                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4138-16T2

CITY OF NORTH WILDWOOD,

          Plaintiff-Appellant,

v.

BOARD OF EDUCATION OF
THE CITY OF WILDWOOD,

     Defendant-Respondent.
_____________________________

                    Argued October 3, 2018 – Decided July 8, 2019

                    Before Judges Fuentes, Vernoia and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Cape May County, Docket No. L-0402-15.

                     Joseph Francis Betley argued the cause for appellant
                    (Capehart & Scatchard PA, attorneys; Joseph Francis
                    Betley, of counsel; Kelly E. Adler, on the briefs).

                    William Stephen Donio argued the cause for respondent
                    (Cooper Levenson PA, attorneys; William Stephen
                    Donio and Kelli A. Prinz, on the brief).

PER CURIAM
      Since 2002, the Board of Education of the City of Wildwood (the Board)

has leased space at St. Simeon's by-the-Sea Episcopal Church in North

Wildwood to serve as a school facility for its preschool and kindergarten

students. The Board leases this space because the City of Wildwood's existing

elementary school is at full capacity and consequently unable to accommodate

all of the students who fall within this age-group. On June 6, 2014, the City of

North Wildwood (North Wildwood) challenged the Board's authority to lease

and operate this educational facility located outside of its jurisdictional

boundaries. North Wildwood views the Board's actions as ultra vires and as an

intrusion on its municipal sovereignty. The Law Division did not find any legal

or factual grounds to support North Wildwood's position. We affirm.

                                       I

      North Wildwood initially challenged the Board's operation of this school

in a petition before the State Commissioner of Education (Commissioner), who

referred the matter to the Office of Administrative Law for the development of

an evidentiary record before an Administrative Law Judge (ALJ). The parties

participated in discovery, and ultimately filed cross-motions for summary

disposition, which the ALJ scheduled for oral argument on July 24, 2015. On

July 23, 2015, North Wildwood moved before the ALJ to withdraw its Petition


                                                                        A-4138-16T2
                                       2
without prejudice, to permit it to seek declaratory and injunctive relief against

the Board in the Superior Court.

      On August 14, 2015, North Wildwood filed a verified complaint in the

Law Division seeking declaratory and injunctive relief. North Wildwood argued

the Board did not have the legal authority to lease property located outside its

municipal borders to operate an educational program for its students. North

Wildwood also sought an order compelling the Board to find a suitable site to

operate these educational programs within the City of Wildwood. Toward that

end, North Wildwood sought an injunction prohibiting the Board from: (1)

extending its lease beyond the 2015-2016 school year; and (2) operating any

educational program located outside the City of Wildwood. Finally, without

citing any legal authority to support this claim, North Wildwood asked the court

to award it attorney's fees and costs incurred in the prosecution of this civil

action. The Board filed a responsive pleading that included its own request for

affirmative relief in the form of a declaratory judgment validating the manner it

had operated its preschool and kindergarten programs since 2002.

      While the matter proceeded in the Law Division through discovery, the

ALJ granted North Wildwood's motion to withdraw its petition before the




                                                                         A-4138-16T2
                                       3
Commissioner but decided to dismiss the matter with prejudice. The ALJ

provided the following explanation for taking this action:

            It was only after the extensive case analysis, workup
            and motion practice that North Wildwood abruptly
            withdrew its petition on July 23, 2015, one day before
            oral argument, cognizant that the case was close to
            being decided with finality. And North Wildwood . . .
            re-filed [its] claims with the Superior Court . . . .
            Nonetheless the majority rights and obligations still
            must be decided under education law ([T]itle 18A and
            [A]dministrative [C]ode 6A). . . . A Superior Court
            Judge would have to resort to Title 18A or
            Administrative Code 6A to decide the case.

                  ....

            I CONCLUDE that the petition filed by North
            Wildwood must be DISMISSED with prejudice. North
            Wildwood's re-filing with the Superior Court under the
            Declaratory Judgment Act was strategic, tactical in
            nature, and jurisdictionally improper in the opinion of
            the undersigned. It came very late in the process and
            more importantly on the eve of possibly deciding the
            outcome of the case. The Commissioner of Education
            has primary jurisdiction over education matters. The
            Superior Court generally defers administrative matters
            to the respective state agencies where special expertise
            exists under the principle of exhaustion of
            administrative remedies or primary jurisdiction. R.
            4:69-5. It would be unfair and prejudicial to [the
            Board] if the Superior Court invoked the exhaustion of
            administrative remedies or primary jurisdiction
            doctrines; rejected the relief sought by North
            Wildwood; and only to have the case refiled before the
            Commissioner. The taxpayers of both cities would


                                                                       A-4138-16T2
                                       4
            incur unnecessary legal expenses and an unnecessary
            delay in knowing the outcome of the case.

