NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5822-12T2

CRANFORD DEVELOPMENT ASSOCIATES, 

LLC, SAMUEL HEKEMIAN, PETER HEKEMIAN, 

JEFFREY HEKEMIAN, and ANN KRIKORIAN 

as trustee for RICHARD HEKEMIAN and 

MARK HEKEMIAN,

Plaintiffs-Respondents/

Cross-Appellants,

v.

TOWNSHIP OF CRANFORD, MAYOR and

COUNCIL OF THE TOWNSHIP OF CRANFORD, 

and THE PLANNING BOARD OF THE 

TOWNSHIP OF CRANFORD,

Defendants-Appellants/

Cross-Respondents.

__________________________________________

Argued December 1, 2015 – Decided

Before Judges Reisner, Leone and Whipple.

On appeal from the Superior Court of New 

Jersey, Law Division, Union County, Docket 

No. L-3759-08.

Jeffrey R. Surenian argued the cause for 

appellants/cross-respondents (Jeffrey R. 

Surenian and Associates, attorneys; Mr. 

Surenian, of counsel; Mr. Surenian and 

Michael A. Jedziniak, on the brief).

Stephen Eisdorfer argued the cause for 

respondents/cross-appellants (Hill Wallack, 

attorneys; Mr. Eisdorfer and Cameron 

MacLeod, on the brief).

APPROVED FOR PUBLICATION

April 26, 2016

APPELLATE DIVISION

April 26, 2016
2 A-5822-12T2

The opinion of the court was delivered by

REISNER, P.J.A.D.

In this affordable housing litigation, defendants Township 

of Cranford and the Cranford Mayor, Council and Planning Board 

(collectively the Township) appeal from a final order dated July 

17, 2013, and from a series of interlocutory orders, granting a 

builder's remedy to plaintiff Cranford Development Associates,

LLC for the construction of a 360-unit residential development 

in Cranford. Plaintiffs cross-appeal from an order denying 

their application for counsel fees. We affirm. 

I 

Judge Lisa F. Chrystal issued a series of lengthy, 

comprehensive and correct opinions over the course of the 

litigation, and we need not repeat her reasoning here. Nor for 

purposes of this opinion is it necessary to reiterate evidence 

set forth in detail in the judge's opinions. We will briefly 

summarize the litigation, and will discuss additional pertinent 

facts when we address the issues on appeal. 

By way of background, plaintiffs Cranford Development 

Associates and its members, Samuel Hekemian, Peter Hekemian, 

Jeffrey Hekemian, and Ann Krikorian as trustee for Richard 

Hekemian and Mark Hekemian (collectively CDA) filed suit against 

the Township, alleging that Cranford had failed to provide its 
3 A-5822-12T2

fair share of low-to-moderate-income housing (affordable 

housing), and that its current zoning prohibited the 

construction of affordable housing. CDA requested a builder's 

remedy to redevelop its roughly sixteen-acre commercial 

property, located on Birchwood Avenue, with two buildings that 

would provide 419 apartments, fifteen percent of which would be 

designated as affordable housing. 

In an early phase of the litigation, Judge Chrystal 

determined, in an order dated March 20, 2009, that the Township 

had failed to comply with its fair share housing obligations 

under the Mount Laurel1 doctrine. In her accompanying written 

opinion, Judge Chrystal found that "Cranford still has an unmet 

housing obligation of 410 housing units," and the Township's 

fair share housing plan, filed after the lawsuit was instituted, 

was seriously deficient.

Following a fourteen-day bench trial held in 2010, Judge 

Chrystal issued a 106-page oral opinion addressing CDA's 

entitlement to a builder's remedy. Based on her evaluation of 

the expert testimony she found credible, and extensive 

recommendations from a court-appointed Special Master, the judge 

 

1 S. Burlington Cty. NAACP v. Mount Laurel Twp., 92 N.J. 158, 

198-99 (1983) (Mount Laurel II); S. Burlington Cty. NAACP v. 

Mount Laurel Twp., 67 N.J. 151, cert. denied, 423 U.S. 808, 96 

S. Ct. 18, 46 L. Ed. 2d 28 (1975) (Mount Laurel I).
4 A-5822-12T2

granted a builder's remedy for the construction of 360 

apartments, as opposed to the 419 units CDA originally sought. 

