                                NOT FOR PUBLICATION WITHOUT THE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-3415-16T1

NORTH BRUNSWICK TOWNSHIP
BOARD OF EDUCATION, NEW
BRUNSWICK BOARD OF EDUCATION,
and PISCATAWAY TOWNSHIP BOARD
OF EDUCATION,

          Petitioners-Appellants,

v.

KIMBERLY HARRINGTON, ACTING
COMMISSIONER OF EDUCATION,
NEW JERSEY STATE BOARD OF
EDUCATION and CENTRAL JERSEY
COLLEGE PREP CHARTER SCHOOL,

     Respondents-Respondents.
____________________________________

                    Argued May 30, 2019 – Decided June 7, 2019

                    Before Judges Haas, Sumners and Mitterhoff.

                    On appeal from the New Jersey Department of
                    Education.

                    David B. Rubin argued the cause for appellants (David
                    B. Rubin, PC, and The Busch Law Group, LLC,
                    attorneys; David B. Rubin and Douglas M. Silvestro,
                    on the briefs).
             Brenda C. Liss argued the cause for respondent Central
             Jersey College Prep Charter School (Riker Danzig
             Scherer Hyland & Perretti, LLP, attorneys; Brenda C.
             Liss, of counsel and on the brief; Stephen M. Turner,
             on the brief).

             Geoffrey N. Stark, Deputy Attorney General, argued
             the cause for respondent Commissioner of Education
             (Gurbir S. Grewal, Attorney General, attorney; Melissa
             Dutton Schaffer, Assistant Attorney General, of
             counsel; James M. Esposito, Deputy Attorney General,
             on the brief).

PER CURIAM

      Appellants North Brunswick Township Board of Education (North

Brunswick), New Brunswick Board of Education (New Brunswick), and

Piscataway    Township    Board   of   Education   (Piscataway)   (collectively

appellants), appeal from the February 28, 2017 final decision of the

Commissioner of Education (Commissioner), approving an application by

Central Jersey College Prep Charter School (CJCP) to amend its charter to

increase its enrollment, add a satellite campus, and move its Somerset campus

to a new facility.1 We affirm.


1
  Calendared back-to-back with this appeal, Franklin Township Board of
Education (Franklin) separately appealed from this same decision. In re
Approval of Charter Amendment of Cent. Jersey Coll. Prep (Central Jersey),
No. A-3074-16. Two other appeals from final decisions by the Commissioner


                                                                       A-3415-16T1
                                       2
                                      I.

      The procedural history and facts of this case are fully set forth in our

decision today in Central Jersey and, to avoid repetition, we incorporate that

discussion here. Therefore, we need only recite the most salient facts in this

opinion.

      At the time of this appeal, there were five charter schools operating in

Middlesex and Somerset Counties: CJCP and Thomas Edison EnergySmart

Charter School (TEECS) in Franklin Township; Hatikvah International

Academy Charter School (Hatikvah) in East Brunswick; Greater Brunswick

Charter School in New Brunswick; and the Academy for Urban Leadership

Charter School in Perth Amboy. A sixth school, Ailanthus Charter School, had

received approval to begin operation in Franklin Township for the 2018 -2019

school year. See In re Ailanthus Charter Sch., No. A-0945-16 (App. Div. May

11, 2018). No charter schools were located in Piscataway.

      As discussed in detail in Central Jersey, on December 1, 2016, CJCP

submitted a charter amendment application to the Department seeking to: 1)



are also calendared back-to-back with this appeal. Highland Park Bd. of Educ.
v. Harrington (Highland Park II), No. A-3455-16; Bd. of Educ. of Twp. of
Piscataway v. N.J. Dep't of Educ. (Piscataway), No. A-5427-16. Because of this
overlap, the reader is encouraged to review all four of our opinions in these
cases, which are being released simultaneously.
                                                                       A-3415-16T1
                                      3
expand its maximum enrollment from 624 to 1320 students by the 2019 -2020

school year; 2) add a satellite campus in New Brunswick (within its region of

residence) by the 2019-2020 school year; and 3) relocate its current facility to a

new facility on Mettlers Road in Somerset.

      On January 13, 2017, Franklin Township Board of Education (Franklin)

submitted a letter, also discussed in detail in Central Jersey, to the Commissioner

asking her to deny CJCP's application. In January and February 2017, appellants

North Brunswick and Piscataway passed almost identical resolutions for a

general moratorium on new charter school seats in Middlesex and Somerset

Counties. They asserted that the Charter School Program Act of 1995, N.J.S.A.

18A:36A-1 to -18 (Charter School Act or CSPA), "requires that the districts of

residence pay the charter schools for each student from their respective

communities enrolled in those schools, thereby draining funds and diminishing

money available to serve students in the traditional public schools."

      Further, North Brunswick and Piscataway stated that the New Jersey

Department of Education (Department or NJDOE) "has interpreted the Act to

require all public schools statewide to pay charter schools for students enrolled

in those schools regardless as to whether the charter serves that district's

community as part of the charter's approved district or region of residence."


                                                                           A-3415-16T1
                                        4
They also alleged that Hatikvah and TEECS, but not CJCP, enrolled a

"significantly more segregated student body than any of the resident or non -

resident sending districts with respect to race, socioeconomic status and need

for special education."

      By letter dated February 21, 2017, appellant New Brunswick also asked

the Commissioner to deny CJCP's, TEECS's and Hatikvah's applications to

expand their enrollment. It maintained that in "direct contradiction to the letter

and spirit" of the CSPA, "many charter schools are seeking to expand in order

to enroll additional students from districts outside of the charter schools'

approved districts or regions of residence due to a lack of interest from students

who live in the very communities for which the charters were created to serve."

