July 1, 2011
Governor Issues Plan to Abolish COAH
Written By: Thomas F. Carroll, III and Stephen M. Eisdorfer
On June 29, 2011, Governor Chris Christie issued a “Reorganization Plan” designed to abolish the Council on Affordable Housing (“COAH”). Unless both houses of the New Jersey Legislature pass a concurrent resolution within 60 days disapproving of the Reorganization Plan (“RP”), the RP will become effective and COAH will be formally abolished.
The Legislature typically recesses for the summer, although it is possible that they will meet in summer sessions this year. Nevertheless, the passage of a concurrent resolution disapproving of the RP is considered doubtful, and it is likely that COAH will be formally abolished on or about August 28, 2011. COAH has not been meeting with any regularity or processing municipal lower income housing plans since October 2010, at which time the Appellate Division invalidated numerous COAH regulations, and it is not clear whether they will meet again.
The RP further states that the Department of Community Affairs (“DCA”) will assume the duties and obligations of COAH. However, a press release from the Governor’s Office notes that the Reorganization Plan is being instituted because the Governor has “always believed that municipalities should be able to make their own decisions on affordable housing without being micromanaged and second guessed from Trenton.” The RP itself hints that the DCA will be adopting new regulations sometime in the future. In any event, it is difficult to be hopeful of effective DCA enforcement of the constitutional Mount Laurel obligation when it is accompanied by a statement indicating that “municipalities should be able to make their own decisions on affordable housing.”
Impact on the Current Supreme Court Cases
One question is the likely effect of the RP on the New Jersey Supreme Court proceedings in which the Court is considering whether the Appellate Division’s decision invalidating COAH regulations should be affirmed. A related question is the remedy the Supreme Court might employ to address compliance with the Mount Laurel doctrine given the invalidation of the COAH rules and the slated abolition of COAH. It is difficult to imagine, after 12 years of COAH delay in enforcing the Mount Laurel doctrine, and now the RP, that the Court will do anything but appoint a master to oversee compliance with the constitutional obligation. Time will tell.
Builder’s Remedy Suits Now More Viable?
Another question posed by the RP is whether it is now easier to sustain builder’s remedy suits filed against towns that have previously filed fair share plans with COAH. When COAH was a functioning agency, it was routine to transfer such suits to COAH for handling. However, at least one court has recently declined to transfer such a suit to COAH, even when COAH was ostensibly a functioning agency, since COAH did not provide an adequate administrative remedy. Now that COAH is being formally abolished, it would seem that the viability of builder’s remedy suits is enhanced, even as to towns that have filed fair share plans with COAH.
An Impetus to Legislation?
Lastly, observers of the political scene wonder whether the RP will increase the pressure on the Legislature and Governor to agree upon legislation that implements the Mount Laurel doctrine in a constitutional manner. Such legislation would be the preferred solution to the endless litigation over satisfaction of the Mount Laurel doctrine if the legislation does not seek to impose uncompensated burdens on those who are asked to provide lower income housing, and it is otherwise constitutional.
Our Land Use attorneys at Hill Wallack LLP would be glad to answer any remaining questions you may have concerning the RP or related matters.
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Hill Wallack LLP has one of the premier land use practices in New Jersey. Our Land Use Team provides comprehensive solutions to issues arising in every area of law affecting the land development permitting process at the local, county, state and federal levels.
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For more information, contact one of the attorneys who work in this area: Thomas F. Carroll, III, Esq., Stephen M. Eisdorfer, Esq., Kenneth E. Meiser, Esq., Henry T. Chou, Esq., or Michael J. Lipari, Esq.
This article provides information of general interest and is not intended, and should not be used, as a substitute for consultation with legal counsel. Any questions regarding the specific issues raised in this article should be directed to the authors or to your contacts at Hill Wallack LLP.