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Board of Education of the City of Clifton, Passaic County v. Zoning Board of Adjustment of Opinion the City of Clifton

November 9, 2006


The opinion of the court was delivered by: Passero, A.J.S.C.



Plaintiff Clifton Board of Education challenges a denial by Defendant Clifton Zoning Board of Adjustment of its use variance application to convert an industrial building into a school. The subject property is located in an industrial zone, where schools are not permitted.

This case requires an analysis of the traditional power of a municipal zoning board of adjustment in assessing negative criteria in connection with a proposed school. Specifically, the issue is whether that authority has been circumscribed by the New Jersey State Board of Education, acting pursuant to N.J.S.A. 18A:7G-1 to 48, and subsequent administrative code regulations promulgated thereunder. Also implicated in this case is the role of a municipal planning board in assessing the adequacy of a proposed school where a Master Plan has been enacted.

Here, the Clifton Board of Education, pursuant to passage of a local referendum, purchased a 69,695 square-foot building on a three-acre site in an industrial zone in the City of Clifton. The purchase was not subject to any contingencies even though a use variance would be required.

The School Board did not formally present its application to the Clifton Planning Board, pursuant N.J.S.A. 40:55D-31, but, rather, sent its site plans to the State Board of Education, which, by letter dated November 3, 2004, gave its initial approval for the placement of the school at the subject site.

Subsequently, the Zoning Board of Adjustment denied the School Board's application for a use variance after a bitterly contested hearing, encompassing seventeen separate hearing dates.*fn1 The Zoning Board denied the variance application on the grounds that, although the school is admittedly an inherently beneficial use, the School Board failed to satisfy the negative criteria required to obtain a use variance. The Zoning Board cited, among other reasons for denying the variance, safety concerns for the children walking to and from school, excessive truck traffic, conflict with the Master Plan, and lack of adequate parking.


The Clifton Board of Education (hereinafter "School Board") is the owner of property located at 290 Brighton Road, Clifton, New Jersey, which is identified as Lot 8 in Block 48.04 on the Tax Map of the City of Clifton. The property is located within the M-2 General Industrial Zone, as defined in § 461-36 of the City of Clifton's zoning code. Schools are not permitted in M-2 zones. They are not allowed as of right in any zone but are permitted conditional uses in most zones. § § 461.13.1(N), 461-27, 461-34 & 461-36. The entire opposite side of Brighton Road, the west side, is a residential zone as defined in Clifton's Zoning Code.

In December 2004, by way of a public referendum (with 68% of the vote), Clifton voters authorized the School Board to acquire the subject property. The referendum permitted the School Board to construct a 500-student ninth grade annex to mitigate overcrowding in Clifton High School. In May 2005, the School Board purchased the property at 290 Brighton Road from Mayer Textile Machine Corporation (hereinafter "Mayer"). Mayer owns and operates a business at 310 Brighton Road which is immediately north of the property. The subject property at 290 Brighton Road previously served as a warehouse and was vacant for approximately three years prior to the School Board's purchase.

On May 13, 2005, the School Board filed an application for a use variance with the Clifton Zoning Board. Two property owners in the vicinity of 290 Brighton Road opposed the application:

(1) ProLogis 230 Brighton, LLC is the owner of property located directly south of the subject property, and (2) Van Ness Family Trust is the owner of property two lots north of the subject property. During the hearings, all sides put forth experts who testified as to the suitability and safety of the site for a school.

It is undisputed that (1) the present high school is overcrowded, (2) the three cafeterias are used to teach when not used for lunch time, (3) children are bused to a local Boys and Girls' Club for regular school programs, (4) teachers do not have homerooms, and (5) the school has eliminated such programs as woodshop, metal shop, and industrial arts due to spatial limitations. These findings are affirmed by the Clifton Master Plan, which states that from 1990 to 2000 the population of residents between the ages of 5 to 14 increased by 40.9%.

A 5-2 vote to deny the School Board's application was memorialized by the Zoning Board in its Resolution dated March 16, 2006 and adopted on April 19, 2006.


