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Brown Moskowitz & Kallen Secures Precedent-Setting Appellate Victory Defeating Board of Education Challenge to Residential Development

Brown Moskowitz & Kallen Secures Precedent-Setting Appellate Victory Defeating Board of Education Challenge to Residential Development

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Aug 19, 2020
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Summit, New Jersey July 2020 – In a precedent-setting reported decision, the Appellate Division of the Superior Court of New Jersey accepted the arguments of Brown Moskowitz & Kallen, P.C. partner Richard S. Schkolnick on behalf of client Markim Developers, LLC.

After Markim secured site plan approval and variances from the Edison Board of Adjustment for an 8-unit residential townhouse project, the Edison Board of Education challenged that decision in the Law Division (without having appeared at the underlying board hearings). The Law Division dismissed the case, holding that the Board of Education lacked standing.

In a case of first impression, the Appellate Division affirmed, holding that the Board of Education did not have the standing to challenge the approval based solely on generalized claims of school overcrowding. While courts generally take an expansive view of standing in land use matters, this ruling cuts against that trend, denying a board of education the ability to challenge a land-use decision when it could not cite a “land use” type impact on a specific board of education property.

“This Appellate decision provides new ground rules for intragovernmental disputes in land use matters, curtailing claims by boards of education based only on generalized assertions of school overcrowding and budget limitations,” said Mr. Schkolnick, the former chair of the State Bar Association’s Land Use Law Section. “An adverse decision could have opened the floodgates for claims by boards of education in the land use approval process. Housing is a fundamental community need and real estate developers require certainty in the established approval process,” he added. “Granting a board of education standing in a land use application and litigation would have complicated an already difficult entitlement process, and this decision clarifies this previously unsettled area of land use law.”

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