In Christopher C. Cona v. Township of Washington, the Appellate Division upheld a local ordinance imposing certain landlord fees. In reaching its decision, the appeals court distinguished the matter from Timber Glen Phase III v. Township of Hamilton, which struck down an ordinance requiring landlords to be licensed and pay a licensing fee. 

Appellate Division Decision in Timber Glen

In Timber Glen, the Appellate Division struck down a residential apartment licensing ordinance which required the annual registration and licensing of apartment units in the Township of Hamilton. According to the Appellate Division, the ordinance fell outside the authority granted to municipal governments under the Licensing Act.As such, the ordinance was deemed to be invalid because it was ultra vires and thus unenforceable.

In reaching its decision, the Appellate court concluded that the authority granted by the State to license rental properties is constrained by the provisions of the Licensing Act. As such the court rejected the Township’s argument that its general police power encompasses the authority to license residential rental units.

As to the Licensing Act, the Appellate Division adopted a narrow interpretation of the statute’s licensing provisions regarding rental housing. The court held that: “We conclude the Legislature chose to limit municipal licensing authority to short-term lease arrangements. If that interpretation is incorrect, the Legislature will act to provide further clarification.”

Lastly, in a footnote, the Appellate Division states that its opinion is “confined to the authority to license and does not address Defendant’s regulatory or inspection authority granted by other statutes designed to assure rental premises remain safe, building and fire code compliant and structurally sound.”

Facts of the Cona Case

The three consolidated cases all involved municipal ordinances dealing with apartment rentals. While the ordinances varied by municipality, they generally required annual registration and the payment of a fee before the issuance of a license permitting the rental of a unit. Additionally, the ordinances required the units to pass inspection in order to safeguard the health, safety, welfare of the occupants as well as the general public. The ordinances stated that the inspections were needed to verify that the units were in compliance with various zoning and housing regulations.

In their complaints the landlords alleged the municipalities violated the New Jersey Civil Rights Act (CRA) and that the ordinances requiring the payment of license fees were ultra vires pursuant to the ruling in Timber Glen. However, the trial court judges found that the challenged ordinances were readily distinguishable from the ordinance invalidated in Timber Glen, reasoning that the fees were permissible under a municipality’s regulatory powers in order to defray costs for inspections or registration of rental units.

Appellate Division Decision

On appeal the Appellate Division affirmed. “We conclude from our de novo review that all of the plaintiffs’ complaints were properly dismissed under Rule 4:6-2(e), as none of the challenged ordinances were ultra vires in that the fees charged under them were reasonably related to the municipalities’ exercise of their obligation to promote the safety and welfare of their residents,” the court held. In coming to this decision, the Appellate Division differentiated between a fee charged by a municipality to offset costs of regulation and a fee charged simply to generate revenue, stating that a municipality may charge fees to defray the costs of regulation, but may not charge a fee solely for revenue generation purposes.

While the Appellate Division largely relied on the lower court’s opinions, it did clarify the reach of its decision in Timber Glen. “The prohibition against requiring licenses did not abrogate a municipality’s power to regulate rental property within its jurisdiction, including requiring that they be inspected before being occupied by a new tenant or its ability to ‘charge a fee to fund the costs of the inspections and the issuance of the certificates,’” the court emphasized.

The court specifically emphasized that a municipality may regulate rental units and buildings as a whole, and the combination might involve some degree of overlap. As its opinion explained:

For example, a rental unit is inspected for compliance with tenancy regulations, and the building in which it is located is inspected to insure it is sound and constructed in accordance with required building permits. See N.J.A.C. 5:23-2.23A. That overlap does not limit a municipality’s ability to offset its costs for providing those services by charging fees, as long as they are not simply exercises in revenue production. We discern no such exercise in these cases as we did in Timber Glen.

The Appellate court further clarified that the fact that an ordinance calls for additional information to be provided for registration than what the State mandates and charges a reasonable, associated fee does not deem the ordinance ultra vires. In support, the court noted that “the Legislature has empowered [municipalities with the authority] to adopt an inspection and certification scheme for rental housing and it is within a municipality’s authority to charge a reasonable fee to defray the costs it incurs in carrying out that authority” (internal citations omitted).

The court did acknowledge however that “a municipality calling the fees being properly charged ‘license fees’ flies in the face of Timber Glen and causes considerable confusion.” Accordingly, the Appellate Division remanded the cases back to the trial courts for the entry of orders directing the defendant municipalities to “strike the reference to their fees as license fees and changing the designation of any requirement for registration or inspection from being part of a licensing requirement.”

This recent Appellate Division decision provides some guidance as to what landlord fees a municipality may impose. This is all depending on whether the fee funds the costs of inspections and regulatory compliance or whether it generates money for the municipality only as a tax. It remains to be seen whether the plaintiffs will appeal to the New Jersey Supreme Court.

For more information about the court’s decision or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

In Dunbar Homes, Inc. v. Zoning Board of Adjustment of Franklin Twp., the Supreme Court of New Jersey (MLUL) clarified the Time of Application Rule. It held that an application for development is only complete when all required documents are submitted for review, including all documents mandated under a municipal ordinance. 

