Thomas Griepenburg v. Township of Ocean (073290) , 220 N.J. 239 ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
Thomas Griepenburg v. Township of Ocean (A-55-13) (073290)
Argued November 12, 2014 – Decided January 22, 2015
LaVECCHIA, J., writing for a unanimous Court.
In this appeal, the Court considers the circumstances under which municipal zoning ordinances represent a
legitimate exercise of a municipality’s power to zone property consistent with its Master Plan and Land Use Law
(MLUL) goals.
The Township of Ocean (Township) is a largely rural-suburban community bordered by the Pinelands
National Reserve and Barnegat Bay. In the late 1990’s, the Township began a comprehensive planning process in
anticipation of population growth and increased development. The Township subsequently adopted the smart
growth principles fostered by the State Development and Redevelopment Plan (State Plan). The Township worked
with the New Jersey Department of Environmental Protection (DEP) and other agencies to update its Master Plan
for development in accordance with smart growth principles.
In 2004, the Township submitted a Petition for Plan Endorsement to the State Planning Commission
(Planning Commission) in which it sought to have its Waretown section designated as a town center (Waretown
Town Center) and to convert a large area of land from a PA-2 Suburban Planning Area to a PA-5 Environmentally
Sensitive Planning Area. The Planning Commission endorsed the Township’s petition, and as a condition thereof,
adopted Resolution 2005-03 (the Resolution) mandating that the Township “revise its municipal zoning ordinance to
be consistent with the master plan and planning area changes within 60 days of the endorsed plan.” In 2006, the
Township passed a series of ordinances to facilitate its land use goals and accord with the Resolution.
In April 2007, plaintiffs, who own a significant amount of land in the Township, filed a complaint against
the Township, the DEP, and the New Jersey Department of Community Affairs (DCA) challenging the validity of
three ordinances (the Ordinances) that affected their property. They alleged that they were arbitrary, unreasonable,
capricious, and illegal and that the rezoning constituted inverse condemnation. Plaintiffs live in a single-family
residence on the eastern portion of one of several lots they own. The remainder of the property consists of
undeveloped woodlands. When plaintiffs acquired the property, it was subject to mixed zoning. As a result of the
Planning Commission’s endorsement of the Township’s Petition, all but one of plaintiffs’ lots were converted to PA-
5 Environmentally Sensitive Planning Areas.
At trial, the parties’ experts – Thomas A. Thomas, P.P., (Thomas) for plaintiffs and Stanley Slachetka, P.P.,
(Slachetka) for the Township, testified. Thomas testified that the Ordinances are invalid as applied to plaintiffs
because the property does not have significant environmental restraints. Slachetka testified that the Ordinances were
enacted as part of the Township’s smart growth planning process, which included preservation of natural resources
as a goal. The trial court held that plaintiffs failed to establish that the inclusion of their property in an
Environmental Conservation district (EC district) was arbitrary, capricious, or unreasonable. Concluding that the
Ordinances fulfilled the four criteria established in Riggs v. Township of Long Beach, 109 N.J. 601, 611-12 (1988),
the trial court dismissed plaintiffs’ entire complaint, but later reinstated their inverse condemnation claim. The trial
court’s judgment held open the opportunity for plaintiffs to pursue an inverse condemnation claim if a variance were
sought and denied.
On appeal, the Appellate Division reversed in an unpublished opinion and held that the Ordinances were
invalid as applied because the downzoning was not required to serve the Ordinances’ stated purposes. The panel did
not reach the inverse condemnation claim. This Court granted certification. 217 N.J. 285 (2014).
HELD: The challenged Ordinances represent a legitimate exercise of the municipality’s power to zone property
consistent with its Master Plan and MLUL goals.
1. In 1988, the Court established a four-part test to facilitate judicial review of challenges to municipal zoning
ordinances. The ordinance must: (1) advance one of the purposes of the MLUL as set forth in the statute; (2) be
substantially consistent with the land use and housing plan elements of the master plan or be designed to effectuate
such plan elements, unless the requirements of that statute are otherwise satisfied; (3) comport with constitutional
constraints on the zoning power; and (4) be adopted in accordance with statutory and municipal procedural
requirements. Riggs, supra. (pp. 19-20)
2. In examining the Ordinances’ validity, the trial court tied its findings to the Riggs test and to MLUL goals. After
summarily finding that there was no challenge to the fourth factor, the court proceeded to make detailed findings
with respect to the remaining factors. The court’s analysis adhered to the Riggs criteria and its findings were
grounded in credible evidence. As the trial court clearly and thoroughly explained the record bases for its findings
and conclusions, this Court defers to its determination that each factor was satisfied and that the challenged
Ordinances are valid. (pp. 21-25)
3. The trial court also found that the Township’s inclusion of plaintiffs’ property in the EC district was reasonably
related to the purposes of the Ordinances. The Appellate Division reached a contrary determination, finding that the
property lacked specific environmental constraints. As to the Appellate Division’s determination based on
plaintiffs’ as-applied challenge, differing reasoning leads this Court to reverse the appellate judgment. The appellate
panel employed an overly narrow view of the Township’s land use planning goals. Contrary to plaintiffs’ and
amici’s arguments, the rezoning that occurred in the Township, which included a downzoning of plaintiffs’ property,
cannot fairly be distilled to the assertion that it constituted the creation of open space for the mere sake of having
open space. (pp. 25-26)
4. Plaintiffs argued that their property contained neither evidence of any endangered species, nor open waters,
wetlands, flood plains, or steep slopes, but the record shows that that was not the justification for the Township’s
actions. Moreover, their property’s inclusion in the EC district must be measured against the Township’s actual
objectives in enacting the Ordinances. The record developed by the Township supported that much of the area
surrounding the plaintiffs’ property is undeveloped or undevelopable. That supported the Township’s assertion, and
the trial court’s conclusion, that the property was appropriately zoned to achieve the goal of promoting smart growth
through concentrated development. (pp. 27-29)
5. Based on the record, which included evidence showing that plaintiffs’ property connected to other undeveloped
forested properties that constituted a habitat for endangered snakes and other wildlife, the trial court acted within its
authority when it concluded that designating the property as part of the EC district was not arbitrary or capricious.
