(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued February 15, 1995 -- Decided April 24, 1995
POLLOCK, J., writing for a unanimous Court.
The issue before the Court is whether a walkway is a public thoroughfare within the meaning of
N.J.S.A. 18A:39-1 and N.J.A.C. 6:21-1.3 for the purpose of calculating whether the residences of students
who use the walkway are more than two miles from their school.
The Board of Education of the Township of Wayne (the local board) decided not to bus certain
middle-school students to and from the Schuyler-Colfax School (the school). The local board petitioned the
Commissioner of Education for a declaratory judgment that the walkway, known as Smith Lane extension, is
a public thoroughfare. If the walkway is not public, the local board would be required to bus the students to
the school. If, on the other hand, the walkway is public and is within two miles of the school, the local board
need not bus the affected students to the school.
The Commissioner referred the matter to the Office of Administrative Law (OAL). After a
contested hearing, an Administrative Law Judge (ALJ) concluded that the walkway is a public thoroughfare
and that students can use it safely. The ALJ noted that there was nothing in the record to show that a
hazard existed. The Commissioner affirmed the ALJ's decision, and the State Board of Education (State
Board) affirmed the decision of the Commissioner.
On appeal, the Appellate Division reversed the decision of the State Board, relying on Board of
Educ. v. Bailey, which the court read as holding that "isolated footpaths" are necessarily unsafe. (There was
testimony at the hearing before the ALJ that there is a forty to fifty foot secluded area along the walkway).
The court concluded that the decision to include the Smith Lane extension walkway as a public walkway was
incorrect for safety reasons.
The Supreme Court granted the local board's petition for certification.
HELD: The Appellate Division should have deferred to the State Board of Education's finding that the
Smith Lane extension walkway is as safe as any other sidewalk in the Township of Wayne.
1. Bailey does not compel the conclusion that merely because some part of a pathway is isolated, the
pathway is unsafe as a matter of law. Whether a walkway is safe depends on the surrounding facts.
(pp. 6-8)
2. A reviewing court should defer to the findings of an administrative agency if those findings are based
on sufficient credible evidence in the record as a whole. Mere disagreement by the reviewing court with the
agency's determination does not permit that court to reject the agency's conclusion. Here, the Appellate
Division exceeded the scope of judicial review by failing to defer to the State Board's finding that the Smith
Lane extension walkway is as safe as any other sidewalk in the Township. (pp. 8-10)
3. The record amply supports the determination of the State Board that children using the walkway
are safe. (pp. 10)
Judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN, and
COLEMAN join in JUSTICE POLLOCK'S opinion.
SUPREME COURT OF NEW JERSEY
A-
94 September Term 1994
IN THE MATTER OF THE PETITION OF
THE BOARD OF EDUCATION OF THE
TOWNSHIP OF WAYNE,
Petitioner-Appellant,
v.
ARLENE KRAFT, JOHN AND ANGELA
O'KEEFE, WARREN AND JUNE BROOKS,
PATRICK AND ROSEANN MORIARITY,
DR. DOUGLAS AND MRS. STEPHANIE
GLAZER, RICHARD AND APPY EDEN,
FRANK AND CHRISTINE DEGARCIA,
MR. AND MRS. ROLAND TULINO,
MARC AND LINDA FISHMAN, GEORGE
AND CARLA FATTAL, STEVEN AND MARY
POTTER, MR. AND MRS. CHRISTOPHER
MARRA, ALAN AND SANDY BURTON, MR.
AND MRS. WAYNE R. REPPA, DR. AND
MRS. ALAN TELL, DAVID GOLUB,
JOSEPH AND FONG-JIAO CHEN,
MICHAEL W. AND PATRICIA A.
LAVULLO,
Respondents-Respondents.
Argued February 15, 1995 -- Decided April 24, 1995
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
274 N.J. Super. 211 (1994).
Stephen R. Fogarty argued the cause for
appellant (Fogarty & Hara, attorneys; Gary P.
