Thomas Griepenburg v. Township of Ocean (073290)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
Thomas Griepenburg v. Township of Ocean (A-55-13) (073290)
Argued November 12, 2014 – Decided January 22, 2015
LaVECCHIA, J., writing for a unanimous Court.
In this appeal, the Court considers the circumstances under which municipal zoning ordinances represent a
legitimate exercise of a municipality’s power to zone property consistent with its Master Plan and Land Use Law
(MLUL) goals.
The Township of Ocean (Township) is a largely rural-suburban community bordered by the Pinelands
National Reserve and Barnegat Bay. In the late 1990’s, the Township began a comprehensive planning process in
anticipation of population growth and increased development. The Township subsequently adopted the smart
growth principles fostered by the State Development and Redevelopment Plan (State Plan). The Township worked
with the New Jersey Department of Environmental Protection (DEP) and other agencies to update its Master Plan
for development in accordance with smart growth principles.
In 2004, the Township submitted a Petition for Plan Endorsement to the State Planning Commission
(Planning Commission) in which it sought to have its Waretown section designated as a town center (Waretown
Town Center) and to convert a large area of land from a PA-2 Suburban Planning Area to a PA-5 Environmentally
Sensitive Planning Area. The Planning Commission endorsed the Township’s petition, and as a condition thereof,
adopted Resolution 2005-03 (the Resolution) mandating that the Township “revise its municipal zoning ordinance to
be consistent with the master plan and planning area changes within 60 days of the endorsed plan.” In 2006, the
Township passed a series of ordinances to facilitate its land use goals and accord with the Resolution.
In April 2007, plaintiffs, who own a significant amount of land in the Township, filed a complaint against
the Township, the DEP, and the New Jersey Department of Community Affairs (DCA) challenging the validity of
three ordinances (the Ordinances) that affected their property. They alleged that they were arbitrary, unreasonable,
capricious, and illegal and that the rezoning constituted inverse condemnation. Plaintiffs live in a single-family
residence on the eastern portion of one of several lots they own. The remainder of the property consists of
undeveloped woodlands. When plaintiffs acquired the property, it was subject to mixed zoning. As a result of the
Planning Commission’s endorsement of the Township’s Petition, all but one of plaintiffs’ lots were converted to PA-
5 Environmentally Sensitive Planning Areas.
At trial, the parties’ experts – Thomas A. Thomas, P.P., (Thomas) for plaintiffs and Stanley Slachetka, P.P.,
(Slachetka) for the Township, testified. Thomas testified that the Ordinances are invalid as applied to plaintiffs
because the property does not have significant environmental restraints. Slachetka testified that the Ordinances were
enacted as part of the Township’s smart growth planning process, which included preservation of natural resources
as a goal. The trial court held that plaintiffs failed to establish that the inclusion of their property in an
Environmental Conservation district (EC district) was arbitrary, capricious, or unreasonable. Concluding that the
Ordinances fulfilled the four criteria established in Riggs v. Township of Long Beach, 109 N.J. 601, 611-12 (1988),
the trial court dismissed plaintiffs’ entire complaint, but later reinstated their inverse condemnation claim. The trial
court’s judgment held open the opportunity for plaintiffs to pursue an inverse condemnation claim if a variance were
sought and denied.
On appeal, the Appellate Division reversed in an unpublished opinion and held that the Ordinances were
invalid as applied because the downzoning was not required to serve the Ordinances’ stated purposes. The panel did
not reach the inverse condemnation claim. This Court granted certification. 217 N.J. 285 (2014).
HELD: The challenged Ordinances represent a legitimate exercise of the municipality’s power to zone property
consistent with its Master Plan and MLUL goals.
1. In 1988, the Court established a four-part test to facilitate judicial review of challenges to municipal zoning
ordinances. The ordinance must: (1) advance one of the purposes of the MLUL as set forth in the statute; (2) be
substantially consistent with the land use and housing plan elements of the master plan or be designed to effectuate
such plan elements, unless the requirements of that statute are otherwise satisfied; (3) comport with constitutional
constraints on the zoning power; and (4) be adopted in accordance with statutory and municipal procedural
requirements. Riggs, supra. (pp. 19-20)

2. In examining the Ordinances’ validity, the trial court tied its findings to the Riggs test and to MLUL goals. After
summarily finding that there was no challenge to the fourth factor, the court proceeded to make detailed findings
with respect to the remaining factors. The court’s analysis adhered to the Riggs criteria and its findings were
grounded in credible evidence. As the trial court clearly and thoroughly explained the record bases for its findings
and conclusions, this Court defers to its determination that each factor was satisfied and that the challenged
Ordinances are valid. (pp. 21-25)

3. The trial court also found that the Township’s inclusion of plaintiffs’ property in the EC district was reasonably
related to the purposes of the Ordinances. The Appellate Division reached a contrary determination, finding that the
property lacked specific environmental constraints. As to the Appellate Division’s determination based on
plaintiffs’ as-applied challenge, differing reasoning leads this Court to reverse the appellate judgment. The appellate
panel employed an overly narrow view of the Township’s land use planning goals. Contrary to plaintiffs’ and
amici’s arguments, the rezoning that occurred in the Township, which included a downzoning of plaintiffs’ property,
cannot fairly be distilled to the assertion that it constituted the creation of open space for the mere sake of having
open space. (pp. 25-26)

