NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2568-13T2

JOHN E. MYERS, TRUSTEE, and

DIANE D. MYERS, TRUSTEE,

Plaintiffs-Respondents,

v.

OCEAN CITY ZONING BOARD OF

ADJUSTMENT,

Defendant-Respondent,

and 

CITY OF OCEAN CITY,

Defendant-Appellant.

______________________________

Argued September 16, 2014 – Decided 

Before Judges Messano, Ostrer and Sumners.

On appeal from the Superior Court of New 

Jersey, Law Division, Cape May County, 

Docket No. L-381-11.

Dorothy F. McCrosson argued the cause for 

appellant (McCrosson & Stanton, P.C., 

attorneys; Ms. McCrosson, on the briefs).

William R. Serber argued the cause for 

respondents John E. Myers and Diane D. 

Myers, Trustees (Serber Konschak, LLP, 

attorneys; Mr. Serber, of counsel; James E. 

Moore, on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

APPROVED FOR PUBLICATION

January 16, 2015

APPELLATE DIVISION

January 16, 2015
2 A-2568-13T2

On leave granted, the City of Ocean City appeals from the 

trial court's order compelling it to respond to a proposed zoning

change recommended by the Ocean City Planning Board in its master

plan reexamination report. Construing N.J.S.A. 40:55D-62(a), the 

trial court concluded that a governing body must adopt an 

ordinance consistent with a change proposed in a reexamination 

report, or the governing body must affirmatively reject the 

change after a hearing. We agree with the City that the statute 

does not require a governing body to affirmatively act in response 

to a master plan recommendation, so long as the existing 

ordinance is substantially consistent with the master plan's 

land use and housing plan elements. We therefore reverse.

I.

The material facts are undisputed. At issue is a proposed 

zoning change affecting the status of six residential properties

in Ocean City's Beach and Dune Zone (B&D Zone). The proposal is 

the third of twelve master plan amendments recommended in the 

Planning Board's October 17, 2012, Master Plan Reexamination 

Report (2012 Report). According to the 2012 Report, residential 

and commercial uses were prohibited in the B&D Zone, which has 

existed since 1988. The only permitted uses pertained to beach 

and water recreation, flood prevention, and the maintenance of 

open space. Consequently, the six residences, which pre-dated 
3 A-2568-13T2

the zone's creation, became non-conforming uses and structures. 

The Planning Board noted that the owners were thereby prohibited 

from expanding their homes, or rebuilding them in the event of a 

destructive storm, unless they obtained a use variance. The 

Planning Board proposed to deem the residential properties 

conditional uses, and recommended several conditions designed to 

assure that the residences did not interfere with the flood 

preventative functions of the zone. 

The City adopted several ordinances in 2012 and 2013 to 

implement various changes proposed in the 2012 Report unrelated 

to the B&D Zone. Prior to final adoption of these ordinances, 

the City obtained the Planning Board's consistency review, 

pursuant to N.J.S.A. 40:55D-64. However, the City took no 

action specifically regarding the proposed B&D Zone change. 

Plaintiffs John E. and Diane D. Myers own two of the six 

affected residences — 19 and 21 Beach Road — which lie between the

road and ocean. They purchased the homes in 2010 and 2009,

respectively, when the homes were already deemed non-conforming 

uses. In 2011, they sought a variance from the Ocean City Zoning 

Board of Adjustment to enable them to expand the residence at 19 

Beach Road. Plaintiffs sought to add a 302-square-foot deck,

construct roofs over existing decks, and construct four dormer 

additions providing 120 square feet of head room. 
4 A-2568-13T2

The Zoning Board denied the variance in May 2011. Among 

other reasons, it found that expanding and extending the useful 

life of a non-conforming structure would violate the purposes of 

the B&D Zone. In 2011, plaintiffs filed an action in lieu of 

prerogative writ against the Zoning Board and the City. 

Relevant to this appeal is an amended count of plaintiffs'

complaint, which they sought to file after the Planning Board 

issued the 2012 Report. In the new count, plaintiffs requested 

an order compelling the City to adopt the B&D Zone change, or to 

endorse, affirmatively, maintenance of the zoning ordinance 

notwithstanding the proposed change. The court thereafter 

granted plaintiffs the requested relief.1

By order entered December 6, 2013, the court required the 

City to: "[a]mend the zoning ordinance to conform with 'Master 

Plan Amendment #3: Beach and Dune' in the master plan reexamination report[,]" or "[h]old a hearing as required under 

 