It claimed that "[a]ny increase in charter school seats will have a negative impact

on public school district funding, with the proposed 128% increase in such seats

in Middlesex and Somerset Counties likely to lead to drastic and debilitating

cuts throughout the public school districts in those counties."

      New Brunswick also noted that other entities had filed civil rights

complaints against two charter schools in Franklin Township (presumably

referring to CJCP and TEECS) alleging that the demographics of the charter

schools did not reflect the demographics of the local school district. It similarly


                                                                           A-3415-16T1
                                        5
alleged that Hatikvah and TEECS, but not CJCP, enrolled a "significantly more

segregated student body than any of the resident or non-resident sending districts

with respect to race, socioeconomic status and need for special education ."

      On February 28, 2017, the Commissioner granted CJCP's application to

amend its charter based on her review of the record. In her written decision, the

Commissioner noted that the Department had "completed a comprehensive

review including, but not limited to, student performance on statewide

assessments, operational stability, fiscal viability, public comment, fiscal impact

on sending districts, and other information in order to make a decision regarding

the school's amendment request." The Commissioner confirmed the school's

maximum enrollment for the "approved region of residence of Franklin, New

and North Brunswick," as follows:

             Grade          2017-2018        2018-2019       2019-2020
          Kindergarten         72               96               96
            Grade 1            72               96               96
            Grade 2            72               96               96
            Grade 3            48               72               96
            Grade 4                             48               72
            Grade 5                                              48
            Grade 6             72             168              168
            Grade 7             48             144              168
            Grade 8             48              48              144
            Grade 9             48             120              120
           Grade 10             48              48              120
           Grade 11             48              48               48
           Grade 12             48              48               48
             Total             624             1032            1320


                                                                           A-3415-16T1
                                        6
      The Commissioner also confirmed the new site location at Mettlers Road,

and directed CJCP to "provide all facility related documents to the Office of

Charter and Renaissance Schools and the Somerset County Office of

Education." Further, the Commissioner directed that once CJCP had identified

the final site of the satellite campus, it should provide the Department with the

required amended documentation pursuant to N.J.A.C. 6A:11-2.6. This appeal

followed.

      On appeal, appellants raise the following contentions:

            POINT I

            The Commissioner Failed To Analyze CJCP's
            Application Or To Disclose The Basis For Her
            Approval.

            POINT II

            The Commissioner Failed To Consider The Segregative
            Impact of CJCP's Charter Amendment.

            POINT III

            Other Significant Deficiencies [I]n CJCP's Application
            Render The Commissioner's Approval Arbitrary,
            Capricious And Unreasonable.

            POINT IV

            There Is No Authority To Compel Piscataway To Fund
            Students' Attendance [A]t CJCP.


                                                                         A-3415-16T1
                                       7
                                       II.

      In Point I, appellants argue that the Commissioner's decision approving

CJCP's application for an amendment of its charter was arbitrary, capricious, or

unreasonable because she failed to analyze CJCP's application to amend , or

provide any reason for the approval. We disagree.

      As a threshold matter, CJCP argues that the appeal filed by Piscataway

(but not New Brunswick's and North Brunswick's appeals) must be dismissed

because Piscataway, as a non-resident district, lacks standing to pursue it.

However, in our decision today in Highland Park II, we held that Piscataway

had standing to challenge the Commissioner's decision to grant Hatikvah's

application for an amendment to its charter. We discern no basis for reaching a

different conclusion in this case where Piscataway seeks to challenge CJCP's

similar application in the same county. Because we reject CJCP's standing

argument for the reasons expressed in Highland II, we do not discuss this

contention further here. R. 2:11-3(e)(1)(E).

      Turning to the merits of appellants' contentions concerning the sufficiency

of the Commissioner's decision, charter schools are public schools that operate

under a charter granted by the Commissioner, operate independently of a local

board of education, and are managed by a board of trustees. N.J.S.A. 18A:36A-


                                                                         A-3415-16T1
                                       8
3(a).2 Applications to establish a charter school are governed by N.J.S.A.

18A:36A-4 and -5, and the implementing regulation, N.J.A.C. 6A:11-2.1. The

Commissioner has final authority to grant or reject a charter. N.J.S.A. 18A:36A-

4(c). "The notification to eligible applicants not approved as charter schools

shall include reasons for the denials." N.J.A.C. 6A:11-2.1(f) (emphasis added).

       Applications to renew a charter are governed by N.J.S.A. 18A:36A-17,

and the implementing regulation, N.J.A.C. 6A:11-2.3. The Commissioner shall

grant or deny the renewal of a charter based upon a comprehensive review of

the school, including, among other things, the annual reports, recommendation

of the district board of education or school superintendent, and student

performance on statewide tests. N.J.A.C. 6A:11-2.3(b). "The notification to a

charter school that is not granted a renewal shall include reasons for the denial."

N.J.A.C. 6A:11-2.3(d) (emphasis added).

        At issue here, a charter school can also apply to the Commissioner for an

amendment to its charter. N.J.A.C. 6A:11-2.6. A charter school can seek, as in

this case, an expansion of enrollment and the establishment of a satellite campus.

N.J.A.C. 6A:11-2.6(a)(1)(i), (iv). Similar to the initial approval process, boards

of education in the district of residence can submit comments in response to the


2
    We discuss the CSPA in more detail in our decision in Highland Park II.
                                                                           A-3415-16T1
                                        9
application for amendment. N.J.A.C. 6A:11-2.6(c).

