Appellate Division Strikes Down Governor’s Abolition of COAH

View article (external website) On June 29, 2011, Governor Christie issued Reorganization Plan No. 001-2011 (“the Plan”) which abolished the New Jersey Council on Affordable Housing (“COAH”) with the stated purpose of “reducing expenditures and promoting economy and efficiency in the operations of the executive branch by eliminating a costly and burdensome regulatory agency.”  The Plan further recognized that the New Jersey Department of Community Affairs (“DCA”), already responsible for operating numerous affordable housing programs and providing assistance to municipalities, would provide significantly improved and streamlined functions by consolidating the powers and operations granted to COAH with those of the DCA. On March 8, 2012, the Appellate Division unanimously ruled that the Governor’s Plan to abolish COAH is a decision that remains exclusively with the New Jersey Legislature and that the Governor does not have the power to abolish a legislatively created, representative, independent authority that is “in but not of” the Executive Branch without “an explicit, legislative mandate to warrant the abolition.” While the Court’s decision means that COAH will be reinstated, the New Jersey Supreme Court still has still has not decided the challenge to the third round rules that is pending before it.   Developers must be mindful that there will continue to be uncertainty concerning affordable housing, at least until the Supreme Court decides the pending appeal. The moratorium on fees for non-residential development remains in effect until July 1, 2013. For more information contact William F. Harrison in the Commercial Real Estate, Redevelopment & Environmental Law Practice Group at wharrison@genovaburns.com or (973) 535-4430.