John E. Myers, Trustee, and Diane D. Myers, Trustee v. Ocean

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2568-13T2
JOHN E. MYERS, TRUSTEE, and
DIANE D. MYERS, TRUSTEE,
APPROVED FOR PUBLICATION
Plaintiffs-Respondents,
January 16, 2015
v.
APPELLATE DIVISION
OCEAN CITY ZONING BOARD OF
ADJUSTMENT,
Defendant-Respondent,
and
CITY OF OCEAN CITY,
Defendant-Appellant.
______________________________
Argued September 16, 2014 – Decided January 16, 2015
Before Judges Messano, Ostrer and Sumners.
On appeal from the Superior Court of New
Jersey, Law Division, Cape May County,
Docket No. L-381-11.
Dorothy F. McCrosson argued the cause for
appellant (McCrosson & Stanton, P.C.,
attorneys; Ms. McCrosson, on the briefs).
William R. Serber argued the cause for
respondents John E. Myers and Diane D.
Myers, Trustees (Serber Konschak, LLP,
attorneys; Mr. Serber, of counsel; James E.
Moore, on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
On leave granted, 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. Construing N.J.S.A. 40:55D-62(a), the
trial court concluded that a governing body must adopt an
ordinance consistent with a change proposed in a reexamination
report, or the governing body must affirmatively reject the
change after a hearing. We agree with the City that the statute
does not require a 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 plan elements. We therefore reverse.
I.
The material facts are undisputed. At issue is a proposed
zoning change affecting the status of six residential properties
in Ocean City's Beach and Dune Zone (B&D Zone). The proposal is
the third of twelve master plan amendments recommended in the
Planning Board's October 17, 2012, Master Plan Reexamination
Report (2012 Report). According to the 2012 Report, residential
and commercial uses were prohibited in the B&D Zone, which has
existed since 1988. The only permitted uses pertained to beach
and water recreation, flood prevention, and the maintenance of
open space. Consequently, the six residences, which pre-dated
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the zone's creation, became non-conforming uses and structures.
The Planning Board noted that the owners were thereby prohibited
from expanding their homes, or rebuilding them in the event of a
destructive storm, unless they obtained a use variance. The
Planning Board proposed to deem the residential properties
conditional uses, and recommended several conditions designed to
assure that the residences did not interfere with the flood
preventative functions of the zone.
The City adopted several ordinances in 2012 and 2013 to
implement various changes proposed in the 2012 Report unrelated
to the B&D Zone. Prior to final adoption of these ordinances,
the City obtained the Planning Board's consistency review,
pursuant to N.J.S.A. 40:55D-64. However, the City took no
action specifically regarding the proposed B&D Zone change.
Plaintiffs John E. and Diane D. Myers own two of the six
affected residences — 19 and 21 Beach Road — which lie between the
road and ocean. They purchased the homes in 2010 and 2009,
respectively, when the homes were already deemed non-conforming
uses. In 2011, they sought a variance from the Ocean City Zoning
Board of Adjustment to enable them to expand the residence at 19
Beach Road. Plaintiffs sought to add a 302-square-foot deck,
construct roofs over existing decks, and construct four dormer
additions providing 120 square feet of head room.
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The Zoning Board denied the variance in May 2011. Among
other reasons, it found that expanding and extending the useful
life of a non-conforming structure would violate the purposes of
the B&D Zone. In 2011, plaintiffs filed an action in lieu of
prerogative writ against the Zoning Board and the City.
Relevant to this appeal is an amended count of plaintiffs'
complaint, which they sought to file after the Planning Board
issued the 2012 Report. In the new count, plaintiffs requested
an order compelling the City to adopt the B&D Zone change, or to
endorse, affirmatively, maintenance of the zoning ordinance
notwithstanding the proposed change. The court thereafter
granted plaintiffs the requested relief.1
By order entered December 6, 2013, the court required the
City to: "[a]mend the zoning ordinance to conform with 'Master
Plan Amendment #3: Beach and Dune' in the master plan re-
examination report[,]" or "[h]old a hearing as required under
1
The procedural setting of the court's determination on the
merits is unclear. The only formal motion before the court was
plaintiffs' motion to amend their complaint. The City opposed
the motion on the ground the amendment lacked merit. Oral
argument on the motion to amend pertained to the substantive
merits of the proposed cause of action. The court acknowledged
that if the amendment were granted, the City would thereafter
move to dismiss, renewing the arguments it presented in opposing
the motion to amend. In a written decision issued several weeks
after oral argument, the court both granted the motion to amend,
and determined the merits of the added cause of action. It is
uncertain from the record whether the parties, after oral
argument, separately consented to a decision on the merits.
