Preview
MID L 004432-17 12/17/2014 Pg 1 of 122 Trans ID: LCV2019169759
DonaldJ. Sears, Esq.
Township of South Brunswick
P.O. Box 190
Monmouth Junction, NJ 08852
Phone No.: (732) 329-4000
Attorney for Defendant, Township of South Brunswick
SOUTH BRUNSWICK CENTER, LLC, SUPERIOR COURT OF
NEW JERSEY
LAW DIVISION
10”
MIDDLESEX COUNTY
Plaintiff
Docket No.: 906%
y,
Civil Action (Uc
TOWNSHIP OF SOUTH BRUNSWICK
AND PLANNING BOARD OF TOWNSHIP L-4432-17
4 i
OF SOUTH BRUNSWICK,
NOTICE OF MOTION i-9-l\_
Defendants
PLEASE TAKE NOTICE that on January 9, 2015, at 9:00 am, or such other
time as the Court may fix, the undersigned attorney for Defendant, Township of South
Brunswick, shall move before the Hon. Douglas K. Wolfson, J.S.C., or such judge as may
be assigned, in the Superior Court of New Jersey, Law Division, Middlesex County, at
the Middlesex County Courthouse, 56 Paterson Street, New Brunswick, NJ 08903, in the
above entitled matter, for an Order for the recusal of Hon. Douglas K. Wolfson, J.S.C.
Reliance shall be placed upon the accompanying Brief and Certification submitted
in support of said motion. DATE bal.
BCH# O64
Oral argument is hereby requested. CAMO# S198
FEE ¢$ 50,%
Discovery End Date None OVP $
Pre-Trial Conference Date None COPY/SANC §$
Trial Date: ee
None
‘Al ee $ 50,0
TO IP OF SQUTH BRI WICK
ey
]
By MG
Donald J. S
Date: December ff, 2014
MID L 004432-17 12/17/2014 Pg 2 of 122 Trans ID: LCV2019169759
documents submitted by the Plaintiff the day before. The Township Council
granted the Plaintiffs request and deferred a decision on the rezoning application.
At the Case Management Conference held in this matter on August 22, 2014, the
parties appeared before Judge Wolfson, where conversations about the substantive
aspect of the case took place in chambers. Judge Wolfson had a clear recollection
of his representation of Rieder, the application to the Planning Board and the
approvals he obtained on behalf of the property owner.
Lhereby certify that the foregoing statements made by me are true. I am aware
that if any of the foregoing statements made by me are willfully false, I am
subject to punishment.
Dated: December J¥2014 By
it
Donald J. Seal
MID L 004432-17 12/17/2014 Pg 3 of 122 Trans ID: LCV2019169759
,
Donald J. Sears, Esq.
Township of South Brunswick
P.O. Box 190
Monmouth Junction, NJ 08852
Phone No.: (732) 329-4000
Attorney for Defendant, Township of South Brunswick
SOUTH BRUNSWICK CENTER, LLC, SUPERIOR COURT OF
NEW JERSEY
LAW DIVISION
MIDDLESEX COUNTY
Plaintiff
Docket No.: L-3669-14
¥,
TOWNSHIP OF SOUTH BRUNSWICK
AND PLANNING BOARD OF TOWNSHIP Civil Action
OF SOUTH BRUNSWICK,
Defendants
BRIEF AND APPENDIX ON BEHALF OF DEFENDANT TOWNSHIP OF
SOUTH BRUNSWICK IN SUPPORT OF MOTION FOR RECUSAL OF
HON. DOUGLAS K. WOLFSON, J.S.C.
Donald J. Sears, Esq.
Of Counsel and On the Brief
MID L 004432-17 12/17/2014 Pg 4 of 122 Trans ID: LCV2019169759
'
PRELIMINARY STATEMENT
With all due respect to the Court, it is respectfully requested that the Hon.
Douglas K. Wolfson, J.S.C., recuse himself from handling this matter since the court has
a conflict of interest in hearing the within suit. Prior to his appointment to the Superior
Court bench, Judge Wolfson represented the developer of the property at issue in this
case. In that capacity, Judge Wolfson and his firm applied for and secured certain land
use approvals which have inured to the benefit of the Plaintiff. Said approvals are in issue
le
in the present case and thus Judge Wolfson should not handle this matter. In the
alternative, if Judge Wolfson does not recuse himself from the matter, the Court should
issue an order disqualifying him from handling this case.
MID L 004432-17 12/17/2014 Pg 5 of 122 Trans ID: LCV2019169759
STATEMENT OF PROCEDURAL HISTORY
On June 15, 1994, the South Brunswick Planning Board (“Planning Board”)
granted preliminary subdivision approval to Jersey Center/Fidoreo (“Fidoreo”) to develop
413+ acres in the Office Research (OR) zone, contemplating 6.43 million square feet of
office/commercial development in what was then known as Block 86, Lots 89.013 and
89.023 (SBa 1-15)!. The Planning Board also granted a twenty-year period of protection
against changes to the OR zoning, contingent upon the construction of certain roadway
and infrastructure improvements within ten years. If the contingency was not met, the
period of protection would automatically convert to ten years.
On May 2, 1995, a Developer’s Agreement was executed by the Township, the
Planning Board and Fidoreo, outlining the requirements of the approvals and the
construction of the improvements required therein (Complaint, Exhibit A).
In 1998, the Plaintiff, South Brunswick Center, LLC, (“Plaintiff’) acquired the
property and all of the approvals necessary to develop the land as office research.
In September 2003, the Plaintiff began to build the roadway and infrastructure
improvements that were required to be completed by June 2004.
On April 28, 2004, the Plaintiff requested a two year extension to complete the
roadway and infrastructure improvements, from June 2004 to June 2006, in order to
preserve its OR zoning and protect against changes to the zoning. This request was
granted by the Township and the Planning Board (Complaint, Exhibit B).
In May 2006, the Plaintiff requested an additional extension of the period of
protection against zone changes to December 2006 in order to complete these
' SBa ~ Refers to the appendix of the Township of South Brunswick.
2
MID L 004432-17 12/17/2014 Pg 6 of 122 Trans ID: LCV2019169759
improvements. This request was denied by the Township. Since the request was denied
by the Township, the Planning Board refused to schedule a hearing.”
The roadway and infrastructure improvements were completed in February 2007.
The Plaintiff filed a complaint, seeking to preserve its OR zoning and confirm the period
of protection to June 2014. After trial on the merits, the trial court dismissed the
Plaintiff's complaint, finding that the terms of the Developer's Agreement formed a
binding contract between the parties. The Plaintiff appealed.
While the Plaintiff's appeal was pending, on March 31, 2008, the New Jersey
Supreme Court issued a decision in Toll Bros.. Inc., v. Bd. Of Chosen Freeholders of
Burlington County, 194 N.J. 223 (2008), finding that a Developer's Agreement is not
onsidered a “binding contract,” and does not preclude reapplication to a land use board
for changes to the conditions of approval based on changed circumstances. Id. at 230.
On December 28, 2009, the Appellate Division applied the reasoning in Toll
Bros., reversed the trial court and remanded to the Planning Board to allow the Plaintiff
the opportunity to present evidence why an extension of time to complete the
improvements should not be granted.
On December 8, 2010, a hearing was held before the Planning Board on the
Plaintiffs request to extend the period of protection against changes to the OR zoning.
The request was granted, and the protections against changes to the OR zoning were
preserved to June 2014 (Complaint, Exhibit D).
By letter dated January 27, 2011, the Plaintiff had apparently retained new
counsel, Completely contrary to all of its efforts to preserve the OR zoning of its
? Much of the procedural history is taken from the Appellate Division opinion in South Brunswick Center.
LLC v. Township of South Brunswick and the Planning Board of the Township of South Brunswick,
unpublished opinion dated December 28, 2009. See Complaint, Exhibit C).
