A New Jersey appeals court panel on Friday took the extraordinary step of ordering members of a state body — the Council on Affordable Housing — to meet at specific times to adopt new affordable housing rules in a manner it specified or face contempt charges and possible jail time.
The state quickly asked for a stay of the ruling, which requires COAH to first meet next Wednesday at 9:30 a.m., and the Appellate Division as quickly rejected that stay. COAH then asked the state Supreme Court to stay the ruling, but the state’s highest court did not act on that.
“Unprecedented” is how Kevin Walsh, the staff attorney with Fair Share Housing Center, described the very specific order: that COAH complete and post on its website by 11 a.m. on March 21 new rules to dictate how municipalities are to provide their “fair share” of housing for low- and moderate-income New Jerseyans as required by the Supreme Court’s Mount Laurel decisions. Five days later it is to approve the rules for publication in the New Jersey Register as required by law.
“But then again, so was the state’s ignoring of the court’s order,” said Walsh, who had urged the appeals panel to take action to ensure that new housing quotas, now 14 years overdue, be put in place.
“COAH’s and the Christie Administration’s failure to obey the law is startling. The court’s decision is an appropriate response,” Walsh said. “The governor’s bullying and ideological campaign to undo years of civil rights laws will fail because people need homes to live in and raise their families. The rule of law will prevail.”
Gov. Chris Christie has taken numerous steps to try to stop the COAH process, including by abolishing the agency through executive order, but the courts have rejected every attempt. Despite Supreme Court orders to reconstitute COAH and for the council to adopt new housing rules by February 26, COAH has not met since last May and it did not draft the quotas, instead filing an 11th hour request for more time.
The language of Friday’s ruling makes evident the frustration the three-judge panel had displayed during Wednesday’s hearing on Fair Share’s request to appoint a special master to oversee the COAH process or force municipalities to go to the courts to get approval for their affordable housing plans and be protected from lawsuits by builders.
“In our tripartite system of governance, once a court has decided a dispute and entered a final
judgment awarding relief to the aggrieved party, the executive branch is obligated to enforce the court’s decree,” wrote Appellate Division Presiding Judge Jose Fuentes for the panel. “COAH has failed to offer any plausible explanation for its failure to carry out this court’s order.”
He further wrote that COAH’s inaction “has cast serious doubts about this agency’s good faith in complying with this court’s order.”
The judges stopped short of fulfilling Fair Share’s specific request for a special master to take over for COAH or to throw the whole issue into the courts, saying it was not quite ready to take the “extraordinary action of declaring that this government agency is utterly incapable or unwilling to carry out its core statutory mission.” However, it left the door open for such actions in the future, stating that if its order for COAH to act does not produce housing rules, “we may have no other choice but to declare that event to be COAH’s third and final strike.”
Its very specific order states that if COAH fails to meet any of the requirements, which include submitting biweekly reports to the court and all parties of the case detailing its actions, “each member of the COAH Board will be ordered to personally appear before the court” on charges of contempt. They could face “monetary sanctions, civil detention, and such other sanctions the court may deem suitable to induce compliance with this order.”
Although COAH is supposed to have 12 members, only half of the seats are currently filled and two of those are members of the Christie administration, according to the state’s appointments website. In addition to the commissioner of the Department of Community Affairs and executive director of the Housing and Mortgage Finance Agency, Christie has the authority to appoint 10 members. Only four of those 10 seats are filled.
But several attorneys who argued before the appellate panel on Wednesday said six members is enough for a quorum, according to COAH’s rules.
Under the court-ordered timeframe, COAH has to adopt final rules on May 14.
That is sooner than the schedule the agency suggested in its legal brief to the Supreme Court last Wednesday when it asked for an extension of time to complete the rules. The Supreme Court last September gave COAH five months to calculate new housing obligations in a manner substantially similar to the way it had done so twice before, in the 1980s and 1990s. In its motion before the Supreme Court, COAH stated it would formally propose regulations by May 1 so they could be published in the June 2 issue of the New Jersey Register.
Walsh argued that allowing COAH to continue on its own schedule could delay new rules until 2020 and said that is unacceptable, given the state was to have had the so-called third round housing obligations in place in 2000. The lack of rules has led to at best uncertainty and has hampered efforts at building affordable units for those with low and moderate incomes.
Fair Share challenged the original third-round rules COAH had promulgated, which would have predicated a municipality’s need to provide affordable housing on its future growth patterns. The Appellate Division tossed out those rules as inconsistent with the Mount Laurel Doctrine in October 2010 and gave COAH five months to write new rules. The council appealed to the Supreme Court and apparently did not work on those quotas during its appeal, which it lost last September.