4 A-2568-13T2
N.J.S.A. 40:55D-62(a) to permit the zoning ordinance to remain
inconsistent with the master plan." The court required the City
to comply within ninety-five days. We thereafter granted the
City's motion for leave to appeal. The trial court then entered
a stay of its order with the parties' consent.
II.
At issue is the meaning of N.J.S.A. 40:55D-62(a). We
review de novo the trial court's interpretation. See Perez v.
Zagami, LLC, 218 N.J. 202, 209 (2014) (stating that an issue of
statutory construction is a legal issue subject to de novo
review); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995) ("A trial court's interpretation of the law
and the legal consequences that flow from established facts are
not entitled to any special deference.").
The principles governing statutory interpretation are well-
settled. Our goal is to determine and effectuate the
Legislature's intent. See, e.g., In re Kollman, 210 N.J. 557,
568 (2012). We begin with the statutory language. Ibid. "We
ascribe to the statutory words their ordinary meaning and
significance, and read them in context with related provisions
so as to give sense to the legislation as a whole." DiProspero
v. Penn, 183 N.J. 477, 492 (2005) (citations omitted); see also
Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572
5 A-2568-13T2
(2012) (stating that a provision "should not be read in
isolation, but in relation to other constituent parts so that a
sensible meaning may be given to the whole of the legislative
scheme"). If the language is clear, our task is complete; if it
is not, we may turn to extrinsic evidence. Kollman, supra, 210
N.J. at 568.
The provision in dispute addresses a governing body's
authority to adopt a zoning ordinance, and its conformity with
the municipality's master plan:
The governing body may adopt or amend a
zoning ordinance relating to the nature and
extent of the uses of land and of buildings
and structures thereon. Such ordinance
shall be adopted after the planning board
has adopted the land use plan element and
the housing plan element of a master plan,
and all of the provisions of such zoning
ordinance or any amendment or revision
thereto shall either 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; provided that the governing body
may adopt a zoning ordinance or amendment or
revision thereto which in whole or part is
inconsistent with or not designed to
effectuate the land use plan element and the
housing plan element, but only by
affirmative vote of a majority of the full
authorized membership of the governing body,
with the reasons of the governing body for
so acting set forth in a resolution and
recorded in its minutes when adopting such a
zoning ordinance; and provided further that,
notwithstanding anything aforesaid, the
governing body may adopt an interim zoning
ordinance pursuant to subsection b. of
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section 77 of P.L.1975, c. 291 [N.J.S.A.
40:55D-90].
[N.J.S.A. 40:55D-62(a).]
We agree with the City that nothing in the plain language
of section 62(a) requires a governing body to affirmatively act
in response to a reexamination report. Rather, the statute
imposes conditions upon a governing body when it decides to act.
The first sentence of the provision makes it clear that adoption
of an ordinance or an amendment is permissive. "The governing
body may adopt or amend a zoning ordinance." Ibid. (emphasis
added). The use of the word "may" generally conveys that an
action is permissive, not mandatory. See, e.g., Harvey v. Bd.
of Chosen Freeholders, 30 N.J. 381, 391 (1959) (stating that,
absent legislative intent to the contrary, use of "may"
indicates that a provision is permissive, and use of "shall" or
"must" reflects that a provision is mandatory).
If the governing body chooses to adopt or amend an
ordinance, it must do so only after adoption of a master plan.
That is the import of the command in the second sentence that
"[s]uch ordinance shall be adopted after the planning board has
adopted the land use plan element and the housing plan element
of a master plan. . . ." N.J.S.A. 40:55D-62(a) (emphasis
added). Furthermore, if the governing body decides to adopt or
amend an ordinance, then — subject to a proviso — "all of the
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provisions of such zoning ordinance or any amendment or revision
thereto shall . . . be substantially consistent" with the master
plan's land use and housing plan elements, or "designed to
effectuate such plan elements." Ibid. (emphasis added).