1 The procedural setting of the court's determination on the 

merits is unclear. The only formal motion before the court was 

plaintiffs' motion to amend their complaint. The City opposed 

the motion on the ground the amendment lacked merit. Oral 

argument on the motion to amend pertained to the substantive 

merits of the proposed cause of action. The court acknowledged 

that if the amendment were granted, the City would thereafter 

move to dismiss, renewing the arguments it presented in opposing 

the motion to amend. In a written decision issued several weeks 

after oral argument, the court both granted the motion to amend, 

and determined the merits of the added cause of action. It is 

uncertain from the record whether the parties, after oral 

argument, separately consented to a decision on the merits. 
5 A-2568-13T2

N.J.S.A. 40:55D-62(a) to permit the zoning ordinance to remain 

inconsistent with the master plan." The court required the City 

to comply within ninety-five days. We thereafter granted the 

City's motion for leave to appeal. The trial court then entered 

a stay of its order with the parties' consent.

II.

At issue is the meaning of N.J.S.A. 40:55D-62(a). We 

review de novo the trial court's interpretation. See Perez v. 

Zagami, LLC, 218 N.J. 202, 209 (2014) (stating that an issue of 

statutory construction is a legal issue subject to de novo 

review); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 

N.J. 366, 378 (1995) ("A trial court's interpretation of the law 

and the legal consequences that flow from established facts are 

not entitled to any special deference.").

The principles governing statutory interpretation are wellsettled. Our goal is to determine and effectuate the 

Legislature's intent. See, e.g., In re Kollman, 210 N.J. 557, 

568 (2012). We begin with the statutory language. Ibid. "We 

ascribe to the statutory words their ordinary meaning and 

significance, and read them in context with related provisions 

so as to give sense to the legislation as a whole." DiProspero 

v. Penn, 183 N.J. 477, 492 (2005) (citations omitted); see also

Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 
6 A-2568-13T2

(2012) (stating that a provision "should not be read in 

isolation, but in relation to other constituent parts so that a 

sensible meaning may be given to the whole of the legislative 

scheme"). If the language is clear, our task is complete; if it 

is not, we may turn to extrinsic evidence. Kollman, supra, 210 

N.J. at 568.

The provision in dispute addresses a governing body's 

authority to adopt a zoning ordinance, and its conformity with 

the municipality's master plan:

The governing body may adopt or amend a 

zoning ordinance relating to the nature and 

extent of the uses of land and of buildings 

and structures thereon. Such ordinance 

shall be adopted after the planning board 

has adopted the land use plan element and 

the housing plan element of a master plan, 

and all of the provisions of such zoning 

ordinance or any amendment or revision 

thereto shall either be substantially 

consistent with the land use plan element 

and the housing plan element of the master 

plan or designed to effectuate such plan 

elements; provided that the governing body 

may adopt a zoning ordinance or amendment or 

revision thereto which in whole or part is 

inconsistent with or not designed to 

effectuate the land use plan element and the 

housing plan element, but only by 

affirmative vote of a majority of the full 

authorized membership of the governing body, 

with the reasons of the governing body for 

so acting set forth in a resolution and 

recorded in its minutes when adopting such a 

zoning ordinance; and provided further that, 

notwithstanding anything aforesaid, the 

governing body may adopt an interim zoning 

ordinance pursuant to subsection b. of 
7 A-2568-13T2

section 77 of P.L.1975, c. 291 [N.J.S.A.

40:55D-90].

[N.J.S.A. 40:55D-62(a).]

We agree with the City that nothing in the plain language 

of section 62(a) requires a governing body to affirmatively act 

in response to a reexamination report. Rather, the statute 

imposes conditions upon a governing body when it decides to act. 

The first sentence of the provision makes it clear that adoption 

of an ordinance or an amendment is permissive. "The governing 

body may adopt or amend a zoning ordinance." Ibid. (emphasis 

added). The use of the word "may" generally conveys that an 

action is permissive, not mandatory. See, e.g., Harvey v. Bd. 

of Chosen Freeholders, 30 N.J. 381, 391 (1959) (stating that, 

absent legislative intent to the contrary, use of "may" 

indicates that a provision is permissive, and use of "shall" or 

"must" reflects that a provision is mandatory).

If the governing body chooses to adopt or amend an 

ordinance, it must do so only after adoption of a master plan. 

That is the import of the command in the second sentence that 

"[s]uch ordinance shall be adopted after the planning board has 

adopted the land use plan element and the housing plan element 

of a master plan. . . ." N.J.S.A. 40:55D-62(a) (emphasis 

added). Furthermore, if the governing body decides to adopt or 

amend an ordinance, then — subject to a proviso — "all of the 
8 A-2568-13T2

provisions of such zoning ordinance or any amendment or revision 

thereto shall . . . be substantially consistent" with the master 

plan's land use and housing plan elements, or "designed to 

effectuate such plan elements." Ibid. (emphasis added). 

