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Borough of Victory Gardens and v. State of New Jersey

February 25, 2011

BOROUGH OF VICTORY GARDENS AND BETTY SIMMONS, INDIVIDUALLY AND AS MAYOR OF VICTORY GARDENS, APPELLANTS,
v.
STATE OF NEW JERSEY, COMMISSIONER OF EDUCATION OF THE STATE OF NEW JERSEY, AND THE DOVER SCHOOL DISTRICT, RESPONDENTS.



On appeal from a Final Decision of the New Jersey Commissioner of Education.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2010 - Decided Before Judges Fisher, Sapp-Peterson and Simonelli.

In this appeal, appellants, the Borough of Victory Gardens (Borough) and Betty Simmons, individually and in her capacity as Borough mayor, challenge the formula the Commissioner of Education (Commissioner) utilized to apportion the tax levy between the Victory Gardens School District (District) and the Dover School District (Dover) after the two districts merged. We conclude the Borough and mayor lack standing to challenge the Commissioner's determination. In addition, while we are satisfied that Simmons, as an individual taxpayer, has standing to challenge the Commissioner's determination, she failed to exhaust her administrative remedies. We therefore dismiss the appeal in its entirety.

By way of background, the District is a non-operating school district, sending all its students to Dover and paying Dover the established tuition rates for each student. The District has its own elected school board members and administrative staff. The District submitted its proposed 2009-2010 budget to the Acting Morris County Executive Superintendent (ECS) in March 2009. The proposed budget was shortly thereafter made available to the public pursuant to N.J.S.A. 18A:22-7. Between March 22 and 29, the District conducted public hearings on the proposed budget and adopted it as proposed. The budget included an $823,002 tax levy, which was the same amount of the tax levy budgeted for the 2008-2009 school year and less than the tax levy that had been approved in the 2007-2008 District budget. The Borough voters approved the 2009-2010 budget in April and certified to the Morris County Board of Taxation the tax levy amount approved by the voters.

On June 30, 2009, the ECS submitted the "MORRIS COUNTY REPORT ON NON-OPERATING S[C]HOOL DISTRICT VICTORY GARDENS [BO]ROUGH" (Report). The Report included budget information for the District and noted that the Borough's "financials indicate[] that despite consistently increasing its budget, it has managed to reduce[] its tax levy as a proportion of its appropriations (from 29.0 [percent] to 18.1 [percent]) over the past three years." The Report attributed this reduction, partially, "to an increase in revenues due to an approximate 25 [percent] increase in state aid[,] an increase in budgeted surplus, and a decrease of five students in out-of-district special education placements over this three[-]year period." The Report also included the 2009-2010 budget approved by the voters that included the $823,000 actual tax levy amount.

Additionally, the Report included the ECS's recommendation that the District be eliminated as of July 1, 2009, and merged into Dover, with the general fund tax levy "apportioned to each [community]" in accordance with the figures contained in the Report. The Commissioner adopted the recommendations contained in the Report. In a letter also dated June 30, 2009, the Commissioner notified the District that she approved the plan to merge the District with Dover. The Commissioner found the ECS's "plan adequately addresses the statutory requirements for the elimination of the non-operating district."

The District filed its Notice of Appeal on August 14, 2009. Four days later, its attorney submitted a letter, dated August 18, 2009, seeking reconsideration of the Commissioner's determination on the basis that the "tax levy figures used to calculate the apportionment were falsely inflated by virtue of an anomaly in the school funding formula." The Commissioner denied the request, finding that "the apportionment set forth in the June 30, 2009 [decision] is correct based on the requirements of N.J.S.A. 18A:7F-5 et seq."

Appellants raise the following points for our consideration:

POINT I

APPELLATE COURTS SHOULD OVERTURN AN AGENCY DECISION WHEN THE DECISION IS ARBITRARY AND CAPRICIOUS AND NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD AS A WHOLE.

POINT II

WHEN INTERPRETING A STATUTE, COURTS HAVE A DUTY TO CONSIDER OTHER STATUTES CONCERNING THE SAME MATTER AND TO RECONCILE THEM SO AS TO GIVE EFFECT TO ...


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