The Appellate Division of the Superior Court of New Jersey today invalidated Gov. Chris Christie's abolition of the Council on Affordable Housing, reversing his reorganization plan in a move that the state will likely seek to bring to its top court.
On June 29, Christie proposed a transfer of COAH’s functions to the Department of Community Affairs, effectively putting affordable housing policy under executive control. The Fair Share Housing Center immediately appealed it once the order took effect.
“The governor’s role under the constitution is to enforce the laws, not to make them,” said Fair Share Housing Center associate director Kevin D. Walsh in prepared remarks. “Christie simply does not have the power to unilaterally abolish independent agencies he doesn’t like.”
According to Richard Hoff, principal of land-use and affordable housing law firm Bisgaier Hoff LLC, the court’s decision “does little to clarify the affordable housing landscape in the state.” Since the top court is currently considering the legitimacy of COAH’s regulations for calculating municipalities’ affordable housing obligations, which have been appealed and revised since 2004, affordable housing in the state remains in flux, Hoff said.
The governor has a long history with embattled COAH, which has been fingered by critics for driving property taxes skyward by imposing affordable-housing quotas and regulations on municipalities. Most recently, in January 2011, Christie conditionally vetoed a bill that would have abolished COAH, as it would have required 10 percent of housing in every town be designated as affordable and created a new entity to review housing plans.
In its opinion, the court noted Christie could have signed that legislation if he had wished to abolish COAH; as he chose not to sign it, the court ruled he cannot surpass the Legislature to abolish the agency himself. The decision reinstates COAH’s authority over municipal fair share obligations.
“The court’s opinion shows a very straight-forward, full reversal of the governor’s power over COAH, and you can see that the court took and accepted practically every single argument from the Fair Share council’s brief,” said Jeffrey Kantowitz, attorney with the Law Offices of Abe Rappaport. Kantowitz was not involved in this case, but handles affordable housing cases. “The court didn’t deal with the practical nuts and bolts, but it put COAH back in business.”
In the interim, there is no timeline in place to re-establish COAH’s 13-member board, though it usually meets on the first Wednesday of each month, Walsh said. According to Walsh, there must be an analysis of the remaining board members and new appointments to maintain fair representation of state and local government and nonprofit organizations before the agency can move forward.
“What COAH has done well, historically, is used input from a diverse group of bipartisan leaders to make decisions, not just one person,” Walsh said. “If it was left up to the towns, too many of them would make decisions to keep out the people who need housing they can afford.”