FAIR SHARE HOUSING CENTER 510 Park Boulevard Cherry Hill, New Jersey 08002 P: 856-665-5444 F: 856-663-8182 Attorneys for Appellant Fair Share Housing Center By: Kevin D. Walsh, Esq. Adam M. Gordon, Esq.
SUPERIOR COURT APPELLATE DIVISION In re Executive Order on the Council on Affordable Housing
Docket No.:___________ CIVIL ACTION On Appeal from the Office of the Governor Brief and Appendix in Support of Appellant Fair Share Housing Center’s Motion to Enforce Litigant’s Rights, to Stay Executive Order 12, for Summary Disposition, and for the Appointment of a Special Master
Brief Table of Contents I.
Introduction ........................................
1
II.
Facts ..............................................
4
A. 1999-2006: COAH Delays Adopting Third Round Regulation for Five Years, Then Fails to Enforce the Regulation it Adopts ........
4
B. 2007-2008: Appellate Division Decision and Further Delay by COAH ........................
6
C. Submission of plans by December 31, 2008 and COAH action since that deadline ..............
8
D. Executive Order 12 ...............................
9
III. Procedural History ..................................
12
IV.
Legal Argument ......................................
12
A. Governor Christie did not have the authority under our state constitution or the Fair Housing Act to issue Executive Order 12 .........................................
12
B. Executive Order 12 violates the Administrative Procedure Act and guarantee to due process of law ..................
19
C. Executive Order 12 violates the Mount Laurel doctrine and the Appellate Division’s repeated past warnings against further delay in the Third Round process ....................................
23
D. The Appellate Division should enforce litigant’s rights
30
E. The Court should at minimum stay Executive Order 12 immediately ...................................
31
F. Summary disposition should be granted ............
34
G. The Court should appoint a Special Master to oversee COAH’s administration of the Third Round regulations ......................................
35
Conclusion ...........................................
37
V.
i
Table of Authorities Abbott v. Burke, 163 N.J. 95 (2000) ....................30 American Employers’ Ins. Co. v. Commissioner of Ins., 236 N.J. Super. 428, 432 (App. Div. 1989) ........20 American Historical Ass’n v. National Archives and Records Admin., 516 F.Supp.2d 90, 109 (D.D.C. 2007) ..........................................14 Bullet Hole v. Dunbar, 335 N.J. Super. 562, 575 (App. Div. 2000) .......................................12,14,19 Chamber of Commerce of the United States v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) ...................14 Crema v. NJ Dep’t of Envtl. Prot., 94 N.J. 286, 301 (1983) .............................................19,21 Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982) ..........31-33 GE Capital Mortgage Servs., Inc. v. N.J. Title Ins., 333 N.J. Super. 1, 5 ( App. Div. 2000) ...........34 George Harms Const. v. New Jersey Turnpike Auth., 137 N.J. 8, 42-45 (1994) ........................15 Hills Development Co. v. Tp. Of Bernards, 103 N.J. 1, 22 (1986) ......................................4,18,24,25 4,6,25,29, In re Adoption of N.J.A.C. 5:94 and 5:95, 390 N.J. Super. 1 (App. Div. 2007) .........................30,36 In re Failure to Adopt Third Round Fair Share Methodology, 180 N.J. 148 (2004) .......................5,25 In re Howell, 371 N.J. Super. 167, 184-185 (App. Div. 2004) .......................................27,29 In Re Six Month Extension, 372 N.J. Super. 61, 95-96 (App. Div. 2004) .................................5,25,32,36 Jersey City Chap. Of Prop. Owner’s Protective Ass’n v.Jersey City, 55 N.J. 86, 95 (1969) .............18 Loigman v. Committee of Middletown, 308 N.J. Super. 500, 503 (App. Div. 1998) .......................30 Lower Main Street Assocs. V. New Jersey Hous. & Mortgage Fin. Agency, 114 N.J. 226, 235 (1989) .........21-22 McKenzie v. Corzine, 396 N.J. Super. 405, 414 (App. Div. 2007) .......................................32-33 Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 313 (1984) ...........................19-20
ii
New Jersey Animal Rights Alliance v. New Jersey Dept. of Enviro. Prot., 396 N.J. Super. 358, 372 (App.Div. 2007) ....................................21 New Jersey Exec. Com’n on Ethical Standards v. Byrne, 238 N.J.Super. 84m 90 (App. Div. 1990) ..........16 Southern Burlington County v. Tp. Of Mount Laurel, 92 N.J. 158 (1983) .............................4,24,35 State v. Leary, 232 N.J. Super. 358, 368 (Law Div. 1989) .............................................21 Twiss v. State, Dept. of Treasury, Office of Financial Management, 239 N.J.Super., 342, 352 (App. Div. 1990), rev’d on other grounds, 124 N.J. 461 (1991) ........................................15 Waste Management of New Jersey v. Union County Util. Auth., 399 N.J. Super. 508, 520-21 (App. Div. 2008) .............................................31, 32 Williamson v. Treasurer, 357 N.J.Super. 253, 272 (App. Div. 2003) ...................................15 Worthington v. Fauver, 180 N.J. Super. 368, 375 (App. Div. 1981) .......................................13,14,17 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) .............................................14
N.J. Const. Art. III, ¶1 ...............................13 N.J. Const. Art. V, ¶11 ................................13
N.J.S.A. 52:14B-1 to-25 ................................1,21 N.J.S.A. 52:14B-4(d) ...................................20,23 N.J.S.A. 52:14B-4(e) ...................................19 N.J.S.A. 52:14B-4.9 ....................................20 N.J.S.A. 52:27D-301 to -329 ............................1,4 N.J.S.A. 52:27D-305 ....................................4,16,17 N.J.S.A. 52:27D-305(e) .................................16 N.J.S.A. 52:27D-307(b) .................................4,16 N.J.S.A. 52:27D-307(b),-315 ............................16 N.J.S.A. 52:27D-314 ....................................17 N.J.S.A. 52:27D-315 ....................................16,17
iii
N.J.A.C. 5:96-6.2, -7.2 ................................18
36 N.J.R. 5748(a) ......................................5 36 N.J.R. 5895(a) ......................................5 40 N.J.R. 237 (a), 240 (Jan. 22, 2008) .................7,25 40 N.J.R. 3161(a) ......................................7 40 N.J.R. 3374(a) ......................................7 40 N.J.R. 5960(a) ......................................7,25 40 N.J.R. 5963 .........................................7
R. 1:10-3 ..............................................30 R. 2:8-3 ...............................................34 R. 4:41-1 ..............................................36 R. 4:59-2(a) ...........................................36
Pressler, Current N.J. Rules, Comment R. 2:8-3 (2009) .................................................34 Jack M. Sabatino, Assertion and Self-Restraint: The Exercise of Governmental Powers Distributed Under the 1947 New Jersey Constitution, 29 Rutgers L.J. 799, 810 (1998) ...........................14 Appendix Table of Contents Certification of Adam M. Gordon in Support of Appellant’s Motion to Enforce Litigant’s Rights, to Stay Executive Order 12, for Summary Disposition, and for the Appointment of a Special Master. Exhibit A - Order dated June 21, 2007 in In re Adoption of N.J.A.C. 5:94 by the Council on Affordable Housing, Docket No. A1960-04T3 Exhibit B - Order dated January 8, 2008 in In re Adoption of N.J.A.C. 5:94 by the Council on Affordable Housing, Docket No. A1960-04T3 Exhibit C - August 13, 2008 decision issued by the Council on Affordable Housing
iv
Exhibit D - October 6, 2008 Order issued in In re Adoption of Third Round Regulations, N.J.A.C. 5:96 and 5:97, by the Council on Affordable Housing, Lead Docket Number A-5382-07T3 Exhibit E – Summary of Fair Share Plans filed in December 2008 with the Council on Affordable Housing Exhibit F - February 2, 2010 column by Paul Mulshine of the Star Ledger titled “Gut COAH? Gov. Chris Christie now says whoa!” Exhibit G - Executive Order 12 (February 9, 2010) Exhibit H - February 10, 2010 article by Maya Rao of the Philadelphia Inquirer titled “Christie freezes affordable housing rules” Exhibit I - February 10, 2010 Associated Press story by Beth DeFalco titled “Governor puts freeze on COAH activities” Exhibit J - February 11, 2010 column by Paul Mulshine of the Star Ledger titled “God save us from the moralizing lawyers” Exhibit K - February 10, 2010 article from The Express Times titled “Former N.J. Sen. Marcia Karrow to lead task force charged with examining affordable housing regulations.” Exhibit L - February 9, 2010 letter from George Cohen, D.A.G. on behalf of the Council on Affordable Housing to Judges Skillman, Fuentes, and Simonelli regarding Executive Order 12 Exhibit M - February 9, 2010 and February 16, 2010 agendas of the Council on Affordable Housing
v
I.
