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                   APPROVAL OF THE APPELLATE DIVISION
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     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-5393-13T3



IN RE PETITION FOR EQUITABLE
MODIFICATION OF THE COST
APPORTIONMENTS FOR THE RIVER
DELL REGIONAL SCHOOL DISTRICT,
BERGEN COUNTY.
______________________________

           Argued April 5, 2017 – Decided June 21, 2018

           Before Judges Fuentes, Simonelli and Gooden
           Brown.

           On appeal from the New Jersey Commissioner of
           Education, Docket No. 12-1/12.

           Vito A. Gagliardi, Jr. and Kerri A. Wright
           argued the cause for appellant Borough of
           Oradell (Porzio, Bromberg & Newman, PC,
           attorneys; Vito A. Gagliardi, Jr., of counsel
           and on the brief; Kerri A. Wright and Phillip
           C. Bauknight, on the briefs).

           Francis J. Campbell argued the cause for
           respondent Borough of River Edge (Campbell &
           Pruchnik, LLC, attorneys; Francis J. Campbell,
           of counsel and on the brief; Roslynne G.
           Novack, on the brief).

           Geoffrey N. Stark, Deputy Attorney General,
           argued the cause for respondent New Jersey
           Commissioner of Education (Christopher S.
           Porrino, Attorney General, attorney; Melissa
            Dutton Schaffer, Assistant Attorney General,
            of counsel; Geoffrey N. Stark, on the brief).

     The opinion of the court was delivered by

FUENTES, P.J.A.D.

     In In re Petition for Authorization to Conduct a Referendum

on the Withdrawal of the Borough of Oradell from the River Dell

Reg'l Sch. Dist., 406 N.J. Super. 198 (App. Div. 2009), this court

upheld the Board of Review's decision to deny the Borough of

Oradell's    (Oradell)    petition   for     authorization     to   conduct    a

referendum to withdraw from the River Dell Regional School District

(River Dell).     We held:

            The Board's determination was primarily
            informed by its finding that dissolution of
            the District would produce an excessive debt
            burden for the constituent school districts.
            Petitioner    appeals,    and     we    affirm
            substantially for the reasons expressed by the
            Board. In doing so, we conclude that a school
            district's excessive debt burden may be
            determined by factors in addition to a
            district's borrowing margin.

            [Id. at 201 (emphasis added).]

     In April 2011, two years after this court affirmed the Board's

decision and the Commissioner of Education Lucille Davy denied

Oradell's reapportionment request, Oradell held a referendum on

the tax contribution formula.            The referendum failed because,

although    Oradell's    voters   approved    the   measure,   River    Edge's

voters rejected it.

                                     2                                 A-5393-13T3
     Relying on the Supreme Court's decision in Petition for

Authorization to Conduct a Referendum on Withdrawal of N. Haledon

Sch. Dist. from the Passaic Cty. Manchester Reg'l High Sch. Dist.,

181 N.J. 161 (2004), five months after the voters rejected the

referendum,   Oradell   filed   a   petition   seeking   to    have    the

Commissioner of Education reapportion the costs for supporting

River Dell.   On January 24, 2012, Acting Commissioner Christopher

Cerf transmitted Oradell's request to the Office of Administrative

Law as an uncontested case in accordance with N.J.A.C. 1:1-21.1,

asking an Administrative Law Judge (ALJ) to

          make   recommendations    concerning   whether
          Oradell has established that its situation is
          substantially similar to North Haledon's in
          [North Haledon] so as to entitle it to the
          extraordinary relief directed by the Supreme
          Court in that case, and if so, to recommend
          what would be an equitable funding formula for
          the River Dell Regional District.

     The "extraordinary relief" the Court granted North Haledon

was to remand the matter to the Commissioner "to develop, in

consultation with the constituent municipalities, an equitable

cost apportionment scheme for the Regional District."         N. Haledon,

181 N.J. at 186.   The Court did not declare that the Commissioner

had the legal authority to unilaterally reapportion the funding

schemes between participating municipalities.




                                    3                             A-5393-13T3
     Two years later, the ALJ issued a Report and Recommendation

to the Commissioner, recommending that the Commissioner modify

River Dell's tax contribution formula and suggesting that the

formula use the following ratio: one-fifth based on property

valuation and the rest based on the per-pupil cost.           On June 2,

2014, then-Commissioner David C. Hespe rejected the ALJ's report,

finding his office did not have the legal authority to grant

Oradell the extraordinary relief it sought.           The Commissioner

advised Oradell to "follow the prescribed legal procedure for

gaining   relief    from   statutory    mandates,   i.e.[,]    urge   the

Legislature to amend the law."         The Commissioner provided five

reasons for his decision.

