Christie blasts justices after N.J. Supreme Court says he can't eliminate housing agency

Published July 10, 2013
By Anthony Campisi

Governor Christie escalated his attacks on New Jersey’s highest court on Wednesday, blasting a “liberal Supreme Court” for striking down his plan to eliminate the state’s independent housing agency and give its powers to a political appointee.

In a 5-2 decision, the court ruled that Christie overstepped his authority in 2011 when he announced plans to abolish the Council on Affordable Housing. Christie used the state’s Executive Reorganization Act of 1969, which gives the governor the power to rearrange state government. But the justices noted that another law, the 1985 Fair Housing Act that created the council, was designed to insulate affordable-housing decisions from political pressures.

The ruling represents a major reversal for Christie’s efforts to expand the powers of the New Jersey governor, which are already considered among the most expansive in the United States. It also protects the independence of state agencies that regulate everything from campaign finance to development in the Highlands and Pinelands.

But it’s unclear what practical impact the decision will have on the state’s affordable housing rules.

Affordable housing has been a flashpoint in New Jersey politics since the state Supreme Court issued a series of rulings, beginning in the 1970s, ordering towns to construct enough housing to meet the needs of low-income residents. Christie, however, has vocally criticized the rulings, known as the Mount Laurel doctrine, and promised to “gut” the council on the campaign trail, arguing that affordable housing regulations hamstring the powers of local elected officials.

Christie, in a statement, renewed his pledge to shift the state’s judiciary in a more conservative direction to achieve that goal.

“The chief justice’s activist opinion arrogantly bolsters another of the failures he and his colleagues have foisted on New Jersey taxpayers,” Christie said. “This only steels my determination to continue to fight to bring common sense back to New Jersey’s judiciary.”

Christie has repeatedly promised to steer the court in a more conservative direction and in 2010 kicked off a showdown with Senate Democrats over the future of the court by not reappointing Associate Justice John E. Wallace Jr. when he was up for tenure review.

Democrats, for their part, have rejected two Christie nominations to fill vacancies on the court and have declined to schedule hearings for another set of nominees the governor announced in December.

Chief Justice Stuart Rabner said in his majority opinion that Christie had violated the Legislature’s intent by moving unilaterally to dismantle the housing agency.

“The language of the Reorganization Act does not empower the chief executive to replace independent boards with a department head over whom he or she has full control,” he wrote. In the case of the Council on Affordable Housing, Christie was seeking to give the commissioner of community affairs control over affordable-housing policy. The justices didn’t address several state constitutional issues that could have had a more direct impact on Christie’s powers. And they said that the Legislature could abolish the council at any time by passing a law rewriting the state’s affordable-housing rules.

“The way the chief justice wrote the opinion, it’s linked simply to the language that the Legislature enacted” when it passed the Reorganization Act and created the state’s housing framework, said Robert F. Williams, a law professor at Rutgers-Camden who studies the state Supreme Court.

At the same time, Williams said the decision provides a significant check on Christie and explicitly preserved the political independence of similar agencies like the state Ethics Commission, the Election Law Enforcement Commission and the Highlands Commission.

Justices Anne M. Patterson and Helen E. Hoens, who dissented, noted that the Legislature chose not to block the administration’s plan through a legal procedure outlined in the Reorganization Act. The two justices said they read the law more broadly.

Affordable-housing advocates hailed the ruling.

Adam Gordon, who argued the case for the Fair Share Housing Center, an advocacy group that sued to save the agency, called it a “great decision.”

Christie’s plan “really would have upset what the constitution intended” to check the governor’s powers, he added.

Critics of the housing agency called the ruling a setback for New Jersey communities.

“Today’s decision is deeply disappointing and delays the necessary reorganization needed to address the Supreme Court’s affordable-housing mandate,” said Assemblyman Scott Rumana, R-Wayne, who called the council “an outdated and terrible public policy that has adversely impacted property tax payers and towns.”

The ruling represents the latest in a string of defeats that has frustrated the governor’s efforts to make headway on the issue.

He vetoed a bill passed by the Democrat-controlled Legislature that would have revamped the state’s affordable-housing regulations, saying it would be onerous. And he backed away from an earlier attempt to abolish the council with an executive order after the threat of legal action from housing advocates.

Christie announced the latest plan to abolish the agency, using the Reorganization Act, shortly afterward. But a three-judge appellate panel resurrected the agency in a unanimous ruling last year.

And the governor has been frustrated in his attempt to seize up to $165 million in local affordable-housing funds to help balance the state budget. A three-judge appellate panel established new procedures in an emergency ruling last month, blocking the Christie administration’s plans to take the money before the last fiscal year ended on June 30.

Oral arguments to resolve the rest of that case have not been scheduled. Also, the high court has yet to rule on a third housing case that will decide the fate of a 13-year effort to update the state’s affordable-housing rules.

Democrats called on Christie to return to the bargaining table and hammer out a legislative compromise to overhaul New Jersey’s housing framework.

“I hope that the governor will now work with me and with the Legislature to find a legal, responsible and successful way to meet the need for affordable housing in New Jersey,” said state Sen. Ray Lesniak, D-Union, one of the authors of the housing legislation Christie vetoed. “It’s a challenge, but it is one we can meet.”

Advocates say that, in the meantime, the council must resume its normal functions.

The agency has met only once since Christie announced his plan to abolish it, and towns and affordable-housing advocates complain that it has sat on hundreds of requests to approve housing projects, delaying efforts to replace homes destroyed last year by Superstorm Sandy.

“Today the court acted in the best interest of New Jersey’s economy, and hopefully, this will get things moving again so more people will have access to more affordable homes,” said Staci Berger, executive director of the Housing and Community Development Network of New Jersey.

Gordon, the Fair Share Housing Center attorney, said he expects the council to resume holding regular meetings and address its backlog. “Implicit in [the council] existing is that it has to function,” he said.

A spokeswoman for the Department of Community Affairs, the umbrella department for housing issues, declined to say when the council will meet next.

Staff Writer John Reitmeyer contributed to this article. Email: [email protected]