NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0357-20

IN THE MATTER OF THE

APPLICATION OF THE

TOWNSHIP OF

BORDENTOWN, COUNTY

OF BURLINGTON.

________________________

Argued February 9, 2022 – Decided March 14, 2022

Before Judges Sumners, Vernoia and Firko.

On appeal from the Superior Court of New Jersey, 

Law Division, Burlington County, Docket No. L1579-15.

Bruce I. Afran argued the cause for appellant Mark 

Bergman.

Michael J. Edwards argued the cause for respondent 

The Township of Bordentown (Surenian, Edwards & 

Nolan LLC, attorneys; Michael J. Edwards, of counsel 

and on the brief; AnnMarie Harrison, on the brief).

Joshua D. Bauers argued the cause for respondent Fair 

Share Housing Center (Fair Share Housing Center, 

attorneys; Bassam F. Gergi, of counsel and on the 

brief).

The opinion of the court was delivered by

FIRKO, J.A.D.

APPROVED FOR PUBLICATION

March 14, 2022

APPELLATE DIVISION
A-0357-20 2

In this Mount Laurel1case, defendant-intervenor Mark Bergman appeals 

from the final judgment of compliance and repose entered by the Law Division 

on August 27, 2020, in accordance with Mount Laurel IV, 221 N.J. at 30. The 

final judgment approved an amended settlement agreement between plaintiff, 

the Township of Bordentown (the Township), and the Fair Share Housing 

Center (FSHC). The agreement established the Township's Third Round fair 

share obligation for affordable housing and provided a plan for its compliance. 

In this opinion, we address the parameters of a fairness hearing and judicial 

approval of a settlement involving the FSHC in the absence of Third Round 

rules being promulgated by the Council on Affordable Housing (COAH).

On appeal, Bergman argues the trial court erred by denying his request 

to testify at the fairness hearing and finding the settlement fairly and 

reasonably protects the interests of low-income individuals. He also contends 

special master Mary Beth Lonergan, A.I.C.P., P.P., had a conflict of interest 

because she, or others in her firm, were simultaneously representing dozens of 

municipalities in affordable housing settlement negotiations. We disagree and 

affirm.

1

 "The Mount Laurel series of cases recognized that the power to zone carries 

a constitutional obligation to do so in a manner that creates a realistic 

opportunity for producing a fair share of the regional present and prospective 

need for housing low- and moderate-income families." In re N.J.A.C. 5:96 & 

5:97, (Mount Laurel IV), 221 N.J. 1, 3-4 (2015) (footnote omitted).
A-0357-20 3

I.

On July 2, 2015, the Township filed a verified complaint seeking a 

declaratory judgment that it satisfied its fair share of affordable housing for its 

Third Round Mount Laurel obligation, pursuant to COAH's 2014 calculation, 

and it is immune from prospective litigation.2 On November 12, 2015, the 

2

 Third Round refers to a municipality's Mount Laurel obligation between the 

years of 1999 and 2025. See In re Declaratory Judgment Actions Filed By 

Various Muns., 227 N.J. 508, 531 (2017).

In 1999, COAH's Second Round rules expired. In re Adoption of 

N.J.A.C. 5:96 & 5:97 ex rel. New Jersey Council on Affordable Hous. (Mount 

Laurel IV), 221 N.J. 1, 8 (2015). As such, promulgation of COAH's Third 

Round rules was originally due in 1999. Ibid. Although COAH twice 

attempted to adopt Third Round rules, first in 2004, see 36 N.J.R. 5895(a)

(Dec. 20, 2004), and then in 2008, see 40 N.J.R. 237(a) (Jan. 22, 2008); 40 

N.J.R. 515(a) (Jan. 22, 2008), reviewing courts found several key aspects of 

COAH's two attempted Third Round rules "to be invalid and violative of the 

Mount Laurel doctrine." In re Declaratory Judgment Actions, 227 N.J. at 514-

15 (citing In re Six Month Extension of N.J.A.C. 5:91–1 et seq., 372 N.J. 

Super. 61 (App. Div. 2004); In re Adoption of N.J.A.C. 5:94 & 5:95 (In re 

N.J.A.C. 5:94 & 5:95), 390 N.J. Super. 1 (App. Div. 2007); In re Adoption of 

N.J.A.C. 5:96 & 5:97, 416 N.J. Super. 462 (App. Div. 2010)). Consequently, 

for sixteen-plus years, "COAH failed to adopt a set of valid regulations to 

govern the" Third Round. Ibid.

In response, on March 14, 2014, the Court directed COAH if it "did not 

adopt Third Round [r]ules by November 17, 2014, the Court would entertain 

applications for relief . . . . [and] 'if such a request [was] granted, actions may 

be commenced on a case-by-case basis before the Law Division or in the form 

of "builder[']s remedy" challenges.'" See Mount Laurel IV, 221 N.J. at 9-10

(fifth alteration in original) (quoting In re Adoption of N.J.A.C. 5:96 & 5:97, 

220 N.J. 355, 355-56 (2014)).
A-0357-20 4

FSHC moved to intervene. Bergman, doing business as Sage Builders, Inc., 

entered into an option agreement on April 27, 2017, to purchase 17.04 acres of 

unimproved real property located at block 92.01, lot 18, on Route 528 in the 

Township (the property) for the purpose of constructing 250 residential units, 

which would include forty affordable housing units. He filed a motion to 

intervene, which the trial court granted. The court also appointed Lonergan as 

a special master in the case.

Following immunity and intervention proceedings, the parties engaged 

in extensive negotiations. At the time, the property was "zoned as R-120 Low 

Density Residential." The Township wanted to acquire the property for its 

Green Acres open space preservation program. On April 3, 2017, the 

Township awarded a contract for the appraisal of the property to J. McHale 

and Associates, LLC. The property appraisal indicated "a maximum of 

[thirteen] building lots" would be permitted under current zoning regulations.

The option agreement provided Bergman nine months—until January 27, 

2018—to acquire all rights in the property under the terms and conditions set 

forth in the agreement. Bergman could extend the initial option period for an 

additional nine months by notifying the owner "in writing no later than ten . . . 

business days prior to the expiration of the" option agreement—January 17, 

2018—and making four $37,500.00 payments upon exercising the extended 
A-0357-20 5

option period and "at [seventy-five] day intervals thereafter," for a total sum of 

$150,000.00. Failure to extend the initial option period in writing by January 

17, 2018, would automatically result in termination of the option on January 

27, 2018.