      "The Commissioner may approve or deny amendment requests of charter

schools and shall notify charter schools of decisions.         If approved, the

amendment becomes effective immediately unless a different effective date is

established by the Commissioner." N.J.A.C. 6A:11-2.6(d). In determining

whether the amendments are eligible for approval, the Department "shall

evaluate the amendments" based on the CSPA and the implementing regulations,

and the Commissioner "shall review a charter school's performance data. . . ."

N.J.A.C. 6A:11-2.6(b). A school's performance data is reflected in the school's

Academic Performance Framework report.              N.J.A.C. 6A:11-1.2.       The

Performance Framework consists of three sections: academic, financial , and

organizational. N.J.A.C. 6A:11-1.2. A charter school’s performance on the

academic section carries the most weight. That component includes measures

of student growth, achievement, graduation rate, and attendance.         N.J.A.C.

6A:11-1.2.

      On appeal, this court may reverse the Commissioner's decision on a

charter school application only if it is "arbitrary, capricious, or unreasonable."

In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J.

370, 385 (2013). In making that determination, our review is generally restricted


                                                                          A-3415-16T1
                                       10
to three inquiries:

             (1) whether the agency's action violates express or
             implied legislative policies, that is, did the agency
             follow the law; (2) whether the record contains
             substantial evidence to support the findings on which
             the agency based its action; and (3) whether in applying
             the legislative policies to the facts, the agency clearly
             erred in reaching a conclusion that could not reasonably
             have been made on a showing of the relevant factors.

             [Id. at 385-86 (quoting Mazza v. Bd. of Trs., 143 N.J.
             22, 25 (1995)).]

       "[T]he arbitrary, capricious, or unreasonable standard . . . subsumes the

need to find sufficient support in the record to sustain the decision reached by

the Commissioner." Id. at 386. "[A] failure to consider all the evidence in a

record would perforce lead to arbitrary decision making." Ibid. However, in

cases where "the Commissioner is not acting in a quasi-judicial capacity," and

is instead acting in [her] legislative capacity, as [s]he was doing here, [s]he

"need not provide the kind of formalized findings and conclusions necessary in

the traditional contested case." TEAM Acad., ___ N.J. Super. ___ (slip op. at

30) (quoting In re Grant of Charter Sch. Application of Englewood on the

Palisades Charter Sch., 320 N.J. Super. 174, 217 (App. Div. 1999), aff'd as

modified, 164 N.J. 316 (2000)).

      Thus, although the arbitrary, capricious, or unreasonable standard


                                                                         A-3415-16T1
                                       11
demands "that the reasons for the decision be discernible, the reasons need not

be as detailed or formalized as an agency adjudication of disputed facts; they

need only be inferable from the record considered by the agency." Englewood,

320 N.J. Super. at 217. See Red Bank, 367 N.J. Super. at 476 (reasons need not

be detailed or formalized, but must be discernible from the record); Bd. of Educ.

of E. Windsor Reg'l Sch. Dist. v. State Bd. of Educ., 172 N.J. Super. 547, 552

(App. Div. 1980) (detailed findings of fact not required by Commissioner in

reducing amount school board sought to increase its budget).

      There is also no statutory or regulatory provision requiring the

Commissioner to include reasons for granting an application to amend. The

regulations provide only that the notification "shall include reasons for the

denial[]" of an initial charter school application, N.J.A.C. 6A:11-2.1(f), and an

application for renewal, N.J.A.C. 6A:11-2.3(d).       The Commissioner does

however, take comments regarding the amendment into consideration when

rendering a final decision. N.J.A.C. 6A:11-2.6(c).

      To that end, Quest Academy, 216 N.J. at 390, as cited by appellants, is

distinguishable. In that case, the operator of a proposed charter school appealed

from the Commissioner's decision denying the charter.          Id. at 373.   The

Commissioner's initial decision was "short on detail with respect to the


                                                                         A-3415-16T1
                                      12
application's deficiencies." Ibid. However, after the appeal was filed, the

Commissioner submitted a written amplification of his reasons for denying the

application. Id. at 374. The Court affirmed, finding in relevant part that:

            Although the letter of denial did not detail the
            deficiencies found in the application, it offered instead
            a face-to-face meeting to review in detail the
            shortcomings in the application that Quest Academy
            submitted. According to the Commissioner, the large
            number of applicants (forty-five) who were reviewed in
            the batch with Quest Academy rendered lengthy written
            responses difficult and taxing of precious departmental
            resources. While it would be naturally preferable from
            the applicant's perspective to receive initially more than
            a generic form letter denying an application, here Quest
            Academy received a bit more than that. Some
            information about the application's shortcomings was
            provided in the denial letter, and the subsequent
            amplification fully detailed those issues. In reviewing
            as complex a proposal as that required for a newly
            proposed charter school, there is a benefit to offering a
            discussion, instead of a written cataloguing, of mistakes
            or deficiencies in the application that has been rejected.
            We do not fault the Commissioner for choosing a
            dialogue involving constructive criticism as her
            preferred approach for producing approvable
            applications when resubmitted.

            [Id. at 390.]

      As we discussed in our decisions in Highland Park II and Central Jersey,

Quest Academy is distinguishable because there is no requirement that the

Commissioner detail her findings in approving an amendment. See also TEAM


                                                                         A-3415-16T1
                                       13
Acad., ___ N.J. Super. ___ (slip op. at 40). Instead, the focus on review is

whether the reasons for the Commissioner's decision are clearly discernible from

the record. Red Bank, 367 N.J. Super. at 476.

      Here, the record supports the Commissioner's decision approving CJCP's

request to amend its charter.     Most notably, it is undisputed that CJCP's

performance data, a significant factor in assessing a request to amend a charter,

N.J.A.C. 6A:11-2.6(b), was, as represented by its students' PARCC scores,

significantly higher than the State average. It was also undisputed that CJCP is

a high-performing, Tier 1 school, a ranking it received from the Department's

assessment of its academic performance based on the metrics set forth in the

State's Academic Performance Framework governing charter schools. N.J.A.C.

