NJ Supreme Court Rules Governor Lacked Authority to Abolish COAH

Earlier this month, the Supreme Court of New Jersey issued yet another decision regarding the state’s controversial affordable housing program. By a vote of 5-2, the panel held that Gov. Chris Christie’s attempt to abolish the Council on Affordable Housing (COAH) exceeded his authority.

As previously discussed on the Scarinci Hollenbeck Business Law Blog, COAH was created by the Fair Housing Act in 1985 to administer the affordable housing obligations of cities and towns, as established under the Mount Laurel cases issued by the New Jersey State Supreme Court in 1975 and 1983.

In 2011, Gov. Christie moved to abolish COAH, characterizing it as a costly and burdensome regulatory agency.  He did not seek legislative approval, but rather attempted to abolish COAH and transfer COAH’s powers, functions, and duties to the Department of Community Affairs (DCA) using his executive power under the Executive Reorganization Act of 1969. Because the Legislature failed to adopt a resolution disapproving the Governor’s reorganization plan within sixty days of the date the plan was filed, as permitted by the Reorganization Act, the Plan took effect in late August 2011.

In deciding the resulting legal challenge, the New Jersey Supreme Court ultimately held that Gov. Christie’s abolition of COAH was ultra vires. As an independent agency, COAH could only be disbanded through legislative action, the court concluded.

As explained by Chief Justice Stuart Rabner in the in the majority opinion, “Because COAH is “in, but not of,” an Executive Branch department, the plain language of the Reorganization Act, which extends the Chief Executive’s authority only to agencies that are “of the executive branch,” N.J.S.A. 52:14C-3(a)(1), does not encompass, and thus does not authorize the Governor to abolish, an independent agency like COAH. To abolish independent agencies, the legislative and executive branches must enact new laws that are passed by the Senate and Assembly and signed by the Governor.

While the decision in In Re Plan for the Abolition of the Council on Affordable Housing does not directly impact the state’s ongoing attempt to seize unused affordable housing funds, it should clear the way for the Supreme Court of New Jersey to finally issue its ruling on the latest iteration of COAH’s third round rules.

For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

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