OCEAN TOWNSHIP IS NOT LIVING UP TO ITS MASTER PLAN

New Jersey State Appellate Court Judge has ruled!!!

 

A formal complaint charging that Ocean Township is not living up to its Master Plan by allowing development of a 32-acre tract at Route 35 and Deal Road can move forward, a state Appellate Court judge has ruled. 

 

Peter Jungkunst and his wife, Jacqui Wenzel, filed the complaint on behalf of the Save 32-Acres grassroots movement to preserve the site. Judge Dennis R. O’Brien, seated in Freehold, denied the original complaint and the couple challenged the judge’s decision in the Appellate Court.

   “I feel the (Appellate) judge thought that the previous (Superior Court) judge made an arbitrary and capricious finding and the judge is letting the case move forward,” Jungkunst said. “I always felt we had a good case on the merit that the (current) land use ordinance is inconsistent with the old one.”

   Part of the Save 32-Acres complaint states that “Ocean Township, through its Mayor, City Council and Planning Board, have been rezoning the remaining 32 acres of the Terner Tract for over two decades with perfunctory regard for the procedural requirements of the Municipal Land Use Law (MLUL) and minimal regard for the desires of the residents living adjacent to the site and within the broader community.”

   The complaint was filed to hold the township accountable and demand that they follow the procedures required by the MLUL and principles of fundamental fairness, and ultimately, to compel the defendants to rezone the property in a manner that is consistent with the vision set forth in the 1990 Master Plan.

   The original master plan called for 13 acres of low-impact commercial development, like a professional office building, and 40 single-family homes along Deal Road.

   A current development proposal, by Paramount Realty, wants to build a 112-room Marriott Hotel, a Wawa gas station and convenience store, a fitness center, and a Turning Points restaurant along the Route 35 corridor with 70 upscale townhouses on the eastern portion of the site.

   “There is a big difference between 40 single-family homes versus cluster townhouses,” Wenzel said.

   She said the original master plan also did not call for a gas station/convenience store or a hotel on the site.

   “So, the scale of the current proposed project is not consistent with what was originally approved on the site,” she said.

   Wenzel said she feels this is a perfect example of “spot zoning that was customized to the developer’s plans.”

   “This land is too important to rush through this and say it is a done deal. It is too important for that,” she said.

   “We are very encouraged our argument will be heard. It costs a lot of money to hire a land use attorney so we will be representing ourselves. We are getting great advice but we have a learning curve here,” Jungkunst said.

   Wenzel said that her organization is looking for a land use attorney who might donate their services.

   “We are hoping somebody can jump on board,” she said.

   The case will probably be heard sometime next year.

   Mayor Christopher Siciliano said he does not have any comment on the matter since it involves litigation.

   “Let due process take its course and justice will prevail in the end, as always,” he said.

   In a related matter, Wenzel said that Save 32 Acres signs have been stolen from private property. The signs, that cost about $6 each, have appeared on lawns throughout the township.

   “Over the weekend, five people said their signs were stolen. We urge people to file a police report because this is vandalism,” she said.

IMPORTANT NEXT STEPS

WE HAVE POWER IN NUMBERS...

WE HAVE POWER IN NUMBERS. IF YOU CAN NOT ATTEND THE REGULARLY SCHEDULED COUNCIL MEETINGS, PLEASE TRY TO ENCOURAGE YOUR FRIENDS, FAMILY AND NEIGHBORS, SO WE CAN PROTECT OUR TOWNSHIP FROM OVER DEVELOPMENT. ENOUGH IS ENOUGH. WE MUST TRY TO STOP THE CLEAR CUTTING OF MATURE TREES AND THE OVERDEVELOPMENT OF OUR RESIDENTIAL NEIGHBORHOODS. 


WRITE THE DEPARTMENT OF ENVIRONMENTAL PROTECTION

SHARE YOUR CONCERNS ABOUT ADDING MORE IMPERVIOUS GROUND COVER ON WETLANDS, WHICH WILL GREATLY IMPACT AN ALREADY TROUBLESOME FLOODING SITUATION IN TOWN, WHICH CONTINUES TO CLOSE OUR STREETS AND DAMAGE OUR YARDS. 