She conditioned construction on CDA's obtaining all necessary 

permits from the New Jersey Department of Environmental 

Protection (DEP).2 The judge appointed a special hearing 

examiner to oversee final site plan approval.3 After a five-day 

hearing, the hearing examiner recommended that the court grant 

final site plan approval, and Judge Chrystal accepted that 

recommendation. 

On this appeal, the Township does not challenge the trial 

court's 2009 determination that it failed to comply with its 

fair share obligations under Mount Laurel. Rather, the Township 

contends that the court erred in granting the builder's remedy 

because: (1) CDA failed to negotiate in good faith with the 

Township prior to filing suit; (2) CDA was not a "catalyst for 

change" in moving the Township toward Mount Laurel compliance; 

 

2 The DEP eventually granted the permits. The DEP's decision is 

the subject of a separate appeal, Cranford Development 

Associates, LLC, c/o The S. Hekemian Group Flood Hazard Area 

Control Act Individual Permit No. 2003-08-0006.1 FHA 110001; 

Flood Hazard Area Permit Verification No. 2003-08-0006.1

FHA 110002; and Freshwater Wetlands Transition Area Averaging 

Plan No. 2003-08-0006.1 FWW 110001, Challenged by Township of 

Cranford, No. A-2157-14 (App. Div. Apr. 26, 2016). 

3 As noted later in this opinion, in addition to her other 

responsibilities in the builder's remedy litigation, the Special 

Master was assigned to assist the special hearing examiner in 

the site plan hearing.
5 A-5822-12T2

and (3) the Township proved that CDA's property was not suitable 

for the proposed 419-unit development and, according to the 

Township, the court could not approve the project with a reduced 

number of units. The Township does not challenge the merits of 

the final site plan approval. Instead, it argues that the court 

erred in appointing a special hearing examiner to oversee the 

site plan hearings. The Township also contends that CDA's 

hearing notice was deficient and the hearings should have been 

held in Cranford rather than in the county courthouse in 

Elizabeth. 

In a cross-appeal, CDA contends that the trial court erred 

in denying its request for counsel fees and costs under the New 

Jersey Civil Rights Act, N.J.S.A. 10:6-2. 

We must defer to the trial court's factual findings so long 

as they are supported by sufficient credible evidence, and we 

owe particular deference to the judge's evaluation of witness 

credibility. See Toll Bros. v. Twp. of W. Windsor, 173 N.J.

502, 549 (2002); Seidman v. Clifton Sav. Bank, 205 N.J. 150, 169 

(2011). We review the court's legal interpretations de novo. 

Toll Bros., supra, 173 N.J. at 549. After reviewing the 

voluminous record in light of the applicable law, we find no 

merit in either the appeal or the cross-appeal, and we affirm 

the trial court's challenged orders in all respects. 
6 A-5822-12T2

II

We begin by addressing the Township's appeal. Cranford's 

first argument, concerning CDA's alleged failure to engage in 

good faith negotiations, is without merit. We affirm for the 

reasons stated in Judge Chrystal's written opinion dated June 

23, 2010, and her oral opinion issued July 29, 2011, and for the 

additional reasons stated below. 

A builder in CDA's situation is required to engage in good 

faith negotiations before filing a Mount Laurel lawsuit. See

Mount Laurel II, supra, 92 N.J. at 218; Oceanport Holding, 

L.L.C. v. Borough of Oceanport, 396 N.J. Super. 622, 627 (App. 

Div. 2007).4 Cranford argues that CDA's efforts were 

insufficient and CDA should have waited longer, and made greater 

efforts to negotiate before filing suit. In another case, we 

might agree that a six-to-eight-week negotiation process was 

insufficient. However, in this case it was clear from its 

responses, or non-responses, to CDA's overtures that the 

Township had no interest in negotiating with CDA. 

 

4 A developer has standing to file a Mount Laurel suit 

challenging the constitutionality of the local zoning without 

first proving that it engaged in good faith negotiations. 

Oceanport, supra, 396 N.J. Super. at 630. However, once a 

plaintiff-developer succeeds in obtaining a ruling that the 

ordinance is unconstitutional, it still may not qualify for a 

builder's remedy unless it can prove it engaged in good faith 

negotiations before filing the lawsuit. Id. at 630-33. 
7 A-5822-12T2

In deciding both CDA's summary judgment motion and the 

Township's request for reconsideration after trial, Judge 

Chrystal rejected the Township's claim that CDA filed suit prior 

to attempting good faith negotiations. Judge Chrystal found 

that, before filing suit, CDA had appeared at three meetings of 

the municipal governing body (the Committee) and had requested 

that the Committee include CDA's proposed development in the 

Township's fair housing plan. Despite prior notice, the 

Committee did not place the proposal on the agenda for any of 

the meetings, did not meet with CDA to discuss the proposal, and 

refused to share any of its professionals' reports on the 

proposal. 

