BOARD OF EDUCATION OF THE BOROUGH OF LINCOLN PARK v. BOARD OF EDUCATION OF THE TOWN OF BOONTON
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5089-08T1
BOARD OF EDUCATION OF THE
BOROUGH OF LINCOLN PARK,
Plaintiff-Appellant,
v.
BOARD OF EDUCATION OF THE
TOWN OF BOONTON,
Defendant-Respondent.
___________________________________
Argued May 5, 2010 - Decided May 19, 2010
Before Judges Stern and Harris.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No. L-
1976-08.
Nathanya G. Simon argued the cause for
appellant (Schwartz Simon Edelstein Celso &
Ms. Simon, of
Zitomer LLC, attorneys;
counsel; John E. Croot, Jr., and Ariel S.
Peikes, on the briefs).
Dennis A. Collins argued the cause for
respondent (Collins, Vella & Casello, LLC,
attorneys; Mr. Collins, of counsel; Mr.
Collins and Matthew K. Kalwinsky, on the
brief).
PER CURIAM
Plaintiff Board of Education of Lincoln Park appeals from
an order granting summary judgment to defendant Board of
Education of Boonton, and denying plaintiff's motion. The case
involves a plaintiff-sending school district's claim that it was
not obligated for a share of the indebtedness on new high school
construction by Boonton to which plaintiff sends its high school
students.
The plaintiff argues the parties' agreement "precludes
Boonton from including any portion of the capital expenditures
for the high school renovations in Lincoln Park's tuition;" that
"the trial court erred in ruling that debt service for the high
school renovations is not part of the capital expenditures for
the project," and that "Boonton should not be permitted to
charge Lincoln Park for debt service interest on the high school
renovation project for the term of the bond."
We affirm the judgment substantially for the reasons
expressed by Judge B. Theodore Bozonelis in his oral opinion of
May 5, 2009. We add only the following. The agreement provides
that "any portion of capital expenditures shall not be
attributable to Lincoln Park without the express written consent
of Lincoln Park." Lincoln Park insists that debt service, or
interest, is clearly attributable to, and part of, a capital
expenditure financed by a bond issue and therefore Boonton
cannot include a proportionate share of debt service for high
school construction in tuition charges to be paid by plaintiff.
A-5089-08T1
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The principal issue is whether debt service is a capital
expenditure for which consent was necessary. That must be
analyzed in the context of an agreement requiring "written
consent" for capital expenditures in lieu of the default
provisions controlling permissible charges to the sending
district under State law. Lincoln Park insists "the intent of
section H(3) [of the contract between the parties] was that all
the costs associated with capital projects at the high school be
considered capital expenditures including the debt service," and
"since Boonton could not charge Lincoln Park for principal under
[N.J.S.A. 6A:23A-17.1], section H(3) of the contract would be
rendered meaningless if it did not apply to debt service
interest."
The regulations provide that debt service is considered as
a "building use charge," and the parties' agreement does not
6A:23A-17.1(e)(6) clearly
define it otherwise. As N.J.A.C.
includes debt service within the category of the "building use
charge," and the parties agree that the regulation so provided
executed,1
in 1999 when the parties' agreement was their
agreement did not override or trump the provision that interest
was not part of the "capital expenditure" for purposes of state
1
The agreement referred to regulations N.J.A.C. 6:20-3.1 and
6:22-1.1, recently recodified.
A-5089-08T1
3
law for which consent was necessary. Stated differently, the
agreement did not clearly or sufficiently express intent to
consider debt service or interest as part of the capital
expenditure in order to overcome the impact of the regulations.
We therefore agree with Judge Bozonelis that "there is
nothing in the contract that would trump the regulation ... as
to how tuition is calculated, which includes a building-use
charge, which is specifically interest on this debt service."
Moreover, once the agreement expires, the regulations will
control in the absence of a new agreement between the parties.
While cross motions for summary judgment do not necessarily
mean that either side believes the case is ready for disposition
if its motion is denied, here the cross motions did not suggest
a factual dispute if the adversary's motion was denied or that
there was sufficiently presented a factual dispute as to the
interpretation of the agreement regarding capital expenditures,
and neither party in its brief raised the need for an
evidentiary hearing. The fact an ALJ, the Commissioner, and our
court found that the paving of a parking lot was a capital
expenditure in an earlier dispute between these same parties
does not constitute a factual dispute or provide the need for
parol evidence as to the intention of the parties. After
A-5089-08T1
4
exploring the issue at oral argument, we find no basis for a
remand.
Affirmed.
A-5089-08T1
5
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