To the extent that the Appellate Division also found that the Ordinances were invalid as applied, the Court notes that
the trial court’s reasonable determinations are entitled to deference and that the Ordinances enjoy presumptive
validity. The Court accepts the trial court’s determination that the Ordinances were not designed specifically to
inhibit development on the plaintiffs’ property. (pp. 29-30)
6. This case demonstrates the benefit to be derived from adhering to the doctrine of exhaustion of administrative
remedies. Relying on the Court’s decision in Pheasant Bridge Corp. v. Township of Warren, 169 N.J. 282 (2001), in
which this Court invalidated an ordinance as applied to the plaintiff’s property without requiring the plaintiff to first
seek a variance, plaintiffs and amici argue that plaintiffs were not required to exhaust their administrative remedies
by seeking a variance before initiating their as-applied challenge to the Ordinances. Pheasant Bridge should not be
read to suggest that a landowner challenging an ordinance as applied to his or her property is excused from first
exhausting administrative remedies. To the contrary, a landowner who wishes to challenge the validity of an
ordinance as applied should exhaust administrative remedies before initiating an action at law unless the interests of
justice requires otherwise. Plaintiffs should have sought a variance before pursuing either an as-applied challenge or
an inverse condemnation claim because none of the exceptions to the exhaustion doctrine apply. Exhaustion of
administrative relief is the best remedy. Thereafter, if their request for a variance is unsuccessful, an inverse
condemnation action will be the appropriate vehicle through which plaintiffs can seek relief. (pp. 30-35)
The judgment of the Appellate Division is REVERSED and the judgment of the trial court is
REINSTATED.
2
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, and
SOLOMON join in JUSTICE LaVECCHIA’S opinion. JUDGE CUFF (temporarily assigned) did not
participate.
SUPREME COURT OF NEW JERSEY
A-55 September Term 2013
073290
THOMAS GRIEPENBURG and CAROL
GRIEPENBURG,
Plaintiffs-Respondents,
v.
TOWNSHIP OF OCEAN,
Defendant-Appellant,
and
STATE OF NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL
PROTECTION and STATE OF NEW
JERSEY DEPARTMENT OF
COMMUNITY AFFAIRS,
Defendants.
Argued November 12, 2014 – Decided January 22, 2015
On certification to the Superior Court,
Appellate Division.
Gregory P. McGuckin argued the cause for
appellant (Dasti, Murphy, McGuckin, Ulaky,
Koutsouris & Connors, attorneys; Mr.
McGuckin and Christopher J. Dasti, on the
briefs).
Peter H. Wegener argued the cause for
respondents (Bathgate, Wegener & Wolf,
attorneys; Mr. Wegener and Rui O. Santos, on
the brief).
3
Richard J. Hoff, Jr., argued the cause for
amicus curiae New Jersey Builders
Association (Bisgaier Hoff, attorneys).
Mark Miller submitted a brief on behalf of
amicus curiae Pacific Legal Foundation.
JUSTICE LaVECCHIA delivered the opinion of the Court.
Plaintiffs, landowners Thomas and Carol Griepenburg,
challenge the validity of a series of ordinances enacted by
defendant, Township of Ocean (the Township). The ordinances
rezoned a large tract of land, including most of plaintiffs’
property, from residential and commercial use to an
Environmental Conservation district (EC district), thereby
restricting future development of their property. The trial
court dismissed plaintiffs’ challenge. In doing so, the court
applied the criteria for assessing a zoning ordinance’s validity
established in Riggs v. Township of Long Beach, 109 N.J. 601,
611-12 (1988), and determined that the ordinances were a valid
exercise of municipal zoning power and were not arbitrary,
capricious, or unreasonable. The court rejected plaintiffs’ as-
applied challenge, and it granted summary judgment to the
Township on plaintiffs’ inverse condemnation claim because
plaintiffs had not exhausted their administrative remedies by
seeking a variance. The Appellate Division reversed, concluding
that the ordinances were invalid as applied to plaintiffs’
property.
4
We reverse. We conclude that the ordinances represent a
legitimate exercise of the municipality’s power to zone property
consistent with its Master Plan and Municipal Land Use Law1
(MLUL) goals, and we hold that plaintiffs have not overcome the
ordinances’ presumption of validity. The inclusion of
plaintiffs’ property in the EC district rationally relates to
the municipality’s comprehensive smart growth development plan,
which concentrated development in a town center surrounded by a
green-zone buffer. That plan had the additional benefit of
protecting a sensitive coastal ecosystem through the
preservation of undisturbed, contiguous, forested uplands, of
which plaintiffs’ property is an integral and connected part.
We therefore decline to invalidate ordinances that fulfill MLUL
goals and other legitimate land-use planning objectives through
plaintiffs’ as-applied challenge. Rather, we reassert the
importance of exhausting administrative remedies and conclude
that plaintiffs’ claim for redress for the downzoning of their
property is better addressed through their inverse condemnation
claim, which, as the trial court held, plaintiffs may pursue if
they are denied a variance.
I.
A.
1 N.J.S.A. 40:55D-1 to -163.
5
The Township is a predominantly rural-suburban community
with a population of approximately 6,500 according to this
record. It is bordered on the west by the Pinelands National
Reserve and to the east by Barnegat Bay. Much of the Township
is within the Oyster Creek watershed. The western portion of
the Township is governed by the New Jersey Pinelands Commission,
and the eastern portion is considered a “coastal area” under the
Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to
-33.
In the late 1990’s and early 2000’s, the Township began a
comprehensive planning process for its future growth. A
catalyst for this process was anticipated population growth and
increased development resulting from construction of a
southbound exit (Exit 69) for the Township on the Garden State
Parkway (Parkway). During this planning process, the Township
determined that it would adopt the “smart growth” principles
fostered by the State Development and Redevelopment Plan (State
Plan).
Under the State Plan, the preferred form of development is
through compact centers surrounded by low-density environs. The
purpose of this smart growth form of development is to consume
less land, deplete fewer natural resources, and use the State’s
infrastructure more efficiently. In other words, the State Plan
6
promotes sustainability principles. Smart growth stands in
contrast to “sprawl development.”
In the early 2000’s, the Township worked in concert with
the New Jersey Department of Environmental Protection (DEP), the
Office of Smart Growth, and a variety of other state agencies to
re-examine and update its Master Plan for development in
accordance with smart growth principles. The Township’s Amended
Land Use Plan Element, Circulation Plan Element, and Master Plan
Reexamination Report from November 2005 summarize the evolution
of its Master Plan during those years and detail the Township’s
goals. Overall, the 2005 Master Plan reflects the Township’s
desire to concentrate development in a town center and to
facilitate low-density environs surrounding the center, the
latter of which would both promote center-based development and
protect environmentally sensitive areas outside of the center.
