                  NOT FOR PUBLICATION WITHOUT THE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,
                                       APPROVED FOR PUBLICATION
      Plaintiffs-Respondents,
                                          January 16, 2015
v.
                                         APPELLATE DIVISION
OCEAN CITY ZONING BOARD OF
ADJUSTMENT,

      Defendant-Respondent,

and

CITY OF OCEAN CITY,

     Defendant-Appellant.
______________________________

          Argued September 16, 2014 – Decided January 16, 2015

          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.
         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



                                              2                                       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.




                                       3                              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   re-

examination 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.



                                       4                               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 well-

settled.        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




                                          5                                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



                                       6                               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



                                                7                                    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




                                           8                                    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.



                                            9                                       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




                                              10                                     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. 40:55D-

1 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




                                          11                            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.




                                                     12                                    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   pre-

existing 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



                                            13                                   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.




                                        14                              A-2568-13T2