4. Plaintiffs argued that their property contained neither evidence of any endangered species, nor open waters,
wetlands, flood plains, or steep slopes, but the record shows that that was not the justification for the Township’s
actions. Moreover, their property’s inclusion in the EC district must be measured against the Township’s actual
objectives in enacting the Ordinances. The record developed by the Township supported that much of the area
surrounding the plaintiffs’ property is undeveloped or undevelopable. That supported the Township’s assertion, and
the trial court’s conclusion, that the property was appropriately zoned to achieve the goal of promoting smart growth
through concentrated development. (pp. 27-29)
5. Based on the record, which included evidence showing that plaintiffs’ property connected to other undeveloped
forested properties that constituted a habitat for endangered snakes and other wildlife, the trial court acted within its
authority when it concluded that designating the property as part of the EC district was not arbitrary or capricious.
To the extent that the Appellate Division also found that the Ordinances were invalid as applied, the Court notes that
the trial court’s reasonable determinations are entitled to deference and that the Ordinances enjoy presumptive
validity. The Court accepts the trial court’s determination that the Ordinances were not designed specifically to
inhibit development on the plaintiffs’ property. (pp. 29-30)
6. This case demonstrates the benefit to be derived from adhering to the doctrine of exhaustion of administrative
remedies. Relying on the Court’s decision in Pheasant Bridge Corp. v. Township of Warren, 169 N.J. 282 (2001), in
which this Court invalidated an ordinance as applied to the plaintiff’s property without requiring the plaintiff to first
seek a variance, plaintiffs and amici argue that plaintiffs were not required to exhaust their administrative remedies
by seeking a variance before initiating their as-applied challenge to the Ordinances. Pheasant Bridge should not be
read to suggest that a landowner challenging an ordinance as applied to his or her property is excused from first
exhausting administrative remedies. To the contrary, a landowner who wishes to challenge the validity of an
ordinance as applied should exhaust administrative remedies before initiating an action at law unless the interests of
justice requires otherwise. Plaintiffs should have sought a variance before pursuing either an as-applied challenge or
an inverse condemnation claim because none of the exceptions to the exhaustion doctrine apply. Exhaustion of
administrative relief is the best remedy. Thereafter, if their request for a variance is unsuccessful, an inverse
condemnation action will be the appropriate vehicle through which plaintiffs can seek relief. (pp. 30-35)
The judgment of the Appellate Division is REVERSED and the judgment of the trial court is
REINSTATED.

2
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, and
SOLOMON join in JUSTICE LaVECCHIA’S opinion. JUDGE CUFF (temporarily assigned) did not
participate.

SUPREME COURT OF NEW JERSEY
A-55 September Term 2013
073290

THOMAS GRIEPENBURG and CAROL
GRIEPENBURG,

Plaintiffs-Respondents,

TOWNSHIP OF OCEAN,

Defendant-Appellant,

and

STATE OF NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL
PROTECTION and STATE OF NEW
JERSEY DEPARTMENT OF
COMMUNITY AFFAIRS,

Defendants.

Argued November 12, 2014 – Decided January 22, 2015

On certification to the Superior Court,
Appellate Division.

Gregory P. McGuckin argued the cause for
appellant (Dasti, Murphy, McGuckin, Ulaky,
Koutsouris & Connors, attorneys; Mr.
McGuckin and Christopher J. Dasti, on the
briefs).

Peter H. Wegener argued the cause for
respondents (Bathgate, Wegener & Wolf,
attorneys; Mr. Wegener and Rui O. Santos, on
the brief).

3
Richard J. Hoff, Jr., argued the cause for
amicus curiae New Jersey Builders
Association (Bisgaier Hoff, attorneys).

Mark Miller submitted a brief on behalf of
amicus curiae Pacific Legal Foundation.

JUSTICE LaVECCHIA delivered the opinion of the Court.

Plaintiffs, landowners Thomas and Carol Griepenburg,

challenge the validity of a series of ordinances enacted by

defendant, Township of Ocean (the Township). The ordinances

rezoned a large tract of land, including most of plaintiffs’

property, from residential and commercial use to an

Environmental Conservation district (EC district), thereby

restricting future development of their property. The trial

court dismissed plaintiffs’ challenge. In doing so, the court

applied the criteria for assessing a zoning ordinance’s validity

established in Riggs v. Township of Long Beach, 109 N.J. 601,

611-12 (1988), and determined that the ordinances were a valid

exercise of municipal zoning power and were not arbitrary,

capricious, or unreasonable. The court rejected plaintiffs’ as-

applied challenge, and it granted summary judgment to the

Township on plaintiffs’ inverse condemnation claim because

plaintiffs had not exhausted their administrative remedies by

seeking a variance. The Appellate Division reversed, concluding

that the ordinances were invalid as applied to plaintiffs’

property.

4
We reverse. We conclude that the ordinances represent a

legitimate exercise of the municipality’s power to zone property

consistent with its Master Plan and Municipal Land Use Law1

(MLUL) goals, and we hold that plaintiffs have not overcome the

ordinances’ presumption of validity. The inclusion of

plaintiffs’ property in the EC district rationally relates to

the municipality’s comprehensive smart growth development plan,

which concentrated development in a town center surrounded by a

green-zone buffer. That plan had the additional benefit of

protecting a sensitive coastal ecosystem through the

preservation of undisturbed, contiguous, forested uplands, of

which plaintiffs’ property is an integral and connected part.

We therefore decline to invalidate ordinances that fulfill MLUL

goals and other legitimate land-use planning objectives through

plaintiffs’ as-applied challenge. Rather, we reassert the

importance of exhausting administrative remedies and conclude

that plaintiffs’ claim for redress for the downzoning of their

property is better addressed through their inverse condemnation

claim, which, as the trial court held, plaintiffs may pursue if

they are denied a variance.

1 N.J.S.A. 40:55D-1 to -163.
5
The Township is a predominantly rural-suburban community

with a population of approximately 6,500 according to this

record. It is bordered on the west by the Pinelands National

Reserve and to the east by Barnegat Bay. Much of the Township

is within the Oyster Creek watershed. The western portion of

the Township is governed by the New Jersey Pinelands Commission,

and the eastern portion is considered a “coastal area” under the

Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to

-33.

In the late 1990’s and early 2000’s, the Township began a

comprehensive planning process for its future growth. A

catalyst for this process was anticipated population growth and

increased development resulting from construction of a

southbound exit (Exit 69) for the Township on the Garden State

Parkway (Parkway). During this planning process, the Township

determined that it would adopt the “smart growth” principles

fostered by the State Development and Redevelopment Plan (State

Plan).

Under the State Plan, the preferred form of development is

through compact centers surrounded by low-density environs. The

purpose of this smart growth form of development is to consume

less land, deplete fewer natural resources, and use the State’s

infrastructure more efficiently. In other words, the State Plan

6
promotes sustainability principles. Smart growth stands in

contrast to “sprawl development.”

In the early 2000’s, the Township worked in concert with

the New Jersey Department of Environmental Protection (DEP), the

Office of Smart Growth, and a variety of other state agencies to

re-examine and update its Master Plan for development in

accordance with smart growth principles. The Township’s Amended

Land Use Plan Element, Circulation Plan Element, and Master Plan

Reexamination Report from November 2005 summarize the evolution

of its Master Plan during those years and detail the Township’s

goals. Overall, the 2005 Master Plan reflects the Township’s

desire to concentrate development in a town center and to

facilitate low-density environs surrounding the center, the

latter of which would both promote center-based development and

protect environmentally sensitive areas outside of the center.

