Multiple home construction. Multiple home construction. Photo: ThomasPhoto/

School officials in Edison are threatening to sue the township over its approval of new home construction that could exacerbate crowding in school facilities.

The Edison Board of Education vowed this week to sue the township Zoning Board of Adjustment over its approval of an eight-unit multifamily development to replace a single family house, citing the impact on school facilities, local media reported. But land use experts doubt the school can convince a judge to overturn the approvals.

Under the state’s Municipal Land Use Law, overcrowded school facilities are not grounds to withhold approval of new residential construction, according to some land use lawyers. Such approvals could be vulnerable to a court challenge by the school district if they represent a significant use or density variance, such as 50 homes on a site zoned for 25 units. But an application that does not seek any variances for use or density will be harder to challenge.

The lawyer for the Edison school district, Ramon Rivera of Scarinci Hollenbeck in Lyndhurst, did not return a call seeking comment.

The state’s Municipal Land Use Law has liberal rules for standing by parties seeking to oppose a land use application, said Jack Plackter, co-chair of the zoning and land use group at Fox Rothschild in Atlantic City. A school district or board of education would have no problem achieving standing to file suit as an interested party.

If an applicant does not seek any variances for permitted use or density, the school district would have a difficult time challenging it, Plackter said. And a housing project’s impact on the local school system is not valid ground for a municipality to withhold approval of a land use application.

“Judges are smart,” said Plackter. “If it’s very clear the overarching reason [the school board is] challenging this is they say the township is overloading our schools, we don’t want the kids, the court won’t give the challenge much weight.”

It’s hard to imagine a suit by the school district that would successfully overturn approval of new housing construction in Edison, said Gary Forshner, co-chair of the land use and redevelopment practice at Greenbaum, Rowe, Smith & Davis in Woodbridge.

“I haven’t studied their complaint but I can’t envision one that would allow them to successfully proceed,” Forshner said.

In many of the state’s municipalities, new housing is being approved as a part of a court-mandated affordable housing plan, which could make it difficult to challenge, said Forshner. Statewide, 250 municipalities have had such plans approved, he said.

“As a result of those 250 towns that have a plan in effect, there’s a lot of property zoned for housing. Towns are not going to be able to prevent people from building housing, to be clear,” said Forshner.

If the school district challenges approval of an affordable housing site, the court would need to conduct a balancing test to determine how the benefit of providing affordable housing compares to the impact on the school system of an influx of new pupils, said Peter Falvo Jr., a land use and development lawyer at Ansell Grimm & Aaron in Ocean.

A development that is built in accordance with the township’s master plan would be difficult to challenge after the fact, said Falvo. But applications with a use or density variance are more vulnerable to a challenge.

“The board, when they render their decision, must consider when they approve this application whether it will have any negative impacts on the community. If [the school district] can show a true detriment to the school system or to the health and welfare of the community, I think they might have a chance,” Falvo said.