Edison Bd. of Educ. v. Zoning Bd. of Adjustment of the Twp. of Edison

• Decision Date: 22 July 2020
• Docket Number: DOCKET NO. A-0320-19T1
• Citation: 235 A.3d 249,464 N.J.Super. 298
• Parties: EDISON BOARD OF EDUCATION, Plaintiff-Appellant, v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EDISON and Markim Developers, Inc., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

464 N.J.Super. 298

235 A.3d 249

EDISON BOARD OF EDUCATION, Plaintiff-Appellant,

v.ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EDISON and Markim Developers, Inc., Defendants-Respondents.

DOCKET NO. A-0320-19T1

Superior Court of New Jersey, Appellate Division.

Submitted June 1, 2020

Decided July 22, 2020

Scarinci & Hollenbeck LLC, attorneys for appellant (Peter R. Yarem, Lyndhurst, and Rachel Elizabeth Simon, of counsel and on the briefs).

Bhavini Tara Shah, attorney for respondent Zoning Board of Adjustment of the Township of Edison.

Brown Moskowitz & Kallen, PC, attorneys for respondent Markim Developers, LLC (Richard S. Schkolnick, Summit, of counsel and on the brief).

Before Judges Messano, Ostrer and Susswein.

The opinion of the court was delivered by

MESSANO, P.J.A.D.

On March 26, 2019, the Edison Township Zoning Board of Adjustment (Board) held a hearing to consider the development application filed by Markim Developers, LLC (Markim), which sought a use and various bulk variances to construct two, four-family residential buildings, as well as preliminary and final site plan approval. The Board approved the application, and, at its April 30, 2019 meeting (the April 30 meeting), adopted a memorializing resolution reflecting its approval.

Plaintiff, Edison Board of Education (BOE), then filed a complaint in lieu of prerogative writs. In the first count, the BOE alleged the April 30 meeting violated the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to - 21, because the Board's agenda "neither ... listed or otherwise provided notice of the adoption of a resolution[.]" The BOE claimed in count two that the Board's approval of the variances was arbitrary, capricious and unreasonable.

Markim filed a responsive pleading, but the Board filed a motion to dismiss in lieu of filing an answer, asserting that the BOE lacked standing to bring the suit.¹ Shortly thereafter, Markim filed its own motion seeking dismissal on the same grounds.

The Law Division judge considered argument on the motions before rendering an oral opinion dismissing the complaint with prejudice. The judge's August 7, 2019 order was supplemented with a written statement of reasons supporting dismissal. The judge rejected the BOE's rationale for why it had standing to challenge the Board's approvals under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. Succinctly stated, the BOE asserted the school district was overcrowded and permitting further multi-family residential development would only exacerbate the problem. The judge reasoned that the BOE had no possessory interest in the property or adjacent property that would be adversely affected by the development, "nor ha[d the BOE] alleged that the action taken by the [Board] create[d] a likelihood of substantial harm to it, as a body." (Emphasis added). The judge concluded, "The issue of overcrowding or its effect on a thorough and efficient education is not before this court, nor is it a proper subject to consider in granting standing in zoning cases." He dismissed count two of the complaint.

The judge then addressed the alleged OPMA violation. He noted that the Board prepared two agendas: one available on the township's website prior to the meeting date; and, a second, which the BOE obtained through a records request under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13, posted by the Board's secretary on the door of the meeting room prior to the April 30 meeting.² The judge concluded that "the website publication [was] not official but informative only." He determined that obviously the BOE had notice of the April 30 meeting, because its counsel attended. However, citing our decision in Crifasi v. Governing Body of Oakland, 156 N.J. Super. 182, 383 A.2d 736 (App. Div. 1978), the judge concluded, "Publication of an incomplete agenda of a regular meeting does not violate the [OPMA] unless the omission was intentional and designed to deceive the public." He noted the BOE never alleged the Board acted with intent to deceive.

Citing Witt v. Gloucester Cty. Bd. of Chosen Freeholders, 94 N.J. 422, 466 A.2d 574 (1983), the judge also reasoned that once the Board published its annual list of scheduled meetings, the OPMA did not require "further notice" for each meeting. He determined that the OPMA's definition of "meeting" required that the "gathering" of the Board's members be held "with the intent ... to discuss or act as a unit upon the specific public business of that body." (Quoting N.J.S.A. 10:4-8 ). Citing N.J.S.A. 40:55D-10(g)(2), the judge concluded that "[a] memorializing resolution is not an 'action' taken by the ... Board as intended under [the] OPMA."³ He dismissed the first count of the complaint.

