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Great Atlantic and Pacific Tea Co., Inc. v. Borough of Point Pleasant

Decided: August 4, 1994.


On certification to the Superior Court, Appellate Division.

Pollock, Clifford, O'Hern, Garibaldi, Stein, Handler


The opinion of the Court was delivered by


A section of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-62.B (section 62.b), prohibits the adoption or amendment of a zoning ordinance by referendum. The Law Division held that the prohibition includes a non-binding referendum. In an unpublished opinion, the Appellate Division reversed. We granted the petition for certification of The Great Atlantic and Pacific Tea Company, Inc. (A&P), 134 N.J. 560, 636 A.2d 518 (1993), and now affirm the judgment of the Appellate Division. We hold that the prohibition in section 62.b against the adoption of a zoning ordinance by referendum does not include a non-binding referendum.


On December 22, 1992, the Point Pleasant Borough Council (the Borough or the Council) adopted Ordinance 92-70, an amendment to its zoning ordinance that permitted retail uses in Town Center, a section of Point Pleasant. Before that amendment, the zoning ordinance forbade such uses in Town Center. According to the Master Plan, the purpose of Town Center is to "allow either the establishment of low-intensity, nonretail commercial uses such as offices, or in the alternative, to look for the acquisition of all or part of the remaining vacant land to provide a more intensive area for public purposes."

After the 1992 amendment, A&P sought to establish a supermarket in Town Center. It purchased a tract of land and submitted a general concept plan to the Planning Board (the Board). A&P revised the plan, and the Council amended several bulk requirements to accommodate A&P's plan. A&P then filed an application for site plan approval with the Board, which deemed the application complete in September 1993.

In the interim, on July 20, 1993, the Council adopted a resolution that requested the Ocean County Clerk to place on the November general-election ballot a "question" concerning the repeal of Ordinance 92-70. The question and interpretive statement read:


Should the Borough Council amend the Borough Zoning Ordinances to prohibit retail uses, in the Town Center Zone?


The Borough Council has amended the Borough Zoning Ordinances to allow for retail uses in the Town Center Zone. If the zoning, as currently amended, remains retail[,] uses such as an A&P supermarket will be allowed as a permitted use in the Town Center Zone.

On September 16, 1993, A&P filed a complaint in the Law Division to enjoin placing the question on the November general-election ballot. A&P contended that the proposed public question was a prohibited referendum. The Borough answered that section 62.b did not apply because it concerned only referenda that

were binding, not those that were non-binding public questions. At the hearing before the Law Division, the Borough offered to revise the wording of the question to clarify that an affirmative vote would mean that the Borough would consider amending the ordinance, not that it was bound to do so.

The Law Division ruled for A&P, determining that the resolution was "an [ordinance], an amendment or revision to the existing zoning ordinance," and rejected the Borough's offer to revise the question. The court further determined that section 62.b did not distinguish between binding and non-binding referenda and that the MLUL specifically provided alternative means for public comment. Finally, the court held that a municipality's zoning power was a delegation of the State's police power and that the Borough could not delegate that power to the public through a referendum. Consequently, the Law Division declared the resolution invalid and enjoined the county clerk from placing the question on the ballot.

On the Borough's application for emergent relief, the Appellate Division reversed and remanded the matter to the Law Division for entry of an order denying A&P relief. In a brief statement accompanying the order, the Appellate Division stated that section 62.b did not prohibit a municipality from submitting a non-binding question to voters pursuant to N.J.S.A. 19:37-1. The court stated that section 62.b applied only to binding referenda and that non-binding referenda permitted by N.J.S.A. 19:37-1 are "a better means for the governing body to gather a true representation of public sentiment" than public meetings required by the MLUL. We denied A&P's application for a stay, and the election proceeded.

By a vote of 3,789 to 2,078, the voters of Point Pleasant expressed their preference that the Council amend the zoning ordinance to prohibit commercial retail uses such as A&P's supermarket in Town Center. One week later, on November 9, 1993, the Council adopted on first reading Ordinance 93-30, which amended the zoning ordinance to prohibit such uses. The Planning Board declined to make recommendations about the ordinance

because it believed that such action would constitute a conflict of interest with its duty to review A&P's site plan. On December 21, 1993, the Council passed the ordinance on second reading, and the mayor signed the ordinance the next day.

Meanwhile, the Planning Board conducted hearings in October and November on A&P's site plan. Following a hearing on December 16, 1993, A&P agreed to an extension beyond December 21, the date of the Council's scheduled second reading of Ordinance 93-30. Consequently, the Planning Board scheduled a hearing for January 6, 1994.

