NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0038-18T4
PETER JUNGKUNST and
JACQUI WENZEL,
Plaintiffs-Appellants,
v.
MAYOR AND TOWNSHIP
COUNCIL OF THE TOWNSHIP
OF OCEAN and OCEAN
TOWNSHIP PLANNING BOARD,
Defendants-Respondents.
______________________________
Argued January 23, 2020 – Decided September 4, 2020
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-1467-18.
Dennis Michael Galvin argued the cause for appellants
(Davison, Eastman, Munoz, Paone, PA, attorneys;
Dennis Michael Galvin, of counsel and on the brief;
Peter Jungkunst and Jacqui Wenzel, on the pro se brief).
Martin J. Arbus argued the cause for respondent Mayor
and Township Council of the Township of Ocean
(Arbus, Maybruch & Goode, attorneys; Martin J.
Arbus, on the brief).
Sanford D. Brown argued the cause for respondent
Ocean Township Planning Board.
PER CURIAM
Plaintiffs Peter Jungkunst and Jacqui Wenzel appeal the July 20, 2018
orders that dismissed their complaint in lieu of prerogative writs under Rules
4:6-2 and 4:69-6. The complaint challenged the validity of Ocean Township
Ordinance 2303 (the Ordinance), claiming it was not substantially consistent
with Ocean Township's Master Plan and amendments (count one), and alleged
plaintiffs were denied due process by the Ocean Township Planning Board
(Planning Board) because it did not permit public comment about the Ordinance
(count two). We affirm the trial court's orders.
I.
The Ordinance was adopted by the Ocean Township Council (Council) on
March 8, 2018. Pa4. It rezoned lot 19.01, block 33 to "C-7 Community Mixed
Use."
The Ordinance was introduced on November 9, 2017, and referred to the
Planning Board pursuant to N.J.S.A. 40:55D-26(a) and 40:55D-64 for its
determination whether the Ordinance was substantially consistent with the
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2
Township's 1990 Master Plan and Plan amendments. James Higgins, the
Township Planner, provided a report to the Planning Board on November 21,
2017, in which he concluded the Ordinance was substantially consistent. He
described the area as:
approximately [twenty-eight] acres that are isolated
from the surrounding commercial and residential uses
. . . . [T]he site is bordered by wetlands and flood plains
to the north, the municipal library, historical society
and human services complex to the east; Deal Road,
open space and the rear of residential properties across
Deal [Road] to the south; and commercial uses across
Route 35, including [five] lanes of traffic and a barrier.
Because of this isolation, the site is unique in the
Township. The site is currently vacant and wooded.
Higgins described the zoning history of the parcel. Until 1987, the front
or western portion was zoned "C-2," meaning commercial uses were permitted,
and the rear portion to the east was zoned "R-1" residential. The zoning in the
front section was changed over the years from C-2 to O-2 and then O-1/80,
which permitted office uses and accessory retail uses. The rear portion was
changed to R-1T and would permit forty residences. When the 1990 Master
Plan was reexamined in 2000 and the reexamination report was adopted, "the
area was designated to include an overlay zone, which provided for intensive
commercial use on the entire portion of the area . . . ." The overlay would permit
all commercial uses in the C-2 zone. It also would have permitted sixty-one
A-0038-18T4
3
residential units with a minimum lot size of 22,500 square feet in the eastern
portion. In 2005, the zoning was changed again, to a "C-6" zone, which
"removed the underlying zoning and overlay zone, and permitted commercial
development with up to [one hundred] senior apartments above the commercial
uses . . . ." This included personal services, neighborhood retail services ,
restaurants, community retail and offices. Higgins noted the area was never
designated for acquisition for conservation, open space or recreation.
The Ordinance provided for commercial use in the western portion and
residential use in the eastern portion "in the form of either townhouses or single
family residential . . . ." Higgins concluded "based on the past Master Plan
treatment, past actions of the Planning Board, past zoning of the site, and the
unique character of the site, proposed Ordinance 2303 is consistent with the
intent and purpose of the Master Plan as it relates to future development of this
site."