Time of Application Rule 

N.J.S.A. 40:55D-10.5, a section of the Municipal Land Use Law (MLUL), provides:

Notwithstanding any provision of law to the contrary, those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development and any decision made with regard to that application for development. Any provisions of an ordinance, except those relating to health and public safety, that are adopted subsequent to the date of submission of an application for development, shall not be applicable to that application for development.

The rule, known as the Time of Application Rule (TOA Rule), replaced the prior “time of decision” rule under which the zoning regulations in effect at the time the planning board or zoning board decided the application were applied. The time of application rule was enacted to address “situations in which a developer would spend time and money pursuing an application, only to have a municipality change the zoning to the developer’s detriment while the application was pending.”

Facts of the Case

Plaintiff Dunbar Homes, Inc. (Dunbar) owns an existing garden apartment complex with 276 units in the Township’s General Business (GB) zone. Dunbar also owns 6.93 acres adjacent to this complex and planned to seek approval for fifty-five additional apartments on that property. Without any change in the ordinance, Dunbar was required to seek a conditional use variance pursuant to N.J.S.A. 40:55D-70(d)(3) because the size of the property was less than the minimum ten acres required for garden apartments as a conditional use in that zone.

On July 16, 2013, the Township amended its ordinance to eliminate garden apartments as a conditional use in that zone. On the day before the amendment was adopted, Dunbar filed a submission with the Planning Board seeking site plan approval and a (d)(3) conditional use variance for its proposed garden apartment project in the GB zone.

Defendants Township of Franklin and the Zoning Board of Adjustment (collectively, the Township) maintain that the time of application statute does not apply until the application for development is complete. Conversely, plaintiff Dunbar Homes, Inc. (Dunbar) argues “the submission of a substantial, bona-fide application which does not constitute a sham, and one which gives the Township sufficient notice of the application and an understanding of the development being proposed by the applicant, is sufficient” for the protection of the time of application statute.

The Appellate Division held that, although the submission need not be “deemed complete” pursuant to N.J.S.A. 40:55D-10.3, the plain language of relevant provisions of the MLUL requires a submission to include the “application form and all accompanying documents required by ordinance for approval” for the time of application rule to apply.

NJ Supreme Court’s Decision

The Supreme Court of New Jersey unanimously affirmed. “Because Dunbar’s application lacked many of the documents required by the Ordinance, the application was not complete upon submission and does not benefit from the TOA Rule,” the court held.

In reaching its decision, the New Jersey Supreme Court emphasized that the terms used in the TOA Rule must be construed in accordance with other definitions set forth in the MLUL. Accordingly, it concluded that the term “application for development” must be interpreted to mean “the application form and all accompanying documents required by ordinance for approval of a subdivision plat, site plan, planned development, cluster development, conditional use, zoning variance or direction of the issuance of a permit.”

The court further held that “[d]eterminations as to the precise contents of an ‘application for development’ are thus left to municipalities, in accordance with the Legislature’s general exercise of its ‘constitutional authority to delegate to municipalities the ‘police power’ to enact ordinances governing’ land use ‘through the passage of the [MLUL].’” In making those determinations, the court held that the zoning officer should compare the contents of a submission to the requirements of the municipal ordinance. As the court explained, “That clear, easily applied, and objective standard advances the MLUL’s goal of statewide consistency and uniformity in land use decisions.”

While the New Jersey Supreme Court rejected the trial court’s “meaningful review” standard, it did highlight some important practical limits to Board determinations based on an application’s failure to include all required materials. Notably, an application is not “incomplete” simply because a municipality requires “correction of any information found to be in error and submission of additional information.

In addition, in the event information required by ordinance is not pertinent, the applicant may request a waiver. The applicant’s submission will provisionally trigger the TOA Rule if a waiver request for one or more items accompanies all other required materials. If the Board grants the waiver, then the application will be deemed complete. Meanwhile, if the Board denies the waiver, its decision will be subject to review.

The decision inDunbar Homes, Inc. v. Zoning Board of Adjustment of Franklin Twp. is clearly a win for New Jersey municipalities. Under the court’s interpretation of the time of application rule, local officials will generally control whether an application may benefit from the TOA Rule.

For more information about the New Jersey Supreme Court’s decision or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

In the recent decision of Kean Federation of Teachers v. Ada Morell,the Supreme Court of New Jersey clarified two requirements under the New Jersey Open Public Meeting Act (“OPMA”):

(1) to make meeting minutes “promptly available” to the public as required by     N.J.S.A. 10:4–14; and

(2) to provide employees, whose employment status may be adversely affected, with notice informing them of their right to compel their public employer to discuss their employment status in public as required under Rice v. Union Cty. Reg’l High Sch. Bd. of Educ.(“Ricenotice”).

The state’s highest court reversed the Appellate Division decision which required all employees to receive Ricenotices if their names appeared on a public body’s agenda. It also held that the OPMA does not mandate the level of “robustness” that must accompany discussions of personnel decisions. The court declined to establish a precise deadline for the release of meeting minutes, reasoning that a reasonableness standard is more readily applied to varying types of public bodies.