      On January 4, 2016, the Commissioner adopted the ALJ's Initial Decision,

and included the following admonition:

            [T]he Commissioner makes no findings as to the merits
            of [North Wildwood's] pending Superior Court action.
            Certainly, [North Wildwood] can elect to pursue its
            claim elsewhere . . . but not while leaving the door open
            to duplicative future litigation before the
            Commissioner. Given this late stage, and the well-
            documented efforts already expended by [the Board] to
            defend against and resolve this action, [North
            Wildwood] should be precluded from returning to the
            Commissioner with the same claim.

      After 242 days of discovery in the Law Division, North Wildwood and the

Board filed cross-motions for summary judgment which the court heard on

March 3, 2017. On April 28, 2017, the motion judge issued an order granting

the Board's motion for summary judgment and dismissing North Wildwood's

complaint with prejudice.

      As a threshold issue, the judge found North Wildwood had standing to

seek declaratory relief because "the permissible locations where a municipality

may host students for public education is a question of public interest, and given

the liberalized standard for standing in New Jersey, the facts show . . . [North

Wildwood] has a sufficient stake in the outcome." Although the Commissioner


                                                                          A-4138-16T2
                                        5
had previously dismissed with prejudice North Wildwood's petition, the motion

judge concluded this did not preclude it from bringing this declaratory judgment

action in the Law Division.      The judge characterized the Commissioner's

decision as predicated "purely on procedural grounds." In the judge's view,

because the Commissioner did not decide the merits of the action, the doctrine

of res judicata did not apply.

      Against this backdrop, North Wildwood appeals arguing the Law Division

erred in holding: (1) this issue was within the primary jurisdiction of the

Commissioner; and (2) N.J.S.A.18A:20-4.2(a) gives the Board the express or

implied authority to lease private property outside its municipal borders to

operate a kindergarten or preschool program. In response, the Board argues

whether it may lease space for the purposes of educating its preschool and

kindergarten students involves the interpretation of Title 18A, and thus falls

squarely within the primary jurisdiction of the Commissioner.

                                       II

      Before we begin our legal analysis, we will briefly describe the factual

background that led to this legal dispute between these two public entities. The

Board is "a body corporate" organized under N.J.S.A. 18A:10-1, responsible for




                                                                        A-4138-16T2
                                       6
the operation of the public schools in the City of Wildwood. The Board has a

send-receive relationship with North Wildwood for grades nine through twelve.

      In 2002, the Board entered into a lease agreement with St. Simeon's to use

and occupy an annex to the church to house its preschool and kindergarten

students. The Board formally approved this arrangement in the public session

of a meeting, in accordance with the Open Public Meetings Act, N.J.S.A. 10:4-

6 to -21. Since 2003, the Board has formally approved the renewal of the lease

a number of times. The most recent lease which the Board approved on April

25, 2016, was for a three-year term beginning September 1, 2016 and ending on

August 31, 2019.    The State Department of Education, represented by the

Executive County Superintendent of Schools for Cape May County, formally

approved the use of the Annex as additional classroom space.

      The Annex is located on the border of North Wildwood and the City of

Wildwood and contains six classrooms, a teacher's lounge, two girl's bathrooms,

two boy's bathrooms, three office spaces, a kitchen, and a playground. As of

October 2016, 129 children were enrolled in the preschool and kindergarten

classes.   The Board and North Wildwood have separate liability insurance

policies covering the Annex. In the event of a fire-related emergency at the




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                                       7
Annex, both the City of Wildwood Fire Department and the North Wildwood

Fire Department have agreed to respond.

       In a certification dated April 21, 2015, Kevin Yucco, the City

Administrator of North Wildwood, claimed he first became aware that the Board

was operating a school at the Annex in 2014, when the Chief of Police told him

that the Cape May County Prosecutor's Office requested that he "enter into a

Memorandum of Agreement 1 with [the Board] for the preschool and

kindergarten students from the City of Wildwood that attend s chool at . . . the

Annex at St. Simeon's." Yucco claimed that prior to this, he assumed St.

Simeon's was operating a private day care or preschool program.

