                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2452-14T1

ROSALIE BACON, individually and on
behalf of G.P., Z.P., J.B., M.B.,
D.B., and Z.H.; JOSEPH BARUFFI,
individually and on behalf of J.B.;
ELIZABETH CULLEN, individually and
                                          APPROVED FOR PUBLICATION
on behalf of T.C.; EDIE RILEY,
individually and on behalf of S.R.;          November 6, 2015
ARNETTA RIDGEWAY and CHRISTOPHER
GLASS, individually and on behalf of        APPELLATE DIVISION
J.G., F.G., and D.G.; COMMERCIAL,
HAMMONTON, LITTLE EGG HARBOR, MAURICE
RIVER, OCEAN, QUINTON, UPPER DEERFIELD,
WALLINGTON, BUENA REGIONAL, CLAYTON,
EGG HARBOR CITY, LAKEHURST, LAKEWOOD,
LAWRENCE and WOODBINE SCHOOL DISTRICTS,

         Plaintiffs-Appellants,
v.

NEW JERSEY STATE DEPARTMENT
OF EDUCATION,

          Defendant-Respondent.
____________________________________

         Argued September 30, 2015 – Decided November 6, 2015

         Before Judges Alvarez, Haas and Manahan.

         On appeal from Superior Court of New Jersey,
         Law Division, Mercer County, Docket No. L-
         1989-14.

         David G.      Sciarra argued the cause for
         appellants   (Education Law Center and Jacob &
         Chiarello,    LLC, attorneys; Mr. Sciarra and
         Theresa S.   Luhm, on the briefs).
           Donna Arons, Deputy Attorney General, argued
           the cause for respondent (John J. Hoffman,
           Acting Attorney General, attorney; Michelle L.
           Miller,   Assistant   Attorney   General,   of
           counsel; Ms. Arons, on the brief).

    The opinion of the court was delivered by

HAAS, J.A.D.

    Plaintiffs,     a   group     of   fifteen   school    districts,    and

parents and children from those districts, appeal from the Law

Division's December 15, 2014 order dismissing their complaint.

Plaintiffs brought the complaint as a summary action "to enforce

agency orders" under Rule 4:67-6(a)(2).            Plaintiffs sought to

compel defendant New Jersey State Department of Education (the

Department) to provide "the funding and high quality preschool

provided by the School Funding Reform Act of 2008 [SFRA], along

with facilities improvements and other measures . . . ."

    The trial judge ruled that plaintiffs could not pursue the

summary   action   under   Rule   4:67-6(a)(2)   because    the   district-

specific needs assessments which they sought to enforce did not

require the Department to fully fund the districts under the

SFRA or otherwise provide for specific relief and, therefore,

there were no orders capable of being enforced under the rule.

Having carefully reviewed the record and arguments on appeal, we

affirm.




                                       2                           A-2452-14T1
                                                   I.

    In December 1997, twenty school districts, known as the

"Bacon districts,"1 filed a complaint in the Chancery Division

against the Department, the Commissioner of the Department (the

Commissioner), and several State officials.                             Bacon v. N.J. State

Dep't    of     Educ.,      398    N.J.      Super.       600,    606     (App.     Div.     2008),

certif. denied, 210 N.J. 218 (2012).                            The districts were "rural

and property-poor" and sought a declaratory judgment that the

Comprehensive Educational Improvement and Financing Act of 1996,

N.J.S.A. 18A:7F-1 to -42 (CEIFA), failed to provide a thorough

and efficient education to their students, in violation of the

New Jersey Constitution.                Ibid.

    In        their    complaint,            the        Bacon    districts         sought     State

"funding      equivalent          to   that    provided          to    the    State's       richest

school    districts."             Ibid.        Essentially,            the    Bacon    districts

wanted     to    be      funded        in    the        same     manner       as    their     urban

counterparts,         the    Abbott         districts.           Id.    at    606-07.         Under

CEIFA,     all     districts           with        concentrations             of    impoverished

students received State aid to address the unique educational

difficulties       that      face       such       students.            Id.    at    605.        All

districts classified as Abbott districts received an additional


1
  The number of districts                      involved         in     this    litigation        has
continuously varied.



                                                   3                                       A-2452-14T1
type of aid, known as parity aid, which was "intended to support

the per pupil expenditure level of the Abbott [d]istricts at the

level    of"    New     Jersey's      wealthiest    districts.         Ibid.    (citing

Abbott v. Burke, 153 N.J. 480, 567 (1998) (Abbott V)).