PLACE A SAVE32ACRES.ORG LAWN SIGN ON YOUR PROPERTY

THIS ACTION LETS THE MAYOR AND COUNCIL KNOW THAT YOU ARE NOT IN AGREEMENT WITH THE RECENT ZONING CHANGES IN ORDINANCE #2303, BECAUSE IT IS NOT CONSISTANT WITH OUR TOWNSHIPS MASTER PLAN. 


LET YOUR NEIGHBORS KNOW, IT IS NOT A DONE DEAL

TO CONTINUE TO PROTECT OUR TOWNSHIP OF GRACIOUS LIVING,  IT IS IMPORTANT WE HIRE PROFESSIONAL EXPERTS TO REPRESENT THE COMMUNITY THAT IS IN OPPOSITION TO THE OCEAN TOWN CENTER , AT THE UPCOMING PLANNING BOARD MEETINGS. THIS REQUIRES A COMMITMENT OF TIME AND OUT OF POCKET DONATIONS FROM ALL OF US WHO CARE ABOUT SAVING THE HISTORIC FARMLAND THAT WAS FOUND ELIGIBLE TO BE LISTED IN THE NATIONAL REGISTRY OF HISTORIC PLACES, AS WELL AS THE NJ REGISTRY, BEFORE MAYOR WELDON AND COUNCIL APPROVED THE DRAMATIC COMMERCIAL OVERLAY ZONE ON THE HISTORIC FARMHOUSE AND NATIVE AMERICAN LAND. THIS WOODLAND IS A VALUE TO US, TO OUR NATIONAL REGISTRY AND THE FUTURE OF OUR TOWNSHIP. 

EXPENSES & DONATIONS TO DATE

Ocean Township official Master Plan, link below

Rutgers University study _ Obropta_OceanTwp-10-21-2017 (2) (pdf)

Download

The Coaster (pdf)

Download

SAVE32ACRES EXPENSES & DONATIONS TO DATE

IN ORDER TO HAVE PROFESSIONAL EXPERTS REPRESENT OCEAN TOWNSHIP RESIDENTS,  WHO WOULD LIKE TO RESCIND THE COMMERCIAL OVERLAY ZONE, TO REFLECT WHAT IS MORE RESPONSIBLY DOCUMENTED IN OUR TOWNSHIPS MASTER PLAN,            

WE WILL NEED TO ATTEND THE UPCOMING PLANNING BOARD MEETINGS WITH PROFESSIONAL EXPERTS OF OUR OWN.                                  

ALL DONATIONS OF $100 OR MORE ARE TAX DEDUCTABLE. PLEASE SEND YOUR TAX DEDCUTABLE DONATIONS TO: 

NJ Appleseed, 50 Park Place, Rm. 1025, Newark, NJ 07102 



DONATIONS CAN ALSO BE MADE BY VISITING THE GOFUNDME ACCOUNT SAVE 32 ACRES OF HISTORIC FARMLAND      


YOU CAN VIEW A DETAILED EXPENSE VS. DONATIONS REPORT BY CLICKING THE DOWNLOAD LINK BELOW                  

SAVE32ACRES EXPENSES VS DONATIONS (pdf)

Download

IMPORTANT BREAKINING NEWS

SAVE32ACRES....CASE TO MOVES FORWARD

A FORMAL COMPLAINT, CHARGING THAT OCEAN TOWNSHIP IS NOT LIVING UP TO IT'S MASTER PLAN BY ALLOWING DEVELOPMENT OF 32 ACRES AT DEAL RD. & 35 N, CAN MOVE FORWARD....A  NJ STATE APPELLATE COURT JUDGE HAS RULED. 