Between May and June 21, 2017, the Township and Bergman had 

preliminary discussions relative to his proposed development. Bergman did 

not file an application to rezone the property or seek site plan approval 

regarding his proposal. The Township informed Bergman it was in the process 

of determining its affordable housing obligation.

On June 26, 2017, the Township and FSHC3entered into a settlement 

agreement (the agreement), which set forth the Township's total affordable 

housing obligations and provided a compliance plan in order to meet those 

obligations. The agreement recognized the Township had the following 

affordable housing obligations:

REHABILITATION OBLIGATION 11

PRIOR ROUND OBLIGATION 

3

 In Mount Laurel IV, the Court endorsed FSHC's interest in the Third Round

proceedings under review. The Court explained, "If a municipality seeks to 

obtain an affirmative declaration of constitutional compliance, it will have to 

do so on notice and opportunity to be heard to FSHC and interested parties." 

221 N.J. at 24. Trial courts "will be assisted in rendering [their] preliminary 

determination[s] on need by the fact that all initial and succeeding applications 

will be on notice to FSHC and other interested parties." Id. at 23.
A-0357-20 6

(pursuant to N.J.A.C. 5:93) 211

THIRD ROUND (1999-2025)

PROSPECTIVE NEED, WHICH 

INCLUDES THE GAP PERIOD

PRESENT NEED, RECOGNIZED BY

THE SUPREME COURT, In re

Declaratory Judgment Actions

Filed by Various Municipalities,

227 N.J. 508 (2017) 425

In order to satisfy the Township's Third Round prospective need of 425 

units, the agreement identifies multiple compliance mechanisms, including: 

(1) surplus credits (round two), consisting of residual credits resulting from the 

Bradford Point site4for ten units with a rental bonus credit of ten (ten in total); 

(2) Volunteers of America (VOA) – 1, a senior rental for sixty-four units and 

special needs for five units (sixty-nine units in total) with a rental bonus credit 

of five; (3) the Bordentown Waterfront Community (BWC) residual credits, a 

family or senior rental with eighteen units; (4) the Zieger project, for 227 

units, thirty-six units to be affordable housing; (5) the Nissam project, for 230 

units, forty units to be affordable housing and over 13% affordable housing to 

very low-income families; (6) group home (bedrooms) designated for special 

4

 "The Bradford Pointe Court development was approved in 2001 and 

constructed in 2002 to satisfy the conditions contained in the August 16, 2000 

[j]udgment of [c]ompliance and [r]epose and the entirety of the Township's 

[p]rior [r]ound obligation. This site is identified as block 139, lot 11 on the

official tax map of the Township."
A-0357-20 7

needs, consisting of twenty units and sixteen rental bonus credits; (7) an 

inclusionary family rental development for fifty-nine units; and (8) VOA-2, a 

family rental development based on sixty-six units.

Bergman's property was not included in the agreement. Therefore, he 

chose not to meet any further with the Township's representatives relative to 

his development plan for the property. On September 1, 2017, Bergman filed 

an objection to the Township's proposed settlement and compliance plan and 

sought to include the property in the Township's affordable housing allocation.

On May 18, 2018, Bergman's attorney submitted a letter to the court 

advising he and his client "would not be appearing at the fairness hearing but 

that [Bergman] wished to make a statement." On June 12, 2018, Bergman 

submitted a pro se written statement of his objections to the proposed 

settlement to the court.

At the June 18, 2018 fairness hearing, the trial court permitted Bergman 

to make a statement and cross-examine witnesses. The judge addressed 

Bergman's arguments and explained:

[First], [Bergman's concerns are] not directly in 

front of me today. What's in front of me today is 

whether there is a realistic opportunity for affordable 

housing, [which] I think that there is based on [special 

master] Lonergan's testimony. 

[Second], and I have this in other cases. I have 

it even being more actively litigated than this. It's—
A-0357-20 8

and I get the impression you're in the real estate 

business, so you know that things change, just like the 

rest of life and if something changes here then we’ll 

come back and we'll have to see.

. . . . 

[Third,] you may be right. As a matter of fact, I 

would be surprised if you were not right, that some of 

these things are not going to happen, but then the 

question is what is going to happen?

And I think that response to your concerns, I'm 

not going to get into whether I think your policy 

arguments are right or wrong because I don't really 

think that's the role of the Court. . . . I'm not here for 

policies. I'm here to do what the Supreme Court says.

So based upon this[,] I do find that there's a 

realistic opportunity.

On June 29, 2018, the trial court entered an order approving the 

Township's settlement with the FSHC based on Lonergan's testimony. The 

court noted the agreement's fair share methodology reduced the Township's 

Third Round obligation by thirty-two percent "as an incentive to settle the 

case," which it had "been amendable to . . . in lieu of litigating the appropriate 

fair share methodology."

Notwithstanding entry of the order, during a court conference, the judge 

"directed the parties to engage in discussions to see whether . . . [Bergman]'s 
A-0357-20 9

proposed site could be included in the settlement."5 In September 2017, 

negotiations commenced and ultimately resulted in a proposal by the Township 

permitting Bergman "to build eighty units on the property." These units, 

however, "would not be affordable units, but would be market rate units." 

Bergman rejected the proposal "because he wanted to buil[d] affordable [units] 

as part of the project."

On January 17, 2018, Bergman did not notify the property's owner in 

writing of his intention to extend the initial option period, as required in the 

option agreement. A week later on January 24, 2018, the Township 

announced it was ceasing all negotiations with Bergman regarding the 

property and his proposed development. Three days later, on January 27, 

2018, Bergman's option agreement expired. After Bergman's option 

agreement expired and was not renewed by him, the property's owner 

reentered into negotiations with the Township for its purchase of the 

property, which culminated in the sale of the property to the Township on 

May 3, 2018.

On June 7, 2019, Bergman filed a motion to set aside the trial court's 

June 29, 2018 order and argued: (1) "during the court-ordered negotiations 

[the Township] had taken undisclosed measures to acquire [the property] for 

5

 The record does not reflect the date of the court conference.
A-0357-20 10

itself for the purpose of preventing housing at that location;" and (2) the 

Township "had interfered in [his] ability to advocate for inclusion of the site in 

the affordable housing settlement."