      In February 1998, the parties entered into a consent order

and     jurisdiction          was    transferred    to     the     Commissioner,      who

transmitted the matters to the Office of Administrative Law.2

Id.     at     607.       A     bifurcated       hearing     was    held     before    an

Administrative Law Judge (ALJ).                   Ibid.     At the first phase of

the hearings, the ALJ determined that the districts had been

using their "CEIFA funding appropriately."                    Id. at 608.

      During      the    second      phase   of    the    hearings,    the    districts

needed to show "that educational deficiencies existed and the

deficiencies          could    not    be   remedied,       under    current    law    and

funding levels, by different programmatic and fiscal choices."

Ibid.        The ALJ determined that five districts needed additional

funding; however, the Commissioner subsequently found that only

one district needed additional funding and that CEIFA funding

was sufficient with respect to the other districts.                        Ibid.




2
  After the Commissioner and the Department filed motions to
dismiss the petition for lack of standing, "the petition was
amended to add several students attending some of the school
districts and their parents." Id. at 607.



                                             4                                 A-2452-14T1
      Eight       districts    ultimately           appealed    the   Commissioner's

decision to the State Board of Education (the Board).                           Id. at

608-09.      The Board issued its final decision on January 4, 2006.

Id.   at    609.      Overall,      the   Board      found     that   Bacon   district

students     were    "not     being    afforded       a   thorough     and    efficient

education."        Ibid.     Additionally, the Board determined that "the

children in [the Bacon districts] had 'special needs arising

from the socioeconomic conditions in the districts[,]'" which

were not being addressed by the available programming.                            Ibid.

The Board "recognize[d] that CEIFA has provided these districts

with more fiscal resources than ha[d] been available to them

previously" and that "progress ha[d] been made under CEIFA to

improve the quality of the education" in the Bacon districts.

In spite of those gains, the Board still concluded that the

students      were    being    deprived        of     a   thorough    and     efficient

education.        The Board also determined that CEIFA had created a

fragmented funding system that failed students statewide, not

just in the Abbott and Bacon districts.

      After determining that there were constitutional violations

in the Bacon districts, the Board examined the remedies that

would      best    address    the     specific       needs     of   those    districts.

Significantly, the Board rejected the idea

              that merely providing the [Bacon] districts
              with the same fiscal resources that are



                                           5                                   A-2452-14T1
            provided to the Abbott [d]istricts will
            ensure that the students of these districts
            are   in   fact  afforded  the   educational
            opportunity to which they are entitled.
            While poor, the districts involved here are
            not identical to the districts that have
            been classified as Abbott [d]istricts.   The
            very fact that they are not urban means that
            they face a unique set of circumstances that
            are different from those confronting the
            poor urban districts.

As an alternative to providing the Bacon districts with the same

funding as Abbott districts, the Board directed the Commissioner

to supervise the Department in "develop[ing] a design for a

needs assessment to be performed in" the Bacon districts that

would     focus   on    the   unique   problems    that   confronted    the

individual districts.

    In      response,     the   Commissioner      "recommended   awaiting

executive and legislative action on a new funding formula" then

being considered by the Governor and the Legislature.               Bacon,

supra, 398 N.J. Super. at 613.             The new funding formula was

enacted in 2008 as the SFRA, N.J.S.A. 18A:7F-43 to -63.                Ibid.

Whereas CEIFA created a fragmented funding system, SFRA removed

references to Abbott districts, id. at 613, n.10, and applied

one uniform funding formula to all 618 school districts in New

Jersey.    Id. at 615.    Under SFRA:

            [T]he Department [would] calculate how much
            it costs to meet the constitutional mandate
            of affording every student in this [s]tate a
            thorough and efficient education. The State



                                       6                          A-2452-14T1
            then [would] base[] its share of the
            requirement by the wealth of a district;
            poorer   districts [would]   get  a  higher
            percentage of their educational budget from
            the State.

            [Ibid.]

      Before SFRA was enacted, the Bacon districts appealed the

Board's 2006 decision to this court.                 Id. at 612.           Plaintiffs

requested that the court "grant them status comparable to Abbott

districts      and    award[ing]   them       the   same    financial       resources

provided to their urban counterparts . . . ."                   Id. at 615.             We

declined to provide such relief.                Instead, we deferred to the

Board's approach of individualized needs assessments, referring

to interim judicial funding as "a last resort."                     Id. at 616-17.

