Today witnessed the latest event in the ongoing saga regarding third round rules for low and moderate-income housing to be adopted by the Council on Affordable Housing (“COAH”). As discussed here, on March 7, the Appellate Division issued an Order directing COAH to meet and adopt third round rules on an expedited basis. The panel did so even though COAH had previously filed a motion before the Supreme Court on February 26, the then-existing deadline set by the Court for adoption of the third round rules, seeking to extend until May COAH’s time to formally propose and thereafter publish in the June 2, 2014 New Jersey Register a set of third round rules. The panel rejected COAH’s argument that COAH’s pending motion in the Supreme Court deprived the Appellate Division of jurisdiction to enforce its own prior Order.
When the Appellate Division would not stay its March 7 ruling, COAH moved before the Supreme Court, which granted a stay of that March 7 Appellate Division decision. That stay Order is discussed here. The Court did not then rule, however, on COAH’s motion to extend its time to propose third round rules.
Today, the Court entered an Order that granted COAH”s extension request, vacated the Appellate Division’s March 7 Order, and retained jurisdiction so that any future applications to enforce the judgment of the Supreme Court last year regarding the adoption of third round rules are to be filed only with that Court. With Chief Justice Rabner not participating, the Order was signed by Justice LaVecchia and was joined by Justices Patterson and Fernandez-Vina, and Judges Rodriguez and Cuff. Justice Albin issued a dissenting opinion.
The majority relied on a Certification submitted by Richard Constable, the Commissioner of Community Affairs and the Chair of COAH. That Certification represented that “work has progressed on the development of new Third Round Rules,” but that COAH “requires additional time its preparation and formal approval” of new third round rules. The Commissioner also represented that “a proposed set of Third Round Rules by May 1, 2014, or earlier, for publication in the New Jersey Register.” Accepting those representations, the majority granted COAH’s request for an extension, subject to COAH’s preparing and formally approving third round rules by a date not later than May 1, and forwarding the proposed rules to the Office of Administrative Law so that the rules are published in the June 2, 2014 New Jersey Register. The Court extended the period for comments on the proposed rules until August 1, mandated that COAH adopt the third round rules not later than October 22, and ordered that COAH forward the adopted rules to the OAL so that publication of the adoption notice can occur by November 17.
The majority cautioned, however, that if COAH fails to adopt third round rules by November 17, the Court would “entertain applications for relief in the form of a motion in aid of litigants’ rights, including but not limited to a request to lift the protection provided to municipalities through N.J.S.A. 52:27D-313 and, if such a request is granted, actions may be commenced on a case-by-case basis before the Law Division or in the form of ‘builders remedy’ challenges.”
In dissent, Justice Albin recounted, as the Appellate Division had on March 7, the “abysmal failure of process” that had led to a delay of more than ten years in promulgating third round rules. He took a very different view of the Commissioner’s Certification, stating that it told the Court “almost nothing.” Justice Albin cataloged the deficiencies that he found in that Certification. “The Commissioner states that ‘recent, available, and reliable data has been reviewed … and evaluated to develop a third round methodology,’ but does not say by whom. Nor does he indicate what resources were devoted to this project, why the Council that he chairs has not been convened, why counsel for COAH represented to the Court that the entire task could be completed within months, why the time goals set by the Court were unattainable, and why he waited until the day the regulations were expected to go into effect to ask for an extension that will postpone the promulgation of regulations for another eight months.” Had there been adequate answers to thsoe questions, Justice Albin said, he would have joined the majority. Without them, he could not do so.
It is not overly surprising that the Court took this path. Courts are very reluctant to take over administrative agency functions, except under the most egregious circumstances. Though the Appellate Division and Justice Albin concluded that COAH had had more than enough opportunties do what the appellate courts had long ago ordered it to do, the majority was willing to be patient for awhile longer despite everything that has happened (or not happened) to date. COAH’s opponents did get the consolation prize of the Court’s caution that relief in aid of litigant’s rights might be available if COAH did not meet the Court’s new deadline. But even that consolation prize likely is not very satisfying to them, since they would have had the right to seek relief in aid of litigant’s rights anyway.
Justice Albin’s criticism of the Commissioner’s Certification, which can be reviewed here, are well taken. The Certification is couched solely in very general terms and in the passive voice. In ordinary litigation, such a Certification likely would not be given much credence. In this matter, however, fraught as it is with separation of powers issues, the majority refrained from what critics of the Court would call an “activist” path, and gave COAH another chance to do on its own, without the intervention of the Court, what, for over a decade, COAH has not done.
Justice Albin stated that “[h]istory does not give me confidence that we will see compliance with the Fair Housing Act anytime soon.” We will see whether COAH meets the Court’s new deadlne and, more importantly, whether third round rules that are to go into effect by that date meet the standards that the appellate courts have set, or whether yet more proceedings will be required and yet more delay in the creation of low and moderate income housing will follow.