In a blow to the Christie administration’s affordable housing policy, the New Jersey Appellate Division of Superior Court has decided that the Governor lacks authority to abolish the Council on Affordable Housing (COAH).  This March 8, 2012 decision is the most recent development in New Jersey’s long-standing affordable housing saga, which dates back to the 1975 Supreme Court decision in Southern Burlington County NAACP v. Township of Mount Laurel.  As clarified by subsequent Supreme Court decisions, the Mount Laurel Doctrine holds that New Jersey’s municipalities have the constitutional obligation to provide an adequate opportunity for the development of affordable housing.

In 1985, the Legislature codified the Mount Laurel Doctrine by enacting the Fair Housing Act (FHA).  The FHA also created COAH and charged it with implementing and administrating the FHA.  Over the years COAH has been widely derided by State and local officials of both political parties.  Governor Christie came to office promising to abolish COAH.  In 2011 the Legislature passed a bill to revamp the FHA and eliminate COAH, but when the bill was conditionally vetoed by the Governor it was withdrawn from legislative consideration.  On June 29, 2011, the Governor invoked the Executive Reorganization Act of 1969 to issue a reorganization plan that eliminated COAH and transferred its “statutory functions, powers and duties” to the Department of Community Affairs (DCA).  The Legislature passed on the opportunity to disapprove the reorganization plan, and the plan took effect at the end of August 2011.

The Fair Share Housing Center challenged the reorganization plan before the Appellate Division, arguing that the Executive Reorganization Act does not give the Governor authority to abolish COAH.  The Appellate Division agreed.  The specific issue addressed by the Court is whether the authority given to the Governor under the Executive Reorganization Act includes authority to abolish an independent agency that is “in but not of” a department of the Executive branch.  Here, the FHA provides that COAH is “in but not of” the DCA.  Based on a detailed review of the Fair Housing Act, the Executive Reorganization Act and the scope of the Governor’s authority under the New Jersey Constitution, the Appellate Division decided that the Governor lacks the legal authority to abolish COAH and ruled that the reorganization plan is invalid.

This decision adds to the current uncertainty surrounding implementation of the Mount Laurel Doctrine and undoubtedly will renew the clamor for the Legislature to abolish COAH.