     First, the present case is factually distinguishable from

North Haledon.     Before our Supreme Court decided North Haledon and

ordered the Manchester Regional School District to devise a new

tax contribution formula, North Haledon's per-pupil cost had risen

to $18,400, while Haledon and Prospect Park's costs had dropped

to $5400 and $3400, respectively.        N. Haledon, 181 N.J. at 168.

The "$5000-$6000 disparity between the per-pupil costs of Oradell

and River Edge is far less severe than . . . the differences of

$15,000 and $13,000[,] which existed between North Haledon and the

other constituents of Manchester Regional."



                                   4                             A-5393-13T3
       Second,   Oradell   differs     procedurally    from   North    Haledon

because    North   Haledon      met   the    threshold     requirements      for

withdrawing from its regional district when the voters authorized

its withdrawal via a referendum organized under N.J.S.A. 18A:13-

58.    N. Haledon, 181 N.J. at 172.          By contrast, the voters here

rejected Oradell's proposal.

       Third, Oradell's present petition involves "an exercise of

simple    ministerial   prudence      and   common   sense"   rather    than    a

constitutional problem worthy of extraordinary action.                 Although

all issues related to education contain a constitutional element,

"the   Commissioner     [did]   not   find   that    the   dispute    over   the

advisability of the proposed breakup of River Dell, in and of

itself, pose[d] a direct constitutional question" under North

Haledon.

       Even if Oradell's petition involved constitutional issues,

Oradell would be responsible for inspiring such concerns because

our State's Constitution and related statutory scheme bar Oradell

from splitting a high-performing school district into two smaller

districts, neither of which could survive on its own, just to save

itself some money.      Unlike the situation in North Haledon, nothing

suggests that Oradell's withdrawal implicates a "constitutional

issue [that] arose by way of a demographic circumstance beyond the

control of [the departing municipality], which . . . would have

                                       5                                A-5393-13T3
created racial imbalance in . . . [River Dell]." (Emphasis added).

See also N. Haledon, 181 N.J. at 184.

     Fourth, the ALJ's report in support of Oradell's position

suffered from significant legal and factual defects.                   The report

failed to consider the jurisprudence developed by our Supreme

Court that described property valuation, rather than per-capita

counts,   as    the   most   equitable       way   of   funding   schools.      See

Robinson v. Cahill, 62 N.J. 473 (1973).                 The Report also failed

to closely analyze the parties' property values and median incomes

before recommending a contribution plan based upon a 1:5 property-

to-pupil ratio.

     Finally,     Oradell     acted   unreasonably         when   it   relied    on

unofficial advice contained in a letter to the Commissioner from

his counsel, i.e., the Office of the Attorney General, Department

of Law and Public Safety, Law Division.                   This letter did not

legally bind the Commissioner nor did it hold any precedential

value.    See     Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch.

Dist., Mercer Cty. v. Bd. of Educ. of Twp. of Delran, Burlington

Cty., 361 N.J. Super. 488, 493-94 (App. Div. 2003).

     Oradell now appeals from the Commissioner's decision arguing

it was arbitrary, capricious and inconsistent with the Supreme

Court's decision in North Haledon.                 Our standard of review of a

final agency decision is well-settled:

                                         6                                A-5393-13T3
            [A]n appellate court will not upset an
            agency's ultimate determination unless the
            agency's decision is shown to have been
            arbitrary, capricious, or unreasonable, or []
            not supported by substantial credible evidence
            in the record as a whole. That standard is
            applicable   on   appellate   review   of   an
            administrative agency's actions regardless of
            whether   that   action  followed   a   quasi-
            adjudicative hearing or . . . an assessment
            of the relevant submissions and standards by
            an administrative head.

            [Barrick v. State, 218 N.J. 247, 259 (2014)
            (alteration    in    original)   (citations
            omitted).]

     We discern no legal basis to disturb the Commissioner's

decision.     The Commissioner's decision not to reapportion the

funding formula of this regional district was consistent with the

Court's reasoning in North Haledon.      Oradell did not demonstrate

that it was compelled to remain a member of the River Dell School

District because of a constitutional defect.       Oradell does not

suffer from an inequitable tax burden.    This case is substantially

different from the salient facts in North Haledon.

     Affirmed.




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