The Planning Board considered the Ordinance at its regular meeting on
November 27, 2017. It did not take comments from the public. "While the issue
of public comment was being discussed [by the Board], the members of the
public became unruly and started shouting and disturbing the meeting." The
Board voted unanimously to recommend approval of the Ordinance to the
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4
Township Council. In a memorandum by Ronald Kirk, Director of Community
Development, he reported to the Township Clerk that the Planning Board
concluded "the proposed Ordinance was substantially in conformance with the
Township's Master Plan."
The Township Council initially scheduled a public hearing about the
Ordinance in December 2017 but rescheduled it to March 8, 2018. By that time,
the Ordinance had been modified to increase "certain buffers between the
proposed development and the neighboring property owners."
On March 8, 2018, following notice and publication, the Township
Council conducted a three-hour public hearing about the Ordinance. The
Council limited public comments to five minutes but allowed commenters to
speak more than once. At the conclusion of the public hearing, the Council
voted to approve the Ordinance.
On April 23, 2018, plaintiffs filed a complaint in lieu of prerogative writs.
Count One alleged the Ordinance violated N.J.S.A. 40:55D-62(a), which
requires zoning ordinances to be "substantially consistent" with the land use
element of the Township's Master Plan. Count Two alleged the Planning Board
failed to comply with due process at its November 27, 2018 public hearing by
"den[ying] the public from commenting or giving any testimony with respect to
A-0038-18T4
5
the proposed Ordinance." Plaintiffs requested a declaration the Ordinance is not
consistent with the Master Plan or the 2000 reexamination, or a finding the
Council did not justify inconsistencies and a declaration the Ordinance is void
ab initio.
Defendant Planning Board filed a motion to dismiss the complaint under
Rules 4:6-2(a) and 4:69-6. Defendants Mayor and Council also filed a motion to
dismiss or for summary judgment.
In support of the motion, Higgins certified his November 2017 review of
the Ordinance showed it was "substantially consistent with the intent and
purposes of the Master Plan and its amendments." It provided for critical
roadway improvements and for commercial development at the site. The same
C-2 uses were permitted in the front portion. The back portion permitted "less
intensive residential development, as opposed to a large commercial
development . . . ." There also would be substantial buffering as indicated in
the Master Plan and reexamination report. He noted that under the 2005 zoning
amendment, one hundred residential units were allowed above the commercial
space. Kirk certified the Planning Board adopted the 2000 reexamination of the
Master Plan on December 11, 2000.
A-0038-18T4
6
Plaintiffs opposed the motions, submitting a certification from Peter
Steck, a professional licensed planner, who asserted the Planning Board never
amended the 1990 Master Plan to include the 2000 reexamination. He opined
the Ordinance "include[ed] for the first time retail and personal service uses,
restaurants, as well as automotive service stations with convenience stores" and
town houses. He concluded the Ordinance was not substantially consistent with
either the Master Plan or the 2000 reexamination report. Because of this, an
explanatory resolution was needed by the Council to approve the Ordinance, but
this procedure was not followed. He did not mention the 2005 amendments.
There is no indication his opinions were provided to the Council or the Planning
Board prior to their approvals.
The court heard the motions on July 20, 2018 and dismissed the complaint.
The court found the Township adopted a Master Plan in 1990, which designated
the front portion of the tract for commercial use and the rear portion for
residential use. The 2000 reexamination report proposed development of the
entire tract for commercial use. There also was a 2005 amendment that zoned
the entire parcel as commercial and allowed one hundred residential units to be
built above the retail space. This was not challenged as inconsistent w ith the
1990 Master Plan or the 2000 reexamination report.
A-0038-18T4
7
The court found the Planning Board was not required by N.J.S.A. 40:55D-
62(a) "to hold a public hearing or take public comment upon a proposed
ordinance" but is to "review the proposal and provide its review to the governing
body." The court dismissed plaintiffs' claim against the Planning Board, finding
no legal basis for it.
The court found plaintiffs did not comply with Rule 4:69-4, which
required them to certify they ordered the official transcripts of all relevant
proceedings. Plaintiffs did not supply a transcript of the November 9, 2017
proceeding. Also, the transcripts of the November 27, 2017 and March 8, 2018
proceedings, which were supplied, did not indicate who prepared them.