3
MID L 004432-17 12/17/2014 Pg 7 of 122 Trans ID: LCV2019169759
property, Plaintiff now requested that the Township consider rezoning the property from
OR to some other, undefined zone which would allow for a mix of residential and
commercial uses, the overwhelming majority of which was proposed to be residential
(Complaint, Exhibit E).
Between 2011 — 2013, numerous meetings were held between the parties and/or
their professionals and concept plans for development were discussed, Interestingly,
contrary to its arguments in support of the Motion to Amend the Complaint to allege a
“Builder’s Remedy” lawsuit, throughout the discussions the Plaintiff made clear that it
did not want any affordable housing obligation applied to its development. If an
affordable housing obligation was unavoidable, the Plaintiff indicated that it would pay a
development fee to the Township in lieu of any actual construction of affordable housing
units (Sears Certif., para. 2-3). The terms and proposals for development offered by the
Plaintiff were not acceptable to the Township, so ultimately no agreement was reached
(Sears Certif., para. 2).
On October 2, 2013, the Plaintiff filed a rezoning application with the Township
wherein it sought a rezoning of its property from OR to some undesignated zone that
would permit a mixed use development of commercial and planned residential
development, with a proposal to build 1,000 homes plus 150,000 square feet of
commercial development (Complaint, Exhibit G). Pursuant to SB Code Section 62-2903,
the application was referred to the Planning Board for its review and recommendation.
On March 26, 2014, the Planning Board held a hearing on the application. The
Plaintiff and its professionals were in attendance, submitting testimony and evidence to
the Board for its consideration. The Planning Board’s Planning Consultant, Bignell
MID L 004432-17 12/17/2014 Pg 8 of 122 Trans ID: LCV2019169759
Associates, also appeared. At the conclusion of the hearing, the Planning Board
recommended denying the rezoning request, based on the following:
The application would require substantial revisions to the Master Plan.
The application was inconsistent with the Master Plan.
The application did not satisfy the South Brunswick ordinance requirements
for rezoning, including:
There is no clear benefit to the township.
It would place a burden on orderly growth.
There is undue exaction on township facilities.
The fiscal impact is uncertain.
It would impact the schools.
The rezoning to residential is no more beneficial to the township than the
present zoning.
It would be better to wait for full Master Plan review in 2017 to determine the
township-wide impact.
In a memo dated April 29, 2014, the Township Planner, Bryan Bidlack, on behalf
of the Planning Board, sent the Planning Board’s recommendation to the Township
Council for consideration (Complaint, Exhibit H). The matter was agendized for a
decision by the Township Council at its regular meeting of May 13, 2014.
Aware of the Planning Board’s recommendation, on May 12, 2014, Plaintiff's
attorney sent a letter to the Township Council, challenging the Planning Board
recommendation, transmitting voluminous documents for the Township Council’s
review.
On May 13, 2014, at the Township Council meeting, the Plaintiff requested that
the Township Council delay its decision on the rezoning application in order to allow
sufficient time for the Council members to review the voluminous documents submitted
by the Plaintiff the day before. The Township Council granted the Plaintiff's request and
deferred a decision on the rezoning application (Sears Certif., para. 4).
MID L 004432-17 12/17/2014 Pg 9 of 122 Trans ID: LCV2019169759
Plaintiff's attorney also submitted a draft “Extension Agreement,” requesting that
the Township Council agree to extend the Developer’s Agreement, and presumably the
period of protections against rezoning the property, until one year after the Township
Council’s decision on the Plaintiffs rezoning application (See Complaint, Exhibit 1).
Both were stil! under consideration by the Township Council when the Plaintiff's
complaint in the instant matter was filed on or about June 13, 2014.
In its complaint, the Plaintiff indicated that it was seeking an injunction: (1)
reforming the Developer’s Agreement “in the manner equitably sanctioned by the
Appellate Division”; (2) compelling an interim extension of the Developer’s Agreement
(one year in exchange for dedication of improvements); and (3) directing the Township
Council to decide the rezoning application.
On August 22, 2014, a conference was held before the Hon. Douglas K. Wolfson,
J.S.C. After discussion, Plaintiffs counsel indicated that he would seek leave to file an
amended complaint alleging a Mt. Laurel “Builder’s Remedy” lawsuit.
On August 26, 2014, the Township Council denied the Plaintiffs application for
rezoning (Draft Amended Complaint, Exhibit N).
MID L 004432-17 12/17/2014 Pg 10 of 122 Trans ID: LCV2019169759
STATEMENT OF FACTS
Prior to his appointment to the Superior Court bench, the Honorable Douglas K.
Wolfson, J.S.C., was one of the premier land use attorneys in the State of New Jersey. As
a partner in the firm of Greenbaum, Rowe, Smith, Ravin, Davis & Bergstein
(“Greenbaum firm”), Judge Wolfson represented numerous owners and developers in
their applications for land use approvals before municipal land use boards. In that
capacity, Judge Wolfson and the Greenbaum firm represented Rieder Land Technology,
Inc. (“Rieder”), the Plaintiffs predecessor in interest. As attorney for Rieder, Judge
Wolfson and the Greenbaum firm pursued land use approvals from the Planning Board
for a Planned Office/Research/Conference (OR) District development for property
located at Block 86, Lots 21.03, 21.04, 21.05, 21.06, 21.07, 21.09, 22.01 and 22.03,
known at that time as Jersey Center Metroplex. These are the same properties at issue in
the instant matter, all of which are now owned by the Plaintiff,
On March 16, 1989, Rieder, under the name “Jersey Center Metroplex
Associates,” filed an application for development of Block 86, Lots 21.03, 21.04, 21.05,
21.06, 21.07, 21.09, 21.10, 21.11, 22.01, 22.03, 22.04, 89.013 and 89.023; p.o 26.03, p.o
26.04, Northumberland Way and Cornwall Road. The Greenbaum firm represented the
applicant. The application sought Preliminary Major Subdivision approval for a Planned
Office Development and Preliminary Site Plan Approval with Bulk Variances (“Rieder
application”) (SBa 16-19).
Specifically, the Rieder application sought to develop Mixed Commercial and
Residential uses totaling 7.6 million square feet (“sf”) of space, including:
° 6.49 million sf office use
MID L 004432-17 12/17/2014 Pg 11 of 122 Trans ID: LCV2019169759
700 residential units
179,100 sf retail use
350-room hotel with 20,000 sf restaurant use (See SBa 18)
During the application/review process, Judge Wolfson corresponded with the
South Brunswick Planning Director, Robert Hall. One example of that correspondence is
a letter dated August 29, 1989, wherein he advocates for inclusion of all of the above
listed properties for development approval. The letter involved not only development of
the lots in question but also creation of rights-of-way and road construction, specifically
of referencing Northumberland Way and Cornwall Road (SB 20-22).
On September 25, 1990, the Planning Board adopted resolutions:
Denying a motion to limit the height of buildings to four (4) stories; and
Granting bulk variances for the height of buildings, up to nine (9) stories tall, for a
maximum of 7.8 million sf (SBa 23-35)
One of the significant issues to be resolved in the application was whether the
property was subject to the then recently enacted Freshwater Wetlands Act (“FWA”).
The Department of Environmental Protection (“DEP”) initially determined that all or a
portion of the property was exempt from the FWA. This determination was contested by
the Township. Separate but related litigation was also filed, captioned Alexander Molnar
v. South Brunswick Township Planning Board and Jersey Center Metroplex Associates,
Inc., Docket No. L-13335-90. In this litigation Judge Wolfson represented Jersey Center
Metroplex, as shown in a Case Management Order issued by the Hon. C. Judson Hamlin,
J.S.C., dated January 18, 1991 (SBa 36-37).
