rehabilitation. Taking the

26a
evidence in the light most favorable to the Residents, one could credit the report of the Residents’ planning expert, which stated that the “blighted and unsafe” conditions could be remedied in a far less heavyhanded manner that would not entail the wholesale destruction and rebuilding of the neighborhood.
The Residents’ expert pointed out that, although the Revised West Rancocas Plan called for development in stages, the Township began the development by aggressively acquiring houses, which it left vacant and then destroyed. He opined that a more gradual redevelopment plan would have allowed existing residents to move elsewhere in the neighborhood during one part of the redevelopment, and then move back once the redevelopment was completed. The Residents’ expert further noted that the Township had not performed a comparative cost analysis showing that total demolition, relocation, and new construction was less feasible than an alternative focused on rehabilitation. Indeed, the expert went on to propose an alternative redevelopment plan that would rely on the targeted acquisition and rehabilitation of some of the existing Gardens homes, the combination of some houses to make larger homes, an initiative to make the houses more attractive through the use of landscaping and added amenities such as decks and porches, and selective demolition and new construction, including the construction of more affordable units. The Residents’ expert also provided examples of previous alternatives – including one developed as early as 1989 – to show that the

27a
complete demolition of the neighborhood was not the only possible solution to blight in the Gardens.9 Finally, he provided a non-exhaustive list of state and federal funding programs that would support such a redevelopment plan and observed that the Township had failed to make an active effort to locate a developer with experience in neighborhood rehabilitation.
The Township provided the contrasting statements of its Township manager, who argued that a rehabilitation program was not economically feasible. In support, she cited the fact that one alternative, the Mt. Holly 2000 program, demonstrated that rehabilitation of each unit would be extremely costly. She also challenged the availability of sources of funding for a rehabilitation. Lastly, she emphasized the many problems that led the Township to declare the Gardens an area in need of redevelopment and asserted the belief of the Township Council and its planning board that demolition and replacement is the most effective and efficient approach to solving the neighborhood’s problems.
These contrasting statements, as well as the parties’ continued arguments on appeal as to the cost and feasibility of an alternative relying on rehabilitation, create genuine issues of material fact that
9 The 1989 plan was not provided as the alternative but only to show that less discriminatory alternatives had been considered in the past and could serve as the basis for an updated approach that would lessen the redevelopment’s impact on minority residents of the Township.

28a
require further investigation. Once the record on alternatives has been more fully developed, the District Court may entertain renewed motions for summary judgment, taking into account the Township’s initial burden of showing that there are no less discriminatory alternatives, as well as the standard advanced in Lapid-Laurel for ultimately determining whether an alternative is unreasonable.10
III.
The Residents are also seeking to recover under the theory that the Township intentionally discriminated against its minority residents when it adopted the redevelopment plan. The District Court saw no evidence of intentional discrimination and granted the Township’s motion for summary judgment. After carefully considering the matter, we discern no error in the District Court’s decision and will thus affirm that ruling.
10 Triad asserts that the portion of the District Court’s order relating to its involvement should be affirmed because the Residents, on appeal, have waived their claims against it. We disagree. In their brief, the Residents argue that the redevelopers, which include Triad, provided inadequate relocation assistance, allowed residents to be improperly pressured to leave, and that the redevelopment plan essentially pushes minority residents out of Mount Holly. For all of the reasons stated in this opinion, these are genuine issues of material fact that must be resolved through further discovery on remand.

29a
IV.
The Township has broad discretion to implement the policies it believes will improve its residents’ quality of life. But that discretion is bounded by laws like the FHA and by the Constitution, which prevent policies that discriminate on the basis of race. For this reason, “the federal courts must stand prepared to provide ‘such remedies as are necessary to make effective the congressional purpose.’ ” Rizzo, 564 F.2d at 149 (quoting J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964)). A more developed factual record will assist the District Court in crafting appropriate remedies, if necessary. For all of the foregoing reasons, the District Court’s order granting summary judgment is vacated and the case is remanded for further proceedings.

30a
APPENDIX B
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
-----------------------------------------------------------------------
No. 11-1159
-----------------------------------------------------------------------
MT. HOLLY GARDENS CITIZENS IN ACTION, INC., a New Jersey non-profit corporation; PEDRO AROCHO; REYNALDO AROCHO; ANA AROCHO; CHRISTINE BARNES; BERNICE CAGLE; LEON CALHOUN;
GEORGE CHAMBERS; DOROTHY CHAMBERS; SANTOS CRUZ; ELIDA ECHEVARIA;
NORMAN HARRIS; MATTIE HOWELL; NANCY LOPEZ; VINCENT MUNOZ;
ELMIRA NIXON; LEONARDO PAGAN; ROSEMARY ROBERTS; WILLIAM ROBERTS;
EFRAIM ROMERO; HENRY SIMONS; JOYCE STARLING; TAISHA TIRADO; VIVIAN BROOKS; ANGELO NIEVES; DOLORES NIXON; ROBERT TIGAR; JAMES POTTER; RADAMES TORRES-BURGOS; LILLIAN TORRES-MORENO; DAGMAR VICENTE; CHARLIE MAE WILSON; LEONA WRIGHT; MARIA AROCHO; PHYLLIS SINGLETON; FLAVIO TOBAR; MARLENE TOBAR; SHEILA WARTHEN; ALADIA WARTHEN,
Appellants,
v.
TOWNSHIP OF MOUNT HOLLY, a municipal corporation of the State of New Jersey; TOWNSHIP
COUNCIL OF TOWNSHIP OF MOUNT HOLLY,

31a
as governing body of the Township of Mount Holly; KATHLEEN HOFFMAN, as Township Manager of the Township of Mount Holly; KEATING URBAN
PARTNERS L.L.C., a company doing business in New Jersey; TRIAD ASSOCIATES, INC., a corporation doing business in New Jersey; JULES K. THIESSEN, as Mayor of the Township of Mount Holly.
-----------------------------------------------------------------------
On Appeal from the United States District Court for the District of New Jersey
(D.C. Civil Action No. 1:08-02584) District Judge: The Honorable Noel L. Hillman
-----------------------------------------------------------------------
Argued July 14, 2011
-----------------------------------------------------------------------
Before: SLOVITER, FUENTES, and FISHER, Circuit Judges
-----------------------------------------------------------------------
JUDGMENT
-----------------------------------------------------------------------
(Filed Sep. 13, 2011)
This cause came to be heard on the record from the United States District Court for the District of New Jersey and was argued on July 14, 2011.
On consideration whereof, it is now hereby ORDERED and ADJUDGED by this Court that the Order of the District Court entered on January 3, 2011 be, and the same is, hereby REVERSED AND

32a
REMANDED. All of the above in accordance with the opinion of this Court.
ATTEST: /s/ Marcia M. Waldron Clerk Dated: September 13, 2011

33a

APPENDIX C
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

MT HOLLY CITIZENS IN ACTION, INC., et al.,
Plaintiffs,
v.
TOWNSHIP OF MOUNT HOLLY, et al.,
Defendants.

:

:

: Civil Action No.

