Ocean Township Planning Board’s Master Plan

By Jason Gindi*

In November 2017, Ocean Township (the “Town”) passed an ordinance rezoning land, now known as “32 Acres,” to a mixed-use district. According the complaint of a lawsuit filed against the Town by two of its residents, the Town was sued several times by a local supermarket (likely because the land was to be used for a competitor), and the Mayor believed the suits would be more likely to fail if the land was rezoned.[i] The land is currently undeveloped, but the owners of the land, with the new zoning, plan to build townhouses, a hotel, and commercial stores included a restaurant, convenience store, and a gas station.[ii] In April 2018, Jacquie Wenzel Jungkunst and her husband, Peter Jungkunst, filed a suit against the Town, its mayor, and its planning board (the “Planning Board”).[iii] The suit primarily alleged

  • that the ordinance was in violation of the Town’s 1990 Master Plan; and
  • that the Town denied the public due process by permitting no public comments at the Planning Board meeting.[iv]

The plaintiffs’ first claim rests on the Town’s 1990 Master Plan, which recommended some residential zoning and some office zoning for the land.[v] However, the Town rebuts, noting the 2000 Reexamination of the Master Plan.[vi] But this blog post will not delve into the first cause of action.

For their second claim against the Planning Board, plaintiffs relied on N.J. Stat § 40:55d‑62,[vii] a section of New Jersey’s zoning code determining when a governing body is permitted to rezone.[viii] In addition, they rely on N.J. Stat § 40:55d‑62.1,[ix] which requires that notice of a hearing on a rezoning be given at least ten days before the hearing.[x]

The Planning Board moved to dismiss.[xi] The Planning Board alleged that it was not required to have a public hearing, even if the mayor had claimed that it would.[xii]

The Planning Board relies on N.J. Stat. § 40:55D-26, which states

“Prior to the adoption of a development regulation, revision, or amendment thereto, the planning board shall make and transmit to the governing body, within 35 days after referral, a report including identification of any provisions in the proposed development regulation, revision or amendment which are inconsistent with the master plan and recommendations concerning these inconsistencies and any other matters as the board deems appropriate.”[xiii]

However, it is unclear what, if any, effect the notice would have on plaintiffs’ claim that a hearing was separately required.

But the Planning Board also relies on N.J. Stat §§ 40:55d-62 and 40:55d-62.1[xiv]. The Planning Board argues that the notice requirement, and therefore the recommendations requirement, too, is not applicable to this rezoning.[xv] Plaintiffs, though, argue that the rezoning fell within the scope of N.J. Stat § 40:55d-62 and thus required a hearing.[xvi]

The Planning Board’s Defenses of the Notice Requirement

The plaintiffs alleged that the Planning Board did not properly hold public comment under N.J. Stat § 40:55d-62.1.[xvii] N.J. Stat § 40:55d-62.1 requires notice of hearings when the planning board proposes “a change to the classification or boundaries of a zoning district.”[xviii] The Planning Board contended, and the Court agreed, that it was not required to offer public comment.[xix] In determining when planning boards need to give notice, the New Jersey Superior Court has said, “the test is not the number of changes but the substance of the changes.”[xx] Further, the Planning Board cites Cox, N.J. Zoning & Land Use Administration, a leading secondary source on the matter, which plainly states that a specific hearing on the zoning issue is never required, so long as there is a separate opportunity for community input.[xxi] So, the Planning Board argues, opening an ordinary, regularly scheduled Township Council hearing to questions on the zoning issue suffices to fulfil the notice requirement of N.J. Stat § 40:55d-62.1.[xxii]

The plaintiffs, however, also alleged that the mayor and other Town officials told them that the Planning Board would have a hearing on the matter and the Planning Board was thus required to hold the hearing.[xxiii] The Planning Board, though, argued this was meaningless, that the comments did not “change the right of the Board to make a decision . . . .”[xxiv] Neither plaintiffs nor defendant Planning Board rely on any specific case law or statute to support their claim. However, in discussing a planning board member’s political statements, New Jersey courts have said that “official statements represent no more than the views of public officials pertaining to a matter of deep moment to the community.”[xxv] Further, the Superior Court, Appellate Division has said that the “[w]hether the final version of the resolution, as adopted, differs from any comments publicly made by one or more members voting on it . . . does not detract from the resolution’s status as the official statement of the board’s findings and conclusions.”[xxvi] And finally, New Jersey’s Supreme Court has said “[the mayor’s] official statements represent no more than the views of public officials pertaining to a matter of deep moment to the community.”[xxvii] It seems the Planning Board has the better argument of the two, and that the court’s dismissal of the complaint rested on solid ground. 