Also on January 18, 1991, Rieder requested a bifurcation of its application,
seeking approval of a requested General Development Plan for the property (“GDP
MID L 004432-17 12/17/2014 Pg 12 of 122 Trans ID: LCV2019169759
application”) and deferral of the subdivision portion of the application. Judge Wolfson, as
attorney for Rieder, was copied on the request (SBa 38-39).
While the wetlands litigation was pending, on June 4, 1991, in accordance with
advice from the New Jersey Attorney General’s office, the DEP reversed its position and
no longer believed that the property was exempt from wetlands regulations (SBa 40-44).
On July 29, 1991, Reider assigned all of its development rights to First Fidelity
Bank/Jersey Center Fidoreo (“Fidoreo”) (SBa 45-70). Subsequent to the assignment of
development rights, Rieder — still the owner of the property -- filed a revised application
with the Planning Board on September I1, 1991, in conformance with a decision
rendered by Judge Hamlin, renewing its request for GDP approval (SBa 71-79). Judge
Wolfson was once again copied on the letter of transmittal as attorney for Rieder.
On March 30, 1992, while the wetlands litigation was pending in the Appellate
Division, a settlement agreement was reached regarding applicability of the FWA to the
property. The settlement determined that:
. The road systems (including Northumberland Way and Cornwall Road) are
exempt from wetlands permitting and transition area requirements; and
Block 86, Lots 21.03 — 21.11, 22.03 and 22.04 are also exempt (SBa 80-86).
On April 22, 1992, the Planning Board attorney advised the Greenbaum firm that
the height variance granted by the Board on September 25, 1990, had expired (SBa 87-
91).
On May 12, 1992, Reider conveyed title of the property to Fidoreo via a deed in
lieu of foreclosure (See SBa 92). Fidoreo pursued the development of the property,
ultimately securing preliminary subdivision approval on June 15, 1994 which also
included a 20-year GDP approval (SBa 1-15).
MID L 004432-17 12/17/2014 Pg 13 of 122 Trans ID: LCV2019169759
LEGAL ARGUMENT
IT IS RESPECTFULLY REQUESTED THAT THE HONORABLE DOUGLAS K.
WOLFSON RECUSE HIMSELF FROM THIS CASE
Rule 1:12-1 governs the disqualification of a judge from considering a matter
pending before him or her. Disqualification is appropriate in a variety of settings as set
forth in the rule, but generally “when 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.” R. 1:12-1(g). Any party may file a motion to seek a judge’s
disqualification. R. 1:12-2. It is well established that “[o]ne of the primary functions of
the rules governing judicial disqualification ‘is to maintain public confidence in the
integrity of the judicial process, which in turn depends ona belief in the impartiality of
judicial decision making.’" United States v. Nobel, 696 F.2d 231, 235 (3d Cir.1982), cert.
denied, 462 U.S. 1118 (1983).
In Rivers v. Cox-Rivers, 346 N.J. Super. 418 (App. Div. 2002), the court stated,
in regard to N.J.S.A, 2A:15-49, the need to establish a “bright-line rule” in determining
matters of judicial recusal:
Except when required by the rule of necessity, where a judge has previously
represented one of the parties in a matter before him against the other, any judicial
action taken is a nullity, whether the conflict comes to light during the
proceedings before an order enters or reasonably soon following the conclusion of
the matter after an order has been entered. See N.J.S.A. 2A:15-49b; R. 1:12-1(c),
(.
We hold further, ..... that the conflict is non-waivable by the parties, either
expressly or implicitly. If a judge is precluded from presiding over a matter in
which a former client is involved, especially where the current adversary is the
party against whom the prior representation occurred, any action taken by the
judge as a result of the proceeding cannot be recognized as valid.” Id. at 422.
Although Judge Wolfson does not appear to have ever represented the Plaintiff
itself, he certainly was extensively involved in the development application and approvals
10
MID L 004432-17 12/17/2014 Pg 14 of 122 Trans ID: LCV2019169759
granted for the property at issue in this case, all of which are now owned by the Plaintiff.
This is sufficient to require recusal from presiding over the disputes in this matter.
Indeed, the court in Cox makes clear that “when a judge has appeared as counsel in an
earlier stage of the same adversarial proceeding, there is no question that the judge has
advocated the client’s cause, and recusal is automatic because of the danger of an
appearance of partiality.” Id. (quoting Sharp v. Howard County, 607 A.2d 545, 551 (Md.
1992)), As the court in State v. McCann, 391 N.J. Super 542, 552 (App. Div. 2007)
observed, even if a judge’s involvement does not fall squarely within the parameters of
any Rules or Canons, "the fairness and integrity of the judgment is as important as the
correctness of the judgment.” Id. at 552. Even the “appearance of impropriety” warrants
disqualification. DeNike v. Cupo, 196 N.J. 502 (2008); see also Chandok v. Chandok,
406 N.J. Super. 595, 606 (App. Div.), certif. den. 200 N.J. 207 (2009).
As attorney for Rieder, Judge Wolfson and the Greenbaum firm pursued land use
approvals from the Planning Board for a Planned Office/Research/Conference (OR)
District development for property located at Block 86, Lots 21.03, 21.04, 21.05, 21.06,
21.07, 21.09, 22.01 and 22.03, known at that time as Jersey Center Metroplex (SBa 16-
19). These are the same properties at issue in the instant matter, all of which are now
owned by the Plaintiff (Complaint, para. 4; Draft Amended Complaint, para. 1).
In his representation of Rieder, Judge Wolfson was a zealous advocate for
development of this property on behalf of his client. One of many examples of his
advocacy for development of the tract is evidenced by Judge Wolfson’s letter to the
South Brunswick Planning Director, Robert Hall, dated August 29, 1989, wherein he
advocates for inclusion of all of these properties for OR development approval (SBa 20-
11
MID L 004432-17 12/17/2014 Pg 15 of 122 Trans ID: LCV2019169759
22). His advocacy touched upon not only development of the lots in question but also
creation of rights-of-way and road construction, specifically referencing Northumberland
Way and Cornwall Road. The Plaintiff has placed the construction, ownership and
maintenance of both of these roads in issue in this case. Clearly, Judge Wolfson was
intimately involved in prosecuting the land use approvals for the property that the
Plaintiff now owns and seeks to develop.
On behalf of Rieder, Judge Wolfson and the Greenbaum firm pursued an
application for approval of:
6.49 million sf office use
700 residential units
179,100 sf retail use
350-room hotel with 20,000 sf restaurant use (SBa 18)
The Plaintiff is the direct beneficiary of the preliminary subdivision approval and GDP
developer’s agreement that was eventually granted, preserving its right to construct
approximately 6.4 million sf of office space. Moreover, the application filed on behalf of
Rieder is strikingly similar to the Plaintiff's development proposal, which includes:
. 1,000 residential units
. 150,000 sf retail use (Complaint Exhibit G; Draft Amended Complaint, Exhibit 1)
The Plaintiff's development proposal is sufficiently similar to Rieder’s development
proposal to raise the concern that Judge Wolfson could have a predisposition to favor the
Plaintiff's proposal, to the disadvantage of the Township.
When the issue of the applicability of the FWA resulted in litigation, Judge
Wolfson represented the developer of the property. This placed him into a direct
adversarial position with the Planning Board and the Township over the development of
12
MID L 004432-17 12/17/2014 Pg 16 of 122 Trans ID: LCV2019169759
the property the Plaintiff now owns and seeks to develop. Ultimately the litigation was
resolved via a settlement agreement, from which the Plaintiff now directly benefits.
In addition, Judge Wolfson’s client utilized the services of The Chester
Partnership, an engineering firm that drafted the surveys and subdivision plans used in
the Rieder application for approval (See SBa 19). These same plans have been referenced
and relied upon by the Plaintiff in its current efforts to develop the property (See Exhibit
G to Complaint; Exhibit I to Draft Amended Complaint). Most assuredly, the Plaintiff's
development interests are squarely aligned with Rieder’s interests, so much so that the
Plaintiff relies on much of the same plans that were prepared to support Judge Wolfson’s
client’s application.