The court rejected plaintiffs' claim the reexamination report from 2000
was not adopted officially. There was unrebutted proof this amendment was
adopted by the Board on December 11, 2000.
The court found plaintiffs did not show the Ordinance was arbitrary,
capricious or unreasonable. Procedurally, all requirements of the statute were
met. The Ordinance was "substantially consistent" with the Master Plan and
amendments. There was no basis for the case to go forward.
On appeal plaintiffs raise these issues:
A-0038-18T4
8
POINT I
PRIOR TO ZONING ORDINANCE #2303 LOT-
TRACT WAS ZONED OFFICE IN THE 1990
MASTER PLAN AND C-2 AND C-6 BY PRIOR
ZONING ORDINANCES.
POINT II
REEXAMINATION REPORTS ARE NOT THE
SAME AS THE 1990 MASTER PLAN.
POINT III
ORDINANCE #2303 VIOLATES THE MUNICIPAL
LAND USE LAW AND IS INCONSISTENT [WITH]
SOUND PLANNING.
POINT IV
A TRIAL COURT MUST HOLD A PLENARY
HEARING WHEN A COMPLAINT RAISES A
GENUINE ISSUE OF MATERIAL FACT.
In their reply brief, plaintiffs argue:
I. THIS MATTER SHOULD NOT HAVE BEEN
DISMISSED DUE TO THE QUALITY OF THE
TRANSCRIPTS[.]
II. THE COURT BELOW ERRED BY DECIDING
THIS MATTER ON A MOTION TO DISMISS
WITHOUT CONDUCTING A CASE
MANAGEMENT CONFERENCE AS REQUIRED BY
RULE 4:69-4[.]
II.
"[W]hen reviewing the decision of a trial court that has reviewed
municipal action, we are bound by the same standards as was the trial court. "
A-0038-18T4
9
Fallone Props., LLC v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562
(App. Div. 2004). Therefore, our review here is limited.
"[P]ublic bodies, because of their peculiar knowledge of local conditions,
must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd.
of Adjustment, 184 N.J. 562, 597 (2005). Therefore, "[t]he proper scope of
judicial review is not to suggest a decision that may be better than the one made
by the board, but to determine whether the board could reasonably have reached
its decision on the record." Ibid. As a reviewing court, we are not to substitute
our judgment for that of the local board unless there is a clear abuse of
discretion. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 82
(2002) (citing Med. Realty Assocs. v. Bd. of Adjustment, 228 N.J. Super. 226,
233 (App. Div. 1988)).
"A presumption of validity attaches to a zoning ordinance that may be
overcome only if an opponent of the ordinance establishes the ordinance is
'clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental
principles of zoning or the [zoning] statute.'" Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 380 (1995) (alteration in original) (quoting
Bow & Arrow Manor, Inc. v. Town of W. Orange, 63 N.J. 335, 343 (1973)).
"[A] court may declare an ordinance invalid if in enacting the ordinance the
A-0038-18T4
10
municipality has not complied with the requirements of the statute." Riggs v.
Long Beach Twp., 109 N.J. 601, 611 (1988) (citing Taxpayer Ass'n of
Weymouth Twp., Inc. v. Weymouth Twp., 80 N.J. 6, 21 (1976)). "Anyone
challenging an ordinance [or resolution] as arbitrary or unreasonable bears a
heavy burden." First Peoples Bank v. Twp. of Medford, 126 N.J. 413, 418
(1991) (citing Dome Realty, Inc. v. City of Paterson, 83 N.J. 212, 235 (1980)).
To determine the validity of an ordinance, Riggs applied these tests:
First, the ordinance must advance one of the purposes
of the [Municipal Land Use Law] 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.
[Griepenburg v. Twp. of Ocean, 220 N.J. 239, 253
(2015) (quoting Riggs, 109 N.J. at 611–12 ).]
We are satisfied plaintiffs have not presented sufficient grounds to
overcome the Ordinance's presumption of validity. We agree with the trial court
that the Ordinance was not arbitrary, capricious, or unreasonable.