6

On June 11, 2019, the Township and FSHC entered into an amended 

agreement, unrelated to Bergman's motion, which was submitted to the trial 

court on June 18, 2019, for approval. The amended agreement also provided 

for 425 units to satisfy the Township's Third Round obligation. In sum, the 

Township's Third Round sites included:

• Affordable housing credit for ten existing family 

rental homes, plus ten bonus credits from 

Bradford Pointe, a 100% affordable 

development, plus ten bonus credits

• Sixty-nine existing homes, comprised of sixtyfour age-restricted rentals and five special needs 

units, plus five bonus credits for the special 

needs units from a 100% affordable 

development with VOA

• Eighteen proposed family or age-restricted 

rental homes from an inclusionary development, 

BWC

• Thirty-six proposed family rental homes, plus 

thirty-six bonus credits, from an inclusionary 

development with Zieger

6

 Bergman claims he filed his motion to set aside the order on June 14, 2019.
A-0357-20 11

• Forty proposed family rental homes, plus forty 

bonus credits, from an inclusionary development 

with Nissim

• Nineteen proposed age-restricted homes from an 

inclusionary development with Kevin Johnson 

Senior Project

• Fourteen group homes

• Ten proposed family homes to be constructed by 

Habitat for Humanity

• Eleven proposed market-to-affordable homes

• Sixty-five proposed rental homes to be built as a 

100% affordable development by VOA, which 

was to be publicly subsidized

A new fairness hearing was requested to address modifications to the 

proposed amended agreement and to "determine whether the [a]mend[ed] 

[agreement] [was] fair and reasonable to the interest of the region's low- and 

moderate-income households, while simultaneously determining whether [the 

Township's fair share plan], as a whole, creates a realistic opportunity for the 

construction of the Township's fair share of the regional need."

On August 9, 2019, the parties entered into a consent order to set aside 

Bergman's motion because the June 29, 2018 order became moot since a new 

fairness hearing was required as a result of the proposed amended settlement. 

As part of the parties' consent order, Bergman was "entitled to be heard and 
A-0357-20 12

offer lay testimony and expert witnesses and cross-examine witnesses at any 

[fairness hearing] held in this matter."

On October 16, 2019, the trial court commenced the fairness hearing 

over three non-sequential days.7 During the second day of the fairness 

hearing, the trial court rejected Bergman's request to testify because his 

arguments were limited to his "personal situation." The trial court reiterated 

its function was solely to determine "whether or not [the amended agreement] 

was a fair agreement that provides a realistic opportunity for low[-] and 

moderate[-] income housing." The trial court added: "There is nothing that 

obligates a town to go with a specific development plan, as opposed to another 

one, provided that [the chosen plan] provides the opportunity for realistic 

low[-] and moderate[-] income housing."

Special master Lonergan testified in response to both the fairness of the 

amended settlement agreement and Bergman's arguments, which were 

previously summarized in an October 14, 2014 email to her. Lonergan 

recommended the trial court approve the amended settlement agreement and 

noted the housing element of the Fair Share Plan provided a realistic 

opportunity for the Township to construct its fair share of the regional need for 

7

 The second fairness hearing was held on October 16, November 15, and 

November 19, 2019.
A-0357-20 13

affordable housing. On December 10, 2019, the trial court entered a 

conditional order of judgment of compliance and repose, which incorporated 

the amended settlement agreement. The parties were directed to inform the 

court after the terms of the conditional order were satisfied. On August 7, 

2020, the trial court entered the final judgment of compliance and repose, 

which is the judgment under review. This appeal followed.

II.

A final determination made by a trial court conducting a non-jury case is 

"subject to a limited and well-established scope of review." Seidman v. 

Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). We review a trial court's 

interpretation of law de novo. Manalapan Realty, LP v. Twp. Comm. of 

Manalapan, 140 N.J. 366, 378 (1995). However, "we give deference to the 

trial court that heard the witnesses, sifted the competing evidence, and made 

reasoned conclusions." Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 

(2015). We will "not disturb the factual findings and legal conclusions of the 

trial judge unless" convinced that those findings and conclusions were "so 

manifestly unsupported by or inconsistent with the competent, relevant and 

reasonably credible evidence as to offend the interests of justice." Rova Farms 

Resort v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. 

Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).
A-0357-20 14

A trial court's decision to approve a proposed settlement agreement is 

reviewed for abuse of discretion.8 Chattin v. Cape May Green, Inc., 216 N.J.

Super. 618, 628 (App. Div. 1987) (reviewing a class action settlement); 

Builders League of S. Jersey, Inc. v. Gloucester Cnty. Utils. Auth., 386 N.J. 

Super. 462, 471-72 (App. Div. 2006) (noting fairness hearings for class action 

settlements and land use litigation to be the same) (citing, in part, S. 

Burlington Cnty. N.A.A.C.P. v. Mount Laurel Twp. (Mount Laurel I), 67 N.J. 

151 (1974)). The trial court's role is to approve or reject the proposed 

settlement in its entirety as written and the court may not revise or amend 

particular provisions. See Tabaac v. City of Atl. City, 174 N.J. Super. 519, 

524 (Law Div. 1980); In re Cendant Sec. Litig., 109 F.Supp. 2d. 235, 255 

(D.N.J. 2000).

Trial courts have broad discretion when reviewing a municipality's

Mount Laurel fair share plan for constitutional compliance. Mount Laurel IV, 

221 N.J. at 30. And, trial "courts should endeavor to secure, whenever 

possible, prompt voluntary compliance from municipalities." Id. at 33. A trial 

court's factual "findings should not be disturbed 'when supported by adequate, 

substantial and credible evidence.'" Toll Bros. v. Twp. of W. Windsor, 173 

8

 Without citing to any case law or legal authority, Bergman erroneously 

contends a trial court's approval of a municipality's Fair Share Plan is subject 

to de novo review.
A-0357-20 15

N.J. 502, 549 (2002) (quoting Rova Farms Resort, 65 N.J. at 484). Matters of 

law, however, "are subject to a de novo review." Ibid. (quoting Balsamides v. 