The proviso allows the governing body to adopt an ordinance
that is inconsistent with those master plan elements. The
governing body "may adopt" such an ordinance if it does so by
majority vote of the governing body's full authorized membership
"with the reasons . . . for so acting set forth in a resolution
and recorded in its minutes . . . ." Ibid. (emphasis added).
Under the statutory scheme requiring reexamination of the
master plan, a pre-existing zoning ordinance may become
inconsistent with one aspect of a reexamination report.
However, the statute does not expressly require action. It
requires a majority vote and a statement of reasons only if the
governing body thereafter adopts an inconsistent ordinance or
amendment. In other words, only when a governing body acts
affirmatively to adopt a zoning ordinance or amendment that is
inconsistent with the then-existing master plan is the majority
vote and statement of reasons requirement triggered.
We find no basis in the statute's plain language for
plaintiffs' contention that a governing body must affirmatively
provide reasons for its inaction. "The plain language of the
8 A-2568-13T2
statute does not require the governing body to justify the
inconsistency by majority vote and a statement of reasons where
the governing body has not affirmatively changed the zoning
ordinance by adoption, amendment or revision." Victor Recchia
Residential Constr., Inc. v. Zoning Bd. of Adjustment of Cedar
Grove, 338 N.J. Super. 242, 250-51 n.3 (App. Div. 2001);2 see
also Cox & Koenig, N.J. Zoning & Land Use Administration, § 34-
2.2 at 776 (2014) ("There is no clear statutory provision
dealing with the failure of the governing body to amend or adopt
ordinances in response to significant changes in a new Master
Plan or re-examination report that require such amendment or
adoption.").
We do not endorse Cox & Koenig's subsequent comment, "It
would seem that an unreasonable delay in adopting such an
ordinance change or in adopting a resolution stating the reasons
2
The trial court deemed this statement to be dictum, and opined
it was therefore not bound by it. We disagree it was dictum, as
it was germane to the primary issue in the case — whether the
municipality's zoning ordinance was substantially consistent
with the master plan. See State v. Rose, 206 N.J. 141, 183
(2011) (stating that "matters in the opinion of a higher court
which are not decisive of the primary issue presented but which
are germane to that issue . . . are not dicta, but binding
decisions of the court") (internal quotation marks and citation
omitted). In any event, dictum is intended to provide guidance
to courts that may address an issue in the future. Just as we
are bound by "carefully considered dictum from the Supreme
Court," State v. Breitweiser, 373 N.J. Super. 271, 283 (App.
Div. 2004), certif. denied, 182, N.J. 628 (2005), a trial court
should be bound by similar pronouncements by our court.
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for not doing so should create, at some point in time, a
presumption that the ordinance is invalid." Ibid. We find no
basis in the statute or the Legislature's intent to reverse the
usual presumption of validity of municipal zoning ordinances.
See Riggs v. Twp. of Long Beach, 109 N.J. 601, 610-11 (1988);
Victor Recchia, supra, 338 N.J. Super. at 249. However, as
discussed below, a governing body's inaction may render its
zoning ordinance susceptible to a general challenge that it is
substantially inconsistent with the master plan, and therefore
invalid.
The trial court's order contemplates that the governing
body adopt one of two alternatives: amend its zoning ordinance
to conform to the master plan's proposed B&D Zone change; or
endorse the status quo with a statement of reasons adopted by a
required majority vote. However, the statute simply does not
require a governing body to endorse the status quo preceding a
master plan revision. The statute ties the adoption of reasons
to the adoption of an ordinance. "Plainly read, the statute
requires that the reasons for inconsistency be established when
the inconsistent ordinance is adopted." E. Mill Assocs. v. Twp.
Council of E. Brunswick, 241 N.J. Super. 403, 407 (App. Div.
1990). In East Mill, we held that a resolution adopted
approximately one month after passage of an ordinance was
10 A-2568-13T2
insufficient, because the resolution was not contemporaneous
with passage of the ordinance. Id. at 406-07.