Throughout Rieder’s application process, Judge Wolfson was regularly copied on
correspondence from Rieder to the Township, evidencing his continuing, intimate
involvement in the matter (See SBa 93-105).
At the Case Management Conference held in this matter on August 22, 2014, the
parties appeared before Judge Wolfson, where conversations about the substantive aspect
of the case took place in chambers. Judge Wolfson had a clear recollection of his
representation of Rieder, the application to the Planning Board and the approvals he
obtained on behalf of the property owner (Sears Certification, para. 5). Although the
Township — and its counsel personally — hold Judge Wolfson in the highest regard for his
intellect, integrity and reputation as a skilled and accomplished jurist, the conflict present
in the handling of this matter requires his recusal from this case.
As a result of his involvement with the development of the property at issue in
this case, and the ongoing dispute between the parties over the rights, duties and
13
MID L 004432-17 12/17/2014 Pg 17 of 122 Trans ID: LCV2019169759
responsibilities of the parties that flow from the approvals previously granted, Judge
Wolfson should recuse himselfin accordance with R, 1:12-1 and N.LS.A. 2A:15-49. In
the alternative, the Court should grant the Defendant’s motion for disqualification
pursuant to R. 1:12-2,
14
MID L 004432-17 12/17/2014 Pg 18 of 122 Trans ID: LCV2019169759
CONCLUSION
For the forgoing reasons, it is respectfully requested that the Defendant’s motion
be granted and that the Honorable Douglas K. Wolfson, J.S.C., recuse himself from
handling this matter, or, in the alternative, that the Court issue an order disqualifying
Judge Wolfson from handling this case.
Respectfully Submitted,
TOWNSHIP OF SOUTH BRUNSWICK
Date: December 9.2014 By
hl
onaldJ. Segfs, Esq.
ut
15
MID L 004432-17 12/17/2014 Pg 19 of 122 Trans ID: LCV2019169759
S é Cc
se Plnmrmabi
RESOLUTION
(corrected per August: 21 1994
letter of Tr. Cafferty, Esq.)
Re: SD 1173/SD 1175A
Jersey Center/Fidoreo, Inc.
ii alkia uth Brunswick Center
;
U.S. Route 1 (north, @ Northumberland Wa’
Block 86, Lots 22.0 » 22.04, 89.013, 89.02
ki Minor Subdivision and Preliminary Major Subdivision Approvals
with Waiver and Design Exceptions.
[ Dates of Hearing: Janua 16, 1994, March 9,
Th
19, 1994, Februar
bs
ieee March 30, 1994, April 27, 1994, May , I 994 and June 15,
il
i
b
WHEREAS, Applicant, Jersey Center/Fidoreo, Inc., requests
“ minor subdivision approval with waivers and design exceptions
i to adjust boundaries between two exis ing lots, and
tt preliminary major subdivision approval with waivers and design
exceptions to create 15 new lots [14 OR lots, 1 R-2 lot and 2
H
lot to be consolidated with exi ting Lot 27.01 in Block 86);
and
ii
WHEREAS, the minor subdivision consists of a 33.8 acre
parcel located entirely within an OR Zone; and the mejor
subdivision consists of a 413.349 exe parcel, portions of
which are located in the OR & R-2 Zones; and
I WHEREAS, the Applicant, with respect to the minor
subdivision, proposes to adjust the boundary line between two
i existing lots [Lots 22.03 and 22 an Block 26); and
ih be’
fi
Ye
Ii WHEREAS, the application was submitted on August 26
2833, deemed incomplete on October 25, 1993, resubmitted if 4
on (ee
i Novenber j 1993 and deemed compl te on Novemnpe’ irwots23, ag 2; ang
ti
|
i WHEREAS, application fees of oo. 00 and escrow fees of
3,100.00 were paid o + escrow
September L, 2223 and the
account wes supplemented by $6,000.00 on May 16, ug9 94; and
WHEREAS, the plans and documents filed, reviewed and
S6a1
MID L 004432-17 12/17/2014 Pg 20 of 122 Trans ID: LCV2019169759
accepted into evidence in the nearing on the application are
as follows:
Plans:
“Minor Subdivision and Road Realignment Plan", prepared
by Henderson and Bodwell, dated August 23, 1993 and
revised through November 22, 1993;
"preliminary Plat", prepared by Henderson and Bodwell,
dated August 23, 1993 and revised through March 16,
1994;
"Improvement Plans”, (36 sheets), prepared by Henderson
and Bodwell, Gated August 22, 1983 and revised through
In March 16, 1994;
“Signing Striping & Street free Planting Plan", (2
sheets}, by Henderson and Bodwell, dated November 22,
1993, no revisions;
Documentary Evidence:
Exhibit A-i: "Road Alignment Plat, Lots 22.03 and
22.04";
Exhibit a-2: "Plan ent tled ‘South Brunswick Center'
Exhibit A
Exhibit A-3: "Map entitled ‘South Brunswick Center’
Exhibit ¢ i
h
Exh. t Ac4 "South Brunswick center Preliminary Plat";
Exhibit A: “South Brunswick Center, Exhibit 3B";
Exhibit A-é: “Exhibit of Total Lot Area and Open Space
Area";
Exhibit a-7: "New Residential Lot 101";
Exhibit A-e: "Storm Water Management Plan";
Exhibit 2-@(i): “Overlay of Exhibit 4-8";
Exhibit Axe "Map of Sewer/Water Design Flows";
hy Exhibit A-26: "Central Jersey Region and State
Comparative Performance Chart";
By Be "Central Jersey Population Pro} ion
Chart"
bit a “Labor Force Projection 1990-2008 by
ib egion and County";
a5 "Endust Employment Prod tion ag90-2005
ht by Region and County" and
bh
WEEREAS, the prop
ye es have been ce +tifified as
current by the Tax coll xi and
uv -Pase
ag
SBa Ah
MID L 004432-17 12/17/2014 Pg 21 of 122 Trans ID: LCV2019169759
WHEREAE, the Planning Board conducted a public hearing on
this application on January 19, 1994, February 16, 1994, March
oy 1994, Marsh 36, 1894, April 27, igss, May 4 1954 and June
15, 1og4; and
bs WEEREAS, at seid public hearings, che Board heard
u argument from Lois Van Deusen, Esguire, attorney for the
\; Applicant, and testimony from Applicant's experts: James R.
DeLand, Jr., a licensed Professional Engineer; Michael
Belknap, who testified as an expert on economic conditions as
they relate to real estate generally and the subject property
in particular; Dr. Donald M. scarry, PhD in Economics from
Rutgers University and Law Degree from Rutgers University; and
WHEREAS, Andre Gruber, Esquire, an attorney representing
an objector and an attorney
Lawrence Sachs, representing an
objector, appeared and mede arguments; and
I) WHEREAS, the Staff Report of Robert G Hall, Planning
Director for the Township, dated January 14, 1994, was
accepted into evidence by the Board; and
WEEREAS, the Board received representations from Staff as
to this application; and
Ii
"1 RWEEREAS, at the various public hearings, the public was
‘I somment, guestions
invited to pose and testify and various
4
members of the public and counsel representing objectors did
SO comment and pose guestions; and
I WHEREAS, on the basis of the aforesaid testimony and
documentary record, che Boars makes the follov ig findings of
fact and con! usion
1 XR urisé onal regnis chshhave
ments been met
Minor Subdi ston Des! mn ¥ ve Applicant seens the
following waivers an connection with the minor
subdivision part of the app tion:
“Pane 3.
