Board of Education Lacked MLUL Standing Where Its Challenge to Development Approvals Was Based Only on Potential Increased Crowding of Schools

Edison Bd. of Educ. v. Zoning Bd. of Adj. of Edison., 464 N.J. Super. 298 (2020). This opinion by Judge Messano today affirmed a Law Division ruing that the Edison Board of Education (BOE”), which had filed an action in lieu of prerogative writ to challenge development approvals granted by the defendant Board of Adjustment, lacked standing to do so. The Appellate Division also rebuffed a BOE argument under the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. (“OPMA”), affirming the Law Division on that issue, too (though on different grounds). Both issues implicated de novo review.

Though standing under New Jersey law generally is broad (in part due to the absence of a “case or controversy” requirement as appears in the United States Constitution), the Municipal Land Use Law, N.J.S.A. 40:55D-4 (“MLUL”), “contains specific requirements for standing, both before the land use board and before the court.” To satisfy the MLUL standing requirement, a party must show that its “right to use, acquire, or enjoy property is or may be affected by an action taken” under the MLUL.

The BOE based its claim to standing on the idea that the approved residential development raised “the possibility of students being added to an already overcrowded school district.” Judge Messano found that claimed interest did not rise to the level required for MLUL standing. But he carefully noted that the BOE could have standing in other situations, such as “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.” This, however, was not such a case.

On the OPMA issue, the Law Division had held that the Zoning Board had not violated the OPMA when it failed to provide notice on its agenda of the resolution memorializing the development approvals, because the resolution was not “action” subject to the OPMA’s notice requirements. Judge Messano disagreed. The resolution is the source of the municipal agency’s findings and conclusions and is the basis for appellate review, if sought. The resolution “is ‘action’ taken at a meeting for purposes of the OPMA.”

Nonetheless, there was no OPMA violation. The Zoning Board had published a schedule of its regular meetings to be held during the succeeding year, as required by the OPMA, N.J.S.A. 10:4-18. Having done that, the Zoning Board did not violate the OPMA by failing to list the adoption of the memorializing resolution on the agenda for the particular meeting in question. Quoting Witt v. Gloucester Cty. Freeholder Bd., 94 N.J. 422 (1983), Judge Messano said that “publication 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.”