The Effect of a Master Plan Reexamination Report

Myers v. Ocean City Bd. of Adj., 439 N.J. Super. 96 (App. Div. 2015).  This opinion by Judge Ostrer, issued last Friday, addresses N.J.S.A. 40:55D-62(a), a provision of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (“MLUL”).  The issue, a purely legal one that was subject to the de novo standard of review, was whether a governing body, when presented with a planning board’s reexamination report regarding the municipality’s master plan, must either adopt an ordinance consistent with the recommendations contained in that reexamination report or affirmatively reject the changes after a hearing.  Plaintiffs were homeowners who would have benefited from a zone change that was one of a number of proposals contained in a reexamination report that Ocean City’s planning board presented to the municipal governing body.  Ocean City’s governing body took no action in response to that proposed zone change and certain others, though it did adopt some other proposals contained in the report.  The Law Division agreed with plaintiffs that the governing body was required either to adopt an ordinance embodying the proposed zone change or reject the change after a public hearing.  The Appellate Division disagreed and reversed that ruling.

Noting that fulfilling legislative intent and remaining faithful to statutory language represents the essence of statutory interpretation, Judge Ostrer began with the language of section 62(a).  “[N]othing in the plain language of section 62(a) requires a municipal governing body to affirmatively act in response to a reexamination report.”  Instead, if the governing body chooses to adopt or amend an ordinance (and section 62(a) makes that optional, using “may” rather than “shall,” as Judge Ostrer noted), “it must do so only after adoption of a master plan,” as section 62(a) states.  That section goes on to say that all provisions of any ordinance or amendment the governing body chooses to adopt “shall … be substantially consistent” with the master plan’s land use and housing plan elements or “designed to effectuate such plan elements.”  But that language is subject to a proviso that allows the adoption of a zoning ordinance or amendment “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 upon a vote of a majority of the full authorized membership of the governing body, and with reasons for that action recorded in the governing body’s minutes.

Judge Ostrer concluded that section 62(a) “does not expressly require action” in response to a reexamination report.  Only when a governing body affirmatively adopts a zoning ordinance or amendment that is inconsistent with the master plan is a majority vote and statement of reasons required.  Quoting Victor Recchia Residential Const., Inc. v. Cedar Grove Bd. of Adj., 338 N.J. Super. 242 (App. Div. 2001), Judge Ostrer stated that “[t]he plain language of the 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.”  The Law Division had noted that language of Recchia but had considered it non-binding dictum.  Judge Ostrer disagreed that the statement was dictum, but noted in any event that just as the Appellate Division is bound by “carefully considered dictum from the Supreme Court,” so too “a trial court should be bound by similar pronouncements by our court.”

Finally, Judge Ostrer observed that “[i]f 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 [MLUL].”  Instead, the Legislature did nothing more than impose conditions (majority vote and statement of reasons) that applied only if a governing body chose to act.

Judge Ostrer reminded everyone that if a governing body chooses not to act in response to a master plan revision, “it does so at its peril.”  Plaintiffs could still argue that Ocean City’s zoning ordinance is not “substantially consistent” with the master plan, although “a governing body’s determination that its ordinance is substantially consistent is entitled to great weight and deference.”  The case was remanded to the Law Division without prejudice to plaintiffs’ right to argue that Ocean City’s zoning ordinance is invalid as not “substantially consistent” with the master plan due to the governing body’s failure to adopt one or more of the changes proposed in the reexamination report.