Judge Douglas Wolfson ()
Past affordable housing rulings made by now-retired Superior Court Judge Douglas Wolfson, challenged by the township of South Brunswick based on the judge’s long-term personal and professional relationship with a developer, will stand, a trial court decided Thursday.
Mercer County Superior Court Judge Douglas Hurd denied a motion to retroactively disqualify Wolfson from being involved in South Brunswick’s ongoing affordable housing litigation.
South Brunswick is challenging the amount of housing it must provide for low- and moderate-income residents, as required by the state Supreme Court’s series of Mount Laurel rulings.
South Brunswick sought to have Wolfson’s rulings from July and October 2016 overturned because of an appearance of conflict stemming from his relationship with developer Jack Morris—even though Morris is not seeking to build in South Brunswick and Wolfson steered clear of Morris-involved cases.
“It’s clear the motion must be denied,” Hurd said in reading his ruling from the bench. “Mr. Morris is not involved in South Brunswick in any capacity. He has nothing to do with the case.
“Simply because Judge Wolfson has a relationship with Mr. Morris does not preclude him from being involved in this litigation,” Hurd said, adding that the township is not accusing Wolfson of an actual conflict of interest or challenging the validity of his rulings.
Oral arguments in the case were heard on Monday.
Wolfson did not return a telephone call but a spokesman, David Rubin, who heads a firm in Metuchen, said the ruling “speaks for itself.”
The Cherry Hill-based Fair Share Housing Center, which advocates and litigates matters on behalf of those seeking affordable housing, has been disputing South Brunswick’s claims of an appearance of impropriety. The township’s allegations of a personal relationship between Wolfson and Morris “were not sufficient to lead the judge to recuse,” said the center’s executive director, Kevin Walsh. “They were moving to recuse the judge after he retired.”
South Brunswick’s attorney, Jeffrey Surenian, who heads a firm in Brielle, was not immediately available for comment.
While on the bench, Wolfson handled litigation involving the township, but not Morris’ company, Edgewood Properties, according to documents. And Wolfson recused from cases that came before him involving Edgewood.
Nevertheless, Wolfson for years has had personal and professional ties to Edgewood, South Brunswick alleged, and claimed Wolfson’s decisions in other affordable housing cases could work in favor of Edgewood.
During Monday’s hearings, Surenian said the average person could have an “objectively reasonable belief” that there was at least an appearance of impropriety.
Surenian said Wolfson and his wife—U.S. District Judge Freda Wolfson of the District of New Jersey—were reimbursed by Edgewood for 13 vacations to Boca Raton and Fort Lauderdale, Florida, and to the Bahamas, between 2013 and 2015, as well as other vacations.
South Brunswick, in its efforts to establish an apparent conflict, had previously seized on the fact that Wolfson took up representation of Edgewood immediately after his Dec. 30, 2016, retirement, and represented the developer before becoming a judge decades ago. The township has more recently relied on financial disclosure documents Freda Wolfson made to the Administrative Office of the U.S. Courts, which documented the vacations.
Since retiring, Wolfson went to work for the Weingarten Law Firm in Parsippany. Morris’ wife, Sheryl Weingarten, heads Weingarten Law Firm. Wolfson has represented Edgewood Properties in litigation involving municipalities other than South Brunswick.
The township also noted that Wolfson’s son worked for the Weingarten firm while Wolfson was on the bench.
On Thursday Hurd said, “it is clear from the public documents and certifcations presented that Judge Wolfson had a business and/or personal relationship with Mr. Morris and his companies before, during and after his tenure as a Superior Court judge.”
But Morris and his businesses “have nothing to do with the case South Brunswick wants this court to vacate,” and “additional discovery on that issue would not lead to a different conclusion in denying this motion,” Hurd said, finding that none of Wolfson’s conduct ran afoul of ethics or court rules, which do not “focus on broad, generalized interests.”
Hurd also took issue with the timing of the recusal motion, saying it should have been made at the time of the rulings, and said Wolfson’s affordable housing decisions were “consistent with some other Mount Laurel judges.”
Hurd said he would transfer the matter back to Middlesex County.
Before Wolfson was first nominated to the bench, he represented Edgewood Properties and other developers in affordable housing actions. As a judge designated to hear affordable-housing cases in recent years, he authored a number of groundbreaking decisions on towns’ obligations under the Mount Laurel cases, which require local governments to maintain a level of affordable housing and prohibit them from enacting exclusionary zoning laws that would bar construction of such housing.
In one of his rulings, Wolfson ruled that a group of Middlesex County towns cannot have their affordable housing obligation capped at 1,000 units. He rejected the argument made by the group of eight towns that they should be allowed to avail themselves of the 1,000-unit cap since the now-defunct state Council on Affordable Housing (COAH) failed to issue any rules since 1999.
At issue in South Brunswick’s case is how many units of affordable housing the township will ultimately be ordered to provide. South Brunswick could be required to provide 1,533 units of affordable housing in upcoming years—a figure the town argues is far too high. Using an expert, South Brunswick claims its obligation should instead be set at a maximum of 927 units. The township is a sprawling bedroom community some 40 miles south of New York City.
Wolfson originally was a trial judge from 1991 until 2002, when he left the bench to become the director of the Division of Law. He rejoined the bench in 2013 and retired in December to join the Weingarten firm.