EDISON BOARD OF EDUCATION VS. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EDISON (L-3666-19, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0320-19T1

EDISON BOARD OF

EDUCATION,

APPROVED FOR PUBLICATION

Plaintiff-Appellant, July 22, 2020

APPELLATE DIVISION

v.

ZONING BOARD OF

ADJUSTMENT OF THE

TOWNSHIP OF EDISON and

MARKIM DEVELOPERS, INC.,

Defendants-Respondents.

___________________________

Submitted June 1, 2020 – Decided July 22, 2020

Before Judges Messano, Ostrer and Susswein.

On appeal from the Superior Court of New Jersey,

Law Division, Middlesex County, Docket No. L-3666-

19.

Scarinci & Hollenbeck LLC, attorneys for appellant

(Peter R. Yarem 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, of counsel and on the brief).

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

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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 edu cation

1

The Board's motion to dismiss the OPMA count was apparently brought

pursuant to Rule 4:6-2(e), although, as we explain, the motion relied on

materials outside the four corners of the BOE's complaint. The court did not

announce it was treating the motion as one seeking summary judgment, see

ibid., none of the parties objected and, as we note later, the court applied the

appropriate standard pursuant to Rule 4:46.

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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 Crisafi v. Governing Body of Oakland, 156 N.J. Super. 182 (App.

Div. 1978), the judge concluded, "Publication of an incomplete agenda of a

2

The judge noted a potential factual dispute as to whether the memorializing

resolution was an item on the agenda posted on the door the night of the April

30 meeting. The motion record contained a certification from the BOE's

counsel, who attended the April 30 meeting and said both the notice on the

website and the notice on the door omitted any reference to the memorializing

resolution. The Board's acting secretary's certification attached a true and

accurate copy of the agenda, which listed the memorializing resolution. In his

written supplemental statement, the judge did not resolve the factual dispute as

to whether the agenda posted on the boardroom door on the night of the

hearing contained the memorializing resolution as one of its items. Instead,

the judge said his "decision [was] based upon the contention that the posted

agenda did not specifically list the memorializing resolution for adoption."

See R. 4:46-2(c) (requiring the court on summary judgment to consider the

evidence and all inferences "favoring the non-moving party," here, the BOE).

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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

(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

3

N.J.S.A. 40:55D-10(g)(2) provides: "The vote on any such [memorializing]

resolution shall be deemed to be a memorialization of the action of the

municipal agency and not to be an action of the municipal agency[.]"

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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 (1991) (citing Allen v. Wright, 468 U.S. 737, 750–51 (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 (2018) (citing People For Open Gov't v. Roberts, 397 N.J.

Super. 502, 508 (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 (quoting

Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995)).

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"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 (alteration in original) (quoting Jen Elec., Inc. v. Cty. of

Essex, 197 N.J. 627, 645 (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 (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

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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 (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. 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 (2018) (citing N.J.S.A.

10:4-7). The statute is "liberally construed in favor of openness." Burnett v.

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Gloucester Cty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 233 (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 deference to

the trial judge's interpretation. McGovern v. Rutgers, 211 N.J. 94, 108 (2012)

(citing Real v. Radir Wheels, Inc., 198 N.J. 511, 524 (2009)).

The OPMA prohibits a public body from holding a meeting "unless

adequate notice . . . has been provided to the public." N.J.S.A. 10:4-9(a)

(emphasis added). The OPMA defines "meeting" as a gathering where "the

[then present] members of a public body" intend "to discuss or act as a unit

upon the specific public business of that body." N.J.S.A. 10:4-8(b).

4

The Board has not asserted a challenge to the BOE's standing as a public

body to pursue an OPMA suit. Although we need not address the issue

squarely, we have, and Law Division has, considered the merits of OPMA

challenges brought by one public body against another in numerous reported

decisions. See, e.g., S. Harrison, Twp. Comm. v. Bd. of Chosen Freeholders

of Gloucester, 210 N.J. Super. 370, 372 (App. Div. 1986); Mun. Council of

Newark v. Essex Cty. Bd. of Elections, 259 N.J. Super. 211, 212–13 (Law Div.

1992); Twp. Comm. of Edgewater Park v. Edgewater Park Hous. Auth., 187

N.J. Super. 588, 591 (Law Div. 1982).

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In part, the motion judge concluded that the Board did not need to

provide notice of the memorializing resolution on its agenda because

approving the resolution was not Board "action" under N.J.S.A. 40:55D -

10(g)(2), and presumably, not subject to the notice requirements of the OPMA.

To some extent, the Board reiterates this argument in its brief, noting the " pro

forma" nature of the memorializing resolution. We disagree with this

conclusion.

Initially, we have held that the OPMA applies to a public body's

gathering, "[e]ven though the purpose of a meeting is to discuss and not to vote

on public business . . . ." S. Harrison, 210 N.J. Super. at 375–76 (citing Allan-

Deane Corp. v. Twp. of Bedminster, 153 N.J. Super. 114, 119 (App. Div.

