INTHE MATTER OF THE APPROVAL OF THE APPLICATION OF THE AILANTHUS CHARTER SCHOOL
Annotate this CaseNOT 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-0945-16T4
IN THE MATTER OF THE APPROVAL
OF THE APPLICATION OF THE
AILANTHUS CHARTER SCHOOL.
_____________________________
Argued February 14, 2018 – Decided May 11, 2018
Before Judges Alvarez, Nugent, and Geiger.1
On appeal from the Department of Education.
Brett E.J. Gorman argued the cause for
appellant Franklin Township School District
(Parker McCay, PA, attorneys; Brett E.J.
Gorman, of counsel and on the brief; Kayleen
Egan, on the brief).
Lauren A. Jensen, Deputy Attorney General,
argued the cause for respondent New Jersey
Commissioner of Education (Gurbir S. Grewal,
Attorney General, attorney; Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Nicole T. Castiglione, on the brief).
Paul P. Josephson argued the cause for
respondent Ailanthus Charter School (Duane
Morris, LLP, attorneys; Paul P. Josephson, of
counsel and on the brief).
PER CURIAM
1
Judge Alvarez did not participate in oral argument, but joins
the opinion with the consent of the parties. See R. 2:13-2(b).
Appellant Franklin Township School District appeals from the
September 30, 2016 approval by the Acting Commissioner
(Commissioner) of the Department of Education (Department) of the
proposed Ailanthus Charter School (Ailanthus) for a 2017-18
planning year with an opening in the 2018-19 school year. The
District argues, in part, that N.J.A.C. 6A:11-2 is invalid because
it conflicts with the Charter School Program Act of 1995 (the
Act),
N.J.S.A. 18A:36A-1 to -18. We uphold N.J.A.C. 6A:11-2 as
valid. We also conclude the appeal seeks review of an
interlocutory agency decision. Because appellant was required to
move for leave to appeal, rather than file an appeal as of right
without seeking leave, we dismiss the remaining aspects of this
appeal.
I.
We discern the following facts from the record. On March 31,
2016, the founders of Ailanthus submitted a phase one charter
school application to serve pupils in kindergarten through fifth
grade from the City of New Brunswick and Franklin Township. On
April 29, 2016, the Franklin Township Board of Education (the
Board) submitted a resolution to the Commissioner opposing
Ailanthus's application. In its resolution, the Board expressed
the following concerns and objections to Ailanthus's application:
2 A-0945-16T4
WHEREAS, the Franklin Township Board of
Education believes the establishment of a
third charter school with the Franklin
Township Public School boundaries is not
necessary; and
. . . .
WHEREAS, Franklin Township Public
Schools have more highly qualified teachers
per student than the State average; a diverse
student population who report over [sixty]
different languages as their home language;
positive behavior programs; academic
intervention programs; an ESL/Bi-lingual
Program that was recently named as a Model
Program by the NJ Department of Education;
partnerships with institutions of higher
learning such as Rutgers University; a state
approved health and physical education program
at the elementary level with additional
interscholastic athletic opportunities at the
secondary level; an art, music, and creative
movement program at the elementary level with
theater arts opportunities, beginning in fifth
grade, along with second language
opportunities; and
. . . .
WHEREAS, the Ailanthus application
states that parents, families and community
stakeholders were actively engaged throughout
each stage of the application process, it
fails to provide details on how information
was gathered from other stakeholders; over
what period of time this took place and more
importantly how many people actually
participated; and
WHEREAS, the Franklin Township Board of
Education believes that the application
submitted to the Department of Education is
flawed in its lack of detail; and
3 A-0945-16T4
WHEREAS, the Ailanthus application
states that its recruitment efforts are guided
by its mission to serve a socioeconomically
diverse population and that the use of a
weighted lottery, if permission is granted,
will help in this endeavor; and
WHEREAS, the Franklin Township Board of
Education recognizes this proposed effort, but
notes it is not a comprehensive plan to meet
the diversity model of the Franklin Township
Public School District. Further, the Board
of Education has concerns about charter
schools increasing ethnic isolation in our
Township schools; and
WHEREAS, the Ailanthus School will occupy
the facility vacated by the Thomas Edison
EnergySmart Charter School . . . . "Concerns
have been raised by the lack of diversity in
Thomas Edison EnergySmart Charter School's
student population." Further, the location
of the proposed charter school services a
relatively homogeneous population that is not
reflective of the township demographic; and
. . . .
