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Fair Share Housing Center v. Township of Cherry Hill


September 8, 2008


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4889-01.

Per curiam.


Argued March 31, 2008

Before Judges A. A. Rodríguez and C. S. Fisher.

Cherry Hill Township (Township) appeals from the May 31, 2007 order of the General Equity Part, directing it to pay $773,811 from the Township's Affordable Housing Trust Fund (Fund) to Fair Share Housing Center (Center). The Center had sought this funding alleging that the Township is required to cover its funding gap caused by several unanticipated delays in its ability to secure the necessary financial commitments to support its affordable housing project. We reverse the May 31, 2007 order and remand for a hearing to determine whether the court has the authority to enter such an order and whether the amount requested is reasonable and necessary.

This matter has a long and involved procedural history. We only highlight the necessary points. In 1985, the Center initiated a compliance lawsuit against the Township to enforce the municipality's low-income and moderate-income housing obligation pursuant to S. Burlington County NAACP v. Mount Laurel Twp., 67 N.J. 151, cert. denied, 423 U.S. 808, 96 S.Ct. 18, 46 L.Ed. 2d 28 (1975) (Mount Laurel I), and S. Burlington County NAACP v. Mount Laurel Twp., 92 N.J. 158 (1983) (Mount Laurel II). As a result of successful negotiations between the parties, a Stipulation of Settlement was entered on the record in March 1993, which established that 115 units of credit would be earned by the Township towards its fair share obligation upon the successful completion of the Center's affordable housing project at the Short Hills Farm site.

Several years later, a consent order was entered, establishing that a portion of the Short Hills Farm site should be set aside for the development of 58 units of affordable housing. The Center undertook the development of its affordable housing project called Evans-Francis Estates. This project received final site-plan approval by the Township Planning Board in February 2001.

In 2004, Judge Vogelson, the then General Equity judge, authorized payment of $80,000 from the Fund to the Center for the Short Hills project. The judge also approved the linking of the Township's contribution to the Short Hills project with the amount of development fees received from another development. The Township paid the $80,000 in November 2004, agreeing that the parties anticipate no other payments by the Township. However, the Township has been unable to move the Short Hills project beyond the planning stage.

In January 31, 2007, Judge Vogelson ordered the Township to present its affordable housing trust fund Spending Plan to the court for its approval. The same order provided the Center with ten days from the receipt of the Township's Spending Plan to make any requests for the receipt of affordable housing trust funds. After the ten days had expired, the Center submitted its request to the Township that it provide $773,811 in affordable housing trust funds. According to the Center, this request was the result of its failure to secure adequate funding and resulted in a funding gap that could only be cured by the Township's payment of the equivalent in affordable housing trust funds. The Center alleged that the Township was obligated to provide "necessary and appropriate" financial support for its Evans-Francis Estates affordable housing project.

The Center made its application to the General Equity Part, which set a return date. The Township requested a two-week adjournment of the hearing to "prepare an adequate response" and to secure the testimony of an expert witness. The Township also challenged the Center's factual allegations and questioned the court's authority to order such payment.

A different judge summarily denied this request without articulating any reasons for the denial. The Township argued that the trial court did not have the jurisdiction or authority to direct the use of its Fund and that the Center was not eligible to obtain such funding because the project was no longer viable.

The judge granted the Center's motion to enforce litigant's rights, finding that the Township's expenditure of $773,811 in affordable housing trust funds was "necessary and appropriate" to support the development of the Evans-Francis Estates housing project. The judge certified the order as final for purposes of appeal as prescribed by R. 4:42-2 because the order "represents a finite sub-issue that should be reviewed apart from any future affordable housing disputes."

The Township appeals contending that the motion judge erred in not holding a plenary hearing and allowing the defense to adequately respond to the motion. We agree.

A trial court's decision to deny counsel's request for an adjournment is a discretionary decision. State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). "Absent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error." Ibid. (quoting State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965)). Whether the evidence tends to show that the court has abused its discretion turns on the amount of prejudice suffered by the aggrieved party as a result of such refusal. State v. Smith, 66 N.J. Super. 465, 468 (App. Div. 1961), aff'd, 36 N.J. 307 (1962).

Here, we conclude that, given the brief adjournment that was requested and the gravity and complexity of the issues presented, it was an abuse of discretion to deny the request for a hearing and for an adjournment. D'Orsi, supra, 113 N.J. Super. at 532. The judge gave no specific reasons for the denial of both the adjournment and a plenary hearing. The Center requested the disbursement of more than three-quarters-of-a-million dollars from a public trust created for a specific purpose. It is not clear to us that such expenditure could be authorized by the court. Thus, the legal issues were not crystal clear. The factual issues were disputed. For these reasons we conclude that a more comprehensive and searching examination is warranted. On remand, the court should address: the court's authority; the project's prospective financial stability; and whether the funds requested are "necessary and appropriate."

We reject the Center's argument that any alleged prejudicial effect which occurred when the trial court denied the Township's original request for an adjournment is mooted by the "safeguards" placed by the judge in the May 31, 2007 order. No safeguard can be a remedy when the judge's order is suspect because the Township was denied the ability to challenge it adequately.

Reversed and remanded for a plenary hearing to define the scope of the Township's legal and financial obligations, as indicated above.


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