We   felt   it    particularly     appropriate       to     avoid   a     judicially-

compelled funding remedy given the recent enactment of SFRA.

Id. at 617.          As a result, we "direct[ed] the Commissioner to

comply with the Board's final decision and proceed forthwith to

design   and     perform   a   needs   assessment      of    each    of    the     Bacon

districts . . . and . . . to further determine whether . . .

[SFRA's]    remedial       measures    afford       students        in    the      Bacon

districts" a thorough and efficient education.                 Id. at 618.

      In compliance with our directive, the Department designed

and implemented a comprehensive, multi-phased needs assessment

in 2008.    The needs assessments culminated in a report issued by




                                          7                                     A-2452-14T1
the Commissioner on September 14, 2009.         The report consisted of

sixteen     individualized   assessments   of     each     of    the      Bacon

districts that summarized the results of site visits, evaluated

the adequacy of the facilities, evaluated the effect of SFRA on

the     district's   funding,    and   provided          conclusions         and

recommendations for each district.

      As directed by the Board, the needs assessments focused on

the unique issues that affected each individual district at that

time.     With respect to SFRA, the assessments detailed the amount

of aid that each district actually received for                 fiscal year

(FY)08-09, the anticipated level of funding for FY09-10, and how

the districts intended to use the funding.          Notably, the needs

assessment lacked a global statement about all of the Bacon

districts or whether fully funding SFRA would provide the Bacon

district students with a thorough and efficient education.

      Pursuant to Rule 2:4-1(b) and Bacon, supra, 398 N.J. Super.

at 619, plaintiffs could have appealed the needs assessments.

However, no appeal was filed.

      The State reduced SFRA funding for the 2011 fiscal year.

Abbott v. Burke, 206 N.J. 332, 344-46 (2011) (Abbott XXI).                     On

September 2, 2011, the districts that had appealed the Board's

decision to this court filed a motion to enforce litigants'

rights pursuant to Rule 1:10-3, seeking an order directing that




                                   8                                   A-2452-14T1
the   Bacon    districts    receive   full   funding   under   SFRA.      In    a

January 12, 2012 order, we denied the motion because "[t]he

specific relief requested on this motion to enforce litigant's

rights . . . [was] neither encompassed nor contemplated in our

[previous] decision . . . ."          We further stated:

              To the extent movants' instant application
              seeks redress from the September 14, 2009
              final   administrative    decisions    of  the
              Commissioner . . . as inconsistent with, or
              violative of, the Bacon holding, their
              recourse was a direct appeal therefrom
              . . . .     To the extent movants seek[] to
              enforce, or compel compliance with, any
              aspect    of   the    September     14,   2009
              administrative agency determinations, their
              recourse is by way of summary proceeding
              pursuant to Rule 4:67-6.[3]

      Plaintiffs     took    no   further    action    until   approximately

September 8, 2014 when fifteen of the original twenty Bacon

districts filed a verified complaint and order to show cause

under Rule 4:67-6 in the Law Division.                Plaintiffs framed the

complaint as:

              an action to enforce final determinations by
              [the Department] . . . that the funding and
              high quality preschool provided by [SFRA],
              along with facilities improvements and other
              measures, will afford students in [Bacon]
              districts a thorough and efficient education
              .   .   .  remediating   the  constitutional
              violation found by [the Board] and upheld by

3
  On May 7, 2012, the Supreme Court denied plaintiffs' petition
for certification from this order. Bacon v. N.J. State Dep't of
Educ., 210 N.J. 218 (2012).



                                       9                               A-2452-14T1
                 the Superior          Court,          Appellate        Division
                 . . . .

       The   relief         sought    by   plaintiffs          was    broad.        Plaintiffs

requested an order directing the Department to (1) calculate the

aid that would be provided to the Bacon districts under SFRA for

the     2014-15       school        year   and        subsequent      years,     send      those

calculations           to     the     Legislature,            "and     seek     supplemental

appropriations as may be necessary to ensure the provision of

necessary funding"; (2) calculate the preschool aid that the

Bacon    districts          would    receive       under      SFRA    to    allow    them   "to

implement high quality preschool for all three- and four-year

olds    .    .    .    no    later     than      the     2019-20       school    year";      (3)

"[d]evelop and implement district-specific plans for facilities

improvements and financing as may be necessary and consistent

with the Educational Facilities Construction and Financing Act

(EFCFA), N.J.S.A. 18A:7G-1 et seq., commencing in the 2015-16

school      year";      (4)    "[u]ndertake            such    other       district-specific

remedial measures as identified in the 2009 assessments or as

otherwise necessary to ensure the effective and efficient use of

funds in the districts' budgets;" (5) "[a]ward attorneys' fees

to [plaintiffs] pursuant to N.J.S.A. 10:6-2[(f)]"; and (6) grant

plaintiffs         "[s]uch      other      relief        as    the     [c]ourt      may     deem

appropriate           and     necessary       to       ensure        remediation      of    the

constitutional violation found in this litigation."