As part of its planning process, on December 24, 2004, the

Township submitted a Petition for Plan Endorsement to the State

Planning Commission (Planning Commission) pursuant to the State

Planning Act, N.J.S.A. 52:18A-196 to -207, and the State

Planning Rules, N.J.A.C. 5:85-1 to -8.7. In that petition, the

Township sought to have its historic Waretown section designated

as a “town center” (Waretown Town Center). Additionally, the

Township requested changes to the planning-area boundaries that

were set forth in the State Plan. Specifically, the Township

7
sought to convert a large area of land from a PA-2 Suburban

Planning Area to a PA-5 Environmentally Sensitive Planning Area.

This area included land adjacent to the Parkway and between the

Oyster Creek watershed to the north and the Waretown Creek to

the south. The Township submitted an amended petition on June

13, 2005.

The Planning Commission endorsed the Township’s Petition

for Plan Endorsement on December 7, 2005, by Resolution 2005-3.

In the resolution, the Planning Commission noted that the Office

of Smart Growth had approved the town-center designation and the

changes in planning-area designation from PA-2 to PA-5, and that

these changes were consistent with the State Plan criteria for

Environmentally Sensitive Planning Areas. In particular, the

Planning Commission noted that the area re-designated as a PA-5

is “a rare contiguous coastal forest area that represents the

last substantial undeveloped land in the Township” whose

protection “will preserve a large contiguous ecosystem.” As a

condition of plan endorsement, Resolution 2005-03 states that

the Township “shall revise its municipal zoning ordinance to be

consistent with the master plan and planning area changes within

60 days of the endorsed plan.”

Starting in January 2006, the Township passed a series of

downzoning ordinances to facilitate its land-use goals and

accord with Resolution 2005-03. On January 12, 2006, the

8
Township enacted Ordinance 2006-06, which re-designated all

property that had been previously designated C-3 commercial to

R-2 residential zones. On September 21, 2006, the Township

adopted Ordinance 2006-34, which rezoned existing industrial

zones outside of the Waretown Town Center into an EC district.

Ordinance 2006-34 provides, in relevant part:

Section 1: The Land Use Board of the Township
of Ocean adopted a periodic examination of the
Township’s Master Plan and Land Use Element
thereof. That report, dated November 2005,
included certain amendments to the Land Use
Plan Element and Circulation Plan Element of
the Township’s Master Plan which are designed
to provide the planning framework and
foundation for implementation of the
Township’s proposed Waretown Town Center as
well as proposals to meet land use goals,
environmental goals, housing needs, open space
goals, circulation, parking, design, economic
development and utility infrastructure goals.
Specifically, the Reexamination Report
recommended that the Township’s land use
classifications be consistent with the
Township’s proposed Waretown Center Concept
Plan and further recommended that any future
sewer/water infrastructure be limited to the
Township’s town center and those areas of the
Township within the [PA-2] designation.
Consistent with the Township’s goals and
objectives, the Master Plan Reexamination
Report recommended the rezoning of the
Township’s existing I-1 and I-2 Industrial
Zoning Districts outside of the Center to an
Environmentally Sensitive land use
designation. In order to implement that
recommendation, this ordinance amends the
Township’s Zoning Ordinance to rezone the I-1
and I-2 Industrial Zone Districts located
outside of the Waretown Town Center to a new
EC, Environmental Conversation District.

9
Section 3 of Ordinance 2006-34 amended Title 18 of the Township

Code to include Chapter 18.21, which details use and density

parameters for the EC district. According to Section 18.21.010,

entitled “General Intent,” the EC district

generally corresponds to those
environmentally sensitive areas lying outside
of and to the west of the Waretown Town Center
and east of the Garden State Parkway. It is
the intent of this area to act as the low
density environs of the center. Given the
environmental[ly] sensitive characteristics
of this area, only very low density
residential development or other low intensity
uses are allowed. Protection and conservation
of the natural resources of the area is the
principal objective of the EC district.

Section 18.21.050(A)(1) placed a twenty-acre minimum lot size on

any development within the EC district. On October 30, 2006,

the Township enacted Ordinance 2006-37, which extended the

Township’s EC district to encompass all areas designated PA-5

Environmentally Sensitive under the State Plan.

On March 5, 2007, the DEP published its determination that

the Township’s changes to the planning-area designations and

town-center boundaries approved by the Planning Commission were

consistent with CAFRA, a necessary step in the Township’s land-

use planning process. See 39 N.J.R. 768(b) (Mar. 5, 2007)

(approving Township’s submissions); see also N.J.A.C. 7:7E-

5B.3(b) (providing that “the [DEP] shall evaluate the new or

10
changed [Planning Area] boundary to determine whether it is

consistent with the purposes of [CAFRA]”). The DEP concluded:

[T]he delineated community development
boundaries put forth by Ocean Township
encompass existing and planned development and
redevelopment, and recognize the extent of
environmentally sensitive lands and
waterways. The designated Waretown CAFRA Town
Center and changed State Plan Policy Map
designations concentrate the pattern of
coastal residential, commercial and resort
development and better protect vulnerable
coastal uplands and wetlands. The Waretown
CAFRA Town Center and changed State Plan
Policy Map designations are consistent with
the Coastal Zone Management Rules, N.J.A.C.
7:7E, particularly the CAFRA decision-making
process established at N.J.A.C. 7:7E-
1.5(b)1ii.

The Waretown CAFRA Town Center designation
encourages the incorporation of smart growth
designs into development and redevelopment
projects, and in more compact forms due to the
higher impervious cover limits and development
potential possible in a CAFRA Town Center.

[39 N.J.R. 768(b).]

In April 2007, plaintiffs filed their complaint in lieu of

prerogative writs against the Township, DEP, and the New Jersey

Department of Community Affairs (DCA). See R. 4:69-1. The

complaint challenged the validity of the ordinances affecting

their property (hereinafter collectively referred to as the

Ordinances).2 Plaintiffs alleged that the Ordinances were

2Plaintiffs specifically challenged Ordinance 2006-34; however,
the Township acknowledges that plaintiffs intended to challenge
11
“arbitrary, unreasonable, capricious and illegal.” Among other

claims, plaintiffs contended that the rezoning constituted

“inverse condemnation.”

