Lawyers Spar Over Ex-Judge Wolfson's Affordable Housing Role
ALM Media
Updated
Lawyers argued Monday over whether a former state judge who handled affordable housing cases should have at least one of his rulings overturned because of his relationship with a developer.
In Trenton, a lawyer for South Brunswick Township squared off against a half-dozen others representing developers and affordable-housing advocates. The township is seeking to have affordable housing rulings made by now-retired Middlesex County Superior Court Judge Douglas Wolfson vacated because of what it alleges is the appearance of a conflict of interest: Wolfson's acceptance of vacations from, and current representation of, Edgewood Properties.
While on the bench, Wolfson handled litigation involving the township, but not 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, and South Brunswick claims Wolfson's decisions in other affordable housing cases could work in favor of Edgewood or its primary owner, Jack Morris, even though he has no projects pending in the township.
At Monday's hearing, Jeffrey Surenian, South Brunswick's lawyer, told Mercer County Superior Court Judge Douglas Hurd that the relationship creates the appearance of a conflict of interest.
The average person could have an "objectively reasonable belief" that there is at least the appearance of a conflict, said Surenian, who heads a firm in Brielle.
"Jack Morris is a major developer who stands to benefit from [Wolfson's affordable-housing rulings] and Judge Wolfson has a long relationship with him," Surenian argued.
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.
Surenian emphasized that he was not accusing either judge of ethics violations, "but there's a lot that could reasonably be questioned," Surenian said. "Clean action by a clean judge is the appropriate solution."
Kevin Walsh, the executive director of the Cherry Hill-based Fair Share Housing Center, which advocates for the construction of low- and moderately priced housing, said Wolfson's rulings should not be disturbed.
"Jack Morris is not a party here," Walsh said. "New Jersey's ethics rules focus on who is before the court."
Robert Kasuba, a lawyer representing another developer, AvalonBay Communities, agreed with Walsh.
"South Brunswick is asking for a new standard," said Kasuba, of Haddonfield's Bisgaier Hoff. "There is nothing that connects Jack Morris to South Brunswick."
That lack of any connection, Kasuba said, creates a "gaping hole" in South Brunswick's argument.
Those comments were echoed by Kenneth McPherson Jr., a lawyer representing another developer, South Brunswick Center.
"All the facts here are being contested but one: Jack Morris is not involved," said McPherson, of Waters McPherson McNeill in Secaucus.
Paul Schneider, representing yet another developer, American Properties, said South Brunswick should be treated like a disgruntled client who was the subject of an adverse ruling.
"Oh, the judge must be biased," quipped Schneider, of Giordano, Halleran & Ciesla in Red Bank.
Hurd said he would rule on South Brunswick's motion within two weeks.
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.
Before he was first nominated to the bench, Wolfson represented Edgewood Properties and other developers in affordable housing actions, according to documents.
As a judge designated to hear affordable-housing cases in recent years, he authored a number of groundbreaking decisions on towns' obligations.
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.