As part of its planning process, on December 24, 2004, the
Township submitted a Petition for Plan Endorsement to the State
Planning Commission (Planning Commission) pursuant to the State
Planning Act, N.J.S.A. 52:18A-196 to -207, and the State
Planning Rules, N.J.A.C. 5:85-1 to -8.7. In that petition, the
Township sought to have its historic Waretown section designated
as a “town center” (Waretown Town Center). Additionally, the
Township requested changes to the planning-area boundaries that
were set forth in the State Plan. Specifically, the Township
7
sought to convert a large area of land from a PA-2 Suburban
Planning Area to a PA-5 Environmentally Sensitive Planning Area.
This area included land adjacent to the Parkway and between the
Oyster Creek watershed to the north and the Waretown Creek to
the south. The Township submitted an amended petition on June
13, 2005.
The Planning Commission endorsed the Township’s Petition
for Plan Endorsement on December 7, 2005, by Resolution 2005-3.
In the resolution, the Planning Commission noted that the Office
of Smart Growth had approved the town-center designation and the
changes in planning-area designation from PA-2 to PA-5, and that
these changes were consistent with the State Plan criteria for
Environmentally Sensitive Planning Areas. In particular, the
Planning Commission noted that the area re-designated as a PA-5
is “a rare contiguous coastal forest area that represents the
last substantial undeveloped land in the Township” whose
protection “will preserve a large contiguous ecosystem.” As a
condition of plan endorsement, Resolution 2005-03 states that
the Township “shall revise its municipal zoning ordinance to be
consistent with the master plan and planning area changes within
60 days of the endorsed plan.”
Starting in January 2006, the Township passed a series of
downzoning ordinances to facilitate its land-use goals and
accord with Resolution 2005-03. On January 12, 2006, the
8
Township enacted Ordinance 2006-06, which re-designated all
property that had been previously designated C-3 commercial to
R-2 residential zones. On September 21, 2006, the Township
adopted Ordinance 2006-34, which rezoned existing industrial
zones outside of the Waretown Town Center into an EC district.
Ordinance 2006-34 provides, in relevant part:
Section 1: The Land Use Board of the Township
of Ocean adopted a periodic examination of the
Township’s Master Plan and Land Use Element
thereof. That report, dated November 2005,
included certain amendments to the Land Use
Plan Element and Circulation Plan Element of
the Township’s Master Plan which are designed
to provide the planning framework and
foundation for implementation of the
Township’s proposed Waretown Town Center as
well as proposals to meet land use goals,
environmental goals, housing needs, open space
goals, circulation, parking, design, economic
development and utility infrastructure goals.
Specifically, the Reexamination Report
recommended that the Township’s land use
classifications be consistent with the
Township’s proposed Waretown Center Concept
Plan and further recommended that any future
sewer/water infrastructure be limited to the
Township’s town center and those areas of the
Township within the [PA-2] designation.
Consistent with the Township’s goals and
objectives, the Master Plan Reexamination
Report recommended the rezoning of the
Township’s existing I-1 and I-2 Industrial
Zoning Districts outside of the Center to an
Environmentally Sensitive land use
designation. In order to implement that
recommendation, this ordinance amends the
Township’s Zoning Ordinance to rezone the I-1
and I-2 Industrial Zone Districts located
outside of the Waretown Town Center to a new
EC, Environmental Conversation District.
9
Section 3 of Ordinance 2006-34 amended Title 18 of the Township
Code to include Chapter 18.21, which details use and density
parameters for the EC district. According to Section 18.21.010,
entitled “General Intent,” the EC district
generally corresponds to those
environmentally sensitive areas lying outside
of and to the west of the Waretown Town Center
and east of the Garden State Parkway. It is
the intent of this area to act as the low
density environs of the center. Given the
environmental[ly] sensitive characteristics
of this area, only very low density
residential development or other low intensity
uses are allowed. Protection and conservation
of the natural resources of the area is the
principal objective of the EC district.
Section 18.21.050(A)(1) placed a twenty-acre minimum lot size on
any development within the EC district. On October 30, 2006,
the Township enacted Ordinance 2006-37, which extended the
Township’s EC district to encompass all areas designated PA-5
Environmentally Sensitive under the State Plan.
On March 5, 2007, the DEP published its determination that
the Township’s changes to the planning-area designations and
town-center boundaries approved by the Planning Commission were
consistent with CAFRA, a necessary step in the Township’s land-
use planning process. See 39 N.J.R. 768(b) (Mar. 5, 2007)
(approving Township’s submissions); see also N.J.A.C. 7:7E-
5B.3(b) (providing that “the [DEP] shall evaluate the new or
10
changed [Planning Area] boundary to determine whether it is
consistent with the purposes of [CAFRA]”). The DEP concluded:
[T]he delineated community development
boundaries put forth by Ocean Township
encompass existing and planned development and
redevelopment, and recognize the extent of
environmentally sensitive lands and
waterways. The designated Waretown CAFRA Town
Center and changed State Plan Policy Map
designations concentrate the pattern of
coastal residential, commercial and resort
development and better protect vulnerable
coastal uplands and wetlands. The Waretown
CAFRA Town Center and changed State Plan
Policy Map designations are consistent with
the Coastal Zone Management Rules, N.J.A.C.
7:7E, particularly the CAFRA decision-making
process established at N.J.A.C. 7:7E-
1.5(b)1ii.
The Waretown CAFRA Town Center designation
encourages the incorporation of smart growth
designs into development and redevelopment
projects, and in more compact forms due to the
higher impervious cover limits and development
potential possible in a CAFRA Town Center.
[39 N.J.R. 768(b).]
In April 2007, plaintiffs filed their complaint in lieu of
prerogative writs against the Township, DEP, and the New Jersey
Department of Community Affairs (DCA). See R. 4:69-1. The
complaint challenged the validity of the ordinances affecting
their property (hereinafter collectively referred to as the
Ordinances).2 Plaintiffs alleged that the Ordinances were
2Plaintiffs specifically challenged Ordinance 2006-34; however,
the Township acknowledges that plaintiffs intended to challenge
11
“arbitrary, unreasonable, capricious and illegal.” Among other
claims, plaintiffs contended that the rezoning constituted
“inverse condemnation.”
