Appellate Division Stays Governor's Freeze of COAH Regulations: Ruling Does Not Impact Task Force Review of Fair Housing Act, COAH Rules

February 9, 2010

By Philip J. Morin III

On Friday, February 19, the Appellate Division in In Re Executive Order on the Council on Affordable Housing, Docket No. A-2693-09T3, granted in part the Fair Share Housing Centers (FSHC) motion for emergent relief, ordering that paragraph 5 of Governor Chris Christies Executive Order No. 12 (E.O. 12), which essentially froze the implementation of the Council on Affordable Housings (COAH) Third Round regulations for 90 days, is stayed pending the outcome of an accelerated appeal. All other preliminary relief sought by FSHC was denied.

As a result of the courts order, COAH will continue to implement the Third Round regulations and otherwise continue day to day operations such as reviewing of petitions for substantive certification, considering waivers of scarce resource restraints on development in the Highlands, participating in mediation proceedings and ruling on pending motions. The order does not impact the creation of the Housing Opportunity Task Force under E.O. 12 or its charge to critically review the COAH regulations, the Fair Housing Act and State Planning Act.

BACKGROUND ON E.O. 12 On February 9, 2010, Governor Chris Christie issued E.O. 12, which acknowledges the constitutional obligation of municipalities to provide affordable housing but which is designed to address the burdensome procedures and regulations developed by COAH which the Governor called excessively complex and unworkable and which result in delays, inefficiencies, litigation and unreasonable costs to municipalities and the private sector.

To address these concerns, E.O. 12 creates a five-member Housing Opportunity Task Force to review the COAH regulations, the Fair Housing Act and the State Planning Act and provide recommendations to the Governor on enumerated issues, including: the determination of a municipalitys affordable housing obligation; whether the regions created by COAH are still appropriate; the inclusion of workforce housing as affordable housing; the use of conflicting data on population and employment growth; the rehabilitation of deteriorating housing in the urban centers; the means of developing efficiencies and savings in the development process; ways to encourage rehabilitation as well as new development in meeting the need for affordable housing; and the appropriateness of methodologies that continue to include prior round need or include retroactive growth as part of a growth share approach.

E.O. 12 also contains a provision which required that COAH refrain for the next 90 days from taking action to process applications for substantive certification or take any other action to implement the Third Round regulations absent good cause shown and a determination by the Acting Commissioner that action is required to prevent the loss of affordable housing opportunities.

Paragraph 5 reads as follows:

For the next 90 days, COAH shall refrain from taking any further action to process applications for substantive certification or to take any other actions to implement the Third Round regulations. The provisions of this Paragraph shall not apply to any action if the applicant, for good cause shown, requests action on a particular item and the Acting Commissioner determines that such action is required within the 90 day period to prevent the loss of affordable housing opportunities.

Following the issuance of E.O. 12, FSHC, a non-profit affordable housing advocacy group, challenged the constitutionality of E.O. 12 through an emergent appeal to the Appellate Division. As noted above, the Appellate Division issued a preliminary order which stayed implementation of paragraph 5 of the Governors Executive Order. No other aspects of E.O. 12, such as the Governors authority to create the task force to review the provision of affordable housing in the state, are affected. Furthermore, the FSHCs requests for summary disposition and appointment of a special master to implement the COAH regulations were denied. The court ordered an accelerated appeal and briefing schedule. The FSHCs brief is due on February 26 and the States brief is due on March 4. Any reply brief must be filed no later than March 10. Oral argument is scheduled for 12:15pm on March 16.

While the Christie Administrations aggressive approach to reforming the Byzantine methodology to provide affordable housing which various administrations and legislative bodies have foisted upon municipalities and private developers continues in full force, the short-term impact of the Appellate Divisions decision is clear municipalities and developers will continue to have to comply with the myriad of rules and requirements set forth in the COAH regulations despite the fact that COAHs days, at least as we know it, are numbered. The Housing Opportunity Task Force will still proceed to address the tasks assigned by Governor Christie and there is little doubt that major reform is ahead. If the long-term goal of reforming the methodology of providing affordable housing in New Jersey and perhaps the definition of what constitutes affordable housing is realized, this initial skirmish will be but a minor setback in a larger campaign of redefining the approach to satisfying the constitutional obligation articulated in the Mt. Laurel decisions.

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