6A:11-1.2; N.J.A.C. 6A:11-2.3(b).

      Further, the record shows that CJCP, which has been submitting detailed

annual reports to the Commissioner since it was approved to operate in 2006,

and had submitted financial audits prior to having its charter renewed, was

organizationally sound and fiscally viable. N.J.S.A. 18A:36A-16(b); N.J.A.C.

6A:11-2.2. As discussed more fully in Central Jersey, there was also a need for

the increase in enrollment because there were 628 students on its waiting list

and there was a "heavy demand from the community" to enroll in the charter


                                                                         A-3415-16T1
                                      14
school. Adding a satellite campus in New Brunswick would further allow for

the "accessibility and replication" of CJCP's existing model to service that high-

needs community.      Lastly, the Commissioner approved CJCP's request to

expand enrollment with the understanding that facilities would need to be

identified, secured, and potentially improved to comply with the charter

regulations.

         Therefore, we again conclude that the Commissioner's decision to

approve CJCP's application was not arbitrary, capricious, or unreasonable

because it promoted the legislative policy of developing charter schools and was

supported by the record. Therefore, we reject appellants' contentions on this

point.

                                       III.

         In Point II, appellants argue that the Commissioner's decision was

arbitrary, capricious, and unreasonable because she failed to consider the alleged

segregative impact of CJCP's charter amendment on the district. Franklin raised

this identical issue in Central Jersey, in its appeal from the same February 28,

2017 decision involved in the present appeal. For the reasons set forth in our

decision in Central Jersey, we reject appellants' similar contention in this

companion appeal, and add the following comments addressing appellants'


                                                                          A-3415-16T1
                                       15
specific arguments concerning this issue. R. 2:11-3(e)(1)(E).

       Appellants argue that CJCP's demographics do not reflect a cross section

of the community's school age population. They contend that CJCP over-

enrolled Asian students and under-enrolled Hispanic students, economically

disadvantaged students (defined as students receiving free or reduced cost

lunch), ELL students, and special needs students, when compared to the

populations in the Franklin, North Brunswick, and New Brunswick school

districts.

       Before the Commissioner, however, appellants only asserted that

Hatikvah and TEECS, but not CJCP, enrolled a "significantly more segregated

student body than any of the resident or non-resident sending districts with

respect to race, socioeconomic status and need for special education." Further,

Franklin only asserted that CJCP had a "poor track record" with ELL students,

and presented no evidence to the Commissioner regarding the racial and

economic segregative effects of CJCP's increased enrollment.

       Appellants argue that the Commissioner's decision granting the expansion

of enrollment is arbitrary and capricious because "there is nothing discernable"

in either her decision or the record to suggest that she considered its assertions

that CJCP enrolled a significantly more segregated student body than any of the


                                                                          A-3415-16T1
                                       16
resident or non-resident school districts. However, as set forth above and in our

decision in Central Jersey, the Commissioner was not required to include

reasons for granting the application to amend the charter. See Red Bank, 367

N.J. Super. at 476 (Commissioner did not specifically address the segregation

argument in his letter approving the Charter School's renewal and expansion).

Nor did appellants present to the Commissioner sufficient evidence of a

segregative effect to warrant more in-depth scrutiny. Id. at 472-85.

      Further, appellants' unsubstantiated generalized protests regarding the

segregative effect of CJCP's application to increase enrollment did not provide

a basis to deny the application.    Ibid. It is undisputed that CJCP accepts

applications from all interested students and operates a publicly held random

lottery process that blindly accepts a certain number of applicants to fill

available seats per grade. CJCP does not collect any information at the time of

the application from the applicants regarding students' socioeconomic and ethnic

background, disability status, and English language skills.

      Nonetheless, on appeal, appellants submitted school enrollment and

census data for Franklin, North Brunswick, and New Brunswick school districts,

which it contends for the first time shows that CJCP is becoming increasingly

segregated and does not reflect the demographics of the local community:


                                                                         A-3415-16T1
                                      17
    Asian Students                School Year 2010-2011    School Year 2016-2017
    Franklin Township                     20%                      16%
    New Brunswick                         ≤1%                      ≤1%
    North Brunswick                       28%                      25%
    CJCP                                   3%                      38%

    District      or Hispanic        Free        or LEP3 Students   Students with
    School           Students        Reduced        2016-2017       Special Needs
                     2016-2017       Lunch                          2016-2017
                                     Students
                                     2016-2017
    Franklin            31%          48%             8%             19%
    New Brunswick       89%          60%             19%            17%
    North Brunswick     32%          41%             4%             15%
    CJCP                18%          24%             0%             7%

Appellants argue that the "collective weight of this data is prima facie proof that

CJCP does not reflect 'a cross section of the community's school age population

including racial and academic factors'" (quoting N.J.S.A. 18A:36A-8).

         However, on appeal, the Commissioner stated that she had analyzed the

potential impact CJCP's expansion would have on racial demographics within

the District by reviewing enrollment trends in New Brunswick and North

Brunswick, and determined that the student demographics have stayed relatively

static over the past few years:

    Students          North          North           New            New
    Pre-K to 12       Brunswick      Brunswick       Brunswick      Brunswick
                      2010-2011      2016-2017       2010-2011      2016-2017
    White             26.8%          18.8%           1.1%           0.8%
    Black             20.0%          21.3%           15.1%          9.7%
    Asian             28.7%          25.1%           0.8%           0.4%
    Hispanic          24.0%          32.5%           82.6%          88.8%

3
     Limited English proficiency students.
                                                                           A-3415-16T1
                                          18
 LEP             3.9%            4.4%             16.3%           18.7%
 Special needs   14.4%           15%              9.3%            16.8%
 Free or reduced 29.4%           41.1%            79.5%           59.7%
 lunch

      Thus, even if appellants had presented the information about student

enrollment and district demographics to the Commissioner prior to her February

28, 2017 decision, it would not have provided a basis to reject the application.