Introduction This matter concerns an unprecedented attempt by Governor
Chris Christie to expand the power of the Governor in contravention of explicit Legislative policy.
Governor Christie, in issuing an
executive order shutting down the Council on Affordable Housing (COAH) and replacing adopted legislation and regulations with a new process for reviewing affordable housing development, has violated New Jersey’s separation of powers requirement.
Executive Order 12,
with the stroke of a pen, supplants the Fair Housing Act of 1985 (FHA), N.J.S.A. 52:27D-301 to -329, and implementing regulations duly promulgated under the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -25.
This sweeping assertion of executive
power has no basis in New Jersey law and sets a dangerous precedent for the entire operation of state government. Since 1985, the Legislature has substantially occupied the field of interpreting our state’s constitutional obligations regarding exclusionary zoning.
The Supreme Court and Appellate
Division have repeatedly acted to enforce the FHA, and the Legislature has made comprehensive amendments to it as recently as 2008.
The Governor under the Act has just one role:
to appoint
members of COAH, subject to the advice and consent of the Senate, under a statutory scheme requiring a carefully balanced bipartisan panel representing a wide range of affected interests. Executive Order 12 goes far beyond this limited, statutorilydefined role for the Governor.
The justification for doing so 1
rests not in emergency powers or the powers of the executive office over departments, but rather on the implicit claim that Governor Christie has the unilateral authority to override any statute or regulations he dislikes and to shut down independent state agencies.
Through the order, the Governor claims the authority to
create new regulatory processes without reference to the APA or due process, granting the Acting Commissioner of Community Affairs extraordinary power to decide whether to allow any affordable housing developments to move forward, with no standards for doing so.
The Governor has elucidated his purposes in all of these
extraordinary actions by stating:
“I do not agree with the Mount
Laurel decisions and never have.” The Executive Order also comes in the context of a recent, decade-long delay in enforcement of the FHA, a delay that the courts have ordered must end on at least five occasions.
In 2004,
2007, and 2008, the Supreme Court and Appellate Division set and enforced specific deadlines for COAH to adopt constitutional Third Round rules.
As a result, over the last year, for the first time
since 1999 COAH has processed over 250 municipal fair share plans; granted substantive certification to nearly a quarter of those plans; and begun mediations for impacted developers and representatives of lower-income households whose statutory rights to such a process have been impeded for a decade.
Although COAH’s
regulations in many ways remain flawed, they do provide the framework for the constitutional implementation of the Mount Laurel 2
doctrine and have been resulting in over 42,000 affordable homes moving forward.
The Executive Order brings this progress to a
grinding halt for 90 days.
It also strongly suggests a further
indefinite delay in setting up a task force charged with a radical rethinking of the state’s housing policies with a mandate facially inconsistent with current statutes, adopted regulations, and prior court orders, which will likely lead to yet another cycle of new regulations, new plans, and court challenges.
The Governor does
not have the power to choose to ignore five court orders and simply start from scratch as if time were not of the essence. In response to this extraordinary assertion of executive power, we seek four forms of relief: (a) enforcement of litigant’s rights obtained through the Third Round litigation for the current COAH process to continue; (b) a stay of the Executive Order; (c) invalidation of the order based on summary disposition of our appeal; and (d) appointment of a special master to oversee COAH’s operations and ensure that there are not attempts to surreptitiously accomplish what the Executive Order aims illegally to do.
These remedies are justified by the unique threat to our
state’s constitutional system posed by Executive Order 12.
3
II.
Facts A.
1999-2006: COAH Delays Adopting Third Round Regulations for Five Years, Then Fails to Enforce the Regulations It Adopts
The Legislature created COAH in the Fair Housing Act (FHA) of 1985, N.J.S.A. 52:27D-301 to -329, as a statewide alternative for municipalities to voluntarily comply with the Mount Laurel doctrine, Southern Burlington County v. Tp. Of Mount Laurel, 92 N.J. 158 (1983)(Mount Laurel II).
The Supreme Court upheld the
FHA, including COAH, in Hills Dev. Co. v. Township of Bernards, 103 N.J. 1, 64 (1986).
Decisions made by COAH, which is an independent
agency that is “in, but not of, the Department of Community Affairs,” N.J.S.A. 52:27D-305, are not subject to a gubernatorial veto. The FHA requires COAH from “time to time” to calculate the present and prospective need for affordable housing at the State and regional levels.
N.J.S.A. 52:27D-307(b).
COAH’s Third Round
of need calculation and allocation originally was due to begin when the Second Round ended in 1999.
In re Adoption of N.J.A.C. 5:94
and 5:95, 390 N.J. Super. 1 (App. Div. 2007).
When the Second
Round concluded, however, COAH had not yet proposed the Third Round regulations.
COAH delayed Third Round regulations for five years –
nearly as long as the entire time period of each of the prior two rounds.
During this period, COAH instead granted municipalities
“extended substantive certification” which allowed them to be considered compliant with the Mount Laurel doctrine — and gain 4
attendant benefits such as protections from litigation — without taking any actions to meet the Third Round housing need. In 2004, the Appellate Division invalidated COAH’s continued protection of municipalities in the absence of regulations and found COAH’s delays during this period to be “dramatic and inexplicable.”
In Re Six Month Extension, 372 N.J. Super. 61, 95-
96 (App. Div. 2004).
