Posted by: Patricia Salkin | February 12, 2015

NJ Appeals Court Holds Statute Did Not Require a Governing Body to Affirmatively Act in Response to a Master Plan Recommendation

The City of Ocean City appealed 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. 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. At issue was a proposed zoning change affecting the status of six residential properties in Ocean City’s Beach and Dune Zone (B & D Zone. The proposal was the third of twelve master plan amendments recommended in the Planning Board’s October 17, 2012, Master Plan Reexamination Report.

At the outset the court noted that nothing in the plain language of section 62(a) required a governing body to affirmatively act in response to a reexamination report; the statute merely imposes conditions upon a governing body when it decides to act. Therefore, 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, but the statute does not expressly require action. Instead the statute requires a majority vote and a statement of reasons only if the governing body thereafter adopts an inconsistent ordinance or amendment. Thus, the court found that 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. Accordingly, the court 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, or to conduct a hearing at which it would affirmatively reject the change.

Myers v Ocean City Zoning Board of Adjustment, 2014 WL 7565888 (1/16/2015)

The opinion can be accessed at: http://www.judiciary.state.nj.us/opinions/a2268-13.pdf


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