In yet another chapter in New Jersey’s seemingly unending saga regarding affordable housing, today the New Jersey Supreme Court, in a ruling of five in favor and two dissenting, ruled that Governor Christie does not have the authority to abolish the New Jersey Council on Affordable Housing (“COAH”). In its much-anticipated decision in In Re Plan for the Abolition of COAH, released today, July 10, 2013, the Court held that, “because COAH is [an agency] ‘in, but not of,’” the state’s Executive Branch, it may only be abolished by new legislation – not executive order. The Court “offer[ed] no opinion as to whether COAH’s structure should be abolished, maintained as is, or modified,” but did note that “[i]f the Governor and the Legislature wish to abolish COAH, they must take another path.”

The path taken began in June 2011, when Governor Christie proposed a reorganization plan under the Executive Reorganization Act of 1969, N.J.S.A. 52:14C–1, et. seq. (the “Reorganization Act”) that abolished COAH and transferred many of its duties to various departments within the New Jersey Department of Community Affairs. The plan’s stated purpose was to “reduc[e] expenditures and promot[e] economy and efficiency in the operations of the executive branch by eliminating a costly and burdensome regulatory agency.” 43 N.J.R. 1621. The plan went into effect when the state legislature failed to act on the plan within the requisite 60-day time period.

In a March 8, 2012 decision, the Appellate Division held that the Governor’s plan was invalid, and that “the power to abolish COAH rest[ed] exclusively with the Legislature.” See, In re Plan for Abolition of COAH, 424 N.J. Super. 410, 415 (App. Div. 2012). The Appellate Division held that “as an ‘in but not of’ agency, COAH is not subject to the Reorganization Act. “Accordingly,” the court concluded, “Reorganization Plan 001–2011, abolishing COAH, is invalid.”

On Wednesday, the Supreme Court, quoting from Appellate Judge Carchmen’s opinion, noted that, “[t]he issue in this case is not whether COAH should or should not be an active participant in developing and implementing policies for affordable housing in New Jersey. Recent events have demonstrated that both the Legislature and the Governor are committed to charting another course for the future of affordable housing in this State.” Said the Court, “[w]e do not attempt to chart that course in this opinion.” “Instead, we examine the process the law requires” and hold that “[t]he plain language of the Reorganization Act does not authorize the [Governor] to abolish an independent agency like COAH.”

The full text of the decision is available at: http://www.judiciary.state.nj.us/opinions/supreme/A12711-A1412InrePlanforAbolitionofCOAHOpinion.pdf