NOTE OUR LEGAL COMPLAINT

PETER JUNGKUNST

JACQUI WENZEL JUNGKUNST

Ocean Township, New Jersey 07712

(347) 835-8242

Pro se litigants

Hon. Dennis R. O’Brien

Superior Court of New Jersey

71 Monument Street

Freehold, New Jersey 07728

Re: Peter Junkunst and Jacqui Wenzel Jungkunst v. Mayor and Township

 Council of Ocean et al., Docket Noll MON-L-1467-18

Dear Judge O’Brien:

Please accept this letter brief in lieu of a more formal brief in opposition to Defendant Ocean Township Planning Board’s Motion to Dismiss and Defendant Ocean Township Mayor’s and Council’s Motion to Dismiss or in the alternative Motion for Summary Judgment.  We are representing ourselves pro se, but are relying on the opinion of our professional expert that this Complaint has merit and should proceed to a plenary hearing.  

Ocean Township, through its Mayor, City Council and Planning Board have been rezoning the remaining 32 acres of the Terner Tract for over two decades with perfunctory regard for the procedural requirements of the Municipal Land Use Law (MLUL), and minimal regard for the desires of the residents living adjacent to the site and within the broader community. Our complaint was filed to hold the Township accountable and demand that they follow the procedures required by the MLUL and principles of fundamental fairness, and ultimately, to compel the Defendants to rezone the property in a manner that is consistent with the vision set forth in the 1990 Master Plan.  Plaintiffs’ Complaint In lieu of Prerogative Writ not only meets but exceeds the standards governing the form of a complaint as required by the New Jersey Rules of Civil Procedure. Specifically, the Complaint sufficiently states two causes of action, which together with the Certifications of Peter Steck and Jacqui Wenzel, provide sufficient factual evidence to put certain material issues in dispute, which may only be resolved via a summary hearing. Accordingly, both Defendants’ motions should be denied.

PRELIMINARY STATEMENT

Plaintiffs, along with several Ocean Township residents, have attended Township Council meetings and Planning board hearings where zoning Ordinance #2303 was discussed. Throughout the process, we were never given the opportunity to present expert testimony on the question of whether the proposed ordinance was “substantially consistent” with the 1990 Master Plan and/or the 2000 Re-examination Report, and we were never given the opportunity to cross examine the Township’s Planner or review his report on which the Planning Board and the City Council allegedly relied. Instead, we were consistently met by a governing body and planning board members who appeared to have a predetermined bias to proceed with the zoning change regardless of what Plaintiffs and members of the community said.

Plaintiffs are prepared to go to trial to present oral arguments and exercise their right to cross examine the Defendants and their experts including the Township’s professional planner. After such trial, we believe that this Court will declare the Ordinance invalid and require the City Council to state on the records its reasons for enacting a zoning ordinance that is inconsistent with the Master Plan thereby forcing the Mayor and City Council to acknowledge that they are ramming a zoning ordinance down the throats of their constituents that is not in accord with the community’s vision for that property.

STATEMENT OF FACTS

The facts as set forth herein are based on the Certifications of James W. Higgins (“JH”), Ronald Kirk (“RK”), Peter Steck (“PS”) and Jacqui Wenzel (“JW”).  They are as follows:  The Master Plan for the Township was adopted some time in 1990. JH Cert., ¶2.  Although Mr. Higgins says that “over the course of the last 28 years” there were “numerous examinations of the Master Plan”, he provides no proof of any examination after the November 30, 2000 Re-Examination report in which it “was suggested” that a commercial overlay zone be imposed on the relevant portions of the Terner Tract that “would have allowed the entire site to be developed commercially with retail uses throughout.” JH Cert., ¶9.   Mr. Kirk provides evidence that notice of the Planning Board meeting at which time the Board adopted the 2000 Re-examination Report was given to the adjoining municipalities and the Monmouth County Planning Board and notice was published in the Asbury Park Press.  RK Cert., ¶10. However, neither the newspaper notice state that there would be an opportunity for the public to be heard at the “regular meeting of the Planning Board” nor did the Board’s Resolution note that public comment in fact occurred. RK Cert., Ex. D & E. 