A-0038-18T4
11
Plaintiffs have not shown that the Township Council or Planning Board
failed to follow appropriate procedures in adopting the Ordinance. Plaintiffs
believed they would be able to make public comments before the Planning
Board. However, "public bodies are given discretion in how to conduct their
meetings." Kean Fed'n of Teachers v. Morell, 233 N.J. 566, 571 (2018) (citing
N.J.S.A. 10:4-12(a)). In this case we find no violation by the Planning Board.
See William M. Cox & Stuart R. Koenig, N.J. Zoning & Land Use
Administration § 10-2.1 at 152 (2020). The Council then held a three-hour
public hearing. Although it set a five-minute time limit for comments, the
Council allowed individual citizens to address the Council multiple times.
Plaintiffs addressed the Council three separate times.
Plaintiffs contend the Ordinance is not substantially consistent with the
1990 Master Plan or the 2000 reexamination report. "[An] ordinance must be
substantially consistent with the land-use plan element and the housing plan
element of the Master Plan except for a few statutory exemptions . . . ."
Manalapan, 140 N.J. at 380; see N.J.S.A. 40:55D–62(a). The requirement that
zoning ordinances be "substantially consistent" with the master plan "permits
some inconsistency, provided it does not substantially or materially undermine
or distort the basic provisions and objectives of the Master Plan." Riya
A-0038-18T4
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Finnegan, LLC v. Twp. Council of S. Brunswick, 197 N.J. 184, 192 (2008)
(quoting Manalapan, 140 N.J. at 384).
The 1990 Master Plan allowed for commercial development in the western
portion of the track and residential development in the eastern portion. The 2000
reexamination "recommended . . . overlay zones," and that the "prior underlying
assumption that an area can be properly zoned for only one use be modified to
include the implementation of the planning tool of 'overlay zoning' . . . ." The
2000 reexamination allowed for cluster development of sixty-one units with a
minimum lot size of 22,500 square feet in the eastern portion. The 2005
amendment allowed C-2 zoning throughout the parcel but limited the size of the
units. It allowed one hundred residences above the commercial site. Because
the Ordinance continues to allow for commercial development in the front
portion of the parcel and for residential development of the eastern portion of
this lot, we agree the trial court did not err by finding that the Council was not
arbitrary, capricious or unreasonable in concluding the Ordinance substantially
complied with the Master Plan, the 2000 reexamination and the 2005 zoning
amendment.
There is no indication that plaintiffs' expert testified before the Council or
that his opinion was part of the record before the Council or the Planning Board.
A-0038-18T4
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Moreover, his certification did not reference the 2005 amendments that allowed
for commercial uses throughout the tract. And, to the extent the certification
indicated there were first time commercial uses allowed by the Ordinance, the
record did not support this.
In their reply, plaintiffs argue there should have been a case management
conference. They also argue the case should not have been dismissed due to the
quality of the transcripts. Neither argument was raised by plaintiffs in their
merits brief. See Drinker Biddle & Reath, LLP v. N.J. Dep't of Law & Pub.
Safety, Div. of Law, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (noting that
claims not addressed in merits brief are deemed abandoned). That said, a case
management conference would have been helpful regarding the transcripts, but
plaintiffs do not refute that the 2000 reexamination report was adopted by the
Planning Board, that there was a 2005 amendment to the zoning, or that Steck
did not testify before the Council or submit his position to the Planning Board.
There is no indication the decision by Council was expedited. Council
scheduled the ordinance for December 2017 but then adjourned it until March
2018. Plaintiffs cite no reason that a motion to dismiss or for summary judgment
was not permitted by the Rules in prerogative writs matters. Plaintiffs do not
say in what manner the non-produced transcripts would have aided their causes.
A-0038-18T4
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Affirmed.
A-0038-18T4
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PETER JUNGKUNST VS. MAYOR AND TOWNSHIP COUNCIL OF THE TOWNSHIP OF OCEAN (L-1467-18, MONMOUTH COUNTY AND STATEWIDE)
Combined Opinion