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NJ Capital Partners, LLC v. Oakland Planning Board

BER-L-12176-04 (N.J. Super. Law Div. 2006) (Unpublished)

ZONING; EMINENT DOMAIN; INVERSE TAKINGS—Where a land use board has not yet determined that no possible access to a developer’s property could satisfy a steep slope ordinance, it is premature for the property owner to claim a taking by inverse condemnation.

A property owner submitted a development application to the municipal planning board, seeking approval to create residential lots. The property could not be accessed other than from an abutting road. The site was otherwise landlocked and wholly inaccessible. During the course of public hearings, the property owner proposed an access point on the road within the southern portion of the road as it ran along the edge of the property. The grade of the property along that portion of the road was significant. The municipal had a steep slope ordinance regulating the disturbance of soil in land with slopes in excess of a certain gradient. The steeper the slope, the more restrictive the municipal regulation.

The property owner’s development proposal required three steep slope variances, all of which were denied. It filed a complaint. The first count of the complaint was an action in lieu of prerogative writs, challenging the board’s denial of the steep slope variances as arbitrary and capricious. The second count alleged that the board, in refusing to grant the requested steep slope variances, had in effect rendered the property inaccessible and inutile. Thus, the property owner demanded relief against the board for taking its property without just condemnation, i.e., inverse condemnation.

A trial on count one was held. The lower court entered judgment on behalf of the board, declining to overturn the board determination that the applicant had failed to establish that the zoning benefits of the application outweighed the detriment attributable to the variances.

Following the lower court’s decision, a trial on count two was held to determine whether the board’s denial of the variances deprived the property owner of all economically viable use of the land, or otherwise amounted to a constitutional taking. During that trial, an engineer retained by the municipality testified as to whether alternative access to the site could have been had without triggering the necessity for steep slope variances. The municipality’s engineer prepared a report depicting an alternative access point from the northern portion of the road. The property owner also retained an engineer who testified that its selected proposed access point was the only feasible access to the property.

The Court framed the issue: If access where the board denied it was the only viable access, then the property was rendered inaccessible as a consequence of the board’s steep slope variance denial. A corollary issue was determining whether the municipality’s engineer’s alternative plan was a viable plan. The parties agreed that if that plan was not viable, the property was inaccessible and inutile.

The Court found that the board never formally rejected the alternate access point and never determined anything other than the steep slope variances. It believed the board explored whether access could be achieved at a point along the road where there were no steep slopes, but did not conclude that such access was viable. Also, though highly contested by the property owner, the alternate access point was never condemned out of hand. Thus, the Court concluded that the alternate access point was not a thing decided.

Accordingly, the Court did not grant the relief sought by the property owner in count two because the evidence did not prove that a taking had occurred. The count was therefore dismissed without prejudice and remanded the matter to the board for further proceedings as would be appropriate to determine the viability and acceptability of northern access. Further, the Court instructed that that remand would likely necessitate a determination from the county as to viability and acceptability of the northern access.

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