Plaintiffs own approximately thirty-four acres of land in
the Township. Their landholdings consist of Lots 1.01, 1.04, 2,
3, and 6.01 in Block fifty-six of the Ocean County Tax Map. The
property extends south from its frontage along County Road 532
(CR-532, also known as Wells Mills Road) and is directly east of
the Parkway. CR-532 connects the Parkway with Route 9. The
property is bordered by intermittent residential development to
the south and east, the Waretown Cemetery and various vacant
lots to the north, and mostly undeveloped land to the west.
Plaintiffs live on a two-acre, single-family residence on
the eastern portion of Lot 2 of their property. The residence
has existed on the property since the early 1970s and was
purchased by plaintiffs in 1985. The remainder of the property
consists of undeveloped woodlands. When plaintiffs acquired the
property, it was subject to “mixed zoning” and included portions
that were zoned as R-2 residential and C-3 commercial. The C-3
commercial zone permitted various kinds of commercial
development -- including use for hotel, retail, medical, and
office facilities -- on a minimum of one-acre lots, while the R-
Ordinance 2006-06 and Ordinance 2006-37, as well. We consider
this action a challenge to all three.
12
2 residential zone permitted single-family dwellings, public
parks, and nature preserves on a minimum of two-acre lots.
As a result of the Planning Commission’s endorsement of the
Township’s Petition, all but Lot 6.01 of plaintiffs’ property
was converted from a PA-2 Suburban Planning Area to a PA-5
Environmentally Sensitive Planning Area for the purposes of the
State Plan; Lot 6.01 remained a PA-2 Suburban Planning Area.
Ordinance 2006-06 rezoned a portion of plaintiffs’ property from
C-3 commercial to R-2 residential. Ordinance 2006-37 rezoned as
an EC district all property within a PA-5 Environmentally
Sensitive Planning Area; thus, it converted all of the
plaintiffs’ property, save Lot 6.01, to an EC district. Lot
6.01, which is 2.68 acres, remains zoned for R-2 residential
development and could be developed with a single-family
residence in accordance with R-2 density restrictions of one
unit per two acres. Although plaintiffs’ single-family
residence conforms to the EC district’s density requirement of
one unit per twenty acres, no further development of their
property within the EC district is permitted under the new
zoning.
B.
In September 2007, plaintiffs’ claims against DEP and DCA
were dismissed without prejudice. The four-day bench trial on
the Ordinances’ validity consisted largely of testimony by
13
Thomas Griepenburg and the parties’ respective planning experts:
Thomas A. Thomas, P.P., (Thomas) for plaintiffs and Stanley
Slachetka, P.P., (Slachetka) for the Township. Thomas testified
that the Ordinances are invalid as applied to plaintiffs because
the subject property does not have significant environmental
restraints such as threatened or endangered species,
floodplains, wetlands, steep slopes, or any of the usual
environmental constraints that merit protection within EC
districts. He argued that the Ordinances are unduly restrictive
because higher-density development -- particularly cluster
development -- on plaintiffs’ property would be consistent with
the Township’s land-use goals and with CAFRA regulations.
Slachetka testified that the Ordinances were enacted as
part of the Township’s smart growth planning process, which
included preservation of natural resources as a goal. In
establishing the EC district, the Township sought to protect a
sensitive coastal ecosystem by preserving a large, contiguous,
forested area and by creating a distinct boundary between the
town center and outer environs. According to Slachetka, it was
reasonable to include plaintiffs’ property in the EC district
because their property is a “key connection point” linking other
forested areas.
Based on the record developed at trial, the court found
that the Ordinances converting plaintiffs’ property to an EC
14
district had been adopted as “part of a global and comprehensive
undertaking on the part of [the Township] to employ principles
of smart growth as well as the creation and designation of a
Waretown Town Center.” The court stated that “the goal of the
Township was to achieve growth and development where there was
less sprawl and a concentration of development in a core region
along with the protection of environmentally sensitive areas.”
The court held that, in light of those legitimate goals,
plaintiffs failed to establish that the inclusion of their
property in the EC district was arbitrary, capricious, or
unreasonable. Although the evidence did not establish the
presence of freshwater wetlands, flood plains, or threatened or
endangered species on the subject property, the court concluded
that a contiguous environmentally sensitive area includes
expected habitats for threatened or endangered species.
In so holding, the court cited In re Adoption of N.J.A.C.
7:15-5.24(b) & N.J.A.C. 7:15-5.25(e), in which an Appellate
Division panel, interpreting the Freshwater Wetlands Protection
Act, defined “habitat” to include “the environment in which an
organism or biological population usu[ally] lives or grows” and
“areas in which species can be expected to live based on past
sightings.” 420 N.J. Super. 552, 569 (App. Div.) (alteration in
original) (internal quotation marks omitted) (citing In re
Adopted Amendments to N.J.A.C. 7:7A-2.4, 365 N.J. Super. 255,
15
261, 266 (App. Div. 2003)), certif. denied, 208 N.J. 597 (2011).
Based on Slachetka’s testimony that there were snake fencing and
tunnels, which are commonly used protective devices to restrict
and redirect the paths of snakes, on plaintiffs’ property, the
court concluded that the property was part of a habitat, or a
potential habitat, for endangered species, rendering its
inclusion as part of a contiguous whole not arbitrary or
unreasonable.
Concluding that the Ordinances fulfilled the four criteria
established in Riggs, supra, 109 N.J. at 611-12, the trial court
dismissed plaintiffs’ entire complaint. The court later
reinstated plaintiffs’ inverse condemnation claim and ultimately
granted the Township’s motion for summary judgment, holding that
it was not clear that an application for a variance would be
futile. The trial court’s judgment held open the opportunity
for plaintiffs to pursue an inverse condemnation claim if a
variance were to be sought and denied.
Plaintiffs appealed both decisions, and the Appellate
Division reversed in an unpublished opinion. The panel held
that the Ordinances were invalid as applied to plaintiffs
because “the downzoning is not required to serve the stated
purposes of the [O]rdinances and does not reflect reasonable
consideration of existing development in the areas where the
subject property is located.” The panel noted that “[t]he
16
subject property does not contain any environmentally distinct
features such as wetlands, floodplains, steep slopes, or open
waters. There are no threatened or endangered species located
on the subject property and no past sightings have occurred.”
The panel further reasoned that a broad interpretation of
“habitat” in a case under the Freshwater Wetlands Protection Act
was irrelevant to the case at bar.