Since the 2000 Re-Examination Report there have been at least three attempts to rezone the property: 2002, 2005 and now 2017-18. JW Cert., ¶¶2, 7, 14.  With respect to the 2017-18 rezoning, the City Council first introduced proposed Ordinance #2303 at its 11/9/2018 Council meeting.  At that meeting, members of the public who sought to question the Township Council were told specifically by Deputy Mayor Acera that they would be able to ask their questions at the Planning Board meeting scheduled for 11/27/2018. JW Cert., ¶18. On 11/22, five days before the hearing Mr. Kirk phoned plaintiff Wenzel and told her that each person attending the Planning Board meeting would be limited to speak for 3-minutes.  JW Cert., ¶19. Several members of the public came prepared to comment and ask questions of Board members and any expert witness who appeared before the Board. The Planning Board denied this opportunity to influence the its determination. JW Cert., at ¶21, RK Cert., ¶5.  The Planning Board heard testimony from a planning associate of Mr. Higgins with respect to the issue of “consistency with the Master Plan,” RK Cert. ¶4, and then voted to memorialize the ordinance, find it “consistent with the Land Use Part of the Master Plan” and send it back to the Council. See Transcript of 11/27/17 PB hearing. The record does not indicate that the Board prepared a Report to the Township Council with recommendations as required by statute or that a resolution or minutes of the Planning Board communicating the basis upon which the Board determined conformance, Steck Cert., ¶9; Mr. Kirk submitted a memorandum to the Township Clerk advising the Clerk that the Planning Board and considered the ordinance and unanimously recommended the same to the Council.  RK Cert., ¶7.

On March 8, 2018, the Township Council held its second reading of proposed Ordinance #2303.  At that meeting, members of the public were permitted to speak for 3-minutes though were continually interrupted by members of the governing body.  Indeed, the situation became so contentious that the Mayor stated in effect that no matter what people said, he had made up his mind and was going to enact the zoning ordinance. JW Cert. ¶22. It should be noted that the Mayor never permitted experts from Rutgers to appear before the Township Council to present the water study that they had undertaken on behalf of the Township’s Environmental Commission, despite several requests by plaintiff Wenzel that he do so.  JW Cert., ¶X.  Such study indicated the environmental impact of continuing to cut down mature trees in the Township and the resulting increased risk of flooding. Id.

PROCEDURAL HISTORY

On 4/23/18, Plaintiffs filed a Complaint in Lieu of Prerogative Writ asserting two claims, one against the Mayor and Township Council and one against the Planning Board. The Planning Board filed a Motion to Dismiss, dated 6/1/18, and the Township filed an Answer and Motion for Summary Judgment dated 6/6/18. Plaintiffs now file their opposition to both motions, which will be heard on July 20, 2018.

LEGAL ARGUMENT

Unlike a summary judgment motion, a motion to dismiss for failure to state a claim pursuant to R. 4:6-2(e) is based on the pleadings themselves. SeeRider v. Dept. of Transportation, 221 N.J. Super. 547 (App. Div. 1987). The Court has the discretion to convert a R. 4:6-2(e) motion into a motion for summary judgment when facts beyond the pleadings are relied upon and limited testimony is required to be taken. See, e.g., Wang v. Allstate Ins. Co., 125 N.J. 2, 9 (1991).  In this case, both the Planning Board and Ocean Township rely on facts outside the Complaint and thus, dismissal should be judged under a summary judgment standard.

Notwithstanding, as noted by the Supreme Court of New Jersey in Printing Mart v. Sharp Electronics, 116 N.J. 739, 746 (1989), on a motion brought pursuant to R. 4:6-2(e) the complaint must be searched in depth and with liberality to determine if a cause of action can be gleaned from the specific allegations set forth in the complaint. Every reasonable inference is therefore accorded the plaintiff, and the motion will not be granted under this rule where a cause of action is suggested by the facts and a theory of liability may be articulated by amendment of the complaint. Id.  Under this liberal standard, the Defendants’ respective Motions to Dismiss must be denied.