OPMA Requirements

The OPMA requires the meetings of public bodies to be conducted in open session and in view of the public. It specifically requires that “[a] public body may exclude the public only from that portion of a meeting at which the public body discusses” a “matter involving the . . . termination of employment . . . of any . . . current . . . employee . . . unless all the individual employees or appointees whose rights could be adversely affected request in writing that the matter or matters be discussed at a public meeting.”

Employees whose employment interests could be adversely affected have the right to waive the protection of having their matter discussed in a closed session and may instead request the matter be heard in public. In Rice v. Union Cty. Reg’l High Sch. Bd. of Educ., 155 N.J. Super. 64, 73 (App. Div. 1977), the Appellate Division held that public bodies must send affected employees reasonable advance notice to enable them to (1) make a decision on whether they desire a public discussion; and (2) prepare and present an appropriate request in writing.

Additionally, the OPMA requires public bodies to make their meeting minutes “promptly available to the public to the extent that making such matters public shall not be inconsistent with [N.J.S.A. 10:4-12].” However, the OPMA does not define the term “promptly available.”

Facts of the Case

Plaintiffs, the Kean Federation of Teachers (“KFT”); KFT President James Castiglione; and a Kean University faculty member Valera Hascup, filed an action in lieu of prerogative writs against the Board of Trustees of Kean University and Ada Morell in her capacity as Chairperson (collectively “the Board”). The suit alleged that the Board violated the OPMA when it took ninety-four days to release the minutes of a meeting held on September 15, 2014, and fifty-eight days to release the minutes of a meeting held on December 6, 2014. The Plaintiffs also alleged that the Board violated OPMA when it terminated Hascup’s position without sending her the notice required under Rice.

In response, the Board maintained that it produced the meeting minutes as quickly as possible given the Board’s five meetings per year schedule. The trial judge rejected the Board’s argument, finding any inconvenience to the Board was outweighed by the public policy in support of making meeting minutes “promptly available.” The court issued a permanent injunction requiring the Board to make the minutes of all future meetings available to the public “within forty-five days.”

The Appellate Division affirmed the determination of the lower court that the Board did not make the meeting minutes promptly available, but reversed and vacated the permanent injunction. The Appellate Division further ordered that the Board adopt a meeting schedule for the 2017-18 academic year that would promote the release of meeting minutes within thirty to forty-five days of the last meeting, except in “extraordinary circumstances.” With respect to the Riceissue, the Appellate Division held that Ricenotices are required “in advance of any meeting at which a personnel decision may occur.” The panel also voided all personnel-related actions taken by the Board at the December 6 meeting.

NJ Supreme Court’s Decision

The state’s highest court held that there was no obligation to send Ricenotices because the Board determined from the start to conduct its discussion about faculty reappointments in public session. With regard to the release of meeting minutes, the court held that the “delay that occurred is unreasonable no matter the excuses advanced by the Board.” However, it modified the Appellate Division’s holding requiring the Board to set a regular meeting schedule.

In its decisionissued on June 21, 2018, the New Jersey Supreme Court first rejected the Appellate Division’s interpretation of OPMA, which mandated that public bodies issue Rice noticesto all potentially affected employees, regardless of whether the employee is adversely affected, whenever a personnel matter appears on a governing body’s public meeting agenda and to “robustly” discuss all personnel matters. The court held that the lower court’s ruling incorrectly expanded the reach of Ricenotices and OPMA requirements. “We find that the procedural notice created in Riceshould not be stretched beyond its factual setting.” As the New Jersey Supreme Court further explained:

Forcing public bodies to issue Rice notices and robustly discuss all personnel matters, as the Appellate Division intimated, would intrude on a public body’s prerogative as to how to conduct its meetings. The Appellate Division’s holding on the Rice requirement takes that salutary notice procedure out of its context and places on public bodies an intrusive, expansive, and confusing notice requirement that extends beyond the plain language of the right of employees under N.J.S.A. 10:4-12(b)(8).

Accordingly, pursuant to the Supreme Court’s ruling Ricenotices are required only when the public body first makes the choice to discuss personnel matter in a closed session, and only when the discussion could result in adverse employment actions. Consequently, there is no obligation to send Rice notices where the Board determined from the start to conduct its discussion about faculty reappointments in public session.

Regarding the OPMA’s requirement that meeting minutes be made “promptly available,” the New Jersey Supreme Court reasoned that a public entity must establish its meeting schedule to suit the managerial obligations of its public responsibilities while also acting responsibly concerning its obligation to make minutes promptly available to the public. “The OPMA’s requirements apply to a diverse range of public entities, so no one set amount of time for the release of minutes should be mandated,” the court explained. “Reasonableness must remain the touchstone when assessing promptness.”

As to this issue, the Supreme Court agreed with the Appellate Division that the five-month delay in releasing the Board’s executive session minutes was unreasonable. However, it reversed the lower court’s holding requiring the Board to set a regular meeting schedule that would allow for the approval of minutes within a forty-five-day time period. The court noted that, “if a public entity, like the Board, were to continue to limit its meetings to five per year, significantly impeding its ability to approve meeting minutes promptly, we might see the issue again.”

Notably, the New Jersey Supreme Court commended public bodies that are using technology to release meeting minutes quickly to the public. “As for minutes of closed sessions, which may require sensitive considerations and even consultation with counsel, we expect public bodies will similarly develop ways to speed the process without shortchanging their decisions as to what may be included for release to the public in such minutes,” the court added.

