Council on Affordable Housing earns reprieve as Supreme Court upholds appellate ruling protecting the state agency
Published June 12, 2012

By Joe Tyrrell

Gov. Chris Christie still cannot make the state Council on Affordable Housing disappear, now that the New Jersey Supreme Court refused to stay an appellate court ruling that barred his action.

Monday's ruling is not the last word on the case, since the high court only rejected the stay, not the governor's appeal. But it reaffirms that, at least for now, the council has exclusive jurisdiction over affordable housing regulations in the executive branch.

In March, the appellate court found that Christie "exceeded his authority" under the state constitution by attempting to eliminate an agency created by the Legislature.

Three months later, though, the council's former link on the state website still redirects to a page announcing "the Governor transferred all functions, powers, duties, and personnel of COAH to the Commissioner of DCA," the state Department of Community Affairs. Aside from documents on old decisions and a passing mention under its Housing Resources Center, DCA appears to have removed any other information on the council except for a press release proclaiming the administration "eliminated the nightmare" of COAH.

The Supreme Court's decision to keep the council in business for now won applause from municipal, housing, and environmental groups, who said a lull in the court fight might provide an opportunity to revive a workable housing policy for the state.

"We are heartened that, today, the Supreme Court affirmed that the state must continue to operate the agency that works with towns" to meet housing needs, said Staci Berger of the Housing and Community Development Network of New Jersey in a statement.

Although the Supreme Court simply let the appellate ruling stand, the Sierra Club saw some precedent for outcomes in environmental disputes. In particular, state Director Jeff Tittel suggested it could apply to Christie's decision to pull New Jersey out of the Regional Greenhouse Gas Initiative, a cap-and-trade program that cuts air pollution.

Municipalities hope for some immediate leverage in their battle to prevent the DCA from raiding affordable housing trust funds, built up through developers' payments, to plug holes in Christie's proposed budget. Municipal officials cite COAH's uncertain status and its failure to issue spending regulations for the trusts as reasons why they have accumulated to the point at which they are attractive as one-shot budget infusions.

The legal trend, as well as deadlines for a new budget and spending the accumulated funds could provide impetus for the administration to compromise with the towns and their allies in the Legislature, according to William Dressel, executive director of the state League of Municipalities.

With COAH still in business, "they're going to have to do something," he said. "They're running out of time and they're running out of options" before deadlines for hammering out the budget, determining the fate of the trust funds, and wrapping up the legislative session. In its current form, "COAH has members appointed as elected officials who are no longer in office," Dressel said.

The league favors pending legislation by Assemblyman Jerry Green (D-Union) to allow another two years for COAH to issue the rules and for municipalities to spend the trust funds. That period would give the administration time "to develop the rules and regulations" in a workable form, he said, because "the towns have been burned" by the process in the past.

Following the appellate ruling, the governor's office promised to fight on, but after the denial of the stay did not respond to a request for comment.

If cooler heads do not prevail, "it's going to be a very hot June," Dressel said. "The last couple of weeks of the month may be very, very dicey under the golden dome in Trenton."