A party may move for summary judgment under R. 4:46-2, which states, in pertinent part, that summary judgment should be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.” R. 4:46-2.  On a summary judgment motion, the Court must inquire “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Brill v. The Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). The purpose of the summary judgment procedure is, with proper adherence to the rules, to avoid trials that would serve no useful purpose and to afford deserving litigants immediate relief. Warthen v. Toms River Community Memorial Hospital, 199 N.J. Super. 18, 23 (App. Div. 1985) certif. denied, 101 N.J. 255 (1985). But where the party opposing summary judgment comes forward with evidence that creates a genuine issue as to any material fact challenged, as is the case herein, the motion must be denied.

I. THE PROCEDURAL REQUIREMENTS OF THE MUNICIPAL LAND USE LAW

 MUST BE RIGOROUSLY ADHERED TO AND IMPLEMENTED.

In this matter, Plaintiffs claim that this court should invalidate Ordinance #2303 because both Defendants committed procedural violations, either of the MLUL or the dictates of the principles of administrative due process and fundamental fairness. Both the Planning Board and the Township allege that they have done no wrong and this Complaint should be dismissed. Plaintiffs disagree and have presented sufficient evidence to put relevant, material facts in dispute.

There is little doubt that although a court’s role with respect to the power to zone is generally limited, a court may declare an ordinance invalid if in enacting the ordinance the municipality has not complied with the requirements of the statute. Taxpayer Ass’n of Weymouth Township v. Weynouth Township, 80 N.J. 6, 21 (1976). See also Mahwah Realty v. Tp. of Mahwah 430 N.J. Super. 247, 259 (App. Div. 2013)(noting the obligation of the court to view planning and zoning determinations generally, including zoning ordinances, with understanding that municipalities must act “in strict conformance with the MLUL.”). A zoning ordinance must not only advance one of the purposes of the MLUL as set forth in N.J.S.A. 40:55D-2, it must also 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,” N.J.S.A. 40:55D-62, unless the procedural requirements of that provision are otherwise satisfied.  Furthermore, the ordinance must be adopted in accordance with other statutory and municipal procedural requirements, including requirements that the zoning ordinance be referred to the Planning Board for its review in accord with N.J.S.A. 40:55D-26. See, e.g., Route 15 Assoc. v. Jefferson Township, 187 N.J. Super. 481 (App. Div. 1982)(citing several cases where zoning ordinance was invalidated because it was adopted in violation of procedural requirements); Pop Realty Corp. v. Springfield Bd. of Adjustment, 176 N.J. Super. 441, 454 (Law Div. 1980)(stating that attempts to exercise local zoning power in contravention to procedural requirements contained in MLUL have been considered ultra vires or a denial of due process.) 

Taken together, the statutory mandate that a zoning ordinance be “substantially consistent” with the Master Plan and the statutory directives that the governing body explain its reasons for adopting an inconsistent ordinance and the Planning Board note such inconsistencies in a report to the municipality are all designed to preclude the governing body from acting arbitrarily.  Accordingly, courts have typically required municipal actors to strictly adhere to such procedural dictates when adopting a zoning ordinance.  There is no reason why such “strict conformance” with the procedural mandates of the MLUL does not apply herein.

II. PRINCIPLES OF FUNDAMENTAL FAIRNESS REQUIRE THE PUBLIC TO

 HAVE AN OPPORTUNITY TO REVIEW, CONTEST AND PROVIDE EVIDENCE

 BEFORE THE PLANNING BOARD ON THE ISSUE OF SUBSTANTIAL

 CONSISTENCY.

Pursuant to N.J.S.A. 40:55D-26, the Planning Board, prior to the adoption of a zoning ordinance, 

. . . shall make and transmit to the governing body, within 35 days after referral, a report including identification of any provisions in the proposed development regulation, revision or amendment which are inconsistent with the master plan and recommendations concerning these inconsistencies and any other matters as the board deems appropriate.  The governing body, when considering the adoption of a development regulation, revision or amendment thereto, shall review the report of the planning board and may disapprove or change any recommendation by a vote of a majority of its full authorized membership and shall record in its minutes the reasons for not following such recommendation.

