February 1, 2005


  • Land Use

  • Tort Claims Act

  • Taxation

  • Education

  • Municipal Corporations

  • Public Employees

  • Municipal Courts

New Jersey Lawyer's Municipal Law Briefing is an invaluable resource specifically tailored for those practicing under the vast umbrella of Municipal Law within the State of New Jersey.

Appellate Division, A-6896-02T5, approved for publication January 27, 2005. (15 pages). Facts-on-Call Order No. 92280

A municipal ordinance that requires an applicant to be responsible for paying the fees and expenses of the municipality’s public advocate in connection with that application is invalid under the Municipal Land Use Law.

Appellate Division, A-2943-03T2, January 25, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17548

Order allowing the plaintiff to file a late notice of claim under the Tort Claims Act affirmed; the plaintiff, who was an assistant manager at a gas station in a rest area on the New Jersey Turnpike, was injured when he slipped and fell while working; the plaintiff’s attorney filed a timely notice of claim with the municipality, the New Jersey Department of Law and Public Safety, the Office of the Attorney General, and the County; several weeks after the 90-day period had expired, a claims investigator from the New Jersey Bureau of Risk Management advised the plaintiff’s attorney that the defendant New Jersey Turnpike Authority was a public entity “separate and distinct from the State” and that notice to the State was not notice to the defendant; the plaintiff’s attorney then forwarded a notice to the defendant, which the defendant declined as untimely; the motion judge (1) properly granted the plaintiff’s motion to file a late notice of claim and (2) properly concluded that there had been substantial compliance, that the defendant was not claiming substantial prejudice, and that there were extraordinary circumstances.

Appellate Division, A-2760-03T2, January 27, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17555

Order vacating a final judgment of foreclosure and allowing the holder of a first tax sale certificate to redeem it within 30 days reversed; the first tax sale certificate was obtained at a public sale in May 1999; the plaintiff City purchased a second tax sale certificate in September 2000 and filed a foreclosure action in July 2002; the holder obtained the first tax sale certificate in May 2003 by assignment from the prior holder; the holder purchased the certificate with knowledge of the City’s pending foreclosure action but did not intervene, and it moved to vacate the City’s foreclosure judgment under Rule 4:50-1 more than five months after the judgment was recorded; the trial court abused its discretion (1) by relying on its view of public policy and disregarding the public policies furthered by tax sales, (2) by misapprehending the legal effect of the vacation, and (3) by giving too little consideration to the importance of the finality of judgments; there were no exceptional circumstances warranting relief from the judgment.

Appellate Division, A-4433-03T5, January 31, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17571

Decision of the School Ethics Commission (1) that dismissed the ethics complaint of the plaintiff Board of Education member against the defendant attorney and (2) that imposed sanctions for filing a frivolous pleading affirmed; the plaintiff alleged that the defendant had violated the confidentiality of ethics matters by circulating to the Board a status report on other ethics complaints concerning the plaintiff; the Commission properly determined that the defendant was merely a private attorney serving as a special consultant to the Board at the time he prepared the report and therefore that he was not a school official subject to the Commission’s jurisdiction; moreover, because the plaintiff later filed a complaint with the District XI Ethics Committee, the Commission correctly concluded that the plaintiff knew that the Commission lacked jurisdiction.

Appellate Division, A-2435-03T2, January 24, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17545

Chancery Division decision holding that the dispute between the plaintiff Board of Education and the defendant union over the effective date of a teacher’s termination was not arbitrable affirmed; because the provisions relating to termination were found only in the employment contract, the dispute rested solely on the parties’ differing interpretations of the employment contract; because the dispute did not arise from any differences about the terms of the collective negotiations agreement, it was not within the scope of the collective negotiations agreement’s arbitration clause.

______________________________________________________ D.C. v. LAWRENCE TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 50-04, Agency Docket No. 2002 8507, Final Agency Decision: December 29, 2004, released for publication January 11, 2005. By Stein, ALJ. (36 pages).

The student’s parents were entitled to reimbursement for the tuition and costs arising from their unilateral decision to enroll the student in a private school because that placement was appropriate and because the board of education had not offered an appropriate placement.

______________________________________________________ T.W. v. NORTH PLAINFIELD BOARD OF EDUCATION
OAL Docket Nos. EDS 8699-03 and EDS 392-04, Agency Docket Nos. 2004 8408 and 2004 8559, Final Agency Decision: January 3, 2005, released for publication January 11, 2005. By Martone, ALJ. (44 pages).

The administrative law judge dismissed the parents’ amended petition for reimbursement of the educational expenses arising from their unilateral placement of their son in a private parochial school. After the son was suspended from the first grade a second time for assaulting students and staff, he was placed in a State-approved school that served students with educational disabilities. After unsuccessfully seeking to return their son to the respondent Board of Education’s school, the parents unilaterally enrolled him in a private parochial school. The ALJ determined that the parents were not entitled to reimbursement (1) because they had refused to permit their son to undergo an initial evaluation by the Board, (2) because they had unilaterally withdrawn their son without advance written notice, and (3) because they had not presented evidence to support their claim that the private parochial school was an appropriate placement.

______________________________________________________ P.S. v. PRINCETON REGIONAL BOARD OF EDUCATION
OAL Docket Nos. EDS 327-02, EDS 4598-03, and EDS 4664-03, Agency Docket Nos. 2002 6039, 2004 7917, and 2004 7909, Final Agency Decision: November 30, 2004, released for publication January 4, 2005. By Fidler, ALJ. (33 pages).

