NJ Appellate Division Invalidates Abolition of COAH

by: Katharine A. Muscalino


The Appellate Division issued an opinion on March 8, 2012 invalidating Governor Christie’s Reorganization Plan 001-2011.  This Reorganization Plan had abolished the Council On Affordable Housing and delegated its responsibilities to the Department of Community Affairs.  The Appellate Division concluded that the Governor does not have the statutory authority to abolish agencies that are “in, but not of” a department of the Executive Branch.  As the Fair Housing Act, the statute that originally authorized the creation of COAH, specified that COAH shall be “in, but not of” the Department of Community Affairs, the Appellate Division has concluded that Governor Christie does not have the authority to abolish it.  Instead, only the Legislative Branch may abolish the entity.

As the Legislature has previously adopted legislation to do exactly that, this may be the near future of affordable housing.  Governor Christie had vetoed the Legislature’s original bill, as he disagreed with changes to the bill that had been introduced by the Assembly.

With respect to ongoing efforts to create affordable housing in New Jersey, the Appellate Division’s decision is unlikely to improve the delay and inactivity currently plaguing the state.  Even though COAH is now presumably reinstated as an entity, its Third Round Rules remain subject to a pending appeal before the Supreme Court and COAH has indicated it will not take action to enforce its rules until a determination has been made as to their validity.

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