Plaintiffs own approximately thirty-four acres of land in

the Township. Their landholdings consist of Lots 1.01, 1.04, 2,

3, and 6.01 in Block fifty-six of the Ocean County Tax Map. The

property extends south from its frontage along County Road 532

(CR-532, also known as Wells Mills Road) and is directly east of

the Parkway. CR-532 connects the Parkway with Route 9. The

property is bordered by intermittent residential development to

the south and east, the Waretown Cemetery and various vacant

lots to the north, and mostly undeveloped land to the west.

Plaintiffs live on a two-acre, single-family residence on

the eastern portion of Lot 2 of their property. The residence

has existed on the property since the early 1970s and was

purchased by plaintiffs in 1985. The remainder of the property

consists of undeveloped woodlands. When plaintiffs acquired the

property, it was subject to “mixed zoning” and included portions

that were zoned as R-2 residential and C-3 commercial. The C-3

commercial zone permitted various kinds of commercial

development -- including use for hotel, retail, medical, and

office facilities -- on a minimum of one-acre lots, while the R-

Ordinance 2006-06 and Ordinance 2006-37, as well. We consider
this action a challenge to all three.
12
2 residential zone permitted single-family dwellings, public

parks, and nature preserves on a minimum of two-acre lots.

As a result of the Planning Commission’s endorsement of the

Township’s Petition, all but Lot 6.01 of plaintiffs’ property

was converted from a PA-2 Suburban Planning Area to a PA-5

Environmentally Sensitive Planning Area for the purposes of the

State Plan; Lot 6.01 remained a PA-2 Suburban Planning Area.

Ordinance 2006-06 rezoned a portion of plaintiffs’ property from

C-3 commercial to R-2 residential. Ordinance 2006-37 rezoned as

an EC district all property within a PA-5 Environmentally

Sensitive Planning Area; thus, it converted all of the

plaintiffs’ property, save Lot 6.01, to an EC district. Lot

6.01, which is 2.68 acres, remains zoned for R-2 residential

development and could be developed with a single-family

residence in accordance with R-2 density restrictions of one

unit per two acres. Although plaintiffs’ single-family

residence conforms to the EC district’s density requirement of

one unit per twenty acres, no further development of their

property within the EC district is permitted under the new

zoning.

In September 2007, plaintiffs’ claims against DEP and DCA

were dismissed without prejudice. The four-day bench trial on

the Ordinances’ validity consisted largely of testimony by

13
Thomas Griepenburg and the parties’ respective planning experts:

Thomas A. Thomas, P.P., (Thomas) for plaintiffs and Stanley

Slachetka, P.P., (Slachetka) for the Township. Thomas testified

that the Ordinances are invalid as applied to plaintiffs because

the subject property does not have significant environmental

restraints such as threatened or endangered species,

floodplains, wetlands, steep slopes, or any of the usual

environmental constraints that merit protection within EC

districts. He argued that the Ordinances are unduly restrictive

because higher-density development -- particularly cluster

development -- on plaintiffs’ property would be consistent with

the Township’s land-use goals and with CAFRA regulations.

Slachetka testified that the Ordinances were enacted as

part of the Township’s smart growth planning process, which

included preservation of natural resources as a goal. In

establishing the EC district, the Township sought to protect a

sensitive coastal ecosystem by preserving a large, contiguous,

forested area and by creating a distinct boundary between the

town center and outer environs. According to Slachetka, it was

reasonable to include plaintiffs’ property in the EC district

because their property is a “key connection point” linking other

forested areas.

Based on the record developed at trial, the court found

that the Ordinances converting plaintiffs’ property to an EC

14
district had been adopted as “part of a global and comprehensive

undertaking on the part of [the Township] to employ principles

of smart growth as well as the creation and designation of a

Waretown Town Center.” The court stated that “the goal of the

Township was to achieve growth and development where there was

less sprawl and a concentration of development in a core region

along with the protection of environmentally sensitive areas.”

The court held that, in light of those legitimate goals,

plaintiffs failed to establish that the inclusion of their

property in the EC district was arbitrary, capricious, or

unreasonable. Although the evidence did not establish the

presence of freshwater wetlands, flood plains, or threatened or

endangered species on the subject property, the court concluded

that a contiguous environmentally sensitive area includes

expected habitats for threatened or endangered species.

In so holding, the court cited In re Adoption of N.J.A.C.

7:15-5.24(b) & N.J.A.C. 7:15-5.25(e), in which an Appellate

Division panel, interpreting the Freshwater Wetlands Protection

Act, defined “habitat” to include “the environment in which an

organism or biological population usu[ally] lives or grows” and

“areas in which species can be expected to live based on past

sightings.” 420 N.J. Super. 552, 569 (App. Div.) (alteration in

original) (internal quotation marks omitted) (citing In re

Adopted Amendments to N.J.A.C. 7:7A-2.4, 365 N.J. Super. 255,

15
261, 266 (App. Div. 2003)), certif. denied, 208 N.J. 597 (2011).

Based on Slachetka’s testimony that there were snake fencing and

tunnels, which are commonly used protective devices to restrict

and redirect the paths of snakes, on plaintiffs’ property, the

court concluded that the property was part of a habitat, or a

potential habitat, for endangered species, rendering its

inclusion as part of a contiguous whole not arbitrary or

unreasonable.

Concluding that the Ordinances fulfilled the four criteria

established in Riggs, supra, 109 N.J. at 611-12, the trial court

dismissed plaintiffs’ entire complaint. The court later

reinstated plaintiffs’ inverse condemnation claim and ultimately

granted the Township’s motion for summary judgment, holding that

it was not clear that an application for a variance would be

futile. The trial court’s judgment held open the opportunity

for plaintiffs to pursue an inverse condemnation claim if a

variance were to be sought and denied.

Plaintiffs appealed both decisions, and the Appellate

Division reversed in an unpublished opinion. The panel held

that the Ordinances were invalid as applied to plaintiffs

because “the downzoning is not required to serve the stated

purposes of the [O]rdinances and does not reflect reasonable

consideration of existing development in the areas where the

subject property is located.” The panel noted that “[t]he

16
subject property does not contain any environmentally distinct

features such as wetlands, floodplains, steep slopes, or open

waters. There are no threatened or endangered species located

on the subject property and no past sightings have occurred.”