: 08-2584 (NLH) (JS)

: :

OPINION

: (Filed Jan. 3, 2011)

:

:

Appearances:
DOUGLAS E. GERSHUNY, EXEC. DIR. OLGA D. POMAR DAVID M. PODELL SOUTH JERSEY LEGAL SERVICES, INC. 745 MARKET STREET CAMDEN, NJ 08102 Attorneys for Plaintiffs
R. WILLIAM POTTER POTTER & DICKSON 194 NASSAU STREET PRINCETON, NJ 08542 Attorney for Plaintiffs
SUSAN ANN SILVERSTEIN AARP FOUNDATION LITIGATION 601 E STREET, NW WASHINGTON, DC 20049 Attorney for Plaintiffs

34a
GAETANO MERCOGLIANO SWEENEY & SHEEHAN 216 HADDON AVENUE, SUITE 500 WESTMONT, NJ 08108 Attorney for Defendant Triad Associates, Inc.
M. JAMES MALEY MALEY & ASSOCIATES 931 HADDON AVENUE COLLINGSWOOD, NJ 08108 Attorney for Defendant Mount Holly Township, et al.
WILLIAM J. DESANTIS BALLARD SPAHR ANDREWS & INGERSOLL LLP PLAZA 1000 – SUITE 500 MAIN STREET VOORHEES, NJ 08043 Attorney for Defendant Keating Urban
Partners, L.L.C.
HILLMAN, District Judge.
This case involves the redevelopment of the Mount Holly Gardens neighborhood (the “Gardens”) in Mount Holly, New Jersey. Plaintiffs are lowincome, African-American, Hispanic and “white” residents of the Gardens, who object to the plan because they claim they are being forcibly removed from their homes, which are being replaced in large part with new, much higher-priced market rate homes.
Currently before this Court are defendants’ motions for summary judgment, which had been

35a
converted from motions to dismiss on four of plaintiffs’ claims.1 The Court provided the plaintiffs with additional time to respond to the converted motions, and then allowed defendants to file reply briefs. The supplemental briefing is completed, and the remaining claims that are now ready for final resolution are plaintiffs’ claims for violations of Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act or FHA), 42 U.S.C. § 3601 et seq. (Count One against all defendants); the Civil Rights Act of 1866, 42 U.S.C. § 1982 (Count Two against the Township); the Equal Protection Clause of the U.S. Constitution, brought pursuant to 42 U.S.C. § 1983 (Count Three against the Township); and Equal Protection Clause of the New Jersey State Constitution (Count Five against the Township), as well a claim for punitive damages.
As this Court previously expressed on several occasions, we recognize that the Gardens redevelopment has had an effect on low-income families, and, correspondingly, minority families. The Court also recognizes that being forced from one’s home is a difficult and emotional issue, compounded by the fear
1 The other five counts were dismissed. Since this case was filed over two years ago, it has been extensively litigated with several hearings, the denial of a TRO and preliminary injunction, the filing of a second amended complaint, and the issuance of numerous written Opinions. Litigation over the Gardens redevelopment also precedes this case in New Jersey state court. Overall, the concerns of several Gardens residents have caused the dispute over the blighted neighborhood’s redevelopment plan to spend ten years in the courts.

36a
of being unable to afford a comparable place to live. However, as the Court has also expressed previously, plaintiffs have failed to demonstrate that the Township, or the entities assisting the Township in the redevelopment and relocation services, has implemented a plan that has a disparate impact on the Gardens residents as the law defines it. Nor have they shown that the defendants have not been proceeding pursuant to a legitimate governmental interest in the least restrictive way, or have otherwise acted with discriminatory intent. Consequently, as explained more fully below, defendants’ motions will be granted, and the case will be closed.
DISCUSSION2
A. Standard for Summary Judgment
Summary judgment is appropriate where the Court is satisfied that “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is “genuine” if it is supported by evidence such that a reasonable jury could return a
2 Because the background and procedural history have been laid out in the Court’s previous Opinions, they will not be restated here.

37a
verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party’s evidence “is to be believed and all justifiable inferences are to be drawn in his favor.” Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

38a
B. Analysis
1. Count One-Fair Housing Act
This Court has already analyzed plaintiffs’ Fair Housing Act claim substantively in the context of plaintiffs’ motion for a preliminary injunction. That analysis was adopted in the Court’s most recent Opinion, which converted defendants’ motions to dismiss into ones for summary judgment. That analysis found that plaintiffs had not demonstrated that the redevelopment has had a disparate impact on a protected group, or that defendants did not have a legitimate interest in the redevelopment, or that no alternative course of action would have a lesser impact. Recognizing that plaintiffs’ Fair Housing Act claim had only been considered in the context of a preliminary injunction, the Court afforded plaintiffs time to gather specific facts to show a genuine issue for trial on these issues. The Court now affirms its prior decision on plaintiffs’ FHA claim because plaintiffs have not provided the requisite proof to take the issues to a jury.
As a preliminary matter, plaintiffs argue that they should be afforded time for discovery, and are prejudiced in their ability to oppose the converted motions because of the lack of discovery. Plaintiffs contend that they require a look into the defendants’ state of mind and intentions, as well as documents that are only within the control of defendants and, thus, unavailable to plaintiffs. Without this information, plaintiffs argue that summary judgment is

39a
premature, which is further evidenced by the fact that defendants have not even filed their answers to plaintiffs’ complaint.
Although the Court recognizes the peculiar procedural history that has led to the resolution of summary judgment motions without the filing of answers or the undertaking of formal discovery, this is not a case where plaintiffs are neophytes filing an initial challenge to the Gardens redevelopment plan. Not only has there been extensive proceedings over two years in this Court, most of these issues have been thoroughly litigated in New Jersey state court over the course of several years preceding this case.3 As pointed out by defendants, plaintiffs have already had the ability to obtain the information they seek through Open Public Records Act requests, as well as through the previous state court litigation. Further, much of the information is available by other means, including from the residents themselves or the Public Advocate, who undertook an investigation of the Township’s relocation practices.4
3 The Court recognizes that the state court case was more narrow than this one, and the civil rights claims had been dismissed as unripe, but none of the discovery plaintiffs contend they need here to supplement the discovery from the state court litigation would save their otherwise deficient claims.
4 In the Court’s February 13, 2009 Opinion, the Court considered and referenced the Public Advocate’s report, which was provided by plaintiffs pursuant to the Court’s November 25, 2008 Order granting plaintiffs’ request to supplement the record with the report.

40a
Moreover, plaintiffs do not specifically identify what information defendants hold to support their claims, and instead request discovery generally, such as depositions of key officials in order to acquire testimony as to their intent to “rid [the Township] of a minority community.” (Pomar Cert., Docket No. 10641) (“Residents are severely prejudiced by being unable to probe, at a deposition, the attitudes, intent, and motives of the Township officials who made the critical decisions to pursue the Gardens redevelopment project.”). Discovery, however, cannot serve as a fishing expedition through which plaintiffs search for evidence to support conclusory speculations. Giovanelli v. D. Simmons General Contracting, 2010 WL 988544, *5 (D.N.J. 2010). Further, such depositions may be barred by a privilege afforded to decisionmaking government officials. See, e.g., U.S. v. Sensient Colors, Inc., 649 F. Supp. 2d 309, 316 (D.N.J. 2009).5
5 Indeed, in addressing the same argument by plaintiffs in the earlier state court litigation, Judge Sweeney explained,
There are many reasons why discovery is the exception rather than the rule in actions such as this one. First, a public official’s state of mind is rarely an issue and can usually be determined from the record below. There are transcripts, tapes, minutes and the like. Secondly, and no less important, is the consideration that members of the municipal governing bodies and local boards serve without significant remuneration. They would be far less likely to serve if their official actions frequently subjected them to the arduous discovery process. Interrogatories would have to be
(Continued on following page)

41a
Overriding all these points with specific reference to plaintiffs’ FHA claim, however, is that in order to prove their claim, none of the discovery plaintiffs claim they lack would save their allegations, as plaintiffs must present their own proof of disparate impact and a more-viable alternative. Stated several times before, Section 3604(a) of the Fair Housing Act makes it unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a) (emphasis added). The FHA can be violated by either intentional discrimination or if a
answered and depositions attended after usual hours of public service. It would place a chilling effect on public service.
Here, I am convinced that the discovery sought would burden the officials involved to a degree that would be totally disproportionate to any usable information that could be recovered. Furthermore, there has already been one hearing in this matter. Although I limited plaintiffs to two expert witnesses, I also afforded them the right to call township officials to testify. They elected, for whatever reason, not to do so. Following that hearing, I determined that the designation of the Gardens as an area in need of redevelopment had substantial credible support in the record, was a designation made in accordance with statutory criteria, and I found no evidence of racial or ethnic bias or animus in the testimony of . . . the town planner.
(August 30, 2005 Opinion, L-3027-03, at 6-7, Def. Ex. A, Docket No. 84-3.)

