John E. Myers, Trustee, and Diane D. Myers, Trustee v. Ocean
106 A.3d 576
N.J. Super. Ct. App. Div.2015Background
- Ocean City's Planning Board issued a 2012 Master Plan Reexamination Report proposing to reclassify six pre-existing residences in the Beach & Dune (B&D) Zone as conditional residential uses (to allow expansions/rebuilding subject to conditions); the B&D Zone had prohibited residential uses since 1988, rendering the houses nonconforming.
- The City adopted several unrelated ordinances after the 2012 Report but took no specific action to adopt or reject the proposed B&D Zone change.
- John and Diane Myers own two of the affected homes and had their variance application to expand one home denied by the Ocean City Zoning Board in 2011; they sued the Zoning Board and the City.
- After the 2012 Report, the Myers sought to amend their complaint to compel the City either to amend its zoning ordinance to implement the B&D change or affirmatively reject it (by adopting a resolution with stated reasons as they read N.J.S.A. 40:55D-62(a) to require).
- The Law Division ordered the City to amend the ordinance or hold a hearing and adopt a resolution stating reasons within 95 days; the City appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N.J.S.A. 40:55D-62(a) requires a governing body to take affirmative action (adopt amendment or adopt a resolution explaining inaction) after a planning-board master plan reexamination recommends a zoning change | The statute requires the governing body to either adopt the recommended zoning change or affirmatively reject it with a resolution stating reasons (i.e., must act) | Section 62(a) is permissive; it does not compel action — it only prescribes conditions if the governing body chooses to adopt or adopt an inconsistent ordinance | The Appellate Division reversed: the statute does not require affirmative action; the majority-vote/resolution requirement is triggered only when the governing body adopts an ordinance inconsistent with the master plan |
| Whether inaction by the governing body following a master-plan change automatically invalidates an existing zoning ordinance | The Myers argued the City's failure to adopt the recommended change rendered the ordinance invalid or required the City to justify its inaction | City argued inaction does not automatically invalidate the ordinance; statute imposes no express duty to act or deadlines | Held: Inaction does not automatically invalidate the ordinance; however, the ordinance remains subject to a substantive challenge that it is not substantially consistent with the master plan |
| Standard for resolving alleged inconsistency between zoning ordinance and master plan after inaction | Plaintiffs implied the inconsistency should be treated as requiring remedial action | City relied on the MLUL substantial consistency standard and deference to governing-body determinations | Held: The MLUL requires only substantial consistency; courts give deference to the governing body’s judgment; only a materially undermining inconsistency will invalidate an ordinance |
| Whether the trial court properly ordered the City to choose between amending the ordinance or holding a hearing to affirmatively reject the plan change | Plaintiffs relied on their reading of § 62(a) and the trial court’s authority | City argued the trial court misread § 62(a) and exceeded its authority by compelling affirmative action | Held: Trial court erred; its order compelling affirmative action was reversed; plaintiffs may still bring a challenge that the ordinance is not substantially consistent with the master plan |
Key Cases Cited
- Perez v. Zagami, LLC, 218 N.J. 202 (de novo review of statutory interpretation)
- Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366 (defines “substantially consistent” and deference to governing body)
- Victor Recchia Residential Constr., Inc. v. Zoning Bd. of Adjustment of Cedar Grove, 338 N.J. Super. 242 (statute does not require governing body to justify inconsistency by affirmative resolution where it has not adopted an inconsistent ordinance)
- Riggs v. Twp. of Long Beach, 109 N.J. 601 (presumption of validity for municipal zoning ordinances)
- DiProspero v. Penn, 183 N.J. 477 (statutory interpretation principles; read statute in context)
- E. Mill Assocs. v. Twp. Council of E. Brunswick, 241 N.J. Super. 403 (reasons for inconsistency must be contemporaneous with adoption of an inconsistent ordinance)