This decision comes as a relief to many Boards of Education as they are no longer required to spend time and resources sending Ricenotices to every employee. Rice noticesare required only when the public body first makes the choice to discuss personnel matter in a closed session, and only when the discussion could result in adverse employment actions. Boards should continue to make all minute promptly available to the public in accordance with the OPMA.

For more information about the court’s OPMA decision or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

In William J. Brennan v. Bergen County Prosecutor’s Office, the Supreme Court of New Jersey held that the state’s Open Public Records Act (OPRA) compels the disclosure of documents including the names and addresses of persons who successfully bid at an auction of public property. The court’s decision is particularly noteworthy because it establishes a new test for balancing transparency and privacy with respect to OPRA requests.

Facts of the Case

An auction was held at the Bergen County Law and Public Safety Institute to sell sports memorabilia seized by the Bergen County Prosecutor’s Office. There were thirty-nine successful bidders. Plaintiff William Brennan submitted a request to the Prosecutor’s Office, based on OPRA and the common law, for “[r]ecords of payment received from all winning bidders” and “[c]ontact information for each winning bidder.” The Prosecutor’s Office offered redacted copies of receipts that did not include the buyers’ names or addresses. The Office explained that it had sent the buyers letters to ask if they would consent to disclosure of their personal information. For buyers who consented, the Office represented it would provide unredacted receipts.

Brennan subsequently filed a complaint maintaining that he was entitled to the requested records under OPRA and the common law right of access. The Bergen County Prosecutor’s Office and its custodian of records filed a motion to dismiss. The trial court directed defendants to release the requested information under OPRA. The court analyzed defendants’ privacy argument under the factors outlined in Doe v. Poritz, 142 N.J. 1 (1995). TheDoefactors call for an examination of:

(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.

Based on its analysis, the court found that the buyers’ privacy interest was “limited,” in that most names and addresses are already publicly available from various sources. Likewise, because the information was not “private,” the court found that the potential for harm was “relatively miniscule.” The court noted that plaintiff sought names and addresses, not social security numbers. As a result, any concern that disclosure would create a security risk for the buyers was “only speculative.”

The Appellate Division reversed. The panel weighed the Doefactors and concluded that the buyers had a reasonable expectation of privacy in their names and addresses because the purchase of sports memorabilia could reveal that an individual is a collector and “could make the bidders targets of theft.” Finally, the panel observed that the interest in government accountability would not be served by disclosure. For similar reasons, the Appellate Division found plaintiff was not entitled to disclosure under the common law.

NJ Supreme Court’s Decision

The Supreme Court of New Jersey unanimously reversed. “OPRA calls for disclosure of records relating to the auction,” Chief Justice Stuart Rabner wrote on behalf of the panel.

In reaching its decision, the state’s highest court determined that “courts are not required to analyze Doe factors each time a party asserts that a privacy interest exists.” According to the court, “a party must first present a colorable claim that public access to records would invade a person’s reasonable expectation of privacy.”

In support of its conclusion, the court highlighted that OPRA states it is only “when disclosure . . . would violate the citizen’s reasonable expectation of privacy” that a public agency must safeguard records from public access. It also noted that in Asbury Park Press v. County of Monmouth, for example, the court saw “no reason to analyze the Doe factors” when disclosure “would not violate any reasonable expectation of privacy.”

With regard to the facts of the case, the court went on to hold that the defendants failed to present a colorable claim in support of their privacy argument. As Chief Justice Rabner explained, “It is not reasonable to expect that details about a public auction of government property—including the names and addresses of people who bought the seized property—will remain private.” Rabner added: “OPRA does not contain a broad-based exception for the disclosure of names and home addresses that appear in government records.”

Chief Justice Rabner also highlighted the public nature of auction. “The bidders knew they were participating in a public auction” and the “participants knew that they were bidding on seized property forfeited to the government,” he wrote. “Forfeiture proceedings and public auctions of forfeited property are not conducted in private.”

For more information about the OPRA decisionin William J. Brennan v. Bergen County Prosecutor’s Officeor the legal issues involved, we encourage you to contact a member of Scarinci & Hollenbeck’s Government Law Group.

As we approach the New Year, we are looking back at the public law issues that impacted New Jersey school districts in 2017. The past year brought a number of legal developments involving education law both at the state and federal level. Below is a brief summary:

Endrew F. v. Douglas County School District: The U.S. Supreme Court unanimously held that public schools are responsible for providing students with disabilities education programs that are “more than de minimis.” The Court’s decision significantly expands the obligations of New Jersey public schools under the Individuals with Disabilities Education Act (IDEA). The Court clarified, “[f]or a child fully integrated in a regular classroom, an IEP typically should be ‘reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.’” The Court continued, with respect to disabled students, for whom advancement from grade to grade is “not a reasonable prospect,” an IEP “must be appropriately ambitious in light of his circumstances.”