SBa-3
MID L 004432-17 12/17/2014 Pg 22 of 122 Trans ID: LCV2019169759
(2) Section 17541.A.()(c) - eguires the depiction of
all streets, roads, reinage, rights-of-way,
i streams and existing ut. qity lines witni. 500
feet of the tract. AD) Jicant requests a waiver
reducing this requirement to 200 feet. The
Planning Staff has recommended the grant of this
waiver inasmuch as the items are not necessary
for review in this case and, accordingly, the
Board concurs in such recommendation and grants
the requested waiver.
(b) Section I75-41.A.0() ~ requires a key map at a
i scale of ie 1,000 feet.
this be altered to 1" 2,000
Applicant
feet.
requests
For reasons
specified in Subsection (a), the Planning Staff
has recommended such waiver and the Planning
Beard concurs i
Preview
MID L 004432-17 12/17/2014 Pg 1 of 122 Trans ID: LCV2019169759 DonaldJ. Sears, Esq. Township of South Brunswick P.O. Box 190 Monmouth Junction, NJ 08852 Phone No.: (732) 329-4000 Attorney for Defendant, Township of South Brunswick SOUTH BRUNSWICK CENTER, LLC, SUPERIOR COURT OF NEW JERSEY LAW DIVISION 10” MIDDLESEX COUNTY Plaintiff Docket No.: 906% y, Civil Action (Uc TOWNSHIP OF SOUTH BRUNSWICK AND PLANNING BOARD OF TOWNSHIP L-4432-17 4 i OF SOUTH BRUNSWICK, NOTICE OF MOTION i-9-l\_ Defendants PLEASE TAKE NOTICE that on January 9, 2015, at 9:00 am, or such other time as the Court may fix, the undersigned attorney for Defendant, Township of South Brunswick, shall move before the Hon. Douglas K. Wolfson, J.S.C., or such judge as may be assigned, in the Superior Court of New Jersey, Law Division, Middlesex County, at the Middlesex County Courthouse, 56 Paterson Street, New Brunswick, NJ 08903, in the above entitled matter, for an Order for the recusal of Hon. Douglas K. Wolfson, J.S.C. Reliance shall be placed upon the accompanying Brief and Certification submitted in support of said motion. DATE bal. BCH# O64 Oral argument is hereby requested. CAMO# S198 FEE ¢$ 50,% Discovery End Date None OVP $ Pre-Trial Conference Date None COPY/SANC §$ Trial Date: ee None ‘Al ee $ 50,0 TO IP OF SQUTH BRI WICK ey ] By MG Donald J. S Date: December ff, 2014 MID L 004432-17 12/17/2014 Pg 2 of 122 Trans ID: LCV2019169759 documents submitted by the Plaintiff the day before. The Township Council granted the Plaintiffs request and deferred a decision on the rezoning application. At the Case Management Conference held in this matter on August 22, 2014, the parties appeared before Judge Wolfson, where conversations about the substantive aspect of the case took place in chambers. Judge Wolfson had a clear recollection of his representation of Rieder, the application to the Planning Board and the approvals he obtained on behalf of the property owner. Lhereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: December J¥2014 By it Donald J. Seal MID L 004432-17 12/17/2014 Pg 3 of 122 Trans ID: LCV2019169759 , Donald J. Sears, Esq. Township of South Brunswick P.O. Box 190 Monmouth Junction, NJ 08852 Phone No.: (732) 329-4000 Attorney for Defendant, Township of South Brunswick SOUTH BRUNSWICK CENTER, LLC, SUPERIOR COURT OF NEW JERSEY LAW DIVISION MIDDLESEX COUNTY Plaintiff Docket No.: L-3669-14 ¥, TOWNSHIP OF SOUTH BRUNSWICK AND PLANNING BOARD OF TOWNSHIP Civil Action OF SOUTH BRUNSWICK, Defendants BRIEF AND APPENDIX ON BEHALF OF DEFENDANT TOWNSHIP OF SOUTH BRUNSWICK IN SUPPORT OF MOTION FOR RECUSAL OF HON. DOUGLAS K. WOLFSON, J.S.C. Donald J. Sears, Esq. Of Counsel and On the Brief MID L 004432-17 12/17/2014 Pg 4 of 122 Trans ID: LCV2019169759 ' PRELIMINARY STATEMENT With all due respect to the Court, it is respectfully requested that the Hon. Douglas K. Wolfson, J.S.C., recuse himself from handling this matter since the court has a conflict of interest in hearing the within suit. Prior to his appointment to the Superior Court bench, Judge Wolfson represented the developer of the property at issue in this case. In that capacity, Judge Wolfson and his firm applied for and secured certain land use approvals which have inured to the benefit of the Plaintiff. Said approvals are in issue le in the present case and thus Judge Wolfson should not handle this matter. In the alternative, if Judge Wolfson does not recuse himself from the matter, the Court should issue an order disqualifying him from handling this case. MID L 004432-17 12/17/2014 Pg 5 of 122 Trans ID: LCV2019169759 STATEMENT OF PROCEDURAL HISTORY On June 15, 1994, the South Brunswick Planning Board (“Planning Board”) granted preliminary subdivision approval to Jersey Center/Fidoreo (“Fidoreo”) to develop 413+ acres in the Office Research (OR) zone, contemplating 6.43 million square feet of office/commercial development in what was then known as Block 86, Lots 89.013 and 89.023 (SBa 1-15)!. The Planning Board also granted a twenty-year period of protection against changes to the OR zoning, contingent upon the construction of certain roadway and infrastructure improvements within ten years. If the contingency was not met, the period of protection would automatically convert to ten years. On May 2, 1995, a Developer’s Agreement was executed by the Township, the Planning Board and Fidoreo, outlining the requirements of the approvals and the construction of the improvements required therein (Complaint, Exhibit A). In 1998, the Plaintiff, South Brunswick Center, LLC, (“Plaintiff’) acquired the property and all of the approvals necessary to develop the land as office research. In September 2003, the Plaintiff began to build the roadway and infrastructure improvements that were required to be completed by June 2004. On April 28, 2004, the Plaintiff requested a two year extension to complete the roadway and infrastructure improvements, from June 2004 to June 2006, in order to preserve its OR zoning and protect against changes to the zoning. This request was granted by the Township and the Planning Board (Complaint, Exhibit B). In May 2006, the Plaintiff requested an additional extension of the period of protection against zone changes to December 2006 in order to complete these ' SBa ~ Refers to the appendix of the Township of South Brunswick. 2 MID L 004432-17 12/17/2014 Pg 6 of 122 Trans ID: LCV2019169759 improvements. This request was denied by the Township. Since the request was denied by the Township, the Planning Board refused to schedule a hearing.” The roadway and infrastructure improvements were completed in February 2007. The Plaintiff filed a complaint, seeking to preserve its OR zoning and confirm the period of protection to June 2014. After trial on the merits, the trial court dismissed the Plaintiff's complaint, finding that the terms of the Developer's Agreement formed a binding contract between the parties. The Plaintiff appealed. While the Plaintiff's appeal was pending, on March 31, 2008, the New Jersey Supreme Court issued a decision in Toll Bros.. Inc., v. Bd. Of Chosen Freeholders of Burlington County, 194 N.J. 223 (2008), finding that a Developer's Agreement is not onsidered a “binding contract,” and does not preclude reapplication to a land use board for changes to the conditions of approval based on changed circumstances. Id. at 230. On December 28, 2009, the Appellate Division applied the reasoning in Toll Bros., reversed the trial court and remanded to the Planning Board to allow the Plaintiff the opportunity to present evidence why an extension of time to complete the improvements should not be granted. On December 8, 2010, a hearing was held before the Planning Board on the Plaintiffs request to extend the period of protection against changes to the OR zoning. The request was granted, and the protections against changes to the OR zoning were preserved to June 2014 (Complaint, Exhibit D). By letter dated January 27, 2011, the Plaintiff had apparently retained new counsel, Completely contrary to all of its efforts to preserve the OR zoning of its ? Much of the procedural history is taken from the Appellate Division opinion in South Brunswick Center. LLC v. Township of South Brunswick and the Planning Board of the Township of South Brunswick, unpublished opinion dated December 28, 2009. See Complaint, Exhibit C). 