PETER JUNGKUNST VS. MAYOR AND TOWNSHIP COUNCIL OF THE TOWNSHIP OF OCEAN (L-1467-18, MONMOUTH COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 4, 2020
• Docket: A-0038-18T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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

A-0038-18T4 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

A-0038-18T4 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 12 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 13 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 14 Affirmed.

A-0038-18T4 15