Agenda - Planning Commission - 06/04/2015

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March 10, 2015 1 Volume 9 1 Issue 5 Zoning Bulletin sure that the residences did not interfere with the flood preventative func- tions of the zone. The City never took action on the Board's proposed B & D Zone change. However, after the Board's 2012 report, the Myers appealed their 2011 complaint. They requested an order compelling the City to adopt the B & D zone change, or to endorse, affirmatively, maintenance of the zoning ordinance notwithstanding the proposed change. The court granted the Myers' request, and issued an order requiring the City to "[a]mend the zoning ordinance to confoim with [the Board's Master Plan reexamination report proposed zoning change" or "[h]old a hearing as required under N.J.S.A. 40:55D -62(a) to permit the zoning ordinance to remain inconsistent with the master plan." The City appealed. It argued that the governing statutory law, N.J.S.A. 40:55D -62(a), did not require it to affirmatively act in response to the Master Plan recommendation. DECISION: Judgment of superior court reversed, and matter remanded. The Superior Court of New Jersey, Appellate Division, agreed with the City. It held that N.J.S.A. 40:55D -62(a) 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. In so holding, the court analyzed N.J.S.A. 40:55D -62(a), interpreting its plain language. In relevant part, the statute provides that a governing body: "may adopt or amend a zoning ordinance . . . after the planning board has adopted the land use plan element and the housing plan element of a master plan, and all of the provisions of such zoning ordinance . . . shall either be substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elements; provided that the governing body may adopt a zoning ordinance or amend- ment or revision thereto which . . . is inconsistent with or not designed to ef- fectuate the land use plan element and the housing plan element, but only by affirmative vote of a majority of the full [membership of the] governing body ...." (N.J.S.A. 40:55D -62(a).) The court found that nothing in the plain language of the statute required a governing body to affirmatively act in response to a reexamination report. Rather, the court found that the statute imposes conditions upon a govern- ing body only when it decides to act after adoption of a master plan. The court also found that even if a preexisting zoning ordinance becomes in- consistent with one aspect of a reexamination report, the statute does not require action. The statute requires a majority vote and statement of reasons only if the governing body thereafter adopts an inconsistent ordinance or amendment, concluded the court. The appellate court reversed the trial court's order. See also: Victor Recchia Residential Const., Inc. v. Zoning Bd. ofAdjust- ment of Tp. of Cedar Grove, 338 N.J. Super. 242, 768 A.2d 803 (App. Div. 2001). 8 © 2015 Thomson Reuters