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July 10, 2013

RE:  NJ Supreme Court Issues Decision in COAH Abolition Case

Dear Mayor:

Earlier today, the New Jersey Supreme Court issued its ruling "In re Plan for the Abolition of the Council on Affordable Housing."  In a 5-2 decision written by Chief Justice Stuart Rabner, the Court held that because the Council on Affordable Housing (COAH) is "in, but not of" the Department of Community Affairs (DCA) the Governor, under the Executive Reorganization Act of 1969, does not have the statutory authority to abolish the independent agency.

The Governor's Administrative Order 001-2011 abolished the Council on Affordable Housing (COAH) and transferred its responsibilities to the Department of Community Affairs (DCA).    The Legislature had 60 days to overturn the Order but did not act.  The Fair Share Housing Center Filed a legal action challenging the Order, and the Appellate Division invalidated the order in March 2012.

The League was not a direct party to this case and took no position on the issue.   The League took the position that regardless of whether it is under COAH or the DCA that municipalities must be provided a reasonable opportunity to comply with the Fair Housing Act.

While this decision has significant legal implications regarding the role of the Executive and Legislative branches, of immediate interest to municipalities is the impact, if any, of the State's continuing efforts to seize up to $165 million in municipal affordable housing trust funds. Today's decision has no immediate impact on the status of the trust funds, and municipalities continue to face an August 2 deadline to reply to COAH. (Please see our July 3 Dear Mayor letter for more information on the municipal affordable housing trust funds.)

Also, we note that the challenges to COAH's "third round" regulations, in which the League is a party and dates back to 2008, were argued before the State Supreme Court in November and we await a decision in that case.

Today's Court decision, however, underscores the ongoing need for the Legislature and Administration to work toward a reasonable legislative solution to the affordable housing issues.  It is time for the State to stop its efforts to seize the municipal affordable housing trust funds and, instead, partner with local leaders to develop and implement a statewide affordable housing policy that is rational, achievable and does not perpetuate a financial obligation to our taxpayers.

The Court's decision is online at:

For more on this, please contact Mike Cerra at or
609-695-3481 x120.

Very truly yours,

Janice S. Mironov, President,                                           William G. Dressel, Jr.
New Jersey State League of Municipalities,                   Executive Director
Mayor, East Windsor Township





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