                                                 10                                   A-2452-14T1
       On   November     7,    2014,    the    Department    filed    a    motion      to

dismiss the complaint for failure to state a claim.                            The trial

judge granted the Department's motion on December 15, 2014.

       In   her   oral        decision,    the    judge     focused       on     whether

plaintiffs could use a Rule 4:67-6 summary proceeding to obtain

their requested relief.              She characterized plaintiffs' requested

relief as "sweeping," and expressed concern about the limited

record in this case compared to the records before the Supreme

Court in the Abbott cases, specifically Abbott XXI.

       With respect to the procedural issue, the judge noted that

Rule 4:67-6 is a "very narrow rule" that was "never intended to

supplant other jurisdictional exercises by [S]tate agencies."

Specifically, the judge highlighted that "there was never any

finding as to what level of funding under SFRA was essential to

provide     a   [thorough      and    efficient   education]     in   [the        Bacon]

districts" in the 2009 needs assessments.                     The judge further

noted that the needs assessments lacked "directory language," an

"omnibus order," or a global conclusion "that full funding of

SFRA is necessary for a thorough and efficient education in each

one of the Bacon districts."              As a result, the judge determined

that    a   summary      proceeding       under    Rule     4:67-6    was       not    an

appropriate vehicle to obtain plaintiffs' requested relief and




                                          11                                    A-2452-14T1
granted     the    Department's           motion       to    dismiss.          This     appeal

followed.

                                            II.

       We employ a plenary standard of review over a trial court's

decision to grant a Rule 4:6-2(e) motion to dismiss for failure

to state a claim upon which relief can be granted.                             Rezem Family

Associates, L.P. v. Borough of Millstone, 423 N.J. Super. 103,

114    (App.    Div.),     certif.      denied,        208   N.J.       366   (2011).        The

narrow    issue     presented        in    this       case    is     whether      plaintiffs

properly brought this action under Rule 4:67-6(a)(2).                                  For the

following reasons, we conclude they did not and that therefore

the trial judge properly dismissed plaintiffs' complaint.

       Under Rule 4:67-6, an administrative agency or a non-agency

party can institute a summary proceeding in Superior Court to

enforce    an     agency    order.         If    the    plaintiff        is   a   non-agency

party, then the rule applies to "all such enforcement actions

brought by a party to the administrative proceeding in whose

favor a written order or determination was entered affording

that party specific relief."                R. 4:67-6(a)(2). (emphasis added).

Rule    4:67-6     exists      "to   provide         judicial      remedies       in   aid    of

agency    orders       where   necessary."             In    re    A-1   Jersey    Moving       &

Storage,       Inc.,     309     N.J.     Super.       33,    40    (App.      Div.     1998).

Additionally,          parties    cannot        challenge         the    validity       of    an




                                                12                                     A-2452-14T1
administrative order collaterally in a Rule 4:67-6 proceeding.

State Dep't of Envtl. Prot. v. Mazza & Sons, Inc., 406 N.J.

Super. 13, 23 (App. Div. 2009).

      We have observed that Rule 4:67-6 enforcement actions are

analogous      to   "a    motion       for   enforcement         of     litigant's        rights

under Rule 1:10-3 in a judicial proceeding."                            Mazza, supra, 406

N.J. Super. at 29 (citing State Farm Mut. Auto. Ins. Co. v.

State    of    N.J.,     Dep't     of    Pub.       Advocate,      118       N.J.    336,      344

(1990)).       "The scope of relief in a motion in aid of litigants'

rights is limited to remediation of the violation of a court

order."       Abbott XXI, supra, 206 N.J. at 371.                     Because Rule 4:67-

6 is the administrative counterpart to Rule 1:10-3, the scope of

relief that can be afforded to a party instituting a summary

enforcement action is similarly limited.