The panel further reasoned that a broad interpretation of

“habitat” in a case under the Freshwater Wetlands Protection Act

was irrelevant to the case at bar.

Additionally, the Appellate Division stated that the

Township could not rely on the PA-5 designation of the property

to justify the Ordinances because “the State ‘[P]lan is not

intended to validate or invalidate any municipal code or zoning

ordinance,’” citing Mount Olive Complex v. Township of Mount

Olive, 340 N.J. Super. 511, 541 (App. Div. 2001) (alteration in

original). The panel concluded that “[i]n view of the nearby

residential development and the absence of any significant

environmental constraints upon development, the limitation of

potential future residential development of the subject property

to one unit per twenty acres is arbitrary and unreasonable.”

Because the panel concluded that the Ordinances were invalid as

applied to plaintiffs, it did not reach plaintiffs’ inverse

condemnation claim.

We granted the Township’s petition for certification. 217

N.J. 285 (2014). We also granted the motions of the Pacific

Legal Foundation (Pacific) and the New Jersey Builders

17
Association (NJBA) to participate as amici curiae.

II.

The Township maintains that the Appellate Division erred by

failing to consider that the Ordinances were part of a

comprehensive scheme for establishing a town center, protecting

the Township from sprawl and, in a coordinated fashion,

preventing the destruction of contiguous areas of inter-related

and undeveloped sensitive natural resources. The Township

argues that the EC district -- including plaintiffs’ property,

which is upland and contiguous to land comprising a

comprehensive coastal ecosystem -- represents, as found by DEP,

“the last, largely undeveloped tracts of forest in the Township

east of the [Parkway] and west of Route 9.” The Township

asserts that applying the Ordinances to plaintiffs’ property is

consistent with the Township's goal of preventing habitat

fragmentation in order to maintain coastal ecosystems, of which

plaintiffs’ property is an integral part. The Township also

contends that the Appellate Division based its decision on an

excessively narrow reading of its own decision in In re Adoption

of N.J.A.C. 7:15-5.24(b) & N.J.A.C. 7:15-5.25(e), supra, 420

N.J. Super. 552.

Plaintiffs contend that the inclusion of the subject

property in the EC district is unreasonable because the subject

18
property has no environmentally sensitive characteristics.

Plaintiffs maintain that the subject property “does not contain

any open waters, wetlands, floodplains, steep slopes, or DEP

documented [threatened and endangered species] habitat[s].”

They contend that the Township “must adequately justify the

severe development restrictions placed upon the [s]ubject

[p]roperty via the EC [district] by pointing to a concrete,

environmentally sensitive characteristic present on the

[s]ubject [p]roperty, and not mere speculation.”

Plaintiffs also assert that they have “no administrative

remedy to exhaust because any attempt to deviate from the EC

[district]’s requirements will become an exercise in futility.”

According to plaintiffs, they cannot establish “the positive or

negative criteria necessary to obtain relief from the EC

[district],” the Township’s Board of Adjustment does not have

the authority to grant a variance, and a variance would amount

to illegal zoning by variance under N.J.S.A. 40:55D-70. Hence

plaintiffs claim exemption from any duty to exhaust

administrative remedies.

The amici support plaintiffs’ arguments. Pacific argues

that the downzoning of the subject property unconstitutionally

forces plaintiffs to “bear the burden of protecting open space

on behalf of the entire community.” Pacific maintains that the

19
Township must compensate plaintiffs because it failed to

demonstrate that the Ordinances were actually concerned with

protecting environmentally sensitive areas, and contends that

the desire to maintain open space is an insufficient

justification to render a zoning ordinance reasonable. Pacific

also asserts that plaintiffs are not required to seek a variance

or otherwise exhaust their administrative remedies.

Similarly, NJBA argues that a private landowner must be

paid for limiting property to an open space use; the desire to

preserve open space alone is not a proper justification to

support a zoning ordinance so restrictive of private property.

Further, NJBA contends that “the creation of . . . open space

opportunities cannot come in the name of protecting

environmental features and/or conditions that do not exist on a

given property,” and maintains that plaintiffs’ property does

not have the environmental features that the Ordinances claim to

preserve or protect. NJBA also contends that the Township’s

reliance on its efforts to seek town-center status and plan

endorsement from the State is misplaced; the State Plan, and

related general-planning guides, are not sound bases for

supporting the validity of a zoning ordinance. Finally, NJBA

argues that plaintiffs are not required to exhaust their

administrative remedies by seeking a variance before seeking

relief from the Ordinances in court.

20
III.

The power to zone is fundamentally an exercise of the

State’s police power. Taxpayers Ass’n of Weymouth Twp. v.

Weymouth Twp., 80 N.J. 6, 20 (1976), appeal dismissed and cert.

denied, 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977).

The 1947 New Jersey Constitution vested that power in the

Legislature and authorized the Legislature to delegate the

zoning power to municipalities. N.J. Const. art. 4, § 6, ¶ 2;

see Rumson Estates, Inc. v. Mayor of Fair Haven, 177 N.J. 338,

349 (2003). The Legislature has delegated zoning power to

municipalities with the enactment of the MLUL, N.J.S.A. 40:55D-1

to -163, “a comprehensive statute that allows municipalities to

adopt ordinances to regulate land development ‘in a manner which

will promote the public health, safety, morals and general

welfare’ using uniform and efficient procedures.” Rumson

Estates, supra, 177 N.J. at 349 (quoting Levin v. Twp. of

Parsippany-Troy Hills, 82 N.J. 174, 178-79 (1980)).

Courts recognize certain well-established principles when

adjudicating a challenge to a zoning ordinance’s validity.

Most fundamental is that a zoning ordinance is
“insulated from attack” by a presumption of
validity. The party challenging the ordinance
bears the burden of overcoming that
presumption. Reviewing courts should not be
concerned over the wisdom of an ordinance. If
debatable, the ordinance should be upheld.

[Id. at 350-51 (citations omitted).]

21
That said, an ordinance must not be inconsistent with state or

federal constitutional requirements or other preempting legal

authority. Id. at 351. Furthermore, a zoning ordinance must

conform to MLUL requirements and further MLUL goals. See Rumson

Estates, supra, 177 N.J. at 351 (citing William M. Cox, New

Jersey Zoning and Land Use Administration, § 37-4 at 837

(2003)); Riggs, supra, 109 N.J. at 611; see also N.J.S.A.