Fry v. Napoleon Community Schools: The U.S. Supreme Court unanimously held that exhaustion of the administrative procedures established by the Individuals with Disabilities Education Act (IDEA) is unnecessary when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee of a “free appropriate public education.” The suit, brought by parents of a girl born with cerebral palsy, alleged that her school violated Title II of the Americans with Disabilities Act by refusing to allow her service dog to attend school with her. The Court determined that the Frys may not have been required to exhaust the IDEA’s administrative proceedings before pursuing a lawsuit in federal court. The Court noted it lacked important information, vacated the Court of Appeals’ decision and remanded the matter with specific instructions to conduct the appropriate analysis. “[N]othing in the nature of the Frys’ suit suggests any implicit focus on the adequacy of (Elena’s) education,” Justice Elena Kagan wrote. “[T]he Frys could have filed essentially the same complaint if a public library or theater had refused admittance to Wonder.”

New Protections for Transgender Students: On July 21, 2017, Governor Chris Christie signed Senate Bill 3067, which provides new protections for transgender students and requires the Commissioner of Education to develop guidelines for school districts. The legislation is intended to ensure that transgender students are protected from discrimination and have a safe learning environment.

 L.R. v. Camden City Public School District: The Appellate Division of the New Jersey Superior Court cleared the way for advocacy organizations to gain access to redacted reports detailing settlement agreements and other student records related to services provided to disabled and special needs students. Pursuant to the court’s decision, however, organizations must establish that they are bona fide researchers or obtain a court order. In  its opinion, the Appellate Division highlighted the potential research value of the records. “Such information could yield trends or practices that could inform policy-making, academic studies, grants, and other related endeavors,” Judge Jack Sabatino wrote.

To learn more about the education law issues discussed above, we encourage you to click through to the relevant blog post. You can also contact a member of Scarinci Hollenbeck’s public law practice with any questions regarding how the developments may impact your municipality or agency.

The Appellate Division of the New Jersey Superior Court has cleared the way for advocacy organizations to gain access to redacted reports detailing settlement agreements and other student records related to services provided to disabled and special needs students. Under the court’s decision, organizations must establish that they are bona fide researchers or obtain a court order. 

Facts of the Case

The decision in L.R. v. Camden City Public School District arises out of several consolidated lawsuits filed by parents of New Jersey students and the Innisfree Foundation. In all of the cases, the plaintiffs sought copies of settlement agreements and records of the provision of special services to qualified students. The school districts, Cherry Hill, Hillsborough, Parsippany-Troy Hills, and Camden City, declined disclosure, largely citing statutory and regulatory provisions aimed to protect the privacy of student records.

The trial courts reached differing conclusions regarding the disclosure of the records. The judge in the Hillsborough case held that the plaintiff advocacy organization’s request must be disallowed under the regulations of the New Jersey Department of Education, N.J.A.C. 6A:32-7.1 to -7.8.  That ruling was consistent with a prior administrative decision of the Government Records Council (GRC) interpreting those regulations.  Conversely, the judges in the Cherry Hill and Parsippany-Troy Hills cases ruled that the applicable laws and regulations allow the plaintiff-requestors access to the records, provided that the disabled students’ personally identifiable information was redacted from them. Finally, the trial judge in the Camden City case dealt with the separate issues posed by a parent’s access to her own child’s records, “access logs” for those records, and other documents possessed by the school district that refer to her child. The judge ordered the school district to produce an unredacted copy of the child’s own records and access logs, but not other records.

Appellate Decision  

The Appellate Division held that the plaintiffs are entitled to redacted copies of the requested records, provided that on remand those plaintiffs either: (1) establish they have the status of “[b]ona fide researcher[s]” within the intended scope of N.J.A.C. 6A:32-7.5(e)(16); or (2) obtain from the Law Division a court order authorizing such access pursuant to N.J.A.C. 6A:32-7.5(e)(15).

In reaching its decision, the Appellate Division highlighted the potential research value of the records. “Such information could yield trends or practices that could inform policy-making, academic studies, grants, and other related endeavors,” Judge Jack Sabatino wrote.

At the same time, the appeals court also acknowledged the importance of protecting student privacy. The Appellate Division further held that school districts may not turn over the redacted records until they first provide reasonable advance notice to each affected student’s parents or guardians. As explained by the Court, “The parents and guardians must be afforded the opportunity to object and provide insight to the school district officials about what may comprise or reveal personally identifying information in their own child’s records before the redactions are finalized.”

Notably, the Appellate Division stayed its order for 30 days for the parties to file appeals with the Supreme Court of New Jersey. We will continue to track this important New Jersey special education case and post updates as they become available.

For more information about the court’s decision in L.R. v. Camden City Public School District or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

In Glenn v. City of Cape May Planning Board, the Appellate Division of the New Jersey Superior Court held that a land use application was not barred by res judicata because the City of Cape May Planning Board never reached the full merits of earlier applications related to the site.  In addition, the Board’s decision to consider shared parking in one intervening application was a change in conditions that warranted consideration of the current application and variance.

Facts of the Case

Defendant Adis, Inc. operates a motel and restaurant.  The property consists of 141 units and 146-seat restaurant, which is located in a separate building on the same lot. Defendant submitted several applications over time to redevelop part of its property and add new motel rooms.  Most of the applications required parking variances.  The City of Cape May Planning Board (Planning Board) denied the variance in some cases while other circumstances either prevented a decision on the merits, or the project did not proceed.

