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Callery v. Township of Weehawken

A-5902-04T3 (N.J. Super App. Div. 2006) (Unpublished)

ZONING; EMINENT DOMAIN—A person claiming inverse condemnation by reason of the adoption of a zoning ordinance is first required to exhaust all available administrative remedies.

Property owners filed a lawsuit against a municipality seeking a declaratory judgment that the municipal zoning ordinance unconstitutionally denied them any and all reasonable use of their property and constituted a “taking” without just compensation. The owners requested a judgment compelling the municipality to either re-zone their property or pay them the fair market value for the property. Their property was located within an “Outdoor Recreation Zone.” The principal permitted uses within that zone included swimming pools, golf courses, tennis courts, camps, and other recreational uses. The zoning also provided for the construction of incidental and necessary buildings related to such uses. The minimum lot size within the zone was three acres, with a maximum lot coverage of 15%. Residential housing was not permitted. The zoning regulations did, however, grant the planning board the right to waive any of the requirements if strict enforcement would cause undue hardship to the owner/applicant, or if the benefits of granting a waiver would outweigh any detriments caused by waiving strict compliance. The owners moved for summary judgment.

The lower court held that the owners could not sue before they exhausted all administrative remedies. Here, the owners never presented evidence that they attempted to sell the property, that a potential buyer refused to buy because of the property’s zoning, or that they applied for a zoning change to permit construction of a building. The lower court noted that the owners had no way of knowing if the municipality would have granted a variance since they had never applied for one. It refused to invalidate the zoning ordinance as unconstitutional on the basis on one property owner’s dissatisfaction. The municipality then moved to have the complaint dismissed because the owners failed to exhaust their administrative remedies. The lower court granted the motion and dismissed the complaint.

The owners appealed, claiming that the constitutionality of the zoning ordinance was a matter of law, not fact, and that they were not required to exhaust all administrative remedies before claiming the ordinance was unconstitutional. The Appellate Division disagreed. It ruled that it was premature to find that the municipal zoning ordinance unconstitutionally deprived the owners of the reasonable use of their property until the owners demonstrated that they, or a potential buyer, presented a development plan or a variance request that was denied. It noted that although the owners claimed that the ordinance was unconstitutional on its face, their primary concern was how it affected their property. Therefore, the Court found it appropriate to require them to present a variance request and exhaust their administrative remedies first. It noted that exhaustion of administrative remedies is not required in instances where applying for a variance would be futile, but in this case there was no evidence presented that the municipality would not consider any variances from the ordinance requirements.


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