Additionally, the Appellate Division stated that the
Township could not rely on the PA-5 designation of the property
to justify the Ordinances because “the State ‘[P]lan is not
intended to validate or invalidate any municipal code or zoning
ordinance,’” citing Mount Olive Complex v. Township of Mount
Olive, 340 N.J. Super. 511, 541 (App. Div. 2001) (alteration in
original). The panel concluded that “[i]n view of the nearby
residential development and the absence of any significant
environmental constraints upon development, the limitation of
potential future residential development of the subject property
to one unit per twenty acres is arbitrary and unreasonable.”
Because the panel concluded that the Ordinances were invalid as
applied to plaintiffs, it did not reach plaintiffs’ inverse
condemnation claim.
We granted the Township’s petition for certification. 217
N.J. 285 (2014). We also granted the motions of the Pacific
Legal Foundation (Pacific) and the New Jersey Builders
17
Association (NJBA) to participate as amici curiae.
II.
A.
The Township maintains that the Appellate Division erred by
failing to consider that the Ordinances were part of a
comprehensive scheme for establishing a town center, protecting
the Township from sprawl and, in a coordinated fashion,
preventing the destruction of contiguous areas of inter-related
and undeveloped sensitive natural resources. The Township
argues that the EC district -- including plaintiffs’ property,
which is upland and contiguous to land comprising a
comprehensive coastal ecosystem -- represents, as found by DEP,
“the last, largely undeveloped tracts of forest in the Township
east of the [Parkway] and west of Route 9.” The Township
asserts that applying the Ordinances to plaintiffs’ property is
consistent with the Township's goal of preventing habitat
fragmentation in order to maintain coastal ecosystems, of which
plaintiffs’ property is an integral part. The Township also
contends that the Appellate Division based its decision on an
excessively narrow reading of its own decision in In re Adoption
of N.J.A.C. 7:15-5.24(b) & N.J.A.C. 7:15-5.25(e), supra, 420
N.J. Super. 552.
Plaintiffs contend that the inclusion of the subject
property in the EC district is unreasonable because the subject
18
property has no environmentally sensitive characteristics.
Plaintiffs maintain that the subject property “does not contain
any open waters, wetlands, floodplains, steep slopes, or DEP
documented [threatened and endangered species] habitat[s].”
They contend that the Township “must adequately justify the
severe development restrictions placed upon the [s]ubject
[p]roperty via the EC [district] by pointing to a concrete,
environmentally sensitive characteristic present on the
[s]ubject [p]roperty, and not mere speculation.”
Plaintiffs also assert that they have “no administrative
remedy to exhaust because any attempt to deviate from the EC
[district]’s requirements will become an exercise in futility.”
According to plaintiffs, they cannot establish “the positive or
negative criteria necessary to obtain relief from the EC
[district],” the Township’s Board of Adjustment does not have
the authority to grant a variance, and a variance would amount
to illegal zoning by variance under N.J.S.A. 40:55D-70. Hence
plaintiffs claim exemption from any duty to exhaust
administrative remedies.
B.
The amici support plaintiffs’ arguments. Pacific argues
that the downzoning of the subject property unconstitutionally
forces plaintiffs to “bear the burden of protecting open space
on behalf of the entire community.” Pacific maintains that the
19
Township must compensate plaintiffs because it failed to
demonstrate that the Ordinances were actually concerned with
protecting environmentally sensitive areas, and contends that
the desire to maintain open space is an insufficient
justification to render a zoning ordinance reasonable. Pacific
also asserts that plaintiffs are not required to seek a variance
or otherwise exhaust their administrative remedies.
Similarly, NJBA argues that a private landowner must be
paid for limiting property to an open space use; the desire to
preserve open space alone is not a proper justification to
support a zoning ordinance so restrictive of private property.
Further, NJBA contends that “the creation of . . . open space
opportunities cannot come in the name of protecting
environmental features and/or conditions that do not exist on a
given property,” and maintains that plaintiffs’ property does
not have the environmental features that the Ordinances claim to
preserve or protect. NJBA also contends that the Township’s
reliance on its efforts to seek town-center status and plan
endorsement from the State is misplaced; the State Plan, and
related general-planning guides, are not sound bases for
supporting the validity of a zoning ordinance. Finally, NJBA
argues that plaintiffs are not required to exhaust their
administrative remedies by seeking a variance before seeking
relief from the Ordinances in court.
20
III.
The power to zone is fundamentally an exercise of the
State’s police power. Taxpayers Ass’n of Weymouth Twp. v.
Weymouth Twp., 80 N.J. 6, 20 (1976), appeal dismissed and cert.
denied, 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977).
The 1947 New Jersey Constitution vested that power in the
Legislature and authorized the Legislature to delegate the
zoning power to municipalities. N.J. Const. art. 4, § 6, ¶ 2;
see Rumson Estates, Inc. v. Mayor of Fair Haven, 177 N.J. 338,
349 (2003). The Legislature has delegated zoning power to
municipalities with the enactment of the MLUL, N.J.S.A. 40:55D-1
to -163, “a comprehensive statute that allows municipalities to
adopt ordinances to regulate land development ‘in a manner which
will promote the public health, safety, morals and general
welfare’ using uniform and efficient procedures.” Rumson
Estates, supra, 177 N.J. at 349 (quoting Levin v. Twp. of
Parsippany-Troy Hills, 82 N.J. 174, 178-79 (1980)).
Courts recognize certain well-established principles when
adjudicating a challenge to a zoning ordinance’s validity.
Most fundamental is that a zoning ordinance is
“insulated from attack” by a presumption of
validity. The party challenging the ordinance
bears the burden of overcoming that
presumption. Reviewing courts should not be
concerned over the wisdom of an ordinance. If
debatable, the ordinance should be upheld.
[Id. at 350-51 (citations omitted).]
21
That said, an ordinance must not be inconsistent with state or
federal constitutional requirements or other preempting legal
authority. Id. at 351. Furthermore, a zoning ordinance must
conform to MLUL requirements and further MLUL goals. See Rumson
Estates, supra, 177 N.J. at 351 (citing William M. Cox, New
Jersey Zoning and Land Use Administration, § 37-4 at 837
(2003)); Riggs, supra, 109 N.J. at 611; see also N.J.S.A.
40:55D-2. To facilitate judicial review of challenges to
municipal zoning ordinances, Riggs established a four-part,
objective test for an ordinance’s validity:
First, the ordinance must advance one of the
purposes of the [MLUL] as set forth in
N.J.S.A. 40:55D-2. Second, the ordinance must
be substantially consistent with the land use
plan element and the housing plan element of
the master plan or designed to effectuate such
plan elements, unless the requirements of that
statute are otherwise satisfied. Third, the
ordinance must comport with constitutional
constraints on the zoning power, including
those pertaining to due process, equal
protection, and the prohibition against
confiscation. Fourth, the ordinance must be
adopted in accordance with statutory and
municipal procedural requirements.