Protameen Chems., Inc., 160 N.J. 352, 372 (1999)).

A trial court must conduct a fairness hearing before it approves a 

municipality's Mount Laurel Fair Share Plan. Livingston Builders, Inc. v. 

Twp. of Livingston, 309 N.J. Super. 370, 374 (App. Div. 1998). The sole 

purpose of a fairness hearing is to assess "whether the settlement is 'fair and 

reasonable,'" i.e., "whether it adequately protects the interests of the persons 

on whose behalf the action was brought." Sutter v. Horizon Blue Cross Blue 

Shield of N.J., 406 N.J. Super. 86, 101-02 (App. Div. 2009) (reviewing 

settlement between health insurer and class representative) (quoting Morris 

Cnty. Fair Hous. Council v. Boonton Twp., 197 N.J. Super. 359, 369-71 (Law 

Div. 1984)); see also Builders League of S. Jersey, 386 N.J. Super. at 471-72 

(noting fairness hearings for class action settlements and land use litigation to 

be the same). Cf. Mount Laurel I, 67 N.J. 151.

A municipality's fair share plan settlement is fair and reasonable when it 

"adequately protects the interests of lower-income persons on whose behalf the 

affordable units proposed by the settlement are to be built." E./W. Venture v. 

Borough of Fort Lee, 286 N.J. Super. 311, 328 (App. Div. 1996). A fairness 

hearing requires the trial court to consider: (1) "the number of affordable 
A-0357-20 16

housing units being constructed"; (2) "the methodology by which the number 

of affordable units has been derived"; (3) "any other contribution being made 

by the developer to the municipality in lieu of affordable units"; (4) "other 

components of the agreement[,] which contribute to the municipality's 

satisfaction of its constitutional obligation"; and (5) "any other factors[,] which 

may be relevant to the 'fairness' issue." Ibid. "In making a fairness 

determination, a trial court 'must not forget that it is reviewing a settlement 

proposal rather than ordering a remedy in a litigated case.'" Builders League 

of S. Jersey, 386 N.J. Super. at 471 (quoting Armstrong v. Bd. of Sch. Dirs. of 

Milwaukee, 616 F.2d 305, 314-15 (7th Cir.1980)).

In conducting a fairness hearing, a trial court has broad "discretion to 

'employ the procedures that it perceives will best permit it to evaluate the 

fairness of the settlement.'" Sutter, 406 N.J. Super. at 101 (quoting In re Cmty. 

Bank of N. Va., 418 F.3d 277, 316 (3d Cir. 2005)). "The 'nature and extent of 

the hearing . . . rests within the sound discretion of the court.'" Id. at 102 

(quoting Boonton Twp., 192 N.J. Super. at 370); see also In re Pet Food Prods. 

Liab. Litig., 629 F.3d 333, 358 n.33 (3d Cir. 2010) (noting trial courts are 

afforded considerable "discretion 'to employ the procedures that [the court] 

perceives will best permit it to evaluate the fairness of the settlement'" 

(quoting In re Cmty. Bank of N. Va., 418 F.3d at 316)).
A-0357-20 17

Under Mount Laurel I, 67 N.J. at 151, a municipality has a constitutional 

obligation to provide a "realistic opportunity" for the development of its fair 

share of affordable housing. S. Burlington Cnty. N.A.A.C.P. v. Mount Laurel 

Twp. (Mount Laurel II), 92 N.J. 158, 221 (1983). Determining if an 

opportunity is "realistic" requires application of a practical and objective 

standard; the court must decide "whether there is in fact a likelihood—to the 

extent economic conditions allow—that the lower income housing will actually 

be constructed." Id. at 221-22. "Municipalities need not guarantee that the 

required amount of affordable housing will be built, but must only adopt land 

use ordinances that create a realistic opportunity to meet the regional need and 

their own rehabilitation share." In re Adopt. of N.J.A.C. 5:94 & 5:95, 390 N.J. 

Super. at 54.

Trial courts adjudicating Mount Laurel declaratory judgment actions 

"should employ flexibility in assessing a" municipality's compliance plan. 

Mount Laurel IV, 221 N.J. at 33. The Fair Housing Act of 1985 (FHA) and 

the Municipal Land Use Law authorize municipalities to use various means to 

provide for their "fair share of low[-] and moderate[-]income housing." 

N.J.S.A. 52:27D-311(a); see also N.J.S.A. 40:55D-8.7(a).
A-0357-20 18

A.

We first address Bergman's argument that the trial court erred by not 

allowing him to testify at the fairness hearing. He contends his proffered 

testimony was a factor "relevant to the 'fairness' issue." E./W. Venture, 286 

N.J. Super. at 328. Bergman claims the term "any other factors" "embraces all 

evidence that reasonably relates to the fundamental fairness of the settlement" 

and "whether it provides a 'realistic' affordable housing opportunity." Because 

Bergman asserts the amended settlement agreement reduced the Township's 

Third Round obligations, he claims his testimony was relevant, and his 

proposed development could have satisfied the Township's affordable housing 

obligation.

The sole purpose of a fairness hearing is to assess whether the proposed

"settlement is 'fair and reasonable,'" Sutter, 406 N.J. Super. at 101-02 (quoting 

Boonton Twp., 197 N.J. Super. at 369-71), i.e., "whether it adequately protects 

the interests of lower-income persons on whose behalf the affordable units 

proposed by the settlement are to be built," E./W. Venture, 286 N.J. Super. at 

328. As such, the trial "court 'must eschew any rubber stamp approval in favor 

of an independent evaluation, yet, at the same time, it must stop short of the 

detailed and thorough investigation that it would undertake if it were actually 

trying the case.'" Sutter, 406 N.J. Super. at 102 (quoting Builders League of S. 
A-0357-20 19

Jersey, 386 N.J. Super. at 471). However, "[t]he 'nature and extent of the 

hearing . . . rests within the sound discretion of the court.'" Ibid. (quoting 

Boonton Twp., 192 N.J. Super. at 370); see also Pet Food Prods. Liab. Litig., 

629 F.3d 333, 358 n.33 (3d Cir. 2010) (noting trial courts are afforded 

considerable discretion "to employ procedures that [the court] perceives will 

best permit it to evaluate the fairness of the settlement" (quoting In re Cmty. 