The proviso allows the governing body to adopt an ordinance 

that is inconsistent with those master plan elements. The 

governing body "may adopt" such an ordinance if it does so by 

majority vote of the governing body's full authorized membership 

"with the reasons . . . for so acting set forth in a resolution 

and recorded in its minutes . . . ." Ibid. (emphasis added). 

Under the statutory scheme requiring reexamination of the 

master plan, a pre-existing zoning ordinance may become 

inconsistent with one aspect of a reexamination report. 

However, the statute does not expressly require action. It 

requires a majority vote and a statement of reasons only if the 

governing body thereafter adopts an inconsistent ordinance or 

amendment. In other words, only when a governing body acts 

affirmatively to adopt a zoning ordinance or amendment that is 

inconsistent with the then-existing master plan is the majority 

vote and statement of reasons requirement triggered.

We find no basis in the statute's plain language for 

plaintiffs' contention that a governing body must affirmatively 

provide reasons for its inaction. "The plain language of the 
9 A-2568-13T2

statute does not require the governing body to justify the 

inconsistency by majority vote and a statement of reasons where 

the governing body has not affirmatively changed the zoning 

ordinance by adoption, amendment or revision." Victor Recchia 

Residential Constr., Inc. v. Zoning Bd. of Adjustment of Cedar 

Grove, 338 N.J. Super. 242, 250-51 n.3 (App. Div. 2001);

2 see 

also Cox & Koenig, N.J. Zoning & Land Use Administration, § 34-

2.2 at 776 (2014) ("There is no clear statutory provision 

dealing with the failure of the governing body to amend or adopt 

ordinances in response to significant changes in a new Master 

Plan or re-examination report that require such amendment or 

adoption.").

We do not endorse Cox & Koenig's subsequent comment, "It 

would seem that an unreasonable delay in adopting such an 

ordinance change or in adopting a resolution stating the reasons 

 

2 The trial court deemed this statement to be dictum, and opined 

it was therefore not bound by it. We disagree it was dictum, as 

it was germane to the primary issue in the case — whether the 

municipality's zoning ordinance was substantially consistent 

with the master plan. See State v. Rose, 206 N.J. 141, 183 

(2011) (stating that "matters in the opinion of a higher court 

which are not decisive of the primary issue presented but which 

are germane to that issue . . . are not dicta, but binding 

decisions of the court") (internal quotation marks and citation 

omitted). In any event, dictum is intended to provide guidance 

to courts that may address an issue in the future. Just as we 

are bound by "carefully considered dictum from the Supreme 

Court," State v. Breitweiser, 373 N.J. Super. 271, 283 (App. 

Div. 2004), certif. denied, 182, N.J. 628 (2005), a trial court 

should be bound by similar pronouncements by our court. 
10 A-2568-13T2

for not doing so should create, at some point in time, a 

presumption that the ordinance is invalid." Ibid. We find no 

basis in the statute or the Legislature's intent to reverse the 

usual presumption of validity of municipal zoning ordinances. 

See Riggs v. Twp. of Long Beach, 109 N.J. 601, 610-11 (1988); 

Victor Recchia, supra, 338 N.J. Super. at 249. However, as 

discussed below, a governing body's inaction may render its 

zoning ordinance susceptible to a general challenge that it is 

substantially inconsistent with the master plan, and therefore 

invalid.

The trial court's order contemplates that the governing 

body adopt one of two alternatives: amend its zoning ordinance 

to conform to the master plan's proposed B&D Zone change; or 

endorse the status quo with a statement of reasons adopted by a 

required majority vote. However, the statute simply does not 

require a governing body to endorse the status quo preceding a 

master plan revision. The statute ties the adoption of reasons 

to the adoption of an ordinance. "Plainly read, the statute 

requires that the reasons for inconsistency be established when 

the inconsistent ordinance is adopted." E. Mill Assocs. v. Twp. 

Council of E. Brunswick, 241 N.J. Super. 403, 407 (App. Div. 

1990). In East Mill, we held that a resolution adopted 

approximately one month after passage of an ordinance was 
11 A-2568-13T2

insufficient, because the resolution was not contemporaneous 

with passage of the ordinance. Id. at 406-07. 

