West Windsor’s township attorney has agreed with a group of residents living near High Schools North and South, who say the installation of lights at both the high schools’ athletic fields falls subject to the towns’ planning and zoning laws.
West Windsor Township Attorney Michael Herbert — who is also the township attorney in Plainsboro — told residents during the Township Council’s February 14 meeting that he reviewed a memo sent to him by an attorney for the residents.
Robert F. Simon, of the Warren-based Herold Law Firm, sent the memo to Herbert just before the February 7 meeting. In the memo Simon argues that the lighting project requires “full land use approvals.”
Originally, Herbert said that the township’s Planning Board did not have jurisdiction because the lighting project was taken on by the school district, which has jurisdiction over “school facilities projects” by state law.
However, Simon argued, state law excludes certain types of projects, which are deemed “other facilities” including “athletic stadiums any associated structures or related equipment tied to such facilities including night field lights.”
The project has been debated publicly since the idea was suggested in June, 2009, when residents Pat Boyle and Manny Efstathios approached the board, saying they wanted to create a nonprofit athletic foundation to help fund the district’s athletics facilities, specifically by raising the money needed to install lights at both of the district’s athletic fields.
The school board formed a committee to perform an independent assessment of the issues surrounding the installation of the lights on the football, soccer, and lacrosse fields and released its report in December, 2009. According to the report, members of the independent committee interviewed various stakeholders and conducted their own research.
They talked to the concerned neighbors, school officials, principals, athletic director Marty Flynn, local realtors, and law enforcement professionals. Boyle and Efstathios told them that the installation of the lights would cost between $240,000 and $260,000 using energy-efficient lighting with a 25-year guarantee and that auxiliary lighting would probably also be required.
But the report also indicated that the group of concerned neighbors — Deane Bornheimer, Paul Van Der Werf, Neale Campanella, Alexandra Lawrence, Donna Tillson, and Genevieve Stiefel — living adjacent to South “have indicated that they would not support the installation of lights under any conditions,” the report stated. “This group is a very vocal opposition who has indicated that legal action is a potential option.”
Since that time, a group of concerned residents began voicing their concerns during meetings, saying they feared that the games would draw crowds, cause light and noise pollution, encourage delinquent behavior, and even impact the students’ academic success. The neighbors urged the board to turn the proposal down, but the board approved a memorandum of agreement in December with the High School South Booster Club, which is now handling the fundraising and will handle installation of the lights.
The residents brought their concerns to officials at both townships. Originally, officials in both West Windsor and Plainsboro asked the WW-P school board to provide simply a “courtesy review” at the Planning Board level of the plans to install the lights, which Herbert called a capital review.
“Normally, what happens is the Planning Board reviews it and makes some comments,” said Herbert. Then the Department of Education reviews the matter and accepts or rejects it.
However, Simon cited several recent court cases and opinions stating otherwise. “The Department of Education is to only review and approve capital projects of school districts relating to educational adequacy,” stated Simon in the memo. “The proposed field lights do not affect educational adequacy but rather are to be considered ‘other facilities’ and their installation would be classified and reviewed as ‘other capital projects.’”
Not only does state law prohibit the Board of Education and Department of Education from giving final approval for the project, but case law “mandates review and approval, or denial as the case may be, of the project by the appropriate land use boards of the Township of West Windsor.”
Simon argued in his memo that the jurisdiction of the Planning Board or Zoning Board is limited if it is an “educational facility that would ultimately be reviewed by the state commissioner of education,” said Herbert.
“The issue was whether this was a school facility which would be under the control of the Department of Education, and therefore not require a formal site plan review,” he explained. “The answer is that it is not an educational school facility or school facility as described by the regulations.”
Herbert said he was provided with transcripts from two similar court decisions. “In both cases, the ruling was that exterior lighting, particularly the kind of lighting we’re talking about this evening, is not a school facility, and therefore, it is not under the jurisdiction of the Commissioner of Education, and therefore should proceed to the appropriate land use board, whether it is the Zoning Board or Planning Board.”
Herbert said he reached out to the school board’s attorney, who will be looking into the matter. “It should be clear that this council doesn’t have control over this issue,” Herbert emphasized. “The only issue that was presented to this council, quite belatedly I might add, as the school board had been reviewing this for a couple of years, was whether or not the plans should go ahead to the Planning or Zoning Board.”
Herbert said that it appears “fairly clearly” based on his examination of the decisions that the lighting project would not be considered a school facility. He said it was a “murky area” of the law.
He suggested the school board make an application to the township’s zoning officer, who would determine where it goes and what kind of application is necessary.
“There will be substantial costs involved, and that’s really unfortunate,” Herbert said. “Under our Municipal Land Use Law, we now have to have notices sent out to folks in the entire area.”
While the lighting project is being funded by a private group, it would still be considered a project of the school board, he said. If the board were to proceed with installation of the lights, the attorney for the group of residents could file a legal action, he said.
Prior to Herbert’s decision, residents on both sides of the issue aired their feelings on the matter in similar fashion to the meetings held at the school board last year.
Sara Spangler Campanella, a Canoe Brook Drive resident who has been speaking during meetings on behalf of the opposed neighbors, told the council that the group of residents retained the lawyer because they were not land use experts. “The recent communication was not meant to be adversarial,” she said to the council.
Campanella told the council “we are an unofficial group of residents” who worried about the impact to the neighbors, specifically that the light and noise from the evening games will be a nuisance. The group wants the issue to be fully vetted by planning officials for compliance to township ordinances.
Suifen Lyu, who lived on Canoe Brook Drive but said she since moved to another area of the township, said she is familiar with the noise the neighbors already hear from events at the school. She said it was not reasonable to expect the neighbors to put up with all the noise generated by nighttime events at the school. “If you hold sports there, it will be noisy,” she said. Pointing to the large crowd of supporters in the audience, she said that anyone can get a lot of sports parents to come to a meeting in support.
But “it’s the oldest residential community in West Windsor,” she said about the area near High School South. “You can have a lot of people [in support], but it doesn’t mean you can destroy these people’s lives.”
The room was packed by a majority of supporters of the field light project, who urged the council to allow the project to move forward. Boyle, who along with Efstathios, began raising the money for the project, urged the council to move forward.
Boyle said the concerns raised by the neighbors were all studied before the board allowed the project to move forward. Those concerns, he said, have “not held any substance.”
He pointed to support from both of the schools’ principals, the unanimous vote by the school board to move ahead with the project, and consent from other entities. “This is just as unanimous as it gets,” he said.
“This is clearly a Board of Education project,” he added, as the crowd erupted into clapping.
Resident Tom O’Connor said he moved to a home near the athletic fields because he enjoys being part of the community and being near its events. “I embrace it; I love that,” he said of potential noise from nighttime events held at the athletic fields. “I don’t view the lights as a negative.”
Residents living near other lighted fields within the township said they can see the lights and hear the music during events on those fields, but said the events end at a reasonable time and would not carry on all night long.
WW-P Board of Education President Hemant Marathe also approached the council and explained that it was not a decision the school board could make without studying. He said a committee had been formed to study the idea and tried to work with all of the people involved. “We feel it was good not only for the kids, but also for the community,” he said.
Len Hayduchok, of Cartwright Drive, said it seemed a majority of the community wanted it and that it should not come down to a group of residents who just don’t want it because it is in their backyards.