The Court found that “for nearly the
equivalent of one full round of Mount Laurel administration, no municipality has been held to updated standards reflecting its present and prospective fair share of the housing needs of its region.
The public policies underlying the FHA and the Mount
Laurel cases have, quite obviously, been frustrated by inaction.” Ibid.
The Appellate Division also implied that municipalities
would be exposed to builders remedy litigation if COAH did not adopt regulations in a timely manner.
Id. at 151.
The Supreme
Court also gave COAH a deadline for adopting Third Round regulations that COAH missed.
See In re Failure to Adopt Third
Round Fair Share Methodology, 180 N.J. 148 (2004). COAH ultimately adopted regulations that went into effect in December 2004.
36 N.J.R. 5748(a); 36 N.J.R. 5895(a).
Even after
the regulations were adopted, COAH continued to do little.
For the
first two years after the adoption of the regulations, COAH approved just four towns’ plans.1
1
See COAH Third Round Status Report, available at http://www.state. nj.us/dca/coah/status3.xls. One of the four plans was summarily 5
B.
2007-2008: Appellate Division Decision and Further Delay by COAH
In a January 25, 2007 decision written by the Honorable Mary Catherine Cuff, P.J.A.D., the Appellate Division invalidated substantial portions of COAH’s Third Round regulations.
The Court
found that they “frustrate, rather than further” the production of low- and moderate-income housing, included unjustified reductions of the fair share obligations, and discriminated against families with children. 46, 75-76.
In re 5:94 and 5:95, supra, 390 N.J. Super. at 42-
The panel ruled that the regulations violated the
constitutional mandate of the Mount Laurel doctrine and the statutory requirements of the FHA.
The panel held that COAH’s
delays made time “critical” and ordered COAH to conclude the remand proceedings within six months, while denying a request by appellants for a special master.
Id. at 88.
On May 8, 2007, with the six-month deadline approaching, COAH moved for an extension until February 2008.
Exh. A.2
On June 21,
2007, the Appellate Division in part granted COAH’s motion and in part denied it, requiring COAH to adopt rules by December 31, 2007. Ibid.
By order dated January 8, 2008, the panel granted a motion
for a further extension until June 2, 2008 for adopting the revised Third Round regulations.
Exh. B.
invalidated due to COAH’s failure to follow the APA. In re Grant of Third Round Substantive Certification to Pennsville Township, A5998-05T5 (per curiam decision issued on January 25, 2007). 2 Exhibits referenced herein are attached to the enclosed Certification of Adam M. Gordon (“AMG Certif.”) in support of this motion. 6
COAH proposed revised Third Round regulations on January 22, 2008, 40 N.J.R. 237(a), and adopted them effective June 2, 2008, 40 N.J.R. 3161(a).
Although COAH claimed that its June 2, 2008
adoption complied with the Appellate Division’s January 8, 2008 order requiring regulations to be adopted by that date, COAH proposed to amend the regulations to revise several key aspects concurrently with its approval of the June 2, 2008 regulations. N.J.R. 3374(a)(June 16, 2008).
40
COAH thus continued the delay on
the adoption of compliant regulations without even asking leave of the court.
On October 20, 2008, COAH’s revised Third Round
regulations finally went into effect.
40 N.J.R. 5960(a).
In August 2008, COAH rejected a motion by the League of Municipalities to stay the December 31, 2008 deadline for filing plans under the revised regulations.
In an August 13, 2008
decision, COAH found that “granting the League’s motion for a stay would cause greater harm to the public interest than any harm alleged to be suffered by the League” and rejected the argument that “planning for affordable housing . . . [is] harmful to municipalities.”
Exh. C, p. 4.
COAH found that “a stay would
likely result in the loss of affordable housing opportunities in the State.”
Ibid.
COAH also stated during the Third Round
rulemaking notice of rule adoption that it “believes that extending the deadline beyond December 31 will only serve to delay the process and inhibit the production of affordable housing.” N.J.R. 5963.
40
COAH argued that “in keeping with the Appellate 7
Division's requirements for timeliness, all parties must work to meet the established deadlines.”
Ibid.
The League thereafter
filed a motion to stay with the Appellate Division that was also denied by order dated October 6, 2008.
Exh. D.
Numerous parties, including FSHC, the New Jersey Builders Association, NAIOP, the New Jersey League of Municipalities, and many individual municipalities and builders, filed appeals of the regulations.
Oral argument was held on the appeals on December 1,
2009 with the Hon. Stephen Skillman, P.J.A.D. presiding. C.
Submission of plans by December 31, 2008 and COAH action since that deadline.
On or before December 31, 2008, 237 municipalities submitted new plans to COAH, and an additional 52 municipalities located within the Highlands region requested a one-year extension on plan submission. AMG Certif. ¶6.
Several dozen additional
municipalities submitted plans to trial courts throughout the state.
Ibid.
The plans submitted by December 31, 2008 provided a
total of 42,596 proposed homes.
AMG Certif. ¶7; Exh. E.
Since
that time, additional municipalities have filed with COAH and in courts.
AMG Certif. ¶7.
COAH has completed its initial review of all but one of the 254 plans submitted to it, and the objection period has closed for at least 253 plans.3
AMG Certif. ¶8.
It has already granted
substantive certification to 57 municipalities. 3
Ibid.
This rate
See http://www.state.nj.us/dca/affiliates/coah/reports/ newthirdround.xls (last visited February 11, 2010). 8
of review and progress is substantially faster than COAH’s historic performance, especially when compared to only four municipalities receiving substantive certification in the first two years after the 2004 rules were adopted. D.
Ibid.
Executive Order 12
As a gubernatorial candidate, Governor Christie promised that if elected governor he would “gut” COAH in January 2010. p. 2.
Exh. F,
Immediately after his inauguration, the Governor issued
eight executive orders, none of which dealt with COAH.4
A Star
Ledger columnist addressed the lack of executive action on COAH in his February 2, 2010 column, writing: At a news conference [on February 1, 2010], I asked the governor, “A year ago you said you would dismantle COAH by January of 2010. It’s now February of 2010. COAH’s not dismantled. What happened?” “I didn’t say I would gut COAH by 2010,” Christie replied. "I said it would be part of the process that the lieutenant governor is undergoing right now regarding regulatory review.” Even after I told Christie I had his comments from last year on a digital voice recording, he insisted, “I didn’t say it.” [Exh. F, pp. 2-3] On February 9, 2010, seven days after that column appeared, Governor Christie signed Executive Order 12.
Exh. G.
At a press
conference announcing his action, Governor Christie said, “The
4
See http://nj.gov/infobank/circular/eoindex.htm (last visited February 11, 2010). 9
message to municipalities in New Jersey is that their COAH nightmare is over, and we're going to move towards making sure that development gets placed back into the hands of local municipalities to make these kinds of decisions.”
Exh. H, p. 1.
announced that “COAH has been shut down.”
The governor
Exh. I.
The governor
further stated that “I do not agree with the Mount Laurel decisions and never have. . . [the Supreme Court employed] an expansive view of the constitution that I don’t think is an appropriate use of judicial authority.”
Exh. J.