Bank of N. Va., 418 F.3d at 316)).

We discern no basis to disturb the trial court's decision barring 

Bergman's testimony. The court was well within its discretion in finding 

Bergman's proffered testimony was purely personal in nature—concerning his 

development project. Moreover, Bergman was allowed to participate in the 

fairness hearing by examining witnesses. The purpose of a fairness hearing is 

not to determine if there exists an alternative plan, which may more efficiently 

provide low-income units, but rather is restricted to the question of whether the 

parties' current plan provides "a realistic opportunity for the municipality to 

achieve its 'fair share of the present and prospective regional need for low[-] 

and moderate[-]income housing.'" S. Burlington Cnty. N.A.A.C.P. v. Twp. of 

Mount Laurel (Mount Laurel II), 92 N.J. at 205.
A-0357-20 20

B.

Next, Bergman argues the trial court erred by finding he "was seeking to 

compel, in the wrong forum, a builder's remedy." A builder's remedy provides 

a developer with the means to bring "about ordinance compliance through 

litigation." Mount Olive Complex v. Twp. of Mount Olive (Mount Olive II), 

356 N.J. Super. 500, 505 (App. Div. 2003) (quoting Allan-Deane Corp. v. 

Twp. of Bedminster, 205 N.J. Super. 87, 138 (Law Div.1985)). A builder's 

remedy should be granted if: (1) the "developer succeeds in Mount Laurel

litigation"; (2) the developer "proposes a project providing a substantial9

9

 "Substantial" is defined on a case-by-case basis. Mount Laurel II, 92 N.J. at 

279 n.37. To determine whether the provided amount of lower income 

housing is substantial, trial court's should consider the following factors: (1) 

"the size of the [builder's] proposed project"; (2) "the percentage of the project 

to be devoted to lower income housing" (a percentage of 20% or higher is 

presumptively a reasonable percentage); (3) the "proportion of the 

[municipality's]'s fair share allocation [that] would be provided by the project"; 

and (4) "the extent to which the remaining housing in the project can be 

categorized as 'least cost.'" Ibid.

Here, Bergman's proposal does not include a substantial amount of lower 

income housing. Bergman's original proposal included 250 units, with only 

forty low-income units (16%). His forty low-income units would provide for 

merely 5.28% of the Township's fair share allocation of 757 units. Finally, the 

record does not reflect whether the remaining 200 units could be categorized 

as "lease cost." Despite the fact that Bergman describes his proposal sets forth 

a "substantial" and "sizeable" number of low-income units, the record does not 

indicate his proposal would provide the Township with the substantial number 

of units mandated under the Mount Laurel II factors. Ibid.
A-0357-20 21

amount of lower income housing"; and (3) the developer's proposal is not 

"contrary to sound land use planning." Mount Laurel II, 92 N.J. at 279–80. A

"builder's remedy [may] not be denied solely because the municipality prefers 

some other location for lower income housing, even if it is in fact a better 

site." Id. at 280. Builder remedies are granted "where appropriate, on a caseby-case basis." Id. at 218.

A developer does not have an "inherent right to a builder's remedy," 

however. Tanenbaum v. Twp. of Wall Bd. of Adjust., 407 N.J. Super. 446, 

457 (Law. Div. 2006), aff'd, 407 N.J. Super. 371, 376 (App. Div. 2009)

(affirming the trial court's "conclusions substantially on the basis of his written 

opinion"). A builder's remedy is only appropriate "after a [trial] court has had 

the opportunity to fully address constitutional compliance and has found 

constitutional compliance wanting." Mount Laurel IV, 221 N.J. at 35-36. 

Consequently, only a municipality that satisfies its Mount Laurel obligations 

"obtain[s] immunity from a builder's remedy." Id. at 14.

Here, the trial court noted Bergman's objections to be a "bootstrapped" 

builder's remedy by which to circumvent the Township's immunity. 

Specifically, the court noted:

He happens to be a developer. There's a specific 

remedy for developers when it comes to [Mount] 

Laurel litigation, called a builder's remedy, if that's 
A-0357-20 22

what he might want to do with a certain plot of land as 

a developer.

. . . [I]t's one thing to object to the [Mount] Laurel

plan on fairness grounds, but if the whole reason he's 

here . . . [is] as a developer, [he] want[s] [his] 

property in [the plan][,] [i]sn't that a builder's remedy 

as opposed to an objection to a fair share plan?

In response, the record shows Bergman's counsel admitted he had hoped by 

vacating the current fair share plan, Bergman "might actually get to the same 

place" as a builder's remedy "without the need for a new litigation." We are 

unpersuaded. The trial court's barring of Bergman's testimony was well within 

its discretion and does not warrant reversal.

C.

Finally, on the issue of his proffered testimony, Bergman argues the trial 

court erred because the Township had "manipulated out of existence an actual 

building opportunity." A municipality is not inherently required to rezone 

property for purposes of inclusionary development. See Mount Olive II, 356 

N.J. Super. at 507. If a municipality can achieve its fair-share obligation 

without a specific property, i.e., the municipality's fair share plan is fair and 

reasonable without the property's inclusion, then the municipality may restrict 

the use of the property as reasonable. See ibid.; Mount Olive Complex v. 

Twp. of Mount Olive (Mount Olive I), 340 N.J. Super. 511, 538 (App. Div. 

2001). In Mount Laurel II, the Court specifically held:
A-0357-20 23

Mount Laurel is not designed to sweep away all land 

use restrictions or leave our open spaces and natural 

resources prey to speculators. Municipalities 

consisting largely of conservation, agricultural, or 

environmentally sensitive areas will not be required to 

grow because of Mount Laurel. . . . 

As for those municipalities that may have to 

make adjustments in their lifestyles to provide for 

their fair share of low[-] and moderate[-]income 

housing, they should remember that they are not being 

required to provide more than their fair share. . . . 

[O]nce a community has satisfied its fair share 

obligation, the Mount Laurel doctrine will not restrict 

other measures, including large-lot and open area 

zoning, that would maintain its beauty and communal 

character.

[92 N.J. at 219-20.]