Judge Chrystal found that CDA did not threaten to file a 

lawsuit and continually invited discussion, even though the 

Committee showed no interest in considering its proposal. The 

judge found that, instead of negotiating with CDA, the Committee 

instructed CDA to submit its proposal to the Planning Board, 

although the Board had no jurisdiction to address whether 

Cranford violated the Mount Laurel doctrine and could only make 

a recommendation to the Township regarding a rezoning 

application. Moreover, as the judge observed, "under Mount 

Laurel II, 92 N.J. 158, 342 n.73 (1983), municipalities cannot 
8 A-5822-12T2

in the guise of good faith negotiations require that a builder 

plaintiff exhaust any local administrative remedy." 

In this case, we find no basis to second-guess Judge 

Chrystal's finding that CDA satisfied its obligation of good 

faith negotiation before filing its lawsuit. As Judge Chrystal 

acknowledged in her opinion: "'The court would be short on 

realism . . . were it not to note that it takes at least two to 

negotiate and the record should be reviewed with that in mind.'" 

(quoting Cty. of Monmouth v. Whispering Woods at Bamm Hollow, 

Inc., 222 N.J. Super. 1, 9 (App. Div. 1987), certif. denied, 110 

N.J. 175 (1988)). Whether the Township's unresponsivenesss was 

due to concerns over flooding or because the Township believed 

that its fair share obligation was much more limited than the 

court eventually concluded that it was, the record supports 

Judge Chrystal's finding that the Township was unwilling to 

negotiate for the siting of an affordable housing project on the 

CDA site.

Moreover, the negotiation process in this case cannot be 

viewed without considering the historic context. Ironically, 

the Township's appellate brief illustrates that history. 

Cranford admits that "after engaging in years of pre-suit 

negotiations with the Township," another builder, Lehigh 

Acquisition Corp. (Lehigh), finally filed a Mount Laurel
9 A-5822-12T2

builder's remedy lawsuit against the Township in January 2008. 

The Township further admits that "[i]n the wake of the Lehigh 

Action, Cranford drafted a comprehensive Affordable Housing 

Plan." However, the plan was not actually submitted to the 

Counsel on Affordable Housing (COAH) until after CDA filed its 

lawsuit in November 2008, and the plan did not include the CDA 

site.5 

Moreover, CDA's predecessor in title, Woodmont Properties, 

had conducted negotiations with the Township for approval of a 

much more modest affordable housing development in the same 

location where CDA later proposed its project (the CDA site). 

Woodmont's efforts, which included an application to the 

Planning Board (Board) to recommend a rezoning of the property, 

proved fruitless. The Board rejected the rezoning plan despite 

a favorable recommendation from its own consulting planner. 

Clearly, the Township had no intention of ever allowing 

affordable housing to be constructed on the CDA site. 

On the particular facts of this case, we agree with Judge 

Chrystal that CDA's efforts to negotiate were made in good faith 

and were sufficient. Our Supreme Court has warned developers 

against using litigation threats as a bargaining chip in their 

 

5 The Lehigh and CDA lawsuits were consolidated, and the Township 

later reached a settlement with Lehigh. 
10 A-5822-12T2

affordable housing applications. Mount Laurel II, supra, 92 

N.J. at 280. However, the Township admits that CDA did not 

threaten it with litigation. The fact that CDA was privately 

preparing to litigate if, as seemed highly likely, the Township 

was unreceptive to its proposal, does not mean CDA acted in bad 

faith.

For the reasons stated in her opinion, Judge Chrystal 

properly rejected the Township's claim that CDA failed to 

exhaust administrative remedies by making a rezoning application 

to the Board. Faced with a similar argument, the Supreme Court 

has held that "[t]here is no such [administrative exhaustion] 

requirement in Mount Laurel litigation." Id. at 342 n.73. 