The executive order provides that for 90 days “COAH shall refrain from taking any further action to process applications for substantive certification or to take any other actions to implement the Third Round regulations.”
Exh. G, p. 4.
The executive order
took effect “immediately” and under its terms will “remain in full force and effect until rescinded, modified, or supplemented” by Governor Christie.
Id. at 5.
While COAH is not operating, the
Order allows any “applicant, for good cause shown” to “request action on a particular item” pending before COAH, at which point the Acting Commissioner of the Department of Community Affairs decides whether “such action is required within the 90 day period to prevent the loss of affordable housing opportunities.”
Id. at
4-5. Executive Order 12 also creates a five-member task force that will be led by former Sen. Marcia Karrow, who at the press conference stated, “I'm a Jersey girl. I believe in home rule." 10
Exh. K, p. 1.
The task force is charged with “undertak[ing] a
review of the FHA, State Planning Act and the current and former COAH regulations and methodologies” and “assess[ing] the effect of these laws, the degree of success in accomplishing the goals of meeting the constitutional obligations under the Mt. Laurel decisions consistent with sound planning and economic growth, and the continued existence of COAH.”
Id. at 3.
The executive order
directs the task force to issue a report within 90 days.
Id. at 4.
By letter dated February 9, 2010 to Judges Skillman, Fuentes, and Simonelli, the panel that heard oral argument on the Third Round appeals, COAH through its counsel stated that Executive Order 12 “draws into question the continued viability of COAH’s Third Round regulations . . . as well as the continued existence of COAH itself.”
Exh. L, p. 3.
Following the issuance of Executive Order 12, COAH immediately halted operations, including mediations, AMG Certif. ¶16. February 10, 2010 meeting was cancelled.
AMG Certif. ¶17.
Its The
agenda for that meeting included five substantive certifications, five motions, a waiver, a project plan amendment, and a resolution defining the Executive Director’s authority. Exh. M.
Although the
cancellation was weather-related, AMG Certif. ¶17, the agenda for the rescheduled meeting reflects the degree to which the agency’s work has halted.
The revised agenda includes one item:
“Resolution Regarding Executive Order #12.”
11
Exh. M.
This appeal of Executive Order 12 was filed the same day the order was issued.
Pursuant to R. 2:2-3(a)(2), jurisdiction to
consider challenges of executive orders lies with the Appellate Division.
Bullet Hole v. Dunbar, 335 N.J. Super. 562, 571-72 (App.
Div. 2000). III. Procedural History Following the filing of this appeal on February 9, 2010 and the submission of an Application for Permission to File an Emergent Motion, FSHC was permitted by the Honorable Stephen Skillman, P.J.A.D. on February 11, 2010 to proceed on an emergent basis. This motion followed. IV.
Legal Argument A.
Governor Christie did not have the authority under our state constitution or the Fair Housing Act to issue Executive Order 12.
Executive Order 12 is an unprecedented, unconstitutional assertion of executive power.
It “shut[s] down” a 25-year-old
independent agency established pursuant to a statute reinforced by the Legislature as recently as 2008; effectively eliminates hundreds of pages of regulations adopted under the APA and relied on by advocates, developers, and municipalities; halts statutorilyrequired mediation and substantive certification processes in which participants have invested significant time and resources; and creates a new process outside of the APA and administered solely by the Acting Commissioner of the Department of Community Affairs, who, under the FHA, has only one of twelve votes on the COAH Board. 12
Whereas under existing law, Governor Christie does not even have the authority to veto COAH’s minutes, under Executive Order 12, the governor and his cabinet member have assumed total control of duties formerly assigned to COAH.
This consolidation of power and
disregard of both statutory and regulatory law is a startling, unlawful action entirely out of place in a stable, American democracy that operates under principles of separation of powers. The Appellate Division should invalidate or at a minimum stay Executive Order 12 because Governor Christie has trespassed on ground that the Legislature already has occupied. While the Governor has broad powers, the Governor must act in accordance with the laws passed by the Legislature. The New Jersey Constitution provides for a separation of powers: The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution. [N.J. Const. Art. III, ¶1.] The Constitution defines the duty of the executive branch as to “take care that the laws be faithfully executed.” V, §1, ¶11.
N.J. Const. Art.
The Constitution’s separation of powers means that the
Governor’s power to issue an executive order “must stem from either an act of the Legislature or from the Constitution itself.” Worthington v. Fauver, 180 N.J. Super. 368, 375 (App. Div. 1981).
13
Thus, when an executive order “contradict[s]” rather than “complement[s]” the Legislature’s explicit or implied authorization, it threatens the constitutional separation of powers.
Bullet Hole, supra, 335 N.J. Super. at 575.
One prominent
commentator has summarized New Jersey courts as deferential on separation of powers between the Governor and the Legislature up to the point at which “presented with sufficiently extreme facts,” courts must act in order to preserve the basic structure of the Constitution.
Jack M. Sabatino, Assertion and Self-Restraint: The
Exercise of Governmental Powers Distributed Under the 1947 New Jersey Constitution, 29 Rutgers L.J. 799, 810 (1998). New Jersey courts have emphasized the similarity of our state constitution’s limitations on executive power to the federal scheme, especially the seminal case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), which warns that executive power is at its nadir when it directly contradicts an act of the Legislature.
Worthington, supra, 180 N.J. Super. at 375.
Federal
courts in recent years have reinforced this doctrine in invalidating several executive orders as irreconcilable with legislation.
See, e.g., American Historical Ass’n v. National
Archives and Records Admin., 516 F.Supp.2d 90, 109 (D.D.C. 2007) (holding executive order by President Bush regarding access to Presidential archives could not be reconciled with Presidential Records Act); Chamber of Commerce of the United States v. Reich, 74 F.3d 1322 (D.C. Cir. 1996)(executive order by President Clinton 14
barring federal agencies from contracting with employers that permanently replace lawfully striking workers invalid because it conflicts with the National Labor Relations Act). New Jersey courts have also repeatedly held that an executive order may not authorize state agencies to take actions inconsistent with a law passed by the Legislature.
See, e.g., George Harms
Const. v. New Jersey Turnpike Auth., 137 N.J. 8, 42-45 (1994) (invalidating project labor agreement requirements despite executive orders authorizing such agreements, because requirements contravened central premise of state statutes on government contracts); Twiss v. State, Dept. of Treasury, Office of Financial Management, 239 N.J.Super. 342, 352 (App. Div. 1990), rev’d on other grounds, 124 N.J. 461 (1991)(“There can be no dispute that neither an Executive Order or a regulation can change or repeal specific statutory authorizations.”); Williamson v. Treasurer,357 N.J.Super. 253, 272 (App. Div. 2003) (“Simply put, an Executive Order cannot amend or repeal a statute.”). Executive Order 12 claims heretofore unprecedented power for a Governor’s action by Executive Order by unilaterally suspending the operation of a legislatively created, independent agency.
The
Legislature in the FHA set out a comprehensive response to the Mount Laurel doctrine, with a defined and limited role for the Governor.