      To be successful in pursuing a summary action under Rule

6:67-6,    a    litigant        must    show   that    there       is    a    "specific        and

unequivocal" order in place.                 Abbott v. Burke, 170 N.J. 537, 565

(2002)    (Abbott        VII)    (LaVecchia,         J.,    concurring         in    part      and

dissenting in part).             The order must afford the enforcing party

"specific relief."              R. 4:67-6(a)(2).                The litigant must also

show that the State agency "has failed to comply with the order

and     that    the      court's       assistance          is    necessary          to    secure

compliance."        Mazza, supra, 406 N.J. Super. at 29.




                                               13                                        A-2452-14T1
    Applying        these   principles,      we   conclude    that     plaintiffs'

complaint failed to state a claim upon which relief could be

granted in a summary proceeding under Rule 4:67-6(a)(2).                           No

"written order or determination" was entered in their favor that

afforded     them    the    "specific    relief"       they   sought    in    their

complaint.

    In     their    complaint,    plaintiffs       described    the     individual

September 14, 2009 needs assessments as "final determinations"

by the Department

            that the funding and high quality preschool
            provided by [SFRA], along with facilities
            improvements and other measures, will afford
            students in [the Bacon] districts a thorough
            and efficient education . . . thereby
            remediating   the  constitutional   violation
            found by [the Board] and upheld by the
            Superior Court, Appellate Division . . . .

However, the structure of the needs assessments themselves belie

plaintiffs' arguments.         The needs assessments consist of sixteen

distinct   reports     that    focus    on   sixteen    individual      districts.

There is no overall report that draws conclusions about the

state of the Bacon districts as a group.                  To the contrary, as

the Board directed, the needs assessments attempt to identify

the unique issues that each district faced back in 2009.

    The     following       examples    illustrate      the   point.         In   the

Lawrence     School    District    Needs      Assessment,      the      Department

focused on the issues presented by that district's small size



                                        14                                A-2452-14T1
and recommended that the district pursue regionalization.                                     On

the other hand, the Lakewood School District Needs Assessment

addressed     the     effect   that    the        district's          policy    of    courtesy

busing      non-public    school      students             had   on    its     finances      and

recommended     that     the   policy       be     reconsidered.              In   the      Buena

Regional      Needs    Assessment,      the           Department        stated       that     the

district "must address the high personnel costs and loss of

productivity that results from teachers spending so little time

on instructional activities . . . ."                        The needs assessments for

the     remaining      districts      set        forth       other      district-specific

recommendations.

       In spite of the fact that the sixteen needs assessments

sought      individualized      solutions             to     each      district's        unique

issues, plaintiffs requested sweeping, identical relief for all

of    the   Bacon     districts.        It       is    undisputed        that      the      needs

assessments evaluated the effect of SFRA.                             However, plaintiffs

mischaracterize the import of those recommendations.                               In some of

the   assessments,       the   Department          identified          that    SFRA    funding

would have a positive effect on the district.                            For example, in

the Lawrence School District Assessment, the Department noted

that:

              although    the    SFRA    and   complementary
              legislation . . . provide the tools that
              will   permit   [the   district]  to   improve
              educational opportunities for its students



                                             15                                       A-2452-14T1
              and   address   its identified  needs,  the
              extremely small size of the school district
              poses significant challenges . . . .
              Regionalization . . . will be critical to
              addressing    those  challenges   in   this
              district.

      On appeal, plaintiffs attempt to extrapolate this statement

to apply to all the Bacon districts.                         However, the Department

did   not     reach       similar      conclusions          for    all   of    the     Bacon

districts.      Thus, there was no "specific order" that could be

enforced for all of the Bacon districts.

      In      the     needs       assessments,          the        Department's        final

conclusions         can    be     roughly          grouped        into   three       general

categories:         (1)    SFRA     funding          will     continue        to     improve

educational     opportunities;          (2)    SFRA    funding       will     continue     to

improve     educational         opportunities        but     regionalization         may   be

necessary; or (3) the district needs to better utilize available

funds.      The recommendations of the needs assessments follow the

Board's     original       conclusion         that    the     Bacon      districts        have

different needs and will ultimately require different solutions

than the Abbott districts.

      Significantly, none of the needs assessments concluded that

fully funding the SFRA is necessary to ensure that students in

the Bacon districts receive a thorough and efficient education.