1977)). More importantly, "it is the [memorializing] resolution that 'provides'

the required findings of fact and conclusions[]" reached by the Board based on

the evidence adduced at the earlier hearing. Scully-Bozarth Post # 1817 of

Veterans of Foreign Wars of the U.S. v. Planning Bd. of Burlington, 362 N.J.

Super. 296, 312 (App. Div. 2003). When a land use board's action is

challenged, the trial court and we in turn review the adequacy of the factual

findings and legal conclusions in the board's memorializing resolution, and we

have not hesitated to set aside a board's action when the resolution was

inadequate. See, e.g., Saadala v. E. Brunswick Zoning Bd. of Adjustment, 412

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N.J. Super. 541, 551–52 (App. Div. 2010) (detailing the memorializing

resolution's conclusory statements and other findings that lacked evidential

support in the record). Lastly, pursuant to Rule 4:69-6(b)(3), a party seeking

the court's review of "a determination of a planning board or board of

adjustment" must commence its action in lieu of prerogative writs within forty -

five days of publication of the memorializing resolution. 5 In short,

notwithstanding the language of N.J.S.A. 40:55D-10(g)(2), the Board's

approval of a memorializing resolution is "action" taken at a meeting for

purposes of the OPMA.

The OPMA defines "[a]dequate notice" as "written advance notice of at

least [forty-eight] hours, giving the time, date, locations and, to the extent

known, the agenda of any regular, special or rescheduled meeting . . . ."

5

We acknowledge some tension between the Rule and the OPMA regarding

the time limit for filing a prerogative writ complaint involving the actions of a

land use board. A complaint alleging an OPMA violation must be brought

within forty-five days "after the action sought to be voided has been made

public[.]" N.J.S.A. 10:4-15(a). "Constructive notice is the standard." Jersey

City v. State Dep't of Envtl. Prot., 227 N.J. Super. 5, 22 (App. Div. 1988)

(citing Edgewater Park v. Edgewater Park Housing Auth., 187 N.J. Super. 588,

603 (Law Div.1982)). In theory, a party might have constructive notice of the

board's action, allegedly in violation of the OPMA, and be required to file suit

before the board publishes notice of its action, which starts the forty-five-day

clock for substantively challenging the board's action. We do not face any

issue regarding an untimely challenge in this case.

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N.J.S.A. 10:4-8(d).6 An agenda, as the term is used in the OPMA, is "a list or

outline of things to be considered or done." Opderbeck v. Midland Park Bd. of

Educ., 442 N.J. Super. 40, 56 (App. Div. 2015) (quoting Merriam-Webster,

Full Definition of Agenda, http//www.merriam-webster.com/dictionary/agenda

(last visited Aug. 9, 2015)). However, "[w]here annual notice or revisions

thereof in compliance with [N.J.S.A. 10:4-18] set forth the location of any

meeting, no further notice shall be required for such meeting." N.J.S.A. 10:4-

8(d). As the motion judge noted, the Court has held that "[p]ublication of an

agenda . . . is required only in those instances where no annual notice has been

provided in accordance with N.J.S.A. 10:4-18." Witt, 94 N.J. at 433.

N.J.S.A. 10:4-18 requires every public body to annually publish "a

schedule of the regular meetings of the public body to be held during the

succeeding year." In Estate of Dolente v. Borough of Pine Hill, we considered

whether a statement in the annual meeting notice that listed regular and

"caucus meetings[,]" and provided that a caucus meeting might become a

"special meeting[]" when ordered by the mayor, was adequate notice under the

OPMA. 313 N.J. Super. 410, 413–14 (App. Div. 1998). We held,

6

Electronic notice via the internet, now permissible pursuant to N.J.S.A. 10 :4-

9.1, is not adequate statutory notice. McGovern, 211 N.J. at 100-01 (citing

N.J.S.A. 10:4-9.2).

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[t]he annual notice, merely by mentioning the

possibility of a special meeting, could not, however,

obviate the necessity of the council's compliance with

the forty-eight hour advance notice required under

N.J.S.A. 10:4-8d with respect to the special meeting,

absent the existence of a matter of public urgency and

importance under N.J.S.A. 10:4-9.

[Id. at 416.]

Here, the Board's acting secretary's certification included a copy of the

February 2019 published annual notice of the Board's anticipated meetings in

2019. The notice included "regular" and "special" meetings. The April 30

meeting was listed, among others and without limitation, as a special meeting.

The situation is, therefore, distinguishable from Dolente. Pursuant to Witt, the

Board did not violate the OPMA by failing to provide public notice of the

meeting's agenda at least forty-eight-hours in advance, because the Board

provided adequate notice of the April 30 meeting pursuant to N.J.S.A. 10:4-18.

Lastly, there is nothing in the record that supports a conclusion that the

Board's use of an annual notice that included regular and special meetings was

a subterfuge to permit it to act without adequate public notice, or that the

omission of the memorializing resolution from the posted agenda "was

intentional and . . . designed to deceive the public[.]" Crisafi, 156 N.J. Super.

at 187.

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Affirmed.

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