40:55D-2. To facilitate judicial review of challenges to

municipal zoning ordinances, Riggs established a four-part,

objective test for an ordinance’s validity:

First, the ordinance must advance one of the
purposes of the [MLUL] as set forth in
N.J.S.A. 40:55D-2. Second, the ordinance must
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, unless the requirements of that
statute are otherwise satisfied. Third, the
ordinance must comport with constitutional
constraints on the zoning power, including
those pertaining to due process, equal
protection, and the prohibition against
confiscation. Fourth, the ordinance must be
adopted in accordance with statutory and
municipal procedural requirements.

[Id. at 611-12 (citations and internal
quotation marks omitted).]

Guided by that test and the well-established principles

applicable to challenges to municipal zoning ordinances, we turn

to the Ordinances involved in this matter.

IV.

22
A.

In this appeal from a non-jury trial, we give deference to

the trial court that heard the witnesses, sifted the competing

evidence, and made reasoned conclusions. See Rova Farms Resort

v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Reviewing

appellate courts should “not disturb the factual findings and

legal conclusions of the trial judge” unless convinced that

those findings and conclusions were “so manifestly unsupported

by or inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice.” Id.

at 484 (citation and internal quotation marks omitted); see,

e.g., Seidman v. Clifton Sav. Bank, 205 N.J. 150, 169 (2011)

(stating same). Conclusions of law are subjected to the normal

de novo review on appeal. See Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Here, the trial court determined that the Ordinances’

creation of the EC district, and the inclusion of plaintiffs’

property in the newly zoned EC district, was a valid exercise of

zoning power. The trial court made a number of important

findings in reaching its conclusion.

In examining their overall validity, the trial court found

that the Ordinances represented the culmination of a

comprehensive land-use planning process that included a makeover

of the Township’s Master Plan. In the words of the trial court,

23
the Township engaged in a “global and comprehensive undertaking”

to adopt and employ smart growth principles and to create and

obtain the designation of a Waretown Town Center. The trial

court determined that the Township pursued sound land-use

planning objectives when it decided to concentrate development

near the Waretown Town Center while simultaneously preserving

and protecting environmentally sensitive regions on the

periphery of the Township. Specifically, the trial court tied

its findings to the Riggs test and to MLUL goals when assessing

the reasonableness of the Ordinances.

In addressing the four Riggs factors, the court summarily

found that there was no challenge to the fourth factor. That

factor required the Ordinances to be adopted in accordance with

statutory and municipal requirements. The trial court proceeded

to make detailed findings from the record evidence with respect

to the remaining factors:

[As to the first Riggs factor, t]he
Township’s planner Slachetka provided
credible testimony that the [O]rdinances
advanced several purposes of the MLUL. These
purposes included the promotion of smart
growth, prevention of sprawl and provisions
for light, air and open space. Other purposes
advanced included the support for state and
regional planning goals, establishment of
appropriate population densities and the
conservation and preservation of
environmentally sensitive lands with the
development of the Waretown Town Center. [As
to the second Riggs factor, t]he court finds
that the ordinances were “substantially

24
consistent with the Land Use Plan Element and
Housing Plan Element of the Master Plan which
under the Town Center proposal also included
provisions for affordable housing. The
Township planner also provided credible
testimony that satisfied the third criterion
[of the Riggs test] in that the ordinances did
not focus on a single property owner or even
a group of property owners. Slachetka’s
report in evidence listed the ten largest
property owners in the EC [district] with
acreage ranging from 13.17 acres to 292.76
acres. The Township pointed out the property
west of the Parkway within Pinelands
jurisdiction is also restricted to one
dwelling for every 20 acres. The zoning
schemes were part of a comprehensive plan and
planning process which assessed the character
of each of the districts consistent with long-
range smart growth planning policies. This is
evident by virtue of the efforts undertaken by
the Township in its petition for Plan
Endorsement for designation of Waretown as a
“Town Center.”

. . . .

[In sum, t]he court finds that Ocean
Township undertook a deliberative and
comprehensive planning effort that spanned
several years to achieve its desired [M]aster
Plan. The process embraced smart growth and
planning from a local and regional approach at
all levels of government. Ordinance 2006-34
was designed to provide the “foundation for
implementation of the Township’s proposed
Waretown Town Center as well as proposed land
use goals, environmental goals, housing needs,
open space goals, circulation, parking,
design, economic development and utility
infrastructure goals.” As a result, Chapter
18 was amended to include a new Chapter 18-21
entitled “EC Environmental Conservation
District” which limited development in that
district to one residential dwelling for every
20 acres. [T]he EC [d]istrict corresponded to
those environmentally sensitive areas outside

25
of and west of the EC [d]istrict and the
Waretown Town Center, as well as east of the
[Parkway]. The intent of the EC [d]istrict
was to provide the low density environs of the
Center and permit only very low density
residential development for the protection and
conservation of natural resources as a
principle objective.

The trial court’s analysis properly adhered to the Riggs

criteria, and its findings as to each criterion were grounded on

substantial and credible evidence presented. The court’s

factual findings supported its determination that the Ordinances

complied with the MLUL requirement of consistency between zoning

ordinances and a town’s master plan. N.J.S.A. 40:55D-62.

Further, those findings indicated that the Ordinances advanced

the following MLUL goals: “[t]o encourage municipal action to

guide the appropriate use or development of all lands in this

State, in a manner which will promote the public health, safety,

morals, and general welfare,” N.J.S.A. 40:55D-2(a); “[t]o

provide adequate light, air and open space,” N.J.S.A. 40:55D-

2(c); and “[t]o ensure that the development of individual

municipalities does not conflict with the development and

general welfare of neighboring municipalities, the county and

the State as a whole,” N.J.S.A. 40:55D-2(d).

Consistent with its responsibilities in a bench trial, the

court clearly and thoroughly explained the record bases for its

findings and conclusions in this case. We defer to the soundly

26
based determination that all of the Riggs factors were satisfied

and that the challenged Ordinances are valid. Furthermore, the

court found that the Ordinances advanced goals separate and in

addition to the identified MLUL goals. It concluded that the

Ordinances were consistent with the Township’s Master Plan,

planning objectives embodied in the State Plan, and other land-

management and environmental laws and regulations. While the

court did not refer to the latter as justification for finding

the Ordinances reasonable and valid, the Ordinances’ compliance

with such other land-use planning measures neither renders them

invalid under the MLUL nor arbitrary or unreasonable.