3 MID L 004432-17 12/17/2014 Pg 7 of 122 Trans ID: LCV2019169759 property, Plaintiff now requested that the Township consider rezoning the property from OR to some other, undefined zone which would allow for a mix of residential and commercial uses, the overwhelming majority of which was proposed to be residential (Complaint, Exhibit E). Between 2011 — 2013, numerous meetings were held between the parties and/or their professionals and concept plans for development were discussed, Interestingly, contrary to its arguments in support of the Motion to Amend the Complaint to allege a “Builder’s Remedy” lawsuit, throughout the discussions the Plaintiff made clear that it did not want any affordable housing obligation applied to its development. If an affordable housing obligation was unavoidable, the Plaintiff indicated that it would pay a development fee to the Township in lieu of any actual construction of affordable housing units (Sears Certif., para. 2-3). The terms and proposals for development offered by the Plaintiff were not acceptable to the Township, so ultimately no agreement was reached (Sears Certif., para. 2). On October 2, 2013, the Plaintiff filed a rezoning application with the Township wherein it sought a rezoning of its property from OR to some undesignated zone that would permit a mixed use development of commercial and planned residential development, with a proposal to build 1,000 homes plus 150,000 square feet of commercial development (Complaint, Exhibit G). Pursuant to SB Code Section 62-2903, the application was referred to the Planning Board for its review and recommendation. On March 26, 2014, the Planning Board held a hearing on the application. The Plaintiff and its professionals were in attendance, submitting testimony and evidence to the Board for its consideration. The Planning Board’s Planning Consultant, Bignell MID L 004432-17 12/17/2014 Pg 8 of 122 Trans ID: LCV2019169759 Associates, also appeared. At the conclusion of the hearing, the Planning Board recommended denying the rezoning request, based on the following: The application would require substantial revisions to the Master Plan. The application was inconsistent with the Master Plan. The application did not satisfy the South Brunswick ordinance requirements for rezoning, including: There is no clear benefit to the township. It would place a burden on orderly growth. There is undue exaction on township facilities. The fiscal impact is uncertain. It would impact the schools. The rezoning to residential is no more beneficial to the township than the present zoning. It would be better to wait for full Master Plan review in 2017 to determine the township-wide impact. In a memo dated April 29, 2014, the Township Planner, Bryan Bidlack, on behalf of the Planning Board, sent the Planning Board’s recommendation to the Township Council for consideration (Complaint, Exhibit H). The matter was agendized for a decision by the Township Council at its regular meeting of May 13, 2014. Aware of the Planning Board’s recommendation, on May 12, 2014, Plaintiff's attorney sent a letter to the Township Council, challenging the Planning Board recommendation, transmitting voluminous documents for the Township Council’s review. On May 13, 2014, at the Township Council meeting, the Plaintiff requested that the Township Council delay its decision on the rezoning application in order to allow sufficient time for the Council members to review the voluminous documents submitted by the Plaintiff the day before. The Township Council granted the Plaintiff's request and deferred a decision on the rezoning application (Sears Certif., para. 4). MID L 004432-17 12/17/2014 Pg 9 of 122 Trans ID: LCV2019169759 Plaintiff's attorney also submitted a draft “Extension Agreement,” requesting that the Township Council agree to extend the Developer’s Agreement, and presumably the period of protections against rezoning the property, until one year after the Township Council’s decision on the Plaintiffs rezoning application (See Complaint, Exhibit 1). Both were stil! under consideration by the Township Council when the Plaintiff's complaint in the instant matter was filed on or about June 13, 2014. In its complaint, the Plaintiff indicated that it was seeking an injunction: (1) reforming the Developer’s Agreement “in the manner equitably sanctioned by the Appellate Division”; (2) compelling an interim extension of the Developer’s Agreement (one year in exchange for dedication of improvements); and (3) directing the Township Council to decide the rezoning application. On August 22, 2014, a conference was held before the Hon. Douglas K. Wolfson, J.S.C. After discussion, Plaintiffs counsel indicated that he would seek leave to file an amended complaint alleging a Mt. Laurel “Builder’s Remedy” lawsuit. On August 26, 2014, the Township Council denied the Plaintiffs application for rezoning (Draft Amended Complaint, Exhibit N). MID L 004432-17 12/17/2014 Pg 10 of 122 Trans ID: LCV2019169759 STATEMENT OF FACTS Prior to his appointment to the Superior Court bench, the Honorable Douglas K. Wolfson, J.S.C., was one of the premier land use attorneys in the State of New Jersey. As a partner in the firm of Greenbaum, Rowe, Smith, Ravin, Davis & Bergstein (“Greenbaum firm”), Judge Wolfson represented numerous owners and developers in their applications for land use approvals before municipal land use boards. In that capacity, Judge Wolfson and the Greenbaum firm represented Rieder Land Technology, Inc. (“Rieder”), the Plaintiffs predecessor in interest. As attorney for Rieder, Judge Wolfson and the Greenbaum firm pursued land use approvals from the Planning Board for a Planned Office/Research/Conference (OR) District development for property located at Block 86, Lots 21.03, 21.04, 21.05, 21.06, 21.07, 21.09, 22.01 and 22.03, known at that time as Jersey Center Metroplex. These are the same properties at issue in the instant matter, all of which are now owned by the Plaintiff, On March 16, 1989, Rieder, under the name “Jersey Center Metroplex Associates,” filed an application for development of Block 86, Lots 21.03, 21.04, 21.05, 21.06, 21.07, 21.09, 21.10, 21.11, 22.01, 22.03, 22.04, 89.013 and 89.023; p.o 26.03, p.o 26.04, Northumberland Way and Cornwall Road. The Greenbaum firm represented the applicant. The application sought Preliminary Major Subdivision approval for a Planned Office Development and Preliminary Site Plan Approval with Bulk Variances (“Rieder application”) (SBa 16-19). Specifically, the Rieder application sought to develop Mixed Commercial and Residential uses totaling 7.6 million square feet (“sf”) of space, including: ° 6.49 million sf office use MID L 004432-17 12/17/2014 Pg 11 of 122 Trans ID: LCV2019169759 700 residential units 179,100 sf retail use 350-room hotel with 20,000 sf restaurant use (See SBa 18) During the application/review process, Judge Wolfson corresponded with the South Brunswick Planning Director, Robert Hall. One example of that correspondence is a letter dated August 29, 1989, wherein he advocates for inclusion of all of the above listed properties for development approval. The letter involved not only development of the lots in question but also creation of rights-of-way and road construction, specifically of referencing Northumberland Way and Cornwall Road (SB 20-22). On September 25, 1990, the Planning Board adopted resolutions: Denying a motion to limit the height of buildings to four (4) stories; and Granting bulk variances for the height of buildings, up to nine (9) stories tall, for a maximum of 7.8 million sf (SBa 23-35) One of the significant issues to be resolved in the application was whether the property was subject to the then recently enacted Freshwater Wetlands Act (“FWA”). The Department of Environmental Protection (“DEP”) initially determined that all or a portion of the property was exempt from the FWA. This determination was contested by the Township. Separate but related litigation was also filed, captioned Alexander Molnar v. South Brunswick Township Planning Board and Jersey Center Metroplex Associates, Inc., Docket No. L-13335-90. In this litigation Judge Wolfson represented Jersey