On January 6, however, the Planning Board refused to continue the hearings, because it was uncertain whether Ordinance 93-30 had been filed with the county planning board as required by N.J.S.A. 40:55D-16. If the ordinance had been filed, A&P's proposed supermarket would be a non-conforming use and the Planning Board would not have had jurisdiction to review the site plan. After adjourning the matter until January 13, the Board determined that it never had had jurisdiction to consider A&P's application, because Ordinance 92-70, the earlier amendment that permitted commercial retail uses in Town Center, had never been filed with the county planning board.


In municipal government, few issues generate as much public interest as the control of land-use development. Zoning ordinances touch people where they live. Sensitive to the intense public interest in local land-use development, the Legislature has developed an orderly structure for public participation in the process. That process also contemplates the rational development of land use, free from undue political influence. This appeal questions whether the Legislature has banned local voters from expressing a non-binding preference for proposed zoning amendments.

One purpose of the MLUL, N.J.S.A. 40:55D-1 to -129, was to coordinate municipal land-use development. The MLUL incorporates

statutory regulations concerning zoning and planning, planned unit developments, site-plan approval, and the adoption of master plans. Senate and County Mun. Gov't Comm., Statement to Senate Bill No. 3054, 1, 67 (May 8, 1975) (Committee Statement). Through the MLUL, the Legislature intended to simplify procedures for land-use regulation, eliminate jurisdictional overlaps, reduce costs, and promote construction. Id. at 1; see also N.J.S.A. 40:55D-2 (outlining intent and purpose of MLUL). The MLUL also recognizes "the increasing awareness of the public involvement and right-to-know . . . ." Office of Governor Brendan T. Byrne, Press Release (Jan. 14, 1978) ("This measure should reduce costs, cut red tape and promote needed construction."). See The Municipal Land Use Law, New Jersey Municipalities, Mar. 1976, at 8 (New Jersey Municipalities).

The zoning process begins with the adoption of a master plan by the planning board. See N.J.S.A. 40:55D-23 to -28. Once the planning board adopts a master plan, the municipality may then enact a conforming zoning ordinance. See N.J.S.A. 40:55D-62.a. When adopting a zoning ordinance, the governing body introduces the ordinance on first reading, N.J.S.A. 40:49-2.a; publishes a notice of a public hearing, N.J.S.A. 40:49-2.b; submits the ordinance to the planning board for review, N.J.S.A. 40:55D-26.a, -64; and considers the ordinance for adoption after a second reading, N.J.S.A. 40:49-2.c. In a borough such as Point Pleasant, after the mayor signs the ordinance in accordance with N.J.S.A. 40A:60-5.d, the governing body must file the ordinance with the county planning board. N.J.S.A. 40:55D-16. The entire process is replete with the opportunity for public participation. See generally William M. Cox, New Jersey Zoning and Land Use Administration §§ 34-1 to 34-2.5, at 498-505 (1994) (reviewing procedure for adopting zoning ordinances).


Until the Legislature included section 62.b in the MLUL in 1975, only judicial decisions restricted the use of referenda on

zoning ordinances. Prior statutes had not prohibited referenda. Compare N.J.S.A. 40:55D-62.b with R.S. 40:55D-30 to -32.

Section 62.b provides: "No zoning ordinance and no amendment or revision to any zoning ordinance shall be submitted to or adopted by initiative or referendum." The question is whether "referendum" in section 62.b includes a non-binding referendum.

N.J.S.A. 19:37-1 defines a non-binding referendum, identified as an "ordinance or resolution for submitting question":

When the governing body of any municipality or of any county desires to ascertain the sentiment of the legal voters of the municipality or county upon any question or policy pertaining to the government or internal affairs thereof, and there is no other statute by which the sentiment can be ascertained by the submission of such question to a vote of the electors in the municipality or county at any election to be held therein, the governing body may adopt at any regular meeting an ordinance or a resolution requesting the clerk of the county to print upon the official ballots to be used at the next ensuing general election a certain proposition to be formulated and expressed in the ordinance or resolution in concise form. Such request shall be filed with the clerk of the county not later than 74 days previous to the election.

A&P argues that the section 62.b prohibition against referenda on zoning ordinances includes non-binding public questions under N.J.S.A. 19:37-1. Relying on the plain language, legislative history, and policy underlying section 62.b, we hold that a municipality may submit a non-binding question to voters to ascertain public sentiment on a zoning amendment.


Plain Meaning

A&P argues that the absence of a distinction in section 62.b between binding and non-binding referenda signifies that the Legislature intended to proscribe all forms of referenda, both binding and non-binding. We disagree.

The MLUL does not define the term "referendum." See N.J.S.A. 40:55D-6 (defining terms "P to R" in MLUL). When construing legislation, in the absence of a specific definition, we give words their ...

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