Despite the failure of the Ocean Township Planning Board to make and transmit such report to the governing body with respect to Ordinance #2303 and to permit members of the public to cross-examine the Planner, who testified at the Planning Board meeting, or ask questions of Board members, the Planning Board in its Letter Brief asserts that there was no “public harm.” PBBr. at 4.  Ironically, citing to the Supreme Court opinion in v. Point Pleasant, 137 N.J. 136 (1994), the Planning Board argues that the statute does not require the Board to hold a public hearing or accept public comment simply because the public can make comments before the Township Council upon second reading of the proposed zoning ordinance. Id. (citing Cox & Koenig, N.J. Zoning & Land Use Administration (2018) at p.152). I say “ironically” because Great Atlantic involved the question of whether the governing body could place a proposed zoning ordinance to a non-binding referendum vote and the majority opinion answered “yes” in part because it found that a goal of the MLUL was to encourage public involvement in land-use planning and development; not stymie public questioning and comment.

Notwithstanding the fact that the statute does not explicitly require that the Planning Board to hold a public meeting, let alone a public hearing with public comment, does not mean that the Planning Board, under the circumstances presented in this case, exercised its discretion reasonably. In fact, Plaintiffs allege that in fact the Planning Board’s decision was arbitrary and capricious and violated the principles of fundamental fairness and administrative due process. See, e.g., In the Matter of Dept. of Insur. Order Nos. A89-119 and A90-125, 129 N.J. 365, 383 (1992)(core value of review of administrative action is accountability and so parties must have the opportunity to rebut evidence on which the agency relies); High Horizons Development Co. v. State, Dept. of Transportation, 120 N.J. 40, 50-53(1990)(though no statute required a hearing, when agency decision is quasi-judicial and rests on a factual determination, the public must have the opportunity to cross-examine any evidence presented); Brotherhood of R.R Trainmen v Palmer, 47 N.J. 482, 487-88 (1966){noting that parties must be given ample opportunity to test the trustworthiness of information or evidence on which an agency’s decision is based);  In the Matter of Bell Atlantic N.J., Inc., 342 N.J. Super. 439, 444 (App. Div. 2010)(public entitled to hearing to afford them adequate opportunity to test the factual premises of government’s proposal and proofs in support thereof; a hearing that “promotes fundamental fairness and fosters the integrity of governmental processes.”); N.J. Div. of Youth and Family Services v. M.R., 314 N.J. Super. 390 (App. Div. 1988)(holding that a hearing may be required even where not mandated by statute, the Constitution or the Administrative Procedure Act, but where “fairness” requires that the affected parties be given an opportunity to challenge the evidence on which the administrative agency relied).

Based on the material facts presented in this action, it is evident that both the Township Council and the Planning Board intended for the Planning Board to accept public comment and entertain questions at the November 27, 2017 meeting. JW Cert., ¶¶18-19.  Council Members stated such, and the Planning Board had a microphone available for public speaking.  It was only at the meeting that the Planning Board decided not to permit any public comment allegedly because the public was disruptive. See RK Cert., ¶5(stating that “members of the public became unruly and started shouting and disturbing the meeting” and so no public comment was permitted). But perhaps the public became disruptive because they felt that they were not being heard and their questions were not being answered.

Notwithstanding the Board’s decision to decline hearing from the general public, it did accept the testimony of a representative of the Township Planner., Ms. Coffin, and it had received a memorandum dated November 21, 2017 directly from Mr. Higgins. Steck Cert., ¶10; RK Cert., Ex. A. It did not, however, permit members of the public to cross-examine Ms. Coffin nor review any written submission she made to the Board, if any, or the submission made by Mr. Higgins earlier in the week.   The failure of the Planning Board, under these circumstances, to permit Plaintiffs and other members of the public people to question the planner as to her finding of consistency, to present their own expert testimony and to review all the evidence that the Board was considering when it rendered its determination of consistence violates the doctrine of fundamental fairness and administrative due process acknowledged by New Jersey courts.  Furthermore it is clear that the Planning Board did not issue a report as required by N.J.S.A. 40:55D-26; Mr. Kirk simply certifies that he sent the Township Council a memorandum stating that Planning Board found the proposed ordinance as consistent with the Master Plan.

