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January 28, 2013

RE: Affordable Housing, Governor’s Order to Abolish COAH; Municipal Housing Trust Fund

Dear Mayor:

Earlier today the New Jersey State Supreme Court heard arguments in A-127-11/A-14-12 In re Plan for the Abolition of the Council on Affordable Housing (070426).    This case involves the Governor’s Administrative Order 001-2011, which abolished the Council on Affordable Housing (COAH) and transferred its responsibilities to the Department of Community Affairs.   

The Governor’s Administrative Order was challenged by the Fair Share Housing Center and the Appellate Division invalidated the order in March 2012. In the March decision, the Appellate Court declared that the Governor exceeded his authority by abolishing a legislatively created, independent agency that was “in but not of” the Executive Branch.  According to the Court, only the legislature has that authority.

The League is not party to this case and took no position on whether the Governor has the authority to abolish COAH.   However, the Court also considered a motion to enforce litigants rights brought forth by Fair Share, in which the Appellate Division stayed the State’s attempts to seize the municipal affordable housing trust funds.   

If you recall, COAH’s Acting Executive Director’s, in a July 24, 2012 letter to municipalities, initiated efforts to collect municipal affordable housing trust funds that they deemed “uncommitted” for four years.   On August 10, the Court stayed the State’s efforts to seize the trust funds, ruling that the COAH Board would need to authorize any such action and that the July 24 letter was “ultra vires.”  Before the Supreme Court today, the League participated as amicus solely in support of the Appellate Division decision to stay the State efforts to collect these funds.  The League is not amicus curiae in and presented no argument on the underlying reorganization plan.  The League was represented by Jeffrey S. Surenian, Esq.  

For more on this, please see our Dear Mayor letters of August 10, 2012 and August 13, 2012.  The August 10 order, which remains in effect until and unless the Supreme Court says otherwise, is at: http://www.njslom.org/exec-orders/120810-Order-Granting-Motion-to-Enforce-Litigants-Rights.pdf

This is a separate case to the arguments heard by the Supreme Court in November in A-90/91/92/93/94 I/M/O Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing (067126) involving the numerous challenges and appeals to COAH’s 2008 regulations.    The key issues argued in November involved the constitutionality of “growth share” as a means to implement the Fair Housing Act.   The League is a party to that case, and now that Court has heard both cases, we expect a decision in both relatively soon.

In addition, the League is also a party in a third case before the Appellate Division involving the municipal housing trust funds and COAH’s failure to adopt the regulations required by PL 2008, c. 46.   We hope for oral argument in that case in the spring.

Questions can be directed to Mike Cerra at mcerra@njslom.com or at (609) 695-3481 x120.

Very truly yours,

 

William G. Dressel, Jr.
Executive Director

 

 

 

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