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Murnick v. Board of Education

Decided: July 24, 1989.

THEODORE R. MURNICK, PLAINTIFF-APPELLANT,
v.
BOARD OF EDUCATION OF THE CITY OF ASBURY PARK, PLANNING BOARD OF THE CITY OF ASBURY PARK, MAYOR AND COUNCIL OF THE CITY OF ASBURY PARK AND THE CITY OF ASBURY PARK, DEFENDANTS-RESPONDENTS, AND COMMISSIONER OF EDUCATION, INTERVENOR-DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Gaulkin, R.s. Cohen and A.m. Stein. The opinion of the court was delivered by Arnold M. Stein, J.A.D.

Stein

Plaintiff appeals from the dismissal of his declaratory judgment action. The trial judge ruled that the Asbury Park Board of Education (local school board) was not required to submit its plans for a proposed new school building to the local planning board for site plan review and approval.

We affirm. A local school board is bound only by the use restrictions of the zoning ordinance of the municipality in which the proposed school is to be located. It is not subject to local land use provisions which regulate such matters as height, setbacks, parking and site plan approval. The State Board of Education has the statutory responsibility to approve plans for the construction of new schools. The role of the local planning board is only advisory.

The parties agree that there is a pressing need for new school facilities in Asbury Park. In 1984 the State Department of Education determined that the school system's buildings were patently deficient. As a result, in 1985, the school board submitted a proposed bond issue to the voters seeking authorization for the construction of two elementary schools, Bradley and Bond Street. The referendum was defeated.

Following a recommendation by the Monmouth County Superintendent of Schools, the State Department of Education ordered the closing of four substandard school buildings as of June 1986. The school board was given permission to upgrade and continue use of a fifth school. Split sessions were ordered for 646 pupils.

In June 1986, the school board again submitted to the voters its proposal to build the two new elementary schools. By letter dated August 8, 1986, the local school board notified the planning board of the proposed construction of these two new buildings, pursuant to N.J.S.A. 40:55D-31.

On October 7, 1986, the referendum to construct the two schools was approved by the voters.

On February 9, 1987, the planning board adopted a resolution disapproving the Bond Street school site, and proposing an alternate site. No mention was made of the Bradley school site, the subject of this lawsuit.

Plaintiff instituted this lawsuit when the local board of education refused to appear before the Asbury Park planning board for site plan approval. He is the owner of the Bond Street school site. Condemnation of that property has been the subject of continuing litigation between plaintiff and the school board. See Asbury Park Bd. of Educ. v. Murnick, 224 N.J. Super. 504 (App.Div.1988), certif. den. 111 N.J. 625 (1988). His objections to the suitability of the Bradley location underlie his claim that proposed public school sites are subject to all requirements of local zoning laws and to local planning board review and approval.

The zoning article of Asbury Park's current Land Development Ordinance places all existing school buildings in a P-4 school zone. The Bradley site is located in an R-4 residential zone, a district permitting various types of residential structures as primary uses. Other facilities, such as planned unit developments, church day-care centers, senior citizen facilities, resident health care facilities and community shelters are conditional uses, requiring planning board approval. Schools are not expressly permitted in any zone except P-4. However, all districts permit "essential services" as a primary use. Asbury Park apparently considers a public school to be an "essential service."

The ordinance does not specifically delineate height, yard and bulk requirements for essential services facilities. It does require that a building must conform to the yard lot area and building location requirements of the zone district in which the building is to be erected. The ordinance also requires that ...


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