The data provided above shows some disparity between the enrollment of Asian,

Hispanic, LEP, special needs, and economically disadvantaged students and the

students in the population in North Brunswick and New Brunswick.

Significantly, however, appellants do not argue that the school districts are

becoming more segregated and in fact, the data submitted by the Commissioner

indicates that they have not. See Bd. of Educ. of Hoboken v. N.J. State Dep't of

Educ., No. A-3690-14 (App. Div. June 29, 2017) (slip op. at 15) (affirmed

charter renewal where there were no allegations that the charter school's

practices after the enrollment of students by an impartial lottery exacerbated the

racial or ethnic balance).

      A comparison of the demographic data indicates that CJCP enrolled a

diverse student population. Moreover, CJCP maintained that the expansion and

the operation of a satellite campus in New Brunswick would allow it to develop

an even more diverse student population. To that end, appellants have not


                                                                          A-3415-16T1
                                       19
presented any evidence that the District was becoming more segregated, or that

CJCP's existence has worsened the existing racial imbalance. See ibid.4

      Finally, we note, as we did in our decision in Central Jersey, that it is

undisputed that the Commissioner considered the segregative effect of the

charter school in approving CJCP's charter in 2006, N.J.A.C. 6A:11-2.1(j), in

renewing its application, N.J.A.C. 6A:11-2.3(b)(8), and on an annual basis,

N.J.A.C. 6A:11-2.2(c). There is no indication in this record that there was any

challenge based on the segregative effect, nor was there any indication in this

record that the Commissioner found a segregative effect during the annual

review. N.J.A.C. 6A:11-2.2(c).

      Because appellants did not provide sufficient evidence of a segregative

effect to warrant either more detailed scrutiny or the denial of the application,

we reject their contention that the Commissioner's decision was arbitrary,

capricious, and unreasonable.


4
    As discussed in our decision today in Central Jersey, this matter is
distinguishable from Red Bank, 367 N.J. Super. at 462, and two other cases
specifically cited by appellants, In re Petition for Authorization to Conduct a
Referendum on Withdrawal of N. Haledon Sch. Dist. from Passaic Cty.
Manchester Reg'l High Sch. Dist., 181 N.J. 161, 183 (2004), Bd. of Educ. of
Englewood Cliffs v. Bd. of Educ. of Englewood, 257 N.J. Super. 413, 459-65
(App. Div. 1992), aff'd, 132 N.J. 327, cert. denied, 510 U.S. 991 (1993).
Because we discuss these cases in detail in Central Jersey, we need not repeat
that discussion again here. R. 2:11-3(e)(1)(E).
                                                                          A-3415-16T1
                                      20
                                       IV.

      Turning to Point III, appellants argue that the Commissioner's decision

approving the amendment was arbitrary, capricious, and unreasonable because

she failed to consider "significant deficiencies in CJCP's application."

Specifically they argue that the Commissioner failed to consider:         1) the

financial burden of the expansion on the sending districts; 2) the lack of

sufficient demand for the increased enrollment in the region of residence; 3) the

lack of interest for a satellite campus; 4) that CJCP's staffing plan was

unrealistic; and 5) that the proposed location of the Somerset campus was

unsuitable for a school. Franklin raised some of these same arguments in Central

Jersey, and we rejected them. We reach the same conclusion here and also

address appellants' slightly different presentations on these issues.

      First, appellants argue that the Commissioner failed to consider the

financial burden of the expansion on the sending districts.         However, the

Commissioner relied on the Department's "comprehensive review," which

included the "fiscal impact on sending districts." Moreover, appellants did not

"demonstrate[] with some specificity that the constitutional requirements of a

thorough and efficient education would be jeopardized by [the district's] loss"

of the funds to be allocated to a charter school. Quest Acad., 216 N.J. at 377-


                                                                         A-3415-16T1
                                       21
78 (quoting Englewood, 164 N.J. at 334-35). Nor did they account for the fact

that although appellants have to pay CJCP 90% of certain student funding

categories, they retain 10%—an amount designed to respond to concerns about

the loss of funding to the District. Englewood, 164 N.J. at 333; N.J.S.A. 18:36A-

12(b). Thus, the Commissioner was not "obligated to evaluate carefully the

impact that loss of funds would have on the ability of the district of residence to

deliver a thorough and efficient education." Ibid.

      Second, appellants contend that the Commissioner failed to consider the

lack of demand in the region of residence for the increased enrollment, as

represented by its acceptance of non-resident students. However, as set forth in

our decision in Central Jersey, CJCP had 628 students on its waiting list at the

time of the application, and anticipated that approximately 94% of its students

would reside in its region of residence in the 2017-2018 school year, and 100%

by the 2018-2019 school year. Therefore, we reject appellants' contention.

      Third, appellants contend that CJCP's "justification for opening a satellite

campus in New Brunswick is baffling." However, a charter school can seek an

amendment to open a new satellite campus. N.J.A.C. 6A:11-2.6(a)(1)(iv). See

Educ. Law Ctr. ex rel. Burke v. N.J. State Bd. of Educ., 438 N.J. Super. 108,

112 (App. Div. 2014) (affirmed State Board's action in adopting regulations


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allowing satellite campuses). A satellite campus is defined as "a school facility

operated by a charter school that is in addition to the facility identified in the

charter school application or charter, if subsequently amended."         N.J.A.C.

