JOHN E. MYERS, TRUSTEE, and DIANE D. MYERS, TRUSTEE, Plaintiffs-Respondents,
OCEAN CITY ZONING BOARD OF ADJUSTMENT, Defendant-Respondent, and CITY OF OCEAN CITY, Defendant-Appellant
Argued September 16, 2014
Approved for Publication January 16, 2015.
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).
Before Judges MESSANO, OSTRER and SUMNERS.
[439 N.J.Super. 97] OPINION
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 [439 N.J.Super. 98] 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.
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 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, ...