       The Board claims North Wildwood was aware that it was using the Annex

to accommodate its preschool and kindergarten programs because Patrick

Rosenello, the current Mayor of North Wildwood, was a member of the Board

as a Sending District Representative 2 when the Board first leased the Annex in



1
    See N.J.A.C. 6A:16-6.2(b)(13).
2
   Rosenello submitted a certification in response to the Board's position in this
litigation in which he admits he was a member of the Board in 2002. However,
he claims he was not aware of the lease arrangement because his role on the
Board was statutorily circumscribed pursuant to N.J.S.A. 18A:38-8.1 and by a
resolution the Board adopted prior to 2002 that limited his participation to
"matters concerning Wildwood High School."
                                                                          A-4138-16T2
                                        8
2002. The Board also notes that North Wildwood's Police and Fire Departments

have conducted safety drills and presentations at the Annex during the relevant

time period.    The record also contains several articles published in local

newspapers regarding Wildwood's students utilizing the Annex.

                                        III

      We first address North Wildwood's standing to bring this action in the

Law Division. The issue of standing is a legal question, which is subject to this

court's de novo review. Courier-Post Newspaper v. Cty. of Camden, 413 N.J.

Super. 372, 381 (App. Div. 2010) (citing In re Project Authorization Under N.J.

Register of Historic Places Act, 408 N.J. Super. 540, 555 (App. Div. 2009)).

"Standing 'refers to the plaintiff's ability or entitlement to maintain an action

before the court.'"     In re Adoption of Baby T, 160 N.J. 332, 340

(1999) (quoting N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402,

409 (App. Div. 1997)). New Jersey courts liberally grant a litigant standing to

sue. Jen Elec., Inc. v. Cty. of Essex, 197 N.J. 627, 645 (2009). Generally, there

is standing if the party seeking relief has "a sufficient stake and real adverseness

with respect to the subject matter of the litigation [and a] substantial likelihood

of some harm . . . in the event of an unfavorable decision[.]" Jen Elec., Inc., 197

N.J. at 645 (quoting In re Adoption of Baby T, 160 N.J. at 340).


                                                                            A-4138-16T2
                                         9
      "The threshold to prove a party's standing is 'fairly low.'" EnviroFinance

Grp., LLC v. Envtl. Barrier Co., LLC, 440 N.J. Super. 325, 340 (App. Div. 2015)

(quoting Reaves v. Egg Harbor Twp., 277 N.J. Super. 360, 366 (App. Div.

1994)).   Thus, where "the proceeding serves the public interest" and the

"plaintiff is not simply an interloper," standing will likely be found. N.J. Citizen

Action, 296 N.J. Super. at 415 (quoting In re Quinlan, 70 N.J. 10, 34-35 (1976)).

In determining the question of a party's standing in a civil matter, a court should

also consider if the issue implicates a substantial public interest. In re Grant of

Charter to Merit Preparatory Charter Sch. of Newark, 435 N.J. Super. 273, 280

(App. Div. 2014) (finding standing where the issue involved a "substantial

public interest"); Finkel v. Twp. Comm. of Hopewell, 434 N.J. Super. 303, 315-

16 (App. Div. 2013).

      North Wildwood argues it has standing because the legal question raised

here is a novel one that implicates a matter of substantial public importance, to

wit, "whether a public school district can continually and/or permanently operate

its educational programs beyond its geographic and political limits . . . [.]"

North Wildwood postulates several scenarios in which it would be required to

expend municipal resources based only on Wildwood students' participation in

and attendance of programs offered at the Annex.


                                                                            A-4138-16T2
                                        10
      These possible situations include: (1) dispatching public safety personnel

from its Police and Fire Departments in response to incidents arising from the

presence of students in the Annex; (2) participating in fire inspections and drills

at the Annex; and (3) allocating North Wildwood employees to perform crossing

guard duties for Annex-students. North Wildwood's arguments are predicated

on the concern that, should a Wildwood student be injured or otherwise in need

of emergency care at the Annex, North Wildwood public safety personnel would

be required to assume the role of first responders.

      By contrast, the Board argues North Wildwood has not provided any

competent evidence that shows that in the twelve years the Annex has housed

this educational program, North Wildwood has expended municipal resources

exclusively due to Wildwood's children's use of the Annex. The Board also

points out that North Wildwood is obligated to provide emergency services to

anyone leasing the St. Simeon's site. Thus, North Wildwood has not suffered

any actual harm nor expended additional resources due to the Board's use of the

Annex.

