Will Affordable-Housing Decision Be Derailed by Judge’s Ties to Developer?
Judge ruled South Brunswick must build 3,000 units of affordable housing, but township wants decision set aside due to ‘appearance of impropriety’
New Jersey’s only municipality to receive its affordable-housing obligation from a judge’s order is continuing to appeal that number, even as construction is underway on the first new developments since the Supreme Court got back in the middle of the Mount Laurel housing controversy. The township is claiming the Superior Court judge was compromised by a relationship with the developer.
It’s been almost two-and-a-half years since the state’s highest court took control of affordable housing matters away from the “moribund” New Jersey Council on Affordable Housing and tossed it back to the courts, which had been the original deciders of low- and moderate-income housing claims following the Supreme Court’s landmark Mount Laurel rulings. In those cases, which date back to 1975, the court ruled that municipalities must zone for their “fair share” of their regional need for affordable housing.
The cases have been slowly winding through the Superior Courts throughout the state. The Fair Share Housing Center, the Cherry Hill-based organization leading the legal efforts to get more homes built, has reached settlements with 120 municipalities to construct more than 36,000 units from Bergen to Camden counties. Construction has even begun on projects in Woodbridge, Cherry Hill, Westfield, and Edison, welcome news to housing advocates after the process had been stalled by lawsuits and lack of action by COAH for about 16 years.
Other municipalities remain in the courts. For instance, a Mercer County judge is expected to rule within the month on the obligations for several communities in Mercer.
Conflict of interest?
And South Brunswick, whose obligation of close to 3,000 homes was so far the only one to be decided by a judge, recently filed papers in appellate court seeking to void its obligation because the presiding Superior Court judge has close ties with a prominent developer.
The township filed a motion last Thursday asking the Appellate Division to review last month’s ruling by Mercer County Superior Court Judge Douglas Hurd that denied its request to have all of the housing rulings by former Middlesex County Judge Douglas Wolfson set aside. Through its attorney, Jeffrey Surenian, the township contends Wolfson has close personal, familial, and financial ties to developer Jack Morris, who stands to benefit from Wolfson’s decisions.
In the case before Hurd, Surenian did not accuse Wolfson, who retired at the end of 2016 and now serves as general counsel to and a principal of Morris’ Edgewood Development Company, of a specific conflict of interest or misconduct. Instead, as Hurd described in denying Surenian’s motion, the township made “an allegation that Judge Wolfson’s decisions are infected by an appearance of impropriety.”
Hurd ruled that Wolfson had disclosed his relationship with Morris and recused himself from other matters involving Morris and Edgewood and that Edgewood was not a party to the South Brunswick litigation and has no plans to build any affordable housing in the township. As such, he said, nothing precluded Wolfson from deciding the case.
“What is important and significant is that South Brunswick stated at oral argument that they are not questioning whether Judge Wolfson was right or wrong in his decisions. That is because they can’t,” Hurd said. “The record clearly demonstrates that Judge Wolfson’s decisions are consistent with decisions made by some other Mount Laurel judges. And in fact, one of his decisions at issue regarding the gap were cited with approval with the Supreme Court.”
Dissatisfied with the decision
Surenian, the lawyer for more than 200 municipalities in affordable-housing matters, was not satisfied with the decision. He maintained that Wolfson’s rulings are beneficial to developers, including Morris.
“The citizens of South Brunswick had a right to have the judge that made decisions that would forever impact the community to have his impartiality beyond reasonable question,” Surenian said. “It is an ‘appearance of impartiality’ standard that controls. You do not have to prove that there was a conflict of interest or actual bias to prevail. You merely need to prove that there was an appearance of partiality. In other words, does it look bad?”
Among several allegations, Surenian contends that Morris paid at least part of 32 vacations for Wolfson or his wife, 19 of which occurred while Wolfson was on the bench and seven while he was presiding over the South Brunswick case. Two of Wolfson’s major rulings were made around the same time as two of the vacations, Surenian continued. And Wolfson’s son was working at the law firm of Morris’s wife during this same time period, he added.
Surenian said he has presented the appellate court with a timeline illustrating all of the dates and relationships that he said shows “Judge Wolfson’s impartiality was not beyond reasonable question. To the contrary, it would be unreasonable not to question his impartiality.”
Anthony Campisi, a spokesman for Fair Share, disagreed and predicted that Hurd’s ruling will be upheld.
"Judge Hurd eloquently rejected these claims in his thorough hearing on this issue,” he said. “Judge Wolfson's rulings on affordable housing and South Brunswick are good law and have been cited by numerous courts throughout New Jersey — including by the New Jersey Supreme Court. The fact is that South Brunswick has not met its fair-housing obligations under the New Jersey Constitution and is now trying to derail proceedings that would bring it into compliance with the law by pursuing this litigation. We are confident that these claims will continue to be rejected by the courts and that the legal process will continue.”
Surenian said Wolfson’s rulings require the township to zone for almost 3,000 new affordable units, but if those are built as part of inclusionary developments with four market-rate units for every one affordable, South Brunswick could see as many as 15,000 new housing units.