The BOE appealed, essentially reiterating the arguments it made before the Law Division judge and urging us to reverse the order dismissing the complaint. The Board and Markim moved to dismiss the appeal only with respect to the BOE's challenge to the approval of the development application, because the BOE lacked standing. We denied the motions without prejudice to consideration of the issue by this panel, and, both the Board and Markim have reasserted the argument in their merits briefs that the BOE lacked standing under the MLUL. In addition, the Board urges us to affirm dismissal of count one of the complaint because there was no violation of the OPMA.

Having considered these arguments in light of the record and applicable legal principles, we affirm.

I.

We first consider whether the BOE has standing under the MLUL to challenge the Board's approval of Markim's development application. "Standing is ... a threshold issue. It neither depends on nor determines the merits of a plaintiff's claim." Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 417, 591 A.2d 592 (1991) (citing Allen v. Wright, 468 U.S. 737, 750–51, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ). "Whether a party has standing to pursue a claim is a question of law subject to de novo review." Cherokee LCP Land, LLC v. City of Linden Planning Bd., 234 N.J. 403, 414, 191 A.3d 597 (2018) (citing People For Open Gov't v. Roberts, 397 N.J. Super. 502, 508, 938 A.2d 158 (App. Div. 2008) ). "We therefore accord no ‘special deference’ to the ‘trial court's interpretation of the law and the legal consequences that flow from established facts.’ " Id. at 414–15, 191 A.3d 597 (quoting Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995) ).

"A litigant has standing only if the litigant demonstrates ‘a sufficient stake and real adverseness with respect to the subject matter of the litigation [and a] substantial likelihood of some harm ... in the event of an unfavorable decision.’ "

Id. at 423, 191 A.3d 597 (alteration in original) (quoting Jen Elec., Inc. v. Cty. of Essex, 197 N.J. 627, 645, 964 A.2d 790 (2009) ). Although we have accorded liberal standing requirements to those challenging the actions of land use boards in zoning cases, see, e.g., DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 172, 842 A.2d 266 (App. Div. 2004), the MLUL contains specific requirements for standing, both before the land use board and before the court. N.J.S.A. 40:55D-4 defines an

"[i]nterested party" ... in the case of a civil proceeding in any court or in an administrative proceeding before a municipal agency, [as] any person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or may be affected by any action taken under [the MLUL], or whose rights to use, acquire, or enjoy property under [the MLUL], or under any other law of this State or of the United States have been denied, violated or infringed by an action or a failure to act under [the MLUL].

"Although the language is particularly broad it should be understood in the context of the MLUL generally. Thus, the use, enjoyment or right to acquire should always be evaluated in terms of the purpose of the MLUL ...." William M. Cox & Stuart R. Koenig, N.J. Zoning and Land Use Administration, § 18-2.2 at 357 (2019). For actions under the MLUL, "standing requires that, in addition to establishing its ‘right to use, acquire, or enjoy property,’ a party must establish that that right ‘is or may be affected.’ " Cherokee LCP Land, 234 N.J. at 416–17, 191 A.3d 597 (quoting N.J.S.A. 40:55D-4).

We affirm the dismissal of count two of the complaint, substantially for the reasons expressed by the trial judge. The BOE's generalized claim of harm caused by the possibility of students being added to an already overcrowded school district is insufficient to make the BOE an "interested party," entitled to litigate its claim under the MLUL. We acknowledge, however, that "standing must be considered on a case-by-case basis," Cherokee LCP Land, 234 N.J. at 418, 191 A.3d 597. Thus, for example, the BOE would likely have standing to challenge the approval of a development application for property near one of its school buildings, because that application might adversely affect the BOE's ability to "use, acquire, or enjoy" its real property. N.J.S.A. 40:55D-4. This is not such a case.

II.

"The [OPMA] makes explicit the legislative intent to ensure the public's right to be present at public meetings and to witness government in action." Kean Fed'n of Teachers v. Morell, 233 N.J. 566, 570, 187 A.3d 153 (2018) (citing N.J.S.A. 10:4-7 ). The statute is "liberally construed in favor of openness." Burnett v. Gloucester Cty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 233, 976 A.2d 444 (App. Div. 2009) ; N.J.S.A. 10:4-21. "Any party, including any member of the public, may institute a proceeding in lieu of prerogative writ ... to challenge any action taken by a public body on the grounds that such action is void for" violating the statute. N.J.S.A. 10:4-15(b).⁴ We must decide whether the Board complied with the OPMA, which requires us to interpret the statute and presents a question of law, which we review de novo and without...