In 2003, the Planning Board adopted an updated Master Plan which states that "The City of Clifton is the seventh largest city in New Jersey and is primarily developed as a residential community composed mostly of single-family detached and two-family dwellings. [It] is a fully developed community, with few remaining developable vacant lots. This established development pattern will revolve primarily around the community's response to redevelopment of existing sites, rehabilitation, and/or adaptive reuse of existing buildings and sites. The city's industrial base has declined over the past two decades, with several large, vacant or underutilized tracts offering the opportunity to pursue revitalization and redevelopment efforts."*fn2

The proposed site is located in the Allwood section of the City. Allwood "is primarily a single-family residential neighborhood. A significant portion of land in Allwood is devoted to non-residential uses, including industrial and commercial uses along the railroad line. In addition to [a] golf course, there are three public parks . . . here is one school property in the neighborhood."*fn3

The updated Master Plan sets forth goals to direct the policies of the City. Some of the most pertinent goals for this case include:

Goal 6:

To encourage the re-use, rehabilitation or reconstruction of older non-residential areas and existing commercial and industrial structures which have been vacated for potential re-use as appropriate non-residential uses in order to maintain a balance of land-uses, existing jobs and to produce new jobs.

Policy Statement 6: The City seeks to address the continuing loss of the manufacturing base by encouraging the adaptive reuse of older, obsolete industrial facilities. It is the policy of the City to promote the re-use of these facilities as non-residential uses.

Goal 9: To provide adequate community facilities to serve Clifton's residents in terms of schools, parks and playgrounds, libraries, senior citizens centers, fire houses and other municipal buildings.

Goal 14: To provide for a limited population growth during the time span of the Master Plan. The key factors which should be considered for the new development are . . . open space and the availability of new public facilities, including public schools.

Goal 19: To provide a variety of recreational uses for all segments of the City's population.


The subject property is located on Brighton Road which is an approximately sixty-foot-wide two-lane road with a 25 MPH speed limit. The street separates the neighborhood into two zones: the east side is an M-2 General Industrial Zone, and the west side is a residential zone. The property is located on the east side which is lined with industrial buildings set on large lots in a campus-like setting (including spacious frontages, trees and grass). The west side of Brighton Road is lined with Cape-Cod-style, single-family homes. Adjacent to the site, atop a grassy knoll, is a public park which contains a baseball field and basketball courts. A raised railroad track that runs parallel to Brighton Road is located approximately forty feet behind the structure, and a ten-foot-high barbed-wire fence separates the railroad track from the structure. The railroad tracks traverse the entire City of Clifton.

Presently, the main driveway for ingress and egress to the site is 92.58 feet wide and 313 feet deep. In addition, the site contains an approximately forty-by-seventy-foot easement, which is located in the back left portion of the property. The easement allows tractor-trailer trucks, making deliveries to Mayer, to enter onto the subject property while backing into Mayer's loading docks. Under the proposal, the school driveway will have a sliding gate to accommodate the easement, and, when trucks enter the school site, a faculty member will supervise the area.

The School Board has also proposed certain changes to the site which can be seen on the site plan. The north side of the school will have approximately forty-two faculty parking spots, around which traffic will circulate. In front of the building, most of the greenage will be paved so that four buses can park. By a letter dated January 27, 2006, the New Jersey Department of Transportation approved a mid-block crosswalk in front of the site. In addition, as recommended by the City's engineer, the School Board will build a walkway across the street which will allow children to walk down the hill from the top of the park to Brighton Road.


In viewing any case where a school is involved, we must commence our analysis by recognizing that there is a constitutional, statutory,*fn4 and Supreme Court*fn5 mandate to provide for the maintenance and support of a thorough and efficient system of free public schools, which includes ensuring that students are educated in physical facilities that are safe, healthy, and conducive to learning. N.J. Const. art. VIII, § 4, ¶ 1.

Obedient to the[se] directives, the lawmakers have legislated extensively in the field of both publicly and privately furnished education. A state board of education has been created and invested with broad supervisory power over all aspects of education. Likewise[,] school districts were established throughout the State (see, e.g., N.J.S.A. 18:5-1.1), and provision made for appointment or election of boards of education to control and regulate the manner and means of furnishing of education therein subject to the overall supervisory authority of the state board. [Roman Catholic Diocese of Newark v. Ho-Ho-Kus Borough, 42 N.J. 556, 568 (1964)(Francis, J. dissenting).]