The trial court further determined that the Township’s

inclusion of plaintiffs’ property in the EC district, with its

attendant restrictions, was “reasonably related and calculated

to achieve the purposes of the challenged zoning ordinances.”

However, the Appellate Division reached a contrary determination

on plaintiffs’ as-applied challenge, finding that there was no

evidence of threatened or endangered species on the subject

property and that the property lacked specific environmental

constraints, such as “wetlands, flood plains, steep slopes, [or]

open waters.” Those arguments were advanced before the trial

court and rejected; the Appellate Division reversed the trial

court’s judgment on those bases and ordered plaintiffs’ property

27
returned to the zoning it enjoyed before creation of the EC

district.

As to the Appellate Division’s determination based on

plaintiffs’ as-applied challenge, differing reasoning leads us

to reverse the appellate judgment.

The appellate panel employed an overly narrow view of the

Township’s land-use planning goals by insisting that evidence in

the record must show the presence of endangered species or

certain specific environmental conditions on plaintiffs’

property. At trial, Slachetka explained that the Ordinances had

been developed as part of a smart growth approach intended to

concentrate sustainable development in a core region of the

Township and thereby reduce sprawl. Equally important,

restricting development to the concentrated town-center area

would simultaneously protect extended corridors of open space,

identified by the DEP as preciously unique forested coastal

uplands, and it would prevent habitat fragmentation and avoid

the risk of its loss in an environmentally sensitive coastal

area. Thus, contrary to plaintiffs’ and amici’s arguments, the

rezoning that occurred in the Township and that included a

downzoning of plaintiffs’ property cannot fairly be distilled to

the assertion that this constituted the creation of open space

for the sake of having open space in the community.

28
Slachetka’s testimony demonstrated that, in particular, the

entire EC district was formed to “correspond[] to those

environmentally sensitive areas lying outside of and to the west

of the Waretown Town [C]enter and east of the Parkway.” To help

demonstrate the environmentally sensitive nature of the

plaintiffs’ property and related environment surrounding it --

which plaintiffs’ property connected and made contiguous --

Slachetka drew support from DEP’s determination that designating

the proposed Environmentally Sensitive Planning Area “will aid

in the preservation of a large contiguous ecosystem that drains

to Barnegat Bay, a keystone environmental and economic resource

for Southern New Jersey.” See 39 N.J.R. 768(b). As Slachetka

noted, when performing its regulatory approval responsibility as

part of the multi-agency review involved in the Township’s Town

Center planning process, the DEP further concluded that

the delineated community development
boundaries put forth by Ocean Township
encompass existing and planned development and
redevelopment, and recognize the extent of
environmentally sensitive lands and
waterways. The designated Waretown CAFRA Town
Center and changed State Plan Policy Map
designations concentrate the pattern of
coastal residential, commercial and resort
development and better protect vulnerable
coastal uplands and wetlands.

[Ibid.]

Plaintiffs consistently argued that their property

contained neither evidence of any endangered species, nor open

29
waters, wetlands, flood plains, or steep slopes. However, the

record indicates that that was not the justification for the

Township’s objectives as presented to the many reviewing

agencies when achieving Town Center status and adopting its

Ordinances pursuant to MLUL goals. The Township has not

asserted that each and every parcel included in the EC district

is included because it contains evidence of some endangered

species or the specific environmental conditions set forth by

plaintiffs. Nor must it do so in order to justify its planning

objective from an environmental public welfare standpoint.

Plaintiffs’ property’s inclusion in the EC district must be

measured against the Township’s actual objectives in enacting

the Ordinances. The Township planned to create a contiguous

tract, or corridor, of environmentally related, sensitive

coastal uplands in order to preserve and protect coastal habitat

and ecosystems and to provide a buffer for its corresponding

intention to promote smart growth in a sustainable, concentrated

town center. As the DEP approval noted, the protection of

vulnerable coastal uplands is a legitimate environmental-welfare

concern. The Township repeatedly emphasized its broad planning

objective to protect a sensitive coastal ecosystem through the

preservation of large areas of undisturbed, contiguous habitat,

which included plaintiffs’ property. The record developed by

the Township supported that much of the area surrounding the

30
subject property is undeveloped or undevelopable, and that the

land west of the Parkway in the neighboring town is similarly

zoned for residential use, one unit per twenty acres. Those

facts supported the Township’s assertion, and the trial court’s

findings and conclusion, that the property was appropriately

zoned to achieve the goal of promoting smart, sustainable growth

through concentrated development in the Waretown Town Center,

with a robust “green belt” in the outer areas of the Township.

Based on the record, which included Slachetka’s testimony

about the ecosystem of which plaintiffs’ property was a part, as

well as evidence showing that plaintiffs’ property connected and

was related to other undeveloped forested properties that

constituted habitat for endangered snakes and other wildlife,

the trial court acted within its authority when concluding that

designating plaintiffs’ property as part of the EC district was

not arbitrary or capricious.3 We defer to the trial court’s

conclusion that the use and density restrictions placed on the

property by the Ordinances reasonably furthered the goal of

providing “low density environs” outside of the Waretown Town

3 It also bears noting that plaintiffs failed to proffer any
expert evidence to support their claims that habitat differences
should have resulted in different treatment of their property in
the EC district zoning determination, notwithstanding that
plaintiffs bore the burden of proving the Ordinances were
arbitrary and capricious for their inclusion of plaintiffs’
property in the EC district.
31
Center and of permitting “only very low density residential

development for the protection and conservation of natural

resources.”

To the extent that the Appellate Division also found that

the Ordinances were invalid as applied to plaintiffs because

“the downzoning . . . does not reflect reasonable consideration

of existing development in areas where the subject property is

located,” we note the trial court’s reasonable determinations

are entitled to deference and that the zoning Ordinances enjoy

presumptive validity. The record contained support for the

trial court’s rejection of plaintiffs’ request that these

presumptively valid Ordinances be invalidated as applied to them

on this basis. Moreover, we accept and find important in this

analysis that the trial court determined that the Ordinances

were not designed specifically to inhibit development on the

plaintiffs’ property. However, plaintiffs may raise this

argument in a request for relief from the rezoning through a

variance application, the procedure better suited to address

that issue.

It bears emphasizing that this case exemplifies the

salutary effects to be derived from adherence to the doctrine of

exhaustion of administrative remedies. See R. 4:69-5. That

doctrine generally requires landowners to pursue available

32
administrative remedies prior to bringing as-applied challenges

to zoning ordinances.