Center Metroplex, as shown in a Case Management Order issued by the Hon. C. Judson Hamlin, J.S.C., dated January 18, 1991 (SBa 36-37). Also on January 18, 1991, Rieder requested a bifurcation of its application, seeking approval of a requested General Development Plan for the property (“GDP MID L 004432-17 12/17/2014 Pg 12 of 122 Trans ID: LCV2019169759 application”) and deferral of the subdivision portion of the application. Judge Wolfson, as attorney for Rieder, was copied on the request (SBa 38-39). While the wetlands litigation was pending, on June 4, 1991, in accordance with advice from the New Jersey Attorney General’s office, the DEP reversed its position and no longer believed that the property was exempt from wetlands regulations (SBa 40-44). On July 29, 1991, Reider assigned all of its development rights to First Fidelity Bank/Jersey Center Fidoreo (“Fidoreo”) (SBa 45-70). Subsequent to the assignment of development rights, Rieder — still the owner of the property -- filed a revised application with the Planning Board on September I1, 1991, in conformance with a decision rendered by Judge Hamlin, renewing its request for GDP approval (SBa 71-79). Judge Wolfson was once again copied on the letter of transmittal as attorney for Rieder. On March 30, 1992, while the wetlands litigation was pending in the Appellate Division, a settlement agreement was reached regarding applicability of the FWA to the property. The settlement determined that: . The road systems (including Northumberland Way and Cornwall Road) are exempt from wetlands permitting and transition area requirements; and Block 86, Lots 21.03 — 21.11, 22.03 and 22.04 are also exempt (SBa 80-86). On April 22, 1992, the Planning Board attorney advised the Greenbaum firm that the height variance granted by the Board on September 25, 1990, had expired (SBa 87- 91). On May 12, 1992, Reider conveyed title of the property to Fidoreo via a deed in lieu of foreclosure (See SBa 92). Fidoreo pursued the development of the property, ultimately securing preliminary subdivision approval on June 15, 1994 which also included a 20-year GDP approval (SBa 1-15). MID L 004432-17 12/17/2014 Pg 13 of 122 Trans ID: LCV2019169759 LEGAL ARGUMENT IT IS RESPECTFULLY REQUESTED THAT THE HONORABLE DOUGLAS K. WOLFSON RECUSE HIMSELF FROM THIS CASE Rule 1:12-1 governs the disqualification of a judge from considering a matter pending before him or her. Disqualification is appropriate in a variety of settings as set forth in the rule, but generally “when 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.” R. 1:12-1(g). Any party may file a motion to seek a judge’s disqualification. R. 1:12-2. It is well established that “[o]ne of the primary functions of the rules governing judicial disqualification ‘is to maintain public confidence in the integrity of the judicial process, which in turn depends ona belief in the impartiality of judicial decision making.’" United States v. Nobel, 696 F.2d 231, 235 (3d Cir.1982), cert. denied, 462 U.S. 1118 (1983). In Rivers v. Cox-Rivers, 346 N.J. Super. 418 (App. Div. 2002), the court stated, in regard to N.J.S.A, 2A:15-49, the need to establish a “bright-line rule” in determining matters of judicial recusal: Except when required by the rule of necessity, where a judge has previously represented one of the parties in a matter before him against the other, any judicial action taken is a nullity, whether the conflict comes to light during the proceedings before an order enters or reasonably soon following the conclusion of the matter after an order has been entered. See N.J.S.A. 2A:15-49b; R. 1:12-1(c), (. We hold further, ..... that the conflict is non-waivable by the parties, either expressly or implicitly. If a judge is precluded from presiding over a matter in which a former client is involved, especially where the current adversary is the party against whom the prior representation occurred, any action taken by the judge as a result of the proceeding cannot be recognized as valid.” Id. at 422. Although Judge Wolfson does not appear to have ever represented the Plaintiff itself, he certainly was extensively involved in the development application and approvals 10 MID L 004432-17 12/17/2014 Pg 14 of 122 Trans ID: LCV2019169759 granted for the property at issue in this case, all of which are now owned by the Plaintiff. This is sufficient to require recusal from presiding over the disputes in this matter. Indeed, the court in Cox makes clear that “when a judge has appeared as counsel in an earlier stage of the same adversarial proceeding, there is no question that the judge has advocated the client’s cause, and recusal is automatic because of the danger of an appearance of partiality.” Id. (quoting Sharp v. Howard County, 607 A.2d 545, 551 (Md. 1992)), As the court in State v. McCann, 391 N.J. Super 542, 552 (App. Div. 2007) observed, even if a judge’s involvement does not fall squarely within the parameters of any Rules or Canons, "the fairness and integrity of the judgment is as important as the correctness of the judgment.” Id. at 552. Even the “appearance of impropriety” warrants disqualification. DeNike v. Cupo, 196 N.J. 502 (2008); see also Chandok v. Chandok, 406 N.J. Super. 595, 606 (App. Div.), certif. den. 200 N.J. 207 (2009). As attorney for Rieder, Judge Wolfson and the Greenbaum firm pursued land use approvals from the Planning Board for a Planned Office/Research/Conference (OR) District development for property located at Block 86, Lots 21.03, 21.04, 21.05, 21.06, 21.07, 21.09, 22.01 and 22.03, known at that time as Jersey Center Metroplex (SBa 16- 19). These are the same properties at issue in the instant matter, all of which are now owned by the Plaintiff (Complaint, para. 4; Draft Amended Complaint, para. 1). In his representation of Rieder, Judge Wolfson was a zealous advocate for development of this property on behalf of his client. One of many examples of his advocacy for development of the tract is evidenced by Judge Wolfson’s letter to the South Brunswick Planning Director, Robert Hall, dated August 29, 1989, wherein he advocates for inclusion of all of these properties for OR development approval (SBa 20- 11 MID L 004432-17 12/17/2014 Pg 15 of 122 Trans ID: LCV2019169759 22). His advocacy touched upon not only development of the lots in question but also creation of rights-of-way and road construction, specifically referencing Northumberland Way and Cornwall Road. The Plaintiff has placed the construction, ownership and maintenance of both of these roads in issue in this case. Clearly, Judge Wolfson was intimately involved in prosecuting the land use approvals for the property that the Plaintiff now owns and seeks to develop. On behalf of Rieder, Judge Wolfson and the Greenbaum firm pursued an application for approval of: 6.49 million sf office use 700 residential units 179,100 sf retail use 350-room hotel with 20,000 sf restaurant use (SBa 18) The Plaintiff is the direct beneficiary of the preliminary subdivision approval and GDP developer’s agreement that was eventually granted, preserving its right to construct approximately 6.4 million sf of office space. Moreover, the application filed on behalf of Rieder is strikingly similar to the Plaintiff's development proposal, which includes: . 1,000 residential units . 