Also, where there are competing legislative enactments, courts must attempt to construe these provisions to give both full effect according to their plain language and the ascertained intent of the Legislature. Legislative intent and the meaning of a statute are derived from the nature of the subject matter, contextual setting, and relationship to statutes in pari materia. State v. Brown, 22 N.J. 405, 415 (1956).

In this case, we have several competing government entities and must reconcile their relationship to one another with regard to a use variance application for a school. Where a local Board of Adjustment is reviewing a use variance application for a school, the powers of the Zoning Board must be circumscribed in order to give full effect to the New Jersey Legislature's delegation of powers to the state and local school boards.

A "local board of education is an independent, autonomous corporate instrumentality of government within its territorial limits. As such, within its sphere of operation, it is not subject to the will or direction of the governing body of the municipality in which it functions, except to the extent that interdependence or connection has been imposed by the Legislature, either expressly or by inescapable implication." Roman Catholic Diocese, supra, 42 N.J. at 558; See Gualano v. Bd. of School Estimate of Elizabeth School Dist., 39 N.J. 300, 303 (1963).

In Roman Catholic Diocese, the New Jersey Supreme Court held that "[o]rdinarily[,] there is no reason for a school board and the local governing body to quarrel about zoning matters. The school board as the State's agent to discharge the State's constitutional duty to provide for a system of free public schools . . . is a distinct entity essentially independent of the local governing body." Roman Catholic Diocese, supra, 42 N.J. at 560-561. The Court continued stating, "the subject having been committed to a state agency, the municipal role was eliminated to avoid a division of responsibility. Thus[,] with respect to the sufficiency of the school plant itself the Legislature has both vested responsibility in a state agency and expressly barred the municipality. No such legislation exists as to zoning." Ibid.

Following this rationale, in Murnick v. Board of Education of the City of Asbury Park, 235 N.J. Super. 225, 227 (App. Div.), certif. denied, 118 N.J. 201 (1989), the court held that: 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 court continued by holding that "we read the applicable statutes to spell out a pattern of consistent, non-conflicting roles for all of the involved governmental entities -- the local planning board, the local school board, the State Department of Education and the State Board of Education -- in the construction or improvement of public school facilities." Id. at 229 (emphasis added). Thus, the Murnick court gave exclusive jurisdiction over site and bulk matters to the State Board of Education.

Subsequently, in 2000, the New Jersey Legislature adopted the Educational Facilities Construction and Financing Act (hereinafter "EFCFA") to "ensure that the Legislature's constitutional responsibility for adequate educational facilities is met" by establishing "an efficiency standard for educational facilities" because "[i]nadequacies in the quality, utility, and safety of educational facilities have arisen among local school districts of this State." N.J.S.A. 18A:7G-2 (emphasis added). The provisions of the EFCFA should be "construed liberally to effectuate the legislative intent and purposes of [the act] as complete and independent authority for the performance of each act and thing herein authorized and all powers herein granted shall be broadly interpreted to effectuate the intent and purposes and not as a limitation of powers." N.J.S.A. 18A:7G-29.

The New Jersey State Board of Education adopted a detailed set of regulations pursuant to the EFCFA "to consolidate, conform, and update other rules relating to educational facilities to ensure that the educational facilities in the State fulfill the Constitutional mandate. These rules are adopted in order to ensure that the educational facilities are safe, healthy and educationally adequate to support the delivery of the thorough and efficient education to which all students are entitled." N.J.A.C. 6A:26-1.1 (emphasis added).

This Court finds that, by the enactment of the EFCFA and subsequent administrative codes, the Legislature invested the state with supremacy with respect to matters concerning the safety, health and adequacy of educational facilities. Specifically, the EFCFA expanded the State Board of Education's jurisdiction, previously outlined under Murnick, to include many off-site safety issues. The most pertinent statutory provision and regulations dealing specifically with safety and transportation include: N.J.S.A. 18A:39-1.5 provides in pertinent part:

a. A school district that provides courtesy busing services shall adopt a policy regarding the transportation of students who must walk to and from school along hazardous routes. The policy shall include a list of hazardous routes in the district requiring the courtesy busing of students and the criteria used in designating the hazardous routes. In adopting its policy, the school district may consider, but shall not be limited to, the following criteria:

(2) Traffic volume;

(4) Existence or absence of sufficient sidewalk space;

(5) Roads and highways that are winding or have ...

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