The lackadaisical adherence to procedure is apparent.  Because Plaintiffs have presented adequate facts to support their legal claim against the Planning Board as set forth in Count I of the Complaint, the Board’s Motion to Dismiss must be denied.

III. SUMMARY JUDGEMENT IS NOT APPROPRIATE WHEN THERE IS A 

 FACTUAL DISPUTE AS TO WHETHER THE PROPOSED ORDINANCE IS

 CONSISTENT WITH THE MASTER PLAN AND THE CITY COUNCIL

 FOLLOWED THE CORRECT PROCEDURES.

The requirement that a zoning ordinance be substantially consistent with the Master Plan must be strictly enforced.  Riggs v. Long Beach Twp., 109 N.J. 601, 421 (1988)(J. Handler, concurring)(citing to N.J.S.A. 40:55D-62, and stating that if the provision is not satisfied, the courts should declare the ordinance invalid). Similarly, the procedural requirements set forth in N.J.S.A. 40:55D-62 must also be strictly enforced.  Defendants Mayor and Township Council assert that they have complied with such statute simply because they, relying on the determination of the Planning Board, believed that Ordinance #2303 was substantially consistent with the Township’s Master Plan. Plaintiffs dispute such contention by presenting the Certification of Peter Steck, a professional planner licensed in this State. 

N.J.S.A. 40:55D-62, states as follow, in part:

The governing body may adopt or amend a zoning ordinance . . . Such ordinance shall be adopted 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 or any amendment or revision thereto 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 amendment or revision thereto which in whole or part is inconsistent with or not designed to effectuate the land use plan element and the housing plan element, but only by affirmative vote of a majority of the full authorized membership of the governing body, with the reasons of the governing body for so acting set forth in a resolution and recorded in its minutes when adopting such a zoning ordinance

The Courts are clear that the requirement that a governing body expressly acknowledge an ordinances’ inconsistency with the Township Master Plan is significant, and that it requires the municipality “to treat the Master plan with respect and the importance assigned to it by the Legislature.” Willoughby v. Wolfsen Group, Inc. 332 N.J. Super. 223, 229 (App. Div.) cert. denied 165 N.J. 603 (2000). Moreover, the failure of a planning board to find such inconsistency, as herein, does not exonerate the responsibility of the governing body to undertake the analysis itself. For if an ordinance is inconsistent with the Master Plan, the municipality’s failure to explain why it was appropriate to impose such zoning suggests that that its choice was entirely arbitrary. Riya Finnegan LLC v. Twp. Council of Twp. of South Brunswick, 197 N.J. 184, 193 (2008).

In its Brief, the Township relies solely on the opinion of Mr. Higgins as expressed in his Certification, dated May 30, 2018. Mr. Higgins compares Ordinance #2303 to the suggestions made in the Re-examination Report of 2000 with respect to the remaining portion of the Terner Tract, asserting that the Re-examination Report revised the Master Plan.  Mr. Steck, questioning whether the Planning Board had actually followed the procedures necessary to amend the Master Plan (Steck Cert., ¶6)   concentrates his analysis of consistency on a comparison between Ordinance #2303 and the 1990 Master Plan, though he also extends his analysis to cover the Re-examination Report.  They seem to be talking past each other since Mr. Higgins simply does not address Mr. Steck’s central point that the Ordinance creates a new zone, C-7 Community Mixed Use District, “which includes for the first-time retail and personal service uses, restaurants, as well as automotive service stations with convenience stores”, and “[f]inally, for the first-time. . .permits townhouses on the site.” Steck Cert., ¶¶16-17. According to Mr. Steck, the Master Plan contemplates only single family homes on the eastern portion of the property, and the Re-examination Report permits such portion to be developed as a cluster development, again with single-family homes on lots with a minimum size of 22, 500 square feet; townhouse development is nowhere mentioned. ¶¶12-13. Mr. Steck opines that such differences constitute substantial inconsistencies, which Mr Higgins downplays and characterizes as merely “minor.” 