Moreover, it is clear on this record that an application to the 

Planning Board for a rezoning recommendation would have been 

futile. See Toll Bros., supra, 173 N.J. at 560. The Board had 

already rejected a more modest rezoning application filed by 

Woodmont.6

 

6 A municipal governing body is ordinarily required to refer a 

proposed zoning change to the local planning board for its input 

before adoption of the ordinance. See N.J.S.A. 40:55D-26, -64. 

However, such a referral has a strict time deadline; the board 

has thirty-five days to report back to the governing body after 

which the governing body may act. N.J.S.A. 40:55D-26(a). In 

this case, there is no evidence that the Township was actually 

contemplating adopting a revised zoning ordinance, nor did the 

Township make the referral pursuant to N.J.S.A. 40:55D-26, -64. 

Rather, invoking its local ordinance, the Township directed CDA 

(continued)
11 A-5822-12T2

The Township's arguments on this point are without 

sufficient merit to require further discussion. R. 2:11-

3(e)(1)(E). 

III

We reject Cranford's next argument, contending that CDA was 

not entitled to a builder's remedy because the Township would 

have filed a new fair share housing plan even without the CDA 

lawsuit. As CDA proved in the trial court, at the time CDA 

filed its lawsuit, the Township was out of compliance with its 

Mount Laurel obligations. Moreover, even though the Township 

filed a revised fair share plan with COAH shortly after the 

lawsuit was instituted, Special Master Elizabeth McKenzie's 

report noted that the plan was deficient in important respects. 

McKenzie opined that, even if implemented, the plan would not 

have satisfied the Township's fair share requirements. In her 

2009 opinion, Judge Chrystal credited McKenzie's opinion. 

Consequently, in this case, the Township's "catalyst" 

argument is a red herring, because the Township did not in fact 

bring itself into compliance before or during the litigation. 

Rather, at the end of the litigation, the Township complied with 

a court order and adopted a revised zoning ordinance under 

 

(continued)

to make a separate application to the board which, as CDA 

cogently argues, was a "trip to nowhere." 
12 A-5822-12T2

protest. However, even if we consider this argument, it is 

meritless. 

We cannot agree with the Township's argument that, in 

addition to winning the underlying exclusionary zoning lawsuit, 

a Mount Laurel plaintiff must also prove that it was a 

"catalyst" for change, in order to qualify for a builder's 

remedy. The catalyst language is drawn from this quote from 

Toll Brothers:

We find that Toll Brothers succeeded at 

trial. West Windsor's claim that it was 

already compliant and had instituted 

amendments to its fair share plan at the 

time Toll Brothers initiated its lawsuit 

ignores the critical point - it was Toll 

Brothers that served as the catalyst for 

change and that successfully demonstrated 

West Windsor's non-compliance with its 

constitutional obligation.

[Toll Bros., supra, 173 N.J. at 560.]

As the quote illustrates, a developer may be entitled to a 

builder's remedy, even if a municipality has begun moving toward 

compliance before or during the developer's lawsuit, provided 

the lawsuit demonstrates the municipality's current failure to 

comply with its affordable housing obligations. Ibid. The 

quoted language does not mean that a developer must prove, as a 

separate element of its case, that the litigation was a catalyst 

where, as here and as in Toll Brothers, the lawsuit was filed 

before the municipality filed a revised fair share plan with 
13 A-5822-12T2

COAH, and the developer proved in the lawsuit that the 

municipality was currently not in compliance with its fair share 

obligations. See id. at 566-67. In that context, filing the 

lawsuit and proving that the existing municipal zoning ordinance 

is unconstitutional is the catalyst for change. See Mount

Laurel II, supra, 92 N.J. at 218. 

The Township's reliance on Mount Olive Complex v. Mount

Olive Township, 356 N.J. Super. 500 (App. Div.), certif. denied, 

176 N.J. 73 (2003), is misplaced. In that case, Mount Olive 

Complex (the plaintiff) was not a party to the original Mount

Laurel lawsuit, which was settled. Id. at 506. However, as 

part of that settlement, the municipality agreed to let the 

plaintiff build forty units of affordable housing as part of a 

400-unit planned unit development (PUD) that the plaintiff was 

already planning to construct. Id. at 507.

Subsequently, COAH decreased the municipality's fair share 

number, and the plaintiff's forty-unit approval was rescinded 

after the approvals for the still-unconstructed PUD expired. 

Id. at 507-08. Several years later, the municipality changed 

its zoning and also amended its fair share plan. Id. at 508-09. 