If the Legislature had intended to require a governing body
to respond to a master plan change, it presumably would have
imposed deadlines for such action, as it has in so many other
instances in the Municipal Land Use Act (MLUL), N.J.S.A. 40:55D-
1 to -163. See, e.g., N.J.S.A. 40:55D-17(c) (noting that if the
governing body fails to hold a hearing and render a decision in
an appeal of a zoning board decision within ninety-five days,
the decision will be deemed affirmed); N.J.S.A. 40:55D-26(a)
(stating that failure of the planning board to transmit its
consistency report to the governing body within thirty-five days
relieves the governing body from certain requirements under the
subsection). Instead, the Legislature imposed conditions if the
governing body chose to act: by requiring substantial
consistency of zoning amendments; or approval by a majority of
the full membership of amendments that are inconsistent with the
plan, along with a statement of reasons.
We recognize the important role of planning in the MLUL.
See Riggs, supra, 109 N.J. at 618-22 (Handler, J., concurring);
Willoughby v. Wolfson Grp., Inc., 332 N.J. Super. 223, 229 (App.
Div.) ("It is apparent that the MLUL gives the master plan a
central role in a municipality's decisions regarding the use and
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development of the land within its jurisdiction."), certif.
denied, 165 N.J. 603 (2000). The role is implemented in part by
the mandated reference of proposed zoning ordinances to a
planning board, and the consistency requirement embodied in
section 62(a). See Riya Finnegan LLC v. Twp. Council of S.
Brunswick, 197 N.J. 184, 192 (2008) ("Although the Master Plan
itself has no independent force, the requirement that the zoning
ordinance be 'substantially consistent' with it connotes a
recognition by our Legislature of the importance of
comprehensive planning.").
Nonetheless, the MLUL does not mandate absolute consistency
between a zoning ordinance and a master plan. "[T]he concept of
'substantially consistent' permits some inconsistency, provided
it does not substantially or materially undermine or distort the
basic provisions and objectives of the Master Plan." Manalapan,
supra, 140 N.J. at 384. Moreover, a governing body's
determination that its ordinance is substantially consistent is
entitled to great weight and deference. Id. at 383. In
Manalapan, the Court deferred to a governing body's judgment
that a zoning ordinance that banned a Home Depot and stores like
it from a particular zone was not inconsistent with the
municipality's master plan. Ibid.
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Our reading of section 62(a) does not undermine the
Legislature's broader purpose in the MLUL to advance the role of
planning. Nor does it render a master plan reexamination a
nullity. If a governing body chooses not to act in the wake of
a master plan revision, it does so at its peril; its zoning
ordinance must nonetheless remain "substantially consistent"
with the master plan. An ordinance may survive although it
falls short of that standard only if it is approved in
conformity with section 62(a) — that is, adoption by majority
vote of the full membership, and a statement of reasons.
In Victor Recchia, the plaintiff asserted that a pre-
existing ordinance was rendered invalid because it had become
inconsistent with the new master plan. Victor Recchia, supra,
338 N.J. Super. at 245, 248-49. We affirmed the trial court's
determination that the ordinance remained substantially
consistent with the master plan. Id. at 252. In so doing, we
recognized that if the inconsistency between the prior ordinance
and new plan were more dramatic, then the ordinance would have
been rendered invalid. Id. at 250-51.
Here, an existing zoning ordinance was in
effect when a new master plan was adopted in
1991. The governing body did not change the
zoning ordinance to reflect the new land use
element. This caused an inconsistency
between the master plan and the ordinance
with respect to the split lots in the area
involved in this litigation. Hence, the
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question is whether the ordinance is
substantially consistent with the master
plan.
[Ibid.]
As noted above, we went on to address the precise statutory
interpretation presented by plaintiffs, and found that the
statute's plain language did not "require the governing body to
justify the inconsistency" resulting from its inaction in the
face of a revised master plan. Id. at 250-51 n.3.
We therefore reverse the trial court's order compelling the
governing body to adopt an amendment to the zoning ordinance to
conform with the proposed B&D Zone change, or to conduct a
hearing at which it would affirmatively reject the change. We
do so without prejudice to any claim by plaintiffs that the
City's zoning ordinance is invalid because it is not
substantially consistent with the master plan, in light of the
failure to adopt the B&D Zone change, and any other remaining
but unadopted changes proposed in the 2012 Report.
Reversed and remanded. We do not retain jurisdiction.
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