In a 2015 application, the Defendant sought to demolish the existing restaurant and to construct a new 146-seat restaurant with twenty-one motel units above. Adis determined that under the terms of the Ordinance, the project would require 227 parking spaces. Because the existing property only contained 173 spaces, Adis proposed to create nine additional spaces and to seek a variance, contending that 182 spaces total would be sufficient under a shared parking arrangement.

Adis had raised the concept of “shared parking,” which is “the use of parking spaces to serve two or more individual land uses without conflict or encroachment,” in a 2010 application that was ultimately rejected. In 2015, the Board approved the application. The plaintiffs filed a complaint in lieu of prerogative writ, arguing the Board’s decision was arbitrary, capricious, and unreasonable because Adis had not proved the requisite positive and negative criteria required for a variance. They further maintained that the doctrine of res judicata barred Adis’s application.

The trial court disagreed and upheld the board’s decision.

The Doctrine of Res Judicata

The goal of res judicata is to prevent the same claims involving the same parties from repeatedly being filed and brought before a court. While more commonly raised in litigation, the doctrine also applies to zoning applications.

As the New Jersey Supreme Court explained in Ten Stary Dom P’ship v. Mauro, 216 N.J. 16 (2013):

If an applicant files an application similar or substantially similar to a prior application, the application involves the same parties or parties in privity with them, there are no substantial changes in the current application or conditions affecting the property from the prior application, there was a prior adjudication on the merits of the application, and both applications seek the same relief, the later application may be barred. It is for the Board to make that determination in the first instance.

Even where an application is “closely similar” to a prior application, if the applicant demonstrates changed circumstances, “it is within the discretion of the board whether to reject the application on the ground of res judicata, and the exercise of that discretion may not be overturned on appeal in the absence of a showing of unreasonableness.” Mazza v. Bd. of Adjustment, 83 N.J. Super. 494, 496 (1964).

Appellate Division’s Decision

The Appellate Division affirmed the lower court’s decision. After concluding that the Board’s decision to grant the variance was not arbitrary, capricious, or unreasonable because it was supported by substantial evidence in the record satisfying the statutory criteria, the appeals court turned to the res judicata argument.

The appeals court rejected the plaintiff’s argument that the Board should have barred Adis’s 2015 application on res judicata grounds because it was substantially similar to Adis’s 2009 application and sought greater relief than its fall 2010 application. The Appellate Division found that the Board did not reach the full merits of either application and thus those decisions did not bind the 2015 application. It also highlighted that the Board’s engineer concluded that the applications were not substantially similar. Finally, it determined that the Board’s decision to consider shared parking in 2013 constituted a sufficient change in conditions to warrant consideration of the current application and variance.

For more information about the court’s decision in Glenn v. City of Cape May Planning Board or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

In Shipyard Associates v. Hoboken Planning Board, the Appellate Division held that a developer was entitled to automatic approval of a controversial plan to build two high-rise buildings on the Hoboken waterfront because the Hoboken Planning Board (Board) refused to hold a hearing on the application while related litigation was pending.

Facts of the Case

The dispute arose from an application by developer Shipyard Associates, L.P. (Shipyard) to build two additional high-rise residential apartment buildings as part of its planned unit development (PUD) on the Hoboken waterfront. On January 7, 1997, the Planning Board granted Shipyard preliminary site plan and subdivision approval for the PUD. 

After obtaining final site plan and subdivision approvals, Shipyard built the approved residential high-rises, commercial space, waterfront promenade, park, recreation pier, a marina, a ferry stop, and all other amenities except the tennis courts. On August 25, 2011, Shipyard applied to the Planning Board for amended site plan approval, to build two more residential towers (the Monarch project) in lieu of building the tennis courts. Pursuant to N.J.S.A. 40:55D-10.3, Shipyard’s application was deemed complete on October 13, 2011, but the application was not scheduled for a hearing until many months later.

In the meantime, the City sued Shipyard to enforce the City’s purported rights under a December 7, 1997 developer’s agreement with Shipyard. Thereafter, the Planning Board refused to consider the merits of Shipyard’s application, although Shipyard’s attorney and witnesses were prepared to present the application on the scheduled hearing date. Instead of hearing the application, the Board denied it “without prejudice,” over Shipyard’s  objection, on the theory that the Board lacked jurisdiction to entertain the application while the City’s lawsuit was pending.

In response, Shipyard sued the Planning Board, arguing that the Board’s refusal to adjudicate the merits of its application within the statutory timeframe set forth in N.J.S.A. 40:55D-61, resulted in its automatic approval. Shipyard also sued the Hudson County Planning Board and the Hudson County Board of Chosen Freeholders, which had denied, on the merits, Shipyard’s application for approval of the Monarch project. After the trial court sided with Shipyard, the municipalities appealed.

Appellate Division’s Decision

The Appellate Division affirmed. The appeals court agreed with the trial judge that the Municipal Land Use Law (MLUL) reflects the New Jersey Legislature’s intent to permit a developer to apply to a planning board to modify the terms of approval of a PUD. It also agreed that the merits of an application to modify prior approvals are to be decided by the board, not by a trial court in litigation to enforce the developer’s agreement.