      Despite the Board's logically compelling arguments, the Law Division

found North Wildwood had standing to raise this issue. The motion judge held

that "the permissible locations where a municipality may host students for public


                                                                           A-4138-16T2
                                       11
education is a question of public interest . . . [.]" In light of our State's well-

settled jurisprudence in favor of granting a litigant standing to sue in cases

involving issues of public interest, Jen Elec., Inc., 197 N.J. at 645, we hold that

North Wildwood has, by the slimmest of margins, provided a sufficient basis to

establish standing to litigate this case.

      We turn next to the issue of jurisdiction. In this respect, we agree with

the motion judge that the Commissioner has primary jurisdiction.               The

dispositive legal question is "whether [the Board] is permitted to have students

attending school outside of its municipality, either temporarily or permanently."

The judge thus rejected North Wildwood's attempt to reframe the issue to a

determination of whether the Board was acting outside of its statutory authority.

As the motion judge correctly held, the statutes applicable to this issue are all

under Title 18A. Thus, this issue squarely falls under the Commissioner's

primary jurisdiction.

      We review the Law Division's decision de novo because it was based

entirely on a question of law. State v. Quaker Valley Farms, LLC, 235 N.J. 37,

55 (2018). To determine whether the doctrine of primary jurisdiction applies, a

court must weigh the following factors:

             1) whether the matter at issue is within the conventional
             experience of judges; 2) whether the matter is

                                                                           A-4138-16T2
                                        12
            peculiarly within the agency's discretion, or requires
            agency expertise; 3) whether inconsistent rulings might
            pose the danger of disrupting the statutory scheme; and
            4) whether prior application has been made to the
            agency.

            [Muise v. GPU Inc., 332 N.J. Super. 140, 160 (App.
            Div. 2000) (quoting Boldt v. Correspondence Mgmt.,
            Inc., 320 N.J. Super. 74, 85 (1990)).]

      Because the controversy before us involves the application and

interpretation of Title 18A, the Commissioner has primary jurisdiction to hear

and determine all of the issues raised by the parties. Bower v. Bd. of Educ. of

E. Orange, 149 N.J. 416, 420 (1997); G.D.M. v. Bd. of Educ. of Ramapo Indian

Hills Reg'l High Sch. Dist., 427 N.J. Super. 246, 259 (App. Div. 2012). The

New Jersey School Laws, N.J.S.A. 18A:1-1 to -76-4, empower local school

boards to operate public schools for their respective districts. See N.J.S.A.

18A:8-1; N.J.S.A. 18A:10-1; N.J.S.A. 18A:11-1. The Department of Education

is "a principal department in the executive branch of the state government."

N.J.S.A. 18A:4-1.       The Commissioner is "[t]he chief executive and

administrative officer of the department," who has "general charge and

supervision of the work of the department," N.J.S.A. 18A:4-22(a), and has

"jurisdiction to hear and determine . . . all controversies and disputes arising

under the school laws . . . [.]" N.J.S.A. 18A:6-9.


                                                                        A-4138-16T2
                                       13
      As an appellate court, we owe "institutional respect . . . for the

Commissioner's first-instance jurisdiction 'to hear and determine . . . all

controversies and disputes arising under the school laws[.]'"           Archway

Programs, Inc. v. Pemberton Twp. Bd. of Educ., 352 N.J. Super. 420, 424 (App.

Div. 2002) (second and third alterations in original) (quoting N.J.S.A. 18A:6-

9). Moreover, "[t]he Commissioner's authority is plenary." Ibid. (citing Abbott

v. Burke, 100 N.J. 269, 301 (1985)). Thus, "the Commissioner of Education has

primary jurisdiction to hear and determine all controversies arising under the

school laws." Bower v. Bd. of Educ. of E. Orange, 149 N.J. 416, 420 (1997)

(citing N.J.S.A. 18A:6-9). The Board of Education is the "agency ultimately

charged with implementation of the school laws."          The Commissioner's

"statutory interpretation is entitled to considerable weight, where not

inconsistent with the statute and in harmony with the statutory purpose."

Kletzkin v. Bd. of Educ.of Spotswood, 136 N.J. 275, 278 (1994).

      We thus affirm the Law Division's order dismissing North Wildwood's

declaratory judgment action.    We do not express any opinion concerning

whether North Wildwood is barred from seeking any relief before the

Commissioner under the doctrine of res judicata or judicial estoppel.

      Affirmed.


                                                                         A-4138-16T2
                                      14
