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Appeals Court: Municipality Cannot Be Forced to Adopt Planning Board Recommendations

What does a governing body do when a municipality’s planning board recommends changes to its master plan?  Does the council have to adopt the changes to the municipal ordinance?  Can the council reject the recommendations?  Or can it simply ignore the planning board altogether?  On January 16, 2015, the Appellate Division’s opinion in in Myers v. Ocean City Zoning Bd. of Adjustment, ___ N.J. Super. ____ (App. Div. 2015),[1] shed some light on these questions.  In short, the planning board’s recommendations need to be taken seriously, but do not necessarily need to be adopted in all situations.

One section of Ocean City, New Jersey is a designated Beach and Dune (“B & D”) Zone.  Residential and commercial uses are prohibited in the B & D Zone by the municipal ordinance.  However, the Zone contains six residences: pre-existing, non-conforming uses.  Plaintiffs in Myers owned two of the affected residences and had been denied variances by the Board of Adjustment in 2011 when they sought to add a new deck, several roof sections, and dormers to one of the houses.  After the denial, Plaintiffs filed an action in lieu of prerogative writ against the Board of Adjustment and the City.

Then, in a parallel development, the Planning Board issued a report in October 2012 recommending certain changes to the City’s Master Plan.  One proposed change to the B & D Zone was to ease restrictions on the six homes by classifying them as “conditional uses,” rather than prohibited uses.  This would have made it far easier for the homeowners to get approvals for modifications to their properties, or even for rebuilding if they suffered weather-related damage.

Unfortunately for the Plaintiffs, the Council took no action to adopt the Planning Board’s proposal into the City’s zoning ordinance.  This inspired the Plaintiffs to amend their complaint by adding a count against the City.  Plaintiffs requested an order that would compel the Council to (a) adopt the change to the ordinance, or (b) hold a hearing and affirmatively reject the proposal.  The trial court granted the requested relief on December 6, 2013, requiring the City to take one of those steps within ninety-five days.

On appeal by the City, the Appellate Division was faced with a question: Does the MLUL require a City to “affirmatively” respond to its Planning Board’s proposed Master Plan changes—either by adopting the change, or explicitly rejecting it?  The Court looked at the language of New Jersey’s Municipal Land Use Law (“MLUL”), N.J.S.A. 40:55D-62(a), in detail.

In a fifteen-page published opinion, Judge Ostrer, joined by Judges Messano and Sumners, reversed the trial court’s order and remanded the case to the trial court.  The Court held that the simple issuance of a Planning Board’s reexamination report, even if it involves major changes to the Master Plan, does not itself compel the Council to take any action.  Rather, the relevant sections of the MLUL provide that governing bodies that do adopt or amend an ordinance must adopt language “‘substantially consistent’ with their master plans’ land use and housing plan elements, or ‘designed to effectuate such plan elements.’”  If the changes are not consistent with the master plans, governing bodies must pass the change by majority of the full membership, and set forth their reasons by resolution, and in minutes.  A municipal ordinance’s validity can be attacked if it is inconsistent with the master plan, but proposed changes to the master plan do not themselves compel the governing body to take action.

So, what does this decision mean for New Jersey’s municipal planning boards and governing bodies?  The Court’s decision indicates that planning boards and master plans will remain important, and governing bodies should closely monitor their municipal ordinances to assure consistency with those plans.  Unless the municipal body has rejected the proposed changes by full vote and set forth reasons, an inconsistent ordinance will always be vulnerable to attack.  But the simple passage of a new proposed master plan does not itself compel any action by a governing body.

The attorneys at Lieberman & Blecher are well-versed in land use law, and have significant experience guiding clients through the complexities of New Jersey’s MLUL.  As always, we will continue to diligently monitor all developments in this area.

 


[1] 2015 N.J. Super. LEXIS 11; Docket No. A-2568-13

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