[Id. at 611-12 (citations and internal
quotation marks omitted).]
Guided by that test and the well-established principles
applicable to challenges to municipal zoning ordinances, we turn
to the Ordinances involved in this matter.
IV.
22
A.
In this appeal from a non-jury trial, we give deference to
the trial court that heard the witnesses, sifted the competing
evidence, and made reasoned conclusions. See Rova Farms Resort
v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Reviewing
appellate courts should “not disturb the factual findings and
legal conclusions of the trial judge” unless convinced that
those findings and conclusions were “so manifestly unsupported
by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice.” Id.
at 484 (citation and internal quotation marks omitted); see,
e.g., Seidman v. Clifton Sav. Bank, 205 N.J. 150, 169 (2011)
(stating same). Conclusions of law are subjected to the normal
de novo review on appeal. See Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Here, the trial court determined that the Ordinances’
creation of the EC district, and the inclusion of plaintiffs’
property in the newly zoned EC district, was a valid exercise of
zoning power. The trial court made a number of important
findings in reaching its conclusion.
In examining their overall validity, the trial court found
that the Ordinances represented the culmination of a
comprehensive land-use planning process that included a makeover
of the Township’s Master Plan. In the words of the trial court,
23
the Township engaged in a “global and comprehensive undertaking”
to adopt and employ smart growth principles and to create and
obtain the designation of a Waretown Town Center. The trial
court determined that the Township pursued sound land-use
planning objectives when it decided to concentrate development
near the Waretown Town Center while simultaneously preserving
and protecting environmentally sensitive regions on the
periphery of the Township. Specifically, the trial court tied
its findings to the Riggs test and to MLUL goals when assessing
the reasonableness of the Ordinances.
In addressing the four Riggs factors, the court summarily
found that there was no challenge to the fourth factor. That
factor required the Ordinances to be adopted in accordance with
statutory and municipal requirements. The trial court proceeded
to make detailed findings from the record evidence with respect
to the remaining factors:
[As to the first Riggs factor, t]he
Township’s planner Slachetka provided
credible testimony that the [O]rdinances
advanced several purposes of the MLUL. These
purposes included the promotion of smart
growth, prevention of sprawl and provisions
for light, air and open space. Other purposes
advanced included the support for state and
regional planning goals, establishment of
appropriate population densities and the
conservation and preservation of
environmentally sensitive lands with the
development of the Waretown Town Center. [As
to the second Riggs factor, t]he court finds
that the ordinances were “substantially
24
consistent with the Land Use Plan Element and
Housing Plan Element of the Master Plan which
under the Town Center proposal also included
provisions for affordable housing. The
Township planner also provided credible
testimony that satisfied the third criterion
[of the Riggs test] in that the ordinances did
not focus on a single property owner or even
a group of property owners. Slachetka’s
report in evidence listed the ten largest
property owners in the EC [district] with
acreage ranging from 13.17 acres to 292.76
acres. The Township pointed out the property
west of the Parkway within Pinelands
jurisdiction is also restricted to one
dwelling for every 20 acres. The zoning
schemes were part of a comprehensive plan and
planning process which assessed the character
of each of the districts consistent with long-
range smart growth planning policies. This is
evident by virtue of the efforts undertaken by
the Township in its petition for Plan
Endorsement for designation of Waretown as a
“Town Center.”
. . . .
[In sum, t]he court finds that Ocean
Township undertook a deliberative and
comprehensive planning effort that spanned
several years to achieve its desired [M]aster
Plan. The process embraced smart growth and
planning from a local and regional approach at
all levels of government. Ordinance 2006-34
was designed to provide the “foundation for
implementation of the Township’s proposed
Waretown Town Center as well as proposed land
use goals, environmental goals, housing needs,
open space goals, circulation, parking,
design, economic development and utility
infrastructure goals.” As a result, Chapter
18 was amended to include a new Chapter 18-21
entitled “EC Environmental Conservation
District” which limited development in that
district to one residential dwelling for every
20 acres. [T]he EC [d]istrict corresponded to
those environmentally sensitive areas outside
25
of and west of the EC [d]istrict and the
Waretown Town Center, as well as east of the
[Parkway]. The intent of the EC [d]istrict
was to provide the low density environs of the
Center and permit only very low density
residential development for the protection and
conservation of natural resources as a
principle objective.
The trial court’s analysis properly adhered to the Riggs
criteria, and its findings as to each criterion were grounded on
substantial and credible evidence presented. The court’s
factual findings supported its determination that the Ordinances
complied with the MLUL requirement of consistency between zoning
ordinances and a town’s master plan. N.J.S.A. 40:55D-62.
Further, those findings indicated that the Ordinances advanced
the following MLUL goals: “[t]o encourage municipal action to
guide the appropriate use or development of all lands in this
State, in a manner which will promote the public health, safety,
morals, and general welfare,” N.J.S.A. 40:55D-2(a); “[t]o
provide adequate light, air and open space,” N.J.S.A. 40:55D-
2(c); and “[t]o ensure that the development of individual
municipalities does not conflict with the development and
general welfare of neighboring municipalities, the county and
the State as a whole,” N.J.S.A. 40:55D-2(d).
Consistent with its responsibilities in a bench trial, the
court clearly and thoroughly explained the record bases for its
findings and conclusions in this case. We defer to the soundly
26
based determination that all of the Riggs factors were satisfied
and that the challenged Ordinances are valid. Furthermore, the
court found that the Ordinances advanced goals separate and in
addition to the identified MLUL goals. It concluded that the
Ordinances were consistent with the Township’s Master Plan,
planning objectives embodied in the State Plan, and other land-
management and environmental laws and regulations. While the
court did not refer to the latter as justification for finding
the Ordinances reasonable and valid, the Ordinances’ compliance
with such other land-use planning measures neither renders them
invalid under the MLUL nor arbitrary or unreasonable.
B.
The trial court further determined that the Township’s
inclusion of plaintiffs’ property in the EC district, with its
attendant restrictions, was “reasonably related and calculated
to achieve the purposes of the challenged zoning ordinances.”
