Judge dismisses Cohome lawsuit against Morristown

Superior Court Assignment Judge Stuart Minkowitz weighs in on Cohome lawsuit, Nov. 30, 2023. Screenshot by Kevin Coughlin


A judge on Thursday dismissed a lawsuit by Cohome Inc. that accused Morristown of discrimination against its residential home for people with developmental disabilities.

Superior Court Assignment Judge Stuart Minkowitz only addressed technical issues, and said Cohome can refile its suit if the crucial one is resolved.

It boiled down to a Morris County board’s failure to explain why it upheld Morristown zoning violations against Cohome. None of Cohome’s grievances can be weighed without clarity on that board’s decision, the judge said.

“This particular lawsuit is done. Judgment is rendered… There cannot be any analysis of any of those other allegations without a statement of reasons from the board. So it’s all moot,” Minkowitz said during an hour-long virtual hearing.

He remanded that portion of Cohome’s case back to the Morris County Construction Board of Appeals — if Cohome opts to pursue the matter.

It’s the latest chapter in the nonprofit’s five-year struggle to establish itself in Morristown’s Historic District.

Back in January, Cohome prevailed in an epic zoning battle to transform a garage into a caretaker apartment.

Things heated up again in April, when town Construction Official Brian Mulligan slapped Cohome with a pair of zoning code violations. The county board backed Mulligan.

Cohome Attorney Aileen Brennan, Nov. 30, 2023. Screenshot by Kevin Coughlin

Cohome sued in August, alleging “a few well heeled” neighbors had inveigled town officials to disrupt its clients’ lives by ordering installation of a costly sprinkler system — not for safety concerns, “but because some of (Cohome’s) residents look, act, and speak differently than they do.”

The suit sought to compel the town to drop the violations and its designation of Cohome as a “group home,” and to bar any more town violations related to Cohome’s use and occupancy of its Miller Road property.

Cohome also aimed to overturn the county board’s decision, and to obtain  judgments that the defendants–Mulligan, the town, and the county board–violated the state Fair Housing Act and the civil rights of Cohome clients.

On Thursday, Cohome sought an order blocking Morristown from enforcing the violations issued by Mulligan.

Citing factors including the number of Cohome residents–presently, six developmentally challenged clients and three resident assistants–Mulligan had charged Cohome with changing the use of its property from its “R-5” designation to an “R-4” group home without town approvals.

Cohome lacks an R-4 certificate of occupancy and is operating illegally, he contended. The construction code official imposed weekly fines of $1,000, and ordered installation of sprinklers, the lawsuit stated.

Cohome attorney Aileen Brennan argued Thursday that sprinklers are unnecessary. Cohome clients are high-functioning–she said they all hold jobs–and have demonstrated during fire drills that they can exit swiftly from the house, she said.

Yet these same clients could suffer “irreparable harm,” psychologically, if forced to relocate temporarily for the sprinkler installation, Brennan insisted. Relocation even might jeopardize their federal housing subsidies, she said.

And Cohome would face difficulty affording sprinklers, Brennan said.

Cohome can’t have it both ways, countered Frank Dyevoich, counsel for Mulligan and the town.

Owner Nate Diskint has portrayed his clients as so capable that they only need support and companionship, an arrangement Diskint insists is different than a group home. So, brief disruptions should not faze these clients, Dyevoich posited.

Attorney Frank Dyevoich, representing Morristown and Construction Code Official Brian Mulligan. Nov. 30, 2023. Screenshot by Kevin Coughlin

On the other hand, Diskint told the town zoning board his clients need so much care that a permanent caretaker residence had to be built. Which suggests they need supervision from licensed professionals in a group home, the lawyer said.

Dyevoich added that Mulligan could be held liable if he neglected to enforce town codes and, “God forbid,” tragedy were to occur.

The judge agreed.

“The court does not find by clear and convincing evidence that the comparative hardships or irreparable harm that would be suffered by the plaintiffs in this instance outweigh their need to secure their safety and security, as required under the (town) code,” Minkowitz said.

Nor had Brennan backed up her claims of irreparable harm–or even that relocation of Cohome residents would be necessary, the judge said.

Likewise, he saw no proof that sprinkler costs would be overly burdensome, or that client subsidies were in peril.

When the county construction board of appeals, without explanation, affirmed Morristown’s violations by a 5-1 vote in June, it left Minkowitz with no way to determine if the board had acted in an “arbitrary, capricious and unreasonable” manner, as Cohome alleged.

“I am in a conundrum,” he said, encouraging both sides to amicably resolve their differences.

The judge remanded that portion of the case back to the county board, to state its reasons for the record–if Cohome opts to pursue the matter.

Because of the ambiguity surrounding the board’s decision, Minkowitz voided subsequent town violations leveled against Cohome for failure to comply.

And he threw out everything else, “without prejudice.” Meaning Cohome can try again.


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