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8/14/2019 FairShare Housing Brief
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FAIRSHARE HOUSING CENTER
510 Park Boulevard
Cherry Hill, New Jersey 08002
P: 856-665-5444
F: 856-663-8182
Attorneys for Appellant Fair ShareHousing Center
By: Kevin D. Walsh, Esq.
Adam M. Gordon, Esq.
In re Executive Order on the
Council on Affordable Housing
SUPERIOR COURT
APPELLATE DIVISION
Docket No.:___________
CIVIL ACTION
On Appeal from the Office of
the Governor
Brief and Appendix in Support
of Appellant Fair Share Housing
Centers Motion to Enforce
Litigants Rights, to Stay
Executive Order 12, for Summary
Disposition, and for the
Appointment of a Special Master
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i
Brief Table of Contents
I. Introduction ........................................ 1
II. Facts .............................................. 4
A.1999-2006: COAH Delays Adopting ThirdRound Regulation for Five Years, ThenFails to Enforce the Regulation it Adopts ........ 4
B.2007-2008: Appellate Division Decisionand Further Delay by COAH ........................ 6
C.Submission of plans by December 31, 2008and COAH action since that deadline .............. 8
D.Executive Order 12 ............................... 9III. Procedural History .................................. 12
IV. Legal Argument ...................................... 12
A.Governor Christie did not have theauthority under our state constitution or
the Fair Housing Act to issue Executive
Order 12 ......................................... 12
B.Executive Order 12 violates theAdministrative Procedure Act and
guarantee to due process of law .................. 19
C.Executive Order 12 violates the Mount Laureldoctrine and the Appellate Divisions repeated
past warnings against further delay in the Third
Round process .................................... 23
D.The Appellate Division should enforce litigantsrights 30
E.The Court should at minimum stay Executive Order12 immediately ................................... 31
F.Summary disposition should be granted ............ 34G.The Court should appoint a Special Master to
oversee COAHs administration of the Third Round
regulations ...................................... 35
V. Conclusion ........................................... 37
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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 Assn 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 Dept 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
N.J. Super. 1 (App. Div. 2007) ........................
4,6,25,29,
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. Owners Protective
Assn 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
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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. Comn 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), revd 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
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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 Appellants Motion to
Enforce Litigants 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
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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
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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 Jerseys 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 states 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
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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 COAHs
regulations in many ways remain flawed, they do provide the
framework for the constitutional implementation of the Mount Laurel
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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 states 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 litigants
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 COAHs
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
states constitutional system posed by Executive Order 12.
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attendant benefits such as protections from litigation without
taking any actions to meet the Third Round housing need.
In 2004, the Appellate Division invalidated COAHs continued
protection of municipalities in the absence of regulations and
found COAHs 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
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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 COAHs 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 COAHs
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 COAHs 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 COAHs 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.
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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 Divisions 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, COAHs 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 Leagues 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
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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).
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of review and progress is substantially faster than COAHs 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. Its
now February of 2010. COAHs not dismantled.
What happened?
I didnt 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 didnt 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).
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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 COAHs 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 Directors authority. Exh. M. Although the
cancellation was weather-related, AMG Certif. 17, the agenda for
the rescheduled meeting reflects the degree to which the agencys
work has halted. The revised agenda includes one item:
Resolution Regarding Executive Order #12. Exh. M.
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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.
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Whereas under existing law, Governor Christie does not even have
the authority to veto COAHs 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 Constitutions separation of powers means that the
Governors 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).
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Thus, when an executive order contradict[s] rather than
complement[s] the Legislatures 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
constitutions 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 Assn 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
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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), revd 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
Governors 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
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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. Comn 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
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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 Legislatures and Courts 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
Christies action goes directly against the Legislatures 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 FHAs allocation of
authority through the creation of an independent agency. Executive
Order 12 both supplants the independent COAH Board completely and
removes COAHs 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 Assn v. Jersey City, 55 N.J. 86, 95 (1969).
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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 APAs 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
COAHs 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 agencys 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 Dept of
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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 APAs 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).
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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 Divisions 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 states 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 Governors
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.
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The Supreme Court upheld the FHAs 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 weare 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 Courts
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
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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 COAHs 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 COAHs
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).
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When the League of Municipalities requested a stay that would
provide even more time, COAH found that granting the Leagues
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
Leagues 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 inits 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.
COAHs 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.
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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 Divisions orders setting deadlines
in 2007-2008, and the Appellate Divisions 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.
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moderate-income families who have already seen their constitutional
rights ignored for a decade.
D. The Appellate Division should enforce litigants 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 Educations 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.
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COAHs 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 invalidationE. 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
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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
constitutions 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.
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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 respondents motion where
the appeal is patently frivolous and questions involved patently
insubstantial but also to the reversal and modification thereof of
on appellants 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
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Executive Order 12; that Executive Order 12 does not comply with
the APAs rulemaking requirements; and that Executive Order 12 will
cause further delay, frustrate compliance with the Appellate
Divisions 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
COAHs 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 Courts 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
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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 Divisions 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 COAHs 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 COAHs progress
in implementing its constitutional, statutory, and regulatory
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d u t i e s . An order i n v a l id a t in g Execut ive Order 12 w i l l not beenough to ensure t h a t the goals of t h a t order are not otherwiseaccomplished. Requir ing biweekly repor t ing w i l l ensure t h a t theCourt and pa r t i e s have s u f f i c i e n t informat ion regard ing COAH'sopera t ions to eva lua te i t s compliance with the FHA and the MountLaurel doct r ine .
V. Conclusion
For the foregoing reasons , we respec t fu l ly reques t theAppel la te Divis ion to (a ) enforce the Appel la te Divi s ion ' s ordersr e l a t ed to the adopt ion and implementat ion of the Third Roundregu la t ions ; (b) s tay Execut ive Order 12; (c) summarily inva l ida teExecut ive Order 12; and (d) appoin t a sp ec i a l master to overseeCOAH's opera t ions .
Dated: 2(rs( 20 (0 Respec t fu l ly submi t ted ,FAIR SHARE HOUSING CENTER~ z . : : s ; " " : _Kevin D. W I sh , Esq.
Adam M. Gordon, Esq.