6A:11-1.2. "A charter school may operate more than one satellite campus in its

district or region of residence, subject to charter amendment approval, pursuant

to N.J.A.C. 6A:11-2.6." N.J.A.C. 6A:11-4.15(b).

      The Department evaluates whether amendments are eligible for approval

based on the CSPA. N.J.A.C. 6A:11-2.6(b). Under the CSPA, a school must

include information showing a "[d]emonstration of need" in its initial

application for a charter. N.J.A.C. 6A:11-2.1(b)(2)(vi). As addressed in Central

Jersey, CJCP presented a detailed rationale for the addition of a satellite

campus—a record that amply supports the Commissioner's decision. Notably,

CJCP set forth that New Brunswick's high percentage of economically

disadvantaged students (86% (high school) and 93% (middle school)), would

benefit from easier access to CJCP. It also cited to a study that "emphasize[d]

the importance of residential proximity for charter schools to be a real option

for all parents."

      CJCP further demonstrated need because even though CJCP received

fewer applications than expected from New Brunswick students in 2016-2017,


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it still received double the number of applications from 2015-2016, and seventy-

seven of the ninety-three students were placed on the waiting list. It also

represented that the total number of applications had dramatically increased over

the past few years (465 for the 2014-2015 school year and 956 for the 2016-

2017 school year), and that at the time of the application, there were 628 students

on its waiting list. Therefore, appellants' contrary contention lacks merit.

      Fourth, appellants argue that the Commissioner failed to address its

concern as to the insufficiency of its staffing budget. However, as set forth in

Central Jersey, there is no indication in this record that CJCP proposed to pay

its teachers less than the amount required under the CSPA. In this regard,

N.J.S.A. 18A:36A-14(b) provides that "[a] charter school shall not set a teacher

salary lower than the minimum teacher salary specified pursuant to section 7 of

P.L.1985, c.321 (C.18A:29-5.6) nor higher than the highest step in the salary

guide in the collective bargaining agreement which is in effect in the district in

which the charter school is located." See also 34 N.J.R. 2920(a) (Aug. 19, 2002)

("Charter schools pay their teachers and professional staff not less than the State

minimum salary nor more than the salaries of the district boards of education in

which the charter schools are located.").

      Lastly, appellants argue that the Commissioner ignored serious safety


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                                       24
concerns about the Mettlers Road location. However, prior to opening the new

campus, CJCP must submit to the NJDOE the new lease, mortgage, or title to

the facility, a valid certificate of occupancy for educational use issued by the

local municipal enforcing official, a sanitary inspection report with a

satisfactory rating, and a fire inspection certificate with an "Ae" (education)

code life hazard. N.J.A.C. 6A:11-2.1(i)(6)-(9). The regulations are designed to

ensure that facilities are safe for students.

      Thus, none of the issues raised by appellants in this section of their brief

present a basis for disturbing the Commissioner's decision.

                                         V.

      Finally, appellants argue in Point IV, as the challengers unsuccessfully

did with respect to Hatikvah in Highland Park II and Piscataway, that there is

no statutory authority under the CSPA to obligate Piscataway to fund its

students' attendance at CJCP and thus, the Commissioner's decision was

arbitrary, capricious, or unreasonable because it violated express or implied

legislative policies. They contend that N.J.S.A. 18A:36A-12(b) explicitly limits

financial responsibility for students' attendance at charter schools to the "school

district of residence," which they interpret to mean the district where the charter

school is located, or at most, the contiguous districts identified in the school's


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approved "region of residence."

      Unlike New Brunswick and North Brunswick, Piscataway is not included

in CJCP's district or region of residence. Thus, appellants argue that since the

Commissioner's approval of the expansion was based in part on the presumed

ongoing flow of revenue from Piscataway, it was inherently arbitrary and should

be vacated. This contention continues to lack merit. Nevertheless, we fully

address it here.

      Appellants in their resolutions calling for a moratorium on all new charter

school seats in Middlesex and Somerset Counties only generally claimed that

the Department had interpreted the CSPA "to require all public school districts

statewide to pay charter schools for students enrolled in those schools regardless

as to whether the charter serves the district's community as part of the charter's

approved district or region of residence." Thus, the Commissioner did not

address this issue in approving CJCP's application to amend its charter.

      The scope of judicial review of a final decision of the Commissioner is

limited. Quest Acad., 216 N.J. at 385. Although the Appellate Division is not

bound by an agency's determination on a question of law, Hargrove v. Sleepy's,

LLC, 220 N.J. 289, 301 (2015), "[c]ourts afford an agency 'great deference' in

reviewing its 'interpretation of statutes within its scope of authority and its


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                                       26
adoption of rules implementing' the laws for which it is responsible." N.J. Ass'n

of Sch. Adm'rs v. Schundler, 211 N.J. 535, 549 (2012) (quoting N.J. Soc'y for

Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385

(2008)).

       "[T]he goal of statutory interpretation is to ascertain and effectuate the

Legislature's intent." Cashin v. Bello, 223 N.J. 328, 335 (2015). "[T]he best

indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J.

477, 492 (2005).        "Accordingly, '[t]he starting point of all statutory

interpretation must be the language used in the enactment.'" Spade v. Select

Comfort Corp., 232 N.J. 504, 515 (2018) (quoting N.J. Div. of Child Prot. &

Permanency v. Y.N., 220 N.J. 165, 178 (2014)). Courts "construe the words of

a statute 'in context with related provisions so as to give sense to the legislation

as a whole.'" Spade, 232 N.J. at 515 (quoting N. Jersey Media Grp., Inc. v. Twp.

of Lyndhurst, 229 N.J. 541, 570 (2017)). If the plain language leads to a clear

and unambiguous result, then the court's "interpretative process is over."

Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016). Courts "turn to

extrinsic tools to discern legislative intent . . . only when the statute is

ambiguous, the plain language leads to a result inconsistent with any legitimate

public policy objective, or it is at odds with a general statutory scheme." Shelton


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                                        27
v. Restaurant.com, Inc., 214 N.J. 419, 429 (2013).

      At issue here, as it was in Highland Park II, N.J.S.A. 18A:36A-12(b)

provides that:

            The school district of residence shall pay directly to the
            charter school for each student enrolled in the charter
            school who resides in the district an amount equal to
            90% of the sum of the budget year equalization aid per
            pupil, the prebudget year general fund tax levy per
            pupil inflated by the CPI rate most recent to the
            calculation, and the employer payroll tax per pupil that
            is transferred to the school district pursuant to
            subsection d. of section 1 of P.L.2018, c.68. In
            addition, the school district of residence shall pay
            directly to the charter school the security categorical
            aid attributable to the student and a percentage of the
            district’s special education categorical aid equal to the
            percentage of the district’s special education students
            enrolled in the charter school and, if applicable, 100%
            of preschool education aid. The district of residence
            shall also pay directly to the charter school any federal
            funds attributable to the student.

            [(Emphasis added).]

      The term "school district of residence" is not defined in the CSPA or the

implementing regulations. The term "district of residence" is defined in the

regulations as "the school district in which a charter school facility is physically

located; if a charter school is approved with a region of residence comprised of

contiguous school districts, that region is the charter school's district of



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residence." N.J.A.C. 6A:11-1.2; N.J.A.C. 6A:23A-15.1.5 A school district does

not, however, reside in a district, it is located in a district. Moreover, the district

of residence where the charter school is located does not receive equalization

aid, security categorical aid, or federal funds "attributable" to a charter student

who is not a resident of that district. See N.J.S.A. 18A:7F-43 to -63 (SFRA).

Thus, it would make no sense to interpret "school district of residence" to mean

the "district of residence." N.J.S.A. 18A:36A-12(b).

      In fact, the State Board of Education promulgated N.J.A.C. 6A:23A-15.2

and -15.3, which as discussed in more detail in our decision in Piscataway,

require both a "district of residence" and a "non-resident district" to fund its

students' attendance at a charter school. However, appellants argue that under

N.J.A.C. 6A:23A-15.2 and -15.3, a "non-resident district" should be interpreted

to mean only those "non-resident districts" that are within a charter school's

region of residence because those districts would be entitled to the same



5
  A "region of residence" is defined as the "contiguous school districts in which
a charter school operates and is the charter school's district of residence."
N.J.A.C. 6A:11-1.2. See In re Charter Sch. Appeal of Greater Brunswick
Charter Sch., 332 N.J. Super. 409, 424 (App. Div. 1999) ("[R]egulations
allowing regional charter schools are a legitimate means of effectuating the Act's
purpose of encouraging the establishment of charter schools."). A non-resident
school district is defined as "a school district outside the district of residence of
the charter school." N.J.A.C. 6A:11-1.2.
                                                                               A-3415-16T1
                                         29
opportunity for input as the district where the charter school is located. N.J.A.C.

6A:11-2.1; N.J.A.C. 6A:11.2.6.          They contend that the Department's

interpretation of the CSPA to require all non-resident districts to fund their

students' attendance at charter schools is inconsistent with that Act because non-

resident districts located outside the approved region of residence are not

entitled to receive notice or input as to the approval or amendment process.

      Significantly, after the parties filed briefs in this case, we rejected this

identical argument in Highland Park I.6 In that case, Highland Park appealed

from the Commissioner's March 19, 2015 final decision approving Hatikvah's

second application to amend its charter to expand its grades. Highland Park I,

(slip op. at 2).

      In Highland Park I, the Appellate Division initially noted that Highland

Park had not raised this issue in March 2014 when Hatikvah sought to renew its

charter, or in November 2014 when Hatikvah sought to expand its enrollment.

Id. at 14. Highland Park had never challenged the regulations requiring resident

and non-resident school districts to fund their students' attendance at a charter



6
  Although the case is unpublished, it involved most of the same parties and the
identical issue raised here, and thus even if not binding under the doctrine of
collateral estoppel, the legal analysis is persuasive and may constitute secondary
authority. R. 1:36-3.
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                                       30
school, and had "paid tuition for its students to attend the school for at least six

years." Id. at 15. Nonetheless, because it involved "an issue of law," the court

decided to exercise its discretion and address the argument even though it was

raised for the first time on appeal. Ibid.

      Turning to the merits, this court found that the plain language of N.J.S.A.

18A:36A-12(b) "expressly provides that the 'school district of residence' must

pay the charter school for 'each student' enrolled in the school." Id. at 16. Thus,

the court held that "as used in N.J.S.A. 18A:36A-12(b), the term 'school district

of residence' refers to the district where the student resides, not the district where

the charter school is located." Ibid. The court found that the CSPA

             expressly envisions that students may enroll in a charter
             school, even though they reside in a district other than
             the district where the charter school is located. See
             N.J.S.A. 18A:36A-8(a) (requiring charter schools to
             give preference for enrollment to students who reside
             "in the school district in which the charter school is
             located"). There is nothing in the Act that would allow
             these students to attend a charter school without a
             financial contribution from the school districts in which
             they reside. Thus, under N.J.S.A. 18A:36A-12(b),
             obligation of a school district to attend a charter school
             is not limited to the charter school's "district of
             residence."

             [Id. at 16-17.]

