by Kim C. Belin, Esq.
In a case that will cause school districts to reconsider their long-range facilities planning, the Commissioner of Education (“Commissioner”) ruled that boards of education must obtain voter approval prior to purchasing land, even if the board does not borrow money for the purchase. The Commissioner based his decision on the language of two statutes, N.J.S.A. 18A:20-4.1 and 18A:20-4.2, and a review of their legislative histories.
In Board of Education of the Township of Fairfield v. Ench, et al., the Fairfield Board of Education (“Board”) and sellers entered into an Agreement of Sale in 1995 for the purchase of land on which the Board intended to construct a new school. The Board did not seek voter approval, or include an appropriation for the purchase of land as a line item in the proposed budget. The Board did, however, request and receive site approval from the County Superintendent. The Board argued that N.J.S.A. 18A:20-4.1 was not relevant since the transaction was not a rental, or an option. The Board took the position that N.J.S.A. 18A:20-4.2(d) was controlling and voter approval was not needed because the Board did not borrow money. The Administrative Law Judge (“ALJ”) ruled and the Commissioner affirmed that the Board was obligated to submit to the voters of Fairfield a budget that included a line item accounting for the purchase of the land. However, the Commissioner rejected the ALJ’s conclusion that voter approval was unnecessary because the Board did not borrow money for the property purchase.
The Commissioner determined that the statutes had to be read in tandem. N.J.S.A. 18A:20-4.2 requires voter approval in four key areas: a) to purchase, take and condemn land; b) to grade, drain, and landscape; c) to erect, lease, improve, repair, or furnish buildings; or d) borrowing money therefor. N.J.S.A. 18A:20-4.1 does not require voter approval for renting buildings for school purposes, or taking a one-year option on the purchase of land which the board could lawfully purchase after securing the consent of the legal voters to the purchase, but such option may be exercised by the board only after authority to purchase the property covered by such option has been given at an annual or special school election. Based upon the plain language of these statutes, the Commissioner concluded that there is an implicit requirement that land purchases generally must be authorized by the voters of the district. If such a requirement did not exist, according to the Commissioner, it would be nonsensical to limit the availability of options to only those pieces of land which the board could purchase after securing voter approval and permit the actual exercise of the option only after authority for the purchase has been given at an election.
This decision has several implications for those districts considering expanding their physical facilities. For example, such districts will have to conduct special elections prior to purchasing any property. In addition, districts may have to expend money to engage in informational campaigns to rally public support for the purchase, and factor such expenses into future budgets. Doing so may place additional strain on district coffers as districts divert funds to accommodate these extra expenses. Finally, the need for voter approval lengthens the decision-making process. In light of these serious implications, districts would be wise to review their five year facilities plan to assess the impact of this decision.
This article was written by Kim C. Belin, Esq.
© 2000 Capehart & Scatchard, P.A.
