The 1,000th Post: A Rare Published Affirmance on the Opinion Below

In re Adoption of Monroe Tp. Housing Element and Fair Share Plan, 442 N.J. Super. 563 (App. Div. 2015).  Many intermediate appellate courts frequently issue opinions that affirm on the basis of rulings by trial level judges.  New Jersey’s Appellate Division, despite being one of the busiest intermediate appellate courts in the United States, does so only infrequently.  Today, in a Mount Laurel case, an Appellate Division panel consisting of Judges Fisher, Espinosa, and Rothstadt did just that, affirming “substantially for the reasons set forth in Judge Douglas K. Wolfson’s well-reasoned and comprehensive opinion.”  The opinion of Judge Wolfson [Disclosure:  Judge Wolfson and I were partners at Greenbaum Rowe, my former firm] was also designated for publication, and is available here.

The Township of Monroe had filed a declaratory judgment action that sought a ruling that its housing plan was presumptively valid.  Such applications were authorized by the Supreme Court in In re Adoption of N.J.A.C. 5:96 and 5:97 by the N.J. Council on Affordable Housing, 221 N.J. 1 (2015), which stripped the Council on Affordable Housing (“COAH”) of its powers, due to its repeated failures to act, and returned those powers to the courts.

The New Jersey Department of Community Affairs (“DCA”) sought to intervene in the case, either as of right or permissively (both under Rule 4:33), in order to file a counterclaim seeking to require Monroe to turn over to DCA the Township’s affordable housing trust funds.  DCA asserted that Monroe had failed “to spend or commit to spend” the funds as required by statute.  Judge Wolfson denied the motion to intervene, and the Appellate Division’s decision today affirmed Judge Wolfson’s ruling.

Judge Wolfson rejected DCA’s motion to intervene for multiple reasons.  First, Rule 4:33-1 requires that a proposed intervenor claim “an interest relating to the property or transaction which is the subject of the litigation.”  Judge Wolfson found that DCA had no such interest.  “Indeed, the DCA concedes as much.”  Second, that same rule mandates that the proposed intervenor show that disposition of the case “may impair or impede its ability to protect” its claimed interest.  Not only did DCA not have an interest to protect, but its claimed interest– preserving the affordable housing trust funds so that DCA could later seize them– was “of no irreparable consequence, since money is fungible and the Township understands and has acknowledged that a later ruling in DCA’s favor on this issue would require the Township either to amend its plan to exclude and forfeit any unspent funds, or pay back any monies actually expended, but ultimately determined to belong to the State.”

Finally, even if intervention were appropriate, Judge Wolfson concluded that DCA’s counterclaim that sought forfeiture of Monroe’s affordable housing trust funds was futile.  He cited multiple grounds, each ultimately growing out of COAH’s ongoing failures to act.  Judge Wolfson’s view was supported by a detailed statutory interpretation analysis, and his opinion is well worth reading in full.  The Appellate Division had ample reason to adopt that opinion in its affirmance today.

This is the 1,000th post on this New Jersey Appellate Law blog.  It is a milestone that, fittingly, has fallen on the day before Thanksgiving, and I’m very thankful for that milestone and many other things.  Happy Thanksgiving to all!