WHEREAS, if approval of the Ailanthus
Charter School is granted it would create
und[ue] hardship to the tax paying members of
the Franklin Township community in that this
would be the third charter school within the
Franklin Township Public Schools' boundaries
drawing needed resources away from the more
than 7,500 students enrolled in Franklin
Township Public Schools[.]
On May 19, 2016, the Bound Brook Board of Education submitted a
similar resolution to the Commissioner opposing Ailanthus's
application.
4 A-0945-16T4
On June 10, 2016, following review of Ailanthus's phase one
application and the opposing resolutions, the Commissioner found
Ailanthus satisfied each of the standards established by the
Department for phase one of the application process, approved it
for "qualified applicant" status, and instructed it to submit
phase two of its charter school application.
On July 15, 2016, Ailanthus submitted its phase two
application. Following review of the phase two application, and
determination by the Commissioner that Ailanthus was a "qualified
applicant," Ailanthus participated in "an in-depth interview"
pursuant to N.J.A.C. 6A:11-2.1(e).
On September 30, 2016, the Commissioner advised Ailanthus
that its charter school application was "approved for a 2017-18
planning year with an opening in the 2018-19 school year" pursuant
to N.J.A.C. 6A:11-2.1(m). The planning year allows an applicant
that receives phase two approval, but is not prepared to open in
the subsequent school year, additional time to: demonstrate its
qualifications for a charter; submit additional documentation;
participate in the Department's preparedness process; and
demonstrate compliance with state and federal regulations.
N.J.A.C. 6A:1-1.2; N.J.A.C. 6A:1-2.1(m). The Commissioner advised
Ailanthus the approval was contingent upon the submission of
5 A-0945-16T4
additional documentation, approval of that documentation, and
successful completion of the preparedness process, stating:
This approval is contingent upon receipt
of outstanding documentation not included in
your application, successful participation in
the preparedness process and compliance with
all applicable state and federal regulations.
The preparedness process will include an on-
site visit by [Department] personnel that will
gauge readiness for school opening. The
preparedness visit will include a review of
program, facility and fiscal documentation and
interviews with board of trustee members and
staff members of the proposed charter school
to assess organizational leadership and
capacity.
Once the preparedness process is
successfully completed and all documentation
is approved, your final charter will be
granted and you will enter into a formal
charter agreement with the Department to
operate in the 2018-19 school year. The
charter agreement sets forth the terms and
conditions of operating a charter school in
New Jersey and defines the academic and non-
academic criteria by which your school will
be evaluated and held accountable.
On November 1, 2016, without first moving for leave to appeal,
the District filed a notice of appeal of the Commissioner's
September 30, 2016 approval of Ailanthus's application for a 2017-
18 planning year with an opening in the 2018-19 school year. The
Commissioner moved to dismiss because a final decision granting
or denying Ailanthus's charter application had not yet been issued.
On May 8, 2017, the motion was denied.
6 A-0945-16T4
On appeal, the District raises the following points:
POINT I
N.J.A.C. 6A:11-2.1[(f)] IS INCONSISTENT WITH
THE STATUTORY LANGUAGE OF
N.J.S.A. 18A:36A-1
ET SEQ., AND IS CONSEQUENTLY, INVALID. (ISSUE
CONCERNING REGULATION INAPPROPRIATE TO RAISE
BEFORE COMMISSIONER).
