The NJ Appellate Division Finds Governing Body Is Not Required to Affirmatively Act in Response to Master Plan Recommendation

January 2015Articles In the Zone

In this case, John E. Myers & Diane D. Myers, Trustees v. Ocean City Zoning Board of Adjustment and City of Ocean City 2014 W.L. 7565888 N.J. Super. (App. Div. 2015), the City of Ocean City appeals from the trial court’s order compelling it to respond to a proposed zoning change recommended by the Ocean City Planning Board in its Master Plan Reexamination Report.

Interpreting N.J.S.A. 40:55D-62(a), the trial court concluded that a governing body must adopt an ordinance consistent with a proposed changed in a re-examination report, or the governing body may affirmatively reject the recommended change after a hearing.

The Appellate Division agreed with the city that the statute does not require the governing body to affirmatively act in response to a master plan recommendation so long as the existing ordinance is substantially consistent with the master plan’s land use and housing elements.

Facts and Legal Discussion

At issue in this case was a master plan recommendation as a result of the city’s 2012 Master Plan Re-examination Report. The report recommended a zoning change for certain residential properties located in the Beach and Dune Zone (B&D Zone). Since 1988, residential and commercial uses were prohibited in the B&D Zone and such zoning prohibited the expansion or rebuilding of certain pre-existing residential structures that were nonconforming uses and structures.

The planning board recommended to deem such residential properties conditional uses and recommended several conditions designed to assure that the residences did not interfere with the flood preventative and other purposes of the zone.

The city obtained the planning board’s re-examination report. However, the city took no action specifically regarding the recommended B&D Zone change.

Two property owners in the B&D Zone went to the zoning board to seek to expand their residences to add decks, roofs over existing decks and permission to construct dormer additions to their homes. The zoning board denied the variance and, after the 2012 Re-examination Report, the property owners sought an order to compel the city to adopt the recommended B&D zone change. The lower court granted the property owners their relief.

The Appellate Division held that the court found nothing in the plain language of Section 62(A) of the Municipal Land Use Law requiring a governing body to affirmatively act in response to a re-examination report. Rather, the court held that the statute only imposes conditions upon a governing body when it decides to act. The first sentence of the statute makes it clear that the adoption of a zoning ordinance or an amendment is permissive. The court further held that if a governing body chooses to adopt or amend an ordinance, it must do so only after adoption of a master plan. Furthermore, if the governing body decides to adopt an ordinance, then it is subject to the proviso that: “… all of the provisions of such zoning ordinance or any amendment or revision thereto shall be substantially consistent with the master plans, land use and housing elements.”

The court discussed the statutory scheme requiring re-examination of the master plan and found that a pre-existing zoning ordinance may become inconsistent with one aspect of the re-examination report. However, the statute does not expressly require any action by the planning board or the governing body. The court found no basis in the statute’s plain language for the property owners’ contention that a governing body must affirmatively provide reasons for its inaction, should it decide not to amend its zoning ordinance to make it consistent with the master plan recommendations. Interestingly, the court did not endorse Professor Cox’s comment in its land use treatise, which provides that it would seem unreasonable for delay in adopting an ordinance or a change recommended in a master plan re-examination report.

The court articulated a principle that dictum in an opinion of a higher court, i.e., the Appellate Division, is intended to provide guidance to courts that may consider an issue in the future, and courts are obligated to consider and are bound by such guidance.

Accordingly, the Appellate Division reversed the Trial Court’s order compelling the governing body to adopt an amendment to the zoning ordinance to conform to the proposed B&D Zone change. This case stands for the proposition that courts will continue to give municipalities broad latitude in connection with legislative acts such as considering an amendment or revision to a municipality’s zoning ordinance so long as constitution issues are not involved in such determinations.

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