Hall, of counsel and on the brief).
Charles J. Mysak argued the cause for
respondents.
Kim Chapman, Associate Counsel, argued the
cause for amicus curiae, New Jersey School
Boards Association (Susan E. Galante,
Director, Legal Department; Donna M. Kaye,
Associate Counsel, on the letter brief).
Arlene Goldfus Lutz, Deputy Attorney General,
submitted a letter in lieu of brief on behalf
of respondent State Board of Education
(Deborah T. Poritz, Attorney General of New
Jersey, attorney).
The opinion of the Court was delivered by
POLLOCK, J.
The underlying issue is whether a walkway is a public thoroughfare within the meaning of N.J.S.A. 18A:39-1 and N.J.A.C. 6:21-1.3 for the purpose of calculating whether the residences of students who use the walkway are more than two miles from their school. If the walkway is not public, defendant, the Board of Education of the Township of Wayne (the local board), must bus the students to the Schuyler-Colfax School. The local board petitioned the Commissioner of Education for a declaratory judgment that the walkway, known as the Smith Lane extension, is a public thoroughfare. The Commissioner referred the matter to the Office of Administrative Law (OAL). After a contested hearing, an administrative law judge (ALJ) concluded that the walkway is a public thoroughfare and that the students can use it safely. The Commissioner agreed with the ALJ, and the State Board of Education (State Board) affirmed the Commissioner's decision. The Appellate Division reversed because it disagreed with the State Board's conclusion that the walkway is safe. 274 N.J. Super. 211, 226 (1994). We granted the local board's petition for certification. ___ N.J. ___ (1994). Finding that the Appellate Division should have deferred to the State Board's
finding that the walkway is safe, we reverse that court's
judgment and reinstate the decision of the State Board.
This appeal arises out of the local board's decision not to bus certain middle-school students to and from the Schuyler-Colfax School. Concerning busing, N.J.S.A. 18A:39-1 formerly provided:
Whenever in any district there are
pupils residing remote from any schoolhouse,
the board of education of the district may
make rules and contracts for the
transportation of such pupils to and from
school, including the transportation of
school pupils to and from school other than a
public school, except such school as is
operated for profit in whole or in part.
Interpreting the statute, N.J.A.C. 6:21-1.3 provides:
(a) The words "remote from the schoolhouse"
shall mean beyond 2½ miles for high school
pupils (grades 9 through 12) and beyond two
miles for elementary pupils (grades
kindergarten through eight), except for
educationally handicapped pupils.
(b) For the purpose of determining
remoteness in connection with pupil
transportation, measurement shall be made to
by the shortest route along public roadways
or public walkways from the entrance of the
pupil's residence nearest such public roadway
or public walkway to the nearest public
entrance of the assigned school.
On July 1, 1990, the Legislature amended N.J.S.A. 18A:39-1
to provide:
Whenever in any district there are elementary
school pupils who live more than two miles
from their public school of attendance or
secondary school pupils who live more than 2½
miles from their public school of attendance,
the district shall provide transportation to
and from school for these pupils.
Although the ALJ referred to the statute in its former form,
the reference is unimportant. The underlying issue continues to
be whether the affected students live more than two miles from
the school within the meaning of the regulatory structure.
By including Smith Lane and a walkway, denominated the "Smith Lane extension walkway," within the "remoteness" calculation, the local and state officials concluded that the students were not more than two miles "remote" from the school. Originally, respondents, the parents of the students, argued not only that the walkway was unsafe, but that Smith Lane should be excluded because it was a private, not a public, roadway. Although the Appellate Division concluded that "the decision to include the Smith Lane extension walkway as a 'public walkway' was not correct for safety reasons," 274 N.J. Super. at 226, it also concluded that the "decision to include Smith Lane as a 'public roadway' for purposes of measuring remoteness was proper." Ibid. Respondents did not cross-appeal from the latter conclusion. The dispositive issue before us is whether the Appellate Division should have deferred to the State Board's determination that the walkway could be included in the
remoteness determination because it "is safe and well-maintained
as any other public sidewalk in Wayne Township . . . ."