In this matter, plaintiffs and amici argue that plaintiffs

were not required to exhaust their administrative remedies by

seeking a variance before initiating their as-applied challenge

to the Ordinances. In support, they cite Pheasant Bridge Corp.

v. Township of Warren, 169 N.J. 282 (2001), cert. denied, 535

U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002), in which

this Court invalidated an ordinance as applied to the

plaintiff’s property without requiring the plaintiff to first

seek variance relief. See id. at 294 (stating that there was

“no justification for requiring plaintiff to seek variance

relief”). Despite our conclusion in that case, Pheasant Bridge

should not be read to suggest that a landowner challenging an

ordinance as applied to his or her property is excused from

first exhausting administrative remedies. To the contrary, a

landowner who wishes to challenge the validity of an ordinance

as applied must normally exhaust administrative remedies by

seeking a variance before initiating an action at law.

Rule 4:69-5 imposes a duty to exhaust administrative

remedies before initiating actions at law “[e]xcept where it is

manifest that the interest of justice requires otherwise.” As

previously explained, “the exhaustion of remedies requirement is

a rule of practice designed to allow administrative bodies to

33
perform their statutory functions in an orderly manner without

preliminary interference from the courts.” Brunetti v. Borough

of New Milford, 68 N.J. 576, 588 (1975). Therefore, there is “a

strong presumption favoring the requirement of exhaustion of

remedies.” Ibid. Nonetheless, the requirement of exhaustion is

not absolute and “[e]xceptions are made when the administrative

remedies would be futile, when irreparable harm would result,

when jurisdiction of the agency is doubtful, or when an

overriding public interest calls for a prompt judicial

decision.” N.J. Civil Serv. Ass’n v. State, 88 N.J. 605, 613

(1982) (citing Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79

N.J. 549, 561 (1979)).

This Court has applied those principles to landowner

challenges to the validity of municipal zoning ordinances. See

AMG Assocs. v. Twp. of Springfield, 65 N.J. 101, 109 n.3 (1974)

(“[R]elief should first be sought by way of variance under

N.J.S.A. 40:55-39(d), for in such situations the local

administrative agencies can generally adequately deal with the

problem.”); Bow & Arrow Manor, Inc. v. Town of W. Orange, 63

N.J. 335, 350 (1973); Deal Gardens, Inc. v. Bd. of Trs. of Loch

Arbour, 48 N.J. 492, 497-98, (1967) (“[A] court should

‘ordinarily’ decline to adjudicate the attack upon the ordinance

until the owner has exhausted his remedy before the board of

adjustment.”); Kozesnik v. Twp. of Montgomery, 24 N.J. 154, 183

34
(1957); Conlon v. Bd. of Pub. Works of Paterson, 11 N.J. 363,

369-70 (1953); Fischer v. Twp. of Bedminster, 11 N.J. 194, 206

(1952) (“If the plaintiff is dissatisfied with the application

of the zoning laws to his particular property, he may apply to

the board of adjustment for a variance.”). Specifically, in as-

applied challenges, we have held that landowners generally have

an obligation to exhaust their administrative remedies by first

applying for a variance:

[When a] zoning ordinance is not claimed to be
invalid in its entirety but only to be
arbitrary and unreasonable in its application
to the owner’s land, and relief in that
circumstance may be obtained from a local
board of adjustment, the trial court should
ordinarily decline to adjudicate an attack
upon the ordinance until after the owner has
exhausted his remedy to seek relief from the
local board of adjustment.

[Conlon, supra, 11 N.J. at 370.]

The variance process is particularly well suited to

determining whether an otherwise valid ordinance creates a

hardship as applied to a particular property. Well-respected

land-use commentators have explained the reasons for courts’

adherence to the exhaustion requirement until after completion

of the variance process:

The variance process exists for the very
purpose of determining whether the ordinance,
adopted for legitimate purposes, creates a
hardship when applied to a particular
property. This is central to the entire
structure of the MLUL; that local boards, with

35
their unique perspective on local conditions,
are in the best position to understand how
most reasonably to alleviate the hardships
that arise under an otherwise legitimate
zoning ordinance, in particular cases and
pertaining to particular properties.
Interposing a court’s judgment before allowing
this process to go forward amounts to an
arrogation of power that the [L]egislature has
delegated, through the MLUL, to local
governing units.

[William M. Cox & Stuart R. Koenig, New
Jersey Zoning and Land Use Administration, §
35-5 at 888 (2014).]

Consistent with general exhaustion doctrine, where “past events

or other circumstances make it clear that initial or further

resort to the local administrative process would be futile,” a

landowner may bypass the administrative process and pursue an

as-applied challenge at law. See AMG Assocs., supra, 65 N.J. at

109 n.3. Thus, notwithstanding Pheasant Bridge, supra, 169 N.J.

282,4 landowners challenging the validity of a municipal

ordinance as to their property should normally first seek a

variance in accordance with these principles.

In this case, applying the exhaustion principles

articulated above, plaintiffs should have first sought a

variance before pursuing either an as-applied challenge or an

inverse condemnation claim because none of the exceptions to the

4 In Pheasant Bridge, supra, cessation of the dispute played a
significant role in the procedural handling of the matter and
exhaustion of remedies was not an overt issue in the appeal.
169 N.J. at 294.
36
exhaustion doctrine apply. Indeed, when dismissing plaintiffs’

inverse condemnation action, the trial court specifically

commented that it had no basis for concluding that an

application for administrative relief would be futile. The

Township made similar representations to this Court during oral

argument. Its counsel stated that there is no reason to assume

that any application by plaintiffs for a variance would be an

exercise in futility. In the absence of clear evidence that

administrative relief is foreclosed to plaintiffs, exhaustion of

such relief is the remedy that is best. Thereafter, an inverse

condemnation action will be the appropriate vehicle for relief

to plaintiffs if their application for a variance is for naught.

We recognize that, at the end of the day, plaintiffs may well be

entitled to relief through the variance or inverse condemnation

process.

The judgment of the Appellate Division is reversed and the

judgment of the trial court is reinstated.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUSTICE LaVECCHIA’s opinion. JUDGE
CUFF (temporarily assigned) did not participate.

37
SUPREME COURT OF NEW JERSEY

NO. A-55 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court