42a
practice has a disparate impact on a protected class. Community Services, Inc. v. Wind Gap Mun. Authority, 421 F.3d 170, 176 (3d Cir. 2005).
Plaintiffs here contend that the Gardens redevelopment plan has a disparate impact on the minorities living in the Gardens. In order to prove their claim, plaintiffs must first establish a prima facie case of disparate impact. Resident Advisory Board v. Rizzo, 564 F.2d 126, 148 (3d Cir. 1977). To show disparate impact, plaintiffs must show that the Township’s actions have had a greater adverse impact on the protected groups (here, African-Americans and Hispanics) than on others. Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Tp. of Scotch Plains, 284 F.3d 442, 466-67 (3d Cir. 2002).
If a plaintiff establishes his prima facie case, the burden shifts to the defendant to demonstrate justification. The “justification must serve, in theory and practice, a legitimate, bona fide interest of the Title VIII defendant, and the defendant must show that no other alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.” Rizzo, 564 F.2d at 149. Finally, “[i]f the defendant does introduce evidence that no such alternative course of action can be adopted, the burden will once again shift to the Plaintiff to demonstrate that other practices are available.” Id. at 149 n.37. “If the Title VIII prima facie case is not rebutted, a violation is proved.” Id. at 149.

43a
Thus, it is plaintiffs’ burden to show disparate impact, and if they do, it is their burden to rebut the Township’s position6 and demonstrate a more-viable alternative course of action. Plaintiffs have done neither.
To support disparate impact, plaintiffs argue that the redevelopment more negatively affects minorities in Mt. Holly than non-minority residents because the redevelopment is driving out the minority population of Mt. Holly. Plaintiffs also argue that the redevelopment plan has a disparate impact on minorities because the plan is targeted at an area that is populated by mostly minorities. To support their position, plaintiffs had previously presented a report of a demographic and statistical expert, Andrew A. Beveridge, Ph.D. Dr. Beveridge opined that the redevelopment of the Gardens effectively and significantly reduces the minority population in Mt. Holly.
The Court had rejected that proof. The Court explained,
Even though plaintiffs have pointed out that the redevelopment of the Gardens has reduced the minority population of Mt. Holly, they have not accounted for how many
6 In the October 23, 2009 Opinion, the Court found that the Township had already met its burden based on the record before the Court at that time. As explained more fully herein, plaintiffs’ supplemental briefing does not demonstrate a material issue of fact regarding the Township’s legitimate interest and alternative choices.

44a
minorities will move into the new housing. Furthermore, and more importantly for the plaintiffs’ FHA claim of disparate impact, the redevelopment plan does not apply differently to minorities than non-minorities. Several plaintiffs classify themselves as “white,” yet the plan affects them in the exact same way as their minority neighbors. The real effect of the Gardens redevelopment is that there will be less lower-income housing in Mt. Holly. Although the Township may have some obligation with regard to providing a certain number of low-income housing pursuant to other law, the reduction of low-income housing is not a violation of the FHA. The FHA prohibits the Township from making unavailable a dwelling to any person because of race – it does not speak to income. Redevelopment of blighted, low-income housing is not, without more, a violation of the FHA. Here, where fourteen homes are occupied by African-American plaintiffs, thirteen homes are occupied by Hispanic plaintiffs, and six homes are occupied by “white” plaintiffs, and all are affected in the same way by the redevelopment, the Court cannot find, on the current record at this preliminary injunction stage, that plaintiffs will succeed on their disparate impact FHA claim.
(Feb. 13, 2009 Op. at 7-8.)
In their opposition to the converted motions, plaintiffs present the same statistics, and further argue that there is disparate impact on minorities

45a
because the displaced plaintiffs will not be able to afford the new $200,000+ homes, or the $1,300 to rent these same properties.7 As explained before, however, if none of the plaintiffs can afford the new homes, it is not just the African-American and Hispanic plaintiffs who are impacted by the increased housing prices – it is all Gardens residents, including the Caucasian residents.8 Additionally, as also explained before, plaintiffs have not demonstrated that the Township is preventing minorities from purchasing or moving into the new homes, or otherwise limiting the new residents to non-minorities. Plaintiffs have not provided any proof or statistics to suggest that the new homes created by the redevelopment will be financially outof-reach for all or most minorities.9
7 Although 464 units will be market rate, 56 will be deedrestricted affordable housing units.
8 Relatedly, plaintiffs argue that because a greater percentage of minority Township residents have been affected by the redevelopment they have demonstrated a disparate impact. Even if this statistic was sufficient to establish a prima facie case, plaintiffs’ FHA claim fails for reasons other than the disparate impact analysis.
9 Plaintiffs present statistics that only 21% of AfricanAmerican and Hispanic households in Burlington County would be able to afford the new houses, because that percentage of African-American and Hispanic population earns above 80% of the median income ($44,580). (Bev. Cert., Ex. B-2, Docket No. 106-4.) This is in contrast to 79% of white Burlington County residents who earn above 80% of the median income. (Id.) These statistics hold little validity to show a disparate impact on the Township’s minority population for several reasons: (1) they take into account the entire population of Burlington County, rather
(Continued on following page)

46a
Furthermore, under plaintiffs’ logic, any action by the Township to do anything with regard to the Gardens would result in a disparate impact, simply because of the racial composition of the Gardens. The FHA (or any other civil rights law) does not contemplate that a town will never be permitted to ameliorate a blighted area inhabited mainly by minorities simply because it will affect minorities. See, e.g., City of Memphis v. Greene, 451 U.S. 100, 128 (1981) (“Because urban neighborhoods are so frequently characterized by a common ethnic or racial heritage, a regulation’s adverse impact on a particular neighborhood will often have a disparate effect on an identifiable ethnic or racial group. To regard an inevitable consequence of that kind as a form of stigma so severe as to violate the Thirteenth Amendment would trivialize the great purpose of that charter of freedom.”).
than only Mt. Holly Township, and the towns in Burlington County are of various economic and racial compositions; (2) they do not account for minorities who will move into Mt. Holly Township from outside Burlington County; (3) they do not account for the deed restricted units that will be more affordable; (4) they do not account for a non-minority purchaser who rents to a minority; (5) they do not account for the minorities who will move elsewhere within Mt. Holly Township; and (6) more recent population survey data (from 2008, compared to the 2000 Census data used by plaintiffs’ expert) shows 16,744 African-American and Hispanic households in Burlington County have incomes exceeding $45,000, evidence of the minority population’s ability to occupy all 464 market rate homes.

