COAH: Appellate Division Affirms Judge Wolfson’s Ruling Against the Department of Community Affairs

by Jong Sook Nee on December 10, 2015

On November 25, 2015 the Appellate Division affirmed an Order dated August 26, 2015, issued by Middlesex County Mount Laurel Judge Wolfson, which denied the New Jersey State Department of Community Affairs’ (“DCA”) Motion to Intervene and to file a counterclaim in a pending Declaratory Judgment Action filed by the Township of Monroe.

In the Monroe action, the DCA sought to Intervene and file a counterclaim, to require a full accounting of Monroe’s affordable housing trust funds and an order requiring Monroe to turn over the funds to the DCA based on the Township’s failure to spend or commit to spend these funds within the 4 year period prescribed by NJSA 52:27D-329.2(d) and 329.3(b), as required.

Judge Wolfson denied the DCA’s Motion to Intervene and to file the counterclaim on the basis that the DCA was procedurally, legally and equitably precluded from intervening. Judge Wolfson said the Supreme Court’s clear directive was that the Declaratory Judgment Actions are to be limited to the issue of constitutional compliance. Further, he said intervention by DCA to pursue its counterclaim would be futile as a matter of law.


Judge Wolfson also discussed in his opinion, the fact that COAH had failed to function and there was an inability of municipalities to obtain COAH approval of its spending plan (which is required before utilizing the funds) and that equitable and legal principles demand that the statutory 4 year period during which collected trust funds were required to be spent or committed be tolled, and the running of the period within which to commit the funds, not be triggered until a municipality’s housing plan is either adjudicated to be constitutionally compliant or its plan is judicially rejected and the court concludes that the municipality is determined to be non-complaint.


Based on the Appellate Division’s affirmation of Judge Wolfson’s “well-reasoned and comprehensive written opinion”, this opinion continues to be an important decision with respect to a municipality’s ability to maintain control of its Affordable Housing Trust Funds.

For more information on this topic, please contact Leslie G. London at (973) 622-5335.



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