COAH No More? Guess Again!

New Jersey Supreme Court, in the well known Mount Laurel decisions of 1975 and 1983, ruled that each municipality must provide a realistic opportunity to provide its fair share of affordable housing. As a result of the Mount Laurel II decision, the Court put each municipality’s “feet to the fire” by mandating the legislature to create law which would provide a mechanism to implement the Court’s holding and to ensure the development of affordable housing throughout the State.
This legislation entitled the Fair Housing Act, enacted in 1985, created the Council on Affordable Housing or “COAH”. COAH was given “…primary jurisdiction for the administration of housing obligations in accordance with sound regional planning considerations in this State.” From this point on, the 12 member council was created. In addition to the Council, an administrative staff of up to 200 was created. The COAH Council and staff soon became infamous for being overly bureaucratic and enforcing outdated rules.

After a 25 plus year life, COAH may be at its end. By way of Governor Christie’s Reorganization Plan 001-2011, effective August 29, 2011, COAH was abolished and jurisdiction was ceded to the Department of Community Affairs, an existing entity.

The Reorganization Plan was designed to:

Streamline the development of new housing projects.
Lower administrative costs associated with the regulatory process.
Provide procedures to create predictability and stability.
Stop unreasonable delay and cost while promoting availability of affordable housing throughout the State.
Recent Court Action

However, the Appellate Division, on March 8, 2012, found that Governor Christie overstepped his authority and effectively reinstituted COAH. The Governor has vowed an appeal of the ruling to the NJ Supreme Court. It is too early (especially now that the Appellate Division has ruled) to tell whether the goals set forth in the Reorganization Plan will ever become reality. Affordable housing remains a hot topic and a heavily litigated one at that. The existing COAH “third round” rules to determine a municipality’s fair share were squarely ruled invalid by the Appellate Division in October 2010. Also, the new Reorganization Plan provided “interim rules” for DCA to follow, but those rules were stayed by the Appellate Division this past October. It would appear that the clarity and efficiency desired through the Reorganization Plan may not yet be achieved. What is clear is that the mandate of the Mount Laurel doctrine remains. The big question is how will it be implemented? The answer may not arrive any time soon, which could likely lead to a rash of “builder’s remedy” suits whereby developers seek court assistance to obtain enhanced zoning plus an affordable housing component. On paper, the Reorganization Plan makes sense. The question of implementation could continue to remain unanswered for quite some time. We expect another landmark NJ Supreme Court Case which will not only revisit the constitutional mandate to provide affordable housing, but also a comprehensive discussion on the separation of powers.

James J. Delia is a Partner at WJ&L who Practices in the Land Use and Real Estate areas.

James J. Delia is a Partner at Wells, Jaworski & Liebman who practices in the Land Use and Real Estate areas.

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