COAH has both substantive duties — for example
calculating regional and municipal fair share — and procedural responsibilities — establishing a forum for adjudicating claims 15
guaranteed by the Constitution and the FHA to parties representing the interests of low- and moderate-income households. N.J.S.A. 52:27D-307(b), -315.
The Legislature required that COAH have “12
members appointed by the Governor with the advice and consent of the Senate,” with membership on a bipartisan basis and representing a wide range of interests from advocates to various types of developers to municipalities. N.J.S.A. 52:27D-305.
The
Commissioner of the Department of Community Affairs chairs the Board but has only one of twelve votes.
N.J.S.A. 52:27D-305.
Because COAH is “in, but not of” DCA, it is an independent body that is directly accountable its twelve board members.
See New
Jersey Exec. Com’n on Ethical Standards v. Byrne, 238 N.J. Super. 84, 90 (App. Div. 1990)(agencies that are “in, but not of” are “insulated from the[] supervision and control” of the departments they are “in”).
COAH Board members may only be removed for cause.
See N.J.S.A. 52:27D-305(e)(providing for removal of Board members through action in Superior Court “for misconduct in office, willful neglect of duty, or other conduct evidencing unfitness for the office, or for incompetence”).
The Governor thus has no powers
under the FHA other than to appoint members of the Council consistent with the statutory requirements for partisan and interest balance, and subject to advice and consent. By adopting Executive Order 12, Governor Christie assumed for himself and his unconfirmed cabinet member the powers that the
16
Legislature assigned to the independent COAH Board.5
The FHA
provides the Governor with no vote on COAH’s policies. N.J.S.A. 52:27D-305.
See
Under the FHA, a governor can do nothing to
prevent COAH from issuing or amending regulations or denying a municipality substantive certification.
In addition to the absence
of a veto provision in the FHA, COAH’s minutes are not even statutorily required to be forwarded to the governor for comment. The governor’s role is limited to the nomination of COAH’s Board members. Governor Christie further has stopped COAH from doing work that the Legislature has required it to do.6
Under the Executive
Order, COAH may not “process applications for substantive certification or take any other actions to implement the Third Round regulations.”
Yet the FHA requires COAH to process
applications for substantive certification, N.J.S.A. 52:27D-314, and “engage in a mediation and review process” which grants due process to objectors to such petitions and sets out time frames such as a 90-day limit for processing by the Office of Administrative Law if mediation is unsuccessful. 315.
N.J.S.A. 52:27D-
The Supreme Court approved the FHA in part because the
5
The Mount Laurel doctrine has previously been the subject of executive orders, but none since the passage of the FHA in 1985 established a comprehensive system of compliance with a limited role for the Governor. See http://nj.gov/infobank/circular /eoindex.htm (last visited February 13, 2010). 6 Executive Order 12 notably is not based on a declaration of an emergency, a frequent justification for broad executive orders. See, e.g., Worthington, supra, 180 N.J. Super. at 373.
17
Legislature designed these processes to “be concluded much more quickly than ordinary Mount Laurel litigation since the time periods provided for are extremely short.” Hills, supra, 103 N.J. at 36.
Consistent with the Legislature’s and Court’s expectations,
the Third Round regulations implement the legislatively required processes through specific, and short, time frames.
For example,
both petitions and objections require action by the Council within a 45-day period with narrow exceptions and no provision for a time out from processing.
N.J.A.C. 5:96-6.2, -7.2.
As such, Governor
Christie’s action goes directly against the Legislature’s intent, and adopted regulations implementing that intent, requiring COAH to process in a timely fashion petitions for substantive certification and objections to those petitions.7 Governor Christie has gone far beyond his statutorilyauthorized role in violation of the separation of powers provision of the New Jersey constitution and the FHA’s allocation of authority through the creation of an independent agency.
Executive
Order 12 both supplants the independent COAH Board completely and removes COAH’s power to perform its core functions as required by the Legislature.
It contradicts and does not complement the
explicit decisionmaking scheme established by the FHA. 7
See Bullet
The Executive Order mentions proposed legislation that would substantially amend the FHA. Exh. K, p. 3. No such legislation, however, has passed the Senate or the Assembly this legislative term or since 2008, and no amendments to the FHA have even cleared committee this term. The mere introduction of legislation has no legal significance. See Jersey City Chap. of Prop. Owner's Protective Ass’n v. Jersey City, 55 N.J. 86, 95 (1969). 18
Hole, supra, 335 N.J. Super. at 575.
As such, the Court should
invalidate the Order. B.
Executive Order 12 violates the Administrative Procedure Act and guarantees to due process of law.
Executive Order 12 also violates the APA because it amends regulations without following the APA’s notice and comment process. The APA, as an explicit legislative adoption, also limits the scope of what the Governor may do by Executive Order.
By suspending
COAH’s ability to act under its regulations adopted pursuant to the APA, and by creating a new, unchecked process outside of the APA for the Acting DCA Commissioner to permit or deny applications for housing developments, Executive Order 12 has created a new regulatory scheme that does not comply with the requirements of APA rulemaking. The APA defines a “rule” as “each agency statement of general applicability and continuing effect that implements or interprets law or policy.”
N.J.S.A. 52:14B-4(e).
The New Jersey Supreme
Court in Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 313, 330 (1984), held that “an agency determination can be regarded as a ‘rule’ when it effects a material change in existing law. . . . When an agency’s determination alters the status quo, persons who are intended to be reached by the finding, and those who will be affected by its future application, should have the opportunity to be heard and to participate in the formulation of the ultimate determination.”
See also Crema v. New Jersey Dep’t of
19
Enviro. Prot., 94 N.J. 286, 299 (1983)(“When the agency is concerned with ‘broad policy issues’ that affect the public-atlarge. . . or the contemplated action is intended to have wide application and prospective effect, rulemaking becomes the suitable mode of proceeding.”). Amendments to existing regulations and the repeal of regulations must follow the same process as new regulations.
See
N.J.S.A. 52:14B-4 (establishing mandatory process that must occur “[p]rior to the adoption, amendment, or repeal of any rule”); N.J.S.A. 52:14B-4.9 (“Any rule proposed by a State agency which revises, rescinds or replaces either (1) any proposed or existing rule or (2) any rule which has been suspended shall be considered as a new rule and shall be subject to the provisions of this act and the act to which it is a supplement.”)(emphasis added). See also American Employers’ Ins. Co. v. Commissioner of Ins., 236
N.J. Super. 428, 432 (App. Div. 1989) (“material and significant change from a clear, past agency position on the identical subject matter” the “most significant” of the Metromedia factors requiring rulemaking). The APA’s requirements for rule adoption include 30 days notice of intended rulemaking; publication of a notice in the New Jersey Register; and a 30-60 day period of public comment, followed by agency response to comments received.
Ibid.
N.J.S.A. 52:14B-
4(d) provides that “[n]o rule hereafter adopted is valid unless
20
adopted in substantial compliance with [the APA] P.L. 1968, c. 410 (C.52:14B-1 et seq.).”
See also State v. Leary, 232 N.J. Super.
358, 368 (Law Div. 1989)(“When an agency has failed to comply with the rule-making requirements of the Administrative Procedure Act, its rules must be set aside.”).