The   needs    assessments        do    not    require       the    Department       or    the

Legislature to fully fund the districts under SFRA, or institute



                                              16                                   A-2452-14T1
specific     pre-school       programs      or      building         projects          in     the

districts.

      Plaintiffs argue that the needs assessments are enforceable

because in Bacon, supra, 398 N.J. Super. at 618, we instructed

the Department "to further determine whether, in light of the

proven   educational        deficits    already        found        by    the    Board,       the

[SFRA's]     remedial        measures     afford        students           in    the        Bacon

districts the thorough and efficient education to which they are

constitutionally entitled."              According to plaintiffs, because

the   Department      was     instructed       on   remand          to     use   the        needs

assessments    to     determine      whether        SFRA          would    remediate          the

constitutional violation, the conclusions and recommendations in

the needs assessments are enforceable as an agency order.

      However, as noted above, the needs assessments lack clear

findings     about    the      remedial     effect           of     the     SFRA       on     the

constitutional violations that the Board originally identified.

If the Department failed to comply with our directive in Bacon,

supra, that the Commissioner determine whether SFRA provided the

Bacon    districts      with     a   thorough          and    efficient          education,

plaintiffs'    appropriate       recourse        was    an        appeal    of    the       needs

assessments.         While     plaintiffs      assert        that        "[i]n   plain        and

unequivocal language, [the Department] determined that the SFRA

provides adequate funding . . . to ensure the Bacon students




                                          17                                           A-2452-14T1
[receive] a thorough and efficient education," that language is

not found in the needs assessments.              The plain language of the

needs assessments cannot be construed as an administrative order

in plaintiffs' favor entitling them to full SFRA funding or any

of the broad relief sought in their complaint.

      Furthermore, the needs assessments contain no directives.

As   noted   by   the   trial   judge,    the   needs   assessments     lack    an

"omnibus order."        In a Rule 4:67-6 proceeding, the trial court's

powers are strictly limited to enforcement of an order.                        See

Mazza, supra 406 N.J. Super. at 23 (trial court cannot rule on

the validity of an agency order in a Rule 4:67-6 proceeding).

Without any directives or an omnibus order, there was nothing

for the trial court to enforce and plaintiffs' complaint was

therefore properly dismissed.

      Plaintiffs    make    two   additional     arguments.      First,     they

assert   their    complaint     was   properly   filed   under   Rule    4:67-6

because, in our January 12, 2012 order, we "instuct[ed]" them to

proceed in this fashion.          We disagree.     Contrary to plaintiffs'

assertion, the January 12, 2012 order was not an "instruction"

by this court to file a summary action under Rule 4:67-6, nor a

guarantee that any such action, if pursued, would be successful.

Instead, we simply made clear that plaintiffs' motion for an

order in aid of litigants' rights lacked merit.




                                         18                             A-2452-14T1
    Plaintiffs also argue for the first time in their reply

brief that we should exercise our original jurisdiction in this

matter pursuant to Rule 2:10-5; declare that the Department has

violated New Jersey's Constitution by failing to ensure that

plaintiffs all receive full SFRA funding; and implement specific

remedies concerning future funding.           We again disagree.

    We generally decline to consider arguments raised for the

first time in a reply brief.          L.J. Zucca, Inc. v. Allen Bros.

Wholesale Distribs. Inc., 434 N.J. Super. 60, 87 (App. Div.

2014) (citing Borough of Berlin v. Remington & Vernick Eng'gs,

337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J.

294 (2001)), certif. denied, 218 N.J. 273 (2014).             By failing to

raise   their     original   jurisdiction     argument   in   their   initial

brief, plaintiffs have waived this contention.

    Moreover, we exercise our original factfinding authority

under Rule 2:10-5 only "with great frugality and in none but a

case free of doubt."         Tomaino v. Burman, 364 N.J. Super. 224,

234-35 (App. Div. 2003) (quoting In re Boardwalk Regency Corp.

Casino License Application, 180 N.J. Super. 324, 334 (App. Div.

1981), modified on other grounds, 90 N.J. 361 (1982)), (internal

quotation marks omitted), certif. denied, 179 N.J. 310 (2004).

This is not such a case.           The record is wholly inadequate to

allow   us   to   exercise   our   original    fact-finding    authority     to




                                     19                               A-2452-14T1
review   plaintiffs'   claim   that    they   are   entitled   to   specific

levels of funding under SFRA.

    Affirmed.




                                      20                            A-2452-14T1
