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Legal Q & A

Matthew Weng
Matthew Weng
League Staff Attorney

OPRA Request Funding and Adjustment
Board Jurisdiction

Q It seems that we are limited to .05 cents for the copies on normal sized paper, and .07 for legal sized paper.

My question is: if the copying requires extraordinary work can we still charge for the employee’s time if it takes hours to find and make the copies? For example, can we charge if we have to go into the archives and we may lose someone for a half or full day just looking for the documents?

A Yes, if there is an “extraordinary expenditure of time and effort” in supplying an OPRA record. See N.J.S.A. 47:1A-5c: “Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the foregoing rates shall be established in advance by ordinance.”

The Government Records Council dealt with the issue of what would be an “extraordinary expenditure of time” in Complaint No. 2003-15 in 2004.

In that decision, the GRC reprinted advice given to it by the Attorney General’s office on the definition of “extraordinary.” According to the Attorney General, “OPRA does not contain a definition of what is ‘extraordinary’ for purposes of N.J.S.A. 47:1A-5c. In the absence of a specific legislative definition or clear legislative intent to the contrary, statutory words are to be given their ‘generally accepted meaning.’”

The Attorney General looked to the dictionary definition of extraordinary, which is ‘beyond what is common or usual.’ He went on to say that, such a definition cannot be subject to a bright line rule, but must be fact specific to each individual request.

With regard to the calculation of the amount of the special service charge, the Attorney General advised the GRC that under the statute, the public body may charge “recoupment of actual costs where an extraordinary effort is necessary. In view of this purpose, it is reasonable to include costs attributable to both clerical and supervisory work, where participation by supervisory employees was required...Thus, where a special service charge is permitted, whether for copies of documents or for inspection, it may be appropriate, depending on the circumstances, to include within the charge the time spent by higher-level employees in reviewing which documents could be disclosed.”

Q We are having some issues with our Board of Adjustment. We would like to enact an ordinance to remove their jurisdiction over type “d” variances and give that jurisdiction to the Planning Board. Can you offer any advice?

A I do not believe such a thing can be done. N.J.S.A. 40:55D-20 states: “Any power expressly authorized by this act to be exercised by (1) planning board or (2) board of adjustment shall not be exercised by another body, except as otherwise provided by this act.”

If the request is for a “d” variance, then the board of adjustment has exclusive jurisdiction. See Trinity Baptist v. Louis Scott Hold, 219 N.J. Super. 490 (App. Div. 1987).

Any ordinance that attempted to remove the jurisdiction of a board of adjustment over “d” variances would be preempted by the state statute and would be moot.

Keep in mind, however, that it may be possible to do away with the Board of Adjustment altogether and use a “combined” Planning and Zoning Board (although in reality they are not truly combined; the Planning Board simply exercises the powers of the Board of Adjustment.)

If you choose to do this, the procedure will depend on your population.

Municipalities having a population of 15,000 or less may, by ordinance, eliminate their Board of Adjustment and authorize their Planning Board to exercise all powers. N.J.S.A. 40:55D-25.c.(1). If you have a larger population, look to the procedures in N.J.S.A. 40:55D-25.c.(2), where a town may permit a Planning Board to exercise the Board of Adjustment powers, but this change is subject to voter referendum.


This column is for informational purposes only, and is not intended as legal advice.

First published in New Jersey Municipalities, Volume 88, Number 1, January 2011

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