47a
Finally, it is important to point out that none of the plaintiffs has been forced out of their homes by the Township without the offer of relocation services. The FHA makes it unlawful to otherwise make unavailable or deny a dwelling to any person because of race. The Township has advised the residents not to move until directed by the Township so that they will be eligible for relocation assistance. All plaintiffs, save for one who was told to leave by her landlord, are still residing in the Gardens. Thus, on this basis alone, plaintiffs’ FHA claim fails.
But even if plaintiffs were able to establish their prima facie case, they have not rebutted the Township’s legitimate interest in the redevelopment, and they have not shown how an alternative course of action would have a lesser impact. Plaintiffs cannot refute that redevelopment of the community to remove blight conditions is a bona fide interest of the state, as explained previously by this Court and by the New Jersey Appellate Division. (See Feb. 13, 2009 Op. at 9, citing Wilson v. City of Long Branch, 142 A.2d 837, 842 (N.J. 1958) (“Community redevelopment is a modern facet of municipal government. Soundly planned redevelopment can make the difference between continued stagnation and decline and a resurgence of healthy growth. It provides the means of removing the decadent effect of slums and blight on neighboring property values, of opening up new areas for residence and industry.”); Citizens In Action v. Township Of Mt. Holly, 2007 WL 1930457, *13 (N.J. Super. Ct. App. Div. July 5, 2007) (finding that “[t]he

48a
dilapidated, overcrowded, poorly designed community [the Gardens], in addition to the high level of crime in the area, is clearly detrimental to the safety, health, morals and welfare of the community”).) It is clear that the Township has a legitimate interest in the redevelopment of the Gardens.
With regard to alternatives, plaintiffs have not identified disputed issues of fact concerning whether the Township failed to show “that no alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.” Rizzo, 564 F.2d at 149. The adequacy of the redevelopment plan, as opposed the rehabilitation plan advocated by Plaintiffs, was extensively analyzed in New Jersey state court. See Citizens In Action v. Township Of Mt. Holly, 2007 WL 1930457, 14 (N.J. Super. Ct. App. Div. 2007) (finding that “the redevelopment designation is based on a record that provides substantial evidence in support of the determination”).10
10 Even though that analysis was performed in the context of plaintiffs’ claims under New Jersey’s Local Housing and Redevelopment Law, N.J.S.A. 40A:12A-1 to -73 (LHRL), the issue of the sufficiency of the 2005 redevelopment plan was extensively litigated. Thus, collateral estoppel principles may also apply. See In re Graham, 973 F.2d 1089, 1097 (3d Cir. 1992) (citations omitted) (explaining that issue preclusion applies when “(1) the issue sought to be precluded is the same as that involved in the prior action; (2) that issue was actually litigated; (3) it was determined by a final and valid judgment; and (4) the determination was essential to the prior judgment”). The Court,
(Continued on following page)

49a
Plaintiffs have not presented any plan more viable than the one implemented by the Township.11 They advocate rehabilitation, but have proposed a plan, as pointed out by defendants, that relies upon governmental subsidies and upon costs based on property conditions in 1989. It also does not take into account rehabilitation costs to rehab owner-occupied
however, refrains from considering this issue because plaintiffs’ FHA claim, which also concerns the 2008 revised redevelopment plan, was not litigated in state court.
11 The Township has shown that several organizations have attempted to rehabilitate the Gardens in the last 15 or so years. These small scale efforts were ineffective in curing the overall blight of the community, which was a frustrating result for the organizations, the Township, and the residents. (See Sept. 8, 2003 Town Council meeting transcript at 25-26, 31-32, Def. Ex. B.). Plaintiffs argue that it is not their burden to prove a better alternative. Although it is true that the Township must show the other alternatives they considered and rejected, and that the alternative course of action could not “be adopted that would enable that interest to be served with less discriminatory impact,” once that showing is made, the ultimate burden “once again shift[s] to the Plaintiff to demonstrate that other practices are available.” Rizzo, 564 F.2d at 149. Thus, plaintiffs in this case have the obligation to show what alternatives would have better served the community. Of course, this analysis was intended to be performed after a finding of disparate impact, which causes this “alternative course of action” analysis to make more sense in that context – that is, if disparate impact is shown, the Township has the burden of showing it had no choice but to proceed in its chosen path despite the disparate impact. Here, where no disparate impact has been shown, this analysis devolves into plaintiffs’ personal disagreement with the plan, and an argument as to what they believe to be the best course of action. The fact that the Township did not follow a plan sanctioned by the plaintiffs is not the standard for a FHA claim.

50a
homes, which is an additional $2.5 million, and it does not account for temporary relocation costs.12 Simply because the properties could have been rehabilitated does not mean that rehabilitation was the feasible option.13
12 Plaintiffs’ residential planning expert, Gary Smith, AIA, AICP, relates in his updated certification that the Township is violating several building codes in its demolition process. The legality of how the Township is currently proceeding under its redevelopment plan is not before the Court. Mr. Smith also opines that the redevelopment plan should be halted, and redirected to save the existing housing stock for rehabilitation. As the Court commented before, however, “[e]ffectively, plaintiffs are seeking to remain living in the blighted and unsafe conditions until they are awarded money damages for their claims and sufficient compensation to secure housing in the local housing market. Although couched at times like an effort to have the development go up around them, like a highway built around a protected tree, or to have their units rehabilitated, this makes little if no practical sense after years of litigation, approved redevelopment plans, and the expenditure of significant public resources. At this late stage, the only real practical remedy is for plaintiffs to receive the fair value for their home as well as proper and non-discriminatory relocation procedures and benefits. . . . The relief they are seeking is inconsistent with proving the fourth element of their FHA claim – namely, that an alternative course of action to eminent domain and relocation is viable.” (Feb. 9, 2009 Op. at 10-11.)
13 The state appellate court commented,
Photographic evidence reveals areas within the Gardens that are dilapidated. Additionally, there was testimony that there was overcrowding and excessive land coverage because of the way the units were arranged in blocks in fee simple ownership. Accordingly, a dilapidated home on one lot had a serious effect on homes on either side of it. Excessive land coverage
(Continued on following page)

51a
In short, Plaintiffs have failed to show an impermissible disparate impact. Even if they have made such a showing, they have failed to offer sufficient evidence to rebut the Township’s legitimate governmental purpose or demonstrate illegitimate discriminatory intent. Therefore, plaintiffs have not demonstrated that material disputed facts exist as to their FHA claim. Accordingly, summary judgment must be entered in favor of defendants on this claim.14
was also evident where a majority of the rear yards were paved or covered with gravel to accommodate additional parking spaces. Finally, the alleyways created a faulty arrangement or design for the Gardens because it increased the amount of crime in the area. The dilapidated, overcrowded, poorly designed community, in addition to the high level of crime in the area, is clearly detrimental to the safety, health, morals and welfare of the community. Citizens In Action v. Township of Mt. Holly, 2007 WL 1930457, *13 (N.J. Super. Ct. App. Div. 2007). 14 Plaintiffs’ FHA claim was lodged against all defendants, including the construction company selected to undertake the redevelopment, Keating Urban Partners, LLC, and the company hired by Keating to conduct the relocation activities, Triad Associates, Inc. In their previous motion to dismiss, Triad argued, and Keating joined in that argument, that it cannot be held liable under the FHA because it had no part in the drafting and adoption of the Township’s redevelopment plan, and its actions with regard to the relocation activities do not fall within the province of the FHA-protected conduct. Because the Court has found no FHA violation, Triad’s argument will not be considered.

52a
2. Counts Two, Three, Five-Civil Rights Act and State and Federal Equal Protection Clause
Plaintiffs claim that the Township violated the Civil Rights Act of 1866, 42 U.S.C. § 1982, the Equal Protection Clause of the U.S. Constitution, brought pursuant to 42 U.S.C. § 1983, and the Equal Protection Clause of the New Jersey State Constitution. In order to prove such claims, plaintiffs must show that they were the target of intentional, purposeful discrimination by the Township. City of Cuyahoga Falls, Ohio v. Buckeye Community Hope Foundation, 538 U.S. 188, 194 (2003) (citation omitted) (“ ‘Proof of racially discriminatory intent or purpose is required’ to show a violation of the Equal Protection Clause.”); Bradley v. U.S., 299 F.3d 197, 205 (3d Cir. 2002) (stating that in order to establish a claim under the Equal Protection Clause, a plaintiff needs to prove that the actions (1) had a discriminatory effect and (2) were motivated by a discriminatory purpose); Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001) (citations and quotations omitted) (“In order to bring an action under § 1982, a plaintiff must allege with specificity facts sufficient to show or raise a plausible inference of (1) the defendant’s racial animus; (2) intentional discrimination; and (3) that the defendant deprived plaintiff of his rights because of race.”); Greenberg v. Kimmelman, 494 A.2d 294, 308 (N.J. 1985) (stating that if a law is facially neutral, “an equal protection claim could succeed only if the statute had an invidious purpose”).

53a
Plaintiffs claim that through the redevelopment plan the Township is intentionally seeking to deprive plaintiffs and other African-Americans and Hispanics of the right to property and equal protection under the law. In the Court’s prior Opinion denying plaintiffs’ request for preliminary injunction, the Court found that plaintiffs did not demonstrate that the Township “implemented the development plan to intentionally or effectively drive out the minority population of Mt. Holly.” (Feb. 9, 2009 Op. at 7.) Thus, as with their FHA claim, the Township’s motion to dismiss these claims was converted to one for summary judgment, and the Court afforded plaintiffs the opportunity to provide other proof to support their claims of intentional discrimination.
In their response, plaintiffs have failed to provide such proof. As discussed above, plaintiffs first argue that summary judgment is premature, because their ability to prove these intentional discrimination claims is thwarted by the lack of discovery – namely, the depositions of Township officials. As also discussed above, however, even if such depositions were permitted, the Court doubts that any Township official will testify to his or her “discriminatory purpose” in approving the redevelopment plan. See, e.g., Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 106465 (4th Cir. 1982) (in an FHA case, stating, “Municipal officials acting in their official capacities seldom, if ever, announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a racial minority. Even individuals

54a
acting from invidious motivations realize the unattractiveness of their prejudices when faced with their perpetuation in the public record. It is only in private conversation, with individuals assumed to share their bigotry, that open statements of discrimination are made, so it is rare that these statements can be captured for purposes of proving racial discrimination in a case such as this.”).
With regard to other methods for proving discriminatory intent, plaintiffs have had years to gather such proof, including obtaining affidavits from Gardens residents or other people who have been involved in the Gardens redevelopment process. Instead, plaintiffs’ brief details the Township’s alleged discriminatory actions, but none of the claims are supported by any documentary or other evidence.15
15 Several affidavits by plaintiffs were submitted in support of their motion for preliminary injunction. In their brief, plaintiffs specifically refer to one of them by Santos Cruz to support the claim that the Township’s redevelopment activities lowered the property values of the remaining homes, and the Township took advantage of that situation by pressuring residents to sell their homes at deflated prices that did not represent fair market value. (Pl. Opp. at 31.) This conclusion is based on Mr. Cruz’s “belief.” (Cruz Cert., Docket No. 17-9 (“I believe the houses are worth much more than the Township is offering.”) The other affidavits by plaintiffs in the record contain similar statements as to their “beliefs” and “feelings.” See Ancho Cert., Docket No. 17-7, ¶ 18, “I believe that my home is worth much more than that [$39,000 to $42,000 offered to others] because we invested a great amount of money to make it comfortable for our retirement”); Simons Cert., Docket No. 17-10, ¶ 14, “I believe my house is worth a great deal more than what the Township is
(Continued on following page)

55a
Rather, plaintiffs tell a story, long on accusations and suppositions but short on proof, of the Township’s tenyear, insidious desire to displace the minority population of Mt. Holly. If there were merit to these claims, plaintiffs would be able to annotate their allegations with factual evidence that would infer such discriminatory motive.16 They have not done so. See Village of
offering me,” because it has three bedrooms, a large lot, and it has undergone “costly upgrades.”) These affidavits are insufficient to defeat a summary judgment motion. Celotex, 477 U.S. at 332 (“[C]onclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment. Instead, the affiant must set forth specific facts that reveal a genuine issue of material fact.”).
Incidentally, these affidavits relate the plaintiffs’ extensive participation in numerous meetings with the Township and the builders over the years.
16 For example, plaintiffs state that “the Township failed to provide adequate compensation and relocation assistance to enable residents to purchase a replacement house in the Township or surrounding region.” (Pl. Opp. at 38.) In the Court’s prior Opinion, however, the Court noted, “The evidence on the record shows that other Garden residents whose homes have been acquired by the Township and have been relocated are pleased with both their compensation and place of relocation. In fact, the evidence demonstrates that many residents now have significantly improved living conditions and are in better circumstances financially. Additionally, the defendants represent, and plaintiffs do not dispute, that none of the people who have been relocated and wanted to remain in Mt. Holly were unable to.” (Feb. 9, 2009 Op. at 12 n.5.) Moreover, it is an undisputed fact that New Jersey statute only requires the Township to pay $4,000 in relocation benefits to tenants, and $15,000 in relocation benefits to homeowners, but the Township has paid $7,500 to tenants and $35,000 to homeowners. (See Def. Statement of Facts, ¶ 23, at 31.)

56a
Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266-67 (1977) (explaining that the determination as to “whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” and identifying objective factors that may be probative of racially discriminatory intent: (1) the racial impact of an official action; (2) the historical background of the decision; (3) the sequence of events leading up to the challenged decision, including departures from normal procedures and usual substantive norms; and (4) the legislative or administrative history of the decision).
In contrast, the Township provides transcripts of town council and planning board meetings, where concerned citizens and council members discussed the plans for the Gardens. The Township has also provided letters and affidavits from former Gardens residents, as well as certifications from individuals involved with the redevelopment plan implementation and relocation process. These documents range in date from 2002 through early 2010. The documents show that from the very beginning, the planning board was aware of the sensitive issues that would arise as they undertook the process, the desire to have direct communication with Gardens’ residents, and the Township’s consideration of the residents’ concerns. (See, e.g., Sept. 8, 2003 Town Council meeting transcript at 36-44, Def Ex. B.) Although many viewpoints were expressed by the Gardens’ residents

57a
and community activists, with some being supportive and hopeful, while other disenfranchised residents speaking emphatically and eloquently on their negative opinion on the redevelopment plan, their input was welcomed and encouraged.17
Furthermore, nowhere in plaintiffs’ recitation of the Township’s motives do plaintiffs specifically acknowledge the extensive deterioration, crime, and overall unsafe living conditions the Township was endeavoring to cure. Although plaintiffs feel that the Township simply wishes to remove all minorities from the town, evidence in the record supports an opposing viewpoint – that but-for the significant concern for the Gardens’ resident’s welfare, and the desire to make the Township as a whole a safe and pleasant town for all of its citizens, minority and non-minority,
17 Plaintiffs refer to the Township’s “secret,” off-the-record meetings among Township officials and the redevelopers where decisions were made without input from the community, and where they presume the true discriminatory intent of the Township was revealed. Although “New Jersey has a strong, expressed public policy in favor of open government, as evidenced by our Open Public Meetings Act, N.J.S.A. 10:4-6 to -21,” Times of Trenton Pub. Corp. v. Lafayette Yard Community Development Corp., 874 A.2d 1064, 1070 (N.J. 2005) (citation omitted), the OPMA sets forth specific instances where closeddoor sessions are appropriate, see N.J.S.A. 10:4-12, -13. It is unclear whether these alleged “secret” meetings met the requirements of New Jersey’s OPMA. The Township’s compliance with OPMA is not before the Court, however, and plaintiffs’ allegations concerning these meetings as evidence of discriminatory intent are speculative, and, therefore, of insufficient weight to defeat summary judgment.

58a
the Township would have never undertaken the longoverdue project, particularly considering the challenges that the redevelopment would, and did, inspire.18 Additionally, as noted above and previously, evidence in the record shows that many relocated residents have been pleased with the process, and are now in a much better place as a result.
It also cannot be forgotten that the redevelopment plan has gone through three machinations, from the Gardens Area Redevelopment Plan (“GARP”) in 2003, to the West Rancocas Redevelopment Plan (“WRRP”) in 2005, and then to the Revised West Rancocas Redevelopment Plan in September 2008. For each of these plans, the Township Council and the builder heard extensive public comment, testimony, and written objections (as intricately detailed in plaintiffs’ complaint), and even though the 2005 WRRP was approved by the New Jersey Department of Community Affairs and affirmed by the New Jersey state trial and appellate courts, the Township and redevelopers conducted a reevaluation of the plan which resulted in the 2008 Revised WRRP. Despite plaintiffs’ claims that all the plans were adopted without meaningful consideration of the residents’ objections, it seems specious to believe that
18 It seems that plaintiffs could not dispute the ironic observation that if the Township had allowed the Gardens to continue to deteriorate as it had over the years, that it might then be fairly characterized as having a discriminatory intent toward its minority, low-income residents.

59a
the Township extensively reevaluated and revised its plans while entertaining numerous opportunities for public comment and objection simply as a ruse to mask its ultimate purpose of “ridding” Mt. Holly of its minority population.
The Court acknowledges that for every governmental action, people will object, for personal reasons, or as a champion for those who cannot speak out for themselves. The Court also acknowledges that governing officials are often not the most efficient or pragmatic in their decision-making process. When people’s homes are at stake, and when issues concerning race and economic status are involved, the emotions of everyone are amplified. This is evidenced not only by the 10-year litigation concerning the Gardens’ redevelopment, but by the voices of the residents who have expressed the extremes of satisfaction and displeasure with the plan. In addition to the people who feel benefitted by the Township, it is undisputable that people have felt unjustifiably wronged by the Township, which has had to make some hard decisions along the way.
The Court, however, must view the case under the legal framework that constrains this Court’s consideration of these issues, rather than under the emotional contours of the situation. At this summary judgment stage in the context of what proof has been provided, and in deciding what material issues of fact need to be resolved, the weight of the record evidence demonstrates that no reasonable juror could find that the Township acted with intentional discrimination in

60a
the development and implementation of the Gardens’ redevelopment plan. Moreover, no additional discovery appears calculated or even remotely likely to provide the missing proofs. Consequently, summary judgment must be entered in favor of the Township on plaintiffs’ intentional discrimination claims.
3. Punitive damage claims
Plaintiffs are also seeking punitive damages for all of their claims. The Township had moved to dismiss plaintiffs’ request for punitive damages, arguing that under various legal principles, punitive damages cannot be imposed against a municipality. In the Court’s previous Opinion, all of plaintiffs’ punitive damages requests were dismissed, except for those relating to plaintiffs’ FHA and Civil Rights Act claims (Counts One and Two). The Court reserved decision on these two claims pending consideration of the converted motions.
Even though “punitive damages can be awarded in a civil rights case where a jury finds a constitutional violation, even when the jury has not awarded compensatory or nominal damages,” Alexander v. Riga, 208 F.3d 419, 430 (3d Cir. 2000) (citing Curtis v. Loether, 415 U.S. 189 (1974)) (both discussing FHA claims), a finding of a violation is a mandatory prerequisite to any possibility of punitive damages. Because the Court has not found defendants to be

61a
liable for plaintiffs’ FHA and civil rights claims, plaintiffs’ punitive damages claims fail as well.19

CONCLUSION

For the reasons expressed above, defendants’ converted motions for summary judgment shall be granted on the four remaining claims in plaintiffs’ complaint. An appropriate Order will be entered.

Date: January 3, 2011 At Camden, New Jersey

/s/ Noel L. Hillman NOEL L. HILLMAN,
U.S.D.J.

19 For punitive damages, plaintiffs would also need to prove that defendants’ “ ‘conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.’ ” Alexander v. Riga, 208 F.3d 419, 430 (3d Cir. 2000) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Plaintiffs cannot make this showing.

62a

APPENDIX D
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

MT HOLLY CITIZENS IN ACTION, INC., et al.,
Plaintiffs,
v.
TOWNSHIP OF MOUNT HOLLY, et al.,
Defendants.

:

:

: Civil Action No.

: 08-2584 (NLH) (JS)

: :

ORDER

: (Filed Jan. 3, 2011)

:

:

For the reasons expressed in the Court’s Opinion filed today,
IT IS HEREBY on this 3rd day of January, 2011
ORDERED that defendants’ converted motions for summary judgment [74, 84, 86, 112] are GRANTED; and it is further
ORDERED the Clerk of the Court shall mark this matter as CLOSED.
/s/ Noel L. Hillman At Camden, New Jersey NOEL L. HILLMAN,
U.S.D.J.

63a
APPENDIX E
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
-----------------------------------------------------------------------
No. 11-1159
-----------------------------------------------------------------------
MT. HOLLY GARDENS CITIZENS IN ACTION, INC., a New Jersey non-profit corporation; PEDRO
AROCHO; REYNALDO AROCHO; ANA AROCHO; CHRISTINE BARNES; BERNICE CAGLE; LEON CALHOUN; GEORGE CHAMBERS; DOROTHY CHAMBERS; SANTOS CRUZ; ELIDA ECHEVARIA; NORMAN HARRIS; MATTIE HOWELL; NANCY
LOPEZ; VINCENT MUNOZ; ELMIRA NIXON; LEONARDO PAGAN; ROSEMARY ROBERTS; WILLIAM ROBERTS; EFRAIM ROMERO; HENRY SIMONS; JOYCE STARLING; TAISHA TIRADO; VIVIAN BROOKS; ANGELO NIEVES; DOLORES NIXON; ROBERT TIGAR; JAMES POTTER; RADAMES TORRES-BURGOS; LILLIAN TORRESMORENO; DAGMAR VICENTE; CHARLIE MAE WILSON; LEONA WRIGHT; MARIA AROCHO; PHYLLIS SINGLETON; FLAVIO TOBAR; MARLENE TOBAR; SHEILA WARTHEN; ALADIA WARTHEN,
Appellants,
v.
TOWNSHIP OF MOUNT HOLLY, a municipal corporation of the State of New Jersey; TOWNSHIP
COUNCIL OF TOWNSHIP OF MOUNT HOLLY, as governing body of the Township of Mount Holly; KATHLEEN HOFFMAN, as Township Manager of the Township of Mount Holly; KEATING URBAN

64a
PARTNERS L.L.C., a company doing business in New Jersey; TRIAD ASSOCIATES, INC., a corporation
doing business in New Jersey; JULES K. THIESSEN, as Mayor of the Township of Mount Holly.
-----------------------------------------------------------------------
SUR PETITION FOR REHEARING EN BANC
-----------------------------------------------------------------------
(Filed Mar. 13, 2012)
Present: McKEE, Chief Judge, SLOVITER, SCIRICA, RENDELL, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY,
JR. and VANASKIE, Circuit Judges
-----------------------------------------------------------------------
The Petition for Rehearing En Banc filed by the Appellees in the above-entitled matter, having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular service not having voted for rehearing, the Petition for Rehearing by the Court en banc, is hereby DENIED.
BY THE COURT,
/s/ Julio M. Fuentes Circuit Judge
DATED: March 13, 2012

65a
APPENDIX F
N.J.S.A. 40A:12A-5. Conditions within delineated area establishing need for redevelopment
Effective: July 9, 2003
A delineated area may be determined to be in need of redevelopment if, after investigation, notice and hearing as provided in section 6 of P.L.1992, c. 79 (C.40A:12A-6), the governing body of the municipality by resolution concludes that within the delineated area any of the following conditions is found:
a. The generality of buildings are substandard, unsafe, unsanitary, dilapidated, or obsolescent, or possess any of such characteristics, or are so lacking in light, air, or space, as to be conducive to unwholesome living or working conditions.
b. The discontinuance of the use of buildings previously used for commercial, manufacturing, or industrial purposes; the abandonment of such buildings; or the same being allowed to fall into so great a state of disrepair as to be untenantable.
c. Land that is owned by the municipality, the county, a local housing authority, redevelopment agency or redevelopment entity, or unimproved vacant land that has remained so for a period of ten years prior to adoption of the resolution, and that by reason of its location, remoteness, lack of means of access to developed sections or portions of the municipality, or topography, or nature of the soil, is not likely to be

66a
developed through the instrumentality of private capital.
d. Areas with buildings or improvements which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals, or welfare of the community.
e. A growing lack or total lack of proper utilization of areas caused by the condition of the title, diverse ownership of the real property therein or other conditions, resulting in a stagnant or not fully productive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare.
f. Areas, in excess of five contiguous acres, whereon buildings or improvements have been destroyed, consumed by fire, demolished or altered by the action of storm, fire, cyclone, tornado, earthquake or other casualty in such a way that the aggregate assessed value of the area has been materially depreciated.
g. In any municipality in which an enterprise zone has been designated pursuant to the “New Jersey Urban Enterprise Zones Act,” P.L.1983, c. 303 (C.52:27H60 et seq.) the execution of the actions prescribed in that act for the adoption by the municipality and approval by the New Jersey Urban Enterprise Zone Authority of the zone development plan for the area

67a
of the enterprise zone shall be considered sufficient for the determination that the area is in need of redevelopment pursuant to sections 5 and 6 of P.L.1992, c. 79 (C.40A:12A-5 and 40A:12A-6) for the purpose of granting tax exemptions within the enterprise zone district pursuant to the provisions of P.L.1991, c. 431 (C.40A:20-1 et seq.) or the adoption of a tax abatement and exemption ordinance pursuant to the provisions of P.L.1991, c. 441 (C.40A:21-1 et seq.). The municipality shall not utilize any other redevelopment powers within the urban enterprise zone unless the municipal governing body and planning board have also taken the actions and fulfilled the requirements prescribed in P.L.1992, c. 79 (C.40A:12A-1 et al.) for determining that the area is in need of redevelopment or an area in need of rehabilitation and the municipal governing body has adopted a redevelopment plan ordinance including the area of the enterprise zone.
h. The designation of the delineated area is consistent with smart growth planning principles adopted pursuant to law or regulation.

68a
N.J.S.A. 40A:12A-6. Preliminary investigation by planning board; notice; hearing; determination
of redevelopment area; review; redevelopment area deemed blighted area
Effective: July 9, 2003
a. No area of a municipality shall be determined a redevelopment area unless the governing body of the municipality shall, by resolution, authorize the planning board to undertake a preliminary investigation to determine whether the proposed area is a redevelopment area according to the criteria set forth in section 5 of P.L.1992, c. 79 (C.40A:12A-5). Such determination shall be made after public notice and public hearing as provided in subsection b. of this section. The governing body of a municipality shall assign the conduct of the investigation and hearing to the planning board of the municipality.
a. (1) Before proceeding to a public hearing on the matter, the planning board shall prepare a map showing the boundaries of the proposed redevelopment area and the location of the various parcels of property included therein. There shall be appended to the map a statement setting forth the basis for the investigation.
(2) The planning board shall specify a date for and give notice of a hearing for the purpose of hearing persons who are interested in or would be affected by a determination that the delineated area is a redevelopment area.

69a
(3) The hearing notice shall set forth the general boundaries of the area to be investigated and state that a map has been prepared and can be inspected at the office of the municipal clerk. A copy of the notice shall be published in a newspaper of general circulation in the municipality once each week for two consecutive weeks, and the last publication shall be not less than ten days prior to the date set for the hearing. A copy of the notice shall be mailed at least ten days prior to the date set for the hearing to the last owner, if any, of each parcel of property within the area according to the assessment records of the municipality. A notice shall also be sent to all persons at their last known address, if any, whose names are noted on the assessment records as claimants of an interest in any such parcel. The assessor of the municipality shall make a notation upon the records when requested to do so by any person claiming to have an interest in any parcel of property in the municipality. The notice shall be published and mailed by the municipal clerk, or by such clerk or official as the planning board shall otherwise designate. Failure to mail any such notice shall not invalidate the investigation or determination thereon.
(4) At the hearing, which may be adjourned from time to time, the planning board shall hear all persons who are interested in or would be affected by a determination that the delineated area is a redevelopment area. All objections to such a determination and evidence in support of those objections, given

70a
orally or in writing, shall be received and considered and made part of the public record.
(5) After completing its hearing on this matter, the planning board shall recommend that the delineated area, or any part thereof, be determined, or not be determined, by the municipal governing body to be a redevelopment area. After receiving the recommendation of the planning board, the municipal governing body may adopt a resolution determining that the delineated area, or any part thereof, is a redevelopment area. Upon the adoption of a resolution, the clerk of the municipality shall, forthwith, transmit a copy of the resolution to the Commissioner of Community Affairs for review. If the area in need of redevelopment is not situated in an area in which development or redevelopment is to be encouraged pursuant to any State law or regulation promulgated pursuant thereto, the determination shall not take effect without first receiving the review and the approval of the commissioner. If the commissioner does not issue an approval or disapproval within 30 calendar days of transmittal by the clerk, the determination shall be deemed to be approved. If the area in need of redevelopment is situated in an area in which development or redevelopment is to be encouraged pursuant to any State law or regulation promulgated pursuant thereto, then the determination shall take effect after the clerk has transmitted a copy of the resolution to the commissioner. The determination, if supported by substantial evidence and, if required, approved by the commissioner, shall be

71a
binding and conclusive upon all persons affected by the determination. Notice of the determination shall be served, within 10 days after the determination, upon each person who filed a written objection thereto and stated, in or upon the written submission, an address to which notice of determination may be sent.
(6) If written objections were filed in connection with the hearing, the municipality shall, for 45 days next following its determination to which the objections were filed, take no further action to acquire any property by condemnation within the redevelopment area.
(7) If a person who filed a written objection to a determination by the municipality pursuant to this subsection shall, within 45 days after the adoption by the municipality of the determination to which the person objected, apply to the Superior Court, the court may grant further review of the determination by procedure in lieu of prerogative writ; and in any such action the court may make any incidental order that it deems proper.
c. An area determined to be in need of redevelopment pursuant to this section shall be deemed to be a “blighted area” for the purposes of Article VIII, Section III, paragraph 1 of the Constitution. If an area is determined to be a redevelopment area and a redevelopment plan is adopted for that area in accordance with the provisions of this act, the municipality is

72a
authorized to utilize all those powers provided in section 8 of P.L.1992, c. 79 (C.40A:12A-8).
N.J.S.A. 40A:12A-7. Redevelopment plan; contents; report and recommendation of planning board; preparation of plan by planning board; amendment or revision by governing body
Effective: July 17, 2008
a. No redevelopment project shall be undertaken or carried out except in accordance with a redevelopment plan adopted by ordinance of the municipal governing body, upon its finding that the specifically delineated project area is located in an area in need of redevelopment or in an area in need of rehabilitation, or in both, according to criteria set forth in section 5 or section 14 of P.L.1992, c. 79 (C.40A:12A-5 or 40A:12A-14), as appropriate.
The redevelopment plan shall include an outline for the planning, development, redevelopment, or rehabilitation of the project area sufficient to indicate:
(1) Its relationship to definite local objectives as to appropriate land uses, density of population, and improved traffic and public transportation, public utilities, recreational and community facilities and other public improvements.
(2) Proposed land uses and building requirements in the project area.

