On appeal from the Superior Court, Law Division, Monmouth County.
Furman, Long and Scalera. The opinion of the court was delivered by Long, J.A.D.
[224 NJSuper Page 506] Two questions are presented on this appeal and cross-appeal: whether the pendency of an administrative agency proceeding on a required approval precludes the exercise of judicial jurisdiction in a condemnation case, and, if not, whether the exercise of jurisdiction by the court obviates the need for exhaustion of the administrative agency remedies. We answer both questions
in the negative with the result that the case is affirmed in part and reversed and remanded in part.
Theodore Murnick is the owner of a 1.83 acre property located on Bond Street in Asbury Park which is the subject of this dispute. He acquired the property in December 1980 at a public auction sale and has since planned and prepared for the renovation and conversion of this building into a multi-family dwelling. He also owns the adjacent property, a high rise apartment complex known as Munroe Towers. On June 11, 1987, he obtained final site plan approval for this conversion.
In the interim, the Board of Education of the City of Asbury Park (school board) proposed to acquire and construct a public school facility for approximately 600 to 700 elementary students on the Bond Street site, as well as on adjacent properties. On July 9, 1985, the school board adopted a resolution which designated the Bond Street site as one of two proposed sites for a new school facility. The two sites were approved by the Bureau of Facility Planning Services in the Department of Education by letter dated October 2, 1985. Such approval was required under the then existing provisions of the New Jersey Administrative Code. N.J.A.C. 6:22-1.11(f). On October 8, 1985, the proposal was defeated by voter referendum.
On October 21, 1985, new regulations governing the approval of land acquisition for school purposes came into effect. These regulations continued the requirement of prior approval.
No district board of education may conduct a referendum for land acquisition, secure board of school estimate approval, or enter into a lease agreement for land without prior approval of the Bureau of Facility Planning Services of the Department of Education. [ N.J.A.C. 6:22-1.2(a)].
In addition, they set forth a comprehensive regulatory scheme of procedural and substantive requirements for such approval which had not existed under the earlier regulations, including the following:
4. A complete plot plan of the land to be acquired, showing topographical and contour lines, adjacent properties (on all sides), and access roads. The acreage and dimensions of the tract proposed for acquisition shall be included. In the application of the following standards for minimum acceptable school site sizes,
the bureau shall take into consideration the proximity and extent of non-school open land and availability of nearby athletic fields and parking areas;
Standards for Minimum Acceptable School Site Sizes
District Population Required Acres, Base
Density (Persons Elementary
per Square Mile) School Middle School ...