September 16, 2011
Re: Reorganization Plan No. 001-2011, Abolishes COAH, Transfers Responsibilities to DCA
In our June 30 Dear Mayor letter, we advised you of Governor Christie’s Reorganization Plan No. 001-2011, which abolished the Council on Affordable Housing (COAH), and transferred all responsibilities and duties to the Department of Community Affairs (DCA.)
The plan is available online at: http://nj.gov/governor/news/news/552011/pdf/001-2011.pdf
There was no attempt at a legislative override of the plan, so it went into effect on August 29. The Fair Share Housing Center has sought a judicial stay of the plan in the Courts. As of this date, no decision on that request has been made, so we are operating under the assumption that the reorganization plan will proceed.
The plan itself, however, does not alter what is commonly referred to as the “Mount Laurel” doctrine. The State Supreme Court’s ruling that municipalities may not engage in exclusionary zoning, and have an affirmative obligation to provide a fair share of affordable housing, remains in effect. Nor does the plan make any amendments to the Fair Housing Act, which originally created COAH, or the adopted regulations. Also, the status of a submitted fair share plan has not changed. Thus, municipalities will continue to have affordable housing obligations. The reorganization merely changes the agency that will implement the doctrine.
Further guidance is now available online at: http://www.nj.gov/dca/services/lps/hss/index.html
We anticipate further guidance from the Department of Community Affairs as to how municipalities under COAH’s jurisdiction should proceed in order to maintain the legal protections provided in the Fair Housing Act. The Department of Community Affairs also issued a press release yesterday on the reorganization: http://www.nj.gov/dca/news/news/2011/approved/20110915a.html
The League’s challenge of the 3rd round regulations is pending before the State Supreme Court. Our best guess is that oral argument will be held sometime during the fall. A final decision before the end of the year appears increasingly unlikely. It is important to note that the key issue before the Court is not the Mount Laurel doctrine, but rather the constitutionality of “growth share,” which is one possible means to implement the doctrine. The League, and individual municipalities, are asking the Court to uphold the concept of growth share, even though COAH’s attempt to implement growth share was invalid. In other words, even though COAH’s attempt to adopt growth share in its 2008 regulations was clearly flawed, it is still possible to develop a valid growth share approach.
For the time being, DCA’s actions in administering the Fair Housing Act are key to not only providing affordable housing, but also to the legal protections for municipalities and taxpayers. Questions on this on the reorganization plan and this letter can be directed to Mike Cerra at firstname.lastname@example.org or 609-695-3481 x120.
Very truly yours,
William G. Dressel, Jr.