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Affordable Housing

Posted on: January 26, 2024

Court Declines to Force Governor to Appoint Members of COAH

Earlier this week an appellate panel declined to force Governor Murphy to make appointments to the Council on Affordable Housing (COAH). In a published decision, In the Matter of the Appointment of the Council on Affordable Housing by Governor Philip Murphy” the appellate court ruled that it lacks the authority to compel the governor to make nominations. 

 

The decision was based on an action brought by 17 municipalities challenging the Governor’s inaction to fill long-standing vacancies on COAH. The League participated as amicus in this matter in support of the 17 municipalities. 

 

In the appeal, the court considered whether the Governor can be compelled by mandamus, a writ, to act on an appointment power when the statute at issue neither expressly requires, nor provides a deadline for, the exercise of that discretionary function. The court rejected the arguments that the Fair Housing Act (FHA) requires the Governor to make appointments and that the Governor’s inaction violates that obligation and undermines the public policy reflected in the FHA. 

 

Further, the court ruled that even if it were to read such an obligation into the FHA, it is without authority to compel the Governor to make appointments to COAH because mandamus cannot be applied to the Governor. The court went on to rule that even if mandamus was applicable to the Governor, the remedy would be unavailable here because appointments to fill COAH vacancies is a discretionary act.  

 

This decision, coupled with the Governor’s disinterest in making appointments to COAH, functionally ends any hope of having COAH reconstituted. The option remains to have the matter appealed to the New Jersey Supreme Court for additional review of the appellate decision. 


Contact: Frank Marshall, Esq., Associate General Counsel, fmarshall@njlm.org, 609-695-3481, x137. 


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