POINT II
THE COMMISSIONER'S DECISION WAS ARBITRARY,
CAPRICIOUS, AND UNREASONABLE.
A. The Commissioner failed to explain
the reasons for her decision, making her
decision arbitrary, capricious and
unreasonable.
B. The Commissioner did not adequately
consider the objections raised by the
Board, which makes her decision
arbitrary.
C. There is not sufficient evidence to
support the Commissioner's decision
because Ailanthus put forth an
unrealistic budget and created a school
day that is not educationally sound.
POINT III
THE COMMISSIONER'S DECISION SHOULD BE REVERSED
BECAUSE SHE FAILED TO CONSIDER THE SEGREGATIVE
IMPACT AILANTHUS WOULD HAVE ON THE DISTRICT.
The Commissioner renews her argument that the appeal should
be dismissed because a final agency decision granting or denying
Ailanthus's charter application has not yet been made and the
District did not move for leave to appeal.
7 A-0945-16T4
II.
We begin with an overview of the application and approval
process for charter schools. The Act directs the Commissioner to
"establish a charter school program which shall provide for the
approval and granting of charters to charter schools."
N.J.S.A.
18A:36A-3(a). In addition, the Act requires the State Board of
Education (the State Board) to "adopt rules and regulations . . .
necessary to effectuate the [Act's] provisions."
N.J.S.A.
18A:36A-18. "A key aim of the Act, indeed the public policy of
the State, is 'to encourage and facilitate the development of
charter schools.'" In re Grant of Charter Sch. Application of
Englewood on the Palisades Charter Sch.,
320 N.J. Super. 174, 220
(App. Div. 1999) (quoting
N.J.S.A. 18A:36A-2), aff'd as modified,
164 N.J. 316 (2000). The State Board has adopted rules and
regulations pursuant to this mandate, N.J.A.C. 6A:11-1.1 to -6.4.
"The application process is governed by the Act, see
N.J.S.A.
18A:36A-4, -4.1, -5, and implementing regulations, see N.J.A.C.
6A:11-2.1." In re Proposed Quest Acad. Charter Sch. of Montclair
Founders Grp.,
216 N.J. 370, 373 (2013). A charter school
application must meet the comprehensive disclosure requirements
imposed by
N.J.S.A. 18A:36A-5(a) to -5(n). Regulations impose
additional requirements, including completion of the Department's
charter school application form. N.J.A.C. 6A:11-2.1(b)(1).
8 A-0945-16T4
The application process proceeds in two phases. Quest Acad.,
216 N.J. at 375. In phase one, the applicant must provide the
information required by N.J.A.C. 6A:11-2.1(b)(2). Id. at 375-76.
The Commissioner then determines whether the applicant is a
"qualified applicant" that advances to phase two. Id. at 376. In
order to be declared a qualified applicant and advance to phase
two, the applicant must have
submitted an application that has a clear,
focused, and results-oriented mission
statement that aligns with all parts of the
application; demonstrates understanding of
the population that the school is likely to
serve; has an educational program that is
likely to be effective for the student
population; has strong and diverse leadership;
and has strong financial planning and
management.
[N.J.A.C. 6A:11-2.1(b)(3)(ii).]
The phase two application must include the information and
documentation required by N.J.A.C. 6A:11-2.1(b)(3)(iii). Quest
Acad.,
216 N.J. at 376. Following receipt of a satisfactorily
completed phase two application, the Commissioner notifies "a
qualified applicant about whether it has been invited to
participate in an in-depth interview with the Commissioner or his
or her designee." N.J.A.C. 6A:11-2.1(b)(3)(iv).
The application must be submitted to the Commissioner and the
local board of education.