The administrative law judge denied the petitioner parents’ request for the reimbursement of educational expenses that arose from their unilateral placement of their daughter in a private school specializing in educating dyslexic children. The petitioners rejected the individualized education program for the ninth grade that was designed by the respondent Board of Education’s team, and they negotiated for their daughter to split her schedule between the private school and the Board’s school. After a few months, the petitioners enrolled their daughter at the private school full time. The ALJ determined that the Board had demonstrated by a preponderance of the evidence that it had offered a free, appropriate public education to the daughter and that the petitioners therefore were not entitled to reimbursement.

______________________________________________________ J.H. v. UPPER DEERFIELD TOWNSHIP BOARD OF EDUCATION
OAL Docket Nos. EDS 934-04 and EDS 8234-04, Agency Docket Nos. 2004-8583 and 2005-9415, Final Agency Decision: December 7, 2004, released for publication January 4, 2005. By Gorman, ALJ. (23 pages).

The administrative law judge dismissed the father’s petition for a change in the classification of his 9-year-old son and a corresponding change in the son’s individualized education program. The petitioner alleged that his son suffered from Asperger’s Syndrome, which is a form of autism, and that he therefore required an autism consultant, occupational therapy, social skills training, a psychiatric evaluation, and a long-term specialized school setting. The ALJ analyzed 15 reports from 14 specialists, but only one report — which was later withdrawn — suggested that the son suffered from a form of autism. The ALJ found by an “overwhelming” preponderance of the evidence that the son did not suffer from any form of autism, including Asperger’s Syndrome, and that he therefore did not have the authority to alter the IEP.

Appellate Division, A-5410-02T1, January 28, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17559

Issuance of a permit to the respondent recycler to operate a transfer station and material recovery facility in Raritan Township affirmed; the respondent had run a recycling operation on the facility’s site since 1991, and the appellant Township challenged the Department of Environmental Protection’s decision to issue the permit on the grounds (1) that it violated the requirements of the Solid Waste Management Act and (2) that it was arbitrary, capricious, and unreasonable because the Department did not properly review the permit application; the Department’s decision was “well supported” by the record that it had compiled, and the Township’s contention that the Department had not abided by procedural guidelines concerning notice to and comment by affected persons was belied by the record; an agency’s decision is not rendered procedurally infirm merely because the agency did not adopt every suggestion made by an opponent.

Appellate Division, A-6456-03T2, January 28, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17561

Law Division order denying the defendant police officer’s motion for a protective order to bar the plaintiffs from asking certain deposition questions affirmed but modified to protect the defendant’s rights against self-incrimination; the plaintiffs brought an action for assault, false arrest, and false imprisonment against the municipality, its police department, and one of the arresting officers, among others; when the plaintiffs noticed the arresting officer for depositions, his attorney informed them that the officer was the subject of an Internal Affairs investigation and that he was entitled to assert privilege and object to questions about the investigation; contrary to the officer’s arguments on appeal, N.J.S.A. 2A:84A-27, N.J.S.A. 40A:14-181, and the Attorney General’s Guidelines for Internal Affairs Policy and Procedure do not prohibit him from answering questions, although Rule 4:14-3(c) allows his attorney to instruct him not to answer questions that might incriminate him.

______________________________________________________ IN RE KENT
Appellate Division, A-3218-03T1, January 28, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17560

Decision of the Merit System Board (1) that adopted the administrative law judge’s determination that the appellant sanitation worker had engaged in conduct unbecoming a public employee and had caused damage to a citizen’s vehicle and (2) that imposed a 10-day suspension reversed and remanded; a citizen complained that the bumper of her car had been scratched when a sanitation worker threw a garbage can against it; there was no competent evidence that the damage had been caused by a sanitation worker or that the appellant was the person responsible where the citizen, who was the only eyewitness to the incident, did not testify and where nothing in the testimony of the other witnesses that was not hearsay addressed the issue of the appellant’s culpability.

______________________________________________________ IN RE PATERNO
Appellate Division, A-660-03T3, January 25, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17551

Merit System Board’s determination that the petitioner had failed to establish residency in Newark as of July 1994 and that he therefore was ineligible for appointment as a Newark firefighter affirmed; N.J.A.C. 4A:4-2.11(c) provides that, if there is a residency requirement, it must be met by the announced closing date of the examination, and residency must be maintained continuously from the closing date to the date of appointment; the closing date for the exam was July 1994, and the petitioner was placed on the eligible list on May 7, 1999; the petitioner’s address on the eligible list was a Belleville address, which was the address that he had supplied to the Department of Personnel; on his investigation questionnaire, the petitioner responded that he lived at two Newark addresses from 1993 to present; the evidence of residency presented by the petitioner was “remarkably wanting” where it consisted mostly of “self-serving affidavits that lacked any corroboration” and contained the deficiencies noted by the Board; the Board’s decision was not arbitrary, capricious, or unreasonable, and the petitioner’s failure to meet his burden of proof was “manifest.”

Appellate Division, A-774-03T2, January 28, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17565

Conviction for driving under the influence affirmed; there was no abuse of discretion in the Municipal Court’s discovery order or the Law Division’s de novo review, the defendant’s challenged discovery requests did not fall within the scope of Rule 7:7-7, and there were no extraordinary circumstances justifying discovery of the requested materials; the Law Division judge properly concluded that the State had satisfied the three prongs of the test under Romano v. Kimmelman, and the Breathalyzer test results therefore were properly admitted as scientifically reliable.


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