      Further, we found that the regulations adopted pursuant to the CSPA were


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                                         31
"consistent with this interpretation of N.J.S.A. 18A:36A-12(b). Indeed, the

regulations expressly provide that both a charter school's 'district of residence'

and the 'non-resident school districts' must pay for their students to attend a

charter school. N.J.A.C. 6A:23A-15.3(g)(2), (3)." Id. at 17. See also N.J.A.C.

6A:23A-15.2 (resident and non-resident school districts shall use projected

charter school aid).

      The court in Highland Park I also found support for this interpretation in

the legislative history, explaining that in its fiscal estimate for S. 1796 (1995),

which, combined with A. 592 (1995), became the CSPA, the Office of

Legislative Services, included the following statement:

             In regard to the funding of charter schools, the bill
             provides that the school district of residence would pay
             directly to the charter school for each student enrolled
             who resides in the district an amount equal to the local
             levy budget per pupil in the district for the specific
             grade level. . . . The cost for out of district pupils would
             be paid by the district of residence of the pupil. . . .

             [Id. at 17-18 (quoting Legislative Fiscal Estimate to S.
             1796 1 (Sept. 14, 1995) (emphasis added)).]

That statement "makes clear that all school districts of residence must pay f or

students to attend a charter school, and the financial obligation is not limited to

the charter school's 'district of residence.'" Id. at 18.

      In so ruling, we found unpersuasive Highland Park's citation to other

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                                         32
provisions of the Charter School Act that pertain to a charter school's "district

of residence." Id. at 18. For example, the court found that

            Highland Park cites N.J.S.A. 18A:36A-4(c), which
            requires a proposed charter school to provide a copy of
            its application to the "local board of education."
            However, the statute does not support Highland Park's
            argument. N.J.S.A. 18A:36A-4(c) also requires the
            Commissioner to provide notice to "members of the
            State Legislature, school superintendents, and mayors
            and governing bodies of all legislative districts, school
            districts, or municipalities in which there are students
            who will be eligible for enrollment in the charter
            school."

                Highland Park also cites N.J.S.A. 18A:36A-14(b), a
            statute that limits a charter school's salaries to the
            salaries of the highest step in the district where the
            school is located; and N.J.S.A. 18A:36A-16(b), which
            requires a charter school to serve a copy of its annual
            report on the local board of education in the district
            where the school is located. However, these statutes
            have no direct bearing on whether a student's "school
            district of residence" must pay for students from that
            district to attend at a charter school.

            [Id. at 18-19.]

      Thus, we concluded that

            under N.J.S.A. 18A:36A-12(b), the term "school
            district of residence" means the school district where
            the student resides, and each "school district of
            residence" must pay the charter school for its student to
            attend the school, in the amounts required by the Act
            and the regulations. We therefore reject Highland
            Park's contention that only the charter school's "district

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                                       33
             of residence" is obligated to pay for its students to
             attend the school.

             [Id. at 19.]

      Similarly, as addressed in Piscataway, the Commissioner issued a final

decision in which she interpreted the CSPA and the regulatory provisions,

N.J.A.C. 6A:23A-15.1 to -15.4, to require school districts to "provide funding

for its students enrolled in charter schools located in other school districts." Bd.

of Educ. of Twp. of Piscataway v. NJ Dep't of Educ., EDU 10995-16, final

decision, (July 27, 2017) (the Piscataway Board of Education was obligated to

pay for its resident students to attend a number of out-of-district charter

schools).

      Appellants argue that under that interpretation, non-resident school

districts will be deprived of due process because non-resident districts are not

entitled to receive formal notice of a charter school's application to amend its

charter, or input into the amendment process. See N.J.A.C. 6A:11-2.6(a)(b).

They argue that "the net effect of these regulations as applied by the Department

is to render every New Jersey district the 'district of residence' of every charter

school in the state."

      However, because preference for enrollment in a charter school is given

to students who reside in the school district in which the charter school is

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                                        34
located, N.J.S.A. 18A:36A-8(a), it is likely that the majority of students will

reside in that district, and thus it makes sense that the district of residence should

receive formal notice and an opportunity for input. Moreover, it was undisputed

that appellants in this case, and in the back-to-back companion appeals, were

aware of the amendment and had an opportunity to submit comments on the

amendment request.       In fact, the Commissioner received, and considered,

comments from several school districts, individuals, an educational service

commission, and even several legislators. Thus, the notice provisions simply do

not relieve non-resident districts from bearing financial responsibility for its

students' attendance at charter schools.

      As noted in our decisions today in Highland Park II and Piscataway, we

are persuaded by the reasoning expressed in Highland Park I, and by the

Commissioner in her final decision in Piscataway. The plain language of the

statute requires each student's district of residence to pay for the student to

attend a charter school. N.J.S.A. 18A:36A-12(b). That interpretation is entirely

consistent with the CSPA and the policy expressed by the Legislature. Charter

schools are open to all students, both resident and non-resident students, and

there is no indication in the CSPA that the Legislature intended to exclude non-

resident districts from funding their students' attendance at a charter scho ol. It


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                                         35
is also consistent with the legislative history and the implementing regulations,

which require a non-resident district to fund its students' attendance at a charter

school. N.J.A.C. 6A:23A-15.2 and -15.3. Thus, Piscataway is obligated to

provide funding for its students enrolled in CJCP.

                                       VI.

      In sum, we affirm the Commissioner's decision approving CJCP's

application to amend its charter, and compelling Piscataway to fund its students'

attendance at that school.     The decision was not arbitrary, capricious, or

unreasonable, promoted the legislative policy of the CSPA, and was fully

supported by the record.

      Affirmed.




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                                       36
