The controversial reform of New Jersey's affordable housing landscape has been brought to a standstill once again. On March 8, 2012, the Appellate Division of the Superior Court of New Jersey, in response to a challenge brought by the Fair Share Housing Center advocacy group, ruled that Governor Chris Christie's abolition of the Council on Affordable Housing (COAH) exceeded his authority under the New Jersey State Constitution and State statutes.
The Court reversed the Governor's June 29, 2011 Reorganization Plan, finding no grant of the power necessary for the Governor to adopt that plan, and recognized COAH as a "representative and independent entity" created by the New Jersey Legislature. As such, the Court ruled that COAH could not be eliminated by a unilateral action of the Governor, and that the power to abolish COAH rests solely with the State Legislature. The Court ruled that "[w]ithout clear direction in the Reorganization Act that it should apply to independent agencies, there is no basis from which to infer that the Legislature intended to permit a Governor to undo such a balanced representation scheme through a reorganization plan". As part of the 2011 Reorganization Plan, the statutory functions and duties of COAH were transferred to the Commissioner of the Department of Community Affairs.
The Court's decision couched the issue in terms broader than simply the Governor's actions with regard to COAH. As characterized by the Court, the issue was whether the Legislature intended to permit the abolition of an independent entity, such as COAH, by a Reorganization Plan upon which the Legislature never voted. The Court concluded that the application of the Reorganization Act required an explicit legislative mandate to warrant the abolition of an independent agency rather than generic language, as relied upon by the Governor, in order to subject such agencies to reorganization or, as here, to abolition.
The Court went on to state that "...[T]he Legislation that created COAH was carefully crafted to address issues of Constitutional dimension. The Legislature provided for the representation and participation of the primary constituents in the ongoing dispute about affordable housing. It sought to insure public participation and input without reserving control or decision making to one person or political party. And most importantly, the Legislature utilized language that it had used before, creating an agency that was 'in but not of' a Constitutionally mandated department and beyond the control and influence of unilateral action by the Governor. The Reorganization Act did not change the independent agency paradigm."
The Court was careful not to provide an opinion as to whether or not COAH should be abolished, concluding only that the power to abolish COAH rests exclusively with the Legislature.
Media reports have indicated that Governor Christie has already expressed his intent to appeal this decision to the Supreme Court of New Jersey. What remains to be seen is what steps will be taken to actually reinstate COAH, whose activities have largely been on hold even prior to the Reorganization Plan, as a result of ongoing litigation challenging the amended Third Round Rules. While the decision itself is quite clear, this latest turn of events provides no guidance to property owners, municipalities or the public with regard to the future of affordable housing in the State.
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