The Appellate Division further upheld the trial court’s decision that the County Planning Board had wrongfully denied Shipyard’s application. The Court noted that the County Board’s jurisdiction is limited to “assuring a safe and efficient county road system,” including drainage issues affecting those roads. In this case, where there was no direct driveway connection to the County road and no drainage issues the Board had no grounds to deny.

The Appellate Division also upheld the trial court’s decision ordering automatic approval of Shipyard’s application. Citing Manalapan Holding Co. v. Planning Bd. of Hamilton, 92 N.J. 466 (1983), the court noted that MLUL’s statutory timetables must be strictly enforced and that a public entity may be excused from automatic approval only where delay is inadvertent or unintentional.

“In this case, there was nothing inadvertent or unintentional about the Planning Board’s action,” the court concluded. “It was aware of the statutes requiring that it hear Shipyard’s application, regardless of the pending litigation, on pain of automatic approval if it did not.” The court agreed with the trial judge that in denying the application without prejudice, the Board was unlawfully granting itself an extension of time to hear the application, until the City’s lawsuit was decided. As the court further explained:

If there is a lesson to be learned from this case, it is that the rule of law is paramount and cannot be sidestepped to avoid deciding unpopular land use applications. As here, failure to follow the law may insure the success of an application that local objectors vigorously oppose. We appreciate that it may be difficult for planning board members, who are unpaid appointees, to stand firm in the face of vocal objectors and carry out their statutory duty. We have read the transcript of the July 10, 2012 Board hearing, in which objectors were interrupting the proceedings and shouting, “we want tennis courts.” However, the Planning Board was obligated to hear Shipyard’s application, no matter how controversial it was.

In its opinion, the Appellate Division highlighted that Board could have avoided automatic approval and even denied the application. “Ironically, had the Board considered the application on its merits, it had authority to deny the application unless Shipyard’s evidence justified modifying the original PUD approval which included the tennis court,” the court wrote “But, because the Planning Board yielded to public pressure, and refused to hear Shipyard’s application, the result is automatic approval of the application.”

For more information about the Appellate Division’s decision in Shipyard Associates v. Hoboken Planning Board or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

In a recent decision, the Supreme Court of New Jersey opened the door for records custodians to go on the offensive in response to requests under the state’s Open Public Records Act (OPRA). In In the Matter of the New Jersey Firemen’s Association Obligation to Provide Relief Applications Under the Open Public Records Act, the Court held that OPRA limits the right to institute a suit to a requestor whose public records request has been denied. However, its decision suggests that before an OPRA request is denied, an agency has a justiciable controversy that could potentially resolved by a declaratory judgment action (DJA).

Facts of the Case

On July 15, 2013, Jeff Carter electronically filed a request, under OPRA and the common law, for records pertaining to an application for relief by John Doe, a man associated with the Millstone Valley Fire Department, to the New Jersey State Firemen’s Association (Association). The Association denied the request, maintaining that the information Carter requested should not be subject to disclosure under OPRA because it would violate an applicant’s reasonable expectation of privacy.

On August 15, 2013, the Association filed a verified complaint for declaratory judgment, along with a proposed order to show cause, to compel Carter to show cause why the final relief sought in the verified complaint should not be entered. It specifically sought an order “declaring that individual relief applications are of such a private nature that the New Jersey State Firemen’s Association or the local relief association shall be prevented from acknowledging the existence of individual applications and prohibited from releasing the same under . . . the Open Public Records Act.”

The trial court did not expressly grant the request for declaratory judgment. However, it did hold that OPRA’s privacy clause barred release. On appeal, the Appellate Division held that a records custodian may not bring a declaratory judgment action against a record requestor to enforce its right to withhold records.

NJ Supreme Court’s Decision

The New Jersey Supreme Court reversed. “OPRA does not, in all instances, prohibit a public entity from instituting proceedings under the Declaratory Judgment Act (DJA) to determine whether records are subject to disclosure,” the state’s highest court held.

In reaching its decision, the Court discussed the intersection of the two statutes. It highlighted that the “DJA provides broad access to our courts as a means by which rights, obligations and status may be adjudicated in cases involving a controversy that has not yet reached the stage at which either party may seek a coercive remedy.” Meanwhile, “OPRA limits access to the courts by conferring the right to initiate a suit only upon the requestor, after a public agency’s denial of access.”

The Court further held that a specific statutory provision dealing with a particular subject prevails over a general provision. “[S]ection 6 of OPRA’s special procedure for review of an agency’s denial must prevail over the general DJA statute,” Justice Solomon wrote. “Accordingly, after an agency has denied a request, section 6 is triggered, and only the requestor may seek judicial review of the agency’s decision.”

The Court further held that a specific statutory provision dealing with a particular subject prevails over a general provision. “[S]ection 6 of OPRA’s special procedure for review of an agency’s denial must prevail over the general DJA statute,” Justice Solomon explained. “Accordingly, after an agency has denied a request, section 6 is triggered, and only the requestor may seek judicial review of the agency’s decision.”

Although the Court reversed the Appellate Division’s decision that a records custodian may never bring a declaratory judgment action against a record requestor, the justices did not squarely address whether a public entity may file a pre-denial declaratory judgment action when confronted with an unsettled question that has not been litigated before.