In Manalapan Realty v. Twp. Committee of Manalapan, 140 N.J. 366 (1995), the N.J. Supreme Court adopted the common sense meaning of the term “substantial” and held that the concept of “substantially consistent” permits some inconsistency, provided such inconsistency does not “undermine or distort the basic provisions and objectives of the Master Plan.” Id. at 384. In an unpublished decision cited by the Township, Hartz Mt. Industries. V. Planning Bd. of Ridgefield Park, 2004 N.J. Super. Unpubl. LEXIS 18, an Appellate Panel found that the new ordinance at issue did not alter the basic character of the zone since the Master Plan contemplate it as an office park and essentially it remained an office park. On the other hand, in two published opinions, the facts of which are more comparable to the facts herein, the Appellate Division found that the new ordinance conflicted with the Board’s specified zoning in the land use element of the Master Plan. See  Willoughby v. Planning Bd. of Township of Deptford, 326 N.J. Super. 158, 163  (App. Div. 1999)(where Board’s designation of certain property in the land use element of the Master Plan as Office Campus was designed to protect residential development, court found such goal endangered by Board’s rezoning of such property as Town Center); East Mill Assoc. v. Twp. Council of East Brunswick, 241 N.J. Super. 402 (App. Div. 1990)(Requiring “contemporaneous debate” rather than “post-hoc rationalizations” explaining inconsistency with Master Plan, when Township rezoned an O-1 zone permitting apartment dwellings up to a density of 9 units per acre into a R-3 zone that allowed  single family dwellings with a density of only 2 units per acre).  

This factual dispute --- substantial inconsistency versus minor inconsistency -- is real, material and significant. Accordingly, this court may not resolve such issue on a motion for summary judgement. Both planners must have the opportunity to present their testimony in a plenary hearing at which time, they will both be subject to cross-examination.  

CONCLUSION

For the foregoing reasons, Defendant Planning Board’s and Defendant Township’s Motions to Dismiss Must Be Denied, Defendant Mayor and Township Council’s Motion for Summary Judgement must be denied, and this matter must proceed to a plenary issue on both counts of Plaintiffs’ Complaint.

Respectfully submitted,

Date: July 13, 2018  _____________________

 PETER JUNGKUNST

 ____________________

 JACQUI WENZEL

Jacqui Wenzel 917 592 6397

1990 MASTER PLAN

http://www.oceantwp.org/filestorage/6368/14023/MASTER_PLAN_1990.pdf

Ocean Townships Master Plan values historic preservation, archeological sites,  & respectful to environmentally sensitive land...aka Wetlands. The 32 acres on this map has all 3 values and is not zoned for high density commercial. HOW DID 

ZONING ORDIANCE #2303 GET APPROVED?  If you look at the official zoning. The Deal Road & Rt. 35N corner is zoned for 13 acres only on the highway, as in Doctors Office or professional building. Deal Rd is zoned for maximum 40 single family homes.  

RUTGERS STUDY OCTOBER 2017

RED = OCEAN TOWNSHIPS IMPERVIOUS SURFACES,  AS OF OCTOBER 2017. DEEP GREEN= MATURE TREE CANOPY.

RED=IMPERVIOUS SURFACES

GREEN= MATURE TREE CANOPY


WHAT WOULD YOU RATHER SEE OUT YOUR BEDROOM WINDOW?

SUPER WAWA GAS STATION  WITH CONVENIENCE STORE, CHIC-FIL-A FAST FOOD, MARRIOTT HOTEL, 68 TOWNHOUSES?

SUPER WAWA GAS STATION  WITH CONVENIENCE STORE, CHIC-FIL-A FAST FOOD, MARRIOTT HOTEL, 68 TOWNHOUSES?

JOIN US SEPT. 13TH 2018 @ 7:PM

LETS MOVE IN THE DIRECTION OF CONTINUING THE PARKLAND FOR PASSIVE RECREATION, CHECK OUT TURKEY SWAMP PARK FOR IDEAS.