In resolving that issue, we appreciate the understandable,
even laudable, concerns of respondents, the students' parents,
for the safety of their children. We also appreciate the
difficult decisions that school board officials must make in
discharging their responsibilities to those students and the
general public.
The following summary, drawn from the hearing before the
ALJ, suffices for our purposes. The Smith Lane extension
walkway, which is one of thirty-four school paths maintained by
Wayne Township, is approximately five-feet wide and five-hundred
feet long. It begins at Smith Lane and ends at the Theunis Dey
Elementary School. Private homes border the walkway on one side,
and the Theunis Dey ballfield borders the other side.
As described by Gary Peatick, the school district transportation supervisor, the walkway is a paved pathway. It "has a slight grade, and at one point traverses a wooded area," which is secluded from public view for forty to fifty feet. Wayne Township maintains the walkway and removes snow and ice. At night, the ballfield security lamps illuminate the walkway. According to Eric Ernst, the assistant transportation supervisor, children are visible "for the majority of time they are on the walkway," and the school crossing guard on nearby Jackson Avenue could hear any cries of distress. Approximately eighty students
use the walkway to travel to and from their homes and school.
Other children use the walkway for recreational purposes, such as
visiting friends.
Marilyn Mysak was the sole witness who testified for
respondents. Although Mrs. Mysak has observed debris on the
walkway, she acknowledged that between her observations the
debris had been removed. She asserted that the walkway is unsafe
because it is steep and is bordered by crevices. The ALJ, after
reviewing photographs of the walkway, rejected that assertion.
Mrs. Mysak also testified variously that no one could hear cries
from the walkway of children in distress, but that from her
backyard she could hear children playing on the walkway. She was
concerned that portions of the walkway are concealed from public
view, a concern that the ALJ discounted because children would
use the walkway during specific times and generally while walking
in groups. The ALJ likewise discounted Mrs. Mysak's concerns
about teenagers who gather on the walkway and drink beer at
night, because those gatherings occur after school hours.
The only other evidence adduced by respondents was a
certification from a former assistant superintendent of the
school district, who believed that the local board should not
change its former policy of excluding the walkway when
determining whether students live more than two miles from the
Schuyler-Colfax school.
After considering all the evidence, the ALJ concluded that
the Smith Lane extension walkway is public and "presents no
greater risk to children walking back and forth to school than
does any other sidewalk in the Township." In reaching that
conclusion, the ALJ noted that "[t]here is nothing on the record,
such as police or accident reports, to show that a hazard
exists." The Commissioner affirmed the ALJ's decision, and the
State Board affirmed the decision of the Commissioner.
In reversing, the Appellate Division relied on Board of
Educ. v. Bailey, 1
984 S.L.D. 1165 (St. Bd. of Educ. 1984), which
it read as holding that "isolated footpaths" are necessarily
unsafe. 274 N.J. Super. at 225-26. As the Commissioner noted in
the instant case, however, the footpaths in Bailey crossed a
county park "where snow and ice were not removed, no public
thoroughfare linked the pathways in the park to the rest of the
community . . . and where the park was near an urban area,
creating a potential danger of attack."
Contrary to the Appellate Division's interpretation, Bailey does not compel the conclusion that merely because some part of a pathway is isolated, the pathway is unsafe as a matter of law,. Whether a walkway is safe depends on the surrounding facts. For example, in Mangieri v. Board of Educ., 1 991 S.L.D. 69 (St. Bd. of Educ. 1991), the Commissioner concluded that a walkway across railroad tracks was safe. In reaching that conclusion, the Commissioner relied on the ALJ's finding that local officials took "reasonable precautions to protect the safety of children,
including arranging for a crossing guard at peak hours, limiting
access when school is not is session, and grading and maintaining
the walkway." 1
991 S.L.D. 58, 63 (1990).
A reviewing court should defer to the findings of an administrative agency's findings if those findings are based on sufficient credible evidence in the record as a whole. Dennery v. Board of Educ., 131 N.J. 626, 641 (1993); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). See generally Kenneth C. Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 11.2 (3d ed. 1994) (discussing "substantial evidence test").