In New Jersey Animal Rights
Alliance v. New Jersey Dept. of Enviro. Prot., 396 N.J. Super. 358, 372 (App. Div. 2007), the Appellate Division found that substantial compliance with the APA is especially important with “a topic that sparks widespread disagreement and strong public sentiments.”
The
court held that “the substantial public interest in requiring the government to conduct a full-fledged process of notice and comment, as prescribed by the APA, preclude[d it] from excusing the agencies’ non-compliance, even on an interim basis.” Rulemaking also has a constitutional dimension.
Ibid. “[A]dherence
to due process has always been integral to the regulatory process.” Id. at 143.
The APA’s requirements safeguard the state and federal
guarantees of due process of law in the administrative context, ensuring that the power and discretion of state agencies is informed by public participation and guided by rules developed in transparent environments.
See, e.g., Crema, supra, 94 N.J. at 301;
Lower Main Street Assocs. v. New Jersey Hous. & Mortgage Fin. Agency, 114 N.J. 226, 235 (1989) (invalidating housing regulation because of “failure to specify or suggest any criteria or standards to guide the agency in the exercise of its discretion”).
21
Here, the Executive Order directly contravenes the APA.
The
suspension of several chapters of rules by executive order violates the APA’s requirement that changes to rules adopted by notice and comment likewise require notice and comment.
The creation of an
alternate process in which particular affordable housing projects’ approval are subject to the whims of the Acting Commissioner of DCA instead of the established process adopted through regulation violates the APA for the same reason. Furthermore, the new process embodies excessive discretion without standards in a single decision maker, a violation of due process even more flagrant than the process invalidated in Lower Main Street.
The phrases “to prevent the loss of affordable
housing opportunities” and “good cause shown” are not sufficient criteria to prevent unjust application of this rule.
Does only a
development in which construction is imminent qualify, or one in which the financing may fall apart as well?
Will the Acting
Commissioner approve developments that are politically unpopular but otherwise viable?
These types of questions are why our
Legislature has required and our courts have ruled that state agencies must make decisions using established and publicly available rules. By failing to follow the notice and comment procedures required for rule amendments and by adopting a new regulatory scheme contrary to COAH’s regulations, Governor Christie has unlawfully excluded the public from a process in which it is 22
entitled to participate.
Pursuant to N.J.S.A. 52:14B-4(d), the
actions taken by Governor Christie are invalid because they were not adopted in substantial compliance with the APA.
For the same
reasons, Governor Christie has denied FSHC and the public at large their state and federal guarantees to due process. C.
Executive Order 12 violates the Mount Laurel doctrine and the Appellate Division’s repeated past warnings against further delay in the Third Round process.
Executive Order 12 also should be invalidated or stayed because it will cause further unconstitutional delay that undermines the state’s compliance with its obligations under the Mount Laurel doctrine.
The Court should view the executive order
against the backdrop of a decade-long delay in enforcement of Mount Laurel obligations that started as far back as the Whitman Administration, and specific orders by this Court and the Supreme Court requiring COAH to enforce the Mount Laurel doctrine.
Now
that, for the first time in a decade, COAH is actually processing over 250 municipal fair share plans, zoning changes are being made, and non-profit, for-profit, and special needs housing developers are moving forward to create new affordable housing, Governor Christie has called an indefinite halt to that process.
Executive
Order 12 is nothing less than a refusal, based on the Governor’s personal views, to comply with the state constitution and repeated and specific court orders.
As such, the Appellate Division should
require COAH to continue enforcing its adopted regulations, and invalidate or stay the executive order. 23
The Supreme Court upheld the FHA’s creation of COAH only because it found that it presented a viable legislative alternative to the builders remedy process created in Mount Laurel II, supra, 92 N.J. 158. In upholding the constitutionality of the FHA, the Court stated: No one should assume that our exercise of comity today signals a weakening of our resolve to enforce the constitutional rights of New Jersey's lower income citizens. The constitutional obligation has not changed; the judiciary's ultimate duty to enforce it has not changed; our determination to perform that duty has not changed. What has changed is that we are no longer alone in this field. The other branches of government have fashioned a comprehensive statewide response to the Mount Laurel obligation. This kind of response, one that would permit us to withdraw from this field, is what this Court has always wanted and sought. It is potentially far better for the State and for its lower income citizens. [Hills, supra, 103 N.J. at 64.] The Court further stated that if the FHA “achieves nothing but delay, the judiciary will be forced to resume its appropriate role.”
Id. at 23.
This warning reinforced one of the Court’s
central concerns in Mount Laurel II, that “[c]onfusion, expense and delay have been the primary enemies of constitutional compliance in this area” and that “[t]he obligation is to provide a realistic opportunity for housing, not litigation.”
Mount Laurel II, supra,
92 N.J. at 199, 292. From 1986 to 1999, the FHA process moved forward, with COAH processing plans in a timely fashion, and over 50,000 homes built
24
or rehabilitated as a result. 2008).
See 40 N.J.R. 237(a), 240 (Jan. 22,
From 1999 to 2008, however, the judiciary was forced to
assume a more active role when the FHA and COAH in fact achieved “nothing but delay,” Hills, supra, 103 N.J. at 24.
In 2004, the
Appellate Division found that COAH’s failure to even adopt Third Round rules, legislatively required to be adopted in 1999, was “dramatic and inexplicable” and that “[f]or nearly the equivalent of one full round of Mount Laurel administration. . .
[t]he public
policies underlying the FHA and the Mount Laurel cases have, quite obviously, been frustrated by inaction.” supra, 372 N.J. Super. at 95-96.
Six Month Extension,
The Supreme Court also gave COAH
a deadline for adopting Third Round regulations that COAH missed. Fair Share Methodology, supra, 180 N.J. 148.
After the regulations
were adopted in 2004, COAH continued to do next to nothing.
For
over two years, from the adoption of the regulations in December 2004 until January 2007, COAH approved just four towns’ plans.8 In January 2007, the Appellate Division reversed the 2004 regulations as unconstitutional and discriminatory. 5:95, supra, 390 N.J. Super. at 42-46, 75-76.
In re 5:94 and
Finding that COAH’s
earlier delay made time “critical,” the panel ordered COAH to conclude the remand proceedings within six months.
Id. at 88.
After a series of extensions from the Appellate Division, COAH did not adopt final regulations until October 2008. 8
40 N.J.R. 5960(a).
See COAH Third Round Status Report, available at http://www.state.nj.us/dca/coah/status3.xls (last visited February 11, 2010). 25
When the League of Municipalities requested a stay that would provide even more time, COAH found that “granting the League’s motion for a stay would cause greater harm to the public interest than any harm alleged to be suffered by the League” and found that “a stay would likely result in the loss of affordable housing opportunities in the State.”
Exh. C, p. 4.
In denying the
League’s motion to stay in October 2008, the Appellate Division likewise suggested that further delay was against the public interest.
Exh. D.
Since December 2008, COAH has been functioning again.
While
all sides have appealed the new rules, FSHC included, it is indisputable that, for the first time in a decade, the executive branch of government has been making progress in enforcing the constitutional obligation.
