Published: March 9, 2012
By Bill Bowman

Gov. Chris Christie promised to appeal Thursday’s a ruling Thursday by a state appeals court that Christie had overstepped his authority last year when he abolished the state Council on Affordable Housing.

Christie dissolved the council in June 2011, after the state Legislature refused to adopt the suggestions he made in his conditional veto of a bill that would have done the same thing. COAH’s functions were to be transferred to the Department of Community Affairs.

“We are obviously disappointed with the court decision, which only perpetuates the nightmare New Jersey has endured for decades with the COAH bureaucracy,” Christie spokesman Michael Drewniak said in an email. “The administration will appeal the decision to the (state) Supreme Court and remains committed to Governor Christie's original pledge to abolish COAH, a pledge that has bi-partisan support and the support of local leaders across New Jersey.”

Christie made abolishing COAH a central plank of his gubernatorial campaign.

The council is a product of the Fair Housing Act, which was enacted in response to the so-called Mount Laurel decisions on towns’ obligations to provide opportunities for low- and moderate-income housing. It determined how much “affordable housing” there should be in each town.

Christie issued a reorganization plan in June 2010 — which did away with COAH — in response to state legislators withdrawing a bill that had passed, but which Christie conditionally vetoed. The bill would have abolished COAH but, in Christie’s stated view, did not give municipalities enough freedom to determine what their fair share of affordable housing should be.

The Cherry Hill-based Fair Share Housing Center challenged Christie’s move, arguing that the state’s Executive Reorganization Act did not allow him to unilaterally act on an independent agency created by the Legislature.

The Appellate Division of Superior Court, which heard arguments in February, agreed with the center.

“Strictly construing the Reorganization Act, we conclude that it does not grant the governor the power to abolish a legislatively created, representative, independent authority that is ‘in but not of’ the executive branch or any department in that branch of the government,” the three-judge appellate panel wrote. “Applying this rule here, we determine that the governor exceeded his authority under the Reorganization Act in abolishing COAH.”

“We conclude that the power to abolish COAH rests exclusively with the Legislature,” the court wrote. “While the framers of our Constitution intended to create a strong executive in the office of the governor (perhaps the strongest in the United States), they also recognized the need to insulate functions and agencies from executive control.”

Affordable housing advocates Thursday hailed the decision.

“It’s a great decision that upholds the balance of power in New Jersey government and keeps the governor from getting what he wants through channels that are inappropriate,” said Kevin Walsh, the housing center’s associate director. “If you want to change the law, you have to go through the Legislature.”

“It’s a huge victory for people who believe in good government, it’s a huge victory for housing advocates and it’s a huge victory for a state that wants its governor to abide by the law,” he said.

Walsh said he thought it was “unlikely” that the Supreme Court would accept the administration’s appeal, based on the strong language of the ruling.

Staci Berger of the Trenton-based Housing and Community Development Network of New Jersey said “restoring COAH to its original functionality is a step in the right direction.”

The network joined in the housing center’s appeal as a friend of the court.

“We thought the governor overstepped his authority and silenced the voices of the non-profits,” Berger said. “There remain serious concerns about the state’s housing policy and creating the homes and jobs that we need.”

Elizabeth Hall, executive director of Homeless Solutions in Morristown, said that although the affordable housing regulations remained in place they hadn’t been enforced by the state Department of Community Affairs.

“We are delighted,” Hall said. “Not necessarily because COAH is coming back, but because there has to be some agency overseeing the Mount Laurel affordable housing decision. … I hope the governor sees that COAH produces a lot of good affordable housing around the state.”

Sue Zellman, executive director of the Housing Partnership, located in Dover, said COAH personnel had continued to provide services for municipalities.

She added that she favors streamlining the regulations, which she said are cumbersome, and that the Community Affairs Department was working on the issue.

“Whether they (COAH officials) take up the bandwagon to streamline the regulations remain to be seen,” Zellman said.

State Sen. Raymond J. Lesniak, D-Union, said he would re-introduce the legislation from last year which Christie conditionally vetoed. Lesniak, prime sponsor of that bill, said in a statement that he is taking that action “so that we can abide by the Constitution and the court mandate to provide opportunities for low- and moderate-income housing throughout the State of New Jersey.”

The senator said the appeals court decision demonstrated that “ the governor cannot ignore the Constitution, nor can he ignore the Legislature, in his efforts to comply with the Mount Laurel decisions mandating affordable housing in New Jersey.”