A municipality achieves its fair-share obligation via its "units actually 

constructed, under construction, or approved by [the municipality's] final 

development plan." Mount Olive II, 356 N.J. 510-11. As such, so long as a 

municipality's fair share plan is fair and reasonable, the municipality has 

satisfied its Mount Laurel obligations and may restrict the use of all property 

not included in the plan as reasonable. But see Mount Laurel IV, 221 N.J. at 

33-34 (noting if the "goal cannot be accomplished, with good faith effort and 

reasonable speed, . . . then the [trial] courts may authorize exclusionary zoning 

actions seeking a builder's remedy to proceed against the [municipality]").
A-0357-20 24

Nor may a trial court order additional Mount Laurel housing absent a 

builder's remedy. A trial court "cannot order more Mount Laurel housing even 

if the municipality could have provided more." Tanenbaum, 407 N.J. Super. at 

457 (citing generally Livingston Builders, 309 N.J. Super. 370).

Here, the property was zoned as low density residential at the time 

Bergman entered into the option contract. At no time did Bergman file any 

application for rezoning of the property. In May 2017, the Township informed 

Bergman that the property would be considered for additional affordable 

housing, along with other properties. And, the proposals were "entirely 

inconsistent with the Township's current zoning" regularities. During the 

second fairness hearing, the Township's representative testified "[t]here was 

always interest in [the] property for the purpose . . . . [of] affordable 

housing. . . . [but] [i]t was rejected . . . because the [Township] was concerned 

with its proximity in a blast zone to a compressor station."

Clearly, the Township had not "manipulated out of existence an actual 

building opportunity," but rather rejected the property for legitimate reasons in 

favor of alternative locations. Indeed, the Township achieved its fair-share 

obligation without including the property and was entitled to restrict the use of 

the property as it deemed reasonable. See Mount Olive II, 356 N.J. Super. at

507; Mount Olive I, 340 N.J. Super. at 538.
A-0357-20 25

D.

Next, Bergman contends the amended settlement agreement "truncates 

and reduces by a large margin," approximately thirty percent, "the number of 

affordable units ever to be constructed . . . . through the use of stratagems such 

as rental bonus credits and deed restricting homes." Bergman summarizes 

various "stratagems" that he contends the Township unconstitutionally 

employed to reduce its margin,10 but he does not argue the use of the 

stratagems in and of themselves to be unconstitutional. Rather, Bergman 

argues that trial courts are required to provide a "realistic opportunity" analysis 

prior to accepting bonus credits or other reduction stratagems.

According to Bergman, a "realistic opportunity" analysis requires a trial 

court to weigh the facts of the case, and determine whether: (1) "the economic 

rationale that motivated COAH . . . to allow the use of . . . bonus credits still 

prevailed at the time of hearing;" and (2) "the loss of . . . units due to rental 

and other credits undermined the fundamental fairness of the settlement," 

relying on the Court's holding in Mount Laurel IV. "As the Supreme Court has 

made clear, the trial court, acting in COAH's place, may apply COAH's former 

rules 'if persuaded that the techniques proposed . . . will promote . . . [the 

10

 Bergman's summary of stratagems includes the usage of: (1) rental bonus 

credits; (2) surplus units credits; (3) senior special needs credits; (4) group 

home bedroom credits; and (6) market-to-affordable deed restrictions.
A-0357-20 26

municipality's] fair share of . . . low- and moderate-income housing.'" 

(Emphasis added) (first, third, and fourth alterations in original) (emphasis 

added) (quoting Mount Laurel IV, 221 N.J. at 30).

First, although not advanced by Bergman, the use of bonus credits and 

reduction stratagems are constitutional under common law. These stratagems 

were originally adopted and codified within COAH's First and Second Round 

methodologies, N.J.A.C. 5:92-1.1 to -19, and N.J.A.C. 5:93-1 to -13.4 

respectfully. See In re N.J.A.C. 5:94 & 5:95, 390 N.J. Super. at 23-25; Toll 

Bros., 334 N.J. Super. at 104. The Court has noted various legal challenges to 

COAH's Second Round methodology, including reductions for bonus credits, 

have failed. See In re Adoption of N.J.A.C. 5:96 (In re N.J.A.C. 5:96), 215 

N.J. 578, 592 (2013); see also In re N.J.A.C. 5:94 & 5:95, 390 N.J. Super. at 

25 (noting examples of failed legal challenges to COAH's First and Second 

Round rules, including bonus credits).

Most recently, in 2007, multiple appellants contested "the validity of 

these credits and bonus credits" claiming "the award of bonuses and credits 

unconstitutionally dilutes the affordable housing required to meet the 

identified statewide need." In re N.J.A.C. 5:94 & 5:95, 390 N.J. Super. at 81. 

Appellants requested this court "to hold that: (1) no unit can receive a credit 

unless the unit actually exists; and (2) no unit can be credited unless it is likely 
A-0357-20 27

to be occupied by a person included in the calculation of need." See id. at 83. 

In response, however, we once again upheld the constitutionality of the 

stratagems. Ibid. We also noted it was "reasonable for COAH to provide 

incentives for housing for the very poor" and that appellants had offered "no 

persuasive reasons for departing from existing precedent." Ibid.

In 2015, our Court "declared COAH defunct and eliminated the FHA's 

exhaustion-of-administrative-remedies requirement." In re Declaratory 

Judgment Actions, 227 N.J. at 515 (citing Mount Laurel IV, 221 N.J. at 5-6). 

In response, the Court "provided for a judicial forum to adjudicate affordable 

housing disputes once more" and "instructed the courts to follow certain 

guidelines 'gleaned from the past.'" Ibid. (quoting Mount Laurel IV, 221 N.J. 

at 29-30). Such guidelines specifically included that "Mount Laurel judges 

may exercise the same level of discretion [as COAH] when evaluating a 

municipality's plan for Mount Laurel compliance," including "the allowance of 

bonus credits towards satisfaction of a municipality's affordable housing 

obligations." Mount Laurel IV, 221 N.J. at 31-32. On October 16, 2016, 

COAH's Second Round rules expired, including its reduction stratagems. See 

generally N.J.A.C. 5:93-1 to -13.4.
A-0357-20 28

The record here is replete with references to the expired Second Round 

rules. The trial court also noted the current ongoing confusion as to the now 

expired COAH methodologies:

[H]ere let me just talk briefly about COAH and there's 

been a lot of back and forth and the [c]ourt sort of 

indicated, you know, sometimes where it's convenient 

to talk about the COAH regulations are coming in, and 

other times it's no, COAH is defunct, and does COAH 

have any meaning in today's world post Mount Laurel 

IV, and the [c]ourt would simply indicate that the 

spirit of those COAH regulations are something that 

the [c]ourt can consider in an overall analysis of 

whether or not the plan is fair, and that is clearly 

articulated in Mount Laurel.

The trial court held "bonus credits have been permissible from the inception of 

Mount Laurel through COAH. The [c]ourt sees no reason to reject it now. It's 

common, it's acceptable, it's ubiquitous and it's appropriate." The parties cite 

the Second Round rules and seemingly rely on an understanding that in Mount 

Laurel IV, the Court created common law11 "Third Round" methodologies, 

which include and incorporate the Second Round reduction stratagems. See In 

re Declaratory Judgment Actions, 227 N.J. at 515 ("[W]e provided for a 

judicial forum to adjudicate affordable housing disputes once more. . . . [and] 

directed [the] [courts] [to] ascertain affordable housing need using the 

11

 Defining "common law" as "[t]he body of law derived from judicial 

decisions, rather than from statutes or constitutions." Black's Law Dictionary

(11th ed. 2019).
A-0357-20 29

methodologies set forth in COAH's First and Second Round rules."). 

Undeniably, the use of bonus credits and reduction stratagems are 

constitutional pursuant to the Court's holding in Mount Laurel IV.

Second, in Mount Laurel IV, the Court specifically identified and

instructed trial courts to approve "the allowance of bonus credits towards 

satisfaction of a municipality's affordable housing obligations." 221 N.J. at 

31-33. Furthermore, the Court specifically "provided a process by which a 

town might obtain the equivalent of substantive certification for its fair shar e 

housing plan and avoid exclusionary zoning actions, after a court assessed the 

town's fair share responsibility." In re Declaratory Judgment Actions, 227 N.J. 

at 523 (emphasis added) (citing Mount Laurel IV, 221 N.J. at 5-6, 9-20). In 

addition, the Court "gave the trial courts considerable flexibility in assessing 

need, allocating it by region and municipality, and in evaluating municipal 

plans for compliance, [but] did identify some parameters for the courts'

actions." Id. at 525 (citing Mount Laurel IV, at 29–33). Beyond those 

parameters, the Court specifically "did not limit the work of the trial courts 

except to attempt to cabin the time within which progress would be made 

toward recapturing the lost opportunity to advance municipal compliance with 

affordable housing obligations." Ibid. (citing Mount Laurel IV, 221 N.J. at 

33). 
A-0357-20 30

Bergman's "realistic opportunity" analysis directly contradicts the 

Court's required process and parameters, and it ignores the Court's approval of 

"allowance of bonus credits towards satisfaction of a municipality's affordable 

housing obligations." Mount Laurel IV, 221 N.J. at 31. The Court even 

approved the usage of additional bonuses not included in either the First or 

Second Round rules. Id. at 31-32 (approving bonus credits for usage of new 

construction, for units affordable to members of the "public earning thirty 

percent or less of the median income," and "Smart Growth" and 

"Redevelopment" bonuses).

Therefore, pursuant to Mount Laurel IV, the trial court here was not 

required to provide an analysis of whether "the economic rationale that 

motivated COAH . . . to allow the use of . . . bonus credits still prevailed at the 

time of hearing." Thus, the trial court was free to accept all bonus credits and

reduction stratagems so long as the municipality's fair share plan, as a whole, 

was fair and reasonable. E./W. Venture, 286 N.J. Super. at 328. 

Third, the purpose of the Court's Mount Laurel IV decision was to 

expedite municipalities' voluntary compliance with their Mount Laurel

obligations. "Rules to govern the [T]hird [R]ound cannot wait further while 

time is lost . . . . A remedy must be put in place to eliminate the limbo in 

which municipalities, New Jersey citizens, developers, and affordable housing 
A-0357-20 31

interest groups have lived for too long." Mount Laurel IV, 221 N.J. at 9 

(quoting In re N.J.A.C. 5:96 & 5:97, 215 N.J. at 620). The Court elaborated: 

[C]ourts should endeavor to secure, whenever 

possible, prompt voluntary compliance from 

municipalities in view of the lengthy delay in 

achieving satisfaction of towns' Third Round 

obligations. If that goal cannot be accomplished, with 

good faith effort and reasonable speed, and the town is 

determined to be constitutionally noncompliant, then 

the court may authorize exclusionary zoning actions 

seeking a builder's remedy to proceed against the 

towns . . . .

[Id. at 33–34.]

The purpose of the Court's Mount Laurel IV decision is consistent with the 

Court's long endorsed "policy of encouraging the settlement of litigation." 

Boonton Twp., 197 N.J. Super. at 366; see also Mount Laurel II, 92 N.J. at 352 

("[T]he Mount Laurel obligation is to provide a realistic opportunity for 

housing, not litigation.").

We conclude Bergman's proposed "realistic opportunity" analysis 

directly contradicts the Court's avowed goal in Mount Laurel IV. First, 

requiring every trial court to consider whether "the economic rationale that 

motivated COAH . . . to allow the use of . . . bonus credits still prevailed at the 

time of hearing" for each and every individual municipality, would 

substantially delay every municipality's compliance with its individual Mount 

Laurel obligation. Second, an analysis of that scale would require an in-depth 
A-0357-20 32

review of important social, economic, and constitutional matters, which may 

affect every municipality.

The Court has repeatedly recognized that a legislative or administrative 

remedy would better handle such considerations. In re Declaratory Judgment 

Actions, 227 N.J. at 531; Mount Laurel IV, 221 N.J. at 34 ("It is our hope that 

an administrative remedy will again become an option for those proactive 

municipalities that wish to use such means to obtain a determination of their 

housing obligations and the manner in which those obligations can be 

satisfied."). Third, Berman's proposed analysis would interfere with a 

municipality's voluntary compliance with their Mount Laurel obligations.

