When it comes to school construction, zoning boards are limited in their jurisdiction to grant approvals or rejection. New Jersey’s zoning law recognizes the construction of schools to be inherently beneficial. Essentially, it limits local zoning boards to an analysis of certain negative criteria, such as the traffic the construction would cause, safety of the community, noise disturbance, etc. weighed against the proposed construction plan. In these circumstances, a zoning board is preempted by case law and statutes, specifically the Educational Facilities Construction and Financing Act, which gives the primary power to approve construction plans to the State Board of Education, as discussed in Bd. of Educ. of City of Clifton v. Zoning Bd. of Adjustment of City of Clifton, 409 N.J. Super. 515, 531 (Law. Div. 2006), aff’d, 409 N.J. Super. 389 (App. Div. 2009), and aff’d, 409 N.J. Super. 389 (App. Div. 2009).
In this case, the court found that “the Legislature invested the state with supremacy with respect to matters concerning the safety, health and adequacy of educational facilities” including “off-site safety issues.” It further concluded that the local zoning board must “defer to the State Board of Education’s findings regarding these matters…including the safety of students, transportation, walking routes, and ingress and egress of a facility.” Id. at 532. The zoning board may make recommendations on those issues to the State Board of Education, but final decision-making power rests with the State. Id., see Murnick v. Board of Education of the City of Asbury Park, 235 N.J. Super. 225, 227 (App. Div. 1989). The court did mention some negative criteria the Board can use to make its findings. They include “(1) the impact upon the public good(s), the variance’s effect on the surrounding properties (e.g., impact on property values, damage to the character of the neighborhood, traffic impact [excluding student safety issues]) and whether the variance will substantially impair the intent and purpose of the zone plan and zoning ordinance.” Id.
Those residents who have concerns with a school’s construction on health and safety grounds must voice them directly with the State Board of Education.
If you are looking for additional details on this topic or if you require advice, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
Written by Stephen W. Kornas, Esq. of Hanlon Niemann & Wright