However, the Appellate Division reached a contrary determination
on plaintiffs’ as-applied challenge, finding that there was no
evidence of threatened or endangered species on the subject
property and that the property lacked specific environmental
constraints, such as “wetlands, flood plains, steep slopes, [or]
open waters.” Those arguments were advanced before the trial
court and rejected; the Appellate Division reversed the trial
court’s judgment on those bases and ordered plaintiffs’ property
27
returned to the zoning it enjoyed before creation of the EC
district.
As to the Appellate Division’s determination based on
plaintiffs’ as-applied challenge, differing reasoning leads us
to reverse the appellate judgment.
The appellate panel employed an overly narrow view of the
Township’s land-use planning goals by insisting that evidence in
the record must show the presence of endangered species or
certain specific environmental conditions on plaintiffs’
property. At trial, Slachetka explained that the Ordinances had
been developed as part of a smart growth approach intended to
concentrate sustainable development in a core region of the
Township and thereby reduce sprawl. Equally important,
restricting development to the concentrated town-center area
would simultaneously protect extended corridors of open space,
identified by the DEP as preciously unique forested coastal
uplands, and it would prevent habitat fragmentation and avoid
the risk of its loss in an environmentally sensitive coastal
area. Thus, contrary to plaintiffs’ and amici’s arguments, the
rezoning that occurred in the Township and that included a
downzoning of plaintiffs’ property cannot fairly be distilled to
the assertion that this constituted the creation of open space
for the sake of having open space in the community.
28
Slachetka’s testimony demonstrated that, in particular, the
entire EC district was formed to “correspond[] to those
environmentally sensitive areas lying outside of and to the west
of the Waretown Town [C]enter and east of the Parkway.” To help
demonstrate the environmentally sensitive nature of the
plaintiffs’ property and related environment surrounding it --
which plaintiffs’ property connected and made contiguous --
Slachetka drew support from DEP’s determination that designating
the proposed Environmentally Sensitive Planning Area “will aid
in the preservation of a large contiguous ecosystem that drains
to Barnegat Bay, a keystone environmental and economic resource
for Southern New Jersey.” See 39 N.J.R. 768(b). As Slachetka
noted, when performing its regulatory approval responsibility as
part of the multi-agency review involved in the Township’s Town
Center planning process, the DEP further concluded that
the delineated community development
boundaries put forth by Ocean Township
encompass existing and planned development and
redevelopment, and recognize the extent of
environmentally sensitive lands and
waterways. The designated Waretown CAFRA Town
Center and changed State Plan Policy Map
designations concentrate the pattern of
coastal residential, commercial and resort
development and better protect vulnerable
coastal uplands and wetlands.
[Ibid.]
Plaintiffs consistently argued that their property
contained neither evidence of any endangered species, nor open
29
waters, wetlands, flood plains, or steep slopes. However, the
record indicates that that was not the justification for the
Township’s objectives as presented to the many reviewing
agencies when achieving Town Center status and adopting its
Ordinances pursuant to MLUL goals. The Township has not
asserted that each and every parcel included in the EC district
is included because it contains evidence of some endangered
species or the specific environmental conditions set forth by
plaintiffs. Nor must it do so in order to justify its planning
objective from an environmental public welfare standpoint.
Plaintiffs’ property’s inclusion in the EC district must be
measured against the Township’s actual objectives in enacting
the Ordinances. The Township planned to create a contiguous
tract, or corridor, of environmentally related, sensitive
coastal uplands in order to preserve and protect coastal habitat
and ecosystems and to provide a buffer for its corresponding
intention to promote smart growth in a sustainable, concentrated
town center. As the DEP approval noted, the protection of
vulnerable coastal uplands is a legitimate environmental-welfare
concern. The Township repeatedly emphasized its broad planning
objective to protect a sensitive coastal ecosystem through the
preservation of large areas of undisturbed, contiguous habitat,
which included plaintiffs’ property. The record developed by
the Township supported that much of the area surrounding the
30
subject property is undeveloped or undevelopable, and that the
land west of the Parkway in the neighboring town is similarly
zoned for residential use, one unit per twenty acres. Those
facts supported the Township’s assertion, and the trial court’s
findings and conclusion, that the property was appropriately
zoned to achieve the goal of promoting smart, sustainable growth
through concentrated development in the Waretown Town Center,
with a robust “green belt” in the outer areas of the Township.
Based on the record, which included Slachetka’s testimony
about the ecosystem of which plaintiffs’ property was a part, as
well as evidence showing that plaintiffs’ property connected and
was related to other undeveloped forested properties that
constituted habitat for endangered snakes and other wildlife,
the trial court acted within its authority when concluding that
designating plaintiffs’ property as part of the EC district was
not arbitrary or capricious.3 We defer to the trial court’s
conclusion that the use and density restrictions placed on the
property by the Ordinances reasonably furthered the goal of
providing “low density environs” outside of the Waretown Town
3 It also bears noting that plaintiffs failed to proffer any
expert evidence to support their claims that habitat differences
should have resulted in different treatment of their property in
the EC district zoning determination, notwithstanding that
plaintiffs bore the burden of proving the Ordinances were
arbitrary and capricious for their inclusion of plaintiffs’
property in the EC district.
31
Center and of permitting “only very low density residential
development for the protection and conservation of natural
resources.”
To the extent that the Appellate Division also found that
the Ordinances were invalid as applied to plaintiffs because
“the downzoning . . . does not reflect reasonable consideration
of existing development in areas where the subject property is
located,” we note the trial court’s reasonable determinations
are entitled to deference and that the zoning Ordinances enjoy
presumptive validity. The record contained support for the
trial court’s rejection of plaintiffs’ request that these
presumptively valid Ordinances be invalidated as applied to them
on this basis. Moreover, we accept and find important in this
analysis that the trial court determined that the Ordinances
were not designed specifically to inhibit development on the
plaintiffs’ property. However, plaintiffs may raise this
argument in a request for relief from the rezoning through a
variance application, the procedure better suited to address
that issue.
C.
It bears emphasizing that this case exemplifies the
salutary effects to be derived from adherence to the doctrine of
exhaustion of administrative remedies. See R. 4:69-5. That
doctrine generally requires landowners to pursue available
32
administrative remedies prior to bringing as-applied challenges
to zoning ordinances.
