Court Strikes Down COAH's Imposition of Regulations as "Guidelines"
By: Henry T. Chou, Esq.
In an opinion issued on February 24, 2011, the Appellate Division ruled that COAH's Regional Affordable Housing Development Program Guidelines ("Guidelines") are actually regulations that should have been adopted under the Administrative Procedure Act ("APA").
The court determined that the Guidelines, which permitted a municipality under the jurisdiction of a regional planning entity (Meadowlands Commission, Pinelands Commission, Fort Monmouth Economic Authority, Highlands Water Protection and Planning Council and Casino Redevelopment Investment Authority) to transfer up to 50 percent of its affordable-housing obligation to another municipality in the region, were not "non-binding" recommendations because they included "specific standards and conditions" and constituted a "statement of general applicability and continuing effect that implements or interprets law or policy."
Holding that the Guidelines are actually regulations that are subject to APA procedures for rule-making, the Court invalidated the Guidelines and remanded the matter to COAH to give the agency an opportunity to adopt appropriate regulations.