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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
V. Conclusion ........................................... 37

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
In re Adoption of N.J.A.C. 5:94 and 5:95, 390 4,6,25,29,
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. A-
1960-04T3

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. A-
1960-04T3

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, statutorily-

defined 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. In re 5:94 and 5:95, supra, 390 N.J. Super. at 42-

46, 75-76. 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, A-
5998-05T5 (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. 40

N.J.R. 3374(a)(June 16, 2008). 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.” 40

N.J.R. 5963. 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. Ibid. This rate

3
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. Ibid.

D. Executive Order 12

As a gubernatorial candidate, Governor Christie promised that

if elected governor he would “gut” COAH in January 2010. Exh. F,

p. 2. 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. The governor

announced that “COAH has been shut down.” 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. Its

February 10, 2010 meeting was cancelled. AMG Certif. ¶17. 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.” Exh. M.

11
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 statutorily-

required 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.” N.J. Const. Art.

V, §1, ¶11. 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. See

N.J.S.A. 52:27D-305. 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. N.J.S.A. 52:27D-

315. 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 statutorily-

authorized 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. See Bullet

7
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-at-

large. . . 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.” Ibid.

Rulemaking also has a constitutional dimension. “[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. See 40 N.J.R. 237(a), 240 (Jan. 22,

2008). 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.” Six Month Extension,

supra, 372 N.J. Super. at 95-96. 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. In re 5:94 and

5:95, supra, 390 N.J. Super. at 42-46, 75-76. 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. 40 N.J.R. 5960(a).

8
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

11
regulations. 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.” GE Capital Mortgage Servs., Inc. v. N.J. Title Ins., 333

N.J. 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.” Pressler, Current N.J. Court Rules, Comment R.

2:8-3 (2009). 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

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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.

2(rs( 20 (0 Respectfully submitted,


FAIR SHARE HOUSING CENTER

_
Dated:

~z.::s;"":
Kevin D. W Ish, Esq.

Adam M. Gordon, Esq.

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