Nine months after the township accomplished those changes, the 

plaintiff filed a Mount Laurel suit demanding a builder's 

remedy. Id. at 509. 
14 A-5822-12T2

The trial court found the plaintiff failed to prove that, 

at the time it filed its lawsuit, the town was non-compliant 

with its fair housing obligations. Id. at 510. Hence, the 

plaintiff failed to satisfy the first prerequisite for a 

builder's remedy – success on the merits of its fair housing 

challenge. Ibid. While our opinion affirming the trial court 

used the phrase "catalyst for change," in context that language 

was synonymous with success at trial resulting in a courtordered zoning change to comply with Mount Laurel. Id. at 511. 

That is precisely what CDA achieved here and what the plaintiff 

in Mount Olive failed to achieve.

The Township's additional arguments on this point are 

without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(1)(E). 

IV

Next, we find no abuse of the trial court's discretion in 

appointing a special hearing examiner to oversee final site plan 

approval. The Township had already agreed to exactly the same 

process in the Lehigh settlement, and the record reflects no 

objection to the court's order appointing the hearing examiner 

in this case. In fact, after the court entered the December 9, 

2011 order making the appointment as well as memorializing the 

builder's remedy, the Township filed a motion for 
15 A-5822-12T2

reconsideration of the builder's remedy based on flooding caused 

by Hurricane Irene. However, the Township did not ask the court 

to reconsider the appointment of the hearing examiner. The 

transcript of the oral argument on the reconsideration motion 

does not contain a word of objection to the appointment. We 

ordinarily will not consider an issue not raised before the 

trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 

(1973). However, even if we entertain the claim, it is without 

merit.

The court's authority to appoint Special Masters in Mount

Laurel cases is well established. See Mount Laurel II, supra, 

92 N.J. at 282-85. Given the Township's record of obstructing 

affordable housing projects, and the Planning Board's past 

hostility to a much more limited affordable housing plan, the 

court's decision to appoint the hearing examiner was justified 

in this case. The motion practice which occurred after the 

appointment further confirmed the wisdom of the court's action. 

In addition to opposing the Township's reconsideration motion, 

CDA filed a cross-motion to have the hearing examiner, instead 

of the Township, review soil removal permits because the 

Township had unreasonably delayed the permit approvals. In fact, 

it appeared undisputed that Township officials had publicly 

stated that they would not issue the approvals and would issue a 
16 A-5822-12T2

stop work order instead. Consequently, the judge gave the 

hearing examiner authority to hear any soil permit application 

that the Township unduly delayed. As the judge noted, the CDA 

project would face various municipal regulatory "hurdles" and 

the hearing examiner's participation would likely be needed to 

resolve them.7

We recognize that a "trial court (and the master, if one is 

appointed) should make sure that the municipal planning board is 

closely involved in the formulation of the builder's remedy[,]" 

and "should make as much use as they can of the planning board's 

expertise and experience so that the proposed project is 

suitable for the municipality." Id. at 280. However, the Court 

also added the "caveat" that "[t]his does not mean that the 

planning board should be permitted to delay or hinder the 

project[.]" Ibid. 

Contrary to the Township's argument, the Planning Board was 

not excluded from the proceedings before the hearing examiner. 

The Board had the opportunity to participate in the hearings. 

In fact, the Special Master, who was assisting the hearing 

 

7 Other events confirmed the trial court's wisdom in putting an 

oversight mechanism in place due to local hostility to the 

project. In connection with the soil removal, the Township 

filed four municipal court complaints against CDA; the Township 

later dismissed the complaints on the day of trial. 
17 A-5822-12T2

examiner, sent an initial procedural memo to all parties 

instructing that five copies of the applicant's plans and all 

supporting documents must be provided to the Board. Finally, 

while objecting to the process, the Township does not cite any 

alleged substantive errors in the terms of the final site plan 

approval. 

The Township's arguments concerning the adequacy of the 

hearing notice and the location of the hearings were 

appropriately addressed by the hearing examiner and the trial 

judge, and they are without sufficient merit to warrant further 

discussion. R. 2:11-3(e)(1)(E). 