In this matter, plaintiffs and amici argue that plaintiffs
were not required to exhaust their administrative remedies by
seeking a variance before initiating their as-applied challenge
to the Ordinances. In support, they cite Pheasant Bridge Corp.
v. Township of Warren, 169 N.J. 282 (2001), cert. denied, 535
U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002), in which
this Court invalidated an ordinance as applied to the
plaintiff’s property without requiring the plaintiff to first
seek variance relief. See id. at 294 (stating that there was
“no justification for requiring plaintiff to seek variance
relief”). Despite our conclusion in that case, Pheasant Bridge
should not be read to suggest that a landowner challenging an
ordinance as applied to his or her property is excused from
first exhausting administrative remedies. To the contrary, a
landowner who wishes to challenge the validity of an ordinance
as applied must normally exhaust administrative remedies by
seeking a variance before initiating an action at law.
Rule 4:69-5 imposes a duty to exhaust administrative
remedies before initiating actions at law “[e]xcept where it is
manifest that the interest of justice requires otherwise.” As
previously explained, “the exhaustion of remedies requirement is
a rule of practice designed to allow administrative bodies to
33
perform their statutory functions in an orderly manner without
preliminary interference from the courts.” Brunetti v. Borough
of New Milford, 68 N.J. 576, 588 (1975). Therefore, there is “a
strong presumption favoring the requirement of exhaustion of
remedies.” Ibid. Nonetheless, the requirement of exhaustion is
not absolute and “[e]xceptions are made when the administrative
remedies would be futile, when irreparable harm would result,
when jurisdiction of the agency is doubtful, or when an
overriding public interest calls for a prompt judicial
decision.” N.J. Civil Serv. Ass’n v. State, 88 N.J. 605, 613
(1982) (citing Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79
N.J. 549, 561 (1979)).
This Court has applied those principles to landowner
challenges to the validity of municipal zoning ordinances. See
AMG Assocs. v. Twp. of Springfield, 65 N.J. 101, 109 n.3 (1974)
(“[R]elief should first be sought by way of variance under
N.J.S.A. 40:55-39(d), for in such situations the local
administrative agencies can generally adequately deal with the
problem.”); Bow & Arrow Manor, Inc. v. Town of W. Orange, 63
N.J. 335, 350 (1973); Deal Gardens, Inc. v. Bd. of Trs. of Loch
Arbour, 48 N.J. 492, 497-98, (1967) (“[A] court should
‘ordinarily’ decline to adjudicate the attack upon the ordinance
until the owner has exhausted his remedy before the board of
adjustment.”); Kozesnik v. Twp. of Montgomery, 24 N.J. 154, 183
34
(1957); Conlon v. Bd. of Pub. Works of Paterson, 11 N.J. 363,
369-70 (1953); Fischer v. Twp. of Bedminster, 11 N.J. 194, 206
(1952) (“If the plaintiff is dissatisfied with the application
of the zoning laws to his particular property, he may apply to
the board of adjustment for a variance.”). Specifically, in as-
applied challenges, we have held that landowners generally have
an obligation to exhaust their administrative remedies by first
applying for a variance:
[When a] zoning ordinance is not claimed to be
invalid in its entirety but only to be
arbitrary and unreasonable in its application
to the owner’s land, and relief in that
circumstance may be obtained from a local
board of adjustment, the trial court should
ordinarily decline to adjudicate an attack
upon the ordinance until after the owner has
exhausted his remedy to seek relief from the
local board of adjustment.
[Conlon, supra, 11 N.J. at 370.]
The variance process is particularly well suited to
determining whether an otherwise valid ordinance creates a
hardship as applied to a particular property. Well-respected
land-use commentators have explained the reasons for courts’
adherence to the exhaustion requirement until after completion
of the variance process:
The variance process exists for the very
purpose of determining whether the ordinance,
adopted for legitimate purposes, creates a
hardship when applied to a particular
property. This is central to the entire
structure of the MLUL; that local boards, with
35
their unique perspective on local conditions,
are in the best position to understand how
most reasonably to alleviate the hardships
that arise under an otherwise legitimate
zoning ordinance, in particular cases and
pertaining to particular properties.
Interposing a court’s judgment before allowing
this process to go forward amounts to an
arrogation of power that the [L]egislature has
delegated, through the MLUL, to local
governing units.
[William M. Cox & Stuart R. Koenig, New
Jersey Zoning and Land Use Administration, §
35-5 at 888 (2014).]
Consistent with general exhaustion doctrine, where “past events
or other circumstances make it clear that initial or further
resort to the local administrative process would be futile,” a
landowner may bypass the administrative process and pursue an
as-applied challenge at law. See AMG Assocs., supra, 65 N.J. at
109 n.3. Thus, notwithstanding Pheasant Bridge, supra, 169 N.J.
282,4 landowners challenging the validity of a municipal
ordinance as to their property should normally first seek a
variance in accordance with these principles.
In this case, applying the exhaustion principles
articulated above, plaintiffs should have first sought a
variance before pursuing either an as-applied challenge or an
inverse condemnation claim because none of the exceptions to the
4 In Pheasant Bridge, supra, cessation of the dispute played a
significant role in the procedural handling of the matter and
exhaustion of remedies was not an overt issue in the appeal.
169 N.J. at 294.
36
exhaustion doctrine apply. Indeed, when dismissing plaintiffs’
inverse condemnation action, the trial court specifically
commented that it had no basis for concluding that an
application for administrative relief would be futile. The
Township made similar representations to this Court during oral
argument. Its counsel stated that there is no reason to assume
that any application by plaintiffs for a variance would be an
exercise in futility. In the absence of clear evidence that
administrative relief is foreclosed to plaintiffs, exhaustion of
such relief is the remedy that is best. Thereafter, an inverse
condemnation action will be the appropriate vehicle for relief
to plaintiffs if their application for a variance is for naught.
We recognize that, at the end of the day, plaintiffs may well be
entitled to relief through the variance or inverse condemnation
process.
V.
The judgment of the Appellate Division is reversed and the
judgment of the trial court is reinstated.
CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUSTICE LaVECCHIA’s opinion. JUDGE
CUFF (temporarily assigned) did not participate.
37
SUPREME COURT OF NEW JERSEY
NO. A-55 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
THOMAS GRIEPENBURG and CAROL
GRIEPENBURG,
Plaintiffs-Respondents,
v.
TOWNSHIP OF OCEAN,
Defendant-Appellant,
and
STATE OF NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL
PROTECTION and STATE OF NEW
JERSEY DEPARTMENT OF
COMMUNITY AFFAIRS,
Defendants.
DECIDED January 22, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REINSTATE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) ----------------------- ---------------------
TOTALS 6
39