Bonus credits and reduction stratagems are "part of a comprehensive 

scheme to encourage municipalities and developers to build affordable . . . 

units in the future." In re N.J.A.C. 5:94 & 5:95, 390 N.J. at 82 (quoting Calton 

Homes, Inc. v. Council on Affordable Hous., 244 N.J. Super. 438, 457 (App. 

Div. 1990)). And, such stratagems "are an appropriate tool to create incentives 

for types of housing that may not otherwise be provided in the municipality." 

Id. at 83 (internal quotation marks omitted). As a result, a trial court may not 

interfere with a municipality's fair share plan based on the allocation of bonus 

credits and reduction stratagems, so long as it is, as a whole, fair and 

reasonable. E./W. Venture, 286 N.J. Super. at 328.
A-0357-20 33

III.

Finally, Bergman argues Lonergan had a conflict of interest because she, 

and her firm, actively represent municipalities as both special masters and as 

advisors. Bergman argues "Lonergan and her firm are caught in a revolving 

door: [first] advising large numbers of courts . . . as to the validity of 

municipal affordable housing proposals[;] and then . . . representing dozens of 

municipalities . . . using the very same methodologies and advocating that 

[such methodologies] . . . satisfy [Mount] Laurel doctrine." In response, the 

Township claims Lonergan had neither "a financial interest in the matter" nor 

was "directly linked" to any party who had such an interest.

A special master's role is purely advisory. Deland v. Twp. of Berkeley, 

361 N.J. Super. 1, 12 (App. Div. 2003). Special masters may be appointed by

a trial court to render opinions, propose findings, issue recommendations, and 

assist "the court in other similar ways as [the court] may direct." Id. at 8; see 

also Mount Laurel II, 92 N.J. at 281-85 (authorizing trial courts assigned to 

hear Mount Laurel cases to appoint special masters). A "special master is only 

authorized to make recommendations," however, "and may not be delegated 

decision-making authority." Deland, 361 N.J. Super. at 8 (citing Mount Laurel 

II, 92 N.J. at 284-85). Instead, "[i]t is the trial court that must ultimately 

determine, independently, whether or not the municipality has conformed to its 
A-0357-20 34

judgment and to the Mount Laurel doctrine." Id. at 12 (quoting Mount Laurel 

II, 92 N.J. at 284-85).

A special master is subject to "substantially the same conflict of interest 

rules as judges." Ibid. Under Rule 1:12-1(g), a special master has a conflict of 

interest if "there is any . . . reason which might preclude a fair and unbiased 

hearing and judgment, or which might reasonably lead counsel or the parties to 

believe so." Rule 1:12-1(g) does not require actual prejudice. DeNike v. 

Cupo, 196 N.J. 502, 517 (2008) (quoting State v. Marshall, 148 N.J. 89, 279 

(1997)).

Under Rule 1:12-1(g), a special master has a conflict of interest if a 

party could have an objectively reasonable belief that the proceedings were 

tainted by an appearance of impropriety or if an objective observer might 

reasonably wonder whether the special master favored a party either 

consciously or unconsciously. Ibid. A special master's conflict of interest, 

however, does not inherently require remand. See Deland, 361 N.J. Super. at 

13 (holding rulings that are primarily legal in nature can fairly be reviewed

regardless of the special master's conflict of interest); see also Mount Laurel II, 

92 N.J. at 288 n.42 (noting the court need not "accept the master's suggestions 

or recommendations. The master may well have substantial influence on the 

outcome but only because his [or her] expertise is persuasive . . .").
A-0357-20 35

In Deland, we determined the special master assigned to the respective 

Mount Laurel case had a conflict of interest due to his financial interests in the 

matter. 361 N.J. Super. at 12-13. The special master assigned in that case: 

(1) was actively employed as a "planner for the developer-plaintiffs in other 

Mount Laurel cases"; and (2) held financial interests in both the developerplaintiffs and "a developer who stands to benefit from the planner's 

recommendations as a special master." Ibid. Although we held the special 

master's professional and financial entanglements with the developer-plaintiffs 

constituted a conflict, we did not conclude the special master's alternative 

employment as a planner, sans financial relationship to the developerplaintiffs, to have been a conflict.

"[W]e recognize[d] that most Mount Laurel special masters are planners 

who serve in this role on a part-time basis and also provide advice to 

developers and municipalities involved in other Mount Laurel litigation." Id.

at 12. Moreover, although the current system of appointment of special 

masters for Mount Laurel cases "creates the inherent potential for conflict," 

our holding was limited to conflict of interests caused by a special master's 

financial interests. See id. at 12-13 (holding once the special master became 

aware of his financial interests in the matter, the special master "should have 

refrained from providing any recommendation to the court").
A-0357-20 36

Bergman does not claim Lonergan had a direct financial interest in either 

the Township or the benefits emanating from the amended settlement 

agreement. Rather, Bergman "presents the question of whether a special 

master is conflicted where [Lonergan] and her firm are simultaneously

representing dozens of municipalities in crafting affordable housing plans 

containing the same methodologies on which she is advising the trial court as a 

'neutral' advisor."

In Deland, we recognized that an assignment as a Mount Laurel special 

master is generally part-time employment. Id. at 12. And, most Mount Laurel

special masters also serve as planners, providing "advice to developers and 

municipalities involved in other Mount Laurel litigation[s]." Ibid. Thus, a 

special master may "simultaneously represent[] dozens of municipalities in 

crafting affordable housing plans containing the same methodologies on which 

[he or] she is advising the trial court," unless the special master has a financial 

interest in the case, either via his or her employment as a planner or interests 

in the benefits of the case, see id. at 12-13. Based upon our careful review of 

the record, Lonergan did not have a financial conflict of interest in this matter 

and Bergman's argument is devoid of merit.

The COAH rules, which Mount Laurel IV requires trial courts use, 

support the order under review. See 221 N.J. at 29-34. We conclude the 
A-0357-20 37

record contains sufficient credible evidence to support the trial court's finding 

the amended agreement sets forth a plan that provides a realistic opportunity 

for the Township to meet its Third Round obligation under Mount Laurel. The 

court correctly found that the Township established a prima facie case of 

compliance, and the burden then shifted to Bergman to establish it failed to do 

so. The court's finding Bergman failed to sustain that burden is supported by 

sufficient credible evidence.

Affirmed.