150,000 sf retail use (Complaint Exhibit G; Draft Amended Complaint, Exhibit 1) The Plaintiff's development proposal is sufficiently similar to Rieder’s development proposal to raise the concern that Judge Wolfson could have a predisposition to favor the Plaintiff's proposal, to the disadvantage of the Township. When the issue of the applicability of the FWA resulted in litigation, Judge Wolfson represented the developer of the property. This placed him into a direct adversarial position with the Planning Board and the Township over the development of 12 MID L 004432-17 12/17/2014 Pg 16 of 122 Trans ID: LCV2019169759 the property the Plaintiff now owns and seeks to develop. Ultimately the litigation was resolved via a settlement agreement, from which the Plaintiff now directly benefits. In addition, Judge Wolfson’s client utilized the services of The Chester Partnership, an engineering firm that drafted the surveys and subdivision plans used in the Rieder application for approval (See SBa 19). These same plans have been referenced and relied upon by the Plaintiff in its current efforts to develop the property (See Exhibit G to Complaint; Exhibit I to Draft Amended Complaint). Most assuredly, the Plaintiff's development interests are squarely aligned with Rieder’s interests, so much so that the Plaintiff relies on much of the same plans that were prepared to support Judge Wolfson’s client’s application. Throughout Rieder’s application process, Judge Wolfson was regularly copied on correspondence from Rieder to the Township, evidencing his continuing, intimate involvement in the matter (See SBa 93-105). At the Case Management Conference held in this matter on August 22, 2014, the parties appeared before Judge Wolfson, where conversations about the substantive aspect of the case took place in chambers. Judge Wolfson had a clear recollection of his representation of Rieder, the application to the Planning Board and the approvals he obtained on behalf of the property owner (Sears Certification, para. 5). Although the Township — and its counsel personally — hold Judge Wolfson in the highest regard for his intellect, integrity and reputation as a skilled and accomplished jurist, the conflict present in the handling of this matter requires his recusal from this case. As a result of his involvement with the development of the property at issue in this case, and the ongoing dispute between the parties over the rights, duties and 13 MID L 004432-17 12/17/2014 Pg 17 of 122 Trans ID: LCV2019169759 responsibilities of the parties that flow from the approvals previously granted, Judge Wolfson should recuse himselfin accordance with R, 1:12-1 and N.LS.A. 2A:15-49. In the alternative, the Court should grant the Defendant’s motion for disqualification pursuant to R. 1:12-2, 14 MID L 004432-17 12/17/2014 Pg 18 of 122 Trans ID: LCV2019169759 CONCLUSION For the forgoing reasons, it is respectfully requested that the Defendant’s motion be granted and that the Honorable Douglas K. Wolfson, J.S.C., recuse himself from handling this matter, or, in the alternative, that the Court issue an order disqualifying Judge Wolfson from handling this case. Respectfully Submitted, TOWNSHIP OF SOUTH BRUNSWICK Date: December 9.2014 By hl onaldJ. Segfs, Esq. ut 15 MID L 004432-17 12/17/2014 Pg 19 of 122 Trans ID: LCV2019169759 S é Cc se Plnmrmabi RESOLUTION (corrected per August: 21 1994 letter of Tr. Cafferty, Esq.) Re: SD 1173/SD 1175A Jersey Center/Fidoreo, Inc. ii alkia uth Brunswick Center ; U.S. Route 1 (north, @ Northumberland Wa’ Block 86, Lots 22.0 » 22.04, 89.013, 89.02 ki Minor Subdivision and Preliminary Major Subdivision Approvals with Waiver and Design Exceptions. [ Dates of Hearing: Janua 16, 1994, March 9, Th 19, 1994, Februar bs ieee March 30, 1994, April 27, 1994, May , I 994 and June 15, il i b WHEREAS, Applicant, Jersey Center/Fidoreo, Inc., requests “ minor subdivision approval with waivers and design exceptions i to adjust boundaries between two exis ing lots, and tt preliminary major subdivision approval with waivers and design exceptions to create 15 new lots [14 OR lots, 1 R-2 lot and 2 H lot to be consolidated with exi ting Lot 27.01 in Block 86); and ii WHEREAS, the minor subdivision consists of a 33.8 acre parcel located entirely within an OR Zone; and the mejor subdivision consists of a 413.349 exe parcel, portions of which are located in the OR & R-2 Zones; and I WHEREAS, the Applicant, with respect to the minor subdivision, proposes to adjust the boundary line between two i existing lots [Lots 22.03 and 22 an Block 26); and ih be’ fi Ye Ii WHEREAS, the application was submitted on August 26 2833, deemed incomplete on October 25, 1993, resubmitted if 4 on (ee i Novenber j 1993 and deemed compl te on Novemnpe’ irwots23, ag 2; ang ti | i WHEREAS, application fees of oo. 00 and escrow fees of 3,100.00 were paid o + escrow September L, 2223 and the account wes supplemented by $6,000.00 on May 16, ug9 94; and WHEREAS, the plans and documents filed, reviewed and S6a1 MID L 004432-17 12/17/2014 Pg 20 of 122 Trans ID: LCV2019169759 accepted into evidence in the nearing on the application are as follows: Plans: “Minor Subdivision and Road Realignment Plan", prepared by Henderson and Bodwell, dated August 23, 1993 and revised through November 22, 1993; "preliminary Plat", prepared by Henderson and Bodwell, dated August 23, 1993 and revised through March 16, 1994; "Improvement Plans”, (36 sheets), prepared by Henderson and Bodwell, Gated August 22, 1983 and revised through In March 16, 1994; “Signing Striping & Street free Planting Plan", (2 sheets}, by Henderson and Bodwell, dated November 22, 1993, no revisions; Documentary Evidence: Exhibit A-i: "Road Alignment Plat, Lots 22.03 and 22.04"; Exhibit a-2: "Plan ent tled ‘South Brunswick Center' Exhibit A Exhibit A-3: "Map entitled ‘South Brunswick Center’ Exhibit ¢ i h Exh. t Ac4 "South Brunswick center Preliminary Plat"; Exhibit A: “South Brunswick Center, Exhibit 3B"; Exhibit A-é: “Exhibit of Total Lot Area and Open Space Area"; Exhibit a-7: "New Residential Lot 101"; Exhibit A-e: "Storm Water Management Plan"; Exhibit 2-@(i): “Overlay of Exhibit 4-8"; Exhibit Axe "Map of Sewer/Water Design Flows"; hy Exhibit A-26: "Central Jersey Region and State Comparative Performance Chart"; By Be "Central Jersey Population Pro} ion Chart" bit a “Labor Force Projection 1990-2008 by ib egion and County"; a5 "Endust Employment Prod tion ag90-2005 ht by Region and County" and bh WEEREAS, the prop ye es have been ce +tifified as current by the Tax coll xi and uv -Pase ag SBa Ah MID L 004432-17 12/17/2014 Pg 21 of 122 Trans ID: LCV2019169759 WHEREAE, the Planning Board conducted a public hearing on this application on January 19, 1994, February 16, 1994, March oy 1994, Marsh 36, 1894, April 27, igss, May 4 1954 and June 15, 1og4; and bs WEEREAS, at seid public hearings, che Board heard u argument from Lois Van Deusen, Esguire, attorney for the \; Applicant, and testimony from Applicant's experts: James R. DeLand, Jr., a licensed Professional Engineer; Michael Belknap, who testified as an expert on economic conditions as they relate to real estate generally and the subject property in particular; Dr. Donald M. scarry, PhD in Economics from Rutgers University and Law Degree from Rutgers University; and WHEREAS, Andre Gruber, Esquire, an attorney representing an objector and an attorney Lawrence Sachs, representing an objector, appeared and mede arguments; and I) WHEREAS, the Staff Report of Robert G Hall, Planning Director for the Township, dated January 14, 1994, was accepted into evidence by the Board; and WEEREAS, the Board received representations from Staff as to this application; and Ii "1 RWEEREAS, at the various public hearings, the public was ‘I somment, guestions invited to pose and testify and various 4 members of the public and counsel representing objectors did SO comment and pose guestions; and I WHEREAS, on the basis of the aforesaid testimony and documentary record, che Boars makes the follov ig findings of fact and con! usion 1 XR urisé onal regnis chshhave ments been met Minor Subdi ston Des! mn ¥ ve Applicant seens the following waivers an connection with the minor subdivision part of the app tion: “Pane 3. SBa-3 MID L 004432-17 12/17/2014 Pg 22 of 122 Trans ID: LCV2019169759 (2) Section 17541.A.()(c) - eguires the depiction of all streets, roads, reinage, rights-of-way, i streams and existing ut. qity lines witni. 500 feet of the tract. AD) Jicant requests a waiver reducing this requirement to 200 feet. The Planning Staff has recommended the grant of this waiver inasmuch as the items are not necessary for review in this case and, accordingly, the Board concurs in such recommendation and grants the requested waiver. (b) Section I75-41.A.0() ~ requires a key map at a i scale of ie 1,000 feet. this be altered to 1" 2,000 Applicant feet. requests For reasons specified in Subsection (a), the Planning Staff has recommended such waiver and the Planning Beard concurs i