As FSHC argued in its pending appeal of
the Third Round regulations,9 the present system, while including serious flaws, contains a viable foundation for producing low- and moderate-income homes and removing exclusionary zoning barriers. COAH’s actions since December 2008 bear that view out.
The more
than 250 plans submitted provide for a total of 42,596 proposed homes, AMG Certif. ¶7; Exh. E, less than half of the need that COAH found existed, but still a substantial impact of new low- and moderate-income families, seniors, and people with special needs. Since December 2008, COAH has proceeded promptly on reviewing these 9
In re Adoption of Third Round Regulations, N.J.A.C. 5:96 and 5:97, by the Council on Affordable Housing, Docket No.: A-5451-07T3; Lead Docket Number A-5382-07T3. 26
plans, in its first year of review granting substantive certification to more than 10 times the number of plans that the agency approved in the two years after the 2004 regulations went into effect.10 Five times in the past six years — the Appellate Division decision in 2004, the Supreme Court order in 2004, the Appellate Division in 2007, the Appellate Division’s orders setting deadlines in 2007-2008, and the Appellate Division’s rejection of a stay in 2008, the courts have performed their basic duty to ensure that the Constitution is upheld by the executive branch.
As a result, COAH
for the first time since the turn of the millennium has proceeded with ensuring that municipalities do not practice exclusionary zoning and provide a realistic opportunity for their fair share of low- and moderate-income homes.
While the process has flaws, it
still is producing specific plans for tens of thousands of homes being built and zoning changes being made to allow that construction. In the midst of the decade long delay, there were four administration changes: from Whitman to DiFrancesco; DiFrancesco to McGreevey; McGreevey to Codey; and Codey to Corzine.
A previous
administration tried to use a change in administration as a legal justification for failure to enforce the law.
Judge Skillman
squarely rejected this assertion in In re Howell, 371 N.J. Super.
10
See COAH Third Round Status Report, available at http://www.state. nj.us/dca/coah/status3.xls. 27
167, 184-185 (App. Div. 2004), writing that “[c]hanges in the identity of individuals who occupy high-level government positions are commonplace.
When such changes occur, one of the primary
responsibilities of any newly appointed official is to assure continuity of governmental operations.”
Judge Skillman stated
further that “[a]n agency's discharge of its statutory responsibilities cannot be put on hold” simply to accommodate transitions in governmental leadership.
Ibid.
Executive Order 12 returns to avoiding compliance with the state constitution for an indefinite period, a position that the courts have already rejected repeatedly.
The Order suspends COAH’s
operations for 90 days – at a time when COAH was poised to approve dozens of municipal fair share plans, including five at its February 10, 2010 meeting.
A 90-day delay itself is unacceptable
and contrary to the past court orders.
But as the Attorney
General’s office has admitted, the Executive Order creates a delay of far more than 90 days.
The Attorney General has stated that
Executive Order 12 “draws into question the continued viability of COAH’s Third Round regulations . . . as well as the continued existence of COAH itself.”
Exh. L, p. 3.
The Order itself states
that it will “remain in full force and effect until rescinded, modified, or supplemented by me.”
Id. at 5.
The Order furthermore
creates a task force whose mandate includes studying, among other things, “the continued existence of COAH,” id. at 3, and many of the same issues that led the Court to find the 2004 regulations 28
unconstitutional, such as a check on municipal discretion, In re 5:94 and 5:95, supra, 390 N.J. Super. at 56, and the calculation of prior round need, id. at 42. The Executive Order thus contemplates an indefinite delay which could include new proposed regulations, new time periods for municipalities to submit new compliance plans, potential lengthy attempts by the Administration to convince the Legislature to change COAH, and new court challenges.
Such a process could take
years, as it did in the ultimately failed attempt to effect a wholesale change of COAH through the initial Third Round rules in 2004. In the meantime, critical opportunities to produce low- and moderate-income housing will be lost.
As the Supreme Court
realized as early as Mount Laurel II, this kind of delay has been the primary enemy of enforcement of the constitutional obligation for decades. The Christie Administration may not ignore court orders and binding law because it disagrees with those orders and laws.
It
also may not use the change of administration as an excuse to put “the discharge of [COAH’s] statutory responsibilities” on hold. See Howell, supra, 371 N.J. Super. at 184-185.
The courts have
spoken five times in the last six years on the “critical” need for an end to delay in the implementation of the Mount Laurel doctrine. To begin a further period of indefinite delay now would violate repeated court orders and result in a cruel injustice to low- and
29
moderate-income families who have already seen their constitutional rights ignored for a decade. D.
The Appellate Division should enforce litigant’s rights.
FSHC moves to enforce the rights it obtained in In re 5:94 and 5:95, supra, 390 N.J. Super. at 88, and in the subsequent orders requiring COAH to adopt and implement the Third Round regulations.
11
Exhs. A, B and D.
Pursuant to R. 1:10-3, FSHC
moves to ensure that COAH carries out the relief ordered by the Court. R. 1:10-3 provides prevailing litigants with a remedy when government agencies fail to carry out court orders.
See, e.g.,
Abbott v. Burke, 163 N.J. 95 (2000) (R. 1:10-3 used to invalidate Department of Education’s failure to properly implement preschool programs); Loigman v. Committee of Middletown, 308 N.J. Super. 500, 503 (App. Div. 1998) (R. 1:10-3 used to require municipal body to comply with Open Public Meetings Act).
Here, as discussed in
detail above, the Appellate Division has repeatedly ordered COAH to issue and implement Third Round rules and has found time “critical,” in response to litigation brought by FSHC and others.
11
FSHC was an appellant in A-2674-04-T3, one of the appeals that was consolidated for purposes of the opinion in In re 5:94 and 5:95, supra, 390 N.J. Super. at 10 n.1. We obtained the rights we seek to enforce through that litigation and subsequent motion practice. 30
COAH’s failure to implement these rules violates the core relief of this prior litigation and court orders.
As such, the Court should
invalidate Executive Order 12 as inconsistent with rights that have already been adjudicated, through an immediate stay of the Order followed by summary invalidation E.
The Court should at minimum stay Executive Order 12 immediately.
FSHC requests that the Court immediately stay Executive Order 12, given that time is of the essence with many petitions for substantive certification poised to be immediately approved and many mediations in process.
Each day that the Executive Order is
in place results in the cancellation of already scheduled actions guaranteed to FSHC and other participants in the process by the FHA and adopted regulations. In order to obtain a stay of Executive Order 12, FSHC must demonstrate (1) a reasonable probability of success on the merits; (2) that a balancing of the equities and hardships favors the stay; (3) that FSHC has no adequate remedy at law and that irreparable harm will be suffered in the absence of the stay is substantial and imminent; and (4) that the public interest will not be harmed.
See
Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982); Waste Management of New Jersey v. Union County Util. Auth., 399 N.J. Super. 508, 520-21 (App. Div. 2008).
Courts “may take a less rigid view” of the Crowe
factors “when the interlocutory injunction sought is designed to 31
merely preserve the status quo.”
McKenzie v. Corzine, 396 N.J.
Super. 405, 414 (App. Div. 2007).