We recently reexamined judicial review of fact findings by the Commissioner and State Board in Dennery. In that case, the State Board affirmed the Commissioner's decision that the plaintiff, a tenured high school guidance counselor, could not transfer her tenure rights under an "educational services certificate" to a new position as "class supervisor." The Appellate Division reversed, 251 N.J. Super 144 (1991), determining that the guidance counselor and class supervisor positions overlapped to such an extent that the plaintiff could transfer her tenure rights. We reversed, relying on the rule that a reviewing court must accept an agency's factual determinations unless those determinations are not supported by substantial credible evidence in the record. 131 N.J. at 641. Our review led us to conclude that the record supported the State Board's determination that "the newly-created position of class
supervisor required the performance of additional duties and
tasks and that the position was not so substantially similar to
Dennery's previous position as a guidance counselor." Id. at
641-42.
As in Dennery, we conclude that the Appellate Division
exceeded the scope of judicial review by failing to defer to the
State Board's finding that the Smith Lane extension walkway is as
safe as any other sidewalk in the township.
The Appellate Division rejected that finding, stating that
[h]ere, the decision of the agency is
entirely inconsistent with its long-standing
common sense proposition that isolated
pathways should not be utilized for
determining remoteness for safety reasons and
that children are entitled to safe passage
under the auspices of a responsible
government entity.
. . . Under the circumstances, it is
clear to us that the decision under review
was so wide of the mark that our intervention
is required.
In essence, the Appellate Division concluded that because the record indicated that one section of the five-hundred foot walkway traverses a wooded area, the walkway is necessarily unsafe. Thus, the Appellate Division's review of the record led it to a conclusion different from that of the State Board. Mere disagreement with an agency's conclusion, however, does not
permit a reviewing court to reject that conclusion. Clowes v.
Terminix Int'l, Inc.,
109 N.J. 575, 587 (1988); Goodman v. London
Metals Exch., Inc.,
86 N.J. 19, 28-29 (1981).
Like the Appellate Division, we recognize the relevance of
student safety in determining whether a walkway may be included
in calculating remoteness. See Mangieri, supra, 1991 S.L.D. at
72; Bailey, supra, 1984 S.L.D. at 1166. Here, the local and
state school officials evinced concern for the safety of children
traveling to school on the Smith Lane walkway, but determined
that children using the walkway are safe. The record amply
supports their determination.
The judgment of the Appellate Division is reversed.
Chief Justice Wilentz and Justices Handler, O'Hern, Garibaldi, Stein, and Coleman join in this opinion.
NO. A-94 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
IN THE MATTER OF THE PETITION OF
THE BOARD OF EDUCATION OF THE
TOWNSHIP OF WAYNE,
Petitioner-Appellant,
v.
ARLENE KRAFT, JOHN AND ANGELA
O'KEEFE, WARREN AND JUNE BROOKS,
PATRICK AND ROSEANN MORIARITY,
DR. DOUGLAS AND MRS. STEPHANIE
GLAZER, RICHARD AND APPY EDEN,
FRANK AND CHRISTINE DEGARCIA,
MR. AND MRS. ROLAND TULINO,
MARC AND LINDA FISHMAN, GEORGE
AND CARLA FATTAL, STEVEN AND MARY
POTTER, MR. AND MRS. CHRISTOPHER
MARRA, ALAN AND SANDY BURTON, MR.
AND MRS. WAYNE R. REPPA, DR. AND
MRS. ALAN TELL, DAVID GOLUB,
JOSEPH AND FONG-JIAO CHEN,
MICHAEL W. AND PATRICIA A.
LAVULLO,
Respondents-Respondents.
DECIDED April 24, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY