Just 18 hours before the NJ Council on Affordable Housing was to hold a court-ordered meeting, which would have been its first in 10 months, the agency cancelled that meeting after the state Supreme Court issued a temporary stay of the order late yesterday afternoon.
The stay issued by the state's highest court’sput a hold on last Friday's extraordinary Appellate Division ruling that COAH meet by 9:30 a.m. today to begin working on rules for municipalities to provide their "fair share" of housing for low- and moderate-income residents as required under the state Supreme Court's so-called Mount Laurel rulings.
Soon after the Supreme Court issued its temporary stay, the state Department of Community Affairs posted athat it had cancelled the meeting. Spokesmen for DCA and the state Attorney General's office both declined comment. The meeting cancellation notice stated that the meeting “has been cancelled because the Supreme Court's Order stayed the Appellate Division's Order of March 7, 2014, which constituted the legal basis for holding the emergency meeting."
Prior to early 2011, COAH used to hold monthly meetings. The council is supposed to have 12 members, but currently only half the seats are filled.
COAH’s last meeting, held last May, was the first one in more than two years and was held primarily to allow the council to vote to approve the use of $162 million in municipal affordable housing trust funds to help balance the state budget that year, after the Appellate Division had ruled that the funds could not be taken without a full vote of the council.
Last Friday, an appeals panel again ruled that the council needed to act, this time to enact affordable housing quotas, which are 14 years overdue. The judges who heard the case last Wednesday expressed annoyance that COAH had failed to even hold a meeting after the Supreme Court ordered it to promulgate the rules by Feb. 26.
Yesterday's reprieve is temporary and does not necessarily mean the highest court disagrees with the strong stance taken by the three-judge appeals panel, but it represents acknowledgement that DCA Commissioner Richard Constable, who also is chairman of COAH, submitted a faulty certification when the council sought an extension of that Feb. 26 deadline. Late that afternoon, COAH asked the Supreme Court to give it until May 1 to write the rules.
“The Court has stayed the Appellate Division’s March 7 order so the state can correct deficiencies in its submission, but it is only an interim order," said Kevin Walsh, attorney with Fair Share Housing Center, which has been before the courts seeking to get COAH to meet and write the new rules.
"We expect the court will rule on the pending motions after the state corrects its errors,” Walsh added. “We are hopeful the court will uphold (Appellate) Judge (Jose) Fuentes’ order so the state is forced to end the delays that are harming lower-income families and others throughout New Jersey.”
Attorney General's Office spokesman Lee Moore said, "Of course we will comply with the court's request" to correct Constable's certification.
In his statement seeking the delay, Constable explained how far staff had gotten in drafting new rules, saying "substantial progress has been made in terms of the review and analysis of the most current data sources and the crafting of the various components of the proposed methodology incorporating those data sources" but "considerable work still remains to translate that work into a format that can be published in the New Jersey Register." Such publication is required before state agencies can adopt rules.
In seeking a stay of the appellate order, the state contended that the order "intrudes upon the Supreme Court's consideration of the agency's pending motion for an extension of time."
It also argued that complying with the order would bring irreparable harm because "the court has stepped into the shoes of the agency and is ordering the Council members to undertake discretionary action, under the threat of detention and personal liability, on a timetable inconsistent with the APA (Administrative Procedures Act) and inconsistent with the separation of powers."
In papers it filed with the court, Fair Share said the Appellate Division had the proper jurisdiction to issue its order and said COAH has no standing to claim irreparable harm given its own inaction.
"COAH, or more accurately the state officials that claim to act in its name, created the delay that it now uses as the basis for claiming irreparable harm," Fair Share argued.
The appellate order put COAH on a tight and specific schedule for rewriting the rules that should have been in place in 2000. Under that schedule, the council would adopt the quotas by May 14. Should COAH not meet the deadlines in its ruling, the appeals judges said, the council members would face contempt of court charges, as well as both civil penalties and possible jail time.
Gov. Chris Christie has been highly critical of the COAH process and has taken numerous steps to try to stop it, even trying to abolish the agency through executive order, but the courts have rejected every attempt.