*Jason Gindi is a Junior Editor on MJEAL. They can be reached via email at jgindi@umich.edu.


[i] Complaint at 14, Jungkunst v. Twp. of Ocean, L-1467-18 (2018), N.J. Super. Ct. Law Div.

[ii] Dan Radel, Ocean Town Center plan on Deal Road calls for hotel, townhouses (Mar. 1, 2019)https://www.app.com/story/news/local/communitychange/2019/03/01/ocean-town-center-plan-deal-road-calls-hotel-townhouses/3004019002/.

[iii] Complaint, Jungkunst v. Twp. of Ocean, L-1467-18 (2018), N.J. Super. Ct. Law Div.

[iv] Id.

[v] Id. at 5-25.

[vi] Defendant Town’s Answer and Defenses, Jungkunst v. Twp. of Ocean, L-1467-18 (2018), N.J. Super. Ct. Law Div.

[vii] Complaint at 6-31, Jungkunst v. Twp. of Ocean, L-1467-18 (2018), N.J. Super. Ct. Law Div.

[viii] N.J. Stat § 40:55d‑62.

[ix] Complaint at 6-31, Jungkunst v. Twp. of Ocean, L-1467-18 (2018), N.J. Super. Ct. Law Div.

[x] N.J. Stat § 40:55d‑62.1.

[xi] Defendant Planning Board’s Motion to Dismiss, Jungkunst v. Twp. of Ocean, L-1467-18 (2018), N.J. Super. Ct. Law Div.

[xii] Defendant Planning Board’s Reply Brief at 7, Jungkunst v. Twp. of Ocean, L-1467-18 (2018), N.J. Super. Ct. Law Div.

[xiii] N.J. Stat § 40:55d‑26.

[xiv] Defendant Planning Board’s Motion to Dismiss, Jungkunst v. Twp. of Ocean, L-1467-18 (2018), N.J. Super. Ct. Law Div.

[xv] Id. at 3-4.

[xvi] Complaint, Jungkunst v. Twp. of Ocean, L-1467-18 (2018), N.J. Super. Ct. Law Div.

[xvii] Id. at 28.

[xviii] N.J. Stat § 40:55d-62.1.

[xix] Defendant Planning Board’s Motion to Dismiss, Jungkunst v. Twp. of Ocean, L-1467-18 (2018), N.J. Super. Ct. Law Div.; and Defendant Planning Board’s Reply Brief, Jungkunst v. Twp. of Ocean, L-1467-18 (2018), N.J. Super. Ct. Law Div.

[xx] Robert James Pacilli Homes, L.L.C. v. Twp. of Woolwich, 394 N.J. Super. 319, 333 (Super. Ct. App. Div. 2007).

[xxi] William M. Cox, N.J Zoning & Land Use Admin. 152 (2018)

[xxii] Defendant Planning Board’s Motion to Dismiss, Jungkunst v. Twp. of Ocean, L-1467-18 (2018), N.J. Super. Ct. Law Div.

[xxiii] Complaint at 27, Jungkunst v. Twp. of Ocean, L-1467-18 (2018), N.J. Super. Ct. Law Div.

[xxiv] Defendant Planning Board’s Reply Brief at 7, Jungkunst v. Twp. of Ocean, L-1467-18 (2018), N.J. Super. Ct. Law Div.

[xxv] Lincoln Heights Ass’n v. Twp. of Cranford Planning Bd., 314 N.J. Super. 366, 383 (Super. Ct. 1998) (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 212 A.2d 153 (1965)).

[xxvi] Scully-Bozarth Post # 1817 of Veterans of Foreign Wars of U.S. v. Planning Bd. of City of Burlington, 362 N.J. Super. 296, 312 (Super. Ct. App. Div. 2003).

[xxvii] Kramer v. Bd. of Adjustment, 45 N.J. 268, 282 (1965).

Leave a Reply

Your email address will not be published. Required fields are marked *