 V

We likewise find no merit in the Township's challenge to 

the terms of the builder's remedy the trial court awarded. The 

Township contends that because the trial court awarded 360 units 

instead of 419 units, the court must have accepted its argument 

that the site was unsuitable for CDA's residential development 

project. See Mount Laurel II, supra, 92 N.J. at 279-80 (a 

builder's remedy should be granted to a successful developerplaintiff, unless the municipality proves that the project is 

clearly unsuitable for the site based on environmental or other 

substantial planning reasons). We disagree. 
18 A-5822-12T2

The Township's argument concerning site suitability is 

based on a distortion of the Special Master's recommendations 

and the trial court's decision. Neither the Special Master nor 

the trial court found that the site was unsuitable for the 

project. In fact, even in her post-trial supplemental report 

the Special Master reiterated her conclusion that the site could 

be appropriate for a 419-unit development. However, based on 

planning considerations, such as a perceived need to set the 

apartment buildings further back from the street, lowering the 

height of one of the buildings, ensuring adequate parking, and 

the like, she recommended changes that would result in the 

construction of fewer units. None of her proposed changes were 

based on a finding that the site was environmentally

inappropriate for the proposed multi-unit development. 

Much of the fourteen-day bench trial was devoted to hearing 

expert testimony on the feasibility of constructing such a 

relatively large housing development in an area that was subject 

to periodic flooding. While acknowledging the property's 

environmental constraints, the Special Master concluded that the 

proposed development was likely to decrease rather than 

exacerbate flooding in the area. In particular, the project 

would involve razing a large building that was sitting directly 

in the floodway, thereby improving drainage. The project would 
19 A-5822-12T2

also reduce the percentage of impervious cover on the entire 

property, and would increase the extent to which the property 

could safely retain some flood water. Those measures could 

protect the rest of the neighborhood against flooding. 

The judge, who credited CDA's expert witnesses on those 

points, agreed with the Special Master. Like the Special 

Master, Judge Chrystal found that CDA understood the waterrelated issues the property presented and had a "creative" plan 

to address them. She noted that CDA intended to regrade the 

property and add ten percent of flood storage to that which 

currently existed, in addition to constructing an access 

driveway outside the flood hazard area. The judge observed that 

CDA's plan "may actually improve flood water storage in the area 

[beyond CDA's property] in a way that is not currently possible 

and that has not heretofore been addressed by Cranford." The 

judge wrote:

A strong argument has been advanced 

that this plan actually improves flood 

control in Cranford. It removes the 

existing buildings at 215 Birchwood Avenue 

from the floodway, thus keeping flood waters 

closer to the channel of the stream. It 

increases the flood storage capacity of the 

site, thus lowering the peak flood levels in 

the homes downstream. 

Given that no recent upgrades to flood 

control in Cranford were presented from the 

point of view of flood control, the court 

notes that this project potentially has the 
20 A-5822-12T2

promise to improve Cranford's overall 

ongoing flood problems.

The judge noted that the Township had challenged CDA's 

ability to develop the site but had presented no proof that the 

project could not be built while complying with DEP regulations. 

In fact, the Township's engineering expert, Richard Marsden, 

conceded that if CDA was willing to absorb the cost, the water 

issues on the site could be addressed and the development could 

be constructed. Based on the extensive record presented at the 

bench trial, Judge Chrystal concluded that plaintiff would 

likely be able to satisfy any DEP requirements regarding flood 

hazard areas and storm water management. However, the judge 

acknowledged that, ultimately, DEP would decide whether to issue 

flood hazard area, storm water management, and other 

environmental permits for the construction.

Contrary to the Township's argument, the trial court 

clearly did not find that the proposed project was 

environmentally unsuitable. Further, we cannot agree with the 

Township's proposed "all or nothing" approach to the builder's 

remedy. In essence, the Township argues that the court either 

had to permit 419 units as the builder's remedy or reject the 

builder's remedy altogether, sending CDA back to the proverbial 

drawing board. That approach would encourage repetitive 

litigation, contrary to the policy expressed in Mount Laurel II, 
21 A-5822-12T2

that builder's remedy lawsuits should be streamlined as much as 

possible so as to produce results (i.e., constructed affordable 

housing) rather than more litigation. 92 N.J. at 290-91; see 

also Toll Bros., supra, 173 N.J. at 561-63. Allowing the court 

to revise a builder's proposed project, so long as the 

development is suitable for the site, serves the fundamental 

purpose of Mount Laurel to produce affordable housing.8 See

Mount Laurel II, supra, 92 N.J. at 326-28 (holding that the sale 

of a portion of the developer's property during the litigation, 

requiring a revised building plan, did not moot the litigation 

or bar a builder's remedy).