If the Legislature had intended to require a governing body 

to respond to a master plan change, it presumably would have 

imposed deadlines for such action, as it has in so many other 

instances in the Municipal Land Use Act (MLUL), N.J.S.A. 40:55D1 to -163. See, e.g., N.J.S.A. 40:55D-17(c) (noting that if the 

governing body fails to hold a hearing and render a decision in 

an appeal of a zoning board decision within ninety-five days, 

the decision will be deemed affirmed); N.J.S.A. 40:55D-26(a) 

(stating that failure of the planning board to transmit its

consistency report to the governing body within thirty-five days 

relieves the governing body from certain requirements under the 

subsection). Instead, the Legislature imposed conditions if the 

governing body chose to act: by requiring substantial 

consistency of zoning amendments; or approval by a majority of 

the full membership of amendments that are inconsistent with the 

plan, along with a statement of reasons.

We recognize the important role of planning in the MLUL. 

See Riggs, supra, 109 N.J. at 618-22 (Handler, J., concurring); 

Willoughby v. Wolfson Grp., Inc., 332 N.J. Super. 223, 229 (App. 

Div.) ("It is apparent that the MLUL gives the master plan a 

central role in a municipality's decisions regarding the use and 
12 A-2568-13T2

development of the land within its jurisdiction."), certif. 

denied, 165 N.J. 603 (2000). The role is implemented in part by 

the mandated reference of proposed zoning ordinances to a 

planning board, and the consistency requirement embodied in 

section 62(a). See Riya Finnegan LLC v. Twp. Council of S. 

Brunswick, 197 N.J. 184, 192 (2008) ("Although the Master Plan 

itself has no independent force, the requirement that the zoning 

ordinance be 'substantially consistent' with it connotes a 

recognition by our Legislature of the importance of 

comprehensive planning.").

Nonetheless, the MLUL does not mandate absolute consistency 

between a zoning ordinance and a master plan. "[T]he concept of 

'substantially consistent' permits some inconsistency, provided 

it does not substantially or materially undermine or distort the 

basic provisions and objectives of the Master Plan." Manalapan, 

supra, 140 N.J. at 384. Moreover, a governing body's 

determination that its ordinance is substantially consistent is 

entitled to great weight and deference. Id. at 383. In 

Manalapan, the Court deferred to a governing body's judgment 

that a zoning ordinance that banned a Home Depot and stores like 

it from a particular zone was not inconsistent with the 

municipality's master plan. Ibid. 
13 A-2568-13T2

Our reading of section 62(a) does not undermine the 

Legislature's broader purpose in the MLUL to advance the role of 

planning. Nor does it render a master plan reexamination a 

nullity. If a governing body chooses not to act in the wake of 

a master plan revision, it does so at its peril; its zoning 

ordinance must nonetheless remain "substantially consistent" 

with the master plan. An ordinance may survive although it

falls short of that standard only if it is approved in 

conformity with section 62(a) — that is, adoption by majority 

vote of the full membership, and a statement of reasons.

In Victor Recchia, the plaintiff asserted that a preexisting ordinance was rendered invalid because it had become 

inconsistent with the new master plan. Victor Recchia, supra, 

338 N.J. Super. at 245, 248-49. We affirmed the trial court's 

determination that the ordinance remained substantially 

consistent with the master plan. Id. at 252. In so doing, we 

recognized that if the inconsistency between the prior ordinance 

and new plan were more dramatic, then the ordinance would have 

been rendered invalid. Id. at 250-51. 

Here, an existing zoning ordinance was in 

effect when a new master plan was adopted in 

1991. The governing body did not change the 

zoning ordinance to reflect the new land use 

element. This caused an inconsistency 

between the master plan and the ordinance 

with respect to the split lots in the area 

involved in this litigation. Hence, the 
14 A-2568-13T2

question is whether the ordinance is 

substantially consistent with the master 

plan. 

[Ibid.]

As noted above, we went on to address the precise statutory 

interpretation presented by plaintiffs, and found that the 

statute's plain language did not "require the governing body to 

justify the inconsistency" resulting from its inaction in the 

face of a revised master plan. Id. at 250-51 n.3.

We therefore reverse the trial court's order compelling the 

governing body to adopt an amendment to the zoning ordinance to 

conform with the proposed B&D Zone change, or to conduct a 

hearing at which it would affirmatively reject the change. We 

do so without prejudice to any claim by plaintiffs that the

City's zoning ordinance is invalid because it is not 

substantially consistent with the master plan, in light of the 

failure to adopt the B&D Zone change, and any other remaining 

but unadopted changes proposed in the 2012 Report.

Reversed and remanded. We do not retain jurisdiction.