Fox Rothschild Successful in Challenge to Governor Christie’s Reorganization Plan Abolishing COAH in New Jersey

March 2012Articles In the Zone

In a published opinion on March 8, 2012, the New Jersey Appellate Division found that Governor Christie’s Reorganization Plan 01-2011 violates both the Reorganization Act of 1969 and constitutional principles of the separation of powers. Reorganization Plan 01-2011 abolished the Council on Affordable Housing and transferred all powers of the Council to the Commissioner of the Department of Community Affairs.

Fox Rothschild appeared as Amicus on behalf of three nonprofit agencies: The Housing and Community Development Network of New Jersey, the Corporation for Supportive Housing and the Mercer Alliance to End Homelessness. These three nonprofit agencies successfully argued that in the Fair Housing Act, N.J.S.A. 52:27D-301 et seq., the Legislature is committed to provide a voice for affordable housing advocates on COAH. This legislative commitment could not be abolished through the Reorganization Act of 1969. By eliminating the Council on Affordable Housing, Reorganization Plan 01-2011 divested affordable housing advocates of any voice in the creation of affordable housing policy or adjudication of affordable housing disputes.

The Appellate Division construed the Reorganization Act of 1969 to exclude the abolition of independent agencies “in but not of” the executive branch. The court found that such an expansive reading of the Reorganization Act violates principles of separation of powers underlying the creation of quasi-independent agencies by the Legislature.

The court distinguished the simple relocation of an agency from one department in the executive branch to another while keeping the agency’s powers, duties and composition intact with the entire abolishment of the agency and referral of the underlying legislative powers to a different department in the executive branch. In the first instance, the reorganization of a quasi-independent “in but not of” agency would be considered within the powers vested to the governor under the Reorganization Act, as such a relocation does not and would not impair or impede the function of the agency as created and vested through the legislature. However, Reorganization Plan 01-2011 abolished the council and transferred all powers directly to the Commissioner of the DCA.

On behalf of the affordable housing advocate groups, the court endorsed the argument that the legislature crafted the council to be a balanced group of voices to determine affordable housing policy, and that affordable housing advocacy groups were part of the composition of the council and their voices could not be silenced through use of the Reorganization Act.

Governor Christie has already announced his intention to appeal this decision to the New Jersey State Supreme Court. In the interim, Reorganization Plan 01-2011 has been invalidated, and as such, COAH has been “resurrected.” Questions remain as to the composition of the council, as many members terms have expired, and whether Governor Christie will reappoint the membership of the council. We will continue to update our readers on the ongoing saga of affordable housing policy in New Jersey.

For more information, please contact Henry L. Kent-Smith.