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June 30, 2011

Re:      Governor issues Reorganization Plan to Abolish COAH
           Reorganization Plan No. 001-2011

Dear Mayor:

Yesterday, the Governor issued Reorganization Plan No. 001-2011 that would, if not rejected within 60 calendar days by the Legislature, abolish the Council on Affordable Housing (COAH) and transfer all responsibilities and duties to the Department of Community Affairs (DCA.) 
The plan is online at: http://nj.gov/governor/news/news/552011/pdf/001-2011.pdf

The abolishment of the agency and transfer of its duties and responsibilities to the DCA was contemplated during the year-long debate of S-1.    In all the iterations of the legislation, COAH was abolished and its responsibilities were transferred elsewhere.  In the final bill, which the League opposed for other reasons, the agency’s functions would have been transferred to the DCA.

The order states that the transfer will result in significant savings, for the following reasons:

“First, municipal development will be achieved through a single, predictable rule-making process conducted under the familiar and well-established provisions of the Administrative Procedures Act.  Second, local governments will be freed from the sometimes inconsistent directions provided by COAH and the Department, thereby reducing the legal and administrative costs resulting from regulatory uncertainty.  Third, the Department can effectively manage the State’s affordable housing obligations without the necessity of the multi-member Council and a separate full-time staff. “

The League will conduct a thorough review of this plan and its impact on municipalities.   The plan itself, however, does not alter what is commonly referred to as the “Mount Laurel” doctrine, that is the State Supreme Court’s ruling that municipalities may not engage in exclusionary zoning. Thus, municipalities will continue to have housing obligations and the reorganization changes the means by which the State implements the doctrine.

DCA administers a number of programs related to housing construction and finance, so the transfer of the responsibilities and duties of the agency to DCA appears logical and reasonable on face value. 

The major issue that requires careful analysis is whether municipalities who provide for affordable housing will continue to have legal protections against builder’s remedy litigation.   Under the existing framework, municipalities with COAH substantive certification achieve a higher level of legal protection, including the defense by the State, against any legal action.

It is clearly not the intention of the Administration to reduce these legal protections.   It is, however, of utmost importance that these protections remain in place for local governments.    The League’s review of this order will focus on this issue to assure municipalities and property taxpayers are protected from litigation.

The plan is effective in 60 days, unless both houses of the Legislature vote to disapprove the plan. 

On a related subject, Governor Christie issues four other reorganization plans yesterday, including:

Reorganization Plan No. 002-2011, which transfers the State Planning Commission and the Office of Smart Growth from the Department of Community Affairs to the Department of State.

Reorganization Plan No. 003-2011, which moves the Business Retention and Attraction Division of the New Jersey Economic Development Authority to the Department of State.

Reorganization Plan No. 004-2011, which relocates the Amistad Commission from the Department of State to the Department of Education.

Reorganization Plan No. 005-2011, which eliminates the New Jersey Commission on Higher Education and transfers the powers, functions and duties of the Commission to the Secretary of Higher Education.

Questions on this on the reorganization plan and this letter can be directed to Mike Cerra at mcerra@njlom.com or 609-695-3481 x120.

Very truly yours,

 

William G. Dressel, Jr.
Executive Director

 

 

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