The Township's position is also contrary to the Supreme 

Court's direction that, "in the formulation of the builder's 

remedy[,]" the trial court, and any appointed Special Master,

"should make as much use as they can of the planning board's 

expertise and experience so that the proposed project is 

suitable for the municipality." Mount Laurel II, supra, 92 N.J.

at 280. We find it implicit in that language that a trial court 

has authority to mold the builder's remedy by reducing the 

 

8 We need not address here the extreme situation posited by the 

Township, where a developer proposes a project of clearly 

inappropriate magnitude, which a municipality rejects when it 

might otherwise have approved a more modest project. As 

previously noted, in this case the Township was not going to 

voluntarily accept any affordable housing project on this site. 
22 A-5822-12T2

number of units allowed, based on appropriate planning 

considerations, whether suggested by a planning board or a 

court-appointed special master. That is precisely what the 

trial court did here. See Toll Bros., supra, 173 N.J. at 510 

(noting that the trial court, whose decision was affirmed, left 

for a later phase of the trial the "specifics" of the builder's 

remedy); see also id. at 574 (describing the grant of a 

builder's remedy as a "dynamic" and "flexible proceeding"). 

VI

Addressing the cross-appeal we find no merit in CDA's 

argument that the New Jersey Civil Rights Act (CRA), N.J.S.A.

10:6-2, authorized a fee award in this case. The CRA, which was 

enacted in 2004, L. 2004, c. 143, § 2, provides in relevant 

part:

c. Any person who has been deprived of 

any substantive due process or equal 

protection rights, privileges or immunities 

secured by the Constitution or laws of the 

United States, or any substantive rights, 

privileges or immunities secured by the 

Constitution or laws of this State, or whose 

exercise or enjoyment of those substantive 

rights, privileges or immunities has been 

interfered with . . . may bring a civil 

action for damages and for injunctive or 

other appropriate relief. . . .

. . . .

f. In addition to any damages, civil 

penalty, injunction or other appropriate 

relief awarded in an action brought pursuant 
23 A-5822-12T2

to subsection c. of this section, the court 

may award the prevailing party reasonable 

attorney's fees and costs.

[N.J.S.A. 10:6-2(c), (f).]

The CRA was intended to protect against deprivations of 

substantive constitutional rights, and substantive statutory 

rights. Tumpson v. Farina, 218 N.J. 450, 473 (2014). 

[T]he Legislature adopted the CRA for the 

broad purpose of assuring a state law cause 

of action for violations of state and 

federal constitutional rights and to fill 

any gaps in state statutory antidiscrimination protection. See L. 2004, c.

143; see also S. Judiciary Comm., Statement 

to Assemb. Bill No. 2073, at 1 (May 6, 2004) 

(stating that "to protect and assure against 

deprivation of the free exercise of civil 

rights which are guaranteed and secured 

under the New Jersey Constitution and 

federal Constitution, this bill provides a 

remedy when one person interferes with the 

civil rights of another . . . . [and 

further] is intended to address potential 

gaps which may exist under [the New Jersey 

Law Against Discrimination (LAD) and bias 

crime statutory causes of action]").

[Owens v. Feigin, 194 N.J. 607, 611 (2008)

(alterations in original).]

However, as the Court recently held, "[t]o establish a 

violation of the Civil Rights Act in this case, plaintiffs must 

prove that (1) 'the Constitution or laws of this State'

conferred on them a substantive right." Tumpson, supra, 218 

N.J. at 473 (emphasis added). CDA did not meet that criterion. 

The substantive constitutional right at issue in this case 
24 A-5822-12T2

belongs not to the developer but to "lower income citizens" 

seeking to live in affordable housing. Mount Laurel II, supra, 

92 N.J. at 220. As the Court previously noted, "the builder's 

remedy was developed not for the benefit of builders but to 

advance the constitutional interest in affordable housing." 

Toll Bros., supra, 173 N.J. at 580 (citing Hills Development Co. 

v. Bernards Township, 103 N.J. 1, 54 (1986)). In this 

situation, the developer has not been "deprived" of a 

constitutional right, within the meaning of the CRA, because no 

such right has been "conferred" on it. See N.J.S.A. 10:6-2(c); 

Tumpson, supra, 218 N.J. at 473. Therefore we cannot conclude

that a developer that prevails in Mount Laurel litigation is 

entitled to fees under the CRA. 

