Is the Berkeley Heights CMS Lease Agreement Legal?

-Laura Kapuscinski

This past weekend, while I was opening fan mail, I happened upon an anonymous letter directing me to N.J.S.A. 40A:12-5 and pointing out the possibility that the Town Council did not properly adopt the CMS land lease with the Berkeley Heights Board of Education.*

Upon review, the language in N.J.S.A. 40A:12-5 does reflect the requirement for a governing body to adopt an ordinance—not just a resolution—for land acquisitions, including leases. On March 4 and again on March 25, the Town Council adopted resolutions approving the lease agreement with the Board of Education. I have not found any record of an ordinance being introduced or adopted for this lease.

Now, I don’t specialize in municipal law, which is why I’ve brought this matter to the attention of the Mayor, Township Council, District, and Board of Education.

As of the time this article was published—after 1 1/2 business days—the only reply I’ve received was from Dr. Tom Foregger, who supported my reading of the statute while also cautioning that annotated statutes or prior interpretations by municipal attorneys might yield a different view. He noted that in his experience, legal language doesn’t always mean what it seems to on the surface and should be reviewed in context.

That said, the letter writer’s interpretation of the statute is backed by two legal rulings—Township of Millburn v. Pitt and Hillsborough v. Robertson—which confirm that municipalities must adopt an ordinance when leasing or acquiring land. These rulings carry legal weight and go beyond what’s stated in annotations or followed by internal custom.

We will publish the Township’s response when, and if, we get it.

Editor’s Note: While the anonymous letter contradicts itself slightly, I believe the writer intended to use the word “ordinance” in the first sentence, not “resolution.” After reviewing the statute, the concern appears to be valid.

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