N.J.S.A. 18A:36A-4(c). The local board
9 A-0945-16T4
must "review the application and recommend to the Commissioner
whether she should grant or deny the application." Quest Acad.,
216 N.J. at 377 (citing
N.J.S.A. 18A:36A-4(c); N.J.A.C. 6A:11-
2.1(d)(1)-(2)). "Through
N.J.S.A. 18A:36A-4(c), the Legislature
has decreed that the Commissioner is the final administrative
decision-maker on the grant or rejection of a charter school
application." Id. at 383.
The applicant is then required to submit extensive additional
documentation to the Commissioner before the dates specified in
the letter of approval, the most pertinent of which include:
7. The certificate of occupancy for "E"
(education) use issued by the local municipal
enforcing official at N.J.A.C. 5:23-2;
. . . .
10. An organizational chart and a list
of the lead person, school business
administrator, teachers, and professional
support staff including required
certifications and criminal background check
status;
11. A budget summary, budget narrative,
and cash flow statement for the following
fiscal year, based on the most recent
enrollment projections;
. . . .
14. Evidence of enrollment of at least
90 percent of approved maximum enrollment, as
verified by student registrations signed by
parent/guardian(s); and
10 A-0945-16T4
15. Documentation that ensures
compliance with all applicable Federal and
State regulations and statutes.
[N.J.A.C. 6A:11-2.1(i)(7), (10), (11), (14),
(15).]
"Prior to final granting of the charter," the Department is
required to conduct a "preparedness visit," N.J.A.C. 6A:11-2.1(h),
in the form of an on-site inspection by Department personnel to
gauge the applicant's readiness for school opening, N.J.A.C.
6A:11-1.2. "The preparedness visit shall include a review of
program, facility, and fiscal documentation and interviews with
board of trustee members and staff members of the proposed charter
school to assess organizational leadership and capacity."
N.J.A.C. 6A:11-1.2.
"Prior to the granting of the charter, the Commissioner shall
assess the student composition of a charter school and the
segregative effect that the loss of students may have on its
district of residence." N.J.A.C. 6A:11-2.1(j). The applicant
shall submit data for the assessment by February 15. Ibid.
Final approval of an application for a charter is not
"effective" until "all necessary documents and information"
demonstrating preparedness "are received by the Commissioner,"
N.J.A.C. 6A:11-2.1(i), and approved by the Department, N.J.A.C.
11 A-0945-16T4
6A:11-2.1(k), and the Commissioner has determined the satisfactory
completion of the preparedness visit, N.J.A.C. 6A:11-2.1(i).
An applicant "that receives application approval, but is not
prepared to open in the subsequent school year may request a
planning year." N.J.A.C. 6A:11-2.1(m). "Planning year" is defined
as "a one-year period between a charter school's application
approval and the final granting of its charter to prepare for the
charter school's opening." N.J.A.C. 6A:11-1.2. If the applicant
"demonstrates a legitimate need for more time to meet the
preparedness requirements" imposed by N.J.A.C. 6A:11-2.1(i), the
Commissioner may grant a planning year to the applicant. N.J.A.C.
6A:11-2.1(m)(1). A second planning year may also be granted to
the applicant. N.J.A.C. 6A:11-2.1(m)(2).
The Act and the regulations "provide no guidance to the
Commissioner on how to assess an application." Quest Acad.,
216 N.J. at 377. Case law, however, imposes the following
requirements:
First, "the Commissioner must assess the
racial impact that a charter school applicant
will have on the district of residence in
which the charter school will operate" and
"must use the full panoply of [her] powers to
avoid" segregation resulting from the grant
of a charter school application. In re Grant
of Charter Sch. Application of Englewood on
the Palisades Charter Sch.,
164 N.J. 316, 329
(2000). Second, if the local school district
"demonstrates with some specificity that the
12 A-0945-16T4
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, "the
Commissioner is 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." Id. at 334-35; see N.J. Const.
art. VIII, § 4, ¶ 1 ("The Legislature shall
provide for the maintenance and support of a
thorough and efficient system of free public
schools for the instruction of all the
children in the State between the ages of five
and eighteen years.").
[Id. at 377-78 (alteration in original).]
When reviewing a charter school application, the Commissioner may
rely "on her own expertise in assessing [the] overall viability
of [a] proposed charter school." Id. at 389.
III.
The District claims that N.J.A.C. 6A:11-2.1(f) is invalid
because it is inconsistent with the Act. The District argues that
although the Act gives local boards of education the right to
appeal the Commissioner's decision to establish or expand a charter
school, N.J.A.C. 6A:11-2.1(f) does not require the Commissioner
to notify local boards of education of her decisions and the basis
for denial of a charter school application, or give any reasons
for disregarding a board of education's objections to a charter
school application.
13 A-0945-16T4
The Commissioner argues because this issue was not previously
raised by the District, it was not addressed when approving
Ailanthus for a planning year and, therefore, is not properly
before this court. Substantively, the Commissioner argues
N.J.A.C. 6A:11-2.1(f) "furthers both the legislative policies
underlying the [Act] and the express provisions of the Act itself."
The Act directed the State Board of Education to adopt rules
and regulations necessary to effectuate the provisions of the Act.
N.J.S.A. 18A:36A-18. Rule 2:2-3(a)(2) provides for appellate
review as of right of "the validity of any rule promulgated by
such [state administrative] agency or officer."
"Judicial review of agency regulations begins with a
presumption that the regulations are both 'valid and reasonable.'"
N.J. Ass'n of Sch. Adm'rs v. Schundler,
211 N.J. 535, 548 (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) (NJSPCA)). "That
deference 'stems from the recognition that agencies have the
specialized expertise necessary to enact regulations dealing with
technical matters and are 'particularly well equipped to read . .
. and to evaluate the factual and technical issues that . . .
rulemaking would invite." N.J. Healthcare Coalition v. N.J. Dep't
of Banking & Ins.,
440 N.J. Super. 129, 135 (App. Div. 2015)
(quoting N.J. State League of Municipalities v. Dep't of Cmty.
14 A-0945-16T4
Affairs,
158 N.J. 211, 222 (1999)). In light of its expertise,
we "give great deference to an agency's interpretation and
implementation of its rules enforcing the statutes for which it
is responsible." In re Freshwater Wetlands Prot. Act Rules,
180 N.J. 478, 488-89 (2004) (citing In re Distrib'n of Liquid Assets,
168 N.J. 1, 10-11 (2001)). "The party challenging the agency
action bears the burden of overcoming the presumption of validity
and reasonableness." In re Adoption of N.J.A.C. 11:3-29,
410 N.J.
Super. 6, 25 (App. Div. 2009) (citing In re Commissioner's Failure
to Adopt 861 CPT Codes,
358 N.J. Super. 135, 149 (App. Div. 2003)).
"We give agencies wide discretion in deciding how best to
approach legislatively assigned administrative tasks, especially
when the task falls within a particular agency's expertise[.]" In
re Failure by the Dep't of Banking & Ins.,
336 N.J. Super. 253,
262 (App. Div. 2001) (citations omitted). Nonetheless, "[a]
regulation 'must be within the fair contemplation of the delegation
of the enabling statute.'" N.J. State League,
158 N.J. at 222
(quoting N.J. Guild of Hearing Aid Dispensers v. Long,
75 N.J.
544, 561-62 (1978)). "[C]ourts must invalidate a regulation that
is 'inconsistent with the statute it purports to interpret.'"
Schundler,
211 N.J. at 549 (quoting NJSPCA,
196 N.J. at 385).
With these principles in mind, we examine N.J.A.C. 6A:11-
2.1(f), which provides:
15 A-0945-16T4
The Commissioner shall notify applicants
regarding approval or denial of applications
no later than February 15 for applicants
seeking fast track approval through expedited
action and no later than September 30 for all
other applications. The notification to
eligible applicants not approved as charter
schools shall include reasons for the denials.
The District contends the regulation impedes its right to
appeal the Commissioner's final decision. We disagree.
The time frames and notification requirements imposed by the
regulation ensure timely decisions are made by the Commissioner
on charter school applications and deficiencies are identified.
Prompt notification is important given the "tight time frames" for
applications and review "as cycle after cycle of charter school
applications are submitted seeking approval to open in the ensuing
school year." Quest Acad.,
216 N.J. at 387 (citing N.J.A.C. 6A:11-
2.1(b)(1)). "[S]uch reviews must proceed expeditiously." Id. at
388.
The District further contends the regulation is invalid
because it does not require the Commissioner to inform the District
of the approval of a charter school application or the reasons for
granting a planning year to an applicant. The Commissioner argues
imposing a requirement to notify each district board of education
of an interlocutory decision finding an applicant qualified or
16 A-0945-16T4
granting a planning year would be extremely burdensome and taxing
of precious department resources.
The District's role is limited to reviewing the phase one and
two applications and submitting its recommendations to the
Commissioner.
N.J.S.A. 18A:36A-4(c); N.J.A.C. 6A:11-2.1(c).
Acting quasi-legislatively and not quasi-judicially, the
Commissioner "need not provide the kind of formalized findings and
conclusions necessary in the traditional contested case."
Englewood,
320 N.J. Super. at 217 (citing E. Windsor Reg'l Bd. of
Educ. v. State Bd. of Educ.,
172 N.J. Super. 547, 551-52 (App.
Div. 1980); In re Physical Abuse at Blackacre Acad.,
304 N.J.
Super. 168, 188 (App. Div. 1997)). The District has no right to
an adjudicatory hearing. See ibid. Thus, the District's due
process rights are not affected, since its only remedy under the
current statutory and regulatory scheme is to appeal the final
decision of the Commissioner.
N.J.S.A. 18A:36A-4(d); N.J.A.C.
6A:11-2.5.
Moreover, the District was not prejudiced by the regulation's
lack of a notice requirement. "It is the practice of the
Department to notify the district board(s) of education that serve
as the district or region of residence of a charter school
regarding all matters involving (1) the approval or denial, (2)
revocation or (3) renewal of a charter."
29 N.J.R. 3560(a) (Oct.
17 A-0945-16T4
2, 2000). The District had actual notice of the Commissioner's
decision determining Ailanthus was a qualified applicant and
approving its application for a planning year.
Applying our deferential standard of review, we find no basis
to invalidate N.J.A.C. 6A:11-2.1(f). The regulation is not
inconsistent with or antagonistic to the Act. Rather, we deem it
to be "reasonably designed to meet practical issues triggered by
the Act's requirements." Englewood,
320 N.J. Super. at 220
(citations omitted).
IV.
The District also claims the Commissioner's decision was
arbitrary, capricious, and unreasonable, and failed to consider
the segregative impact Ailanthus Charter School would have on the
District. We decline to reach these issues because the
Commissioner's approval of a planning year did not constitute a
final agency decision.
"Through
N.J.S.A. 18A:36A-4(c), the Legislature has decreed
that the Commissioner is the final administrative decision-maker
on the grant or rejection of a charter school application." Quest
Acad.,
216 N.J. at 383; accord N.J.A.C. 6A:11-2.1(a). Accordingly,
"an applicant has the right to appeal the Commissioner's rejection
of a charter school application pursuant to Rule 2:2-3(a)(2)."
Quest Acad., 216 at 383. Additionally, the charter school
18 A-0945-16T4
applicant and the local board of education have a statutory right
to appeal the Commissioner's final decision pursuant to
N.J.S.A.
18A:36A-4(d). Ibid.
Rule 2:2-3(a)(2) provides for review as of right of "final
decisions or actions of any state administrative agency or officer"
in the Appellate Division. The Supreme Court has provided guidance
as to when an agency decision or action is final. Generally, a
decision or action of a state administrative agency is "considered
final if it disposes of all issues as to all parties." Silviera-
Francisco v. Bd. of Educ. of City of Elizabeth,
224 N.J. 126, 136
(2016) (citing Petersen v. Falzarano,
6 N.J. 447, 452-53 (1951);
In re Donahue,
329 N.J. Super. 488, 494 (App. Div. 2000)). "Final
agency action is also characterized by findings of fact,
conclusions of law, a definitive ruling, and a clear statement
that the interested party may seek review of the decision and the
manner in which that may be accomplished." Id. at 139 (citing De
Nike v. Bd. of Trs., Emps. Ret. Sys. of N.J.,
34 N.J. 430, 435-36
(1961)). "Another feature of a final agency decision is the
absence of or exhaustion of 'all avenues of internal administrative
review.'" Id. 136-37 (quoting Bouie v. N.J. Dep't of Cmty.
Affairs,
407 N.J. Super. 518, 527 (App. Div. 2009)).
19 A-0945-16T4
The issue of whether a decision of the Commissioner is
interlocutory or final was discussed by the Court in Silviera-
Francisco:
One of the indicia of final agency action is
whether a decision is subject to further
review within the agency including review by
the Commissioner . . . . Thus, where the
Legislature has declared that the Commissioner
is the final agency decision-maker on a
charter school application, see N.J.S.A.
18A:36A-4(c), a decision rejecting or
approving a charter school application by the
Commissioner is a final agency decision.
[Id. at 140 (citing Quest Acad.,
216 N.J. at
383).]
Applying this standard, we hold the Commissioner's
determinations that Ailanthus's phase one and phase two
applications were satisfactory, and her approval of a 2017-18
planning year pursuant to N.J.A.C. 6A:11-2.1(m), did not
constitute a final agency decision under the Act. Ailanthus was
afforded a planning year in which to demonstrate its qualifications
for the charter. By definition, a planning year is "a one-year
period between a charter school's application approval and the
final granting of its charter to prepare for the charter school's
opening." N.J.A.C. 6A:11-1.2 (emphasis added).
Final approval and granting of an application for a charter
is not "effective" until "all necessary documents and information"
demonstrating preparedness are received by the Commissioner and
20 A-0945-16T4
approved by the Department, and satisfactory completion of a
preparedness visit. N.J.A.C. 6A:11-2.1(i), (k). Here, those
requirements had not yet been met by Ailanthus when this appeal
was filed. The planning year was still underway and the
application review process was not yet completed. Consequently,
the Commissioner had not yet issued a final decision granting or
rejecting Ailanthus's charter school application. See Quest
Acad.,
216 N.J. at 374-78 (describing the two phase application
process – approval of the application as qualified and grant of a
charter).
The District's relies on Englewood in support of its argument
that the Commissioner rendered a final decision appealable as of
right. We find its reliance on Englewood for that proposition to
be misplaced. As we explained in Englewood, there is a distinct
difference between "approval of a charter" and "final granting of
a charter."
320 N.J. Super. at 218-19. "The definitional section
explains and distinguishes between the concepts of approval and
grant." Id. at 218. "Approval" of a charter is defined as "an
endorsement by the Commissioner following the review of an eligible
application by the Department and contingent upon the receipt of
necessary documentation in accordance with N.J.A.C. 6A:11-2.1(f)."
N.J.A.C. 6A:11-1.2. "Final granting of a charter" is defined as
"the written notification in which the Commissioner makes the
21 A-0945-16T4
charter effective as a result of all required documentation being
submitted by the charter school and approved by the Department in
accordance with N.J.A.C. 6A:11-2.1(f), (h), and (i)." Ibid. Once
again, that had not yet occurred.
Additionally, the regulations in place when Englewood was
decided provided "two opportunities to appeal to the State Board:
an appeal must be filed 'within 30 days from the receipt of a
letter from the Commissioner regarding either the approval or
final granting or denial of a charter.'" Englewood,
320 N.J.
Super. at 219 (alteration in original) (quoting N.J.A.C. 6A:11-
2.5(a)). "As explained by the Department in response to the
comment, an aggrieved party may appeal first from the
Commissioner's contingent approval (the contingency being the
submission of further data) and second from the final granting
after the data has been submitted." Id. at 220 (citing
29 N.J.R.
3493 (Aug. 4, 1997)). Characterizing that appeal process as
"idiosyncratic, if not unique," the panel found the regulation was
not "inconsistent with or antagonistic to the Act." Ibid.
In the intervening years since Englewood, the regulations
have been significantly amended. In particular, N.J.A.C. 6A:11-
2.5(a) now reads: "An eligible applicant for a charter school, a
charter school, or a district board of education or State district
superintendent of the district of residence of a charter school
22 A-0945-16T4
may file an appeal according to N.J.S.A. 18A:6-9.1." The
regulation no longer permits an appeal from the approval of a
charter.
We also note that the Commissioner is not required to assess
"the segregative impact" on the district of residence of the loss
of students to the proposed charter school before approving a
planning year. That assessment need only be completed "[p]rior
to the granting of the charter." N.J.A.C. 6A:11-2.1(j). Here,
Ailanthus submitted its phase one application on March 21, 2016.
The Commissioner approved the phase one application on June 10,
2016. Ailanthus submitted its phase two application on July 15,
2016. The Commissioner approved Ailanthus for a planning year on
September 30, 2016. Consequently, pursuant to N.J.A.C. 6A:11-
2.1(j)(2), Ailanthus was required to supply the data for the
assessment by February 15, 2017. The District filed this appeal
on November 1, 2016, long before the segregative impact assessment
data was even due. Given these facts, the District can hardly
complain the Commissioner failed to consider the segregative
impact Ailanthus would have on the District before approving the
planning year.
"Jurisdiction is an issue that a court may raise at any time."
Silviera-Francisco,
224 N.J. at 141 (citing Pressler & Verniero,
Current N.J. Court Rules, cmt. 1.2.4 on R. 2:8-2 (2016)). "When
23 A-0945-16T4
a court recognizes that it lacks jurisdiction, such as when it
recognizes that the appeal is not from a final judgment or final
agency action, it may dismiss the appeal." Ibid. (citing Pressler
& Verniero, cmt. 1.2.4 on R. 2:8-2).
Under the Act, "the Commissioner is the final administrative
decision-maker on the grant or rejection of a charter school
application." Quest Acad.,
216 N.J. at 383;
N.J.S.A. 18A:36A-4(c)
(stating "[t]he [C]ommissioner shall have the final authority to
grant or reject a charter application"). The Commissioner had not
granted or rejected Ailanthus's application for a charter.
Accordingly, the Commissioner had not rendered a final agency
decision. Absent a final agency decision, the District could not
appeal as of right. R. 2:2-3(a)(2). It was required to move for
leave to appeal pursuant to Rule 2:2-4. Our power to grant leave
to appeal an interlocutory order is "exercised only sparingly."
State v. Reldan,
100 N.J. 187, 205 (1985).
Without obtaining leave to appeal, the District seeks
appellate review of an interlocutory decision rendered as part of
an ongoing administrative review of Ailanthus's charter school
application. Consequently, the Appellate Division does not have
jurisdiction to hear the merits of the District's claims under
Point II that the Commissioner's decision was arbitrary,
capricious, and unreasonable, and Point III that the Commissioner
24 A-0945-16T4
failed to consider segregative impact. We decline to address
those claims and dismiss those aspects of the appeal. Our
disposition is, of course, without prejudice to the District's
ultimate right to appellate review of any final decision
subsequently issued by the Commissioner.
Affirmed in part, and dismissed in part.
25 A-0945-16T4
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