73a
(3) Adequate provision for the temporary and permanent relocation, as necessary, of residents in the project area, including an estimate of the extent to which decent, safe and sanitary dwelling units affordable to displaced residents will be available to them in the existing local housing market.
(4) An identification of any property within the redevelopment area which is proposed to be acquired in accordance with the redevelopment plan.
(5) Any significant relationship of the redevelopment plan to (a) the master plans of contiguous municipalities, (b) the master plan of the county in which the municipality is located, and (c) the State Development and Redevelopment Plan adopted pursuant to the “State Planning Act,” P.L.1985, c. 398 (C.52:18A-196 et al.).
(6) As of the date of the adoption of the resolution finding the area to be in need of redevelopment, an inventory of all housing units affordable to low and moderate income households, as defined pursuant to section 4 of P.L.1985, c. 222 (C.52:27D-304), that are to be removed as a result of implementation of the redevelopment plan, whether as a result of subsidies or market conditions, listed by affordability level, number of bedrooms, and tenure.
(7) A plan for the provision, through new construction or substantial rehabilitation of one comparable, affordable replacement housing unit for each affordable housing unit that has been occupied at any time within the last 18 months, that is subject

74a
to affordability controls and that is identified as to be removed as a result of implementation of the redevelopment plan. Displaced residents of housing units provided under any State or federal housing subsidy program, or pursuant to the “Fair Housing Act,” P.L.1985, c. 222 (C.52:27D-301 et al.), provided they are deemed to be eligible, shall have first priority for those replacement units provided under the plan; provided that any such replacement unit shall not be credited against a prospective municipal obligation under the “Fair Housing Act,” P.L.1985, c. 222 (C.52:27D-301 et al.), if the housing unit which is removed had previously been credited toward satisfying the municipal fair share obligation. To the extent reasonably feasible, replacement housing shall be provided within or in close proximity to the redevelopment area. A municipality shall report annually to the Department of Community Affairs on its progress in implementing the plan for provision of comparable, affordable replacement housing required pursuant to this section.
b. A redevelopment plan may include the provision of affordable housing in accordance with the “Fair Housing Act,” P.L.1985, c. 222 (C.52:27D-301 et al.) and the housing element of the municipal master plan.
c. The redevelopment plan shall describe its relationship to pertinent municipal development regulations as defined in the “Municipal Land Use Law,” P.L.1975, c. 291 (C.40:55D-1 et seq.). The redevelopment plan shall supersede applicable provisions of

75a
the development regulations of the municipality or constitute an overlay zoning district within the redevelopment area. When the redevelopment plan supersedes any provision of the development regulations, the ordinance adopting the redevelopment plan shall contain an explicit amendment to the zoning district map included in the zoning ordinance. The zoning district map as amended shall indicate the redevelopment area to which the redevelopment plan applies. Notwithstanding the provisions of the “Municipal Land Use Law,” P.L.1975, c. 291 (C.40:55D-1 et seq.) or of other law, no notice beyond that required for adoption of ordinances by the municipality shall be required for the hearing on or adoption of the redevelopment plan or subsequent amendments thereof.
d. All provisions of the redevelopment plan shall be either substantially consistent with the municipal master plan or designed to effectuate the master plan; but the municipal governing body may adopt a redevelopment plan which is inconsistent with or not designed to effectuate the master plan by affirmative vote of a majority of its full authorized membership with the reasons for so acting set forth in the redevelopment plan.
e. Prior to the adoption of a redevelopment plan, or revision or amendment thereto, the planning board shall transmit to the governing body, within 45 days after referral, a report containing its recommendation concerning the redevelopment plan. This report shall include an identification of any provisions in the

76a
proposed redevelopment plan which are inconsistent with the master plan and recommendations concerning these inconsistencies and any other matters as the board deems appropriate. The governing body, when considering the adoption of a redevelopment plan or revision or amendment thereof, shall review the report of the planning board and may approve or disapprove or change any recommendation by a vote of a majority of its full authorized membership and shall record in its minutes the reasons for not following the recommendations. Failure of the planning board to transmit its report within the required 45 days shall relieve the governing body from the requirements of this subsection with regard to the pertinent proposed redevelopment plan or revision or amendment thereof. Nothing in this subsection shall diminish the applicability of the provisions of subsection d. of this section with respect to any redevelopment plan or revision or amendment thereof.
f. The governing body of a municipality may direct the planning board to prepare a redevelopment plan or an amendment or revision to a redevelopment plan for a designated redevelopment area. After completing the redevelopment plan, the planning board shall transmit the proposed plan to the governing body for its adoption. The governing body, when considering the proposed plan, may amend or revise any portion of the proposed redevelopment plan by an affirmative vote of the majority of its full authorized membership and shall record in its minutes the reasons for each amendment or revision. When a redevelopment plan

77a
or amendment to a redevelopment plan is referred to the governing body by the planning board under this subsection, the governing body shall be relieved of the referral requirements of subsection e. of this section.

78a

APPENDIX G

[Nonrelevant Data Omitted]

Table DP-1. Profile of General Demographic Characteristics: 2010

Geographic area: Mount Holly township State:34 County:005

Subject Total Population

*

*

RACE

One race

White

Black or African American

American Indian and

Alaska Native

Asian

Asian Indian

Chinese

Filipino

Japanese

Korean

Vietnamese

Other Asian1

Native Hawaiian and Other

Pacific Islander

Native Hawaiian

Guamanian or Chamorro

Samoan

Other Pacific Islander2

Number Percent 9,536 100.0
*

9,047 94.9

6,253 65.6

2,203

23.1

35

0.4

140

1.5

29

0.3

18

0.2

25

0.3

7

0.1

28

0.3

8

0.1

25

0.3

7

0.1

4

0.0

1

0.0

2

0.0

0

0.0

1 Other Asian alone, or two or more Asian categories

79a

Some other race Two or more races

409

4.3

489

5.1

Race alone or in combination with

one or more other races:3

White

6,645 69.7

Black or African American

2,543 26.7

American Indian and Alaska Native

155

1.6

Asian

231

2.4

Native Hawaiian and Other

Pacific Islander

24

0.3

Some other race

496

5.2

HISPANIC OR LATINO AND RACE Total Population
Hispanic or Latino (of any race) Mexican Puerto Rican Cuban Other Hispanic or Latino
Not Hispanic or Latino White alone

*

*

*

9,536 1,210
137 749
25 299 8,326 5,731

100.0 12.7 1.4 7.9 0.3 3.1 87.3 60.1

Source: US Bureau of the Census, 2010 Census of Population and Housing

2 Other Pacific Islander alone, or two or more Native Hawaiian and Other Pacific Islander categories
3 In combination with one or more of the other races listed. The following six numbers may add to more than the total population because individuals may report more than one race

80a
Prepared by the New Jersey Department of Labor and Workforce Development, Division of Labor Market & Demographic Research, May 2011