Furthermore, when the requested
stay “greatly affect[s]” the public interest, a court may “‘go much farther’” in granting equitable relief.
Waste Management, supra,
399 N.J. Super. at 520 (quoting Yakus v. United States, 321 U.S. 414, 441 (1944)). Here, each of the Crowe criteria is satisfied.
First, as
addressed above, our probability of success on the merits is very high.
The Governor has overstepped his authority in violation of
our the New Jersey constitution’s separation of powers clause and has violated both the FHA and APA.
He has likewise defied the
Appellate Division’s directive to adopt and implement Third Round regulations.
Under several sources of law, Executive Order 12 is
legally indefensible. The second factor, a balancing of the equities and hardships, also favors issuing a stay.
If permitted to be implemented,
Executive Order 12 will shut down the operations of a state agency that has been charged with implementing a constitutional obligation.
This will renew the period of delay that began in 1999
and that has been often criticized by the judiciary.
See, e.g.,
Six Month Extension, supra, 372 N.J. Super. at 95-96. Additionally, the potential transfer or dismissal of agency employees to other functions during this period could dismantle a substantial amount of expertise on a complex subject that cannot be easily replicated.
By contrast, if a stay is issued, the Governor 32
and municipalities who are opposed to the Third Round regulations will simply be required to comply with the laws that are on the books, preserving the status quo which the Appellate Division has stated requires a lower threshold for a stay to be issued. McKenzie, supra, 396 N.J. Super. at 414.
Municipalities have
participated fully in the Third Round rulemaking process and are pursuing remedies through litigation.
They thus can hardly claim
to be prejudiced. The third factor is whether FSHC and the public at large has an adequate remedy at law and whether irreparable harm that is substantial and imminent will be suffered in the absence of a stay. “Harm is generally considered irreparable in equity if it cannot be redressed adequately by monetary damages.” Crowe, supra, 90 N.J. at 132-133.
Here, the most substantial and irreparable harm comes
from the unlawful shuttering of COAH.
This will have a negative
impact on the development of affordable housing that cannot be remedied through monetary damages. The fourth factor is whether the public interest will be harmed.
The public interest in this matter is defined by our state
constitution’s guarantee of separation of powers, the requirements of the FHA and the APA, and the Mount Laurel doctrine.
Those laws
establish substantive and procedural rights that Executive Order 12 defies.
Lower-income New Jerseyans also have an interest in
accessing housing opportunities that will be denied if Executive Order 12 stands. 33
FSHC thus respectfully urges the Appellate Division to stay Executive Order 12 pending the conclusion of this litigation. F.
Summary disposition should be granted.
In view of the plain invalidity of Executive Order 12 and the need for a rapid resolution of this matter, FSHC also moves for summary disposition. A motion for summary disposition should be granted when the movant “demonstrate[s] that the issues on appeal do not require further briefs or full record.”
R. 2:8-3.
“The procedure is
intended to provide a pre-transcript, pre-argument opportunity for the screening of those cases involving issues which are clear-cut or which demonstrate that the decision on appeal was patently in error.” N.J.
GE Capital Mortgage Servs., Inc. v. N.J. Title Ins., 333
Super.
1, 5 (App. Div. 2000) (citation omitted).
A motion
for summary disposition “is intended to apply not only to the affirmance of orders and judgments on the respondent’s motion where the appeal is patently frivolous and questions involved patently insubstantial but also to the reversal and modification thereof of on appellant’s motion where . . . the administrative agency was patently in error.” 2:8-3 (2009).
Pressler, Current N.J. Court Rules, Comment R.
The procedure is “reserved
for
appeals
whose
ultimate outcome is so clear” that nothing further is required. Ibid. In this appeal, it is clear that the Governor did not have the authority under the FHA or any other source of law to issue 34
Executive Order 12; that Executive Order 12 does not comply with the APA’s rulemaking requirements; and that Executive Order 12 will cause further delay, frustrate compliance with the Appellate Division’s orders mandating the adoption and implementation of regulations, and thus unconstitutionally undermine the satisfaction of the Mount Laurel doctrine.
Summary disposition should thus be
granted. G.
The Court should appoint a Special Master to oversee COAH’s administration of the Third Round regulations.
The history of the Third Round has been one of lengthy delay by COAH, followed by admonitions by the judiciary, and then by more delay by COAH.
Regardless of what happens with Executive Order 12,
Governor Christie has indicated that he will not fairly execute the FHA and will continue the delay.
We thus request that the Court,
concurrently with the granting of summary disposition or a stay, appoint a Special Master.
Alternatively, the Court should require
biweekly reporting by COAH regarding its progress in implementing its constitutional, statutory, and regulatory duties. Special masters have played an important role in almost every Mount Laurel trial court proceeding.
Furthermore, Mount Laurel has
always required some innovation to deal with the complex issues involved, such as the Supreme Court’s original appointment of three judges statewide to hear exclusionary zoning cases.
Such steps
should be taken when necessary to vindicate constitutional rights. See Mount Laurel II, supra, 92 N.J. at 213-14 (“In the absence of
35
adequate legislative and executive help, we must give meaning to the constitutional doctrine in the cases before us through our own devices”).
Further, special masters and similar court officers are
specifically authorized by the Court rules.
See R. 4:41-1
(permitting reference to a master “under extraordinary circumstances”); R. 4:59-2(a)(authorizing appointment of person to perform “specific task” ordered by court in event of default by party).
While the Appellate Division’s appointment of a special
master on a statewide basis is “unprecedented relief,” In re 5:94 and 5:95, supra, 390 N.J. Super. at 87, it is relief justified at this late stage in the game in order to ensure that more time does not pass without compliance with the Mount Laurel doctrine and FHA. A special master should ensure that the agency enforces its statutes and adopted regulations, including making any changes that may be required by the pending Appellate Division decision.
A
special master could also assist with a statewide transfer back to the courts in the event COAH remains “shut down.”
See Six Month
Extension, supra, 372 N.J. Super. at 105 (“The continued absence, for an unreasonable time, of a timely, valid and sufficiently comprehensive interim extension procedure, and COAH’s action thereon, will, of course, free interested parties from the constraints that substantive certification imposes.”). If the Court declines to appoint a special master, it should nevertheless require biweekly reporting regarding COAH’s progress in implementing its constitutional, statutory, and regulatory 36
duties.
An order invalidating Executive Order 12 will not be
enough to ensure that the goals of that order are not otherwise accomplished.
Requiring biweekly reporting will ensure that the
Court and parties have sufficient information regarding COAH's operations to evaluate its compliance with the FHA and the Mount Laurel doctrine.
V.
Conclusion
For the foregoing reasons, we respectfully request the Appellate Division to (a) enforce the Appellate Division's orders related to the adoption and implementation of the Third Round regulations;
(b) stay Executive Order 12;
(c) summarily invalidate
Executive Order 12; and (d) appoint a special master to oversee COAH's operations.
Dated:
2(rs( 20 (0
Respectfully submitted, FAIR SHARE HOUSING CENTER
~z.::s;"": Kevin D. W Ish, Esq.
Adam M. Gordon, Esq.
37
_