This result is not inconsistent with the purpose of the 

Legislature in enacting the fee section of the CRA. The CRA

"was intended to apply to cases . . . where a citizen deprived 

of a substantive right, could not otherwise afford to retain 

counsel." Tumpson, supra, 218 N.J. at 480. Unlike other 

constitutional litigation in which counsel fees are needed to 

make the litigation financially feasible for wronged plaintiffs, 

in Mount Laurel litigation the possibility of a builder's remedy 

provides developers with ample financial incentive to file suit. 
25 A-5822-12T2

Moreover, if the Legislature intended to permit counsel 

fee awards in builder's remedy lawsuits, we anticipate that it 

would have provided that remedy in the Fair Housing Act (FHA), 

which specifically addressed the implementation of Mount Laurel.

9 

But it did not do so. By contrast, for example, the Legislature 

authorized fees to a prevailing plaintiff in suits under the Law 

Against Discrimination, which bars discrimination in housing. 

N.J.S.A. 10:5-12(g), -27.1. 

To the extent we can glean the Legislature's intent from 

the FHA, it favored mediation and the COAH process, rather than 

the filing of lawsuits: 

When enacting the FHA, the Legislature 

provided "various alternatives to the use of 

the builder's remedy as a method of 

achieving fair share housing," including the 

COAH mediation and review process, which was 

"the State's preference for the resolution 

of existing and future disputes involving 

exclusionary zoning. . . ." N.J.S.A.

52:27D-303.

[Toll Bros., supra, 173 N.J. at 563.]

The FHA was enacted in 1985. L. 1985, c. 222. We find it 

highly unlikely that the Legislature, in later enacting the CRA, 

 

9 The possibility of a court-created fee shifting rule in Mount

Laurel litigation was mentioned in Toll Brothers. However, the 

Court did not adopt that approach in its opinion. 173 N.J. at 

566 (majority), 580-81 (Stein, J., concurring in part and 

dissenting in part). 
26 A-5822-12T2

had changed its view toward Mount Laurel litigation and intended 

to provide additional incentives for developer lawsuits. See

Hills Development, supra, 103 N.J. at 49 ("The legislative 

history of the [FHA] makes it clear that it had two primary 

purposes: first, to bring an administrative agency into the 

field of lower income housing to satisfy the Mount Laurel

obligation; second, to get the courts out of that field."). 

Such a construction of the CRA would be incompatible with one of 

the fundamental purposes of the FHA.10 See Tumpson, supra, 218 

N.J. at 478-79. Indeed, CDA has not cited a single case in 

which a developer was awarded counsel fees in Mount Laurel

litigation.11

 

10 We note that, at the present time, the Court has suspended 

operation of the FHA provisions giving compliant municipalities 

substantial protection from builder's remedy lawsuits, and has 

created an alternative process. In re Adoption of N.J.A.C. 5:96 

& 5:97, 221 N.J. 1 (2015); see N.J.S.A. 52:27D-301 to -329. The 

Court rendered that decision due to COAH's repeated failure to 

adopt valid third round fair share regulations. In re Adoption, 

supra, 221 N.J. at 5-6. However, COAH's current non-compliance 

with its statutory responsibilities has no bearing on our 

interpretation of the CRA, which was enacted in 2004. See id.

at 34 (acknowledging the Legislature's preference, expressed in 

the FHA, for administrative remedies instead of litigation). 

11 CDA's reliance on Dunn v. State Department of Human Services, 

312 N.J. Super. 321 (App. Div. 1998), is misplaced. That case 

construed the Federal Fair Housing Act, which conferred both 

standing and a right to counsel fees upon prevailing, to any 

person "aggrieved" by a discriminatory act. The definition of 

"aggrieved" was very broad, encompassing any person who "claims 

to have been injured by a discriminatory housing practice." Id.

at 331 (quoting 42 U.S.C.A. § 3602(i)(1)).
27 A-5822-12T2

VII

To summarize, we find that the trial court's decisions, 

which resulted in the orders challenged here, were supported by 

sufficient credible evidence and were legally correct. To the 

extent not specifically addressed herein, the parties' arguments 

are without sufficient merit to warrant discussion. R. 2:11-

3(e)(1)(E). Accordingly, we affirm on the appeal and the crossappeal.

Affirmed.