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Board of Education of the City of Clifton v. Zoning Board of Adjustment of the City of Clifton

409 N.J. Super. 389, 977 A.2d 1050 (App. Div. 2009)

ZONING; SCHOOLS — A local zoning board is not permitted to consider safety and transportation issues related to school construction because all issues with respect to safety, health, and the adequacy of schools are within the jurisdiction of the New Jersey Department of Education and not a zoning board.

A municipal board of education (BOE) purchased a vacant industrial building that it planned to convert into a high school annex for 500 ninth-grade students. Since the property was located in an industrial zone where schools were not permitted, the BOE needed a use variance. Before the BOE acquired the property, it submitted an application for land acquisition to the New Jersey Department of Education (DOE) seeking approval of the project in accordance with the Educational Facilities Construction and Financing Act, N.J.S.A. 18A:7G-1 to -48 (Act). In connection with its application, the BOE was required to submit a letter from the municipal planning board indicating that the planning board had reviewed the proposed site plan for the new school. The BOE received a letter from the municipal planner, but not the planning board. The letter posed several questions which were not answered by the BOE. Nonetheless, the DOE deemed the letter sufficient to satisfy the BOE’s statutory obligations to obtain recommendations from the planning board and approved the project. The BOE then submitted its application for a use variance to the zoning board. The municipal planner sent a letter to the DOE in which he argued that the project should not have been approved because the BOE did not receive planning board approval. In addition, he argued that a school on that site was inconsistent with the master plan. The DOE responded that it was satisfied that the BOE had met its obligations under the Act, and that it considered the planner’s concerns but nonetheless approved the project.

The zoning board conducted nineteen hearings, after which it denied the use variance. The board found that the school was an inherently beneficial use that satisfied the positive criteria needed for a “d” variance, but that it had not overcome the negative criteria. It found that the master plan did not allow schools in industrial zones, that granting a variance would change the neighborhood to the detriment of residential and industrial uses, that the school would be a nuisance to surrounding industry, and the presence of trucks and vehicular traffic would pose a danger to the students.

The BOE filed a complaint in lieu of prerogative writs, and the lower court held that the zoning board had improperly considered safety and transportation issues relating to school construction. It found that pursuant to the Act, all issues with respect to the safety, health, and adequacy of schools were within the jurisdiction of the DOE and not the zoning board. The lower court noted that the zoning board did not point to a specific provision within the master plan with which a school would be inconsistent. The zoning board relied on the fact that schools were not permitted in industrial zones. Instead, the lower court also found that construction of a school on the vacant industrial property satisfied several goals of the master plan, including stated goals to encourage re-use and rehabilitation of vacant industrial properties for residential uses and to provide adequate community facilities, including schools.

The lower court remanded the matter back to the zoning board to analyze only the pertinent negative criteria. It was directed to avoid discussion of safety concerns, leaving those to the DOE, and only to look at the negative impact on the public good (i.e., - the impact on property values, damage to the character of the neighborhood). The lower court also required the BOE to make a formal application to the planning board and then renew its application for the DOE approval before having its application reconsidered by the zoning board.

On remand, the zoning board adopted a resolution critical of the project, but the DOE affirmed its prior decision, finding that the project was not inconsistent with the master plan. The zoning board once again denied a variance, finding that the project’s negative criteria, such as increased traffic and the detrimental effect on industrial uses and character of the neighborhood, made it unsuitable for use as a school and outweighed the benefits.

The BOE moved to have the zoning board’s denial reversed, and this time the lower court found that zoning board’s denial of a use variance was arbitrary, capricious, and unreasonable. It found that the negative criteria relied upon by the board were based on numerous irrelevant and unsubstantiated statements. On appeal, the lower court’s decision was affirmed. In doing so, the Appellate Division found that the Act, which gave the DOE the sole authority to evaluate safety concerns related to schools, did not limit the DOE’s jurisdiction for safety issues to the school buildings. It found it a fair and reasonable interpretation of the Act would allow the DOE to consider off-site safety issues related to school construction projects as well. It held that the Act was a comprehensive law regulating the planning, design, and construction of school facilities to ensure the adequacy of the facilities and the safety of the students. If a zoning board were permitted to issue rulings regarding these issues contrary to the DOE’s determination, it would usurp the DOE’s jurisdiction as intended by the New Jersey legislature. Therefore, under the doctrine of preemption, a zoning board cannot contradict the DOE’s findings regarding safety issues. As a result, the Court affirmed the lower court’s holding that the zoning board’s denial of the variance was arbitrary, capricious, and unreasonable, and that the BOE had satisfied the positive and negative criteria required for a use variance.


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