For more information about the New Jersey Supreme Court’s OPRA ruling or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

In Grabowsky v. Twp. of Montclair, the Appellate Division clarified when the fund in court exception applies, which alters the general rule that litigants bear their own litigation costs regardless of who prevails. The court held that because no litigation fund was ever created and taxpayers would ultimately bear the expense of the attorney’s fee award, the exception did not apply.  

Facts of the Case

In 2012, the Township of Montclair adopted Ordinance 0-12-28, which amended one of the town’s redevelopment plans to include an assisted living facility as a permitted use for a single-parcel redevelopment area located at 63-65 Church Street in Montclair (Church Street Lot). Plaintiff Richard Grabowsky filed an action in lieu of prerogative writs against the Township of Montclair and the Planning Board, challenging the validity of the Ordinance.

Among other allegations, Grabowsky asserted that Mayor Jerry Fried and Councilman Nick Lewis should have been disqualified from voting on the redevelopment ordinance. In support of that argument, he cited the fact that both Fried and Lewis were members of the Unitarian Universalist Congregation Church located next to the parking lot to be redeveloped.

The trial court dismissed the suit, and the Appellate Division affirmed. It found that any potential benefits the church might obtain from the redevelopment were “far too speculative for consideration in determining whether Fried and Lewis had a disqualifying conflict of interest.” As more fully detailed in a prior post, the Supreme Court of New Jersey reversed. It held that when a public official serves in a substantive leadership role in an organization that brings or opposes a zoning application or that is the owner of property within 200 feet of the property in dispute, he or she is precluded from voting on the matter.

On remand, the trial court granted plaintiff’s motion for partial summary judgment, finding that both Mayor Fried and Councilman Lewis had leadership roles in the Unitarian Church or were about to assume leadership roles at the Church, and were therefore disqualified from voting on the ordinance. As a result, the ordinance was “invalid, unlawful, arbitrary, capricious, null, void ab initio and of no force and effect.”

The trial court also granted plaintiff’s request for attorney’s fees. The trial court applied the fund in court exception to determine that plaintiff was entitled to attorney’s fees, and awarded a total of $123,225.91 in fees and costs. On appeal, the Township argued that the trial court erred in applying the fund in court doctrine because that exception requires the creation of an economic benefit to a class beyond the litigant, and none was created here or identified by plaintiff. The Township further contended that the fund in court doctrine should not apply because the Legislature did not create a fee-shifting provision under either the Municipal Land Use Law (MLUL) and the Local Government Ethics Law (LGEL).

Legal Background

While New Jersey follows the “American Rule,” under which litigants bear their own litigation costs regardless of who prevails, “a prevailing party can recover those fees if they are expressly provided for by statute, court rule, or contract.” One of the exceptions to the American Rule established by court rule is the “fund in court” exception.

The fund in court exception, which is established by Rule 4:42- 9(a)(2), states:

Out of a fund in court. The court in its discretion may make an allowance out of such a fund, but no allowance shall be made as to issues triable of right by a jury. A fiduciary may make payments on account of fees for legal services rendered out of a fund entrusted to the fiduciary for administration, subject to approval and allowance or to disallowance by the court upon settlement of the account.

Under existing court precedent, the fund in court doctrine applies to “situations in which equitably[,] allowances should be made and can be made consistently with the policy of the rule that each litigant shall bear his own costs.” Sunset Beach Amusement Co. v. Belk, 33 N.J. 162, 168 (1996). Such a situation exists “when a party litigates a matter that produces a tangible economic benefit for a class of persons that did not contribute to the cost of the litigation,” making it “unfair to saddle the full cost” of the litigation upon the plaintiff. Henderson v. Camden Cty. Mun. Util. Auth., 176 N.J. 554, 563-64 (2003).

Court’s Decision

The Appellate Division reversed, holding that the fund in court doctrine did not apply.

In reaching its decision, the appeals court highlighted that for the fund in court exception to apply, there must be a “fund” that was created, preserved, increased or, at least, the subject of the litigation. This did not occur in this case, the panel concluded, writing:

Although the trial court described plaintiff’s suit as producing a “tangible conferred benefit of protecting the integrity of government and fostering citizen confidence,” that cannot be substituted for the requirement that the suit produce a “tangible economic benefit” to a class of persons. As to the critical question, “whether a fund in court was created as a result of his litigation,” no fund was the subject matter of the litigation and the plaintiff’s suit did not “create[], preserve[] or increase[] property to the benefit of a class of which he is a member.”

The Appellate Division further noted that the fund in court exception must be applied “equitably” when “allowances should be made and can be made consistently with the policy of the rule that each litigant shall bear his own costs.” In this case, because no fund was created, municipal taxpayers would ultimately fund the award of attorney’s fees.

“Because no fund was created by the litigation, the source for the attorney fee award would be the municipal coffers. The net effect is that, although there is admittedly insufficient evidence of any benefit to them in the form of increased tax revenue, taxpayers would be required to fund plaintiff’s lawsuit,” the court explained. “These circumstances do not rise to the level of a situation where, in equity, the results achieved for the taxpayers make it ‘unfair to saddle the full cost’ of the litigation upon the plaintiff, and appropriate to saddle the taxpayers with those costs.”

For more information about the Appellate Division’s decision or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.